AGREEMENT AND PLAN OF MERGER

Exhibit 99.4

AGREEMENT AND PLAN OF MERGER

by and among

H-G HOLDINGS, INC.,

CONCUR TECHNOLOGIES, INC.,

NORTHSTARS ACQUISITION CORPORATION

and

JUPITER PARTNERS L.P., solely as Stockholder Representative

Dated as of July 27, 2007

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AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger (this “ Agreement ”), dated as of the 27 ^th day of July, 2007, by and among (i) H-G Holdings, Inc., a Delaware corporation (the “ Company ”), (ii) Concur Technologies, Inc., a Delaware corporation (“ Parent ”), (iii) Northstars Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“ Merger Sub ”) and (iv) Jupiter Partners L.P., a Delaware limited partnership (“ Jupiter ”), solely as “ Stockholder Representative .” Certain other capitalized terms used in this Agreement and not otherwise defined herein are defined in Section 11.01 hereof.

RECITALS

WHEREAS, the Boards of Directors of the Company, Parent and Merger Sub have each determined that it is in the best interest of their respective stockholders for Parent to acquire the Company upon the terms and subject to the conditions set forth herein;

WHEREAS, in furtherance thereof, the Boards of Directors of the Company, Parent and Merger Sub have each approved the merger of Merger Sub with and into the Company in accordance with applicable Law, upon the terms and subject to the conditions set forth herein;

WHEREAS, the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this Agreement; and

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Parent’s willingness to enter into this Agreement, Jupiter is executing and delivering to Parent a voting agreement in the form of Exhibit A (the “ Voting Agreement ”).

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

ARTICLE 1

MERGER OF MERGER SUB INTO THE COMPANY

1.01 Merger . Subject to the terms and conditions of this Agreement, at the Effective Time, Merger Sub shall be merged with and into the Company in accordance with this Agreement and the separate corporate existence of Merger Sub shall thereupon cease (the “ Merger ”). The Company shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the “ Surviving Corporation ”) and shall continue to be governed by the laws of the State of Delaware, and 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.

1.02 The Closing . Upon the terms and subject to the conditions of this Agreement, the closing of the Merger (the “ Closing ”) shall take place at the offices of Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, New York, at 9:00 a.m., local time, on the second Business Day following the day on which the last to be satisfied or waived of the conditions set forth in Articles 7 and 8 shall be satisfied (or, if contemplated to be satisfied at the Closing, shall be capable of being satisfied) or waived in accordance with this Agreement, or at such other time, date or place as Parent and the Company may agree. The date on which the Closing occurs is hereinafter referred to as the “ Closing Date ”.

1.03 Effective Time . Upon the Closing taking place, the parties hereto shall cause a Certificate of Merger meeting the requirements of Section 251 of the DGCL (the “ Certificate of Merger ”) to be properly executed and filed in accordance with such Section. The Merger shall become effective at the time of filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL or at such later time which the parties hereto shall have agreed upon and designated in such filing as the effective time of the Merger (the “ Effective Time ”).

1.04 Certificate of Incorporation and Bylaws . The Certificate of Incorporation of the Company as in effect immediately prior to the Effective Time, amended as set forth in Exhibit B attached hereto, shall be the Certificate of Incorporation of the Surviving Corporation as of the Effective Time, until duly amended in accordance with applicable Law. The Bylaws of Merger Sub as in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation as of the Effective Time, until duly amended in accordance with applicable Law.

1.05 Directors and Officers . The directors and officers of the Surviving Corporation immediately after the Effective Time shall be the individuals identified on Schedule 1.05 hereof and such individuals shall hold office until their respective death, permanent disability, resignation or removal or until his or her respective successor is duly elected and qualified in the manner provided in the Certificate of Incorporation and the Bylaws of the Surviving Corporation and applicable Law.

1.06 Merger Consideration . The aggregate amount in cash to be paid by Parent on the Closing Date with respect to all the outstanding capital stock of the Company shall be One Hundred Sixty Million Dollars ($160,000,000), subject to adjustments related to the Sale Bonus Amounts and the Shareholder Loan Amounts and any further adjustment provided for in Section 1.09 (such amount, after such adjustments, the “ Merger Consideration ”).

1.07 Conversion or Cancellation of Outstanding Shares . The manner of converting or canceling shares of the Company and Merger Sub in the Merger shall be as follows:

(a) At the Effective Time, each share of the Class C Common Stock, par value $0.01 per share, of the Company (the “ Class C Shares ”) issued and outstanding immediately prior to the Effective Time (“ Outstanding Shares ”) (other than Outstanding Shares which are held by Dissenting Stockholders) shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive, subject to and in accordance

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with the terms hereof, (i) an amount in cash, without interest, equal to the Initial Merger Consideration divided by the aggregate number of Outstanding Shares (such quotient, the “ Per Share Initial Merger Consideration ”), plus (ii) an amount in cash, without interest, equal to (x) the sum of (A) the Escrowed Amount, plus (B) the Holdback Amount, plus (C) any Unvested Sale Bonus Amounts, minus (D) any amounts paid to Parent for indemnification claims and with respect to any Final NTAV Shortfall, divided by (y) the aggregate number of Outstanding Shares (such quotient, the “ Per Share Additional Merger Consideration ”). All Outstanding Shares, by virtue of the Merger and without any action on the part of the holders thereof, shall no longer be outstanding and shall be canceled and retired and shall cease to exist, and each holder of a stock certificate representing any Outstanding Shares shall thereafter cease to have any rights with respect to such Outstanding Shares, except the right to receive the Per Share Initial Merger Consideration for each such Outstanding Share upon the surrender of such stock certificate in accordance with Section 1.08 plus the Per Share Additional Merger Consideration in accordance with Sections 1.09 and 1.10, Article 10 and the Escrow Agreement (except for any Unvested Sale Bonus Amounts, which shall be paid in accordance with the next sentence) or the right, if any, to receive payment from the Surviving Corporation of the “fair value” of such Outstanding Shares as determined in accordance with Section 262 of the DGCL. To the extent the Company is not, and cannot through the passage of time become, obligated to pay any portion of the Sale Bonus Amounts under the H-G Sale Bonus Plan or agreements governing such bonuses), Parent shall promptly pay such amounts (collectively, the “ Unvested Sale Bonus Amounts ”) to the Stockholder Representative, which amounts shall then be distributed by the Stockholder Representative to the record holders of Outstanding Shares in proportion to their percentage ownership of all Outstanding Shares; provided that Parent need not pay any such amount prior to five (5) Business Days after the six-month anniversary of the Closing Date (at which point Parent shall pay all such Unvested Sale Bonus Amounts that shall have accrued on or prior to such six-month anniversary).

(b) At the Effective Time, each Class C Share issued and held in the Company’s treasury immediately prior to the Effective Time, shall, by virtue of the Merger and without any action on the part of the holder thereof, cease to be outstanding, shall be canceled and retired without payment of any consideration therefor and shall cease to exist.

(c) Subject to the terms and conditions of this Agreement, at the Effective Time, each share of capital stock (other than Class C Common Stock) that is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or the holder thereof, be cancelled and extinguished without any conversion thereof and without the issuance or payment of any consideration therefor.

(d) At the Effective Time, each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of Merger Sub or the holders of such shares, be converted into one share of common stock, par value $0.001 per share, of the Surviving Corporation.

1.08 Payment for Outstanding Shares . At or prior to the Effective Time, Parent shall deposit the Initial Merger Consideration in trust with such paying agent as may be

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appointed by Merger Sub with the Company’s prior approval, which will not be unreasonably withheld or changed (the “ Paying Agent ”). Prior to the Effective Time, Parent shall cause the Paying Agent to deliver to each Person (that is identified by the Company to Parent a reasonable time in advance thereof) who will be (assuming no transfer of shares), immediately prior to the Effective Time, a holder of record of Outstanding Shares a letter of transmittal substantially in the form attached hereto as Exhibit C for use in effecting the surrender of the stock certificates which, immediately prior to the Effective Time, represented any of such Outstanding Shares that will be converted into the right to receive cash pursuant to Section 1.07(a). It is agreed that letters of transmittal (and the related instructions) and any other documentation required by the Paying Agent will be delivered in final form to such Company Stockholders (that are identified by the Company to Parent a reasonable time in advance thereof) at an agreed upon time prior to the Effective Time so that such letters of transmittal may be delivered to the Paying Agent at or prior to the Effective Time for payment at the Effective Time. Upon surrender to the Paying Agent of such stock certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, the Surviving Corporation shall cause the Paying Agent to pay to each Company Stockholder entitled thereto by check or, to the extent permitted by the Paying Agent, by wire transfer of immediately available funds, an amount equal to (x) the Per Share Initial Merger Consideration multiplied by (y) the number of shares represented by the stock certificates being surrendered. Such payment will be made at the Effective Time or as promptly thereafter as is reasonably practicable with respect to surrendered stock certificates and duly executed and completed letters of transmittal that are surrendered at or prior to the Effective Time, and as soon as practicable thereafter with respect to stock certificates and duly executed and completed letters of transmittal that are surrendered on a later date. No interest will be paid or will accrue on the amount payable upon the surrender of any such stock certificate. If payment is to be made to a Person other than the registered holder of the stock certificate surrendered, it shall be a condition of such payment that the stock certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer reasonably satisfactory to Parent and that the Person requesting such payment shall pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of the stock certificate surrendered or establish to the satisfaction of the Surviving Corporation or the Paying Agent that such Tax has been paid or is not applicable. From and after one hundred and eighty (180) days following the Effective Time, the Surviving Corporation shall be entitled to cause the Paying Agent to deliver to it any funds (including any interest received with respect thereto) made available to the Paying Agent which have not been disbursed to holders of stock certificates formerly representing Outstanding Shares, and thereafter such holders shall be entitled to look to the Surviving Corporation only as general creditors thereof with respect to the cash payable upon due surrender of their stock certificates. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any holder of stock certificates formerly representing Outstanding Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Law. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Outstanding Shares for the Per Share Initial Merger Consideration. The Per Share Additional Merger Consideration shall be payable when and if such amounts are due and payable pursuant to the Escrow Agreement (or, in the case of Unvested Sale Bonus Amounts, in accordance with the last sentence of Section 1.07(a)).

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1.09 Merger Consideration Adjustments .

(a) The Merger Consideration shall be subject to adjustment on a dollar for dollar basis as set forth in this Section 1.09.

(b) Not less than five (5) Business Days prior to the Closing Date, the Company shall deliver to Parent a statement (the “ Estimated NTAV Statement ”) of the estimated Net Tangible Asset Value as of the Closing Date (the “ Estimated NTAV ”). The Estimated NTAV Statement shall be based on the estimated consolidated balance sheet of the Company (excluding the TMG Business and TMG) as of the close of business on the Closing Date in accordance with GAAP and on a basis consistent with the Company’s past principles, policies and practices as reflected in the Interim Financial Statements (so long as and only in the event that such past principles, policies and practices conform with GAAP) and without giving effect to the consummation of the transactions contemplated hereby, other than the TMG Distribution, except that it shall include an accrual for the Performance Unit Amounts, Other Employee Payments, the TMG Excluded Liabilities and the Transaction Expenses, provided, however, that the Estimated NTAV Statement shall be subject to and prepared in conformity with year-end audit accrual and estimation practices of the Company such that all pro-rata adjustments, accruals, reserves, allowances and similar year-end adjustments are prepared for and included in the Estimated NTAV Statement, as if the Estimated NTAV Statement were a year-end statement. The accounting principles governing the Financial Statements shall eliminate all intercompany transactions and investments. The Company shall consult with Parent regarding its calculation of Estimated NTAV prior to delivery of the Estimated NTAV Statement. To the extent that the Estimated NTAV is less than negative Seven Million Nine Hundred Thirty-Seven Thousand Dollars (negative $7,937,000) (the “ Target NTAV ”), the Merger Consideration payable at Closing will be decreased by the Estimated NTAV Shortfall. To the extent that the Estimated NTAV is greater than the Target NTAV, the Merger Consideration payable at Closing will be increased by the Estimated NTAV Excess. An example of the NTAV calculation is set forth on Schedule 1.09 to this Agreement (the “ NTAV Example ”). The Estimated NTAV shall be prepared on the same basis as the NTAV Example. Nothing disclosed in Section 2.10 of the Disclosure Schedule shall affect the terms (including, without limitation, the amount of the Target NTAV) or the parties’ obligations set forth in this Section 1.09.

(c) Within ninety (90) days after the Closing Date, Parent shall prepare and deliver to the Stockholder Representative (or its designee) a statement (the “ NTAV Statement ”) setting forth the actual NTAV as of the Closing Date (the “ Closing NTAV ”). The NTAV Statement shall be based on the consolidated balance sheet of the Company (excluding the TMG Business and TMG) as of the close of business on the Closing Date in accordance with GAAP and on a basis consistent with the Company’s past principles, policies and practices as reflected in the Interim Financial Statements (so long as and only in the event that such past principles, policies and practices conform with GAAP) and without giving effect to the consummation of the transactions contemplated hereby, other than the TMG Distribution, except that it shall include an accrual for the Performance Unit Amounts, Other Employee Payments and the Transaction Expenses, provided, however, that the NTAV Statement shall be subject to and prepared in conformity with year-end audit accrual and estimation practices of the Company such that all pro-rata adjustments, accruals, reserves, allowances and similar year-end adjustments are prepared for and included in the NTAV Statement, as if the NTAV Statement

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were a year-end statement. The accounting principles governing the Financial Statements shall eliminate all intercompany transactions and investments. The methods, principles and assumptions used in the NTAV Example shall be the methods, principles and assumptions used for purposes of calculating the Closing NTAV, provided that if the calculation in the NTAV Example is determined not to be in accordance with GAAP, then the calculation in the NTAV Example shall be adjusted so as to be in accordance with GAAP. In addition, and notwithstanding the foregoing, if the Closing Date does not occur as of a month end, then the NTAV calculation for the month during which the Closing Date occurs shall prorate any items that have been accrued in accordance with GAAP for a full monthly period.

(d) If the Stockholder Representative disputes the NTAV Statement (either as to content or manner of preparation), then the Stockholder Representative shall, within sixty (60) days following receipt of the NTAV Statement from Parent, deliver a written notice to Parent of such dispute setting forth in reasonable detail the basis for that dispute. If the Stockholder Representative does not so notify Parent of a dispute within such sixty (60) day period, the Closing NTAV shall be deemed to be final, conclusive and binding on the parties. In the event the Stockholder Representative delivers a notification of a dispute, Parent and the Stockholder Representative shall negotiate in good faith to resolve such dispute; provided, however, that if Parent and the Stockholder Representative fail to resolve such dispute within thirty (30) Business Days after notification of the dispute, then Parent and the Stockholder Representative shall promptly (but in no event later than thirty (30) days thereafter) engage KPMG LLP, New York, New York ( provided that if KPMG is unable or unwilling to perform the engagement, the parties will mutually agree upon an independent nationally recognized accounting firm to perform the engagement) (the “ Accounting Expert ”) to resolve such dispute. Parent and the Stockholder Representative shall have the opportunity to provide written submissions relating to whether the standards set forth in Section 1.09, including the NTAV Example, have been met, which written submissions shall be provided to the Accounting Expert, if at all, no later than fifteen (15) Business Days after the date of referral of the disputed matters to the Accounting Expert. The Accounting Expert shall deliver a written report resolving only the disputed matters relating to whether the standards set forth in Section 1.09 have been met, and setting forth the basis for such resolution within thirty (30) Business Days after Parent and the Stockholder Representative have submitted in writing (or have had the opportunity to submit in writing but have not submitted) their positions as to the disputed items. Parent shall be responsible for all of the fees and expenses of the Accounting Expert unless the Accounting Expert finds the Closing NTAV is equal to or less than the Closing NTAV reflected in the NTAV Statement in which case the amount of all fees and expenses of the Accounting Expert shall be paid as provided in Section 1.09(f) below. All determinations made by the Accounting Expert will be final, conclusive and binding on the parties. The Closing NTAV as finally determined in accordance with this Section 1.09 shall be the “ Final NTAV .”

(e) For purposes of complying with the terms set forth in this Section 1.09, the parties shall cooperate with and make available to the other parties and their respective representatives all information, records, data and working papers, and shall permit access to their facilities and personnel, as may be reasonably required in connection with the preparation and analysis of the Estimated NTAV and the NTAV Statement and the resolution of any disputes thereunder.

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(f) Parent shall be entitled to withhold from payment of the Merger Consideration Five Hundred Thousand Dollars ($500,000) (the “ Holdback Amount ”) to satisfy a Final NTAV Shortfall, if any, in accordance with this Section 1.09(f). If the Final NTAV is less than the Estimated NTAV, the Merger Consideration shall be adjusted downward by the amount of the Final NTAV Shortfall, and (i) Parent shall be entitled to keep and not distribute to the Paying Agent an amount equal to the Final NTAV Shortfall and (ii) after Parent’s retention of an amount equal to the Final NTAV Shortfall in accordance with subparagraph (i), Parent shall, within five (5) Business Days of the date on which Final NTAV is determined pursuant to this Section 1.09, deliver to the Paying Agent an amount in cash equal to the difference between the Holdback Amount and the Final NTAV Shortfall, which amount shall then be distributed by the Paying Agent to the record holders of Outstanding Shares in proportion to their percentage ownership of all Outstanding Shares. In the event that the Final NTAV Shortfall is greater than the Holdback Amount, Parent shall be entitled to recover the amount of such difference by making a claim against the Indemnity Escrow Account.

(g) If the Final NTAV is greater than the Estimated NTAV, then the Merger Consideration shall be increased by the amount of the Final NTAV Excess, and Parent shall deliver to the Paying Agent an amount in cash equal to the sum of the Final NTAV Excess and the Holdback Amount, which amount shall then be distributed by the Paying Agent to the record holders of Outstanding Shares in proportion to their percentage ownership of all Outstanding Shares. Payment of any Final NTAV Excess and the Holdback Amount is to be made within five (5) Business Days of the date on which Final NTAV is determined pursuant to this Section 1.09.

1.10 Escrow Amount . The parties agree that Parent will deposit Fifteen Million Dollars ($15,000,000) in an escrow account (the “ Indemnity Escrow Account ”) for a period of eighteen (18) months (the “ Escrow Period ”) to secure the due performance and payment of the indemnification obligations pursuant to Article 10 hereof (other than Section 10.02(a)(v)), Five Hundred Thousand Dollars ($500,000) in an escrow account (the “ TMG Escrow Account ”) for the Escrow Period to secure the due performance and payment of the indemnification obligations pursuant to Section 10.02(a)(v), and Five Hundred Thousand Dollars ($500,000) (together with the amount deposited in the Indemnity Escrow Account and the TMG Escrow Account, the “ Escrowed Amount ”) in an escrow account (the “ Expense Escrow Account ”) to cover the costs and expenses incurred by the Stockholder Representative in its capacity as such. The parties agree that JPMorgan Chase Bank, N.A. shall serve as escrow agent (the “ Escrow Agent ”) in connection with the Escrow Accounts. The Escrowed Amount, plus or minus any gains or losses from investments thereon shall be paid in accordance with the terms of the Escrow Agreement substantially in the form attached hereto as Exhibit D (with such changes, if any, as the Escrow Agent may reasonably request, the “ Escrow Agreement ”). The Escrow Agreement will provide that (i) the Stockholder Representative will be reimbursed upon payment of any reasonable costs or expenses incurred in carrying out its duties under this Agreement or the Escrow Agreement from the Expense Escrow Account and any unpaid amount shall be released from the Expense Escrow Account and paid to stockholders promptly upon the instruction of the Stockholder Representative, and (ii) all other amounts in escrow not otherwise subject to a claim for indemnification shall be released from the Indemnity Escrow Account and paid to the stockholders of the Company at the expiration of the Escrow Period in accordance with the Escrow Agreement.

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1.11 Dissenters’ Rights . If, in connection with the Merger, Company Stockholders are entitled to appraisal rights pursuant to the DGCL, any Outstanding Shares which are held by stockholders exercising appraisal rights with respect thereto pursuant to Section 262 of the DGCL (“ Dissenting Stockholders ”) shall not be converted into a right to receive cash as provided in Section 1.07(a), but shall be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to the DGCL. Each Dissenting Stockholder who, pursuant to the provisions of the DGCL, becomes entitled to payment of the fair value of such shares shall receive payment therefor in accordance with the DGCL (but only after the value therefor shall have been agreed upon or finally determined pursuant to the DGCL). In the event that any Company Stockholder fails to make an effective demand for payment or fails to perfect its appraisal rights as to its Outstanding Shares or any Dissenting Shares shall otherwise lose their status as Dissenting Shares, then any such shares shall immediately be converted into the right to receive the consideration issuable pursuant to Section 1.07(a) in respect of such shares as if such shares had never been Dissenting Shares, and Parent shall issue and deliver to the holder thereof, at (or as promptly as reasonably practicable after) the applicable time or times specified in Section 1.08, following the satisfaction of the applicable conditions set forth in Section 1.08, the cash, without interest thereon, to which such Company Stockholder would have been entitled under Section 1.07(a) with respect to such shares. The Company shall give Parent prompt notice (and in no event more than two (2) Business Days) of the delivery of any demand from a Dissenting Stockholder pursuant to Section 262(d) of the DGCL, and Parent shall have the right to control all negotiations and proceedings with respect to any such demand. If any Dissenting Stockholder shall fail to perfect or shall have effectively lost the right to dissent, the Outstanding Shares held by such Dissenting Stockholder shall thereupon be treated as though each such Outstanding Share had been converted into the right to receive the Per Share Merger Consideration pursuant to Section 1.07(a). After the Effective Time, neither the Surviving Corporation nor Parent shall, without the prior written consent of the Stockholder Representative, which shall not be unreasonably withheld, voluntarily make any payment with respect to, or settle or offer to settle, any demand made pursuant to Section 262(d) of the DGCL in an amount in excess of the Merger Consideration allocable to such Dissenting Stockholders pursuant to this Agreement.

1.12 Closing of Transfer Books . From and after the Effective Time, the stock transfer books of the Company shall be closed and no transfer of Outstanding Shares shall thereafter be made.

1.13 Company Stock Options . Prior to the Effective Time, the Company shall take all actions necessary such that, effective as of the Effective Time, each option granted by the Company to purchase shares of capital stock of the Company which is outstanding and unexercised immediately prior to the Effective Time (each, a “ Company Stock Option ”) and which has been granted by the Company pursuant to the Company’s 2000 Stock Option Plan or 2000 Stock Option Plan (California) or any other stock option plan of the Company (collectively, the “ Company Stock Plans ”) shall not be assumed by Merger Sub or Parent and shall instead automatically terminate in accordance with Section 7(b) of the applicable Company Stock Plan or other applicable section of the Company Stock Plans. Prior to the Effective Time, the Company may, in its sole discretion, accelerate the vesting of all unvested Company Stock Options and provide the holders of the Company Stock Options with the right to exercise all or any portion of the Company Stock Options (whether or not then exercisable) during a period

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determined by the Company beginning after the date of this Agreement and ending on the day prior to the day on which the Effective Time occurs. At the Effective Time, all other rights to acquire shares of the capital stock of the Company will, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any holder thereof, be terminated and cancelled without any conversion or assumption thereof.

1.14 Company Performance Units . Prior to the Effective Time, the Company shall take all actions necessary such that, effective as of the Effective Time, each performance unit granted by the Company under the Performance Unit Agreements listed in Section 1.14 of the Disclosure Schedule which is outstanding immediately prior to the Effective Time (each, a “ Performance Unit ”) shall automatically terminate in accordance with Section 5 of the applicable Performance Unit Agreement, and, in consideration of such cancellation, each holder of a Performance Unit shall be paid an amount of cash equal to the “Per Unit Amount” (as defined in each such Performance Unit Agreement) multiplied by the number of Performance Units subject to such Performance Unit Agreement (whether vested or vested), reduced by any income or employment Taxes required to be withheld from such payment.

1.15 Payments . At the Effective Time or later applicable payment date, Parent shall pay on behalf of the Company, or shall provide the Company with sufficient funds and cause the Company to pay, to the intended beneficiaries thereof (as identified by the Company to Parent prior to the Closing) (the “ Scheduled Beneficiaries ”) (a) the Company Employee Amounts, (b) the Transaction Expenses, (c) the Shareholder Loan Amounts and (d) the Other Employee Payments.

ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to Parent and Merger Sub as follows, except with respect to the TMG Business and the consummation of the TMG Distribution:

2.01 Capitalization .

(a) The authorized capital stock of the Company consists of 100,000 shares of capital stock, par value $0.01 per share, of which 25,000 shares are designated as Class A Common Stock (the “ Class A Shares ”), 25,000 are designated as Class B Common Stock (the “ Class B Shares ”), and 50,000 shares are designated as Class C Shares. As of the date of this Agreement, there are no Class A Shares or Class B Shares outstanding and there are 19,235.569 Class C Shares outstanding, all of which are validly issued, fully paid and non-assessable. Section 2.01(a) of the Disclosure Schedule sets forth a list, as of the date hereof, of the names of all holders of issued and outstanding shares of the Company’s capital stock, together with the number of such shares owned by such holder and the percentage of ownership of all outstanding capital stock of the Company represented by such shares. Jupiter owns more than eighty-six percent (86%) of the outstanding Class C Shares. Except as set forth in Section 2.01(a) of the Disclosure Schedule, (i) none of the outstanding shares of capital stock of the Company is entitled or subject to any preemptive right, right of participation, right of maintenance or any

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similar right; (ii) none of the outstanding shares of capital stock of the Company is subject to any right of first refusal in favor of the Company; and (iii) there is no Contract relating to the registration or voting of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of capital stock of the Company. The Company is not under any obligation, nor is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of capital stock of the Company.

(b) Company Stock Options to purchase an aggregate of 96.2858 Class C Shares are outstanding under the Company Stock Plans as of the date of this Agreement, and 398.4943 Class C Shares are authorized to be subject to Company Stock Options but have not been granted as of the date of this Agreement. Section 2.01(b) of the Disclosure Schedule accurately sets forth, with respect to each Company Stock Option that is outstanding as of the date of this Agreement: (i) the name of the holder of such option; (ii) the total number of Class C Shares that are subject to such option and the number of Class C Shares with respect to which such option is immediately exercisable; (iii) the date on which such option was granted and the term of such option; (iv) the vesting schedule for such option; and (v) the exercise price per Class C Share purchasable under such option. None of the Company Stock Options have been designated an “incentive stock option” as defined in Section 422 of the Code. Except as set forth in Section 2.01(b) of the Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant or other right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company or exchangeable for any shares of the capital stock or other securities of the Company; (ii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iii) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.

(c) All outstanding shares of capital stock of the Company, options, warrants and other securities of the Company and the Subsidiaries have been issued and granted in compliance with (i) all applicable securities laws and other applicable Laws, and (ii) all requirements set forth in applicable Contracts.

(d) Except as set forth in Section 2.01(d) of the Disclosure Schedule, since January 1, 2004, the Company has not repurchased, redeemed or otherwise reacquired any shares of capital stock or other securities of the Company. All securities so reacquired by the Company were reacquired in compliance with (i) the applicable provisions of the DGCL and all other applicable Laws, and (ii) all requirements set forth in applicable Contracts.

2.02 Subsidiaries . Section 2.02 of the Disclosure Schedule sets forth a list of all direct or indirect subsidiaries of the Company (the “ Subsidiaries ”) and their respective jurisdictions of organization and their outstanding capital. The Company owns, either directly or indirectly through one or more Subsidiaries, all of the capital stock of or other equity interests in each of the Subsidiaries free and clear of all Encumbrances. All of the issued and outstanding shares of the Subsidiaries are validly issued, fully paid and non-assessable and were issued in compliance with (a) all applicable provisions of the DGCL or other statute of incorporation or

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formation, (b) all applicable securities laws and other applicable Laws, and (c) all requirements set forth in applicable Contracts. There are outstanding no securities convertible into, exchangeable for, or carrying the right to acquire, or voting agreements with respect to, any equity securities of any of the Subsidiaries or subscriptions, warrants, options, rights or other arrangements or Contracts obligating any Subsidiary to issue or acquire any of its equity securities or any ownership interest therein.

2.03 Organization .

(a) The Company and each of the Subsidiaries are companies duly organized and validly existing under the laws of their respective jurisdictions of organization and have all requisite corporate or other power and authority to carry on their businesses as they are now being conducted. The Company and each of the Subsidiaries are duly licensed or qualified to do business in all jurisdictions where the nature of the property owned or leased by them, or the nature of the business conducted by them, makes such licensing or qualification necessary and the absence of which licensing or qualification would have a Material Adverse Effect.

(b) The Company has delivered or made available to Parent accurate and complete copies of: (i) the Certificates of Incorporation and Bylaws or other applicable governing documents, including all amendments thereto, of the Company and each Subsidiary (the “ Constituent Documents ”); (ii) the stock records of the Company and each Subsidiary; and (iii) the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders of the Company and each Subsidiary, the boards of directors of the Company and each Subsidiary and all committees of the boards of directors of the Company and each Subsidiary for the last three (3) years, other than minutes or records relating to the possible sale of the Company. There have been no formal meetings or other proceedings of the stockholders of the Company or any Subsidiary, the boards of directors of the Company or any Subsidiary or any committee of the boards of directors of the Company or any Subsidiary that are not reflected in all material respects in such minutes or other records. There is no violation of any of the provisions of the Constituent Documents, and neither the Company nor any Subsidiary has taken or failed to take any material action which is prohibited or required by any resolution adopted by their respective stockholders, boards of directors or any committee thereof.

2.04 Title to Assets .

(a) Except as set forth in Section 2.04(a) of the Disclosure Schedule, the Company and the Subsidiaries have good (and, in the case of real property, marketable) title to all of the assets and properties which they purport to own, including all tangible assets reflected on the Interim Financial Statements as being owned by them (except for inventory sold or otherwise disposed of in the ordinary course of business since the date of the Interim Financial Statements and the sale or other disposition of immaterial assets), free and clear of any Encumbrances, except for Permitted Encumbrances.

(b) Section 2.04(b) of the Disclosure Schedule identifies all tangible assets that are Material, individually or in the aggregate, and that are owned by, or are being leased or licensed to, the Company and the Subsidiaries as of December 31, 2006.

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2.05 Financial Statements .

(a) The Company has delivered to Parent (i) the audited consolidated balance sheet and the audited consolidated statements of income, stockholders’ equity and comprehensive income, and cash flows of the Company and the Subsidiaries as of and for the years ended December 31, 2006, 2005 and 2004 and related footnotes (the “ Audited Financial Statements ”), (ii) the unaudited pro forma balance sheets and unaudited pro forma statements of income of the Company and the Subsidiaries, excluding the TMG Business, as of and for the years ended December 31, 2006, 2005 and 2004 (the “ Unaudited Financial Statements ”), and (iii) an unaudited pro forma balance sheet and unaudited pro forma statement of income of the Company and the Subsidiaries, excluding the TMG Business, as of and for the three months ended March 31, 2007 (the “ Interim Financial Statements ” and, together with the Audited Financial Statements and the Unaudited Financial Statements, the “ Financial Statements ”), a copy of each of which is included in Section 2.05(a) of the Disclosure Schedule. The Financial Statements present fairly, in all Material respects, the consolidated financial position and the results of operations of the Company and the Subsidiaries as of their respective dates and for the respective periods then ended in conformity with GAAP consistently applied except as set forth in the footnotes thereto or in Section 2.05(a) of the Disclosure Schedule, and except that the Interim Financial Statements are subject to normal year-end adjustments and do not contain all of the footnote disclosures required by GAAP.

(b) Except as set forth in Section 2.05(b) of the Disclosure Schedule, the books and records of the Company and each Subsidiary fairly reflect in all material respects the transactions to which it is a party or by which it is bound, including disposition of assets, and such books and records are and since January 1, 2004, have been kept and maintained in all material respects in accordance with sound business practices and applicable Law. The Company and each Subsidiary has a system of internal accounting controls that are designed to provide reasonable assurances that transactions are accurately reflected in all material respects on the Company’s and such Subsidiary’s books and records and that the Financial Statements present fairly in all material respects the Company’s and each Subsidiary’s financial position, including results of operations, assets and liabilities in conformity with GAAP consistently applied. Except as set forth in Section 2.05(b) of the Disclosure Schedule, there are no deficiencies in the design or operation of the Company’s or any Subsidiary’s internal controls that would reasonably be expected to adversely affect in any material respect the Company’s or such Subsidiary’s ability to record, process, summarize and report financial data with respect to its business.

2.06 Absence of Certain Changes or Events . Except as set forth in Section 2.06 of the Disclosure Schedule or as provided or permitted by this Agreement, since December 31, 2006:

(a) there has not been any Material Adverse Effect, and no event has occurred, and no circumstance has arisen with respect to the Company or any of its Subsidiaries, that, in combination with any other events or circumstances with respect to the Company or any of its Subsidiaries, would reasonably be expected to have a Material Adverse Effect; and

(b) neither the Company nor any of the Subsidiaries has:

(i) suffered any material damage, destruction or casualty loss to its physical properties;

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(ii) incurred or discharged any material obligation or liability or entered into any other transaction except in the ordinary course of business consistent with its past practices;

(iii) voluntarily placed or otherwise incurred any Encumbrance on its assets other than in the ordinary course of business, other than a Permitted Encumbrance;

(iv) conducted its business other than in the ordinary course of business in all material respects;

(v) purchased, licensed, sold, leased, transferred or disposed of any material assets or rights, other than in the ordinary course of business consistent with past practices;

(vi) changed any of the accounting or tax principles, practices or methods used by the Company or any Subsidiary, except as required by changes in applicable Tax Laws or GAAP;

(vii) made any change in its working capital practices generally, including accelerating collections of cash or accounts receivable or deferring payment of its liabilities as compared with its past practices;

(viii) materially increased the rate or terms of, or materially changed the form of, compensation payable or to become payable by the Company or any of the Subsidiaries to any of their respective directors, officers or employees or the rate or terms of any bonus, pension or other Company Employee Plan covering any of their respective directors, officers or employees, or made any payment of any pension, retirement allowance or other employee benefit, except in the ordinary course of business in accordance with their respective customary practices (including normal periodic performance reviews and related compensation and benefit increases and payments) or as required by any pre-existing Contract;

(ix) adopted any new pension, profit sharing, bonus, incentive compensation, deferred compensation, stock purchase, stock option, stock appreciations rights, severance or other Company Employee Plan applicable to employees generally or to particular classes of employees generally;

(x) made any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, its capital stock, any split, stock dividend, combination or recapitalization of its capital stock or any direct or indirect redemption, purchase or other acquisition by it of its capital stock, except for the TMG Distribution;

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(xi) made any amendment or change in its Certificate of Incorporation or Bylaws; or

(xii) entered into any agreement or commitment by the Company to do any of the things described in (i)-(xi) above.

2.07 Intellectual Property .

(a) Section 2.07(a)(i) of the Disclosure Schedule sets forth (A) a list of the Intellectual Property owned by the Company and its Subsidiaries and registered with any Governmental Authority or for which an application has been filed with any Governmental Authority and (B) the names of the jurisdictions covered by the applicable registration or application. Section 2.07(a)(ii) of the Disclosure Schedule identifies and provides a brief description of Intellectual Property that is licensed or otherwise made available to any of the Company or any of the Subsidiaries by any Person with respect to which the Company has any ongoing royalty or payment obligations in excess of $10,000 (except for any Intellectual Property that is licensed to the Company or any of the Subsidiaries under any third-party software license generally available to the public), and identifies the Contract under which such Intellectual Property is being licensed or otherwise made available to the Company or any of the Subsidiaries. Except as set forth in Section 2.07(a) of the Disclosure Schedule, the Company and its Subsidiaries have good and valid title to all of the Company Intellectual Property identified or required to be identified in Section 2.07(a)(i) of the Disclosure Schedule, free and clear of all Encumbrances, other than Permitted Encumbrances. To the Knowledge of the Company, and except as set forth in Section 2.07(a) of the Disclosure Schedule, the Company and the Subsidiaries have a valid right to use, license and otherwise exploit all Intellectual Property identified in Section 2.07(a)(ii) of the Disclosure Schedule. Except as set forth in Section 2.07(a) of the Disclosure Schedule, neither the Company nor any of the Subsidiaries have developed jointly with any other Person any Company Intellectual Property with respect to which such other Person has any rights. Except as set forth in Section 2.07(a) of the Disclosure Schedule, there is no Company or Subsidiary Contract (with the exception of end user license agreements in the form previously delivered by the Company to Parent) pursuant to which any Person has any right (whether or not currently exercisable) to use, license or otherwise exploit any Company Intellectual Property.

(b) Except as would not have a Material Adverse Effect, and except as set forth in Section 2.07(b) of the Disclosure Schedule, the Software that is owned, licensed, leased or otherwise used by the Company or the Subsidiaries in connection with the past and present operation of their business is either (i) owned by the Company or a Subsidiary, (ii) currently in the public domain or otherwise available to the Company or a Subsidiary without the license, lease or consent of any third party, or (iii) used under rights granted to the Company or a Subsidiary pursuant to an agreement, license or lease from a third party subject to the terms thereof, wherein the Company and the Subsidiary are in compliance with such terms.

(c) Except as set forth in Section 2.07(c) of the Disclosure Schedule, the Company and its Subsidiaries have taken commercially reasonable security measures in accordance with industry standards to protect the secrecy, confidentiality and value of all Company Intellectual Property, Company Software, and Company Source Code, including,

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without limitation, since January 1, 2002, requiring each Company and Subsidiary employee and consultant and any other Person with access to Company Intellectual Property to execute a binding confidentiality agreement, copies or forms of which have been provided to Parent. To the Knowledge of the Company, and except as set forth in Section 2.07(c) of the Disclosure Schedule, there has not been any breach by any party to such confidentiality agreements and no material Intellectual Property is in jeopardy of being lost through failure to act by the Company or any of its Subsidiaries. Without limiting the generality of the foregoing, to the Knowledge of the Company, and except as set forth in Section 2.07(c) of the Disclosure Schedule, all former and current employees, consultants and contractors of the Company and its Subsidiaries who, since January 1, 2001, have contributed to or participated in any Material respect in the development of Material Company Intellectual Property, have executed written instruments with the Company or such Subsidiary that assign to the Company or the Subsidiary all rights, title and interest in and to any and all (i) inventions, improvements, Software, discoveries, writings and other works of authorship, and information relating to the business of the Company and the Subsidiaries or any of the Products or services being researched, developed, manufactured or sold by the Company or the Subsidiaries or that may be used with any such Products or services and (ii) Intellectual Property relating thereto. To the Knowledge of the Company, and except as set forth in Section 2.07(c) of the Disclosure Schedule, no current or former employee, officer, director, stockholder, consultant or independent contractor who, since January 1, 2001, has contributed to or participated in any respect in the development of Company Intellectual Property, has any right, claim or interest in or with respect to any Company Intellectual Property.

(d) To the Knowledge of the Company, and except as set forth in Section 2.07(d) of the Disclosure Schedule, none of the Company Intellectual Property, Products, or Software and no Intellectual Property that is currently being developed by the Company or any Subsidiary (either by itself or with any other Person) infringes or misappropriates any Intellectual Property owned or used by any other Person. Except as set forth in Section 2.07(d) of the Disclosure Schedule, neither the Company nor any of the Subsidiaries has received any notice or other communication (in writing or otherwise) since January 1, 2001, of any actual, alleged, possible or potential infringement, misappropriation or unlawful or unauthorized use of, any Intellectual Property owned or used by any other Person. To the Knowledge of the Company, and except as set forth in Section 2.07(d) of the Disclosure Schedule, no other Person is infringing, misappropriating or making any unlawful use of any Company Intellectual Property.

(e) Except as set forth in Section 2.07(e) of the Disclosure Schedule, all trademarks and copyrights held by any of the Company and its Subsidiaries are valid, enforceable and subsisting, and all such Marks and Copyrights that are issued by or registered with, as applicable, the United States Patent and Trademark Office, the United States Copyright Office or in any similar office or agency anywhere in the world are currently in compliance with formal legal requirements (including without limitation, as applicable, payment of filing, examination and maintenance fees, proofs of working or use, timely post-registration filing of affidavits of use and incontestability and renewal applications).

(f) Except as set forth in Section 2.07(f) of the Disclosure Schedule, the Company and its Subsidiaries have not used since January 1, 2002, and do not currently use any of the customer information that they have received or currently receive through their websites or otherwise in an unlawful manner, or in a manner that violates any such Company’s or

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Subsidiary’s privacy policy or the privacy rights of its customers. Except as set forth in Section 2.07(f) of the Disclosure Schedule, the Company and its Subsidiaries have not since January 1, 2002, collected any customer information through their websites or otherwise in an unlawful manner or in violation of their privacy policies. Except as set forth in Section 2.07(f) of the Disclosure Schedule, the Company and its Subsidiaries have commercially reasonable security measures in place to protect the customer information they receive through their websites or otherwise and which they store in their computer systems from illegal use by third parties or use by third parties in a manner that violates the rights of privacy of their customers. Except as set forth in Section 2.07(f) of the Disclosure Schedule, since January 1, 2002, the Company and its Subsidiaries have complied with all applicable Laws relating to the collection, storage and onward transfer of all personally identifiable information collected by the Company and its Subsidiaries or by third parties having authorized access to the Company’s and the Subsidiaries’ databases or other records.

(g) To the Knowledge of the Company, and except as set forth in Section 2.07(g) of the Disclosure Schedule, the Company Intellectual Property constitutes all the Intellectual Property necessary to enable the Company and its Subsidiaries to conduct their business in the manner in which such business has been and is being conducted.

(h) Except as set forth in Section 2.07(h) of the Disclosure Schedule, neither the Company nor its Subsidiaries have disclosed or delivered to any third Person (other than any current or former employee, consultant or contractor that is subject to an obligation of confidentiality), or permitted the disclosure or delivery to any escrow agent or other Person of, any Company Source Code that would permit such Person to reverse engineer the Company’s proprietary Software or the capability thereof. Except as set forth in Section 2.07(h) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, result in the disclosure or delivery to any Person of any Company Source Code or the release from any escrow of any other Company Intellectual Property. Section 2.07(h) of the Disclosure Schedule identifies each Contract pursuant to which the Company or a Subsidiary has deposited or are required to deposit with an escrow holder or any other Person of any Company Source Code.

(i) Except with respect to demonstration or trial copies, and except as set forth in Section 2.07(i) of the Disclosure Schedule, the Company and its Subsidiaries have not placed in their Products or Software any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components designed to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user.

(j) Except as set forth in Section 2.07(j) of the Disclosure Schedule, no Software incorporated in any Products or covered by or embodying any Company Intellectual Property owned or licensed by the Company or any of its Subsidiaries has been sold in whole or in part or used, or is being used by the Company or its Subsidiaries in conjunction with any Public Software in a manner which would require that such Software be disclosed or distributed in source code form or made available for free. All Public Software used in conjunction with any Products or covered by or embodying any Company Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries is listed in Section 2.07(j) of the Disclosure

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Schedule. Except as set forth in Section 2.07(j) of the Disclosure Schedule, the Company and its Subsidiaries have complied in all material respects with all terms related to any license for any such Public Software used in conjunction with any Products or covered by or embodying any Company Intellectual Property.

(k) Except as set forth in Section 2.07(k) of the Disclosure Schedule, all Software (other than generally available software (such as Word, WordPerfect and the like and generally available system development tools)) that is either (i) marketed to customers of the Company or any of its Subsidiaries as a program or as part of a Product or service or (ii) used by the Company or any of its Subsidiaries to support their business is owned by the Company or its Subsidiaries or the Company or its Subsidiaries have the continuing right to use, modify, copy, sell, distribute, sublicense and make Derivative Works from such software, free and clear of any liens.

(l) Except as set forth in Section 2.07(l) of the Disclosure Schedule, the Company and its Subsidiaries are not, and to the Knowledge of the Company, no other party to any licensing, distributorship or other similar arrangement with the Company or any of its Subsidiaries relating to Intellectual Property is in breach of or default (with or without notice or lapse of time, or both) under its obligations under such arrangements. Except as set forth in Section 2.07(l) of the Disclosure Schedule, if the terms of any such licensing arrangement require that customers of the Company and its Subsidiaries enter into license or sublicense agreements with the Company, a Subsidiary, or the applicable licensor, then the Company or its Subsidiary has procured all such licenses or sublicenses from its customers.

(m) Except as set forth in Section 2.07(m) of the Disclosure Schedule, there is no outstanding Order by or with any Governmental Authority relating to Intellectual Property by which the Company or any of its Subsidiaries are bound and no Company Intellectual Property is currently the subject of any actual or, to the Knowledge of the Company, threatened action, such as but not limited to reexaminations, revocations or oppositions, by or within a Governmental Authority.

(n) Except as set forth in Section 2.07(n) of the Disclosure Schedule, no third parties including, but not limited to, customers, vendors, and resellers, have the right to make Derivative Works from any copyrights owned by the Company embodied in the Company’s current Products, Software, and/or services.

(o) Except as set forth in Section 2.07(o) of the Disclosure Schedule, the Company or any of its Subsidiaries are not precluded or otherwise restricted from processing transactions, providing services, performing any work or producing any work product, for Parent, it subsidiaries, and any of its affiliated corporate entities that violates any existing agreements or continuing provisions from any terminated agreements.

(p) Except as set forth in Section 2.07(p) of the Disclosure Schedule, any Software, Product, or Intellectual Property and the underlying work product, associated with, relating to, or arising from any development work performed by a consultant or a third party for the Company or any of its Subsidiaries is exclusively owned by the Company or its Subsidiaries.

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(q) Except as set forth in Section 2.07(q) of the Disclosure Schedule, none of the Products have been developed outside of the United States.

(r) Except as set forth in Section 2.07(r) of the Disclosure Schedule, neither the Company nor any Subsidiary has received any written communication that involves an offer to license or grant any other rights or immunities under any Intellectual Property right of any other Person.

2.08 Power and Authority; Effect of Agreement .

(a) The Company has all requisite corporate power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly authorized by the Board of Directors of the Company and, immediately following the execution hereof, will have been duly authorized by the written consent of Jupiter (which shall continue to be in full force and effect as of the Closing), at which point no further corporate authorization will be required with respect thereto (other than any notice to stockholders which may be required under Sections 228(e) and 262 of the DGCL). This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by Parent and Merger Sub, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to creditors’ rights generally and (ii) is subject to general principles of equity.

(b) Except as set forth in Section 2.08(b) of the Disclosure Schedule, the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby will not, with or without the giving of notice or the lapse of time, or both, subject to obtaining any required consents, approvals, authorizations, exemptions or waivers (collectively, “ Consents ”) referred to in Section 2.15, (i) violate any provision of Law to which the Company or any Subsidiary is subject; (ii) violate any Order applicable to the Company or any Subsidiary; or (iii) conflict with or result in a breach of the provisions of or the creation of any Encumbrance under, or constitute a default or create a right of acceleration, termination, or amendment under, (x) the Constituent Documents of the Company or any Subsidiary, (y) any resolution adopted by the Company or a Subsidiary, or any of its stockholders, boards of directors or committees, or (z) any Material Contract to which the Company or any Subsidiary is a party, except, in the case of clause (z), for violations, conflicts, breaches, creations of Encumbrances or rights, or defaults which would not reasonably be expected to result in any Material liability to the Company or any of its Subsidiaries.

2.09 Contracts .

(a) Section 2.09(a) of the Disclosure Schedule identifies, as of the date hereof, each Contract to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound that:

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(i) relates to the employment of, or the performance of services by, any employee or consultant, or pursuant to which (A) the Company or any of its Subsidiaries is or may become obligated to make any severance, termination, change of control, retention or similar payment to any current or former employee or director, or (B) the Company or any of its Subsidiaries is or may become obligated to make any bonus or similar payment (other than payments constituting base salary), in the case of each (A) and (B) in excess of $35,000 per year to any current or former employee or director;

(ii) relates to the borrowing of money or to the mortgaging, pledging or otherwise placing an Encumbrance (other than Permitted Encumbrances) on any asset, in each case in an amount in excess of $100,000, or in excess of $500,000 in the aggregate;

(iii) involves the sale of the accounts receivable in excess of $100,000 (or collectively with all such similar Contracts in excess of $500,000) generated by the Company or any of the Subsidiaries to any other Person at a discount;

(iv) provides for annual payments in excess of $200,000 under which the Company or any of the Subsidiaries is the lessee of or the holder or operator of any real or tangible personal property owned by any other Person;

(v) is a Contract under which the Company or any of the Subsidiaries is the lessor of or permits any other Person to hold or operate any real or tangible personal property owned or controlled by the Company or any of the Subsidiaries;

(vi) is a Contract, or part of a group of related Contracts with the same Person, that generated in excess of $200,000 in revenues recognized by the Company or its Subsidiaries in the most recent 12-month period or is reasonably expected to generate in excess of $200,000 in revenues in the 12-month period ending on the first anniversary of the date hereof;

(vii) relates to the purchase, distribution, marketing, advertising or sale of the Company’s, any of the Subsidiaries’ or any other Person’s products or services, in each case which involved payments by the Company or its Subsidiaries in excess of $100,000 in the most recent 12-month period or is reasonably expected to involve payments in excess of $100,000 in the 12-month period ending on the first anniversary of the date hereof;

(viii) is a material joint development agreement, collaboration agreement or similar agreement;

(ix) relates to the acquisition, transfer, development, sharing or license of any material Intellectual Property (except for any Contract pursuant to which (A) any Intellectual Property is licensed to the Company or any Subsidiary under any third-party software license generally available to the public, or (B) any Intellectual Property is licensed by the Company or any Subsidiary to any Person on a non-exclusive basis);

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(x) provides for indemnification of any officer, director, employee or agent of the Company or any of its Subsidiaries;

(xi) except for confidentiality or non-disclosure agreements entered into in connection with the proposed sale of the Company or the TMG Business, restricts in any material respect the right of the Company or any Subsidiary (i) to compete with any Person, (ii) to acquire any product or other asset or any services from any Person other than the Contracting Person, (iii) to solicit, hire or retain any Person other than the Contracting Person as an employee, consultant or independent contractor, (iv) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any Person other than the Contracting Person, (v) to perform services for any Person other than the Contracting Person, or (vi) to transact business with any Person other than the Contracting Person;

(xii) other than Contracts evidencing Company Stock Options, (A) provides for the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) provides any Person with any preemptive right, right of participation, right of maintenance or similar right with respect to any securities, or (C) provides the Company or any Subsidiary with any right of first refusal with respect to, or right to repurchase or redeem, any securities;

(xiii) is any other Contract that is not of any of the foregoing types and is Material and incorporates or relates to any guaranty, warranty or indemnity or similar obligation, except for Contracts substantially identical to the standard forms of end-user licenses and of service agreements previously delivered by the Company to Parent;

(xiv) is any other Contract that is not of any of the foregoing types and is Material and (A) imposes any confidentiality obligation on the Company or any of the Subsidiaries or on any other Person or (B) contains “standstill” or similar provisions, except for Contracts substantially identical to the standard forms of end-user licenses and of service agreements previously delivered by the Company to Parent;

(xv) is any other Contract that is not of any of the foregoing types and is Material and has a term of more than ninety (90) days and that may not be terminated by the Company or a Subsidiary (without penalty) within ninety (90) days after the delivery of a termination notice by the Company or the Subsidiary, except for Contracts substantially identical to the standard forms of end-user licenses and of service agreements previously delivered by the Company to Parent;

(xvi) is any agreement within the three-year period prior to the date of this Agreement pursuant to which the Company has acquired or sold a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase or sale of stock or assets, license or otherwise, including disclosure of (1) whether the Company has outstanding obligations to make contingent payments in respect of the business, entity or assets acquired or sold, and (2) whether the Company has ongoing indemnification obligations to the business, entity or assets acquired or sold (or the former officers, directors or stockholders or other owners thereof); or

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(xvii) is any other Contract that is not of any of the foregoing types and is Material.

Contracts in the respective categories described in this Section 2.09(a) are referred to in this Agreement as “ Material Contracts .”

(b) Except as set forth in Section 2.09(b) of the Disclosure Schedule:

(i) neither the Company nor any Subsidiary is in any material respect in default under or in breach of, or in receipt of any written claim of default or breach under, any Material Contract;

(ii) no event has occurred which with the passage of time or the giving of written notice or both would reasonably be expected to result in a default or breach by the Company or a Subsidiary under any Material Contract, give any Person the right to accelerate the maturity or performance of any Material Contract or result in the disclosure, release or delivery of any Company Source Code;

(iii) to the Knowledge of the Company, no other party to any Material Contract is in default under or in breach of such Material Contract; and

(iv) to the Knowledge of the Company, no event has occurred which with the passage of time or giving of notice or both would result in a default or breach by any other party under any Material Contract.

(c) There has been made available to Parent a true and complete copy of each of the Material Contracts and each other document referenced in the Disclosure Schedule, together with all written amendments or waivers thereto.

2.10 Undisclosed Liabilities . Neither the Company nor any Subsidiary has any liability or obligation (whether accrued, absolute, contingent or otherwise) (a “ Liability ”), except (a) Liabilities reflected or reserved against, or set forth, in the Financial Statements (or the notes thereto); (b) Liabilities that are disclosed in the Disclosure Schedule hereto (or omitted from the Disclosure Schedule because such Liabilities fall below the threshold established by the corresponding representation and warranty); (c) Liabilities arising in the ordinary course of business under any Contract by which the Company or any Subsidiary is bound (but, if a Material Contract, only to the extent the Material Contract is listed in Section 2.09(a) of the Disclosure Schedule); (d) Liabilities arising under any Permit to which the Company or any Subsidiary is a party or by which any of them are bound; (e) Liabilities incurred in the ordinary course of business since the date of the Interim Financial Statements; (f) Liabilities arising under the Company Employee Plans in the ordinary course of business; (g) obligations for performance after the date hereof required under applicable Laws; and (h) Liabilities that are not Material, individually or in the aggregate.

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2.11 Litigation .

(a) Except as set forth in Section 2.11(a) of the Disclosure Schedule, there is no pending Litigation, and (to the Knowledge of the Company) no Person has threatened to commence any Litigation: (i) against the Company or any Subsidiary or any officer or director of any of the Company or any Subsidiary in his or her capacity as such; or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Merger or any of the other transactions contemplated by this Agreement. The Company has delivered or made available to Parent copies of all pleadings, correspondence, and other documents relating to each Litigation listed in Section 2.11(a) of the Disclosure Schedule.

(b) Except as set forth in Section 2.11(b) of the Disclosure Schedule, there is no Order to which the Company or any Subsidiary is subject that has not been completely performed by such Person. To the Knowledge of the Company, no officer or employee of the Company or any Subsidiary is subject to any Order that prohibits such officer or other employee from engaging in or continuing any conduct, activity or practice relating to the business of the Company or any Subsidiary.

(c) Except as set forth in Section 2.11(c) of the Disclosure Schedule, (i) the Company and the Subsidiaries are, and at all times since January 1, 2004, have been, in compliance in all material respects with all of the terms and requirements of each Order to which it is or has been subject, (ii) no event has occurred or circumstance exists that may constitute or result in (with or without notice or lapse of time) a violation of or failure to comply with any term or requirement of any Order to which the Company or any Subsidiary is subject; and (iii) neither the Company nor any Subsidiary has received, at any time since January 1, 2004, any notice or other communication (whether oral or written) from any Governmental Authority or any other Person regarding any actual, alleged, possible, or potential material violation of, or material failure to comply with, any term or requirement of any Order to which the Company or any Subsidiary is or has been subject.

2.12 Compliance with Laws .

(a) Except as set forth in Section 2.12(a) of the Disclosure Schedule, the Company and the Subsidiaries are, and since January 1, 2004, have been, in compliance in all material respects with all applicable Laws, including but not limited to Environmental Laws and antitrust and competition Laws.

(b) Except as set forth in Section 2.12(b) of the Disclosure Schedule, the Company and the Subsidiaries have, and are in compliance in all material respects with, all Permits (including Permits issued under any applicable Laws concerning or relating to the protection of health or environment) necessary for the conduct of their businesses as presently conducted.

(c) Except as set forth in Section 2.12(c) of the Disclosure Schedule, since January 1, 2004, neither the Company nor any of the Subsidiaries has received any written communication from any Governmental Authority or any other Person asserting that the Company or any of the Subsidiaries or any of the operations carried on by them is not in compliance with applicable Law or any Permit.

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(d) Except as set forth in Section 2.12(d) of the Disclosure Schedule, to the Knowledge of the Company, no Hazardous Materials have been disposed of or discharged into the environment on or from the premises of the Company or any of the Subsidiaries, which is currently, or since January 1, 2004, has been, required by applicable Environmental Law to be remediated by or at the expense of the Company or any of the Subsidiaries. The Company has delivered or otherwise made available for inspection to Parent true and complete copies and results of any reports, studies, analyses, tests or monitoring initiated by any of the Company or the Subsidiaries pertaining to Hazardous Materials in, on, beneath or adjacent to any real property that is owned or leased by the Company or any Subsidiary.

(e) Except as set forth in Section 2.12(e) of the Disclosure Schedule, to the Knowledge of the Company, neither the Company nor any of the Subsidiaries has treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled or released any substance, in a manner that has given rise to liabilities of the Company or any of the Subsidiaries pursuant to any Environmental Law, including any liability for response costs, corrective action costs, personal injury, property damage, natural resources damage or attorney fees, or any investigative, corrective or remedial obligations.

(f) This Section 2.12 does not apply to matters that relate to Intellectual Property (which are the subject of Section 2.07), Taxes (which are the subject of Section 2.13), employees and employee benefits (which are the subject of Section 2.14), or Government Contracts (which are the subject of Section 2.25).

2.13 Taxes .

(a) Each of the Company and the Subsidiaries have (i) timely filed or caused to be timely filed with the appropriate Governmental Authority all material Tax Returns required to be filed through the date hereof (taking into account extensions) and (ii) paid or accrued on its books all material Taxes due and payable with respect to such Tax Returns.

(b) Except as set forth in Section 2.13(b)(i) of the Disclosure Schedule, no deficiencies for Taxes of the Company or any Subsidiary have been claimed, proposed or assessed in writing by any relevant Governmental Authority. Except as set forth in Section 2.13(b)(ii) of the Disclosure Schedule, there are no presently ongoing audits of Tax Returns by the relevant Governmental Authority. The Company has made available to Parent complete and accurate copies of all United States Federal Income Tax Returns of the Company and the Subsidiaries for the fiscal years ended December 31, 2005, 2004, 2003, 2002 and 2001 and examination reports and statements of deficiencies assessed against or agreed to by the Company or any Subsidiary since March 31, 2001. Except as set forth in Section 2.13(b)(iii) of the Disclosure Schedule, neither the Company nor any Subsidiary has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency that has not since expired. Since January 1, 2004, no claim has been asserted or threatened by a Governmental Authority in a jurisdiction where neither the Company nor any Subsidiary files Tax Returns that the Company or any Subsidiary is or may be subject to taxation by that jurisdiction.

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(c) All Taxes under Code Section 409A and all other Taxes under Code Section 409A and all other material Taxes that the Company and the Subsidiaries were required to withhold or collect have been duly withheld, collected and remitted to the appropriate Governmental Authority (or, if remittance is not yet due, are being properly being held under applicable Law).

(d) Except as set forth in Section 2.13(d) of the Disclosure Schedule, there are no liens for Taxes (other than liens for Taxes not yet due or liens being contested in good faith by appropriate proceedings) on any of the assets of any of the Company or the Subsidiaries.

(e) Neither the Company nor any Subsidiary (i) has agreed, or is required, to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise; or (ii) has made an election, or is required, to treat any of its assets as owned by another Person pursuant to the provisions of former Section 168(f) of the Code or as tax-exempt bond financed property or tax-exempt use property within the meaning of Section 168 of the Code.

(f) Neither the Company nor any Subsidiary is a party to, or bound by any Tax allocation or sharing agreement (except for customary provisions assigning responsibility for Taxes arising under contracts entered into in the ordinary course of business).

(g) Except as set forth in Section 2.13(g) of the Disclosure Schedule, neither the Company nor any Subsidiary has any liability for the Taxes of any other Person (other than the Company or any of its subsidiaries) under Treasury regulation Section 1.1502-6 (or any similar state, local, or foreign Law), as a transferee, by contract (except for customary provisions assigning responsibility for Taxes arising under contracts entered into in the ordinary course of business) or otherwise.

(h) Neither the Company nor any Subsidiary has participated in a listed transaction as described in U.S. treasury regulations promulgated under Section 6011 of the Code.

(i) Neither the Company nor any Subsidiary is obligated to make any payments under any Company Employee Plan as a result of a transaction occurring prior to the date of this Agreement that will not be fully deductible by virtue of Code Section 280G (or any corresponding provision of state, local or foreign Law).

(j) Except as set forth in Section 2.13(j) of the Disclosure Schedule, no individual has a right to be indemnified by the Company or any Subsidiary for the additional Tax imposed by Code Sections 409A or 4999.

(k) Neither the Company nor any Subsidiary will be required to include any item of income in, or exclude any item of deduction from, its taxable income for any taxable period (or portion thereof) ending after the Closing Date that is Material in amount as a result of any: (i)

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change in method of accounting for a taxable period ending on prior to the Closing Date, (ii) “closing agreement” as described in Code Section 7121 (or any corresponding state, local or foreign Law), (iii) intercompany transactions or any excess loss account described in the Treasury Regulations under Code Section 1502 (or any corresponding state, local or foreign Law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date or (v) prepaid amount received on or prior to the Closing Date, except in the case of clauses (i), (ii), (iii), (iv) and (v) for any such item of income or item of deduction which would not have a Material Adverse Effect.

(l) The Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying or intended to qualify for tax free treatment under Section 355 of the Code either in the two (2) years prior to the date of this Agreement or in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.

2.14 Employees and Employee Benefits .

(a) Section 2.14(a) of the Disclosure Schedule contains a list of all salaried employees of the Company and its Subsidiaries as of a date within five (5) Business Days of the date of this Agreement, and correctly reflects, in all material aspects, their salaries, any other compensation due and owing to them (including compensation due and owing pursuant to bonus, deferred compensation or commission arrangements), their dates of employment, their primary work locations, and their positions. All employees of the Company and its Subsidiaries are “at will” employees except as disclosed in Section 2.09(a)(i) of the Disclosure Schedule. For the purposes of the preceding sentence, “at will” shall mean any employee other than an employee who has a contract for a definite term, is covered by a “just cause” or similar provision in a binding arrangement with the Company, or with respect to whom a contract provides that advance notice must be provided in the event of an involuntary termination of employment.

(b) Section 2.14(b) of the Disclosure Schedule sets forth a complete and correct list, as of the date hereof, of all material (i) Employee Pension Benefit Plans, (ii) Employee Welfare Benefit Plans, (iii) bonus, stock option, stock purchase, incentive, performance unit, deferred compensation, supplemental retirement and other fringe or employee benefit plans, programs or agreements, (iv) employment, termination, retention, change-in-control or severance plans, programs or agreements, and (v) other employee benefit plans or arrangements in each case which is sponsored, maintained, contributed to or required to be contributed to by the Company or any of the Subsidiaries (collectively, the “ Company Employee Plans ”). For purposes of Section 2.14(b), a plan, program or arrangement is “material” if it has, or reasonably may be expected to have, any liability or potential liability to the Company or any of the Subsidiaries in excess of $35,000 in any fiscal year of the Company.

(c) With respect to each Company Employee Plan, the Company has made available to Parent: (i) an accurate and complete copy of such Company Employee Plan (including all amendments thereto), or, in the case of any unwritten Company Employee Plan, a written summary of the material terms thereof; (ii) an accurate and complete copy of the Form 5500 annual report, if required under ERISA, with respect to such Company Employee Plan for

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the three (3) most recent plan years for which such report has been filed, including all schedules and attachments, accountant’s reports, and recommendations to management; (iii) an accurate and complete copy of the most recent summary plan description, together with each summary of material modifications, if required under ERISA, with respect to such Company Employee Plan, (iv) if such Company Employee Plan is funded through a trust or any third-party funding vehicle, an accurate and complete copy of the trust or other funding agreement (including all amendments thereto) and accurate and complete copies the most recent financial statements thereof; and (v) an accurate and complete copy of the most recent determination letter received from the Internal Revenue Service with respect to such Company Employee Plan, or, if the plan is formed by the adoption of a master, prototype, or volume submitter plan, and the Company or Subsidiary is entitled to rely on the opinion or advisory letter issued by the Internal Revenue Service to the sponsor of such master, prototype, or volume submitter plan, an accurate and complete copy of the most recent such opinion advisory letter (if such Company Employee Plan is intended to be qualified under Section 401(a) of the Code).

(d) Except as set forth in Section 2.14(d) of the Disclosure Schedule or as would not result, individually or in the aggregate, in any material liability to the Company and its Subsidiaries: (i) none of the Company Employee Plans promises or provides retiree medical or other retiree welfare benefits to any Person, other than health continuation coverage as required by Section 4980B of the Code, or Part 6 of Title I of ERISA, and, to the Knowledge of the Company, there has been no communication to any employee that would reasonably be expected to promise or guarantee any such benefits; (ii) to the Knowledge of the Company, no party in interest or disqualified person (as defined in Section 3(14) of ERISA and Section 4975 of the Code) has at any time engaged in a transaction with respect to any Company Employee Plan which would reasonably be expected to subject the Company or any of the Subsidiaries, directly or indirectly, to any Tax, liability, civil or criminal penalty, or other liability for prohibited transactions under ERISA or Section 4975 of the Code and, to the Knowledge of the Company, no event has occurred and no condition or circumstance exists that would reasonably be expected to give rise to any such liability with respect to any Company Employee Plan; (iii) to the Knowledge of the Company, no fiduciary of any Company Employee Plan has breached any of the responsibilities or obligations imposed upon fiduciaries under Title I of ERISA; (iv) all Company Employee Plans have been established, maintained, operated and administered in accordance with their terms and with the requirements of applicable Law, and the Company and the Subsidiaries have performed all obligations required to be performed by them under, and are not in default under or in violation of, any of the Company Employee Plans; (v) no Company Employee Plan (or fiduciary thereof) is under audit, or has received written notice of any audit, by the Internal Revenue Service, the Department of Labor or the Pension Benefit Guaranty Corporation nor, to the Knowledge of the Company, is any audit or investigation threatened; (vi) each Company Employee Plan which is intended to be qualified under Section 401(a) of the Code is the subject of a favorable determination letter from the Internal Revenue Service issued within the last four (4) years and, to the Knowledge of the Company, no event has occurred that will or would reasonably be expected to give rise to the revocation of any such determination letter, or the disqualification or loss of tax-exempt status of any such Company Employee Plan or trust under Sections 401(a) or 501(a) of the Code; (vii) there are no actions, suits, disputes or claims (other than routine claims for benefits in the ordinary course) that are pending or, to the Knowledge of the Company, threatened with respect to any Company Employee Plan and, to the Knowledge of the Company, there are no facts which would reasonably be expected to give rise

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to any liability in the event of any such action, suit, dispute or claim; (viii) none of the Company Employee Plans are self-insured arrangements; (ix) all contributions required to be made with respect to any Company Employee Plan have been made on or before their due dates (including any extensions thereof); and (x) there are no unfunded liabilities in respect of any Company Employee Plan that is an Employee Pension Benefit Plan, whether or not subject to ERISA, including going concern unfunded liabilities, solvency deficiencies or wind-up deficiencies, where applicable. For purposes of this Section 2.14(d), “material liability” means any liability in excess of $35,000, and any liability or potential liability that reasonably may be expected to exceed $35,000.

(e) No Company Employee Plan is, and neither the Company, any Subsidiary nor any ERISA Affiliate, has within the past six (6) years contributed to or had any obligation to contribute to, (i) a plan subject to Title IV of ERISA or Section 412 of the Code, (ii) a “multiemployer plan” (within the meaning of Section 3(37) of ERISA) or a multiemployer plan under applicable Canadian pension legislation, (iii) a “multiple employer plan” (within the meaning of Section 413(c) of the Code), (iv) a “voluntary employees’ beneficiary association” (within the meaning of Section 501(c)(9) of the Code), or (v) a “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA). The Company, its Subsidiaries and each ERISA Affiliate are in compliance in all material respects with, and have at all times within the past six (6) years complied in all material respects with, COBRA and HIPAA. With respect to any employee benefit plans or arrangements (other than the Company Employee Plans) sponsored, maintained, contributed to or required to be contributed to by any ERISA Affiliate, there is no liability which Parent or Merger Sub shall assume, or would reasonably be expected to assume (by operation of law or otherwise), as part of the transactions contemplated by this Agreement or otherwise.

(f) Except as set forth in Section 2.14(f) of the Disclosure Schedule, the execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Company Employee Plan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee or director of the Company or any of the Subsidiaries, (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company or any of the Subsidiaries to amend or terminate any Company Employee Plan, or (iii) result in any “excess parachute payment” within the meaning of Code Section 280G (or any corresponding provision of state, local or foreign Tax law) (assuming, for purposes of clause (iii), that no portion of any Parent Arrangement would be deemed to be contingent on a change in ownership or effective control of the Company for purposes of Section 280G of the Code).

(g) Except as set forth in Section 2.14(g) of the Disclosure Schedule, to the Knowledge of the Company, (i) the Company and the Subsidiaries are in compliance in all material respects with all applicable Laws and Contracts relating to employment and employment practices, terms and conditions of employment, wages and hours, equal employment opportunity, nondiscrimination, affirmative action, immigration (including those laws that require verification of employment and recordkeeping of such employment), benefits, workers’ compensation, labor relations , the payment of social security and similar taxes,

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occupational safety and health, and plant closings; (ii) the Company and the Subsidiaries are not subject to any material liability for the payment of any compensation, damages, taxes, fines, penalties, or other amounts, however designated, for failure to comply with any of the foregoing legal and contractual requirements; and (iii) neither the Company nor any of the Subsidiaries is subject to any liability for any payment to any trust or other fund or to any Governmental Authority, with respect to unemployment compensation benefits, social security or other (or analogous) benefits for employees of the Company and the Subsidiaries.

(h) To the Knowledge of the Company, (i) the consummation of the Merger or any of the other transactions contemplated by this Agreement will not have a Material Adverse Effect on the labor and employee relations of the Company and the Subsidiaries, and (ii) as of the date of this Agreement, none of the employees of the Company and the Subsidiaries has provided written notice of his or her intention to terminate his or her employment with the Company and the Subsidiaries with which such employee is employed.

(i) As of the date of this Agreement, no grants of stock options have been made under the Company Employee Plans to employees resident or carrying out duties of employment in the United Kingdom (the “ UK Employees ”) and no UK Employees or former UK Employees own shares or securities in the Company or any of the Subsidiaries which may be subject to Tax on disposal under Part 7 of the Income Tax (Earnings and Pensions) Act 2003 or similar legislation of any other jurisdiction.

(j) No contributions to pension schemes have been or are required to be made in respect of UK Employees other than payments to the stakeholder pension scheme and personal pension schemes disclosed at Section 2.14(j) of the Disclosure Schedule (the “ UK Pension Schemes ”). All amounts due to be paid to or in respect of such UK Pension Scheme have been paid and there are no contributions, fees, charges or other expenses which have fallen due but are unpaid. There is no obligation to increase current contribution rates or to pay special contributions to any UK Pension Scheme.

2.15 Consents .

(a) Except as set forth in Section 2.15(a) of the Disclosure Schedule, and except for any antitrust or competition filings required by the United States or any other jurisdiction whose laws are applicable, including but not limited to the HSR Act, no Consent from any Governmental Authority is required to be obtained by the Company or any Subsidiary in connection with the execution, delivery and performance by the Company or any Subsidiary of this Agreement or any Ancillary Document or the taking by the Company or any Subsidiary of any other action contemplated hereby or thereby.

(b) Except as set forth in Section 2.15(b) of the Disclosure Schedule, no Consent from any third party is required to be obtained by the Company or any Subsidiary in connection with the execution, delivery and performance by the Company or any Subsidiary of this Agreement or any Ancillary Document or the taking by the Company or any Subsidiary of any other action contemplated hereby or thereby, other than Consents which would not reasonably be expected to result in any Material liability to the Company or any of its Subsidiaries.

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2.16 Insurance . Section 2.16(i) of the Disclosure Schedule identifies, as of the date hereof, of all casualty, general liability and other insurance maintained by the Company or any of the Subsidiaries (other than insurance that is part of or related to the Company Employee Plans) (the “ Insurance Policies ”). Each of the Insurance Policies is in full force and effect and no written notice has been received by the Company or any of the Subsidiaries from any insurance carrier purporting to cancel coverage under any of the Insurance Policies. Except as set forth in Section 2.16(ii) of the Disclosure Schedule, to the Knowledge of the Company, there are no pending Material claims against the Insurance Policies by the Company or any of the Subsidiaries as to which the insurers have denied liability. The Company and the Subsidiaries have made timely premium payments with respect to all of the Insurance Policies. Except as set forth in Section 2.16(iii) of the Disclosure Schedule, as of the date hereof neither the Company nor any of the Subsidiaries has received written notice or other written communication of a default under, or a termination or cancellation of, or a Material increase in premium with respect to any of the Insurance Policies. The Company makes no representation or warranty that insurance coverage under the Insurance Policies will be continued or is continuable after the Closing.

2.17 Labor Matters . Except as set forth in Section 2.17 of the Disclosure Schedule, neither the Company nor any of the Subsidiaries has been a party to any collective bargaining agreement and, to the Knowledge of the Company, no union organizing activities have existed since January 1, 2002, among any of the employees of the Company or any of the Subsidiaries. Since January 1, 2002, there has been no labor strike, slow-down or stoppage, labor dispute subject to the jurisdiction of either the National Labor Relations Board (for United States employees) or the relevant labor relations board (for Canadian employees), or a trade dispute under Section 218 of the Trade Union and Labor Relations (Consolidation) Act of 1992, pending or, to the Knowledge of the Company, threatened by the employees of the Company or any of the Subsidiaries.

2.18 Fees . Except as set forth in Section 2.18 of the Disclosure Schedule, neither the Company nor any of the Subsidiaries has paid or become obligated to pay, or will pay or become obligated to pay, any fee or commission to any broker, finder or intermediary in connection with the transactions contemplated hereby.

2.19 Stockholder Approval . The affirmative vote of the holders of a majority of the Outstanding Shares is the only vote required by the Company’s stockholders necessary to adopt this Agreement and approve the Merger and the other transactions contemplated by this Agreement pursuant to the Company’s Constituent Documents, the Stockholders Agreement and applicable Laws.

2.20 Affiliate Transactions . Except as set forth in Section 2.20 of the Disclosure Schedule, and except for compensation and payment of reimbursable expenses incurred in the ordinary course of business to employees, consultants and contractors of the Company or any of the Subsidiaries, no Affiliate or stockholder of the Company (a) is a party to any transaction or Contract with the Company or any of the Subsidiaries, or, to the Knowledge of the Company, has any direct or indirect financial interest in any such Contract or transaction, (b) is a debtor or creditor of the Company or any of the Subsidiaries, (c) to the Knowledge of the Company, is the direct or indirect owner of an interest in any Person that is a supplier or

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customer of the Company or any of the Subsidiaries (other than non-affiliated holdings in publicly held companies), or (d) to the Knowledge of the Company, has any direct or indirect interest in any material asset used in the business of the Company or any Subsidiary.

2.21 Bank Accounts; Receivables; Customers .

(a) Section 2.21(a) of the Disclosure Schedule provides accurate information with respect to each account maintained by or for the benefit of the Company at any bank or other financial institution.

(b) Section 2.21(b) of the Disclosure Schedule provides a breakdown and aging of all accounts receivable, notes receivable and other receivables of the Company and its Subsidiaries as of April 30, 2007. Except as set forth in Section 2.21(b) of the Disclosure Schedule, all existing accounts receivable of the Company and its Subsidiaries (including those accounts receivable reflected on balance sheet that is part of the Interim Financial Statements that have not yet been collected and those accounts receivable that have arisen since March 31, 2007, and have not yet been collected) represent valid obligations of customers of the Company or the Subsidiaries arising from bona fide transactions entered into in the ordinary course of business.

(c) Except as set forth in Section 2.21(c)(i) of the Disclosure Schedule, neither the Company nor any Subsidiary has (i) extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or executive officer (or equivalent thereof) of the Company or any Subsidiary, or (ii) materially modified any term of any such extension or maintenance of credit (in each case, other than any extension of credit or loan that is no longer outstanding). Section 2.21(c)(ii) of the Disclosure Schedule contains an accurate and complete list as of the date of this Agreement of all outstanding loans and advances made by the Company and the Subsidiaries to any employee, director, consultant or independent contractor, other than routine business expenses advanced to employees in the ordinary course of business.

(d) Except as set forth in Section 2.21(d) of the Disclosure Schedule, to the Knowledge of the Company, neither the Company nor any Subsidiary has received any written notice indicating that any Person listed in Section 2.09(a)(vi) of the Disclosure Schedule intends to cease dealing with the Company or any Subsidiary or intends to otherwise materially reduce the volume of business transacted by such Person with the Company or any Subsidiary below historical levels.

2.22 Real Property; Leaseholds . Neither the Company nor any Subsidiary owns any real property or any interest in real property, except for: (a) the leaseholds created under the real property leases identified in Section 2.22(a) of the Disclosure Schedule (each such lease is fully effective in accordance with its terms); and (b) the land described in Section 2.22(b) of the Disclosure Schedule.

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2.23 Sale of Products; Performance of Services .

(a) Except as set forth in Section 2.23(a)(i) of the Disclosure Schedule, since January 1, 2004, neither the Company nor any Subsidiary has received notice or other written communication asserting that any Product, system, program, or other asset designed, developed, manufactured, assembled, sold, installed, repaired, licensed or otherwise made available by the Company or the Subsidiaries to any Person failed in any material respect to conform or comply with the terms, requirements and specifications of any applicable warranty or other Contract. Except as set forth in Section 2.23(a)(ii) of the Disclosure Schedule, since January 1, 2004, each Product, system, program, or other asset designed, developed, manufactured, assembled, sold, installed, repaired, licensed or otherwise made available by the Company or the Subsidiaries to any Person complied in all material respects with all applicable Laws.

(b) Except as set forth in Section 2.23(b) of the Disclosure Schedule, since January 1, 2004, neither the Company nor any Subsidiary has received notice or other written communication asserting that any installation services, programming services, integration services, repair services, maintenance services, support services, training services, upgrade services and other services that have been performed by the Company or any Subsidiary were performed improperly in any material respect or not in conformity in any material respect with the terms and requirements of any applicable warranties or other Contracts.

2.24 Certain Business Practices . Neither the Company nor any Subsidiary and, to the Knowledge of the Company, no director, officer, agent or employee of the Company or any Subsidiary, has (a) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977, as amended, or (c) made any other unlawful payment.

2.25 Government Contracts . Section 2.25 of the Disclosure Schedule sets forth all material Government Contracts, including the dates of such agreements. All Government Contracts are held by the Company or a Subsidiary and are in full force and effect. With respect to the Government Contracts:

(a) Since January 1, 2001, neither the Company nor any Subsidiary has had any determination of material noncompliance, has entered into any consent order, or has undertaken any internal investigation relating directly or indirectly to noncompliance with the terms and conditions of any Government Contract;

(b) Since January 1, 2001, the Company and each Subsidiary has complied in all material respects with all Laws with respect to all Government Contracts and all documents submitted in response to the issuance of a request for proposal, invitation for bid, request for quote, or similar document by a government agency, government prime contractor, or higher-tier government subcontractor (the “ Government Bids ”);

(c) Since January 1, 2001, neither the Company nor any Subsidiary has, in obtaining or performing any Government Contract, violated any material aspect or provision of any of the following: (i) the Truth in Negotiations Act of 1962, as amended; (ii) the Contract Disputes Act of 1978; (iii) the Office of Federal Procurement Policy Act; (iv) the FAR or any

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applicable agency supplement thereto; (v) the False Claims Act; (vi) the False Statements Act; (vii) the Procurement Integrity Act; (viii) the Buy American Act; (ix) the Trade Agreements Act; and, (x) equal employment opportunities and affirmative action requirements;

(d) Since January 1, 2001, all facts set forth in or acknowledged by the Company or any Subsidiary in any certification, representation, or disclosure statement submitted by the Company or a Subsidiary with respect to any Government Contract or Government Bid were current, accurate, and complete in all material respects as of the date of submission;

(e) Since January 1, 2001, neither the Company, any Subsidiary, nor any of its employees has been debarred or suspended from doing business with any governmental agency, and, to the Knowledge of the Company, no circumstances exist as of the date hereof that would warrant the institution of debarment or suspension proceedings against the Company, any Subsidiary or any employee of the Company;

(f) Since January 1, 2001, no negative determinations of responsibility have been issued against the Company or any Subsidiary in connection with any Government Contract or Government Bid;

(g) Since January 1, 2001, no governmental agency, and no prime contractor or higher-tier subcontractor of any governmental agency, has withheld or set off, or to the Knowledge of the Company, threatened to withhold or set off, more than $100,000 due to the Company or any Subsidiary under any Government Contract;

(h) Since January 1, 2001, to the Knowledge of the Company, there are not and have not been any irregularities, misstatements, or omissions relating to any Government Contract or Government Bid that have led to or would reasonably be expected to lead to (i) any administrative, civil, criminal, or other investigation, legal proceeding, or indictment involving the Company, a Subsidiary or any of its employees, (ii) the recoupment of any payments previously made to the Company or any Subsidiary, (iii) a finding or claim of fraud, defective pricing, mischarging, or improper payments on the part of the Company or any Subsidiary, or (iv) the assessment of any penalties or damages of any kind against the Company that would reasonably be expected to have a Material Adverse Effect;

(i) Since January 1, 2001, there has not been, and as of the date of this Agreement, there is not, any material outstanding claim against the Company or any Subsidiary by, or material unresolved dispute involving the Company or any Subsidiary with, any prime contractor, subcontractor, or vendor arising under or relating to the award or performance of any Government Contract;

(j) Since January 1, 2001, neither the Company nor any Subsidiary is undergoing nor has undergone any audit arising under or relating to any Government Contract and, to the Knowledge of the Company, as of the date of this Agreement, there is no basis for any impending audit arising under or relating to any Government Contract, except for routine audits conducted in the ordinary course of business;

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(k) Since January 1, 2001, neither the Company nor any Subsidiary has entered into any assignment of proceeds with respect to the performance of any Government Contract;

(l) Since January 1, 2001, no payment has been made by the Company or any Subsidiary to any Person other than to any bona fide employee or agent (as defined in subpart 3.4 of the FAR) that is or was contingent upon the award of any Government Contract;

(m) Since January 1, 2001, Company’s and each Subsidiary’s internal systems for cost tracking and time charging have been adequate for purposes of complying with their obligations under their Government Contracts and have not been determined by any governmental agency or prime contractor to be non-compliant in any material respect;

(n) The Company and each Subsidiary have sold only “commercial items” under their Government Contracts, as that term is defined by the FAR. To the extent that the Company and the Subsidiary have sold software as a commercial item under their Government Contracts, the Company and each Subsidiary have sold only restricted computer software, as defined in FAR 52.227-14(a), or commercial computer software, as defined in Defense FAR Supplement 252.227-7014(a), and, to the Knowledge of the Company and each Subsidiary, have taken adequate steps to ensure that they have not granted unlimited rights, as defined FAR 52.227-14(a) and Defense FAR Supplement 252.227-7013(b)(1), with respect to such restricted computer software or commercial computer software;

(o) Since January 1, 2001, neither the Company nor any Subsidiary has made any disclosure to any governmental agency pursuant to any voluntary disclosure agreement;

(p) Since January 1, 2001, to the Knowledge of the Company and each Subsidiary, the Company, the Subsidiaries, and their stockholders and Representatives have not violated any provisions of the Export Administration Regulations administered by the U.S. Department of Commerce, the International Traffic in Arms Regulations administered by the U.S. Department of State, and the various regulations administered by the Office of Foreign Assets Control of the U.S. Treasury Department. In addition, to the Knowledge of the Company and each Subsidiary, since that date, the Company and the Subsidiaries have not engaged in any commercial activities in or related to the following countries: (i) Cuba; (ii) Iran; (iii) Libya; (iv) North Korea; (v) Sudan; or (vi) Syria, including without limitation facilitating trade or financial transactions with entities located in such countries, providing services to entities located in such countries, selling or delivering products to such countries, or entering into any contract or other obligation to provide services or products to such countries or to purchase goods or services from such countries; and

(q) Since January 1, 2001, neither the Company nor any Subsidiary has been awarded a classified Government Contract.

2.26 TMG Dividend . Gelco has declared a dividend of the TMG Interests to H-G Intermediate Holdings, Inc., H-G Intermediate Holdings, Inc. has declared a dividend of the TMG Interests to the Company, and the Company has declared a dividend of the TMG Interests to the stockholders of the Company. None of the Company or any of its Subsidiaries has contributed or transferred any assets to TMG other than the “Subject Assets” (as defined in the TMG Transfer Agreement) contributed or transferred pursuant to the TMG Documents.

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2.27 Disclaimer . The Company has not made, and shall not be deemed to have made, to Parent or Merger Sub any representation or warranty other than those expressly made by it in Sections 2.01 through 2.26. In any event, the Company makes no representation or warranty to Parent or Merger Sub (i) as to merchantability, suitability or fitness for a particular purpose, or quality, with respect to any of the tangible assets owned by the Company or any of the Subsidiaries, or as to the condition or workmanship thereof or the absence of any defects therein, whether latent or patent (or any other representation or warranty referred to in Section 2-312, 2-314 or 2-315 of the Uniform Commercial Code of any applicable jurisdiction), (ii) with respect to any projections, estimates or budgets heretofore delivered to or made available to Parent or Merger Sub, or (iii) with respect to any other information or documents made available to Parent or Merger Sub except, in the case of this clause (iii) only, as expressly covered by a representation or warranty contained in Sections 2.01 through 2.26.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Parent and Merger Sub hereby jointly and severally represent and warrant to the Company as follows:

3.01 Organization . Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of their respective jurisdictions of incorporation, and have all requisite corporate power and authority to carry on their businesses as they are now being conducted. Parent owns all of the issued and outstanding shares of capital stock of Merger Sub.

3.02 Power and Authority; Effect of Agreement .

(a) Each of Parent and Merger Sub has all requisite corporate power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Parent and by Merger Sub of this Agreement and the consummation by each of them of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Parent and of Merger Sub. This Agreement has been duly and validly executed and delivered by Parent and by Merger Sub and, assuming the due authorization, execution and delivery thereof by the Company, constitutes a valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to creditors’ rights generally and (ii) is subject to general principles of equity.

(b) The execution, delivery and performance by Parent and by Merger Sub of this Agreement and the consummation by each of them of the transactions contemplated hereby will not, with or without the giving of notice or the lapse of time, or both, subject to obtaining any required Consents referred to in Section 3.05: (i) violate any provision of Law to which Parent or

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Merger Sub is subject, other than any applicable antitrust or competition Laws, (ii) violate any Order that is applicable to Parent or Merger Sub, and which is in effect on the date hereof, or (iii) conflict with or result in a breach of the provisions of or the creation of any Encumbrance under, or constitute a default or create a right of acceleration, termination or amendment under (x) the Certificate of Incorporation or Bylaws of Parent or Merger Sub, or (y) any agreement to which Parent or any of its subsidiaries, including Merger Sub, is a party, except in the case of clause (i), (ii) or (iii) of this Section 3.02(b), for violations, conflicts, breaches, creations of Encumbrances or rights, or defaults which would not materially hinder, impair or delay the consummation of the transactions contemplated hereby or have a material adverse effect on the ability of Parent or Merger Sub to perform its obligations under this Agreement or to perform any of them in a timely manner.

3.03 Litigation . There is, on the date hereof, no Litigation pending or, to Parent’s and Merger Sub’s knowledge, threatened against Parent or any of its subsidiaries, including Merger Sub, with respect to which there is a reasonable likelihood of a determination which would materially hinder, impair or delay the consummation of the transactions contemplated hereby or would have a material adverse effect on the ability of Parent or Merger Sub to perform its obligations under this Agreement. Neither Parent nor any of its subsidiaries, including Merger Sub, is, on the date hereof, subject to any outstanding Orders which would materially hinder, impair or delay the consummation of the transactions contemplated hereby or would have a material adverse effect on the ability of Parent or Merger Sub to perform its obligations under this Agreement or to perform any of them in a timely manner.

3.04 Availability of Funds . Parent has available, and Parent and Merger Sub will have available on the Closing Date, sufficient funds to enable Parent and Merger Sub to consummate the transactions contemplated by this Agreement.

3.05 Consents . No Consent from any Governmental Authority (other than pursuant to the HSR Act) is required to be obtained by Parent or Merger Sub in connection with the execution, delivery and performance by Parent and Merger Sub of this Agreement or the taking by them of any other action contemplated hereby, other than Consents the absence of which would not materially hinder, impair or delay the consummation of the transactions contemplated hereby or have a material adverse effect on the ability of Parent or Merger Sub to perform its obligations under this Agreement or to perform any of them in a timely manner.

3.06 Fees . Neither Parent nor any of Parent’s Affiliates, including Merger Sub, has paid or become obligated to pay, or will pay or become obligated to pay, any fee or commission to any broker, finder or intermediary in connection with the transactions contemplated hereby.

3.07 Disclaimer . Parent and Merger Sub have not made and shall not be deemed to have made to the Company any representation or warranty other than those expressly made by Parent or Merger Sub in Sections 3.01 through 3.06. In any event, Merger Sub and Parent make no representation or warranty to the Company with respect to any information or documents made available to the Company except as expressly covered by a representation or warranty contained in Sections 3.01 through 3.06.

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ARTICLE 4

COVENANTS OF THE COMPANY

The Company hereby covenants and agrees with Parent and Merger Sub as follows:

4.01 Cooperation by the Company . From the date hereof and prior to the Closing, the Company shall use its commercially reasonable efforts, and shall reasonably cooperate with Parent and Merger Sub, to secure all necessary Consents from Governmental Authorities as shall be required in order to enable the Company to effect the transactions contemplated hereby, and all third party Consents related to the transactions contemplated hereby that are listed in Schedule 4.01 , and shall otherwise use its commercially reasonable efforts to cause the consummation of such transactions in accordance with the terms and conditions hereof. Nothing in this Section 4.01 shall be deemed to limit in any way the obligations of the Company contained in Section 6.01.

4.02 Conduct of Business . Except as set forth in Section 4.02 of the Disclosure Schedule, as may be otherwise contemplated by this Agreement, as may be required by applicable Laws, or as Parent may otherwise consent to in writing (which consent shall not be unreasonably withheld or delayed), from the date hereof and through the Effective Time, the Company shall, and shall cause each of the Subsidiaries to comply with the following, except with respect to the TMG Business and the consummation of the TMG Distribution (which will be conducted in compliance with applicable Laws such that Company, its Subsidiaries and Parent following the Effective Time shall not have material liability for any such non-compliance that occurs prior to the Effective Time):

(a) conduct its business only in the ordinary course consistent in all material respects with past practice and applicable Laws;

(b) use its reasonable efforts (which for the purposes of this provision does not include providing additional financial remuneration) to keep available the services of its officers and employees and preserve its relationships and maintain its goodwill, subject to any disputes in good faith, with its material lenders, suppliers, customers, consultants, contractors, licensors and licensees and any other Person that is a party to a Material Contract or otherwise having material business dealings with it, such that its business will not be materially impaired;

(c) maintain its properties, machinery and equipment in sufficient operating condition and repair to enable it to conduct its business in all material respects in the manner in which its business is currently conducted, except for maintenance required by reason of fire, flood, earthquake or other acts of God;

(d) use its reasonable efforts to continue all Material existing Insurance Policies (or comparable insurance) in full force and effect;

(e) not increase the rate or amount of or adopt new wages, salary, commissions, fringe benefits, severance, change of control payments, retention payments or other

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compensation or remuneration (including, without limitation, any severance pay, retention bonus or change-in-control benefits) payable or to become payable to its directors, officers or employees or the rate or terms of any bonus, pension or other Company Employee Plan covering any of its directors, officers or employees (except that the Company and the Subsidiaries (i) may make routine, reasonable salary increases in connection with their customary employee review process, and (ii) may pay customary bonus payments and profit sharing payments consistent with past practice payable in accordance with existing bonus and profit sharing plans referred to in Section 2.14(b) of the Disclosure Schedule);

(f) not adopt any new, or amend or waive its rights under or otherwise modify any existing or outstanding, pension, profit sharing, bonus, incentive compensation, deferred compensation, stock purchase, stock option, stock appreciation rights, severance, change of control, retention or other material Company Employee Plan applicable to employees generally or to particular classes of employees generally;

(g) not make any payment of any pension, retirement allowance or other employee benefit, in each case except as permitted by Section 4.02(e) hereof, or in the ordinary course of business in accordance with its customary practices (including normal periodic performance reviews and related compensation and benefit increases and payments) or as required by any pre-existing Contract;

(h) not adopt any amendment to its Constituent Documents;

(i) not issue, sell or pledge any shares of capital stock of any class or other equity interests, or any securities convertible into capital stock of any class or other equity interests, or any rights, warrants or options to acquire any capital stock or other equity interests or convertible securities;

(j) not declare, set aside or pay any dividend or other distribution of securities or property or any combination thereof in respect of any class of its capital stock or other equity interests (other than dividends and distributions from one or more Subsidiaries to the Company or another Subsidiary);

(k) not split, combine, subdivide or reclassify any shares of its capital stock or any other equity interest or other securities;

(l) not (i) sell, lease, transfer or dispose of any assets or rights other than in the ordinary course of business consistent in all material respects with past practice, or (ii) voluntarily place any Encumbrance (other than Permitted Encumbrances) on its assets other than in the ordinary course of business;

(m) not (i) incur, assume or refinance any indebtedness for borrowed money (including capital leases), other than indebtedness for borrowed money incurred in the ordinary course of business or indebtedness for borrowed money which will be repaid at or prior to the Closing, or (ii) make any loans, advances or capital contributions to, or investments in, any Person other than in the ordinary course of business consistent in all material respects with past practice;

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(n) not (i) change any of the accounting or tax principles, practices or methods used by the Company or any Subsidiary, including the practice of accruing current liabilities or recording current assets, except as required by changes in applicable Tax Laws or GAAP, or (ii) change in any Material respect reserve amounts or policies except as required by GAAP;

(o) not enter into any collective bargaining agreement;

(p) not make or authorize any capital expenditures in excess of $250,000 per month, except in the ordinary course of business;

(q) not settle or compromise any Tax liability or agree to any adjustment of any Tax attribute or make any election with respect to Taxes, except in the ordinary course of business consistent in all material respects with past practice;

(r) not make any change in its working capital practices generally, including accelerating collections of cash or accounts receivable or deferring payments of accounts payable, as compared with its past practices;

(s) not dispose of or permit to lapse any Company Intellectual Property other than in the ordinary course of business consistent in all Material respects with past practice;

(t) not enter into any new employment agreement providing for an annual salary in excess of $25,000 and not terminable by the Company at will without any further liability or payment obligation;

(u) notify Parent of (i) the termination of employment for any reason (including by resignation) of any employee of the Company or any Subsidiary and (ii) the Company’s Knowledge of any oral or written notice of the intent of any employee to terminate employment with the Company or any Subsidiary;

(v) not hire any employee at the level of director or above or with an annual base salary in excess of $75,000, promote any employee except (i) in the ordinary course of business consistent with past practice or (ii) in order to fill a position vacated after the date of this Agreement;

(w) not form any Subsidiary, enter into any merger, or acquire any equity or other interest in any other Person;

(x) promptly notify Parent of (i) any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the transactions contemplated by this Agreement, and (ii) any Litigation commenced, or, to the Knowledge of the Company, threatened against the Company or any Subsidiary that relates to the consummation of the transactions contemplated by this Agreement;

(y) use its reasonable best efforts to ensure that no condition under any Material Contract occurs that would reasonably be expected to result in or increase the likelihood of (i) any transfer or disclosure of any Company Source Code, or (ii) a release from any escrow of any Company Source Code that has been deposited or is required to be deposited in escrow under the terms of such Material Contract;

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(z) not make a material change to any of its pricing policies (including through any pricing preference or most favored nation provision contained in any Material Contract), product return policies, product maintenance polices, service policies, product modification or upgrade policies, personnel policies or other business policies;

(aa) not enter into any Contract with any other Person (such other party to such Contract, the “ Contracting Person ”) (other than referral agreements entered into in the ordinary course of business consistent with past practice) that restricts in any material respect the right of the Company or any Subsidiary (i) to compete with any Person, (ii) to acquire any product or other asset or any services from any Person other than the Contracting Person, (iii) to solicit, hire or retain any Person other than the Contracting Person as an employee, consultant or independent contractor, (iv) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any Person other than the Contracting Person, (v) to perform services for any Person other than the Contracting Person, or (vi) to transact business with any Person other than the Contracting Person;

(bb) not enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any Material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any Material Contract;

(cc) not settle any Material Litigation (except where (i) the remedies binding on the Company in such settlement are limited to the payment of money damages that are to be fully paid prior to Closing or accrued as a liability in the Estimated NTAV Statement, and (ii) the Company advises Parent in advance of such settlement) or, without advising Parent in advance, commence any Material Litigation against a third party; or

(dd) not agree to do any of the foregoing in a manner or on terms that would be legally binding on Parent, the Company or the Subsidiaries after the Closing.

4.03 Access . From the date hereof and through the Effective Time, the Company and the Subsidiaries shall provide Parent and Merger Sub and their representatives full access to the properties, books and records and personnel of the Company and the Subsidiaries as Parent and Merger Sub may from time to time request; provided , however , that the Company and the Subsidiaries shall not be obligated to provide Parent or Merger Sub with any information relating to trade secrets, or which is commercially sensitive, or which would violate any Law or term of any Contract, or if the provision thereof would adversely affect the ability to assert attorney-client, attorney work product or other similar privilege (collectively, “ Sensitive Information ”). Any disclosure whatsoever during any investigation by Parent or Merger Sub shall not constitute an enlargement or a diminution of the representations or warranties of the Company beyond those specifically set forth in this Agreement. All information and access given to Parent and Merger Sub and their representatives shall be subject to the terms and conditions of the Confidentiality Agreement.

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4.04 No Negotiation .

(a) From the date hereof through the Effective Time, neither the Company nor any Subsidiary shall, directly or indirectly, and the Company shall cause Jupiter and the Representatives of the Company, its Subsidiaries and Jupiter not to, directly or indirectly, other than with respect solely to the TMG Business:

(i) solicit, seek, initiate, encourage, entertain or facilitate the initiation of any inquiry, proposal or offer from any Person (other than Parent) relating to a possible Acquisition Transaction;

(ii) participate in any discussions or negotiations or enter into any agreement with, or provide any non public information to, any Person (other than Parent) relating to or in connection with a possible Acquisition Transaction; or

(iii) accept any proposal or offer from any Person (other than Parent) relating to a possible Acquisition Transaction.

(b) The Company shall promptly (but not later than twenty-four (24) hours after receipt) notify Parent in writing of any material inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by the Company or any Subsidiary from the date hereof through the Effective Time. Such notice to Parent will indicate in reasonable detail the identity of the person or entity making the proposal or inquiry and the terms and conditions of such proposal or inquiry (including copies of any written proposals or inquiries or, in the case of oral proposals or inquiries, a complete written summary of the terms thereof). The Company will keep Parent promptly informed on an ongoing basis regarding the status of, any modifications to, and any communications regarding, any such proposal or inquiry.

4.05 Stockholder Approval . If necessary, the Company shall send, pursuant to Sections 228 and 262(d) of the DGCL, a written notice to all stockholders of the Company that do not approve this Agreement and the Merger informing them that this Agreement and the Merger were adopted and approved by the stockholders of the Company.

4.06 Resignation of Directors . The Company shall obtain and deliver to Parent on or before the Closing the resignation of the directors of the Company and each Subsidiary or the Stockholder Representative shall cause such directors to be terminated as directors of such entities.

4.07 Company Stockholder and Option Lists . At least three (3) Business Days prior to the Closing, the Company shall deliver to Parent (i) a list, as of the Closing Date, of the names of all holders of issued and outstanding shares of the Company’s capital stock, together with the number of such shares owned by such holder and the percentage of ownership of all outstanding capital stock of the Company represented by such shares, and (ii) a list of each Company Stock Option that will be outstanding as of the Closing Date, which sets forth with respect to each such Company Stock Option: (i) the name of the holder of such option; (ii) the total number of Class C Shares that are subject to such option and the number of Class C Shares with respect to which such option is immediately exercisable; (iii) the date on which such option was granted and the term of such option; (iv) the vesting schedule for such option; and (v) the exercise price per Class C Share purchasable under such option.

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4.08 TMG Distribution and TMG Documents .

(a) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, effect the TMG Distribution.

(b) Neither the Company nor any Subsidiary shall amend the TMG Documents without the written approval of Parent, and the Company and its Subsidiaries shall cause the TMG Documents to be in full force and effect immediately following the Closing. The Company and its Subsidiaries shall not, without the written approval of Parent (which approval shall not be unreasonably withheld or delayed), (i) enter into a TMG Interest Purchase Agreement (or any agreement that contemplates disposition of TMG or the TMG Business) on terms that are materially less favorable to the Company or its Subsidiaries than the terms of the TMG Interest Purchase Agreement attached as Exhibit E hereto, (ii) in connection with any such agreement, agree to a scope of indemnification by, or the limitations on the liability of, the Company and its Affiliates that is less favorable to the Company or its Affiliates than those set forth in the TMG Interest Purchase Agreement attached as Exhibit E hereto, or (ii) contribute or otherwise transfer any assets to TMG (other than the Subject Assets defined in the TMG Transfer Agreement).

4.09 Notification . From the date hereof through the Effective Time, the Company shall promptly notify Parent in writing of the discovery by the Company of any event, condition, fact or circumstance that would reasonably be expected to result in the failure of any of the conditions set forth in Article 7 to be satisfied.

ARTICLE 5

COVENANTS OF PARENT AND MERGER SUB

Parent and Merger Sub hereby covenant and agree with the Company as follows:

5.01 Cooperation by Parent and Merger Sub . From the date hereof and through the Effective Time, Parent and Merger Sub shall use their commercially reasonable efforts, and shall cooperate with the Company, to secure all necessary Consents from Governmental Authorities and third parties as shall be required in order to enable Parent and Merger Sub to effect the transactions contemplated hereby, and shall otherwise use their commercially reasonable efforts to cause the consummation of such transactions in accordance with the terms and conditions hereof. Nothing in this Section 5.01 shall be deemed to limit in any way the obligations of Parent and Merger Sub contained in Section 6.01.

5.02 Indemnification; Insurance; Release .

(a) Subject to the last sentence of this Section 5.02(a), from and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless to the fullest extent permitted under applicable Laws and its Certificate of Incorporation each Person who is now, or has been at any time prior to the date hereof, an officer or director of the Company or any of its present or former subsidiaries (individually, a “ Company Indemnified Party ” and collectively, the “ Company Indemnified Parties ”), against all losses, claims, damages,

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liabilities, costs or expenses (including attorneys’ fees), judgments, fines, penalties and amounts paid in settlement (collectively, “ Losses ”) incurred by a Company Indemnified Party in connection with any claim, action, suit, proceeding or investigation (an “ Action ”) in any way arising out of, pertaining to or incurred in connection with acts or omissions, or alleged acts or omissions, by any of them in their capacities as such, whether commenced, asserted or claimed before or after the Effective Time. In the event of any such Action, Parent or the Surviving Corporation shall pay on an as-incurred basis the reasonable fees and expenses of counsel to the Company Indemnified Party in advance of the final disposition of any such Action to the full extent permitted by applicable Law and its Certificate of Incorporation, upon receipt of any undertaking required by applicable Law or its Certificate of Incorporation. Notwithstanding the foregoing, the provisions of this Section 5.02(a) shall not be applicable to, and Parent and the Surviving Corporation shall have no obligation to indemnify any of the Company Indemnified Parties against, any Losses incurred by any of them in connection with any Action by any stockholder or holder of Company Stock Options or Performance Units in any way arising out of or relating to the conversion of all Class A Shares and Class B Shares into Class C Shares, the TMG Distribution, the Merger, this Agreement, the TMG Transfer Agreement, the TMG Interest Purchase Agreement, any Ancillary Document (or any document ancillary to any of the foregoing) or any of the transactions contemplated hereby or thereby (other than any Action by any stockholder or holder of Company Stock Options or Performance Units to enforce any of such Person’s rights against Parent, Merger Sub or the Surviving Corporation under, or by reason of Parent’s, Merger Sub’s or the Surviving Corporation’s breach of, this Agreement or any Ancillary Document).

(b) The Certificate of Incorporation and Bylaws of the Surviving Corporation following the Effective Time shall contain the provisions providing for exculpation of director and officer liability and indemnification set forth in Exhibit B hereto. From and after the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect such provisions in its Certificate of Incorporation and Bylaws providing for exculpation of director and officer liability and indemnification to the fullest extent permitted from time to time under the DGCL, which provisions shall not be amended except as required by applicable Law or except to make changes permitted by applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights.

(c) For a period of six (6) years after the Effective Time, the Surviving Corporation shall cause to be maintained officers’ and directors’ liability insurance covering the Company Indemnified Parties who are currently covered, in their capacities as officers and directors, by the Company’s or any Subsidiary’s existing officers’ and directors’ liability insurance policies on terms substantially no less advantageous to the Company Indemnified Parties than such existing insurance; provided , however , that Parent and the Surviving Corporation shall not be required in order to maintain or procure such coverage to pay an annual premium in excess of one and one half times the aggregate of the current annual premiums paid by the Company and the Subsidiaries for their existing coverage (the “ Premium Cap ”); and provided , further , that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Premium Cap, Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Premium Cap. Any insurance proceeds received by Parent or the Surviving Corporation from such liability insurance policies shall be paid to the covered

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Company Indemnified Party, to the extent Parent or the Surviving Corporation has not already paid the liability on behalf of the Company Indemnified Party or reimbursed the Company Indemnified Party therefor, as promptly as practicable after receipt of such proceeds by Parent or the Surviving Corporation, as the case may be.

5.03 Notification . From the date hereof through the Effective Time, Parent shall promptly notify the Company in writing of the discovery by Parent of any event, condition, fact or circumstance that would reasonably be expected to result in the failure of any of the conditions set forth in Article 8 to be satisfied.

ARTICLE 6

OTHER COVENANTS

6.01 Mutual Cooperation .

(a) From the date hereof and prior to the Closing, each party hereto shall not take any action that would reasonably be expected to delay the obtaining of, or result in not obtaining, any Consent from any Governmental Authority or third party necessary to be obtained prior to Closing. Each party hereto shall promptly consult with the other parties hereto with respect to, and (subject to the provisions of Section 6.01(e)) provide any necessary information with respect to and provide the other with copies of, all filings made by such party with any Governmental Authority or any other information supplied by such party to a Governmental Authority in connection with this Agreement and the transactions contemplated hereby. Each party hereto shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement.

(b) Without limiting the generality of Sections 4.01, 5.01 and 6.01(a), Parent and the Company shall each file or cause to be filed, promptly (but in any event within ten (10) Business Days) after the date of this Agreement, any notifications or the like required to be filed under the HSR Act and any other applicable competition Laws with respect to the transactions contemplated hereby. With respect to filings under the HSR Act, each of the Company, Parent and Merger Sub shall seek early termination of the waiting period under the HSR Act. Parent and Merger Sub shall use their commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Law (including the HSR Act) to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, obtaining all necessary waivers, consents or approvals and, to the extent necessary, defending against any Litigation challenging this Agreement or the transactions contemplated hereby (including appealing any decision that is not final and non appealable) and seeking to vacate or reverse and to lift any injunction or other legal bar to the consummation of the Merger (and, in such case, to proceed with the Merger as expeditiously as possible).

(c) Each of Parent and the Company shall (i) respond promptly to any inquiries received from any Governmental Authority, including the FTC, the Justice Department or any State Attorney General, and (ii) not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Justice Department not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, which will not be unreasonably withheld.

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(d) To the extent necessary to enable the Closing to occur and the Merger to be consummated by the date that is fifteen (15) months after signing the Agreement (the “ Outside Date ”), Parent shall offer to take (and if such offer is accepted, commit to take) any and all steps which it is capable of taking to avoid or eliminate impediments under any antitrust, competition, or trade regulation Law that may be asserted by the FTC, the Justice Department, any State Attorney General or any other Governmental Authority with respect to the Merger, including committing to and effecting by consent decree, hold separate order, or otherwise, the sale, divestiture, or disposition of such assets or businesses of Parent, the Surviving Corporation or their respective subsidiaries or otherwise offer to take or offer to commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of Parent, the Surviving Corporation or their respective subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Litigation under any antitrust or competition Law that may be asserted by the FTC, the Justice Department, any State Attorney General or any other Governmental Authority, which would otherwise have the effect of preventing or delaying the Closing Date or the consummation of the Merger. At the request of Parent, the Company shall agree to divest, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services, or assets of the Company or any of the Subsidiaries, provided that (i) any such action may be conditioned upon the consummation of the Merger and the transactions contemplated hereby and (ii) Parent shall indemnify and hold the Company harmless from and against, and shall reimburse and compensate the Company for, any loss, liability or expense suffered or incurred in connection with any such action. For the avoidance of doubt, Parent shall cause any and all regulatory impediments under antitrust or competition Law to be removed no later than the Outside Date. Without limiting the generality of the foregoing, in order to ensure that no matter relating to any antitrust or competition Law would preclude consummation of the Merger by the Outside Date, Parent shall be required, without limitation, to offer and commit to hold separate and divest all or part of the assets of the Company, without limitation as to valuation, price, or any other condition, and to agree to any other condition set forth by any Governmental Authority, including without limitation, the appointment of a Selling or Operating Trustee. If the Merger has not been consummated before the later of (x) the date six months after the signing of this Agreement and (y) the Deemed Closing Date (such later date, the “ Additional Payment Date ”), Parent shall pay the Company the amount of Two Million Dollars ($2,000,000) per month from the Additional Payment Date through and including the earlier of the Closing Date or the date that is 15 months after the signing of this Agreement (such earlier date, the “ Additional Payment Termination Date ” (payable in cash on the last business day of each such calendar month and on the Additional Payment Termination Date, prorated for any partial periods). Such amount shall be held by the Company for the benefit of the stockholders of the Company and shall be paid to the Paying Agent, together with the Merger Consideration for distribution to the stockholders in accordance with Section 1.07. Nothing in Section 6.01(b) or any other provision of this Agreement shall limit in any way the obligations of Parent under this Section 6.02(d).

(e) If any information otherwise required to be furnished pursuant hereto (including pursuant to Section 4.03 or this Section 6.01) by any party hereto (the “ Furnishing

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Party ”) constitutes or includes Sensitive Information, the Furnishing Party shall advise the other party that such information is not being furnished, and the parties shall endeavor in good faith to make alternative arrangements, if possible, with respect thereto (including, if appropriate, restricting certain personnel of the other party from having access to Sensitive Information, redaction of the Sensitive Information or the furnishing of the Sensitive Information to counsel to the other party, subject to such counsel and the other party entering into a non disclosure agreement with the Furnishing Party).

6.02 Termination of 401(k) Plan; 409A Deferred Compensation Arrangements . Notwithstanding anything herein to the contrary, the Company shall take any and all actions necessary to terminate, effective at least one day prior to Closing, all employee benefit plans sponsored by the Company or any of its Subsidiaries (or in which the Company or Subsidiaries participate) that contain a cash or deferred feature intended to qualify under Section 401(k) of the Code, including the Gelco Information Network 401(k) Investment Plan. At Closing, the Company shall deliver to Parent evidence of the termination of such 401(k) plans and reasonably satisfactory to Parent. In addition, prior to the Closing, the Company shall make such modifications to any arrangements subject to Section 409A of the Code maintained by the Company (or any of its Subsidiaries) that are reasonably requested by Parent prior to the Closing (including the termination of any such arrangements that are capable of unilateral termination by the Company), with such modifications to be effective on a date selected by the Company but not later than the day prior to the Closing Date.

6.03 New Employee Benefit Plans . As soon as administratively practicable after the Effective Time but not more than ninety (90) days following the Effective Time, to the extent set forth below, each employee of the Surviving Corporation or any of the Subsidiaries (the “ Company Employees ”) shall be immediately eligible to participate in the tax-qualified cash or deferred arrangement of Parent or one of its Subsidiaries in which similarly situated employees of Parent or its Subsidiaries participate (the “ Parent 401(k) Plan ”) in accordance with the terms of such Plan as of the date of this Agreement. The Company Employees shall only be eligible to participate in the Parent 401(k) Plan to the extent that they are not excluded from participating in such Plan by operation of the Plan’s coverage provisions. Furthermore, the Company Employees will be required to satisfy any and all eligibility requirements (with no service credit for periods prior to the Effective Time) for matching contributions, profit sharing contributions and any other company contributions (if any) under such Parent 401(k) Plan, and Parent may, in its sole discretion, amend the Parent 401(k) Plan to clarify the status of the Company Employees with respect to such contributions prior to the period of eligibility therefor. To the extent permitted by law and the terms of the Parent 401(k) Plan, Company Employees who participate in the Parent 401(k) Plan shall be permitted to voluntarily roll over their account balances (including any outstanding loan notes) from the Gelco Information Network 401(k) Investment Plan to the Parent 401(k) Plan in the form of a direct rollover. To the extent coverage under any other employee benefit plans sponsored by Parent and its subsidiaries (other than the Company Employee Plans) providing medical, dental, pharmaceutical, vision and/or disability benefits to any Company Employee (such plans, collectively, the “ New Plans ”) replaces coverage under a comparable Company Employee Plan (such replacement to be determined in the reasonable discretion of Parent) in which such Company Employee participates immediately before or at any time after the Effective Time (such plans, collectively, the “ Old Plans ”), Parent shall, to the extent permitted by law and the applicable plan and plan

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provider without undue expense, cause all waiting periods, pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Company Employee and his or her covered dependents, and, in the event that coverage under a New Plan replaces coverage under an Old Plan as of an effective date other than immediately after the end of the Old Plan’s plan year, Parent shall, to the extent permitted by law and the applicable plan and plan provider without undue expense, cause any eligible expenses incurred by such Company Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Company Employee’s participation in the corresponding New Plan begins to be given full credit under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out of pocket requirements applicable to such Company Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan as aforesaid; provided , that, if Parent is unable to effect such waiver or crediting under any such New Plan, then Parent shall continue the Company Employees’ participation in such comparable Old Plan until the earlier of (i) the date that such waiver or crediting can be effected as aforesaid, or (ii) the end of the applicable plan year covering such Old Plan.

6.04 Legal Representation . Each of the parties to this Agreement hereby agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees and Affiliates, that Fried, Frank, Harris, Shriver & Jacobson LLP has served and may serve as counsel to Jupiter and its Affiliates (collectively, the “ Seller Group ”), on the one hand, and the Company and its Subsidiaries, on the other hand, in connection with the negotiation, preparation, execution and delivery of (i) this Agreement, (ii) the TMG Transfer Agreement, and (iii) any agreement entered into by Gelco in connection with the sale of TMG, and the consummation of the transactions contemplated hereby and thereby, and that, following consummation of the transactions contemplated hereby or thereby, Fried, Frank, Harris, Shriver & Jacobson LLP (or any successor) may serve as counsel to the Seller Group or any director, member, partner, officer, employee or Affiliate of the Seller Group in connection with any Litigation, claim or obligation arising out of or relating to (i) this Agreement, (ii) the TMG Transfer Agreement, or (iii) any agreement entered into by Gelco in connection with the sale of TMG, or the transactions contemplated hereby or thereby, or any other matter notwithstanding such representation (or any continued representation) of the Company and/or any of its Subsidiaries, and each of the parties hereto hereby consents thereto and waives any conflict of interest arising therefrom, and each of such parties shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties to this Agreement further agrees to take the steps necessary to ensure any privilege attaching as a result of Fried, Frank, Harris, Shriver & Jacobson LLP’s service as counsel to the Company or any of its Subsidiaries in connection with the transactions contemplated by (i) this Agreement, (ii) the TMG Transfer Agreement, and (iii) any agreement entered into by Gelco in connection with the sale of TMG will survive the Closing and will remain in effect. In addition, if the transactions contemplated by (i) this Agreement, (ii) the TMG Transfer Agreement, and (iii) any agreement entered into by Gelco in connection with the sale of TMG are consummated, all of Fried, Frank, Harris, Shriver & Jacobson LLP’s records related to such transactions will become property of (and be controlled by) Jupiter and the Company shall not retain any copies of such records or have any access to them.

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ARTICLE 7

CONDITIONS TO PARENT’S AND MERGER SUB’S OBLIGATIONS

The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction (or waiver, where permissible) at or prior to the Closing of all of the following conditions:

7.01 Representations and Warranties . Either (i) the Deemed Closing Date shall have occurred, or (ii) the representations and warranties of the Company contained herein that are subject to “Material Adverse Effect” qualifiers shall be true and correct in all respects on and as of the Closing Date (or, if made as of a specified date, as of such specified date), and the representations and warranties of the Company contained herein that are not subject to “Material Adverse Effect” qualifiers shall be true and correct in all respects on and as of the Closing Date (or, if made as of a specified date, as of such specified date), except where the failure to be true and correct would not have a Material Adverse Effect, in each case with the same effect as though made on and as of the Closing Date (or, if made as of a specified date, as of such specified date) except as otherwise expressly contemplated hereby. Parent shall have received a certificate executed by an executive officer of the Company, dated as of the Closing Date, certifying as to the fulfillment of the conditions set forth in this Section 7.01.

7.02 No Prohibition . No Law or final, non-appealable Order that prohibits Parent or Merger Sub from consummating the transactions contemplated hereby shall be in effect as of the Closing Date. Parent and Merger Sub hereby agree that if any such Order shall be outstanding, then they will use their commercially reasonable efforts to cause such Order to be vacated.

7.03 Consents . The waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated, and all other Consents from Governmental Authorities that shall be required, if any, in order to enable Parent and Merger Sub to consummate the transactions contemplated hereby shall have been obtained (except for such Consents from Governmental Authorities the absence of which would not prohibit consummation of such transactions or render such consummation illegal).

7.04 Performance of Covenants . Each covenant and obligation that the Company is required to comply with or to perform at or prior to the Closing shall have been complied with and performed in all material respects.

7.05 Termination of 401(k) Plans . The Company and the Subsidiaries shall have terminated all employee benefit plans sponsored by the Company or the Subsidiaries (or in which the Company or Subsidiaries participate) that contain a cash or deferred feature intended to qualify under Section 401(k) of the Code, including the Gelco Information Network 401(k) Investment Plan.

7.06 Termination of Stock Option Plans . The Company and the Subsidiaries shall (a) have terminated any stock option plans of the Company or the Subsidiaries, and (b) as required by Section 1.13, have taken all actions necessary such that, effective as of the Effective

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Time, each Company Stock Option which has been granted by the Company pursuant to the Company Stock Plans shall not be assumed by Merger Sub or Parent and shall instead automatically terminate in accordance with Section 7(b) of the applicable Company Stock Plan. At Closing, the Company shall have delivered evidence of the termination of such stock option plans to Parent.

7.07 Secretary’s Certificate . Parent will also have received (a) a copy of the Certificate of Incorporation and the Bylaws of the Company (as amended through the Closing Date), certified by the Secretary of the Company as true and correct copies thereof as of the Closing, (b) a copy of the resolutions of the Board of Directors and the Company Stockholders evidencing the approval of this Agreement, the Ancillary Documents, the Merger and the other matters contemplated hereby and thereby, certified by the Secretary of Company as true and correct copies thereof as of the Closing, and (c) good standing certificates issued by the Delaware Secretary of State and each of the states or other jurisdictions wherein the Company is qualified to do business dated within ten (10) days of the Closing.

7.08 No Litigation . Aside from any litigation or proceeding under applicable antitrust and competition Laws, no litigation or proceeding shall be pending against the Company which is likely to have the effect of permanently enjoining or preventing the Company from consummating the Merger in accordance with and subject to the terms of this Agreement and the Ancillary Agreements, and no such injunction shall be outstanding.

7.09 Opinion of Company’s Counsel . Parent will have received from Fried, Frank, Harris, Shriver & Jacobson LLP, counsel to the Company, an opinion dated as of the Closing Date substantially in the form attached hereto as Exhibit F .

7.10 TMG Distribution . The TMG Distribution shall have occurred in accordance with Section 4.08.

ARTICLE 8

CONDITIONS TO THE COMPANY’S OBLIGATIONS

The obligation of the Company to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction (or waiver, where permissible) at or prior to the Closing of all of the following conditions:

8.01 Representations and Warranties of Parent and Merger Sub .

(a) The representations and warranties of Parent and Merger Sub contained in this Agreement shall be true, complete and accurate in all respects as of the date of this Agreement, except for those representations and warranties given as of a particular date, which shall be true and correct in all respects as of such date, except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a material adverse effect on Parent; provided , however , that, for purposes of determining the truth, completeness and accuracy of such representations and warranties, all “material adverse effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded; and

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(b) The representations and warranties of Parent and Merger Sub contained in this Agreement shall be true, complete and accurate in all respects as of the Closing Date as if made on and as of the Closing Date, except for those representations and warranties given as of a particular date, which shall be true and correct in all respects as of such date, except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a material adverse effect on Parent; provided , however , that, for purposes of determining the accuracy of such representations and warranties, all “material adverse effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded.

8.02 No Prohibition . No Law or final, non-appealable Order that prohibits the Company from consummating the transactions contemplated hereby shall be in effect as of the Closing Date. The Company hereby agrees that if any such Order shall be outstanding, then it will use its commercially reasonable efforts to cause such Order to be vacated.

8.03 Consents . The waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated, and all other Consents from Governmental Authorities that shall be required, if any, in order to enable the Company to consummate the transactions contemplated hereby shall have been obtained (except for such Consents, the absence of which would not prohibit consummation of such transactions or render such consummation illegal).

8.04 Performance of Covenants . All of the covenants and obligations that Parent and Merger Sub are required to comply with or to perform at or prior to the Closing shall have been complied with and performed in all material respects.

ARTICLE 9

TERMINATION

9.01 Termination . This Agreement may be terminated, by written notice, at any time prior to the Closing:

(a) by the mutual written consent of Parent and the Company;

(b) by Parent or the Company, if the Closing shall not have occurred on or before the Outside Date; provided , however , that the right to terminate this Agreement under this Section 9.01(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement (including such party’s obligations set forth in Section 6.01) has been the cause of, or has resulted in, the failure of the Closing to occur on or before the Outside Date;

(c) by Parent or the Company, if there shall have been a material breach of any of the covenants or agreements contained herein on the part of the other party, which breach is not

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cured within thirty (30) days following written notice given by the terminating party to the party committing such breach; provided , however , that the right to terminate this Agreement under this Section 9.01(c) shall not be available if, at the time, the terminating party is in material breach of any of its covenants or agreements contained herein;

(d) by Parent, if the condition set forth in Section 7.01 is incapable of being met by the Outside Date; or

(e) by the Company, if the condition set forth in Section 8.01 is incapable of being met by the Outside Date.

9.02 Termination Procedures . If Parent wishes to terminate this Agreement pursuant to Section 9.01(b), (c) or (d), Parent shall deliver to the Company a written notice stating that Parent is terminating this Agreement and setting forth a brief description of the basis on which Parent is terminating this Agreement. If the Company wishes to terminate this Agreement pursuant to Section 9.01(b), (c) or (e), the Company shall deliver to Parent a written notice stating that the Company is terminating this Agreement and setting forth a brief description of the basis on which the Company is terminating this Agreement.

9.03 Effect on Obligations . Termination of this Agreement pursuant to this Article 9 shall terminate all rights and obligations of the parties hereunder and none of the parties shall have any liability to any of the other parties hereunder, except that Article 12, the last sentence of Section 4.03, the Confidentiality Agreement and this Section 9.03 shall remain in effect; provided , however , that neither the Company nor Parent shall be relieved of any obligation or liability arising from its prior breach of a representation, warranty, covenant or obligation or the failure of any of its representations or warranties to be true and correct as of the date of this Agreement or the particular date of such representation or warranty if such date is other than the date of this Agreement or any update thereof as of the Closing Date.

ARTICLE 10

SURVIVAL; INDEMNIFICATION

10.01 Survival of Representations, Warranties and Covenants .

(a) The representations and warranties made by the Company (including the representations and warranties set forth in Article 2), the covenants made by the Company with respect to actions to be taken at or prior to the Closing and the indemnity set forth in Section 10.02 shall survive the Closing and shall expire eighteen (18) months from the earlier of the Closing Date or the Deemed Closing Date; provided , however , that if, at any time prior to the date that is eighteen (18) months from the earlier of the Closing Date or the Deemed Closing Date, any Parent Indemnitee (acting in good faith) delivers to the Stockholder Representative a written notice alleging the existence of an inaccuracy in or a breach of any of the representations and warranties made by the Company or covenants made by the Company with respect to actions to be taken prior to the Closing (and setting forth in reasonable detail the basis for such Parent Indemnitee’s belief that such an inaccuracy or breach may exist) or the likely assertion of a claim by a taxing authority based on a specific written or oral threat made by such taxing authority

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related to Taxes for a Pre-Closing Period pursuant to a Tax audit, examination, compliance check or similar procedure that is ongoing and asserting a claim for recovery under Section 10.02 based on such alleged inaccuracy or breach or likely Tax, then the claim asserted in such notice shall survive the date that is eighteen (18) months from the earlier of the Closing Date or the Deemed Closing Date until such time as such claim is fully and finally resolved.

(b) The representations and warranties made by Parent and Merger Sub and the covenants made by Parent and Merger Sub with respect to actions to be taken at or prior to the Closing and the indemnity set forth in Section 10.04 shall survive the Closing and shall expire on the date that is eighteen (18) months from the earlier of the Closing Date or the Deemed Closing Date; provided , however , that if, at any time prior to the date that is eighteen (18) months from the earlier of the Closing Date or the Deemed Closing Date, any Company Indemnitee (acting in good faith) delivers to Parent or the Merger Sub a written notice alleging the existence of an inaccuracy in or a breach of any of the representations and warranties made by Parent or Merger Sub or covenants made by Parent or Merger Sub with respect to actions to be taken prior to the Closing (and setting forth in reasonable detail the basis for such Company Indemnitee’s belief that such an inaccuracy or breach may exist) and asserting a claim for recovery under Section 10.04 based on such alleged inaccuracy or breach, then the claim asserted in such notice shall survive the date that is eighteen (18) months from the earlier of the Closing Date or the Deemed Closing Date until such time as such claim is fully and finally resolved.

(c) The representations, warranties, covenants and obligations of the Company and the rights and remedies that may be exercised by the Parent Indemnitees shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Parent Indemnitees or any of their Representatives.

(d) The representations, warranties, covenants and obligations of Parent and the Merger Sub, and the rights and remedies that may be exercised by the Company Indemnitees shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Company Indemnitees or any of their Representatives.

10.02 Indemnification of Parent Indemnitees .

(a) From and after the Effective Time (but subject to Sections 10.01(a), 10.02(b) and 10.05), each of the Parent Indemnitees shall be held harmless and indemnified from and against, and compensated and reimbursed for, any Damages which are directly or indirectly suffered or incurred by any of the Parent Indemnitees or to which any of the Parent Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third party claim) and which arise from or as a result of, or are directly or indirectly connected with: (i) any inaccuracy in or breach of any representation or warranty by the Company set forth in Article 2; (ii) any breach of any covenant, agreement or obligation of the Company in this Agreement; (iii) Taxes that relate to Pre-Closing Periods and that portion of a Straddle Period that ends on the Effective Time, to the extent that such Taxes have not been taken into account for purposes of determining the Merger Consideration and all adjustments thereto pursuant to this Agreement (and for the avoidance of doubt, notwithstanding anything else in this Agreement, a decrease in the amount or limitation on the availability of Tax any net operating

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loss or capital loss or net operating loss carryforward or capital loss carryforward shall not be treated as Damages); (iv) any payment required to be made to any Dissenting Stockholder in excess of the Merger Consideration allocable to such Dissenting Stockholder pursuant to this Agreement; (v) any (A) failure by TMG to satisfy valid indemnification claims made under the TMG Transfer Agreement, (B) obligation of the Company or of its Subsidiaries to indemnify any other Person in connection with the TMG Interest Transfer Agreement or otherwise in connection with the TMG Distribution, (C) liability of the Company or of its Subsidiaries for TMG Excluded Liabilities to the extent that they were not accrued for in full in the Final NTAV, and (D) breach of any covenant or agreement in the TMG Transfer Agreement or the TMG Interest Transfer Agreement by the Company or any of its Subsidiaries prior to the Closing; and (vi) any other amount Parent is entitled to recover from the Escrow Account pursuant to this Agreement or any Ancillary Document. For avoidance of doubt, the indemnification of Parent Indemnitees hereunder shall not be made by the Company, Parent or any other Affiliate of Parent. The Parent Indemnitees may assert any claims against, and have any Damages satisfied from, the Indemnity Escrow Account and/or TMG Escrow Account, as applicable, reducing the Company Stockholders’ interest therein, in accordance with the Escrow Agreement.

(b) Notwithstanding anything to the contrary herein, except as set forth in this Section 10.02(b), (i) the amount recoverable by the Parent Indemnitees for Damages under this Article 10 other than under Section 10.02(a)(v) shall not exceed, in the aggregate, Fifteen Million Dollars ($15,000,000) (the “ Indemnification Cap ”), (ii) the amount recoverable by the Parent Indemnitees for Damages under Section 10.02(a)(v) shall not exceed, in the aggregate, Five Hundred Thousand Dollars ($500,000), and (iii) the Parent Indemnitees shall not be entitled to recover any amount for indemnification claims pursuant to Section 10.02(a) until such time as the total amount of all Damages that have been directly or indirectly suffered or incurred by any one or more of the Parent Indemnitees, or to which any one or more of the Parent Indemnitees has or have otherwise become subject, exceeds One Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate (the “ Basket ”), at which time the Parent Indemnitees, subject to the provisions of this Section 10.02(b), shall be entitled to be indemnified against, and compensated and reimbursed for, the amount of such Damages exceeding the Basket. The limitation in (iii) above shall not apply (A) with respect to the Final NTAV Shortfall, (B) with respect to Section 10.02(a)(v), and (C) to any payment required to be made to any Dissenting Stockholders in excess of the Merger Consideration allocable to such Dissenting Stockholders pursuant to this Agreement. The Parent Indemnitees’ recovery for Damages pursuant to the indemnification provisions of this Section 10.02 shall be limited to recovery from the Indemnity Escrow Account or the TMG Escrow Account, as applicable, pursuant to the Escrow Agreement, which shall be the Parent Indemnitees’ sole source of recovery for indemnification claims made under this Article 10, and no claim for indemnification shall be asserted against the stockholders of the Company.

10.03 Taxes .

(a) Parent and the Stockholder Representative shall, to the extent permitted by applicable Law, cause each Tax period of the Company that begins on or before the Closing Date to end as of the end of the day on the Closing Date.

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(b) The Parent shall cause to be prepared and timely filed all Tax Returns of the Company for Tax periods that end on or before the Closing Date (a “ Pre-Closing Period ”) that are due (taking into account extensions) after the Closing Date and all Straddle Periods. All such Pre-Closing Period Tax Returns and Tax Returns relating to Straddle Periods shall be prepared on a basis consistent with the past practices of the Company, unless otherwise required by Law. The Parent shall provide copies of all such Pre-Closing Period Tax Returns and Tax Returns relating to Straddle Periods at least fifteen (15) days before filing for Stockholder Representative’s review and comment. The Stockholder Representative shall have ten (10) days to comment on each such Tax Return described in this Section 10.03(b). If the Stockholder Representative delivers written comments to the Parent within the applicable ten-day period, the Parent shall consider such written comments in good faith, and Parent and the Stockholder Representative shall negotiate in good faith in order to resolve any material disputes with respect to such Tax Return.

(c) For purposes of computing NTAV, the following rules of apportionment shall apply: (i) real and personal property Taxes for the taxable period that includes the Closing Date shall be prorated between the stockholders of the Company and Parent, with such Taxes being borne by the stockholders based on the ratio of the number of days in the relevant period prior to and including the Closing Date to the total number of days in the actual taxable period with respect to which such Taxes are assessed, and being borne by Parent based on the ratio of the number of days in the relevant period after the Closing Date to the total number of days in the actual taxable period with respect to which such Taxes are assessed, irrespective of when such Taxes are due, become a lien or are assessed; (ii) sales and use Tax shall be deemed to accrue as property is purchased, sold, used, or transferred; and (iii) all other Taxes shall accrue in accordance with GAAP, except for income Tax or Tax measured by receipts, which shall accrue by way of a closing of the books, as though the relevant taxable period had ended on the Closing Date. In addition, for purposes of computing NTAV there shall not be taken into account any Taxes arising on the Closing Date attributable to any actions or events, not in the ordinary course of business, that take place (or are deemed to take place) after the Closing on the Closing Date (including any deemed sale of assets resulting from an election under Section 338 of the Code or any similar provision of state, local or foreign Law).

(d) Parent and the Stockholder Representative shall reasonably cooperate with each other in a timely manner in the preparation and filing of any Tax Returns and the conduct of any Tax audit or other Tax proceeding. Each Party shall execute and deliver such powers of attorney and make available such other documents as are reasonably necessary to carry out the intent of this Section 10.03.

(e) The Company shall retain copies of all reports, returns or records relating to Pre-Closing Periods and Straddle Periods (including, without limitation, supporting schedules and data) until such time as Parent is no longer entitled to any indemnification for Taxes pursuant to Section 10.02.

(f) No amended Tax Return of the Company with respect to any Pre-Closing or Straddle Period shall be filed unless required by Law until the expiration of the Escrow Period.

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10.04 Indemnification of Company Indemnitees .

(a) From and after the Effective Time (but subject to Sections 10.01(b), 10.04(b) and 10.05), Parent shall hold harmless and indemnify each of the Company Indemnitees from and against, and shall compensate and reimburse each of the Company Indemnitees for, any Damages which are directly or indirectly suffered or incurred by any of the Company Indemnitees or to which any of the Company Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third party claim) and which arise from or as a result of, or are directly or indirectly connected with: (i) any inaccuracy in or breach of any representation or warranty set forth in Article 3; or (ii) any breach of any covenant, agreement or obligation of Parent or Merger Sub in this Agreement.

(b) Notwithstanding anything to the contrary herein, (i) the aggregate liability of Parent for Damages under this Article 10 shall not exceed the Indemnification Cap, and (ii) Parent shall not be required to make any indemnification payment pursuant to Section 10.04(a) until such time as the total amount of all Damages that have been directly or indirectly suffered or incurred by any one or more of the Company Indemnitees, or to which any one or more of the Company Indemnitees has or have otherwise become subject, exceeds the Basket, in the aggregate, at which time the Company Indemnitees, subject to the provisions of this Section 10.04(b), shall be entitled to be indemnified against and compensated and reimbursed for the amount of such Damages exceeding the Basket.

10.05 Satisfaction of Indemnification Claim .

(a) Any indemnification payments hereunder shall be treated for all Tax purposes as adjustments to the Merger Consideration.

(b) With respect to any claim for indemnification hereunder, each Parent Indemnitee or Company Indemnitee, as applicable, shall use its commercially reasonable efforts to mitigate all Damages upon and after becoming aware of any event or circumstance that gives rise to any Damages with respect to which indemnification may be sought hereunder prior to making any claim for indemnification under this Agreement; provided that the reasonable costs of such mitigation efforts shall be included in the Damages.

(c) No Parent Indemnitee nor any Company Indemnitee shall be entitled to recover, and no Damages suffered by any Parent Indemnitee or Company Indemnitee shall include, and no Indemnitor shall be liable under any circumstances for any Damages that relates directly or indirectly to: the passage of, or any change in, after the Closing, any Laws, including any increase in the rates of Taxes or any withdrawal or relief from any Taxes not actually in effect at the Closing Date.

(d) In the event any Parent Indemnitee is entitled to indemnification under this Article 10, such Parent Indemnitee shall receive a cash payment from the TMG Escrow Account or the Indemnity Escrow Account, as applicable, in the amount for which such Parent Indemnitee is entitled to be indemnified. In the event Parent shall have any liability to any Company Indemnitee under this Article 10, such Damages shall be paid to the Company Indemnitee in a cash payment. In calculating the amount of any Damages hereunder, the amount of Damages shall be reduced by any net Tax benefit actually realized by the Indemnitee during the Escrow Period by reason of the accrual, incurrence or payment of any such Damages (including, where

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Parent is the Indemnitee any such benefit realized by Parent, the Company or its Affiliates). In no event shall any stockholder of the Company have any liability to any Parent Indemnitee; provided , however , that nothing herein shall limit the Parent Indemnitees’ ability to satisfy claims from the TMG Escrow Account or the Indemnity Escrow Account.

10.06 Defense of Third Party Claims .

(a) The Indemnitee will give prompt written notice to the Indemnitor of any claim made by a third party against the Indemnitee which such Indemnitee discovers or of which it receives notice after the Closing and which might give rise to a claim by it for indemnification under Article 10 hereof, stating the nature, basis and (to the extent known) amount thereof, which written notice shall be accompanied by a copy of the written notice of the third party claimant to the Indemnitee asserting the third party claim, if the Indemnitee has received such notice from the third party claimant; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification except to the extent such failure shall have prejudiced the rights of the Indemnitor or the ability of the Indemnitor to defend such claim. The Indemnitee shall deliver to the Indemnitor copies of all other notices and documents (including court papers) received by the Indemnitee relating to the third party claim.

(b) In case of any claim or suit by a third party with respect to which a Parent Indemnitee may be entitled to indemnification under this Article 10 (including, without limitation, a Tax audit or proceeding), the Indemnitor shall be entitled to participate therein, and, to the extent desired by it (but subject to the next sentence), to assume and direct the defense thereof (including to conduct any proceedings or settlement negotiations) and to employ counsel of its own choosing to defend any such claim or demand asserted against the Indemnitee; provided that Indemnitor shall conduct such defense in good faith and with appropriate diligence; provided further that the Indemnitee may continue to participate in the defense of such claim at such Indemnitee’s expense (it being understood that the Indemnitor shall control such defense in such circumstances). Notwithstanding any other provision hereof, with respect to any Major Claim, Parent may, by written notice to the Stockholder Representative, elect to assume and direct the defense of such Major Claim and to employ counsel of its own choosing to defend any such Major Claim or demand asserted against the Indemnitee (it being understood that Parent shall control such defense in such circumstances). If Parent elects to assume and direct the defense of any Major Claim, then, irrespective of any other provision hereof, Parent shall not be entitled to indemnification for 50% of its defense costs and expenses incurred in connection with such Major Claim (e.g., attorneys’, other professional’s and expert’s fees), which unindemnifiable costs and expenses shall be borne by Parent.

(c) In case of any claim or suit by a third party with respect to which a Company Indemnitee may be entitled to indemnification under this Article 10, the Indemnitor shall be entitled to participate therein, and, to the extent desired by it, to assume and direct the defense thereof (including to conduct any proceedings or settlement negotiations) and to employ counsel of its own choosing to defend any such claim or demand asserted against the Indemnitee; provided that Indemnitor shall conduct such defense in good faith and with appropriate diligence; provided further that the Indemnitee may continue to participate in the defense of such claim at such Indemnitee’s expense (it being understood that the Indemnitor shall control such defense in such circumstances).

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(d) Prior to the time the Indemnitee is notified by the Indemnitor as to whether the Indemnitor will assume the defense of such third party claim, the Indemnitee shall take all steps reasonably necessary to timely preserve the collective rights of the parties with respect to such third party claim, including responding timely to legal process. If the Indemnitor is not entitled to, has declined to, or does not assume control of the defense of such a third party claim (or has failed to notify the Indemnitee of its election to defend such third party claim) within thirty (30) days of the Indemnitor’s receipt of notice of such claim, then the Indemnitee may notify the Indemnitor in writing that it elects to employ separate counsel at the Indemnitor’s expense, in which case, the Indemnitor shall not have the right to assume the defense of such claim on behalf of the Indemnitee (it being understood that the Indemnitee shall control such defense in all such circumstances). After notice from the Indemnitor to the Indemnitee of the election to assume the defense of such a claim in accordance with Section 10.06(b) or 10.06(c), as applicable, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof, unless the Indemnitor is not entitled, or has declined, to actually assume the defense thereof following notice of such election as provided herein. Regardless of which party assumes the defense of such a third party claim, the Indemnitee and the Indemnitor will render to each other such assistance as may reasonably be required of each other in order to insure proper and adequate defense of any such third party claim, which shall include providing records and information that are relevant to such claim and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Regardless of whether or not the Indemnitor actually assumes the defense of the Indemnitee, the Indemnitee will not make any admission of liability, settlement, compromise or discharge of any such claim or consent to the entry of any judgment without the written consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed, or unless such settlement, compromise or discharge includes the unconditional release of the Indemnitor. Further, in the case where the Indemnitor assumes the defense of any such third party claim, the Indemnitor shall not: (i) make an admission of liability; or (ii) make any settlement, compromise or discharge of any such claim or consent to the entry of judgment which (a) does not include the unconditional release of the Indemnitee or (b) contains any provisions or remedies binding upon the Indemnitee other than the payment of money damages that are to be fully reimbursed by the Indemnitor (in the case of a claim by a Parent Indemnitee, without recourse to any portion of any escrow subject to any outstanding claim for indemnification), in each case of clauses (a) and (b) without the written consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed.

10.07 Insurance Proceeds and Other Recoveries . At the request of the Stockholder Representative, the Company shall make a claim under any insurance policy of the Company in effect at the Effective Time (and still available to cover any Damages) relating to Damages for which Parent is entitled to indemnification under Section 10.02. If the insurer under such policy either pays or agrees to pay (and actually pays during the Escrow Period) any amount with respect to such claim within ninety (90) days from the date that such claim is made to the insurer, then the amount of Damages for which the Parent Indemnitees have made claims against the Indemnity Escrow Account or the TMG Escrow Account hereunder shall be reduced by the amount of such payment. In the event that any Parent Indemnitee is entitled to indemnification for Damages pursuant to a claim made under Section 10.02, and such Parent

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Indemnitee receives any proceeds, benefits or recoveries from any third party with respect to such claim prior to payment of such claim from the Indemnity Escrow Account or the TMG Escrow Account, then the amount of Damages for which the Parent Indemnitee shall be entitled to be indemnified under Section 10.02 shall be reduced by the amount of any such proceeds, benefits or insurance proceeds, and if such Parent Indemnitee receives any proceeds, benefits or recoveries from any third party with respect to such claim for Damages after payment of such claim from the Indemnity Escrow Account or the TMG Escrow Account, then such Parent Indemnitee shall pay the amount of such proceeds, benefits or recoveries to the Stockholder Representative for distribution to the stockholders of the Company. This Section 10.07 shall not obligate the Surviving Corporation or any Parent Indemnitee to continue any insurance policies of the Company after the Effective Time or to take any action with respect to any claims made by any Parent Indemnitee including, without limitation, the pursuit of insurance claims or the institution of proceedings against any third party.

10.08 Remedies . To the extent that the Closing occurs, the foregoing indemnification provisions in this Article 10 shall provide the sole and exclusive remedy any party may have for any breach of a covenant, agreement, representation or warranty set forth in this Agreement; provided, however , that nothing in this Agreement or any Ancillary Document shall preclude any Person from bringing, or in any way limit a Person’s ability to bring, an action or recover for fraud against any Person or in any way limit the loss recoverable by such Person in such action; and provided, further , that this Section 10.08 shall in no way limit a party’s ability to enforce its rights in the event that the Closing does not occur.

ARTICLE 11

DEFINITIONS; RULES OF CONSTRUCTION

11.01 Definitions . For purposes of this Agreement, the following terms shall have the following meanings:

“ Accounting Expert ” has the meaning given to it in Section 1.09(d).

“ Acquisition Transaction ” means any transaction or series of transactions involving:

(a) any merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of securities, recapitalization, tender offer, exchange offer or other similar transaction (i) in which the Company or any Subsidiary is a constituent corporation, (ii) in which a Person or “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder) of Persons directly or indirectly acquires beneficial or record ownership of securit