AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

NETEZZA CORPORATION, NETEZZA HOLDING CORP.,

AND

NUTECH SOLUTIONS, INC.

April 24, 2008

TABLE OF CONTENTS

				Page
ARTICLE I THE MERGER					1
1.1		The Merger			1
1.2		The Closing			1
1.3		Actions at the Closing			1
1.4		Additional Action			2
1.5		Conversion of Shares			2
1.6		Dissenting Shares			2
1.7		Exchange of Certificates for Initial Purchase Price			3
1.8		Options and Warrants			4
1.9		Escrow			4
1.10		Articles of Incorporation			4
1.11		No Further Rights			4
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY					4
2.1		Organization, Qualification and Corporate Power			5
2.2		Capitalization			5
2.3		Authorization of Transaction			6
2.4		Noncontravention			6
2.5		Subsidiaries			7
2.6		Financial Statements and Accounting matters			7
2.7		Absence of Certain Changes			8
2.8		Undisclosed Liabilities			8
2.9		Tax Matters			8
2.10		Assets			11
2.11		Owned Real Property			12
2.12		Real Property Leases			12
2.13		Intellectual Property			12
2.14		Customers and Suppliers			16
2.15		Contracts			16
2.16		Accounts Receivable			17
2.17		Powers of Attorney			18
2.18		Insurance			18
2.19		Litigation			18
2.20		Warranties			18
2.21		Employees			18
2.22		Employee Benefits			19
2.23		Environmental Matters			21
2.24		Legal Compliance			21
2.25		Permits			21
2.26		Certain Business Relationships With Affiliates			21
2.27		Brokers’ Fees			22
2.28		Books and Records			22

				Page
2.29		Disclosure			22
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE BUYER AND THE TRANSITORY SUBSIDIARY					22
3.1		Organization and Corporate Power			22
3.2		Authorization of Transaction			22
3.3		Noncontravention			23
ARTICLE IV COVENANTS					23
4.1		Closing Efforts			23
4.2		Stockholder Approval			23
4.3		Operation of Business			24
4.4		Access to Information			25
4.5		Exclusivity			25
4.6		Expenses			26
4.7		Purchase Price Calculation			27
4.8		FIRPTA Tax Certificates			27
4.9		Indemnification; Insurance			27
ARTICLE V CONDITIONS TO CONSUMMATION OF MERGER					27
5.1		Condition to Each Party’s Obligations			27
5.2		Conditions to Obligations of the Buyer and the Transitory Subsidiary			27
5.3		Conditions to Obligations of the Company			29
ARTICLE VI BUYER CLAIMS AGAINST ESCROW AMOUNT; INDEMNIFICATION BY BUYER					29
6.1		Claims of Buyer Against Escrow Amount			29
6.2		Indemnification by the Buyer			30
6.3		Procedures for Claims			30
6.4		Survival of Representations and Warranties			33
6.5		Limitations			34
ARTICLE VII TERMINATION					34
7.1		Termination of Agreement			34
7.2		Effect of Termination			35
ARTICLE VIII DEFINITIONS					35
ARTICLE IX MISCELLANEOUS					44
9.1		Press Releases and Announcements			44
9.2		No Third Party Beneficiaries			44
9.3		Entire Agreement			44
9.4		Succession and Assignment			44
9.5		Counterparts and Facsimile Signature			44
9.6		Headings			44
9.7		Notices			44
9.8		Governing Law			45

				Page
9.9		Amendments and Waivers			46
9.10		Severability			46

Exhibit A — Form of Articles of Incorporation of the Surviving Corporation
Exhibit B — Form of Opinion of Alston & Bird LLP
Exhibit C — Form of Escrow Agreement

AGREEMENT AND PLAN OF MERGER

     Agreement entered into as of April 24, 2008 by and among Netezza Corporation, a Delaware corporation (the “ Buyer ”), Netezza Holding Corp., a North Carolina corporation and a wholly-owned subsidiary of the Buyer (the “ Transitory Subsidiary ”), and NuTech Solutions, Inc., a North Carolina corporation (the “ Company ”).

     This Agreement contemplates a merger of the Transitory Subsidiary into the Company. In such merger, the stockholders of the Company will receive cash in exchange for their capital stock of the Company.

     Concurrently with the execution and delivery of this Agreement and as a condition and inducement to the Buyer’s willingness to enter into this Agreement, certain stockholders of the Company have entered into voting agreements with the Buyer relating to the voting of their shares of stock of the Company in connection with the merger. On or before the Closing and as a condition and inducement to the Buyer’s willingness to consummate the Merger, certain employees of the Company will have entered into Employment Agreements with the Buyer.

     NOW, THEREFORE, in consideration of the representations, warranties and covenants herein contained, the Parties agree as follows.

ARTICLE I
THE MERGER

     1.1 The Merger . Upon and subject to the terms and conditions of this Agreement, the Transitory Subsidiary shall merge with and into the Company at the Effective Time. From and after the Effective Time, the separate corporate existence of the Transitory Subsidiary shall cease and the Company shall continue as the Surviving Corporation. The Merger shall have the effects set forth in Section 55-11-06 of the North Carolina Business Corporation Act.

     1.2 The Closing . The Closing shall take place remotely via the exchange of executed documents, commencing at 9:00 a.m. (Boston time) on the Closing Date.

     1.3 Actions at the Closing . At the Closing:

          (a) the Company shall deliver to the Buyer and the Transitory Subsidiary the various certificates, instruments and documents referred to in Section 5.2;

          (b) the Buyer and the Transitory Subsidiary shall deliver to the Company the various certificates, instruments and documents referred to in Section 5.3;

          (c) the Surviving Corporation shall file with the Secretary of State of the State of North Carolina the Articles of Merger;

          (d) the Buyer shall remit (by check or by wire transfer of immediately available funds) to the Exchange Agent an amount equal to the Initial Purchase Price in accordance with Section 1.7; and

          (e) the Buyer, the Indemnification Representatives and the Escrow Agent shall execute and deliver the Escrow Agreement and the Buyer shall deposit $600,000 of the Purchase Price with the Escrow Agent in accordance with Section 1.9.

     1.4 Additional Action . The Surviving Corporation may, at any time after the Effective Time, take any action, including executing and delivering any document, in the name and on behalf of either the Company or the Transitory Subsidiary, in order to more fully give effect to the transactions contemplated by this Agreement.

     1.5 Conversion of Shares . At the Effective Time, by virtue of the Merger and without any action on the part of any Party or the holder of any of the following securities:

          (a) Each Company Share issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares and Company Shares held in the Company’s treasury) shall be converted into and represent the right to receive (i) following the Closing, the amount determined by dividing the Initial Purchase Price by the number of Company Shares outstanding immediately prior to the Effective Time, without any interest thereon, and (ii) amounts per share payable to the Company Stockholders from the Escrow Amount pursuant to the terms of the Escrow Agreement. Only the Initial Purchase Price shall be payable to Company Stockholders promptly following the Closing; $600,000 of the Purchase Price shall be placed into escrow at the Closing pursuant to Section 1.9 of this Agreement and distributed pursuant to the terms of the Escrow Agreement.

          (b) Each Company Share held in the Company’s treasury immediately prior to the Effective Time shall be cancelled and retired without payment of any consideration therefor.

          (c) Each share of common stock, $.01 par value per share, of the Transitory Subsidiary issued and outstanding immediately prior to the Effective Time shall be converted into and thereafter evidence one share of common stock, $.01 par value per share, of the Surviving Corporation.

     1.6 Dissenting Shares .

          (a) Dissenting Shares shall not be converted into or represent the right to receive payment of any portion of the Purchase Price unless the Company Stockholder holding such Dissenting Shares shall have forfeited or properly withdrawn his, her or its dissenters’ rights under the North Carolina Business Corporation Act. If such Company Stockholder has so forfeited or withdrawn his, her or its dissenters’ rights, then, (i) as of the occurrence of such event, such Company Stockholder’s Dissenting Shares shall cease to be Dissenting Shares and shall be converted into and represent the right to receive the amounts payable in respect of such Company Shares pursuant to Section 1.5 of this Agreement and (ii) promptly following the occurrence of such event, the Buyer or the Surviving Corporation shall deliver to such Company Stockholder a payment representing the Initial Purchase Price Per Share for such Company Stockholder’s Company Shares and shall pay to the Escrow Agent that portion of the Escrow Amount attributable to such Company Shares.

          (b) The Company shall give the Buyer (i) prompt notice of any written notices or communications asserting dissenters’ rights with respect to any Company Shares and any

other written communications or instruments that relate to such dissenters’ rights received by the Company and (ii) the opportunity to direct all negotiations and proceedings with respect to dissenters’ rights under the North Carolina Business Corporation Act. The Company shall not, except with the prior written consent of the Buyer, make any payment with respect to any claims of dissenters’ rights or offer to settle or settle any such claims or rights.

     1.7 Exchange of Certificates for Initial Purchase Price .

          (a) Prior to the Effective Time, the Company shall appoint the Exchange Agent subject to approval by the Buyer to effect the payment of the Initial Purchase Price in exchange for Certificates. As soon as practicable after the Effective Time, the Company shall cause the Exchange Agent to send a notice and a transmittal form to each Company Stockholder advising such Company Stockholder of the effectiveness of the Merger and the procedure for surrendering to the Exchange Agent such Company Stockholder’s Certificate(s) in exchange for payment of his, her or its portion of the Initial Purchase Price. Each Company Stockholder, upon proper surrender of his, her or its Certificate(s) to the Exchange Agent in accordance with the instructions in such notice, shall be entitled to receive in exchange therefor (subject to any taxes required to be withheld) payment of the Initial Purchase Price Per Share for each Company Share represented by such Certificate and, upon release of the Escrow Amount, his, her or its interest in the Escrow Amount. Until properly surrendered, each such Certificate shall be deemed for all purposes to evidence only the right to receive the Initial Purchase Price Per Share and his, her or its interest in the Escrow Amount attributable thereto.

          (b) If any portion of the Initial Purchase Price is to be paid to a person other than the person in whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition to such payment that (i) the Certificate so surrendered shall be properly assigned, endorsed or accompanied by appropriate stock powers and (ii) the person requesting such transfer shall pay to the Exchange Agent any transfer or other taxes payable by reason of the foregoing or establish to the satisfaction of the Exchange Agent that such taxes have been paid or are not required to be paid.

          (c) In the event 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 Company shall issue in exchange for such lost, stolen or destroyed Certificate the Initial Purchase Price Per Share for each Company Share represented by such Certificate. The Board of Directors of the Buyer may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to give the Buyer a bond or other appropriate assurance, in such sum, in the case of a bond, as it may direct as indemnity against any claim that may be made against the Buyer with respect to the Certificate alleged to have been lost, stolen or destroyed.

          (d) Neither the Exchange Agent nor any Party shall be liable to a holder of Company Shares for any amount payable to such Company Stockholder pursuant to Section 1.5 of this Agreement that is delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.

     1.8 Options and Warrants . Prior to the Effective Time, the Company shall, in a form reasonably satisfactory to the Buyer, provide for a termination or replacement with cash of such Option or Warrant effective immediately prior to the Effective Time to the extent it has not been previously exercised or terminated, including without limitation any Options or Warrants that are vested, but are not exercised, or will vest upon the Closing. The Company shall terminate all Company Stock Plans immediately prior to the Effective Time or shall make such other provision for each such Company Stock Plan, in a manner reasonably acceptable to the Buyer, in order to ensure that no Options or Warrants are outstanding under such Company Stock Plans as of the Effective Time.

     1.9 Escrow .

          (a) On the Closing Date, the Buyer shall deposit with the Escrow Agent an amount equal to $600,000. The Escrow Fund shall be held by the Escrow Agent to serve as the sole source of payment as a result of a successful claim, if any, by the Buyer pursuant to Article VI of this Agreement. The Escrow Fund shall be held by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Fund shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed solely in accordance with the terms of the Escrow Agreement.

          (b) The Requisite Shareholder Approval of this Agreement and the Merger by the stockholders of the Company shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including the placement of the Escrow Amount in escrow and the appointment of the Stockholder Representatives.

     1.10 Articles of Incorporation . At the Effective Time, the Articles of Incorporation of the Surviving Corporation shall be amended and restated so as to read in their entirety as set forth on Exhibit A hereto, and, as so amended, shall be the Articles of Incorporation of the Surviving Corporation until thereafter changed or amended, subject to the limitations of this Agreement, in accordance with the provisions thereof and the North Carolina Business Corporation Act.

     1.11 No Further Rights . From and after the Effective Time, no Company Shares shall be deemed to be outstanding, and holders of Certificates shall cease to have any rights with respect thereto except as provided herein or by law. Immediately prior to the Effective Time, the stock transfer books of the Company shall be closed and no transfer of Company Shares shall thereafter be made.

ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     The Company represents and warrants to the Buyer that, except as set forth in the Disclosure Schedule, the statements contained in this Article II are true and correct. The Disclosure Schedule shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Article II. The disclosures in any section or subsection of the Disclosure Schedule shall be considered to be made for purposes

of all other sections or subsections of the Disclosure Schedule to the extent that the relevance of any such disclosure to any other sections or subsections of the Disclosure Schedule is reasonably apparent from the text of such disclosure.

     2.1 Organization, Qualification and Corporate Power . The Company is a corporation duly organized, validly existing and in corporate and tax good standing under the laws of the State of North Carolina. The Company is duly qualified to conduct business and is in corporate and tax good standing under the laws of each jurisdiction listed in Section 2.1 of the Disclosure Schedule, which jurisdictions constitute the only jurisdictions in which the nature of the Company’s businesses or the ownership or leasing of its properties requires such qualification. The Company has all requisite corporate power and authority to carry on the businesses in which it is engaged and to own and use the properties owned and used by it. The Company has furnished to the Buyer complete and accurate copies of its Articles of Incorporation and Bylaws. The Company is not in default under or in violation of any provision of its Articles of Incorporation or Bylaws.

     2.2 Capitalization .

          (a) The authorized capital stock of the Company consists of (i) 150,000,000 Company Shares, of which, as of the date of this Agreement, 60,277,368 shares are issued and outstanding and no shares held as treasury shares, and (ii) 50,000,000 shares of preferred stock, $.001 par value per share, of which no shares are issued or outstanding.

          (b) Section 2.2(b) of the Disclosure Schedule sets forth a complete and accurate list of the stockholder of the Company as of the date of this Agreement, showing the number of Company Shares held by each stockholder of the Company. Section 2.2(b) of the Disclosure Schedule also indicates all outstanding Company Shares that constitute restricted stock or that are otherwise subject to a repurchase or redemption right, indicating the name of the applicable stockholder of the Company, the vesting schedule (including any acceleration provisions with respect thereto) and the repurchase price payable by the Company. All of the issued and outstanding Company Shares have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued and outstanding Company Shares have been offered, issued and sold by the Company in compliance with applicable federal and state securities laws.

          (c) Section 2.2(c) of the Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of: (i) all Company Stock Plans, indicating for each Company Stock Plan the number of Company Shares issued as of the date of this Agreement under such Company Stock Plan and the number of Company Shares subject to outstanding options under such Company Stock Plan; (ii) all holders of outstanding Options, indicating with respect to each Option the Company Stock Plan or other agreement under which it was granted, the number of Company Shares subject to such Option and the exercise price and the date of grant; and (iii) all holders of outstanding Warrants, indicating with respect to each Warrant the agreement or other document under which it was granted, the number of Company Shares subject to such Warrant and the exercise price and the date of issuance. The Company has provided to the Buyer complete and accurate copies of all Company Stock Plans and forms of all stock option or other agreements pursuant to which all Options and all Warrants were

issued. All of the Company Shares subject to Options and Warrants will be, upon issuance pursuant to the exercise of such instruments, duly authorized, validly issued, fully paid and nonassessable.

          (d) As of the date of this Agreement, (i) no subscription, warrant, option, convertible security or other right (contingent or otherwise) to purchase or acquire any shares of capital stock of the Company is authorized or outstanding, (ii) the Company has no obligation (contingent or otherwise) to issue any subscription, warrant, option, convertible security or other such right, or to issue or distribute to holders of any shares of its capital stock any evidences of indebtedness or assets of the Company, (iii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of its capital stock or any interest therein or to pay any dividend or to make any other distribution in respect thereof and (iv) there are no outstanding or authorized stock appreciation, phantom stock or similar rights with respect to the Company.

          (e) There is no agreement, written or oral, between the Company and any holder of its securities, or, to the best of the Company’s knowledge, among any holders of its securities, relating to the sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights), registration under the Securities Act, or voting, of the Company Shares.

     2.3 Authorization of Transaction . The Company has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by the Company of this Agreement has been duly and validly authorized by all necessary corporate action on the part of the Company. Subject to obtaining the Requisite Stockholder Approval, which is the only approval required from the Company stockholders, the consummation by the Company of the Merger has been duly and validly authorized by all necessary corporate action on the part of the Company. Without limiting the generality of the foregoing, the Board of Directors of the Company, at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger is advisable, fair and in the best interests of the Company and the stockholders of the Company, (ii) adopted this Agreement in accordance with the applicable provisions of the North Carolina Business Corporation Act and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their approval and resolved to recommend that the stockholders of the Company vote in favor of the approval of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

     2.4 Noncontravention . Subject to the filing of the Articles of Merger in accordance with the North Carolina Business Corporation Act, neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of the Merger, will (a) conflict with or violate any provision of the Articles of Incorporation or Bylaws of the Company or the charter, bylaws or other organizational documents of any Subsidiary, (b) require on the part of the Company or any Subsidiary any notice to or filing with, or any permit, authorization, consent or approval of, any Governmental Entity, (c) conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of obligations under, create in any party the right to terminate, modify or

cancel, or require any notice, consent or waiver under, any material contract or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of its assets is subject, (d) result in the imposition of any Security Interest upon any assets of the Company or any Subsidiary or (e) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company or any Subsidiary or any of their respective properties or assets.

     2.5 Subsidiaries .

          (a) Section 2.5 of the Disclosure Schedule sets forth: (i) the name of each Subsidiary; (ii) the number and type of outstanding equity securities of each Subsidiary; (iii) the jurisdiction of organization of each Subsidiary; (iv) the names of the officers and directors of each Subsidiary; and (v) the jurisdictions in which each Subsidiary is qualified or holds licenses to do business as a foreign corporation or other entity.

          (b) Each Subsidiary is a corporation duly organized, validly existing and in corporate and tax good standing under the laws of the jurisdiction of its incorporation. Each Subsidiary is duly qualified to conduct business and is in corporate and tax good standing under the laws of each jurisdiction in which the nature of its businesses or the ownership or leasing of its properties requires such qualification. Each Subsidiary has all requisite power and authority to carry on the businesses in which it is engaged and to own and use the properties owned and used by it. The Company has delivered or made available to the Buyer complete and accurate copies of the charter, bylaws or other organizational documents of each Subsidiary. No Subsidiary is in default under or in violation of any provision of its charter, bylaws or other organizational documents. All of the issued and outstanding shares of capital stock or other equity securities of each Subsidiary are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. All of the issued and outstanding shares or other equity securities of each Subsidiary are held of record and owned beneficially by the Company, free and clear of any restrictions on transfer (other than restrictions under applicable securities laws), claims, Security Interests, options, warrants, rights, contracts, calls, commitments, equities and demands. There are no outstanding or authorized options, warrants, rights, agreements or commitments to which the Company or any Subsidiary is a party or which are binding on any of them providing for the issuance, disposition or acquisition of any shares of capital stock or other equity securities of any Subsidiary. There are no outstanding stock appreciation, phantom stock or similar rights with respect to any Subsidiary. There are no voting trusts, proxies or other agreements or understandings with respect to the voting of any capital stock or other equity securities of any Subsidiary.

          (c) The Company does not control directly or indirectly or have any direct or indirect equity participation or similar interest in any corporation, partnership, limited liability company, joint venture, trust or other business association or entity which is not a Subsidiary.

     2.6 Financial Statements and Accounting Matters .

          (a) The Company has provided the Financial Statements to the Buyer. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, fairly present the consolidated financial condition,

results of operations and cash flows of the Company and its Subsidiaries as of the respective dates thereof and for the periods referred to therein and are consistent with the books and records of the Company and its Subsidiaries in all material respects.

          (b) The Company maintains accurate books and records reflecting its assets and liabilities and maintains proper and adequate internal control over financial reporting which provide assurance that (i) transactions are executed with management’s authorization, (ii) transactions are recorded as necessary to permit preparation of the consolidated financial statements of the Company and to maintain accountability for the Company’s consolidated assets, (iii) access to assets of the Company and its Subsidiaries is permitted only in accordance with management’s authorization, (iv) the reporting of assets of the Company and its Subsidiaries is compared with existing assets at regular intervals and (v) accounts, notes and other receivables and inventory were recorded accurately in all material respects, and appropriate procedures are implemented to effect the collection thereof on a current and timely basis except where the failure to maintain its books and records or to maintain such control would not be expected to result in a material change to the financial statements of the Company.

     2.7 Absence of Certain Changes . Since December 31, 2007, (a) there has occurred no event or development which, individually or in the aggregate, has had, or should be expected to have in the future, a Company Material Adverse Effect, and (b) neither the Company nor any Subsidiary has taken any action outside the Ordinary Course of Business.

     2.8 Undisclosed Liabilities . Neither the Company nor any of its Subsidiaries has any liability (whether absolute or contingent, whether liquidated or unliquidated and whether due or to become due), except for (a) liabilities shown on the face of the Most Recent Balance Sheet, (b) liabilities which have arisen since December 31, 2007 in the Ordinary Course of Business and (c) contractual and other liabilities incurred in the Ordinary Course of Business which are not required by GAAP to be reflected on the face of a balance sheet.

     2.9 Tax Matters .

          (a) For the five (5) taxable years of the Company preceding the Merger, the Company and each of its Subsidiaries has properly filed on a timely basis (including any extensions) all material Tax Returns that it was required to file, and all such Tax Returns were true, correct and complete in all material respects. The Company and each of its Subsidiaries have properly paid on a timely basis all Taxes, whether or not shown on any Tax Returns, that were due and payable. All Taxes that the Company and each of its Subsidiaries was required by law to withhold or collect has been withheld or collected and, to the extent required, has been properly paid on a timely basis to the appropriate Governmental Entity. The Company and each of its Subsidiaries has complied in all material respects with all information reporting and back-up withholding requirements including maintenance of the required records with respect thereto, in connection with amounts paid to any employee, independent contractor, creditor or other third party.

          (b) The unpaid Taxes of the Company and each of its Subsidiaries for periods ending December 31, 2007 do not exceed the accruals and reserves for Taxes (excluding accruals and reserves for deferred Taxes established to reflect timing differences between book and Tax

income) set forth on the Most Recent Balance Sheet. All Taxes attributable to the period beginning January 1, 2008 and ending on the Closing Date are, or will be, attributable to the conduct by the Company and each of its Subsidiaries of their respective operations in the Ordinary Course of Business and are, or will be, consistent both as to type and amount with Taxes attributable to such comparable period in the immediately preceding year.

          (c) Neither the Company nor any of its Subsidiaries is or has ever been a member of any 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 the common parent is the Company. Neither the Company nor and any of its Subsidiaries has any actual or potential liability under Treasury Regulation Section 1.1502-6 (or any comparable or similar provision of federal, state, local or foreign law), or, to its knowledge, as a transferee or successor, by contract, or otherwise for any Taxes of any person or entity (including without limitation any affiliated, combined or unitary group of corporations or other entities that included the Company or any of its Subsidiaries during a prior taxable period) other than the Company or any Subsidiary.

          (d) The Company has delivered or made available to the Buyer (i) copies of all Tax Returns of the Company and each of its Subsidiaries, which are complete and correct in all material respects, relating to Taxes for the years ended December 31, 2004, December 31, 2005 and December 31, 2006 and (ii) complete and correct copies of all private letter rulings, revenue agent reports, information document requests, notices of assessment, notices of proposed deficiencies, deficiency notices, protests, petitions, closing agreements, settlement agreements, pending ruling requests and any similar documents submitted by, received by or agreed to by or on behalf of the Company or any of its Subsidiaries relating to Taxes for all Taxable periods for which the applicable statute of limitations has not yet expired. 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 knowledge of the Company, threatened or contemplated, and the Company does not know of any basis upon which a Tax deficiency or assessment could reasonably be expected to be asserted against the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has been informed by any jurisdiction that such jurisdiction believes that the Company or any of its Subsidiaries was required to file any Tax Return that was not filed.

          (e) Neither the Company nor any of its Subsidiaries has (i) waived any statute of limitations with respect to Taxes or agreed to extend the period for assessment or collection of any Taxes, (ii) requested any extension of time within which to file any Tax Return, which Tax Return has not yet been filed, or (iii) executed or filed any power of attorney relating to Taxes with any Governmental Entity.

          (f) Neither the Company nor any of its Subsidiaries is a party to any Tax litigation. The Company has disclosed on its federal income Tax Returns all positions taken therein that in the reasonable judgment of the Company could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. The Company and each of its Subsidiaries has disclosed on its federal and state income Tax Returns all reportable transactions as defined in Treasury Regulation Section 1.6011-4 and, if applicable, comparable provisions under state law.

          (g) There are no liens or other encumbrances with respect to Taxes upon any of the assets or properties of the Company or any of its Subsidiaries, other than with respect to Taxes not yet due and payable.

          (h) Neither the Company nor any of its Subsidiaries has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.

          (i) Neither the Company nor any of its Subsidiaries has made any payments, is obligated to make any payments, or is it a party to any agreement, contract, arrangement, or plan that could obligate it to make any payments, that are or could be, separately or in the aggregate, “excess parachute payments” within the meaning of Section 280G of the Code (without regard to Sections 280G (b)(4) and 280G(b)(5) thereof).

          (j) None of the material assets of the Company or any of its Subsidiaries (i) is property that is required to be treated as being owned by any other person pursuant to the provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, (ii) is “tax exempt use property” within the meaning of Section 168(h) of the Code, (iii) directly or indirectly secures any debt the interest on which is tax exempt under Section 103(a) of the Code or (iv) is subject to a lease under Section 7701(h) of the Code or under any predecessor section.

          (k) Neither the Company nor any of its Subsidiaries has undergone a change in its method of accounting resulting in an adjustment to its taxable income pursuant to Section 481 of the Code. Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Effective Time as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Effective Time (or as a result of the transactions contemplated by this Agreement) under Section 481 of the Code (or any corresponding or similar provision of federal, state, local or foreign Tax law); (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax law) executed on or prior to the Effective Time; (iii) deferred intercompany transaction or any excess loss account described in United States Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax law); (iv) installment sale or open transaction disposition made on or prior to the Effective Time; or (v) prepaid amount received on or prior to the Effective Time. The Company and each of its Subsidiaries currently utilize the accrual method of accounting for income Tax purposes and such method of accounting has not changed in the past five (5) years.

          (l) Neither the Company nor any of its Subsidiaries has participated in or cooperated with an international boycott within the meaning of Section 999 of the Code.

          (m) Neither the Company nor any of its Subsidiaries has distributed to its stockholders or security holders stock or securities of a controlled corporation, and no stock or securities of the Company or any of its Subsidiaries has been distributed in a transaction to which Section 355 or Section 361 of the Code applies.

          (n) Section 2.9(n) of the Disclosure Schedule sets forth each jurisdiction (other than United States federal) in which the Company or any of its Subsidiaries files, or is required to file or has been required to file a Tax Return or is or has been liable for Taxes on a “nexus” basis and each jurisdiction that has sent notices or communications of any kind requesting information relating to the Company’s or any of its Subsidiaries’ nexus with such jurisdiction.

          (o) Neither the Company nor any of its Subsidiaries is a “consenting corporation” within the meaning of former Section 341(f) of the Code, and none of the assets of the Company or any of its Subsidiaries is subject to an election under former Section 341(f) of the Code.

          (p) To the knowledge of the Company, there is no basis for the assertion of any claim relating or attributable to Taxes, which, if adversely determined, would result in any lien on the assets of the Company or any of its Subsidiaries, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

          (q) The Company and each of its Subsidiaries has maintained records, including all applicable exemption, resale or other certificates, of (i) all material sales to purchasers claiming to be exempt from sale and use Taxes based on the exempt status of the purchaser, and (ii) all other material sales for which sales Tax or use Tax was not collected by the Company or any of its Subsidiaries and as to which the seller is required to receive and retain resale certificates or other certificates relating to the exempt nature of the sale or use or non-applicability of the sale and use Taxes, which records are complete and accurate in all material respects.

          (r) To its knowledge, neither the Company nor any of its Subsidiaries has any liability under the escheat laws or any other laws of any jurisdiction relating to abandoned property.

          (s) Neither the Company nor any of its Subsidiaries is bound by any Tax indemnity, Tax sharing or Tax allocation agreement.

          (t) There is no limitation on the utilization by either the Company or any Subsidiary of its net operating losses, built-in losses, Tax credits or similar items under Sections 382, 383 or 384 of the Code or comparable provisions of foreign, state or local law (other than any such limitation arising as a result of the consummation of the transactions contemplated by this Agreement).

     2.10 Assets . The Company or one of its Subsidiaries is the true and lawful owner, and has good title to, all of the assets (tangible or intangible) purported to be owned by the Company and its Subsidiaries, free and clear of all Security Interests. Each of the Company and its Subsidiaries owns or leases tangible assets sufficient for the conduct of its business as presently conducted. Each such tangible asset is free from material defects, has been maintained in accordance with normal industry practice in all material respects, is in good operating condition and repair (subject to normal wear and tear) and is suitable in all material respects for the purposes for which it presently is used.

     2.11 Owned Real Property . Neither the Company nor any Subsidiary has any owned real property.

     2.12 Real Property Leases . Section 2.12 of the Disclosure Schedule lists all Leases. The Company has delivered to the Buyer complete and accurate copies of the Leases. With respect to each Lease:

          (a) such Lease is legal, valid, binding, enforceable and in full force and effect;

          (b) such Lease will continue to be legal, valid, binding, enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing;

          (c) neither the Company nor any Subsidiary, nor, to the knowledge of the Company, any other party, is in breach or violation of, or default under, any such Lease, and no event has occurred, is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Company or any Subsidiary or, to the knowledge of the Company, any other party under such Lease; and

          (d) neither the Company nor any Subsidiary has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in any such Lease.

     2.13 Intellectual Property .

          (a) Company Registrations . Section 2.13(a) of the Disclosure Schedule lists all Company Registrations, in each case enumerating specifically the applicable filing or registration number, title, jurisdiction in which filing was made or from which registration issued, date of filing or issuance, names of all current applicant(s) and registered owners(s), as applicable. All assignments of Company Registrations to the Company or any Subsidiary have been properly executed and recorded. To the knowledge of the Company, all Company Registrations are valid and enforceable and all issuance, renewal, maintenance and other payments that are or have become due with respect thereto have been timely paid by or on behalf of the Company, except to those no longer used or useful to the Company in the ordinary course of its business.

          (b) Prosecution Matters . There are no inventorship challenges, opposition or nullity proceedings or interferences declared, commenced or provoked, or to the knowledge of the Company threatened, with respect to any Patent Rights included in the Company Registrations. To the knowledge of the Company, the Company and the Subsidiaries have complied with their duty of candor and disclosure to the United States Patent and Trademark Office and any relevant foreign patent office with respect to all patent and trademark applications filed by or on behalf of the Company or any Subsidiary and have made no material misrepresentation in such applications. The Company has no knowledge of any information that would preclude the Company or any Subsidiary from having clear title to the Company Registrations or affecting the patentability or enforceability of any Company Registrations.

          (c) Ownership; Sufficiency . Each item of Company Intellectual Property will be owned or available for use by the Surviving Corporation immediately following the Closing on substantially identical terms and conditions as it was immediately prior to the Closing. The Company or a Subsidiary is the sole and exclusive owner of all Company Owned Intellectual Property, free and clear of any Security Interests and all joint owners of the Company Owned Intellectual Property are listed in Section 2.13(c) of the Disclosure Schedule. To the knowledge of the Company, the Company Intellectual Property constitutes all Intellectual Property necessary (i) to Exploit the Customer Offerings in the manner so done currently and contemplated to be done in the future by the Company and the Subsidiaries, (ii) to Exploit the Internal Systems as they are currently used and contemplated to be used in the future by the Company and the Subsidiaries, and (iii) otherwise to conduct the Company’s business in all material respects in the manner currently conducted and contemplated to be conducted in the future by the Company and the Subsidiaries.

          (d) Protection Measures . The Company or the appropriate Subsidiary has taken reasonable measures to protect the proprietary nature of each item of Company Owned Intellectual Property, and to maintain in confidence the trade secrets and confidential information comprising a part thereof. The Company and each Subsidiary have complied with all applicable contractual and legal requirements pertaining to information privacy and security. No complaint relating to an improper use or disclosure of, or a breach in the security of, any such information has been made or, to the knowledge of the Company, threatened against the Company or any Subsidiary. To the knowledge of the Company, there has been no: (i) unauthorized disclosure of any third party proprietary or confidential information in the possession, custody or control of the Company or any Subsidiary or (ii) breach of the Company’s or any Subsidiary’s security procedures wherein confidential information has been disclosed to a third person. The Company has actively policed the quality of all goods and services sold, distributed or marketed under each of its Trademarks and has enforced adequate quality control measures to ensure that no Trademarks that it has licensed to others shall be deemed to be abandoned.

          (e) Infringement by Company . None of the Customer Offerings, or the Exploitation thereof by the Company or its Subsidiaries infringes or violates, or constitutes a misappropriation of, any Intellectual Property rights of any third party. None of the Internal Systems, or the Company’s or any Subsidiary’s past, current or currently contemplated Exploitation thereof, or any other activity undertaken by them in connection with the business of the Company and its Subsidiaries, infringes or violates, or constitutes a misappropriation of, any Intellectual Property rights of any third party. Section 2.13(e) of the Disclosure Schedule lists any complaint, claim or notice, or threat of any of the foregoing (including any notification that a license under any patent is or may be required), received by the Company or any Subsidiary alleging any such infringement, violation or misappropriation and any request or demand for indemnification or defense received by the Company or any Subsidiary from any reseller, distributor, customer, user or any other third party; and the Company has provided to the Buyer copies of all such complaints, claims, notices, requests, demands or threats, as well as any legal opinions, studies, market surveys and analyses relating to any alleged or potential infringement, violation or misappropriation.

          (f) Infringement of Company Rights . To the knowledge of the Company, no person (including, without limitation, any current or former employee or consultant of Company

or the Subsidiaries) is infringing, violating or misappropriating any of the Company Owned Intellectual Property or any Company Licensed Intellectual Property which is exclusively licensed to the Company or any Subsidiary. The Company has provided to the Buyer copies of all correspondence, analyses, legal opinions, complaints, claims, notices or threats concerning the infringement, violation or misappropriation of any Company Owned Intellectual Property.

          (g) Outbound IP Agreements . Section 2.13(g) of the Disclosure Schedule identifies each material license, covenant or other agreement pursuant to which the Company or a Subsidiary has assigned, transferred, licensed, distributed or otherwise granted any right or access to any person, or covenanted not to assert any right, with respect to any past, existing or future Company Intellectual Property in the Customer Offerings. Except as set forth in the Disclosure Schedule, neither the Company nor any Subsidiary has agreed to indemnify any person against any infringement, violation or misappropriation of any Intellectual Property rights with respect to any Customer Offerings or any third party Intellectual Property rights. Neither the Company nor any Subsidiary is a member of or party to any patent pool, industry standards body, trade association or other organization pursuant to the rules of which it is obligated to license any existing or future Intellectual Property to any person.

          (h) Inbound IP Agreements . Section 2.13(h) of the Disclosure Schedule identifies (i) each item of Company Licensed Intellectual Property and the license or agreement pursuant to which the Company or a Subsidiary Exploits it (excluding currently-available, off the shelf software programs that are part of the Internal Systems and are licensed by the Company pursuant to “shrink wrap” licenses, the total fees associated with which are less than $2,500) and (ii) each agreement, contract, assignment or other instrument pursuant to which the Company or any Subsidiary has obtained any joint or sole ownership interest in or to each item of Company Owned Intellectual Property in the Customer Offerings. Except as set forth in the Disclosure Schedule, no third party inventions, methods, services, materials, processes or Software are included in or required to exploit the Customer Offerings or Internal Systems. None of the Customer Offerings or Internal Systems includes “shareware,” “freeware” or other Software or other material that was obtained by the Company from third parties other than pursuant to the license agreements listed in Section 2.13(h) of the Disclosure Schedule.

          (i) Source Code . Neither the Company nor any Subsidiary has licensed, distributed or disclosed, and knows of no distribution or disclosure by others (including its employees and contractors) of, the Company Source Code to any person, except pursuant to the agreements listed in Section 2.13(i) of the Disclosure Schedule, and the Company and Subsidiaries have taken all reasonable physical and electronic security measures to prevent disclosure of such Company Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, nor will the consummation of the transactions contemplated hereby, result in the disclosure or release of such Company Source Code by the Company, its Subsidiaries or escrow agent(s) or any other person to any third party.

          (j) Authorship . All of the Software and Documentation comprising, incorporated in or bundled with the Customer Offerings or Internal Systems have been designed, authored, tested and debugged by regular employees of the Company or a Subsidiary within the scope of their employment or by independent contractors of the Company or a Subsidiary who

have executed valid and binding agreements expressly assigning all right, title and interest in such copyrightable materials to the Company or a Subsidiary, waiving their non-assignable rights (including moral rights) in favor of the Company or a Subsidiary and its permitted assigns and licensees, and have no residual claim to such materials.

          (k) Open Source Code . Section 2.13(k) of the Disclosure Schedule lists all Open Source Materials that the Company or its Subsidiaries have utilized in any way in the Exploitation of Company Offerings or Internal Systems and describes the manner in which such Open Source Materials have been utilized, including, without limitation, whether and how the Open Source Materials have been modified and/or distributed by the Company or its Subsidiaries. The Company and its Subsidiaries have not (i) incorporated Open Source Materials into, or combined Open Source Materials with, the Customer Offerings; (ii) distributed Open Source Materials in conjunction with any other software developed or distributed by the Company; or (iii) used Open Source Materials that create, or purport to create, obligations for the Company or any Subsidiary with respect to the Customer Offerings or grant, or purport to grant, to any third party, any rights or immunities under Intellectual Property rights (including, but not limited to, using any Open Source Materials that require, as a condition of Exploitation of such Open Source Materials, that other Software incorporated into, derived from or distributed with such Open Source Materials be (x) disclosed or distributed in source code form, (y) licensed for the purpose of making derivative works or (z) redistributable at no charge or minimal charge).

          (l) Employee and Contractor Assignments . Each employee of the Company or any Subsidiary and each independent contractor of the Company or any Subsidiary, has executed a valid and binding written agreement expressly assigning to the Company or a Subsidiary all right, title and interest in any inventions and works of authorship, whether or not patentable, invented, created, developed, conceived and/or reduced to practice during the term of such employee’s employment or such independent contractor’s work for the Company or the relevant Subsidiary, and all Intellectual Property rights therein, and has waived all moral rights therein to the extent legally permissible.

          (m) Quality . The Customer Offerings and the Internal Systems are free from significant defects in design, workmanship and materials and conform in all material respects to the written Documentation and specifications therefor. The Customer Offerings and the Internal Systems do not contain any disabling device, virus, worm, back door, Trojan horse or other disruptive or malicious code that may or are intended to impair their intended performance or otherwise permit unauthorized access to, hamper, delete or damage any computer system, software, network or data. The Company and its Subsidiaries have not received any warranty claims, contractual terminations or requests for settlement or refund due to the failure of the Customer Offerings to meet their specifications or otherwise to satisfy end user needs or for harm or damage to any third party.

          (n) Support and Funding . The Company and its Subsidiaries have neither sought, applied for nor received any support, funding, resources or assistance from any federal, state, local or foreign governmental or quasi-governmental agency or funding source in connection with the Exploitation of the Customer Offerings, the Internal Systems or any facilities or equipment used in connection therewith.

     2.14 Customers and Suppliers . Section 2.14 of the Disclosure Schedule sets forth a list of (a) each customer that accounted for more than five percent (5%) of the consolidated revenues of the Company and its Subsidiaries during the fiscal year ended December 31, 2007 and the amount of revenues accounted for by such customer during each such year and (b) each supplier that is the sole supplier or licensor of any product, technology or service material to the business of the Company and its Subsidiaries. No such customer or supplier has indicated within the past twelve (12) months that it will stop, or decrease the rate of, buying products or supplying products, as applicable, to the Company or any Subsidiary.

     2.15 Contracts .

          (a) Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date of this Agreement:

               (i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $10,000 per annum or having a remaining term longer than twelve (12) months;

               (ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than twelve (12) months, (B) which involves more than the sum of $50,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;

               (iii) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;

               (iv) any agreement (or group of related agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which the Company or any Subsidiary has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;

               (v) any agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of any significant portion of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);

               (vi) any agreement concerning noncompetition currently in effect;

               (vii) any current employment or active consulting agreement;

               (viii) any agreement involving any current or former officer, director or stockholder of the Company or an Affiliate thereof;

               (ix) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;

               (x) any agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business); and

               (xi) any other agreement (or group of related agreements) either involving more than $50,000 or not entered into in the Ordinary Course of Business.

          (b) The Company has delivered or made available to the Buyer a complete and accurate copy of each agreement listed in Section 2.13 or Section 2.15 of the Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) neither the Company nor any Subsidiary nor, to the knowledge of the Company, any other party, is in material breach or violation of, or default under, any such agreement, and no event has occurred, is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or default by the Company or any Subsidiary or, to the knowledge of the Company, any other party under such agreement.

          (c) Neither the Company nor any Subsidiary has been suspended or debarred from bidding on contracts or subcontracts with any Governmental Entity; no such suspension or debarment has been threatened or initiated; and, to the Company’s knowledge, the consummation of the transactions contemplated by this Agreement will not result in any such suspension or debarment of the Company or any Subsidiary. Neither the Company nor any Subsidiary has been or is now being audited or investigated by the United States Government Accounting Office, the United States Department of Defense or any of its agencies, the Defense Contract Audit Agency, the contracting or auditing function of any Governmental Entity with which it is contracting, the United States Department of Justice, the Inspector General of the United States, or any prime contractor with a Governmental Entity; nor, to the knowledge of the Company, has any such audit or investigation been threatened. To the knowledge of the Company, there is no valid basis for (i) the suspension or debarment of the Company or any Subsidiary from bidding on contracts or subcontracts with any Governmental Entity or (ii) any claim (including any claim for return of funds to any Governmental Entity) pursuant to an audit or investigation by any of the entities named in the foregoing sentence. The Company has no agreements, contracts or commitments which require it to obtain or maintain a security clearance with any Governmental Entity.

     2.16 Accounts Receivable . All accounts receivable of the Company and its Subsidiaries reflected on the Most Recent Balance Sheet (other than those paid since such date) are valid receivables subject to no setoffs or counterclaims and are current and collectible (within ninety (90) days after the date on which it first became due and payable), net of the applicable reserve for bad debts on the Most Recent Balance Sheet. All accounts receivable of the Company and its Subsidiaries that have arisen since December 31, 2007 are valid receivables

subject to no setoffs or counterclaims and are collectible (within ninety (90) days after the date on which it first became due and payable), net of a reserve for bad debts in an amount proportionate to the reserve shown on the Most Recent Balance Sheet. Neither the Company nor an