AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

dated as of

February 28, 2007

among

HYPERION SOLUTIONS CORPORATION

ORACLE CORPORATION

and

HOTROD ACQUISITION CORPORATION

TABLE OF CONTENTS ¹

				Page
ARTICLE 1
Definitions
Section 1.01 .		Definitions			2
Section 1.02 .		Other Definitional and Interpretative Provisions			9
ARTICLE 2
The Offer
Section 2.01 .		The Offer			10
Section 2.02.		Company Action			12
Section 2.03.		Directors			13
Section 2.04 .		90% Top-Up Option			15
ARTICLE 3
The Merger
Section 3.01 .		The Closing.			15
Section 3.02 .		The Merger			16
Section 3.03.		Conversion of Shares			16
Section 3.04 .		Surrender and Payment			17
Section 3.05 .		Dissenting Shares			18
Section 3.06 .		Company Stock Options; Restricted Share Awards; ESPP			18
Section 3.07 .		Adjustments			20
Section 3.08 .		Withholding Rights			20
Section 3.09 .		Lost Certificates			20
ARTICLE 4
The Surviving Corporation
Section 4.01 .		Certificate of Incorporation			21
Section 4.02 .		Bylaws			21
Section 4.03 .		Directors and Officers			21
ARTICLE 5
Representations and Warranties of the Company
Section 5.01 .		Corporate Existence and Power			21
Section 5.02 .		Corporate Authorization			22
Section 5.03 .		Governmental Authorization			22
Section 5.04 .		Non-contravention			22

Section 5.05 .		Capitalization			23
Section 5.06 .		Subsidiaries			25
Section 5.07 .		SEC Filings and the Sarbanes-Oxley Act			26
Section 5.08 .		Financial Statements; Internal Controls			27
Section 5.09 .		Disclosure Documents.			28
Section 5.10 .		Absence of Certain Changes			29
Section 5.11 .		No Undisclosed Material Liabilities			29
Section 5.12 .		Litigation.			30
Section 5.13 .		Compliance with Applicable Law and Orders			30
Section 5.14 .		Material Contracts			31
Section 5.15 .		Taxes			34
Section 5.16 .		Employee Benefit Plans			36
Section 5.17 .		Labor and Employment Matters			38
Section 5.18 .		Insurance Policies			38
Section 5.19 .		Environmental Matters			39
Section 5.20 .		Intellectual Property; Computer Software			40
Section 5.21 .		Properties			42
Section 5.22 .		Interested Party Transactions			43
Section 5.23 .		Certain Business Practices			43
Section 5.24 .		Finders’ Fees			43
Section 5.25 .		Opinion of Financial Advisor			44
Section 5.26 .		Antitakeover Statutes; Company Rights Agreement			44
ARTICLE 6
Representations and Warranties of Parent
Section 6.01 .		Corporate Existence and Power			44
Section 6.02 .		Corporate Authorization			44
Section 6.03 .		Governmental Authorization			45
Section 6.04 .		Non-contravention			45
Section 6.05 .		Disclosure Documents			45
Section 6.06 .		Company Securities			46
Section 6.07 .		Litigation			46
Section 6.08 .		Financing			46
ARTICLE 7
Covenants of the Company
Section 7.01 .		Conduct of the Company			47
Section 7.02 .		Stockholder Meeting; Proxy Material; Short Form Merger			50
Section 7.03 .		No Solicitation; Other Offers			52
Section 7.04 .		Access to Information			54
Section 7.05 .		Notice of Certain Events			54
Section 7.06 .		Company Rights Agreement			55
Section 7.07 .		Termination of 401(k) Plan			55
Section 7.08 .		FIRPTA Certificate			56
Section 7.09.		Product Remediation			56

Section 7.10.		Company Compensation Arrangements			56
ARTICLE 8
Covenants of Parent
Section 8.01 .		Obligations of Merger Subsidiary			56
Section 8.02 .		Voting of Shares			57
Section 8.03 .		Director and Officer Liability			57
ARTICLE 9
Covenants of Parent and the Company
Section 9.01 .		Reasonable Best Efforts			58
Section 9.02 .		Certain Filings			60
Section 9.03 .		Public Announcements			60
Section 9.04 .		Further Assurances			61
ARTICLE 10
Conditions to the Merger
Section 10.01 .		Conditions to the Obligations of Each Party			61
ARTICLE 11
Termination
Section 11.01 .		Termination			61
Section 11.02 .		Effect of Termination			63
ARTICLE 12
Miscellaneous
Section 12.01 .		Notices			63
Section 12.02 .		Survival of Representations and Warranties			64
Section 12.03 .		Amendments and Waivers			64
Section 12.04 .		Expenses			64
Section 12.05 .		Disclosure Schedule References			65
Section 12.06 .		Binding Effect; Benefit; Assignment			65
Section 12.07 .		Governing Law			66
Section 12.08 .		Jurisdiction			66
Section 12.09 .		Waiver of Jury Trial			66
Section 12.10 .		Counterparts; Effectiveness			66
Section 12.11 .		Entire Agreement			66
Section 12.12 .		Severability			66
Section 12.13 .		Specific Performance			67

INDEX OF ANNEXES
Annex I		Conditions to the Offer
INDEX OF EXHIBITS
Exhibit A		Form of Tender and Support Agreement
Exhibit B		Form of Amended and Restated Certificate of Incorporation

AGREEMENT AND PLAN OF MERGER

     AGREEMENT AND PLAN OF MERGER (this “ Agreement ”) dated as of February 28, 2007 among Hyperion Solutions Corporation, a Delaware corporation (the “ Company ”), Oracle Corporation, a Delaware corporation (“ Parent ”), and Hotrod Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (“ Merger Subsidiary ”).

     WHEREAS, it is proposed that Merger Subsidiary shall commence a tender offer (as it may be amended from time to time in accordance with this Agreement, the “ Offer ”) to purchase all of the outstanding shares (the “ Company Shares ”) of Company Common Stock (as defined herein), including the associated Company Rights (but excluding any Company Restricted Shares, each as defined herein), at a price of $52.00 per share (such amount, or any different amount per share offered pursuant to the Offer in accordance with the terms of this Agreement, the “ Offer Price ”), on the terms and subject to the conditions set forth herein;

     WHEREAS, it is also proposed that, following the consummation of the Offer, Merger Subsidiary will merge with and into the Company with the Company surviving as a wholly-owned subsidiary of Parent (the “ Merger ”), and each Company Share that is not tendered and accepted pursuant to the Offer will thereupon be canceled and converted into the right to receive cash in an amount equal to the Offer Price, on the terms and subject to the conditions set forth herein;

     WHEREAS, the Board of Directors of each of the Company, Parent and Merger Subsidiary have approved this Agreement and deems it advisable and in the best interests of their respective stockholders to consummate the Offer, the Merger and the other transactions contemplated hereby, on the terms and subject to the conditions set forth herein; and

     WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Parent’s and Merger Subsidiary’s willingness to enter into this Agreement, certain stockholders of the Company are entering into a Tender and Support Agreement substantially in the form attached as Exhibit A (the “ Tender and Support Agreement ”).

     NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, the parties hereto agree as follows:

ARTICLE 1
Definitions

     Section 1.01 . Definitions. (a) As used herein, the following terms have the following meanings:

     “ Acquisition Proposal ” means, other than the transactions contemplated by this Agreement, any offer, proposal, inquiry or indication of interest relating to any transaction or series of related transactions involving (i) any acquisition or purchase by any Third Party, directly or indirectly, of 15% or more of any class of outstanding voting or equity securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 15% or more of the consolidated assets of the Company, or any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in any Third Party beneficially owning 15% or more of any class of outstanding voting or equity securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 15% or more of the consolidated assets of the Company, (ii) any merger, amalgamation, consolidation, share exchange, business combination or other similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 15% or more of the consolidated assets of the Company pursuant to which the shareholders of the Company immediately preceding such transaction hold, directly or indirectly, less than 85% of the equity interests in the surviving or resulting entity of such transaction, (iii) any sale, lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of 15% or more of the consolidated assets of the Company (measured by the lesser of book or fair market value thereof), or (iv) any liquidation, dissolution, recapitalization, extraordinary dividend or other significant corporate reorganization of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 15% or more of the consolidated assets of the Company.

     “ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. As used in this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

     “ Applicable Law ” means, with respect to any Person, any international, national, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule or regulation enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person.

     “ Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Applicable Law to close.

     “ Closing Date ” means the date of Closing.

     “ Code ” means the Internal Revenue Code of 1986.

     “ Company Balance Sheet ” means the unaudited consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2006 and the footnotes thereto set forth in the Company’s quarterly report on Form 10-Q for the fiscal quarter ended December 31, 2006.

     “ Company Balance Sheet Date ” means December 31, 2006.

     “ Company Board ” means the Board of Directors of the Company.

     “ Company Common Stock ” means the common stock, par value $0.001 per share, of the Company.

     “ Company Disclosure Schedule ” means the disclosure schedule dated the date hereof regarding this Agreement that has been provided by the Company to Parent and Merger Subsidiary.

     “ Company IP ” means all Intellectual Property Rights owned or exclusively controlled by the Company and/or any of its Subsidiaries.

     “ Company Material Adverse Effect ” means a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, excluding any such effect resulting from or arising out of (A) any adverse effect (including any loss of or adverse change in the relationship of the Company and its Subsidiaries with their respective employees, customers, distributors, licensors, partners, suppliers or similar relationship) arising out of or related to the announcement, pendency or consummation of the Offer or the Merger, (B) general economic, market or political conditions (including acts of terrorism or war or other force majeure events) that do not disproportionately affect the Company and its Subsidiaries, taken as a whole, (C) general conditions in the industry in which the Company and its Subsidiaries operate that do not disproportionately affect the Company and its Subsidiaries, taken as a whole, (D) any changes (after the date hereof) in GAAP or Applicable Law, (E) any failure of the Company or any of its Subsidiaries to take any action as a result of Parent’s refusal to grant its consent to such action pursuant to Section 7.01, (F) any failure of the Company to meet internal or analysts’ expectations or projections (it being understood that, except as set forth in clauses (A), (B), (C), (D), (E), (G) or (H) of this definition, any cause of any such failure may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration when determining whether a Company

Material Adverse Effect has occurred), (G) any Proceeding made or brought by any holder of Company Shares (on any holder’s own behalf or on behalf of the Company) arising out of or related to this Agreement or any of the transactions contemplated hereby (including the Offer and the Merger), or (H) any information or adverse effect arising out of or related to compliance with Section 7.09.

     “ Company Restricted Share ” means a restricted share of Company Common Stock issued pursuant to any of the Company Stock Plans that remains unvested.

     “ Company Restricted Share Unit ” means a deferred share unit or restricted stock unit granted pursuant to any of the Company Stock Plans pursuant to which any Company Common Stock remains unissued or unvested.

     “ Company Rights ” means the preferred stock purchase rights issued pursuant to the Company Rights Agreement.

     “ Company Rights Agreement ” means the Rights Agreement dated as of June 15, 1998 between the Company and Equiserve Trust Company, N.A. (f.k.a. Bank Boston, N.A.), as Rights Agent thereunder.

     “ Company Software Products ” means (i) all software products sold or offered for sale by the Company or any of its Subsidiaries and (ii) all other software products proprietary to the Company or any of its Subsidiaries that are used in the conduct of their respective businesses. Notwithstanding the foregoing, the term “Company Software Products” shall not include any third party software sold by the Company or any of its Subsidiaries on a stand-alone basis.

     “ Contract ” means any contract, agreement, note, bond, indenture, mortgage, guarantee, option, lease, license, sales or purchase order, warranty, commitment or other instrument, obligation or binding arrangement or understanding of any kind.

     “ Delaware Law ” means the General Corporation Law of the State of Delaware.

     “ Environmental Law ” means any Applicable Law or any binding agreement with any Governmental Authority governing or relating to the environment or Hazardous Substances (including as such matters relate to human health and safety).

     “ ERISA ” means the Employee Retirement Income Security Act of 1974.

     “ ERISA Affiliate ” of any entity means any other entity that, together with such entity, would be treated as a single employer under Section 414 of the Code.

     “ GAAP ” means generally accepted accounting principles in the United States.

     “ Governmental Authority ” means (i) any government or any state, department, local authority or other political subdivision thereof, (ii) any governmental body, agency, authority (including any central bank, Taxing Authority or transgovernmental or supranational entity or authority), minister or instrumentality (including any court or tribunal) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, or (iii) Nasdaq.

     “ Governmental Authorizations ” means, with respect to any Person, all licenses, permits (including construction permits), certificates, waivers, consents, franchises, exemptions, variances, expirations and terminations of any waiting period requirements and other authorizations and approvals issued to such Person by or obtained by such Person from any Governmental Authority, or of which such Person has the benefit under any Applicable Law.

     “ Hazardous Substance ” means any pollutant, contaminant, waste or chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material, or any substance, waste or material having any constituent elements displaying any of the foregoing characteristics, regulated under any Environmental Law.

     “ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

     “ Indebtedness ” means, collectively, any (i) indebtedness for borrowed money, (ii) indebtedness evidenced by any bond, debenture, note, mortgage, indenture or other debt instrument or debt security, (iii) amounts owing as deferred purchase price for the purchase of any property (other than trade payables and other current liabilities arising in the ordinary course of business), or (iv) guarantees with respect to any indebtedness or obligation of a type described in clauses (i) through (iii) above of any other Person; provided, however , that Indebtedness shall not include any inter-company indebtedness between the Company and any of its wholly-owned Subsidiaries or between any of the Company’s wholly-owned Subsidiaries.

     “ Intellectual Property Rights ” means all worldwide rights in (i) inventions, whether or not patentable, (ii) patents and patent applications, (iii) trademarks, service marks, trade dress, logos, Internet domain names and trade names, whether or not registered, and all goodwill associated therewith, (iv) rights of publicity and other rights to use the names and likeness of individuals, (v) copyrights, rights in databases and related rights, whether or not registered, (vi) mask works, (vii) computer software, data, databases, files, and documentation and other materials related to the foregoing, (viii) trade secrets and confidential, technical and business information, (ix) all rights to any of the foregoing provided by bilateral or international treaties or conventions, (x) all other intellectual property or proprietary rights, and (xi) all rights to sue or

recover and retain damages and costs and attorneys’ fees for past, present and future infringement or misappropriation of any of the foregoing.

     “ IT Assets ” means all computers, computer software, firmware, middleware, servers, workstations, routers, hubs, switches, data communications lines, and all other information technology equipment, and all associated documentation owned by the Company or any of its Subsidiaries or licensed or leased by the Company or any of its Subsidiaries pursuant to written agreement (excluding any public networks).

     “ Lien ” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance, claim, infringement, interference, right of first refusal, preemptive right, community property right or other adverse claim of any kind in respect of such property or asset (but excluding (i) licenses and other agreements related to Intellectual Property Rights which are not intended to secure an obligation, (ii) any obligation to accept returns of inventory, and (iii) any obligation arising by reason of restrictions on transfer under federal, state and foreign securities laws). For purposes of this Agreement, a Person shall be deemed to own subject to a Lien, any property or asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset.

     “ Nasdaq ” means The Nasdaq Stock Market.

     “ 1933 Act ” means the Securities Act of 1933.

     “ 1934 Act ” means the Securities Exchange Act of 1934.

     “ Order ” means, with respect to any Person, any order, injunction, judgment, decree or ruling enacted, adopted, promulgated or applied by a Governmental Authority or arbitrator that is binding upon or applicable to such Person or its property.

     “ Parent Stock ” means the common stock, par value $0.01 per share, of Parent.

     “ Permitted Liens ” means (i) Liens disclosed on the Company Balance Sheet, (ii) Liens for Taxes not yet due or being contested in good faith by any appropriate Proceedings (and for which adequate accruals or reserves have been established on the Company Balance Sheet), and (iii) Liens (other than those securing Indebtedness) incurred in the ordinary course of business consistent with past practice which do not materially interfere with any present use of the property or assets to which such Lien relates.

     “ Person ” means any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including any Governmental Authority.

     “ Proceeding ” means any suit, claim, action, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, review, examination or investigation commenced, brought, conducted or heard by or before, any court or other Governmental Authority or any arbitrator or arbitration panel (but excluding non- inter-partes , normal course prosecution proceedings before the U.S. Patent and Trademark Office, U.S. Copyright Office and other IP registries).

     “ Registered IP” means all U.S., international and foreign (i) patents and patent applications (including provisional applications and design patents and applications) and all reissues, divisions, divisionals, renewals, extensions, counterparts, continuations and continuations-in-part thereof, and all patents, applications, documents and filings claiming priority thereto or serving as a basis for priority thereof, (ii) registered trademarks, service marks, applications to register trademarks, applications to register service marks, including intent-to-use applications, (iii) registered copyrights and applications for copyright registration, (iv) domain name registrations and Internet number assignments, and (v) other Intellectual Property Rights that are the subject of an application, certificate, filing, or registration issued or filed with, any Governmental Authority, in the case of each of clauses (i)-(v) above, owned by, under obligation of assignment to, or filed in the name of, the Company or any of its Subsidiaries.

     “ Representatives ” means, with respect to any Person, the directors, officers, employees, financial advisors, attorneys, accountants, consultants, agents and other authorized representatives of such Person, acting in such capacity.

     “ Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002.

     “ SEC ” means the Securities and Exchange Commission.

     “ Subsidiary ” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by such Person.

     “ Superior Proposal ” means any bona fide , written Acquisition Proposal which did not result from a breach of Section 7.03 made by a Third Party which, if consummated, would result in such Third Party (or in the case of a direct merger between such Third Party or any Subsidiary of such Third Party and the Company, the stockholders of such Third Party) owning, directly or indirectly, all of the outstanding shares of Company Common Stock or all or substantially all of the consolidated assets of the Company and its Subsidiaries, and which Acquisition Proposal the Company Board determines in good faith by a majority

vote, after considering the advice of its outside legal counsel and of a financial advisor of nationally recognized reputation and taking into account all of the terms and conditions of such Acquisition Proposal, including any break-up fees, expense reimbursement provisions and other conditions to consummation, (i) is more favorable and provides greater value to the Company’s stockholders (other than Parent and its Affiliates) than as provided hereunder (including any changes to the terms of this Agreement or the Offer proposed by Parent in response to such Superior Proposal or otherwise), (ii) is not subject to any financing condition (and if financing is required, such financing is then fully committed to the Third Party or reasonably determined to be available by the Company Board), and (iii) is reasonably capable of being completed on the terms proposed without unreasonable delay, taking into account all financial, legal, regulatory and other aspects of such Acquisition Proposal.

     “ Third Party ” means any Person or “group” as defined in Section 13(d) of the 1934 Act, other than Parent or any of its Affiliates or Representatives.

     (b) Each of the following terms is defined in the Section set forth opposite such term:

Term		Section
Adverse Recommendation Change			7.03	(a)
Agreement		Preamble
Board Recommendation			2.02	(a)
Capex Budget			7.01	(e)
Certificates			3.04	(a)
Closing			3.01
Company		Preamble
Company Bylaws			5.01
Company Certificate of Incorporation			4.01
Company Compensation Approvals			5.16	(l)
Company Compensation Arrangement			5.16	(l)
Company Disclosure Documents			5.09	(a)
Company Employee Plan			5.16	(a)
Company ESPP			3.06	(a)
Company SEC Documents			5.07	(a)
Company Securities			5.05	(c)
Company Shares		Recitals
Company Stock Option			3.06	(a)
Company Stock Plan			3.06	(a)
Company Subsidiary Securities			5.06	(c)
Compensation Committee			5.16	(l)
Confidentiality Agreement			7.03	(b)
Continuing Director			2.03	(b)
Dissenting Shares			3.05
Effective Time			3.02	(a)
Employee Plan			5.16	(a)

Term		Section
Employment Compensation Arrangement			5.16	(l)
End Date			11.01	(b)
ESPP			3.06	(d)
Exchange Agent			3.04	(a)
Foreign Competition Laws			5.03
Grant Date			5.05	(d)
Indemnification Agreements			8.03	(a)
Indemnified Person			8.03	(a)
Insurance Policies			5.18	(a)
International Plans			5.16	(k)
Leased Real Property			5.21	(b)
Material Contract			5.14	(b)
Merger		Recitals
Merger Certificate			3.02	(a)
Merger Consideration			3.03	(a)
Merger Subsidiary		Preamble
Minimum Condition			2.01	(a)
Necessary IP Rights			5.20	(a)
90% Top-Up Option			2.04	(a)
90% Top-Up Option Shares			2.04	(a)
Offer		Recitals
Offer Documents			2.01	(b)
Offer Price		Recitals
Option Exchange Ratio			3.06	(a)
Parent		Preamble
Parent Restricted Shares			3.06	(b)
Proxy Statement			5.09	(a)
Publicly Available Software			5.20	(h)
Schedule 14D-9			2.02	(b)
Schedule TO			2.01	(b)
Stockholder Approval			5.02	(a)
Stockholder Meeting			7.02	(a)
Subsequent Offering Period			2.01	(a)
Surviving Corporation			3.02	(b)
Tax			5.15	(i)
Tax Asset			5.15	(i)
Tax Return			5.15	(i)
Tax Sharing Agreements			5.15	(i)
Taxing Authority			5.15	(i)
Uncertificated Shares			3.04	(a)

     Section 1.02 . Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of

reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any agreement or contract listed on any schedules hereto, all such amendments, modifications or supplements must also be listed. References to any Person include the successors and permitted assigns of that Person. References to any statute are to that statute, as amended from time to time, and to the rules and regulations promulgated thereunder. References to “$” and “dollars” are to the currency of the United States. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to a party’s “knowledge” are references to the actual knowledge of (i) the current executive officers of that party and (ii) with respect to the Company, the employees of the Company and/or any of its Subsidiaries listed on Section 1.02 of the Company Disclosure Schedule, to the extent any such employee is not an executive officer of the Company.

ARTICLE 2
The Offer

     Section 2.01 . The Offer. (a) Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I , as promptly as practicable after the date hereof (and in any event no later than five Business Days after the date hereof), Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence (within the meaning of Rule 14d-2 under the 1934 Act) the Offer. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “ Minimum Condition ”) and to the other conditions set forth in Annex I . Merger Subsidiary expressly reserves the right to waive any

of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Company Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I , or otherwise amends or modifies the Offer in any manner materially adverse to the holders of Company Shares, and (iii) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the 1934 Act) after the date that the Offer is commenced. Merger Subsidiary shall extend the Offer (1) if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions, (y) the reasonable determination by Parent that any such condition to the Offer is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Subsidiary, and (z) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide one or more subsequent offering periods (each, a “ Subsequent Offering Period ”) in accordance with Rule 14d-11 of the 1934 Act, if, as of the commencement of each such period, there shall not have been validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period that number of Company Shares necessary to permit the Merger to be effected without a meeting of stockholders of the Company, in accordance with Section 253(a) of Delaware Law. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for, as promptly as practicable, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer after the final expiration of the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.

     (b) As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “ Schedule TO ”) that shall include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and

summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “ Offer Documents ”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.

     Section 2.02. Company Action . (a)(i) The Company hereby consents to the Offer and represents that at a meeting duly called and held prior to the execution of this Agreement at which all directors of the Company were present, the Company Board duly and unanimously adopted resolutions (A) declaring that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company’s stockholders, (B) approving and declaring advisable this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (C) approving and adopting an amendment to the Company Rights Agreement to render the Company Rights inapplicable to this Agreement, the Tender and Support Agreement and the transactions contemplated hereby and thereby, including the Offer and the Merger, and (D) recommending that the Company’s stockholders accept the Offer, tender their Company Shares to Merger Subsidiary pursuant to the Offer and grant the Stockholder Approval (such recommendation, the “ Board Recommendation ”). (ii) The Company hereby consents to the inclusion of the foregoing determinations and approvals in the Offer Documents and, to the extent that no Adverse Recommendation Change shall have occurred in accordance with

Section 7.03(b), the Company hereby consents to the inclusion of the Board Recommendation in the Offer Documents. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Company Shares and lists of securities positions of Company Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer. Parent and Merger Subsidiary shall treat the information contained in such labels, listing or files and any additional information referred to in the preceding sentence in accordance with the terms and conditions of the Confidentiality Agreement.

     (b) As soon as practicable on the day that the Offer is commenced, the Company shall file with the SEC and disseminate to holders of Company Shares, in each case, as and to the extent required by applicable U.S. federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “ Schedule 14D-9 ”) that, subject to Section 7.03(b), shall reflect the Board Recommendation. Each of Parent and Merger Subsidiary shall promptly furnish to the Company in writing all information concerning Parent and Merger Subsidiary that may be required by applicable securities laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. Each of the Company, Parent and Merger Subsidiary agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect. The Company agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Subsidiary and their counsel. The Company shall promptly provide Parent, Merger Subsidiary and their counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of those comments or other communications, and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any discussions or meetings with the SEC.

     Section 2.03. Directors . (a) Effective upon the acceptance for payment of any Company Shares pursuant to the Offer, Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (x) the total number of directors on the Company

Board (giving effect to the election of any additional directors pursuant to this Section), and (y) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Subsidiary (including Company Shares accepted for payment) bears to the total number of Company Shares outstanding, and the Company shall take all action necessary to cause Parent’s designees to be elected or appointed to the Company Board, including increasing the number of directors, and seeking and accepting resignations of incumbent directors. At such time, the Company shall take all action necessary to cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (i) each committee of the Company Board and (ii) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board, in each case to the fullest extent permitted by Applicable Law. Notwithstanding the foregoing, until Parent and/or Merger Subsidiary acquires a majority of the outstanding Company Shares on a fully diluted basis, the Company shall use its reasonable best efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company shall remain members of the Company Board and such committees and boards.

     (b) The Company’s obligations to appoint Parent’s designees to the Company Board shall be subject to Section 14(f) of the 1934 Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent shall supply to the Company in writing any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.

     (c) Following the election or appointment of Parent’s designees pursuant to Section 2.03(a) and until the Effective Time, the approval of a majority of the directors of the Company then in office who were not designated by Parent (the “ Continuing Directors ”) (or the approval of the sole Continuing Director if there shall be only one Continuing Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company Board and no other action on the part of the Company, including any action by any other director of the Company, shall be required to authorize) any termination of this Agreement by the Company, any amendment of this Agreement, including any decrease in or change of form of the Merger Consideration, any extension of time for performance of any obligation or action hereunder by Parent or Merger Subsidiary, any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, and any amendment or change to Section 8.03. Following the election or appointment of Parent’s designees pursuant to Section 2.03(a) and until the Effective Time, any actions with respect to the enforcement of this Agreement by the Company shall be effected only by the action of a majority of the Continuing Directors (or

the approval of the sole Continuing Director if there shall be only one Continuing Director).

     Section 2.04 . 90% Top-Up Option. (a) The Company hereby irrevocably grants to Merger Subsidiary an option (the “ 90% Top-Up Option ”), exercisable upon the terms and conditions set forth in this Section 2.04, to purchase that number of Company Shares (the “ 90% Top-Up Option Shares ”) equal to the lowest number of Company Shares that, when added to the number of Company Shares directly or indirectly owned by Parent at the time of such exercise, shall constitute one share more than 90% of the Company Shares then outstanding (taking into account the issuance of the 90% Top-Up Option Shares) at a price per share equal to the Offer Price; provided that in no event shall the 90% Top-Up Option be exercisable for a number of Company Shares (i) that would require the Company to obtain stockholder approval under Applicable Law, or (ii) in excess of the Company’s then authorized and unissued shares of Company Common Stock (giving effect to Company Shares reserved for issuance under the Company Stock Plans as if such shares were outstanding).

     (b) Merger Subsidiary may exercise the 90% Top-Up Option, in whole but not in part, at any time after the consummation of the Offer and prior to the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms.

     (c) Parent and Merger Subsidiary acknowledge that the Company Shares which Merger Subsidiary may acquire upon exercise of the 90% Top-Up Option will not be registered under the 1933 Act and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Subsidiary represent and warrant to the Company that Merger Subsidiary is, or will be upon the purchase of the 90% Top-Up Option Shares, an “accredited investor”, as defined in Rule 501 of Regulation D under the 1933 Act. Merger Subsidiary agrees that the 90% Top-Up Option and the 90% Top-Up Option Shares to be acquired upon exercise of the 90% Top-Up Option are being and will be acquired by Merger Subsidiary for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the 1933 Act).

ARTICLE 3
The Merger

     Section 3.01 . The Closing. Upon the terms and subject to the conditions set forth herein, the closing of the Merger (the “ Closing ”) will take place at 10:00 a.m., San Francisco time, as soon as practicable (and, in any event, within two Business Days) after satisfaction or, to the extent permitted hereunder, waiver of all conditions to the Merger set forth in Article 10 (excluding conditions that, by their terms, are satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder) of such conditions), unless this Agreement has

been terminated pursuant to its terms or unless another time or date is agreed to in writing by the parties hereto. The Closing shall be held at the offices of Davis Polk & Wardwell, 1600 El Camino Real, Menlo Park, California 94025, unless another place is agreed to by the parties hereto.

     Section 3.02 . The Merger. (a) As soon as practicable after satisfaction or, to the extent permitted hereunder, waiver of all conditions to the Merger, the Company and Merger Subsidiary shall file a certificate of merger (the “ Merger Certificate ”) with the Delaware Secretary of State and make all other filings or recordings required by Delaware Law in connection with the Merger. The Merger shall become effective at such time (the “ Effective Time ”) as the Merger Certificate is duly filed with the Delaware Secretary of State or at such later time as is specified in the Merger Certificate.

     (b) At the Effective Time, Merger Subsidiary shall be merged with and into the Company in accordance with Delaware Law, whereupon the separate existence of Merger Subsidiary shall cease, and the Company shall be the surviving corporation (the “ Surviving Corporation ”). From and after the Effective Time, the Surviving Corporation shall possess all the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions and disabilities of the Company and Merger Subsidiary, all as provided under Delaware Law.

     Section 3.03. Conversion of Shares. At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof:

     (a) except as otherwise provided in Sections 3.03(b), 3.03(c), 3.05 or 3.06(b), each Company Share outstanding immediately prior to the Effective Time (together with the Company Rights attached to each such share) shall be converted into the right to receive $52.00 in cash or any different amount as may have been paid per Company Share in the Offer, without interest (the “ Merger Consideration ”);

     (b) each Company Share held by the Company as treasury stock or owned by Parent or Merger Subsidiary (whether pursuant to the Offer or otherwise) immediately prior to the Effective Time (together with the Company Rights attached to each such share) shall be canceled, and no payment shall be made with respect thereto;

     (c) each Company Share held by any Subsidiary of either the Company or Parent (other than Merger Subsidiary) immediately prior to the Effective Time (together with the Company Rights attached to each such share) shall be converted into such number of shares of common stock, par value $0.001 per share, of the Surviving Corporation such that each such Subsidiary owns the same percentage of Surviving Corporation immediately following the Effective Time as such Subsidiary owned in the Company immediately prior to the Effective Time; and

     (d) each share of common stock of Merger Subsidiary outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock, par value $0.001 per share, of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and (in addition to shares referred to in Section 3.03(c)) shall constitute the only outstanding shares of capital stock of the Surviving Corporation.

     Section 3.04 . Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “ Exchange Agent ”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Company Shares (the “ Certificates ”) and (ii) uncertificated Company Shares (the “ Uncertificated Shares ”). Promptly after the Effective Time, Parent shall pay to the Exchange Agent, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares. Promptly after the Effective Time (but in no event later than five Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Company Shares at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.

     (b) Each holder of Company Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration.

     (c) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.

     (d) After the Effective Time, there shall be no further registration of transfers of Company Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be

canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3.

     (e) Any portion of the Merger Consideration paid to the Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by holders of Company Shares six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Company Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Company Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Company Shares for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws.

     (f) Any portion of the Merger Consideration paid to the Exchange Agent pursuant to Section 3.04(a) in respect of any Dissenting Shares shall be returned to Parent, upon demand.

     Section 3.05 . Dissenting Shares. Notwithstanding Section 3.03, any Company Shares outstanding immediately prior to the Effective Time (together with the Company Rights attached to each such share) (collectively, the “ Dissenting Shares ”) held by a holder who has not voted in favor of adoption of this Agreement or the Merger or consented thereto in writing and who has demanded appraisal for such Company Shares in accordance with Delaware Law shall not be converted into a right to receive the Merger Consideration, unless such holder fails to perfect, withdraws or otherwise loses the right to appraisal. If, after the Effective Time, such holder fails to perfect, withdraws or loses the right to appraisal, such Company Shares (together with the Company Rights attached to each such share) shall be treated as if they had been converted as of the Effective Time into a right to receive the Merger Consideration. The Company shall give Parent prompt notice of any demands received by the Company for appraisal of Company Shares, and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands. Except with the prior written consent of Parent, the Company shall not make any payment with respect to, or offer to settle or settle, any such demands.

     Section 3.06 . Company Stock Options; Restricted Share Awards; ESPP. (a) Effective as of the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each option to purchase shares of Company Common Stock, other than pursuant to the Company’s Employee Stock Purchase Plan (the “ Company ESPP ”), (each, a “ Company Stock Option ”) outstanding under any stock option or equity compensation plan or agreement (the “ Company Stock Plans ”) that is outstanding immediately prior to the Effective Time, whether or not then vested or exercisable, shall be converted automatically at the Effective Time into an option to acquire shares of Parent Stock, on substantially the same terms and conditions as were applicable under such Company Stock Option (including vesting schedule and any acceleration of

vesting, pursuant to any Company Employee Plan as in effect on the date hereof and set forth on Section 5.05(b) of the Company Disclosure Schedule), except that (i) the number of shares of Parent Stock subject to each such Company Stock Option shall be determined by multiplying the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time by a fraction (the “ Option Exchange Ratio ”), the numerator of which is the per share Merger Consideration and the denominator of which is the average closing price of Parent Stock on Nasdaq over the ten trading days immediately preceding (but not including) the Closing Date (rounded down to the nearest whole share) and (ii) the exercise price per share of Parent Stock subject to each such Company Stock Option (rounded up to the nearest whole cent) shall equal (x) the per share exercise price for the shares of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio. As soon as reasonably practicable following the Effective Time (and in no event later than 15 Business Days after the Effective Time), Parent shall deliver to each holder of a Company Stock Option an appropriate notice setting forth the terms of such assumption and conversion. With respect to any Company Stock Option that is an incentive stock option (within the meaning of Section 422 of the Code) immediately prior to the Effective Time, the parties hereto intend that such assumption and conversion, to the extent reasonably practicable, shall conform to the requirements of Section 424(a) of the Code.

     (b) Effective as of the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, (i) each Company Restricted Share outstanding immediately prior to the Effective Time (together with the Company Rights attached to each such share) shall be converted automatically into that number of restricted shares of Parent Stock (“ Parent Restricted Shares ”) equal to the Option Exchange Ratio (rounded down to the nearest whole share in respect of the aggregate number of Parent Restricted Shares into which the aggregate number of Company Restricted Shares owned by each holder thereof immediately prior to the Effective Time shall be so converted) and each Parent Restricted Share issued pursuant to this Section 3.06(b) shall remain subject to the same terms and conditions as were applicable under such Company Restricted Share (including vesting schedule and any acceleration of vesting, pursuant to any Company Employee Plan as in effect on the date hereof and set forth on Section 5.05(b) of the Company Disclosure Schedule) (and shall bear a legend containing the same restrictions on transferability), and (ii) each outstanding Company Restricted Share Unit shall be converted automatically into a substantially similar award for Parent Stock and shall remain subject to the same terms and conditions as were applicable under such Company Restricted Share (including vesting schedule and any acceleration of vesting, pursuant to any Company Employee Plan as in effect on the date hereof and set forth on Section 5.05(b) of the Company Disclosure Schedule), except that the number of shares of Parent Stock subject to each such assumed award shall be determined by multiplying the number of Company Shares subject to such Company Restricted

Share Unit by the Option Exchange Ratio (rounded down to the nearest whole share).

     (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options and Company Restricted Stock Units and the issuance of Parent restricted Shares pursuant to this Section 3.06, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 3.06. Parent shall prepare and file with the SEC a registration statement on Form S-8 with respect to the shares of Parent Stock subject to the Company Stock Options and Company Restricted Stock Units and the Parent Restricted Shares promptly following the Effective Time (and in no event later than 15 Business Days after the Effective Time) and Parent shall use reasonable best efforts to maintain the effectiveness of such registration statement for as long as such Company Stock Options, Company Restricted Stock Units or Parent Restricted Shares remain outstanding.

     (d) The Company shall take such actions as are necessary to (i) cause the exercise of each outstanding purchase right under the Company ESPP no less than five Business Days prior to the initial scheduled expiration of the Offer; (ii) provide that no further purchase period or offering period shall commence under the Company ESPP following the date hereof; and (iii) terminate the Company ESPP immediately prior to and effective as of the Effective Time.

     Section 3.07 . Adjustments. If, during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of the Company shall occur by reason of any stock split (including reverse stock split), or any stock dividend thereon with a record date during such period, the Offer Price, the Merger Consideration and any other amounts payable pursuant to this Agreement shall be appropriately adjusted.

     Section 3.08 . Withholding Rights. Each of Merger Subsidiary, the Surviving Corporation and Parent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to Articles 2 or 3 such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of any Tax law. If Merger Subsidiary, the Surviving Corporation or Parent, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which Merger Subsidiary, the Surviving Corporation or Parent, as the case may be, made such deduction and withholding.

     Section 3.09 . Lost Certificates. 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 and, if required by Parent, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall pay, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the

Company Shares formerly represented by such Certificate, as contemplated under this Article 3.

ARTICLE 4
The Surviving Corporation

     Section 4.01 . Certificate of Incorporation. The certificate of incorporation of the Company (the “ Company Certificate of Incorporation ”) shall be amended at the Effective Time as set forth in Exhibit B and, as so amended, shall be the certificate of incorporation of the Surviving Corporation until amended in accordance with Applicable Law.

     Section 4.02 . Bylaws. The bylaws of Merger Subsidiary in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation until amended in accordance with Applicable Law.

     Section 4.03 . Directors and Officers. From and after the Effective Time, except as otherwise duly elected or appointed and qualified in accordance with Applicable Law, (i) the directors of Merger Subsidiary immediately prior to the Effective Time shall be the directors of the Surviving Corporation, and (ii) the officers of Merger Subsidiary immediately prior to the Effective Time shall be the officers of the Surviving Corporation.

ARTICLE 5
Representations and Warranties of the Company

     Subject to Section 12.05, except as set forth in the Company Disclosure Schedule, the Company represents and warrants to Parent that:

     Section 5.01 . Corporate Existence 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 all corporate powers required to carry on its business as now conducted. The Company is duly qualified to do business and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has heretofore made available to Parent complete and correct copies of the Company Certificate of Incorporation and bylaws of the Company (“ Company Bylaws ”), as currently in effect. The Company has heretofore made available to Parent complete and correct copies of the minutes (or, in the case of draft minutes, the most recent drafts thereof) of all meetings of the stockholders of the Company, the Company Board and each committee of the Company Board, held since January 1, 2004, as of the date hereof.

     Section 5.02 . Corporate Authorization. (a) The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby are within the Company’s corporate powers and, except for obtaining the Stockholder Approval, if required, have been duly authorized by all necessary corporate action on the part of the Company. The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock in favor of the approval and adoption of this Agreement and the Merger (the “ Stockholder Approval ”) is the only vote of the holders of any of the Company’s capital stock necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement. This Agreement constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity.

     (b) At a meeting duly called and held, prior to the execution of this Agreement, at which all directors of the Company were present, the Company’s Board of Directors duly and unanimously adopted resolutions (i) declaring that this Agreement and the transactions contemplated hereby are fair to and in the best interests of the Company’s stockholders, (ii) approving and declaring advisable this Agreement, the Merger and the other transactions contemplated hereby, (iii) approving and adopting an amendment to the Company Rights Agreement to render the Company Rights inapplicable to the Merger, this Agreement, the Tender and Support Agreement and the transactions contemplated hereby and thereby, (iv) directing that the adoption of this Agreement and the Merger be submitted to the Stockholder Meeting, if required to consummate the Merger under Delaware Law, and (v) making the Board Recommendation.

     Section 5.03 . Governmental Authorization. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby require no action by or in respect of, or filing with, any Governmental Authority, other than (i) the filing of the Merger Certificate with the Delaware Secretary of State and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business, (ii) compliance with any applicable requirements of (A) the HSR Act and (B) any Applicable Law analogous to the HSR Act or otherwise regulating antitrust, competition or merger control matters and in each case existing in foreign jurisdictions (“ Foreign Competition Laws ”), (iii) compliance with any applicable requirements of the 1933 Act, the 1934 Act and any other applicable U.S. state or federal securities laws, and (iv) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

     Section 5.04 . Non-contravention. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Merger and the other transactions contemplated hereby do not

and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the Company Certificate of Incorporation or the Company Bylaws, (ii) assuming compliance with the matters referred to in Section 5.03, contravene, conflict with, or result in a violation or breach of any provision of any Applicable Law or Order, (iii) require any consent or other action by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit under, any provision of any Material Contract binding upon the Company or any of its Subsidiaries, or any Governmental Authorization affecting, or relating in any way to, the material assets or business of the Company or any of its Subsidiaries, or (iv) result in the creation or imposition of any Lien on any asset of the Company or any of its Subsidiaries, with such exceptions, in the case of each of clauses (ii) through (iv), as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided that in determining whether a Company Material Adverse Effect would result, any adverse effect otherwise excluded by clause (A) of the definition of “Company Material Adverse Effect” shall be taken into account.

     Section 5.05 . Capitalization. (a) The authorized capital stock of the Company consists of 300,000,000 shares of Company Common Stock and 5,000,000 shares of preferred stock, par value $0.001 per share, of the Company (of which 300,000 shares have been designated as Series A Junior Participating Preferred Stock and reserved for issuance upon exercise of the Company Rights). As of the close of business on February 27, 2007, (i) 59,178,935 Company Shares were issued and outstanding (of which an aggregate of 325,462 were Company Restricted Shares), (ii) no shares of preferred stock of the Company were issued and outstanding, (iii) Company Stock Options to purchase an aggregate of 6,976,971 Company Shares were issued and outstanding (of which Company Stock Options to purchase an aggregate of 3,517,351 Company Shares were exercisable), (iv) an aggregate of 578,211 Company Shares were reserved for settlement of Company Restricted Share Units, (v) an aggregate of 9,651,198 Company Shares were reserved for settlement of authorized Company Stock Options, and (vi) an aggregate of 1,255,558 Company Shares were reserved for issuance under the Company ESPP. All outstanding shares of capital stock of the Company have been, and all shares that may be issued pursuant to any Company Stock Plan will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid, nonassessable and free of preemptive rights.

     (b) Section 5.05(b) of the Company Disclosure Schedule sets forth, as of the close of business on February 27, 2007, a complete and correct list of (i) all outstanding Company Stock Options, including with respect to each such option, the number of shares subject to such option, the title, position and employee identity number 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 contemplated hereby) and expiration date of each such option, whether the option is intended to qualify as an “incentive stock option” under Section 422 of the Code or a non-qualified stock option, and the form of Company Stock Option award agreement pursuant to which such option was granted, (ii) all outstanding Company Restricted Shares, including with respect to each such award, the title, position and employee identity number of the holder, the grant date and vesting schedule (including any portion that would become vested as a result of the transactions contemplated hereby), whether a Section 83(b) election was taken under the Code (if available) with respect to such Company Restricted Share, and the form of Company Restricted Share grant agreement pursuant to which such award was granted, and (iii) all outstanding Company Restricted Share Units, including with respect to each such award, the title, position and employee identity number of the holder, the grant date and vesting schedule (including any portion that would become vested as a result of the transactions contemplated hereby), and the form of Company Restricted Share Unit grant agreement pursuant to which such award was granted. The Company Stock Plans set forth on Section 5.05(b) of the Company Disclosure Schedule are the only plans or programs the Company or any of its Subsidiaries maintains under which stock options, restricted shares, restricted share units, stock appreciation rights, performance shares or other compensatory equity-based awards have been granted and remain outstanding or may be granted. All Company Stock Options, Company Restricted Shares and Company Restricted Share Units may, by their terms, be treated in accordance with Section 3.06.

     (c) Except, in the case of clauses (i)-(iv) below, (w) as set forth in this Section 5.05, (x) for changes since February 27, 2007, resulting from the exercise of Company Stock Options outstanding on such date and disclosed on Section 5.05(b) of the Company Disclosure Schedule, (y) for issuances of shares of Company Common Stock and grants of Company Stock Options expressly permitted under clauses (A) and (B) of Section 7.01(c)(i), or (z) for issuance of shares of Company Common Stock upon the exercise of purchase rights pursuant to the Company ESPP in accordance with Section 3.06(d), there are no outstanding (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options, warrants or other rights or arrangements to acquire from the Company, or other obligations or commitments of the Company to issue, any capital stock or other voting securities or ownership interests in, or any securities convertible into or exchangeable for capital stock or other voting securities or ownership interests in, the Company, (iv) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company (the items in clauses (i)-(iv) being referred to collectively as the “ Company Securities ”), (v) voting trusts, proxies or other similar agreements or understandings to which Company or any of its

Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound with respect to the voting of any shares of capital stock of Company or any of its Subsidiaries, (vi) except as may be required by applicable securities laws and regulations, obligations or commitments of any character restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of Company or any of its Subsidiaries, or (vii) obligations or commitments of any character of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities. No Company Securities are owned by any Subsidiary of the Company.

     (d) With respect to the Company Stock Options, (i) each Company Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) each grant of a Company Stock Option was duly authorized no later than the date on which the grant of such Company Stock Option was by its terms to be effective (the “ Grant Date ”) by all necessary corporate action, including, as applicable, approval by the Company Board (or a duly constituted and authorized committee thereof), or a duly authorized delegate thereof, and any required stockholder approval by the necessary number of votes or written consents, (iii) each such grant was made in all material respects in accordance with the terms of the applicable Company Stock Plan, the 1934 Act and all other Applicable Law, including the Nasdaq Marketplace Rules, and (iv) the per share exercise price of each Company Stock Option was not less than the fair market value of a share of Company Common Stock on the applicable Grant Date.

     Section 5.06 . Subsidiaries. (a) Section 5.06(a) of the Company Disclosure Schedule sets forth a complete and correct list of each Subsidiary of the Company, its place and form of organization and each jurisdiction in which it is authorized to conduct or actually conducts business. No Subsidiary of the Company would constitute a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X under the 1934 Act.

     (b) Each Subsidiary of the Company is a corporation or other business entity duly incorporated or organized (as applicable), validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and has all corporate or other organizational powers required to carry on its business as now conducted. Each such Subsidiary is duly qualified to do business and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

     (c) All of the outstanding capital stock of, or other voting securities or ownership interests in, each Subsidiary of the Company, is owned by the Company, directly or indirectly, free and clear of any Lien and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities or ownership

interests). There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, warrants or other rights or arrangements to acquire from the Company or any of its Subsidiaries, or other obligations or commitments of the Company or any of its Subsidiaries to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in, any Subsidiary of the Company, or (iii) restricted shares, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, any Subsidiary of the Company (the items in clauses (i)-(iii), in addition to all shares of capital stock or voting securities of the Company’s Subsidiaries, being referred to collectively as the “ Company Subsidiary Securities ”). There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Subsidiary Securities.

     (d) Neither the Company nor any of its Subsidiaries directly or indirectly owns any equity, ownership, profit, voting or similar interest in or any interest convertible, exchangeable or exercisable for, any equity, profit, voting or similar interest in, any Person (other than a Subsidiary of the Company).

     Section 5.07 . SEC Filings and the Sarbanes-Oxley Act. (a) The Company has made available to Parent through the Company’s filings with the SEC, complete and correct copies of (i) the Company’s annual reports on Form 10-K for its fiscal years ended June 30, 2006, 2005 and 2004, (ii) its quarterly reports on Form 10-Q for its fiscal quarter ended September 30, 2006 and December 31, 2006 (iii) its proxy or information statements relating to meetings of the stockholders of the Company since June 30, 2006, and (iv) all of its other reports, statements, schedules and registration statements filed with the SEC since June 30, 2006 (the documents referred to in this Section 5.07(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) Since June 30, 2006, the Company has filed with or furnished to the SEC each report, statement, schedule, form or other document or filing required by Applicable Law to be filed or furnished by the Company at or prior to the time so required. No Subsidiary of the Company is required to file or furnish any report, statement, schedule, form or other document with, or make any other filing with, or furnish any other material to, the SEC.

     (c) As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each Company SEC Document complied, and each such Company SEC Document filed subsequent to the date

hereof and prior to the consummation of the Offer will comply, as to form in all material respects with the applicable requirements of the 1933 Act and the 1934 Act, as the case may be.

     (d) As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each Company SEC Document filed pursuant to the 1934 Act did not, and each such Company SEC Document filed subsequent to the date hereof and prior to the consummation of the Offer will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Each Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the 1933 Act, as of the date such registration statement or amendment became effective, did not, and each such Company SEC Document filed subsequent to the date hereof and prior to the consummation of the Offer will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.

     (e) The Company has made available to Parent copies of all comment letters received by the Company from the SEC since January 1, 2004 relating to the Company SEC Documents, together with all written responses of the Company thereto. As of the date hereof, 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.

     (f) Each required form, report and document containing financial statements that has been filed with or submitted to the SEC by the Company since July 31, 2002 was accompanied by the certifications required to be filed or submitted by the Company’s chief executive officer and/or chief financial officer, as required, pursuant to the Sarbanes-Oxley Act and, at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Sarbanes-Oxley Act.

     Section 5.08 . Financial Statements; Internal Controls. (a) The audited consolidated financial statements and unaudited consolidated interim financial statements of the Company included in the Company SEC Documents fairly present, in conformity with GAAP applied on a consistent basis (except as may be indic