AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

by and among

DELL INTERNATIONAL INCORPORATED

DII — ELEPHANT INC.

and

EQUALLOGIC, INC.

Dated as of November 4, 2007

Table of Contents

Page

TABLE OF CONTENTS

						Page
ARTICLE I THE MERGER							1
		1.1		Effective Time of the Merger			1
		1.2		Closing			2
		1.3		Effects of the Merger			2
		1.4		Directors and Officers of the Surviving Corporation			2
ARTICLE II CONVERSION OF SECURITIES							2
		2.1		Conversion of Capital Stock			2
		2.2		Exchange Fund			4
		2.3		Company Stock Plans; Company Warrants			5
		2.4		Dissenting Shares			6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY							7
		3.1		Organization, Standing and Power			7
		3.2		Capitalization			8
		3.3		Subsidiaries			8
		3.4		Authority; No Conflict; Required Filings and Consents			8
		3.5		SEC Filing; Financial Statements			8
		3.6		Absence of Certain Changes			8
		3.7		No Undisclosed Liabilities			8
		3.8		Taxes			8
		3.9		Owned and Leased Real Properties			8
		3.10		Intellectual Property			8
		3.11		Contracts			8
		3.12		Litigation			8
		3.13		Environmental Matters			8
		3.14		Employee Benefit Plans			8
		3.15		Compliance With Laws			8
		3.16		Permits			8
		3.17		Insurance			8
		3.18		Brokers			8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER AND THE TRANSITORY SUBSIDIARY							8
		4.1		Organization, Standing and Power			8
		4.2		Authority; No Conflict; Required Filings and Consents			8
		4.3		Litigation			8
		4.4		Operations of the Transitory Subsidiary			8
		4.5		Financing			8
		4.6		Condition of the Business			8

Table of Contents

(continued)

						Page
ARTICLE V CONDUCT OF BUSINESS							8
		5.1		Covenants of the Company			8
		5.2		Confidentiality			8
ARTICLE VI ADDITIONAL AGREEMENTS							8
		6.1		No Solicitation			8
		6.2		Stockholder Consent or Approvals			8
		6.3		Access to Information			8
		6.4		Legal Conditions to the Merger			8
		6.5		Public Disclosure			8
		6.6		Indemnification of Directors and Officers			8
		6.7		Notification of Certain Matters			8
		6.8		Service Credit			8
		6.9		Termination of 401(k) Plan			8
ARTICLE VII CONDITIONS TO MERGER							8
		7.1		Conditions to Each Party's Obligation To Effect the Merger			8
		7.2		Additional Conditions to Obligations of the Buyer and the Transitory Subsidiary			8
		7.3		Additional Conditions to Obligations of the Company			8
ARTICLE VIII TERMINATION AND AMENDMENT							8
		8.1		Termination			8
		8.2		Effect of Termination			8
		8.3		Fees and Expenses			8
		8.4		Amendment			8
		8.5		Extension; Waiver			8
ARTICLE IX MISCELLANEOUS							8
		9.1		Notices			8
		9.2		Entire Agreement			8
		9.3		No Third Party Beneficiaries			8
		9.4		Assignment			8
		9.5		Severability			8
		9.6		Counterparts and Signature			8
		9.7		Interpretation			8
		9.8		Governing Law			8
		9.9		Remedies			8
		9.10		Submission to Jurisdiction			8
		9.11		Disclosure Schedules			8
		9.12		Company's Knowledge			8
		9.13		Non-survival of Representations, Warranties and Agreements			8

TABLE OF DEFINED TERMS

		Reference in
Terms		Agreement
Acquisition Proposal		Section 6.1(e)
Affiliate		Section 3.2(c)
Agreement		Preamble
Antitrust Laws		Section 6.4(b)
Antitrust Order		Section 6.4(b)
Bankruptcy and Equity Exception		Section 3.4(a)
Business Day		Section 1.2
Buyer		Preamble
Buyer 401(k) Plan		Section 6.9
Buyer Common Stock		Section 4.1
Buyer Disclosure Schedule		Article IV
Buyer Employee Plan		Section 6.8
Buyer Material Adverse Effect		Section 4.1
Certificates		Section 2.2(a)
Certificate of Merger		Section 1.1
Closing		Section 1.2
Closing Date		Section 1.2
Code		Section 2.2(f)
Common Merger Consideration		Exhibit A
Company		Preamble
Company Balance Sheet		Section 3.5(b)
Company Board		Section 3.4(a)
Company Common Stock		Section 2.1(b)
Company Disclosure Schedule		Article III
Company Employee Plans		Section 3.14(a)
Company Indemnified Parties		Section 6.6(a)
Company Intellectual Property		Section 3.10(b)
Company Leases		Section 3.9(b)
Company Material Adverse Effect		Section 3.1
Company Material Contracts		Section 3.11(a)
Company Permits		Section 3.16
Company Preferred Stock		Section 3.2(a)
Company SEC Document		Section 3.5(a)
Company Series A Preferred Stock		Section 2.1(b)
Company Series A-1 Preferred Stock		Section 2.1(b)
Company Series B Preferred Stock		Section 2.1(b)
Company Series B-1 Preferred Stock		Section 2.1(b)
Company Series C Preferred Stock		Section 2.1(b)
Company Stock		Section 2.1(b)
Company Stock Options		Section 2.3(a)
Company Stock Plan		Section 2.3(a)
Company Stockholder Approval		Section 3.4(a)

		Reference in
Terms		Agreement
Company Stockholders’ Meeting		Section 6.2(a)
Company Warrant		Section 2.3(b)
Company Voting Proposal		Section 3.4(a)
Company’s Knowledge		Section 9.12
Confidentiality Agreement		Section 5.2
Continuing Employees		Section 6.8
Dissenting Shares		Section 2.4(a)
DGCL		Preamble
Effective Time		Section 1.1
Employee Benefit Plan		Section 3.14(a)
Environmental Law		Section 3.13(b)
ERISA		Section 3.14(a)
ERISA Affiliate		Section 3.14(a)
Exchange Agent		Section 2.2(a)
Exchange Fund		Section 2.2(a)
Foreign Employee Benefit Plan		Section 3.14(h)
GAAP		Section 3.5(b)
Governmental Entity		Section 3.4(c)
Hazardous Substance		Section 3.13(c)
HSR Act		Section 3.4(c)
Intellectual Property		Section 3.10(a)
IRS		Section 3.14(b)
Liens		Section 3.4(b)
Merger		Preamble
Merger Consideration		Exhibit A
Open Source Materials		Section 3.10(f)
Option Consideration		Section 2.3(a)
Outside Date		Section 8.1(b)
Pre-Closing Period		Section 5.1
Representatives		Section 6.1
SEC		Section 3.5(b)
Securities Act		Section 3.2(c)
Series A Preferred Merger Consideration		Exhibit A
Series A-1 Preferred Merger Consideration		Exhibit A
Series B Preferred Merger Consideration		Exhibit A
Series B-1 Preferred Merger Consideration		Exhibit A
Series C Preferred Merger Consideration		Exhibit A
Subsidiary		Section 3.3(a)
Subsidiary Employee Plans		Section 3.14(h)
Surviving Corporation		Section 1.3
Taxes		Section 3.8(a)
Tax Returns		Section 3.8(a)
Third Party Intellectual Property		Section 3.10(b)

		Reference in
Terms		Agreement
Transitory Subsidiary		Preamble
Warrant Consideration		Section 2.3(b)

AGREEMENT AND PLAN OF MERGER

     THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is entered into as of November 4, 2007, by and among DELL INTERNATIONAL INCORPORATED, a Delaware corporation (the “Buyer”), DII — ELEPHANT INC., a Delaware corporation and a wholly owned subsidiary of the Buyer (the “Transitory Subsidiary”), and EQUALLOGIC, INC., a Delaware corporation (the “Company”).

     WHEREAS, the Boards of Directors of the Buyer and the Company deem it advisable and in the best interests of each corporation and their respective stockholders that the Buyer acquire the Company in order to advance the long-term business interests of the Buyer and the Company; and

     WHEREAS, the acquisition of the Company shall be effected through a merger (the “Merger”) of the Transitory Subsidiary with and into the Company in accordance with the terms of this Agreement and the Delaware General Corporation Law (the “DGCL”), as a result of which the Company shall become a wholly owned subsidiary of the Buyer; and

     WHEREAS, the holders of the requisite number of shares of Company Stock (as hereinafter defined) outstanding on the date of this Agreement shall, immediately after the execution hereof, by written consent, deliver the Company Stockholder Approval (as hereinafter defined) by approving and adopting the Company Voting Proposal (as hereinafter defined); and

     WHEREAS, concurrent with the execution and delivery of this Agreement, and as a material inducement to Buyer and Transitory Subsidiary to enter into this Agreement, Paula A. Long has executed and delivered to Buyer a Nondisclosure and Noncompetition Agreement to be effective upon the Closing;

     NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer, the Transitory Subsidiary and the Company agree as follows:

ARTICLE I

     1.1 Effective Time of the Merger . Subject to the provisions of this Agreement, prior to the Closing, the Buyer and the Company shall jointly prepare, and immediately following the Closing, the Surviving Corporation shall cause to be filed with the Secretary of State of the State of Delaware, a certificate of merger (the “Certificate of Merger”) in such form as is required by, and executed in accordance with, the relevant provisions of the DGCL and shall make all other filings or recordings required under the DGCL. The Merger shall become effective upon the filing of the Certificate of Merger with the Secretary of State of the State of Delaware or at such later time as is established by the Buyer and the Company and set forth in the Certificate of Merger (the “Effective Time”).

     1.2 Closing . The closing of the Merger (the “Closing”) shall take place at 10:00 a.m., Eastern time, on a date to be specified by the Buyer and the Company (the “Closing Date”), which shall be no later than the second Business Day after satisfaction or waiver of the conditions set forth in Article VII (other than delivery of items to be delivered at the Closing and other than satisfaction of those conditions that by their nature are to be satisfied at the Closing, it being understood that the occurrence of the Closing shall remain subject to the delivery of such items and the satisfaction or waiver of such conditions at the Closing), at the offices of Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109, unless another date, place or time is agreed to in writing by the Buyer and the Company. For purposes of this Agreement, a “Business Day” shall be any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions located in Boston, Massachusetts are permitted or required by law, executive order or governmental decree to remain closed.

     1.3 Effects of the Merger . At the Effective Time (a) the separate existence of the Transitory Subsidiary shall cease and the Transitory Subsidiary shall be merged with and into the Company (the Company following the Merger is sometimes referred to herein as the “Surviving Corporation”) and (b) the Certificate of Incorporation of the Company as in effect on the date of this Agreement shall be amended so that the authorized capital stock provided for by such Certificate of Incorporation consists solely of 1,000 shares of common stock, and, as so amended, such Certificate of Incorporation shall be the Certificate of Incorporation of the Surviving Corporation, until further amended in accordance with the DGCL. In addition, subject to Section 6.6(b) hereof, the Buyer shall cause the By-laws of the Surviving Corporation to be amended and restated in their entirety so that, immediately following the Effective Time, they are identical to the By-laws of the Transitory Subsidiary as in effect immediately prior to the Effective Time, except that all references to the name of the Transitory Subsidiary therein shall be changed to refer to the name of the Company, and, as so amended and restated, such By-laws shall be the By-laws of the Surviving Corporation, until further amended in accordance with the DGCL. The Merger shall have the effects set forth in Section 259 of the DGCL.

     1.4 Directors and Officers of the Surviving Corporation .

          (a) The directors of the Transitory Subsidiary immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and By-laws of the Surviving Corporation.

          (b) The officers of the Company immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and By-laws of the Surviving Corporation.

ARTICLE II

CONVERSION OF SECURITIES

     2.1 Conversion of Capital Stock . As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of the capital stock of the Company or capital stock of the Transitory Subsidiary:

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

          (b) All shares of common stock, $0.01 par value per share, of the Company (“Company Common Stock”), series A convertible preferred stock, $0.01 par value per share, of the Company (“Company Series A Preferred Stock”), series A-1 convertible preferred stock, $0.01 par value per share, of the Company (“Company Series A-1 Preferred Stock”), series B convertible preferred stock, $0.01 par value per share, of the Company (“Company Series B Preferred Stock”), series B-1 convertible preferred stock, $0.01 par value per share, of the Company (“Company Series B-1 Preferred Stock”), and series C convertible preferred stock, $0.01 par value per share, of the Company (“Company Series C Preferred Stock” and, together with Company Common Stock, Company Series A Preferred Stock, Company Series A-1 Preferred Stock, Company Series B Preferred Stock and Company Series B-1 Preferred Stock, the “Company Stock”), that are owned by the Company as treasury stock or by any wholly owned Subsidiary of the Company and any shares of Company Stock owned by the Buyer, the Transitory Subsidiary or any other wholly owned Subsidiary of the Buyer immediately prior to the Effective Time, shall be cancelled and shall cease to exist and no payment or consideration shall be delivered in exchange therefor.

          (c) Subject to Section 2.2, other than shares of Company Stock to be cancelled in accordance with Section 2.1(b) and Dissenting Shares (as defined in Section 2.4(a) below), (i) each share of Company Common Stock shall be automatically converted into the right to receive an amount in cash equal to the Common Merger Consideration; (ii) each share of Company Series A Preferred Stock shall be automatically converted into the right to receive an amount in cash equal to the Series A Preferred Merger Consideration; (iii) each share of Company Series A-1 Preferred Stock shall be automatically converted into the right to receive an amount in cash equal to the Series A-1 Preferred Merger Consideration; (iv) each share of Company Series B Preferred Stock shall be automatically converted into the right to receive an amount in cash equal to the Series B Preferred Merger Consideration; (v) each share of Company Series B-1 Preferred Stock shall be automatically converted into the right to receive an amount in cash equal to the Series B-1 Preferred Merger Consideration; and (vi) each share of Company Series C Preferred Stock shall be automatically converted into the right to receive an amount in cash equal to the Series C Preferred Merger Consideration. The terms “Common Merger Consideration”, “Series A Preferred Merger Consideration”, “Series A-1 Preferred Merger Consideration”, “Series B Preferred Merger Consideration”, “Series B-1 Preferred Merger Consideration” and “Series C Preferred Merger Consideration” are defined on Exhibit A hereto. The aggregate amount of the Common Merger Consideration, the Series A Preferred Merger Consideration, the Series A-1 Preferred Merger Consideration, the Series B Preferred Merger Consideration and the Series B-1 Merger Consideration is called herein the “Merger Consideration”. As of the Effective Time, all such shares of Company Stock shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate representing any such shares of Company Stock shall cease to have any rights with respect thereto, except the right to receive the applicable Merger Consideration pursuant to this Section 2.1(c), upon the surrender of such certificate in accordance with Section 2.2, without interest.

          (d) The Merger Consideration shall be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Stock), reorganization, recapitalization or other like change with respect to Company Stock occurring (or for which a record date is established) after the date hereof and prior to the Effective Time.

     2.2 Exchange Fund . The procedures for exchanging outstanding shares of Company Stock for the consideration to be paid to the holders of such securities in connection with the Merger are as follows:

          (a) At or prior to the Effective Time, the Buyer shall deposit with a bank or trust company mutually acceptable to the Buyer and the Company (the “Exchange Agent”), for the benefit of the holders of shares of Company Stock outstanding immediately prior to the Effective Time, for payment through the Exchange Agent in accordance with this Section 2.2, cash in an amount sufficient to make payments in exchange for certificates which immediately prior to the Effective Time represented outstanding shares of Company Stock (the “Certificates”) pursuant to Section 2.1(c) (the “Exchange Fund”).

          (b) Promptly (and in any event within two (2) Business Days) after the Effective Time, the Buyer shall cause the Exchange Agent to mail to each holder of record of a Certificate (i) a letter of transmittal in customary form and (ii) instructions for effecting the surrender of the Certificates in exchange for the applicable Merger Consideration payable with respect thereto, provided that the Buyer shall assist the Company in developing arrangements for the delivery of such materials at Closing to significant stockholders of the Company to facilitate the payment of Merger Consideration to such stockholders immediately following the Effective Time. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive promptly in exchange therefor the cash that such holder has the right to receive pursuant to the provisions of this Article II in respect of all Company Stock held by such holder, and the Certificate so surrendered shall immediately be cancelled. In the event of a transfer of ownership of Company Stock which is not registered in the transfer records of the Company, the applicable Merger Consideration may be paid to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 2.2, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by this Section 2.2.

          (c) All Merger Consideration paid upon the surrender for exchange of Certificates evidencing shares of Company Stock in accordance with the terms hereof shall be deemed to have been paid in satisfaction of all rights pertaining to such shares of Company Stock, and from and after the Effective Time there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be cancelled and exchanged as provided in this Article II.

          (d) Any portion of the Exchange Fund which remains undistributed to the holders of Company Stock for two years after the Effective Time shall be delivered to the Buyer (subject to abandoned property, escheat or similar law), upon demand, and any holder of Company Stock who has not previously complied with this Section 2.2 shall be entitled to receive only from the Buyer (subject to abandoned property, escheat or similar law) payment of its claim for Merger Consideration in connection with the Merger, without interest.

          (e) To the extent permitted by applicable law, none of the Buyer, the Transitory Subsidiary, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Stock delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.

          (f) Each of the Buyer and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Stock, Company Stock Options and Company Warrants such amounts as it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation or the Buyer, as the case may be, such withheld amounts (i) shall be remitted by the Buyer or the Surviving Corporation, as the case may be, to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement as having been paid to such holder of the shares of Company Stock, Company Stock Options and Company Warrants in respect of which such deduction and withholding was made by the Surviving Corporation or the Buyer, as the case may be.

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

     2.3 Company Stock Plans; Company Warrants

          (a) The Company shall take such action as shall be required:

               (i) to effectuate the cancellation, as of the Effective Time, of all options to purchase Company Common Stock (“Company Stock Options”) granted under the Company’s 2001 Stock Plan (the “Company Stock Plan”) outstanding immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Options); and

               (ii) to cause, pursuant to the Company Stock Plan, the vested portion of each outstanding Company Stock Option to represent as of the Effective Time solely the right to receive, in accordance with this Section 2.3, a lump sum cash payment in the amount of the Option Consideration, if any, with respect to such vested portion of the Company Stock Option and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, the Buyer, the Surviving Corporation or any other person or any other consideration.

     Each holder of a Company Stock Option shall receive from the Buyer, in respect and in consideration of each Company Stock Option so cancelled, as soon as practicable following the Effective Time (but in any event not later than five Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Common Merger Consideration over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of vested shares of Company Common Stock subject to such Company Stock Option, without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Common Merger Consideration, the holder thereof shall receive no Option Consideration and such Company Stock Option shall be cancelled and have no further force or effect.

          (b) From and after the Effective Time, each holder of a warrant to purchase Company Stock (a “Company Warrant”) outstanding immediately prior to the Effective Time shall be entitled to receive pursuant to Section 4(a) of such Company Warrant, upon exercise of such Company Warrant pursuant to its terms, solely an amount in cash (net of applicable taxes) for each share of Company Stock that may have been purchased pursuant to such Company Warrant equal to (i) the Merger Consideration for such shares of Company Stock under such Company Warrant (without interest) minus (ii) the exercise price per share of Company Stock under such Company Warrant immediately prior to the Effective Time (the “Warrant Consideration”).

          (c) As soon as practicable following the execution of this Agreement, the Company shall mail to each person who is a holder of a Company Stock Option and/or Company Warrant a letter describing the treatment of and payment for such Company Stock Option and/or Company Warrant pursuant to this Section 2.3 and providing instructions for use in obtaining payment for such Company Stock Option and/or Company Warrant. The Buyer shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Warrants pursuant to this Section 2.3.

     2.4 Dissenting Shares .

          (a) Notwithstanding anything to the contrary contained in this Agreement, shares of Company Stock held by a holder who has made a demand for appraisal of such shares of Company Stock in accordance with the DGCL (any such shares being referred to as “Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder’s appraisal rights under the DGCL with respect to such shares) shall not be converted into or represent the right to receive Merger Consideration in accordance with Section 2.1, but shall be entitled only to such rights as are granted by the DGCL to a holder of Dissenting Shares.

          (b) If any Dissenting Shares shall lose their status as such (through failure to perfect or otherwise), then, as of the later of the Effective Time or the date of loss of such status, such shares shall automatically be converted into and shall represent only the right to receive Merger Consideration in accordance with Section 2.1 without interest thereon, upon surrender of the Certificate formerly representing such shares in accordance with Section 2.2.

          (c) The Company shall give the Buyer: (i) prompt notice of any written demand for appraisal received by the Company prior to the Effective Time pursuant to the DGCL, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the DGCL that relate to such demand; and (ii) the opportunity to participate in all negotiations and proceedings with respect to any such demand, notice or instrument. The Company shall not make any payment or settlement offer prior to the Effective Time with respect to any such demand, notice or instrument unless the Buyer shall have given its written consent to such payment or settlement offer, which consent shall not be unreasonably withheld, conditioned or delayed.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     The Company represents and warrants to the Buyer and the Transitory Subsidiary that the statements contained in this Article III are true and correct as of the date hereof, except as set forth herein or in the disclosure schedule delivered by the Company to the Buyer and the Transitory Subsidiary and dated as of the date of this Agreement (the “Company Disclosure Schedule”).

     3.1 Organization, Standing and Power . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted and is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of its activities makes such qualification necessary, except for such failures to be so organized, qualified or in good standing, individually or in the aggregate, that would not have a Company Material Adverse Effect. For purposes of this Agreement, the term “Company Material Adverse Effect” means any material adverse change, event, circumstance or development with respect to, or material adverse effect on, (x) the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (y) the ability of the Company to consummate the transactions contemplated by this Agreement; provided, however, that none of the following shall constitute, or shall be considered in determining whether there has occurred, a Company Material Adverse Effect: (a) any adverse change, effect or circumstance arising out of or resulting from actions contemplated by the parties in connection with this Agreement or the pendency or announcement of the transactions contemplated by this Agreement, including without limitation losses of existing or prospective customers or employees; (b) changes in law, rules or regulations or generally accepted accounting principles or the interpretation thereof after the date hereof; (c) changes in the markets or industries in which the Company or any of its Subsidiaries conducts business; (d) changes in general economic or political conditions or the financing or capital markets in general or changes in currency exchange rates; (e) any action taken pursuant to or in accordance with this Agreement (including without limitation Section 6.4) or at the request of the Buyer; (f) any natural disaster, sabotage, terrorism, military action or war (whether or not declared); (g) any fees or expenses incurred in connection with the transactions contemplated by this Agreement; and (h) any stockholder litigation arising from or relating to the Merger.

     3.2 Capitalization .

          (a) The authorized capital stock of the Company, as of the date of this Agreement, consists of 185,000,000 shares of Company Common Stock and 117,099,610 shares of Company preferred stock, $0.01 par value per share (“Company Preferred Stock”), of which 10,055,556 shares have been designated as Company Series A Preferred Stock, 3,333,334 shares have been designated as Company Series A-1 Preferred Stock, 50,000,001 shares have been designated as Company Series B Preferred Stock, 16,999,999 shares have been designated as Company Series B-1 Preferred Stock and 36,710,720 shares have been designated as Company Series C Preferred Stock. The rights and privileges of each class of the Company’s capital stock are as set forth in the Company’s Certificate of Incorporation, as amended. As of November 4, 2007, 24,246,430 shares of Company Common Stock were issued and outstanding, 10,000,000 shares of Company Series A Preferred Stock were issued and outstanding, 3,333,334 shares of Company Series A-1 Preferred Stock were issued and outstanding, 50,000,001 shares of Company Series B Preferred Stock were issued and outstanding, 16,999,999 shares of Company Series B-1 Preferred Stock were issued and outstanding and 36,710,720 shares of Company Series C Preferred Stock were issued and outstanding.

          (b) Section 3.2(b) of the Company Disclosure Schedule sets forth a complete and accurate list, as of November 4, 2007, of: (i) the number of shares of Company Common Stock issued under the Company Stock Plan, the number of Company Stock Options under the Company Stock Plan and the number of shares of Company Common Stock reserved for future issuance under the Company Stock Plan; (ii) all outstanding Company Stock Options, indicating with respect to each such Company Stock Option the name of the holder thereof, the number of shares of Company Common Stock subject to such Company Stock Option, the exercise price, the date of grant, and the vesting schedule and (iii) all outstanding Company Warrants, indicating with respect to each such Company Warrant the name of the holder thereof, the number of shares of Company Stock subject to such Company Warrant, the class or series of Company Stock issuable upon exercise of such Company Warrant, the exercise price and the date of grant. No Company Stock Options or shares of Company Common Stock have been issued under the Company’s 2007 Stock Incentive Plan. The Company has made available to the Buyer a complete and accurate copy of the Company Stock Plan, the 2007 Stock Incentive Plan, the forms of all stock option agreements evidencing Company Stock Options and all Company Warrants.

          (c) Except (i) as set forth in this Section 3.2 and (ii) as reserved for future grant under the Company Stock Plan or the 2007 Stock Incentive Plan, as of the date of this Agreement, (A) there are no equity securities of any class of the Company, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (B) there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity interests of the Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating the Company or any of its Subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option,

warrant, equity security, call, right, commitment or agreement. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based equity rights or similar equity rights or obligations. Except as set forth on Section 3.2 of the Company Disclosure Schedule, neither the Company nor, to the Company’s Knowledge, any of its Affiliates, is a party to or is bound by any agreements or understandings with respect to the voting (including voting trusts and proxies) or sale or transfer (including agreements imposing transfer restrictions) of any shares of capital stock or other equity interests of the Company. For purposes of this Agreement, the term “Affiliate” when used with respect to any party shall mean any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended (the “Securities Act”).

          (d) All outstanding shares of Company Stock are, and all shares of Company Common Stock subject to issuance as specified in Sections 3.2(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right or subscription right under any provision of the DGCL, the Company’s Certificate of Incorporation or By-laws or any agreement to which the Company is a party or is otherwise bound. All outstanding shares of Company Stock, and all outstanding Company Stock Options and Company Warrants, have been issued in compliance with all applicable securities laws and all other applicable laws.

          (e) Except as may be set forth on Section 3.2 of the Company Disclosure Schedule, there are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Company Stock or the capital stock of the Company or any of its Subsidiaries.

     3.3 Subsidiaries .

          (a) Section 3.3 of the Company Disclosure Schedule sets forth, as of the date of this Agreement, for each Subsidiary of the Company: (i) its name; (ii) the number and type of outstanding equity securities and a list of the holders thereof; and (iii) the jurisdiction of organization. For purposes of this Agreement, the term “Subsidiary” means, with respect to any party, any corporation, partnership, trust, limited liability company or other non-corporate business enterprise in which such party (or another Subsidiary of such party) holds stock or other ownership interests representing (A) more that 50% of the voting power of all outstanding stock or ownership interests of such entity or (B) the right to receive more than 50% of the net assets of such entity available for distribution to the holders of outstanding stock or ownership interests upon a liquidation or dissolution of such entity.

          (b) Each Subsidiary of the Company is a corporation or similar entity duly organized, validly existing and in good standing (to the extent such concepts are applicable) under the laws of the jurisdiction of its incorporation, has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted, and is duly qualified to do business and is in good standing as a foreign corporation (to the extent such concepts are applicable) in each jurisdiction where the character of its properties owned, operated or leased or the nature of its activities makes such qualification

necessary, except for such failures to be so organized, qualified or in good standing, individually or in the aggregate, that would not have a Company Material Adverse Effect.

          (c) The Company has made available to the Buyer complete and accurate copies of the charter, by-laws or other organizational documents of each Subsidiary of the Company.

     3.4 Authority; No Conflict; Required Filings and Consents .

          (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL and the Company’s Certificate of Incorporation (the “Company Stockholder Approval”), to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the Board of Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger is fair to and in the best interests of the Company and its stockholders, (ii) approved this Agreement and declared its advisability in accordance with the provisions of the DGCL and (iii) directed that this Agreement be submitted to the stockholders of the Company for their adoption and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”).

          (b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance (“Liens”) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any Company Material Contract, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iii) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations, losses, penalties or Liens, and for any consents or waivers not obtained, that,

individually or in the aggregate, would not have a material and adverse effect on the business of the Company and its Subsidiaries, taken as a whole.

          (c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with, any court, arbitrational tribunal, administrative agency or commission or other governmental or regulatory authority, agency or instrumentality (a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, and (iii) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not be reasonably likely to have a Company Material Adverse Effect.

     3.5 SEC Filing; Financial Statements .

          (a) The Company has filed a registration statement on Form S-1, File No. 333-145297 (as most recently amended, the “Company SEC Document”) and has made available to the Buyer copies thereof, all of which are publicly available on the SEC’s EDGAR system. The Company SEC Document (i) was prepared in compliance in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the SEC thereunder applicable to the Company SEC Document, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated in such Company SEC Document or necessary in order to make the statements in such Company SEC Document, in the light of the circumstances under which they were made, not misleading, assuming for such purposes that the Company SEC Document was effective and shares had been offered and sold under the prospectus contained therein.

          (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in the Company SEC Document (i) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, assuming for such purposes that the Company SEC Document was effective and shares had been offered and sold under the prospectus contained therein, (ii) were prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the United States Securities and Exchange Commission (“SEC”)) and (iii) fairly presented the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not or are not expected to be material in amount. The Company maintains a standard system of accounting established and administered in accordance with GAAP including, but not limited to, complete books and records in written or electronic form.

The consolidated, unaudited balance sheet of the Company as of September 30, 2007 is referred to herein as the “Company Balance Sheet.”

     3.6 Absence of Certain Changes . Except as expressly contemplated by this Agreement or as set forth in Section 3.6 of the Company Disclosure Schedule, between the date of the Company Balance Sheet and the date of this Agreement, there has not occurred:

          (a) any event that has had a Company Material Adverse Effect;

          (b) any acquisition (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, or (ii) of any assets that are material, in the aggregate, to the Company and its Subsidiaries, taken as a whole, except purchases of inventories and raw materials in the ordinary course of business;

          (c) any sale, lease, license, pledge or other disposition of any material asset of the Company or Subsidiary other than in the ordinary course of business;

          (d) any amendment to the certificate of incorporation or bylaws of the Company or Subsidiary;

          (e) (i) any declaration or payment of any dividends or other distribution in respect of any capital stock of the Company or Subsidiary (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent), (ii) any split, combination or reclassification of any of the capital stock of the Company or Subsidiary or issuance or authorization for the issuance of any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or any of its other securities, or (iii) any purchase, redemption or other acquisition of any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, except for the acquisition of shares of Company Common Stock (A) from holders of Company Options in full or partial payment of the exercise price payable by such holder upon exercise of Company Options to the extent required or permitted under the terms of such Company Options or (B) from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of services to the Company or any of its Subsidiaries;

          (f) (i) the incurrence of any indebtedness for borrowed money or any guarantee of any indebtedness of another person (other than (A) letters of credit or similar arrangements issued to or for the benefit of suppliers and manufacturers in the ordinary course of business and (B) pursuant to existing credit facilities in the ordinary course of business), (ii) any issuance, sale or amendment of any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, any guarantee of any debt securities of another person, any “keep well” or other agreement to maintain any financial statement condition of another person or any arrangement having the economic effect of any of the foregoing, (iii) any loans, advances (other than routine advances to employees of the Company and its Subsidiaries in the ordinary course of business) or capital contributions to, or investment in, any

other person, other than the Company or any of its direct or indirect wholly owned Subsidiaries, except for investments in the ordinary course of business in debt securities maturing not more than 90 days after the date of investment, or (iv) other than in the ordinary course of business, any hedging agreement or other financial agreement or arrangement designed to protect the Company or its Subsidiaries against fluctuations in commodities prices or exchange rates; or

          (g) any material change in the Company’s accounting methods, principles or practices, except insofar as may have been required by a change in GAAP.

     3.7 No Undisclosed Liabilities . Except as may be disclosed in the Company Disclosure Schedule or in the Company Balance Sheet and except for liabilities incurred in the ordinary course of business after the date of the Company Balance Sheet, the Company and its Subsidiaries do not have any liabilities of any nature required by GAAP to be reflected on a consolidated balance sheet of the Company that, individually or in the aggregate, would have a Company Material Adverse Effect.

     3.8 Taxes .

          (a) The Company and each of its Subsidiaries has filed all material Tax Returns that it was required to file, and all such Tax Returns were correct and complete in all material respects. The Company and each of its Subsidiaries has paid on a timely basis all Taxes that are shown to be due on any such Tax Returns. For purposes of this Agreement, (i) “Taxes” means all taxes, charges, fees, levies or other similar assessments or liabilities, including income, gross receipts, ad valorem, premium, value-added, excise, real property, personal property, sales, use, services, transfer, withholding, employment, payroll and franchise taxes imposed by the United States of America or any state, government, or any agency thereof, and any interest, fines, penalties, assessments or additions to tax resulting from, attributable to or incurred in connection with any tax or any contest or dispute thereof and (ii) “Tax Returns” means all reports, returns, declarations, statements or other information required to be supplied to a taxing authority in connection with Taxes.

          (b) The Company has made available to the Buyer correct and complete copies of all U.S. federal income Tax Returns, examination reports and statements of deficiencies assessed against or agreed to by the Company or any of its Subsidiaries since January 1, 2004. No examination or audit of any Tax Return of the Company or any of its Subsidiaries by any Governmental Entity is currently in progress or, to the Company’s Knowledge, threatened or contemplated and which would have a Company Material Adverse Effect.

          (c) Neither the Company nor any of its Subsidiaries (i) is or has ever been a member of a group of corporations with which it has filed (or been required to file) consolidated, combined or unitary Tax Returns, other than a group of which only the Company and its Subsidiaries are or were members or (ii) is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement.

     3.9 Owned and Leased Real Properties .

          (a) Neither the Company nor any of its Subsidiaries owns any real property.

          (b) Section 3.9(b) of the Company Disclosure Schedule sets forth a complete and accurate list as of the date of this Agreement of all real property leased, subleased or licensed by the Company or any of its Subsidiaries (collectively “Company Leases”) and the location of the premises. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party to any Company Lease is in default under any of the Company Leases, except where the existence of such defaults, individually or in the aggregate, is not reasonably likely to have a material and adverse effect on the business of the Company and its Subsidiaries, taken as a whole. Except as set forth in Section 3.9(b) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries leases, subleases or licenses any real property to any person. The Company has made available to the Buyer complete and accurate copies of all Company Leases.

     3.10 Intellectual Property .

          (a) The Company and its Subsidiaries own, license, sublicense or otherwise possess legally enforceable rights to use all Intellectual Property necessary to conduct the business of the Company and its Subsidiaries as currently conducted and material to the business of the Company and its Subsidiaries, taken as a whole (in each case excluding generally commercially available, off-the-shelf software programs). For purposes of this Agreement, the term “Intellectual Property” means (i) patents, trademarks, service marks, trade names, domain names, copyrights, designs and trade secrets, (ii) applications for and registrations of such patents, trademarks, service marks, trade names, domain names, copyrights and designs, (iii) processes, formulae, methods, schematics, technology, know-how, computer software programs and applications, and (iv) other tangible or intangible proprietary or confidential information and materials.

          (b) The execution and delivery of this Agreement by the Company and the consummation by the Company of the Merger will not result in the breach of, or create on behalf of any third party the right to terminate or modify, (i) any license, sublicense or other agreement relating to any Intellectual Property owned by the Company that is material to the business of the Company and its Subsidiaries, taken as a whole (the “Company Intellectual Property”), or (ii) any license, sublicense and other agreement as to which the Company or any of its Subsidiaries is a party and pursuant to which the Company or any of its Subsidiaries is authorized to use any third party Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole, excluding generally commercially available, off-the-shelf software programs (the “Third Party Intellectual Property”). Section 3.10(b)(i) of the Company Disclosure Schedule sets forth a complete and accurate list of all patents and patent applications owned by the Company or its Subsidiaries; Section 3.10(b)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list of all Third Party Intellectual Property; and Section 3.10(b)(iii) of the Company Disclosure Schedule sets forth a materially complete and accurate list of all trademarks and domain names owned by the Company or its Subsidiaries.

          (c) To the Company’s Knowledge, no third party is infringing, violating or misappropriating any of the Company Intellectual Property, except for infringements, violations or misappropriations that, individually or in the aggregate, would not have a material and adverse effect on the business of the Company and its Subsidiaries, taken as a whole. The Company or

the appropriate Su