AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

INFOGRAMES ENTERTAINMENT S.A.

IRATA ACQUISITION CORP.

and

ATARI, INC.

Dated as of April 30, 2008

ARTICLE I THE MERGER			2
Section 1.1 The Merger			2
Section 1.2 Closing			2
Section 1.3 Effective Time			2
Section 1.4 Effects of the Merger			2
Section 1.5 Certificate of Incorporation			2
Section 1.6 Bylaws			2
Section 1.7 Directors			3
ARTICLE II EFFECT OF THE MERGER ON CAPITAL STOCK			3
Section 2.1 Conversion of Capital Stock			3
Section 2.2 Surrender of Certificates			3
Section 2.3 Stock Options			5
Section 2.4 Dissenting Shares			6
Section 2.5 Tax Consequences			6
Section 2.6 Additional Actions			6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY			7
Section 3.1 Organization and Power			7
Section 3.2 Foreign Qualifications			7
Section 3.3 Corporate Authorization			7
Section 3.4 Enforceability			7
Section 3.5 Organizational Documents			8
Section 3.6 Subsidiaries			8
Section 3.7 Governmental Authorizations			8
Section 3.8 Non-Contravention			8
Section 3.9 Capitalization			9
Section 3.10 Options			10
Section 3.11 Voting			10
Section 3.12 Company SEC Reports			11
Section 3.13 Executive and Director Loans			11
Section 3.14 Accounting Controls and Disclosure Controls			12
Section 3.15 Financial Statements			12
Section 3.16 Liabilities			13
Section 3.17 Absence of Certain Changes			13
Section 3.18 Litigation			13
Section 3.19 Contracts			13
Section 3.20 Employee Benefit Plans			14
Section 3.21 Labor Relations and Employment Matters			16
Section 3.22 Taxes			16
Section 3.23 Environmental Matters			18
Section 3.24 Intellectual Property			19
Section 3.25 Privacy Policy			21
Section 3.26 Real Property			21
Section 3.27 Permits; Compliance with Laws			21
Section 3.28 Personal Property			22

Section 3.29 Insurance			22
Section 3.30 Takeover Statutes			22
Section 3.31 Opinion of Financial Advisor			22
Section 3.32 Brokers and Finders			22
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT			23
Section 4.1 Organization and Power			23
Section 4.2 Corporate Authorization			23
Section 4.3 Enforceability			23
Section 4.4 Capital Resources			23
ARTICLE V COVENANTS			23
Section 5.1 Conduct of Business of the Company			23
Section 5.2 Other Actions			25
Section 5.3 Access to Information; Confidentiality			25
Section 5.4 No Solicitation			26
Section 5.5 Notices of Certain Events			28
Section 5.6 Company Proxy Statement and Other SEC Filings			28
Section 5.7 Company Stockholders Meeting			29
Section 5.8 Directors’ and Officers’ Indemnification and Insurance			30
Section 5.9 Commercially Reasonable Efforts			30
Section 5.10 Consents; Filings; Further Action			30
Section 5.11 Public Announcements			31
Section 5.12 Stock Exchange De-listing			31
Section 5.13 Fees, Costs and Expenses			32
Section 5.14 Takeover Statutes			32
Section 5.15 Defense of Litigation			32
Section 5.16 Tax Matters			32
Section 5.17 Maintenance and Prosecution of Intellectual Property			33
Section 5.18 Performance of Restructuring Plan			33
ARTICLE VI CONDITIONS			33
Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger			33
Section 6.2 Conditions to Obligations of Parent and Merger Sub			34
Section 6.3 Conditions to Obligation of the Company			36
Section 6.4 Frustration of Closing Conditions			36
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER			36
Section 7.1 Termination by Mutual Consent			36
Section 7.2 Termination by Either Parent or the Company			36
Section 7.3 Termination by Parent			37
Section 7.4 Termination by the Company			38
Section 7.5 Effect of Termination			38
Section 7.6 Expenses Following Termination			38
Section 7.7 Amendment			39
Section 7.8 Extension; Waiver			39
Section 7.9 Procedure for Termination, Amendment, Extension or Waiver			39

ARTICLE VIII MISCELLANEOUS			40
Section 8.1 Certain Definitions			40
Section 8.2 Interpretation			45
Section 8.3 Survival			45
Section 8.4 Governing Law			46
Section 8.5 Submission to Jurisdiction			46
Section 8.6 Notices			46
Section 8.7 Entire Agreement			47
Section 8.8 No Third-Party Beneficiaries			47
Section 8.9 Severability			47
Section 8.10 Rules of Construction			47
Section 8.11 Assignment			47
Section 8.12 Remedies			48
Section 8.13 Specific Performance			48
Section 8.14 Counterparts; Effectiveness			48

INDEX OF DEFINED TERMS

Term		Section
Affiliate		8.1(a)
Agreement		Preamble
Bankruptcy Event		6.2(l)(i)
Bankruptcy Law		8.1(b)
Business Day		8.1(c)
Certificate of Merger		1.3
Certificates		2.1(c)
Change of Recommendation		5.4(e)(i)
Closing		1.2
Closing Date		1.2
Code		2.2(d)
Company		Preamble
Company Assets		3.8(b)
Company Benefit Plan		3.20(a)
Company Board		Recitals
Company Board Recommendation		3.3
Company Common Stock		Recitals
Company Conditions		5.2
Company Contracts		3.8(c)
Company Disclosure Schedule		Article III
Company Financial Advisor		3.31
Company Intellectual Property		8.1(d)
Company Material Adverse Effect		8.1(e)
Company Material Contracts		8.1(f)
Company Option Plans		3.10(a)
Company Organizational Documents		3.5
Company Permits		3.27(a)
Company Preferred Stock		3.9(a)
Company Proxy Statement		3.7(b)
Company SEC Reports		3.12(a)
Company Stock Option		2.3(a)
Company Stockholders Meeting		3.7(b)
Company Warrants		3.9(b)
Confidentiality Agreement		5.3(b)
Contracts		8.1(g)
Copyright Office		5.18(b)
Copyrights		8.1(k)
Credit Facility		8.1(h)
Custodian		8.1(i)
Customer Information		3.25
DGCL		1.1
Dissenting Shares		2.4(a)
Effective Time		1.3

Term		Section
Environmental Costs		3.23(b)(i)
Environmental Laws		3.23(a)(ii)
Environmental Matters		3.23(a)(i)
Exchange Act		3.7(b)
Excluded Shares		2.1(b)
Expenses Payee		7.6(c)
Expenses Payor		7.6(c)
Expenses		5.14
GAAP		3.15(b)
Governmental Entity		3.7
Hazardous Substances		8.1(j)
Indemnified Parties		5.9(a)
Intellectual Property		8.1(k)
Internet Assets		8.1(k)
IP Licenses		3.24(d)
Key Company Intellectual Property Assets		8.1(l)
Knowledge		8.1(m)
Laws		8.1(n)
Legal Actions		3.18
Liabilities		3.16
Lien		8.1(o)
Maximum Premium		5.9(b)
Merger		Recitals
Merger Consideration		2.1(c)
Merger Sub		Preamble
New Financing Facility		Recitals
NOLs		3.22(m)
Option Merger Consideration		2.3(a)
Orders		8.1(p)
Outside Date		7.2(a)
Parent		Preamble
Parent Board		Recitals
Parent Conditions		5.2
Parent Material Adverse Effect		8.1(q)
Patents		8.1(k)
Paying Agent		2.2(a)
Payment Fund		2.2(a
Permits		8.1(r)
Permitted Lien		8.1(s)
Person		8.1(t)
Post-Signing Returns		5.17(a)
Privacy Policy		3.25
Public Software		8.1(u)
Representatives		8.1(v)
Requisite Company Vote		3.3
SEC		3.7(b)

Term		Section
Securities Act		3.12(a)
Software		8.1(k)
SOX		3.13
Special Committee		Recitals
Subsidiary		8.1(w)
Superior Proposal		8.1(x)
Superior Proposal Change of Recommendation		5.4(e)(i)
Surviving Bylaws		1.6
Surviving Charter		1.5
Surviving Corporation		1.1
Takeover Proposal		8.1(y)
Takeover Statutes		3.30
Tax Returns		8.1(z)
Tax Sharing Agreements		3.22(f)
Taxes		8.1(aa)
Termination Fee		7.6(b)
Trade Secrets		8.1(k)
Trademarks		8.1(k)
Treasury Regulations		8.1(bb)
USPTO		5.18(b)

AGREEMENT AND PLAN OF MERGER

     AGREEMENT AND PLAN OF MERGER, dated as of April 30, 2008 (this “ Agreement ”), by and among INFOGRAMES ENTERTAINMENT S.A., a French corporation (“ Parent ”), IRATA ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary of Parent (“ Merger Sub ”), and ATARI, INC., a Delaware corporation (the “ Company ”).

RECITALS

     WHEREAS, the Board of Directors of the Company (the “ Company Board ”), upon unanimous recommendation of a special transaction committee of the Company Board consisting solely of disinterested directors of the Company (the “ Special Committee ”), has unanimously (i) approved and declared advisable and in the best interests of the holders of Company Common Stock (other than Parent and its Affiliates) that the Company enter into this Agreement and consummate the merger of Merger Sub with and into the Company (the “ Merger ”), this Agreement and the transactions contemplated by this Agreement on the terms and subject to the conditions set forth herein; (ii) directed that adoption of this Agreement be submitted to a vote at a meeting of the holders of Company Common Stock; and (iii) recommended to the holders of Company Common Stock that they adopt this Agreement;

     WHEREAS, the Board of Directors of Merger Sub has approved and declared advisable, and the Board of Directors of Parent (the “ Parent Board ”) has approved, this Agreement and the other transactions contemplated by this Agreement, upon the terms and subject to the conditions set forth in this Agreement;

     WHEREAS, contemporaneously with the execution of this Agreement, the Company and Parent are entering into the Credit Agreement among the Company, with Parent as the lender thereunder (the “ New Financing Facility ”) pursuant to which Parent has agreed to make available to the Company additional financing on the terms and subject to the conditions set forth in the New Financing Facility;

     WHEREAS, subject to certain exceptions, by virtue of the Merger, all of the issued and outstanding shares of common stock, par value $0.10 per share, of the Company (the “ Company Common Stock ”), will be converted into the right to receive $1.68 in cash; and

     WHEREAS, certain capitalized terms used in this Agreement have the meanings specified in Section 8.1.

     NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained in this Agreement, the parties to this Agreement, intending to be legally bound, agree as follows:

ARTICLE I

          Section 1.1 The Merger . Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”), at the Effective Time, (a) Merger Sub shall be merged with and into the Company, (b) the separate corporate existence of Merger Sub shall cease and the Company shall continue its corporate existence under Delaware law as the surviving corporation in the Merger (the “ Surviving Corporation ”) and (c) the Surviving Corporation shall become a wholly-owned subsidiary of Parent.

          Section 1.2 Closing . Subject to the satisfaction or waiver of all of the conditions to closing contained in ARTICLE VI, the closing of the Merger (the “ Closing ”) shall take place (a) at the offices of Morrison & Foerster LLP, 1290 Avenue of the Americas, New York, New York, at 10:00 a.m. on a date determined by the parties but not later than the second Business Day after the day on which the last of those conditions (other than any conditions that by their nature are to be satisfied at the Closing) is satisfied or waived in accordance with this Agreement or (b) at such other place and time or on such other date as Parent and the Company may agree in writing. The date on which the Closing occurs is referred to as the “ Closing Date .”

          Section 1.3 Effective Time . Immediately following the Closing, Parent and the Company shall cause a certificate of merger (the “ Certificate of Merger ”) to be executed, signed, acknowledged and filed with the Secretary of State of the State of Delaware as provided in Section 251 of the DGCL. The Merger shall become effective when the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such other subsequent date or time as Parent and the Company may agree and specify in the Certificate of Merger in accordance with the DGCL (the “ Effective Time ”).

          Section 1.4 Effects of the Merger . The Merger shall have the effects set forth in Section 259 of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions, disabilities and duties of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities and duties of the Surviving Corporation.

          Section 1.5 Certificate of Incorporation . The certificate of incorporation of the Merger Sub in effect immediately prior to the Effective Time shall be, from and after the Effective Time, the certificate of incorporation of the Surviving Corporation (the “ Surviving Charter ”) until amended as provided in the Surviving Charter or by applicable Laws.

          Section 1.6 Bylaws . The Company shall take all requisite action so that the bylaws of Merger Sub in effect immediately prior to the Effective Time shall be, from and after the Effective Time, the bylaws of the Surviving Corporation (the “ Surviving Bylaws ”) until amended as provided in the Surviving Charter, in the Surviving Bylaws or by applicable Laws.

          Section 1.7 Directors . The directors of the Company and its Subsidiaries immediately prior to the Effective Time shall submit their resignations to be effective as of the Effective Time. The Company shall take all requisite action so that the directors of Merger Sub immediately prior to the Effective Time shall be, from and after the Effective Time, the directors of the Surviving Corporation until their successors are duly elected and qualified or until their earlier death, resignation or removal in accordance with the Surviving Charter, the Surviving Bylaws and the DGCL.

ARTICLE II

EFFECT OF THE MERGER ON CAPITAL STOCK

          Section 2.1 Conversion of Capital Stock . At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any shares of capital stock of Merger Sub or the Company:

               (a)  Conversion of Merger Sub Capital Stock . Each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one fully paid and non-assessable share of common stock, par value $0.01 per share, of the Surviving Corporation.

               (b)  Cancellation of Treasury Stock and Parent-Owned Stock . Each share of Company Common Stock owned by the Company or any of its wholly-owned Subsidiaries or by Parent or any of its wholly-owned Subsidiaries immediately prior to the Effective Time (collectively, the “ Excluded Shares ”) shall be canceled automatically and shall cease to exist, and no consideration shall be paid for those Excluded Shares.

               (c)  Conversion of Company Common Stock . Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares and Dissenting Shares) shall be converted into the right to receive $1.68 in cash, without interest (the “ Merger Consideration ”). All shares of Company Common Stock that have been so converted shall be canceled automatically and shall cease to exist, and the holders of certificates which immediately prior to the Effective Time represented those shares (together with any book-entry shares, the “ Certificates ”) shall cease to have any rights with respect to those shares, other than the right to receive the Merger Consideration upon surrender of their Certificates in accordance with Section 2.2.

               (d)  Adjustments . If, between the date of this Agreement and the Effective Time, the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification or other similar transaction, then the Merger Consideration shall be adjusted to the extent appropriate.

          Section 2.2 Surrender of Certificates .

               (a)  Payment Fund . Prior to the Effective Time, Parent shall select a bank or trust company, satisfactory to the Company in its reasonable discretion to act as the paying agent in the Merger (the “ Paying Agent ”), and not later than the close of business on the

Business Day immediately preceding the Closing Date, shall provide funds to the Paying Agent in amounts necessary for the payment of the aggregate Merger Consideration payable under Section 2.1(c) upon surrender of Certificates. Such funds provided to the Paying Agent are referred to as the “ Payment Fund .”

               (b)  Payment Procedures .

                    (i)  Letter of Transmittal . Promptly after the Effective Time, Parent shall cause the Paying Agent to mail to each holder of record of a Certificate (A) a letter of transmittal in customary form, specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of Certificates to the Paying Agent and (B) instructions for surrendering Certificates.

                    (ii)  Surrender of Certificates . Upon surrender of a Certificate for cancellation to the Paying Agent, together with a duly executed letter of transmittal and any other documents required by the Paying Agent, the holder of that Certificate shall be entitled to receive in exchange therefor the Merger Consideration payable in respect of that Certificate less any required withholding of Taxes as provided in Section 2.2(d). Any Certificates so surrendered shall be canceled immediately. No interest shall accrue or be paid on any amount payable upon surrender of Certificates.

                    (iii)  Unregistered Transferees . If any Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, then the Merger Consideration may be paid to such a transferee so long as (A) the surrendered Certificate is accompanied by all documents required to evidence and effect that transfer and (B) the Person requesting such payment (1) pays any applicable transfer Taxes or (2) establishes to the satisfaction of Parent and the Paying Agent that any such Taxes have already been paid or are not applicable.

                    (iv)  No Other Rights . Until surrendered in accordance with this Section 2.2(c), each Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive the applicable Merger Consideration. Payment of the full Merger Consideration upon the surrender of any Certificate shall be deemed to be payment in full satisfaction of all rights pertaining to that Certificate and the shares of Company Common Stock formerly represented by it.

               (c)  No Further Transfers . At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time.

               (d)  Required Withholding . Parent, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from any Merger Consideration payable under this Agreement such amounts as are required to be deducted or withheld therefrom under (i) the Internal Revenue Code of 1986 (the “ Code ”), (ii) any applicable state, local or foreign Tax Laws or (iii) any other applicable Laws. To the extent that any amounts are so deducted and

withheld, those amounts shall be treated as having been paid to the Person in respect of whom such deduction or withholding was made for all purposes under this Agreement.

               (e)  No Liability . None of Parent, the Surviving Corporation or the Paying Agent shall be liable to any holder of Certificates for any amount properly paid to a public official under any applicable abandoned property, escheat or similar Laws.

               (f)  Investment of Payment Fund . The Paying Agent shall invest the Payment Fund as directed by Parent. Any interest and other income resulting from such investment shall become a part of the Payment Fund, and any amounts in excess of the amounts payable under Section 2.1(c) shall be paid promptly to Parent.

               (g)  Termination of Payment Fund . Any portion of the Payment Fund that remains unclaimed by the holders of Certificates 270 days after the Effective Time shall be delivered by the Paying Agent to Parent upon demand. Thereafter, any holder of Certificates who has not complied with this ARTICLE II shall look only to Parent for payment of the applicable Merger Consideration.

               (h)  Lost, Stolen or Destroyed Certificates . If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in the form required by Parent as indemnity against any claim that may be made against Parent on account of the alleged loss, theft or destruction of such Certificate, the Paying Agent shall pay the Merger Consideration to such Person in exchange for such lost, stolen or destroyed Certificate.

          Section 2.3 Stock Options .

               (a) Except as otherwise agreed prior to the Effective Time by Parent and the Company, the Company shall take all requisite action so that, as of the Effective Time, each option to acquire shares of Company Common Stock (each, a “ Company Stock Option ”) outstanding immediately prior to the Effective Time, whether or not then exercisable or vested, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of that Company Stock Option, shall be converted into the right to receive an amount in cash, without interest, equal to (a) the Option Merger Consideration multiplied by (b) the aggregate number of shares of Company Common Stock into which the applicable Company Stock Option was exercisable immediately prior to the Effective Time. “ Option Merger Consideration ” means the excess, if any, of the Merger Consideration over the per share exercise or purchase price of the applicable Company Stock Option. The payment of the Option Merger Consideration to the holder of a Company Stock Option shall be reduced by any income or employment Tax withholding required under (i) the Code, (ii) any applicable state, local or foreign Tax Laws or (iii) any other applicable Laws. To the extent that any amounts are so withheld, those amounts shall be treated as having been paid to the holder of that Company Stock Option for all purposes under this Agreement.

               (b) Prior to the Effective Time, the Company shall use its reasonable best efforts to commence and maintain in effect, at least until the Effective Time, a tender offer (the “Tender Offer”) to purchase all outstanding Company Stock Options, whether or not vested

and exercisable, that the Company does not have the right to cancel and that have exercise prices that exceed the Merger Consideration. Upon acceptance of any Company Stock Option pursuant to the Tender Offer, such Company Stock Option shall be cancelled and shall no longer be outstanding, and the holder that so tendered shall only have the right to receive the consideration, if any, payable pursuant to the Tender Offer for such Company Stock Option.

          Section 2.4 Dissenting Shares .

               (a) Notwithstanding any provision of this Agreement to the contrary, any shares of Company Common Stock for which the holder thereof (i) has not voted in favor of the Merger or consented to it in writing and (ii) has demanded the appraisal of such shares in accordance with, and has complied in all respects with, Section 262 of the DGCL (collectively, the “ Dissenting Shares ”) shall not be converted into the right to receive the Merger Consideration in accordance with Section 2.1(c). At the Effective Time, (x) all Dissenting Shares shall be cancelled and cease to exist and (y) the holder or holders of Dissenting Shares shall be entitled only to such rights as may be granted to them under Section 262 of the DGCL.

               (b) Notwithstanding the provisions of Section 2.4(a), if any holder of Dissenting Shares effectively withdraws or loses such appraisal rights (through failure to perfect such appraisal rights or otherwise), then that holder’s shares (i) shall no longer be deemed to be Dissenting Shares and (ii) shall be treated as if they had been converted automatically at the Effective Time into the right to receive the Merger Consideration upon surrender of the Certificate representing such shares in accordance with Section 2.2.

               (c) The Company shall give Parent (i) prompt notice of any demands for appraisal of any shares of Company Common Stock, the withdrawals of such demands, and any other instrument served on the Company under the provisions of Section 262 of the DGCL and (ii) the right to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL. The Company shall not offer to make or make any payment with respect to any demands for appraisal without the prior written consent of Parent.

          Section 2.5 Tax Consequences . The parties intend the Merger to be a taxable sale of the Company Common Stock by the holders of shares of Company Common Stock and of Company Stock Options. Parent makes no representations or warranties to the Company or to any holder of shares of Company Common Stock or Company Stock Options, and the Company makes no representations or warranties to any holder of shares of Company Common Stock or Company Stock Options, regarding the Tax treatment of the Merger, or any of the Tax consequences to the Company or any holder of shares of Company Common Stock or Company Stock Options of this Agreement, the Merger or any of the other transactions or agreements contemplated hereby.

          Section 2.6 Additional Actions . If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any further deeds, assignments or assurances in law or any other acts are necessary or desirable to (i) vest, perfect or confirm, or record or otherwise, in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of the Company or (ii) otherwise carry out the provisions of this Agreement, the officers and directors of the Surviving Corporation are hereby fully authorized,

in the name and on behalf of the Company, to take all such lawful actions as are necessary, proper or desirable to vest, perfect or confirm title to and possession of such rights, properties or assets in the Surviving Corporation and otherwise to carry out the provisions of this Agreement.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

          The Company represents and warrants to Parent and Merger Sub that except as set forth in the disclosure schedule, dated as of the date of this Agreement, delivered by the Company to Parent contemporaneously with the execution of this Agreement (the “ Company Disclosure Schedule ”) or as set forth in the Company SEC Reports filed on or after January 1, 2006 and on or prior to the date of this Agreement::

          Section 3.1 Organization and Power . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as now conducted.

          Section 3.2 Foreign Qualifications . The Company is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction where the character of the assets and properties owned, leased or operated by it or the nature of its business makes such qualification or license necessary, except where failures to be so qualified or licensed or in good standing would not have a Company Material Adverse Effect.

          Section 3.3 Corporate Authorization . The Company has all necessary corporate power and authority to enter into this Agreement and, subject to adoption of this Agreement by the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock (the “ Requisite Company Vote ”), to consummate the transactions contemplated by this Agreement. The Company Board, upon the unanimous recommendation of the Special Committee, has unanimously (i) approved and declared advisable and in the best interests of the holders of Company Common Stock (other than Parent and its Affiliates) that the Company enter into this Agreement and consummate the Merger, this Agreement and the transactions contemplated by this Agreement on the terms and subject to the conditions set forth herein; (ii)  directed that adoption of this Agreement be submitted to a vote at a meeting of the holders of Company Common Stock; and (iii) recommended to the holders of Company Common Stock that they adopt this Agreement (the “ Company Board Recommendation ”). The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company, subject to the Requisite Company Vote.

          Section 3.4 Enforceability . This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Law affecting or relating to creditors’

rights generally and the availability of specific performance or injunctive relief and other equitable remedies.

          Section 3.5 Organizational Documents . The Company has previously filed with the SEC as exhibits to its Annual Report on Form 10-K correct and complete copies of the certificate of incorporation and bylaws of the Company as in effect on the date of this Agreement (collectively, the “ Company Organizational Documents ”).

          Section 3.6 Subsidiaries . A correct and complete list of all Subsidiaries of the Company and their respective jurisdictions of organization is set forth in Section 3.6 of the Company Disclosure Schedule. Except as set forth in Section 3.6 of the Company Disclosure Schedule, to the Knowledge of the Company, (a) each of the Subsidiaries of the Company is wholly owned by the Company, directly or indirectly, free and clear of any Liens, (b) the Company does not own, directly or indirectly, any capital stock of, or any other securities convertible or exchangeable into or exercisable for capital stock of, any Person other than the Subsidiaries of the Company, and (c) the Subsidiaries, individually and in the aggregate, are inactive, do not conduct any business or other activities, are not parties to any Contracts and have no employees, minimal assets and no liabilities.

          Section 3.7 Governmental Authorizations . The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement do not and will not require any consent, approval or other authorization of, or filing with or notification to, any international, national, federal, state, provincial or local governmental, regulatory or administrative authority, agency, commission, court, tribunal, arbitral body or self-regulated entity, whether domestic or foreign (each, a “ Governmental Entity ”), other than:

               (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware;

               (b) the filing with the United States Securities and Exchange Commission (the “ SEC ”) of (i) a proxy statement (the “ Company Proxy Statement ”) relating to the special meeting of the stockholders of the Company to be held to consider the adoption of this Agreement (the “ Company Stockholders Meeting ”) and (ii) any other filings and reports that may be required in connection with this Agreement and the transactions contemplated by this Agreement under the Securities Exchange Act of 1934, as amended (including the rules and regulations thereunder, the “ Exchange Act ”); and

               (c) compliance with the rules and regulations of the NASDAQ Global Market.

          Section 3.8 Non-Contravention . The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement do not and will not:

               (a) contravene or conflict with, or result in any violation or breach of, any provision of the Company Organizational Documents;

               (b) contravene or conflict with, or result in any violation or breach of, any Laws or Orders applicable to the Company or any of its Subsidiaries or by which any assets of the Company or any of its Subsidiaries (“ Company Assets ”) are bound, assuming that the Requisite Company Vote has been obtained and all consents, approvals, authorizations, filings and notifications described in Section 3.7 have been obtained or made except for such violations and breaches that would not have a Company Material Adverse Effect;

               (c) result in any violation or breach of, or constitute a default (with or without notice or lapse of time or both) under, any Contracts to which the Company is a party or by which any Company Assets are bound (collectively, “ Company Contracts ”), other than as set forth in Section 3.8(c) of the Company Disclosure Schedule or any violations, breaches or defaults that would not have a Company Material Adverse Effect;

               (d) require any consent, approval or other authorization of, or filing with or notification to, any Person under any Company Material Contracts, other than as set forth in Section 3.8(d) of the Company Disclosure Schedule or where the failure to obtain such consent, approval or authorization or make such filings or notifications would not have a Company Material Adverse Effect;

               (e) give rise to any termination, cancellation, amendment, modification or acceleration of any rights or obligations under any Company Material Contracts, other than as set forth in Section 3.8(e) of the Company Disclosure Schedule or that would not have a Company Material Adverse Effect; or

               (f) cause or result in the creation or imposition of any Liens on any Company Assets, other than as set forth in Section 3.8(f) of the Company Disclosure Schedule and such Liens the creation or imposition of which would not have a Company Material Adverse Effect..

          Section 3.9 Capitalization .

               (a) The authorized capital stock of the Company consists solely of (i) 30,000,000 shares of Company Common Stock, par value $0.10 per share, and (ii) 5,000,000 shares of preferred stock, par value $0.01 per share (“ Company Preferred Stock ”).

               (b) As of the close of business on April 28, 2008, (i) 13,477,920 shares of Company Common Stock were issued and outstanding, (ii) no shares of Company Common Stock were held in treasury by the Company, (iii) 1,500,000 shares of Company Common Stock were reserved for issuance under the Company Option Plans, including with respect to outstanding Company Stock Options, (iv) 2,499 shares of Company Common Stock were reserved for issuance upon exercise of outstanding warrants to purchase shares of Company Common Stock (“ Company Warrants ”), and (v) no shares of Company Preferred Stock were outstanding. Since that date, no shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for shares of capital stock of the Company, have been issued other than upon exercise of the Company Stock Options or the Company Warrants outstanding on that date. The Company has delivered true and complete copies of the outstanding Company Warrants or form thereof to Parent.

               (c) All issued shares of Company Common Stock are duly authorized, validly issued, fully paid and non-assessable, and not subject to any pre-emptive rights. All shares of Company Common Stock that are subject to issuance upon the exercise of outstanding Company Stock Options or the Company Warrants, upon issuance prior to the Effective Time upon the terms and subject to the conditions specified in the instruments under which they are issuable, (i) will be duly authorized, validly issued, fully paid and non-assessable and (ii) will not be subject to any pre-emptive rights.

               (d) There are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of Company Common Stock or Company Preferred Stock and other than the outstanding Company Stock Options and the Company Warrants, there are no options, warrants or other rights, agreements, rights plans, arrangements or commitments obligating the Company to issue or sell any shares of capital stock of, or other equity interests in, the Company.

               (e) To the Company’s Knowledge, each outstanding share of capital stock of each Subsidiary of the Company is duly authorized, validly issued, fully paid and non-assessable and not subject to any pre-emptive rights.

          Section 3.10 Options .

               (a) As of the date of this Agreement, there are outstanding Company Stock Options to acquire an aggregate of 926,550 shares of Company Common Stock under the 1997 Stock Incentive Plan, as amended, the 2000 Stock Incentive Plan, as amended, and the 2005 Stock Incentive Plan (collectively, the “ Company Option Plans ”). Except for (i) outstanding Company Stock Options to purchase an aggregate of 926,550 shares of Company Common Stock, (ii) an aggregate of 573,450 shares of Company Common Stock available for issuance pursuant to future grants of Company Stock Options under the Company Option Plans and (iii) the Company Warrants, there are no options, warrants, calls, conversion rights, stock appreciation rights, redemption rights, repurchase rights or other rights, agreements, arrangements or commitments to which the Company is a party obligating the Company to issue or sell any shares of their capital stock or other securities.

               (b) The Company has filed with the SEC correct and complete copies of all Company Option Plans and has provided to Parent copies of all forms of outstanding Company Stock Option award agreements the forms of which are not filed with the SEC. Section 3.10(b) of the Company Disclosure Schedule sets forth a correct and complete list of the following information, as of the date of this Agreement, with respect to each Company Stock Option: (i) name of the holder; (ii) exercise price; (iii) number of shares of Company Common Stock issuable upon exercise; (iv) Company Option Plan under which the option was granted; (v) date of grant; (vi) vesting schedule; and (vii) expiration date.

          Section 3.11 Voting .

               (a) The Requisite Company Vote is the only vote of the holders of any class or series of the capital stock of the Company necessary (under the Company Organizational

Documents or the DGCL) to approve and adopt this Agreement, the Merger and the other transactions contemplated by this Agreement.

               (b) There are no voting trusts, proxies or similar agreements, arrangements or commitments to which the Company is a party with respect to the voting of any shares of capital stock of the Company, other than proxies held by Parent or any of its subsidiaries. There are no bonds, debentures, notes or other instruments of indebtedness of the Company that have the right to vote, or that are convertible or exchangeable into or exercisable for securities having the right to vote, on any matters on which stockholders of the Company may vote.

          Section 3.12 Company SEC Reports .

               (a) The Company has filed with the SEC all reports, schedules, forms, statements and other documents required to be filed with the SEC since January 1, 2006 (collectively, the “ Company SEC Reports ”), and has made available to Parent correct and complete copies of any exhibits to such Company SEC Reports for which confidential treatment was granted by the SEC. As of the respective dates that they were filed, the Company SEC Reports complied as to form in all material respects with all applicable requirements of the Securities Act of 1933, as amended (together with the rules and regulations thereunder, the “Securities Act”), and the Exchange Act, as applicable. Except to the extent that information contained in any Company SEC Report has been revised or superseded by a later filed Company SEC Report, none of the Company SEC Reports, at the time filed, contained any untrue statement of a material fact or omitted to state any material fact required to be stated in or necessary in order to make the statements in the Company SEC Reports, in light of the circumstances under which they were made, not misleading.

               (b) The Company has heretofore furnished to Parent complete and correct copies of all material amendments and modifications that have not been filed by the Company with the SEC to all agreements, documents and other instruments that previously had been filed by the Company with the SEC and are currently in effect.

               (c) The Company has furnished Parent with copies of all comment letters received by the Company from the SEC with respect to the Company SEC Reports or received since January 1, 2006 and all responses of the Company thereto. There are no outstanding unresolved issues with respect to the Company or the Company SEC Reports noted in comment letters or other correspondence received by the Company or its attorneys from the SEC, and there are no pending formal or, to the Knowledge of the Company, informal investigations of the Company by the SEC.

          Section 3.13 Executive and Director Loans . There are no outstanding loans made by the Company or any of its Subsidiaries to any executive officer (within the meaning of Rule 3b-7 under the Exchange Act) or director of the Company. Since the enactment of the Sarbanes-Oxley Act of 2002 (“ SOX ”), except as set forth in Section 3.13 of the Company Disclosure Schedule, the Company has not made any loans to any such Company executive officers or directors.

          Section 3.14 Accounting Controls and Disclosure Controls .

               (a) The Company maintains an accounting system designed to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets that could have a material effect on the Company’s financial statements is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

               (b) The Company maintains “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) required in order for the Chief Executive Officer and Chief Financial Officer of the Company to engage in the review and evaluation process mandated by Section 302 of SOX. The Company’s “disclosure controls and procedures” are reasonably designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company is not a party to any off-balance sheet arrangements (as defined in Item 303(c) of Regulation S-K promulgated under the Exchange Act).

               (c) To the Knowledge of the Company, since January 1, 2006, (i) there has been no material complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls and (ii) no current or former attorney representing the Company or any of the Company Subsidiaries has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company Board or any committee thereof or to any director or executive officer of the Company.

          Section 3.15 Financial Statements . The audited consolidated financial statements and unaudited consolidated interim financial statements of the Company and its consolidated Subsidiaries included or incorporated by reference in the Company SEC Reports:

               (a) complied in all material respects with applicable accounting requirements and the rules and regulations of the SEC;

               (b) were prepared in accordance with generally accepted accounting principles (“ GAAP ”) applied on a consistent basis (except as may be indicated in the notes to those financial statements) and, in the case of unaudited financial statements, as permitted by the applicable instructions and regulations of the SEC relating to the preparation of quarterly reports on Form 10-Q); and

               (c) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their

consolidated results of operations and cash flows for the periods then ended , or, as set forth in the Company SEC Reports, were restated to do so (subject, in the case of any unaudited interim financial statements, to normal year-end adjustments).

          Section 3.16 Liabilities . There are no liabilities or obligations of any kind, whether accrued, contingent, absolute, inchoate or otherwise (collectively, “ Liabilities ”) of the Company or any of its Subsidiaries, other than:

               (a) Liabilities disclosed in the consolidated balance sheet of the Company and its consolidated Subsidiaries as of December 31, 2007, set forth in the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2007;

               (b) Liabilities pursuant to the New Financing Facility; and

               (c) Liabilities incurred since December 31, 2007 in the ordinary course of business consistent with past practices;

               (d) Liabilities that do not exceed, individually or in the aggregate, US$500,000; and

               (e) Liabilities set forth in Section 3.16(c) of the Company Disclosure Schedule.

          Section 3.17 Absence of Certain Changes . Since March 31, 2007, the Company has conducted its business in the ordinary course consistent with past practices and, except as described in the Company SEC Reports, to the Company’s Knowledge:

               (a) there has not been any Company Material Adverse Effect; and

               (b) neither the Company nor any of its Subsidiaries has taken any action that, if taken after the date of this Agreement, would be prohibited by Section 5.1, other than as set forth in Section 3.17 of the Company Disclosure Schedule.

          Section 3.18 Litigation . Other than as set forth in Section 3.18 of the Company Disclosure Schedule, there are no legal actions, claims, demands, arbitrations, hearings, charges, complaints, investigations, examinations, indictments, litigations, suits or other civil, criminal, administrative (including, but not limited to, NASDAQ or other self regulatory organization) or investigative proceedings (collectively, “ Legal Actions ”) pending or, to the Knowledge of the Company, threatened, against (a) the Company or, to the Knowledge of the Company, any of its Subsidiaries or (b) any director, officer or employee of the Company or other Person for whom the Company may be liable, in each case other than Legal Actions that would not have a Company Material Adverse Effect. To the Knowledge of the Company, there are no Orders outstanding against the Company or any of its Subsidiaries.

          Section 3.19 Contracts .

               (a) There are no Company Contracts required to be described in, or filed as an exhibit to, any Company SEC Report that are not so described or filed as required by

the Securities Act or the Exchange Act, as the case may be. The Company has made available to Parent correct and complete copies of all Company Contracts filed with the SEC that are not otherwise publicly available in complete form.

               (b) Except as would not have a Company Material Adverse Effect, (i) all Company Contracts are valid and binding obligations of the Company and, to the Knowledge of the Company, each counterparty thereto, are in full force and effect and are enforceable in accordance with their respective terms, (ii) the Company is not in violation or breach of, or in default (with or without notice or the lapse of time or both) under, any Company Material Contract and, (iii) to the Knowledge of the Company, no other Person is in violation or breach of, or in default (with or without notice or the lapse of time or both) under, any Company Material Contracts.

               (c) Except as set forth in Section 3.19(c) of the Company Disclosure Schedule, there are no Company Contracts that restrict the ability of the Company to develop, publish or otherwise distribute interactive entertainment software products in any geographic area.

               (d) Except as set forth in Section 3.19(d) Section 3.19(d) of the Company Disclosure Schedule, the Company is not a party to or bound by any financial derivatives master agreements or engaged in any financial hedging activities.

          Section 3.20 Employee Benefit Plans .

               (a) Section 3.20(a) of the Company Disclosure Schedule contains a complete list of each material employee benefit plan, program, policy, practice, agreement, or arrangement, whether or not subject to ERISA, (i)  maintained, sponsored or contributed to by the Company, or (ii) to which any of them could incur any direct or indirect material liability (each, a “ Company Benefit Plan ”).

               (b) The Company has provided to Parent with respect to each applicable Company Benefit Plan correct and complete copies of: (i) a copy of the most recent annual report (if required under ERISA) with respect to each such Company Benefit Plan (including all schedules and attachments); (ii) a copy of the summary plan description, together with each summary of material modification required under ERISA with respect to such Company Benefit Plan; (iii) a true and complete copy of each written Company Benefit Plan (including all amendments not incorporated into the documentation for each such plan); (iv) all trust agreements, insurance contracts, and similar instruments with respect to each funded or insured Company Benefit Plan; and (v) any investment management agreements, administrative services contracts or similar agreements that are in effect as of the date hereof relating to the ongoing administration and investment of any Company Benefit Plan.

               (c) No Company Benefit Plan is, and the Company has no obligation to maintain, contribute to or otherwise participate in, and has no liability or other obligation (whether accrued, absolute, contingent or otherwise) under, a (i) “multiemployer plan” (within the meaning of Section 3(37) of ERISA), (ii) multiple employer plan” (within the meaning of Section 413(c) of the Code), (iii) multiple employer welfare arrangement” (within the meaning

of Section 3(40) of ERISA), or (iv) plan that is subject to the provisions of Title IV of ERISA or Section 412 of the Code. No Company Benefit Plan is maintained through a human resources and benefits outsourcing entity, professional employer organization, or other similar vendor or provider.

               (d) No Company Benefit Plan provides health, life or other coverage for former directors, officers or employees (or any spouse or former spouse or other dependent thereof), other than benefits required by Section 4980B of the Code, Part 6 of Title I of ERISA, or similar provisions of state law.

               (e) Each Company Benefit Plan (and each related trust, insurance contract or fund) has been maintained, funded and administered in all material respects in accordance with its governing instruments and all applicable laws including ERISA and the Code.

               (f) Each Company Benefit Plan intended to qualify under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code has either received or is entitled to rely upon, a favorable determination letter or opinion letter from the IRS with respect to such Company Benefit Plan as to its qualified status under the Code, and, to the Knowledge of the Company, nothing has occurred that would reasonably expected to adversely affect such determination or opinion.

               (g) All reports, forms and other documents required to be filed with any government authority or furnished to employees with respect to any Company Benefit Plan (including summary plan descriptions, Forms 5500 and summary annual reports) have been timely filed or furnished and, to the Knowledge of the Company, are accurate in all material respects.

               (h) Each Company Benefit Plan, employment agreement, or other contract, plan, program, agreement, or arrangement that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) has been operated in good faith compliance with Section 409A of the Code, its Treasury regulations, and any administrative guidance relating thereto; and no additional tax under Section 409A(a)(1)(B) of the Code has been or is reasonably expected to be incurred by a participant in any such Company Benefit Plan, employment agreement, or other contract, plan, program, agreement, or arrangement. The Company is not a party to, or otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up of taxes imposed by Section 409A(a)(1)(B) of the Code. No Company Stock Option or other right to acquire Company Stock or other equity of the Company (i) has an exercise price that was less than the fair market value of the underlying equity as of the date such Option or other right was granted, (ii) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise of disposition of such stock Option or right, or (iii) has been granted after December 31, 2004, with respect to any class of stock of the Company that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A of the Code).

               (i) The Company has no material Liabilities with respect to any misclassification of any Person as an independent contractor rather than as an employee.

               (j) With respect to each applicable Company Benefit Plan, to the Knowledge of the Company, (i) no non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code or Section 406 of ERISA, has occurred; (ii) there are no actions, suits or claims pending, threatened or anticipated (other than routine claims for benefits) against any such Company Benefit Plan or fiduciary thereto or against the assets of any such Company Benefit Plan; (iii) there are no audits, inquiries or proceedings pending or, to the Knowledge of the Company, threatened by any governmental authority with respect to any Company Benefit Plan; and (iv) there has been no breach of fiduciary duty (including violations under Part 4 of Title I of ERISA) which has resulted or could reasonably be expected to result in material liability to the Company.

               (k) No capital stock or other securities of the Company or any of its Subsidiaries forms or has formed a material part of the assets held in trust by any Company Benefit Plan.

          Section 3.21 Labor Relations and Employment Matters .

               (a) Except as set forth in Section 3.21 of the Company Disclosure Schedule, the Company is not a party to, bound by or subject to, or currently negotiating in connection with entering into, any collective bargaining agreement or other labor contract. Except as set forth in Section 3.21 of the Company Disclosure Schedule, none of the employees of the Company is represented by any union with respect to his or her employment by the Company. There is no (i) unfair labor practice, labor dispute (other than individual grievances) or labor arbitration proceeding pending or to the Knowledge of the Company, threatened against the Company relating to its business, (ii) activity or proceeding by a labor union or representative thereof to the Company’s Knowledge to organize any employees of the Company, or (iii) lockout, strike, slowdown, work stoppage or threat thereof by or with respect to such employees, and during the last three (3) years there has not been any such action.

               (b) Except as would not have a Company Material Adverse Effect, the Company is in compliance with all applicable Laws relating to the employment of labor, including all applicable Laws relating to wages, hours, collective bargaining, employment discrimination, civil rights, safety and health, workers’ compensation, pay equity and the collection and payment of withholding and/or social security taxes.

          Section 3.22 Taxes . Except as set forth in Section 3.23 of the Company Disclosure Schedule:

               (a) All material Tax Returns required to be filed by or with respect to the Company have been properly prepared and timely filed, and all such Tax Returns (including information provided therewith or with respect thereto) are correct and complete in all material respects.

               (b) The Company has fully and timely paid all material Taxes owed by them (whether or not shown on any Tax Return) and have made adequate provision for any

Taxes that are not yet due and payable for all taxable periods, or portions thereof, ending on or before the date of this Agreement.

               (c) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection, assessment or reassessment of, Taxes due from the Company for any taxable period and no request for any such waiver or extension is currently pending.

               (d) No audit or other proceeding by any Governmental Entity is pending or, to the Knowledge of the Company, threatened with respect to any Taxes due from or with respect to the Company. No Governmental Entity has given written notice of its intention to assert any deficiency or claim for additional Taxes against the Company. Since January 1, 2006, no claim has been made against the Company by any Governmental Entity in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by that jurisdiction. All deficiencies for Taxes assessed against the Company have been fully and timely paid, settled or properly reflected in the most recent financial statements contained in the Company SEC Reports.

               (e) There are no Liens for Taxes upon the Company Assets, except for statutory Liens for current Taxes not yet due.

               (f) The Company is not a party to any Contract (other than any Contract to which Parent or Parent’s Affiliates are party) relating to the sharing, allocation or indemnification of Taxes (collectively, “ Tax Sharing Agreements ”) or has any liability for Taxes of any Person (other than members of the affiliated group, within the meaning of Section 1504(a) of the Code, filing consolidated federal income tax returns of which the Company is the common parent) under Treasury Regulation § 1.1502-6, Treasury Regulation § 1.1502-78 or any similar state, local or foreign Laws, as a transferee or successor, or otherwise.

               (g) The Company has withheld (or will withhold) from its employees, independent contractors, creditors, stockholders and third parties, and timely paid to the appropriate taxing authority, proper and accurate amounts in all material respects for all periods ending on or before the Closing Date in compliance with all Tax withholding and remitting provisions of applicable Laws. The Company has complied in all material respects with all Tax information reporting provisions under applicable Laws.

               (h) The Company has not constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the two years prior to the date of this Agreement (or will constitute such a corporation in the two years prior to the Closing Date) or (ii) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.

               (i) Any adjustment of Taxes of the Company made by the IRS, which adjustment is required to be reported to the appropriate state, local, or foreign Taxing authorities, has been so reported.

               (j) The Company has not executed or entered into a closing agreement under Section 7121 of the Code or any similar provision of state, local or foreign Laws, and the Company is not subject to any private letter ruling of the IRS or comparable ruling of any other taxing authority.

               (k) The Company is not, nor 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)(1)(A)(ii) of the Code.

               (l) The Company has not entered into any “listed transaction” within the meaning of Treasury Regulation § 1.6011-4(b).

               (m) The net operating loss carryforwards of the Company (the “ NOLs ”), as set forth in Section 3.22(m) of the Company Disclosure Schedule, are not subject to any limitation under Section 382 or 384 of the Code or otherwise. There are no Legal Actions pending or, to the Knowledge of the Company, threatened against, with respect to or in limitation of the NOLs, including any limitations under Sections 382 or 384 of the Code (other than limitations incurred in connection with transactions contemplated by this Agreement).

          Section 3.23 Environmental Matters .

               (a) Except as would not have a Company Material Adverse Effect, the Company and, to the Knowledge of the Company, its predecessors are and have for the past three years been in compliance with:

                    (i) all applicable Laws relating to (A) pollution, contamination, protection of the environment, (B) emissions, discharges, disseminations, releases or threatened releases of Hazardous Substances into the air (indoor or outdoor), surface water, groundwater, soil, land surface or subsurface, buildings, facilities, real or personal property or fixtures or (C) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances (collectively, “ Environmental Matters ”); and