AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

FTI CONSULTING, INC.

ACE ACQUISITION CORPORATION,

ATTENEX CORPORATION, and

THE SHAREHOLDER REPRESENTATIVES

June 9, 2008

TABLE OF CONTENTS

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Exhibits

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AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger (this “ Agreement ”) is entered into as of June 9, 2008, among FTI CONSULTING, INC. , a Maryland corporation (“ Parent ”), ACE ACQUISITION CORPORATION , a Washington corporation and a wholly-owned subsidiary of Parent (“ Merger Sub ”), ATTENEX CORPORATION , a Washington corporation (the “ Company ”), and the Shareholder Representatives named herein.

RECITALS

A. The respective boards of directors of the Company, Parent and Merger Sub believe it advisable and in the best interests of the Company, Parent and Merger Sub, respectively, and their respective shareholders, to effect a merger of Merger Sub with and into the Company upon the terms and subject to the conditions set forth in this Agreement (the “ Merger ”), such that Parent will acquire 100% equity ownership of the Company.

B. The board of directors of the Company has approved this Agreement and the Merger as required by applicable law.

C. The boards of directors of Parent and Merger Sub and Parent, as sole shareholder of Merger Sub, have each approved this Agreement and the Merger as required by applicable law.

D. Concurrently with the execution and delivery of this Agreement, certain Shareholders of the Company are entering into a Voting Agreement with Parent in the form attached hereto as hereto as Exhibit A (each, a “ Voting Agreement ” and collectively, the “ Voting Agreements ”) pursuant to which each such Shareholder of the Company will irrevocably approve and adopt this Agreement and approve the Merger and the other transactions contemplated hereby and agree not to support any conflicting Acquisition Proposal (as defined herein).

E. Concurrently with the execution and delivery of this Agreement, the employees of the Company set forth on Schedule 6.9 are entering into an Employment Agreement, substantially in the form attached hereto as Exhibit B (each, a “ Key Employee Agreement ” and collectively, the “ Key Employee Agreements ”) each to become effective only at the Effective Time.

AGREEMENT

Therefore, in consideration of the foregoing and the mutual agreements and covenants set forth below, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE 1.

DEFINITIONS

For purposes of this Agreement:

In addition to the definitions referred to or set forth below in this Section 1:

(a) The words “hereof”, “herein”, “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or provision of this Agreement, and reference to a particular Section of this Agreement shall include all subsections thereof;

(b) The words “party” and “parties” shall refer to the Company, Merger Sub and Parent;

(c) Definitions shall be equally applicable to both the singular and plural forms of the terms defined, and references to the masculine, feminine or neuter gender shall include each other gender;

(d) Accounting terms used herein and not otherwise defined herein are used herein as defined by GAAP;

(e) All references in this Agreement to any Section, Exhibit or Schedule shall, unless the context otherwise requires, be deemed to be a reference to a Section, Exhibit or Schedule as the case may be, as (and to the extent) such may be amended in accordance with Section 5.2.3 to this Agreement, all of which are made a part of this Agreement;

(f) any reference to “party” herein shall mean a party to this Agreement unless the context otherwise requires; and

(g) The words “including” and “include” shall be read to be followed by the words “without limitation” or words having similar import.

The following terms shall have the following meanings:

“ 280G Approval ” is defined in Section 5.8.

“ 280G Waiver ” is defined in Section 6.12.

“ 409A Payments ” is defined in Section 5.10.

“ Acquisition Proposal ” shall mean any proposal or offer made by a Person other than Parent or Merger Sub to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, sale, merger, consolidation or other business combination or similar transaction, (i) in excess of twenty-five percent (25%) of the assets of the Company (including pursuant to any exclusive license arrangement) or (ii) any voting securities of the Company (whether acquired from the Company or its Shareholders) as a result of which the shareholders of the Company immediately preceding such transaction would not hold at least seventy-five percent (75%) of the total equity interests (and seventy-five percent (75%) of each class and series of capital stock) in the surviving, resulting or acquiring entity in such transaction (or any direct or indirect parent or subsidiary of such entity).

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“ Additional Amount ” shall mean an amount determined by multiplying the Merger Consideration (unadjusted for the Adjustment Amount) by the product of (i) 0.04 and (ii) a fraction, (x) the numerator of which is the number of days prior to July 1, 2008 on which the Closing would have occurred if Section 2.1.2 did not include clause (i) thereto (including as a result of all of the conditions set forth in Articles 6 and 7 being satisfied prior to July 1, 2008 (excluding in each case conditions that, by their terms, cannot be satisfied until the Closing, but subject to the ability to satisfy such conditions on such date) and (y) the denominator of which is 365.

“ Action ” shall mean any claim, action, cause of action, charge, complaint, arbitration or suit (in contract, tort or otherwise), inquiry, proceeding or investigation before any Governmental Authority.

“ Adjustment Deficit ” is defined in Section 2.6.7(e).

“ Adjustment Deficit Per Share ” shall mean (a) the Adjustment Deficit divided by (b) the Common Base Number (provided, however, that for purposes of this definition, the number of shares of Common Stock issuable upon the exercise of all Vested Options shall be calculated on a fully-diluted, and not on a net-exercise, basis).

“ Adjustment Surplus ” is defined in Section 2.6.7(e).

“ Adjustment Surplus Per Share ” shall mean (a) the Adjustment Surplus divided by (b) the Common Base Number Common Base Number (provided, however, that for purposes of this definition, the number of shares of Common Stock issuable upon the exercise of all Vested Options shall be calculated on a fully-diluted, and not on a net-exercise, basis).

“ Affiliate ” shall mean, as to the Company (or other specified Person), each Person directly or indirectly controlling or controlled by or under common control with the Company (or such specified Person). For purposes of this definition, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or otherwise, and the terms “controlling,” “controlled by” and “under common control with” shall have correlative meanings.

“ Agreement ” is defined in the Preamble.

“ Articles of Merger ” is defined in Section 2.2.

“ Audited Financials ” is defined in Section 3.2.1(a).

“ Balance Sheet ” is defined in Section 3.2.1(b).

“ Balance Sheet Date ” shall mean April 30, 2008.

“ Business ” shall mean the business of the Company as such business is currently conducted.

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“ Business Day ” shall mean any day on which banking institutions in Seattle, Washington are customarily open for the purpose of transacting business.

“ Bylaws ” shall mean the corporate bylaws of a corporation, as from time to time in effect.

“ Certificates ” is defined in Section 2.7.2(a).

“ Charter ” shall mean the certificate or articles of incorporation, organization or formation or other charter or organizational documents of any Person (other than an individual), each as from time to time in effect.

“ Closing ” is defined in Section 2.1.2.

“ Closing Balance Sheet ” is defined in Section 2.6.7(b).

“ Closing Common Merger Consideration Per Share ” shall mean (a) the quotient of the Estimated Common Merger Consideration divided by the Common Base Number minus (b) the Escrow Contribution Amount.

“ Closing Company Assets ” means total current assets of the Company as of the Closing Date, and calculated after giving effect to the Closing, as determined in accordance with GAAP applied consistently with respect to the accounting policies, practices and procedures used to prepare the Financial Statements; provided, that for the avoidance of doubt, the assets of the type set forth on the Closing Working Capital illustration on Schedule 2.6.5 , as of the Closing Date and calculated after giving effect to the Closing, shall be deemed to be Closing Company Assets.

“ Closing Company Liabilities ” means the sum of the total current liabilities of the Company plus, without duplication, the sum of the Company’s Third Party Expenses, the 409A Payments, the Specified Liabilities (other than the Excluded Specified Liabilities, if any) and the Company Debt, in each case as of the Closing Date, and calculated after giving effect to the Closing (including any payroll and employment (not including withholding) taxes attributable to the treatment of Vested Options pursuant to Section 2.6.2), as determined in accordance with GAAP applied consistently with respect to the accounting policies, practices and procedures used to prepare the Financial Statements, provided, that the liabilities relating to the payments disclosed on Schedule 3.1.4(d)(1) (without giving effect to any Schedule Supplement) shall not be considered Closing Company Liabilities.

“ Closing Date ” shall mean the date of the Closing.

“ Closing Financial Data ” is defined in Section 2.6.7(b).

“ Closing Merger Consideration ” shall mean the Preferred Preferential Amount plus the product of (a) the Closing Common Merger Consideration Per Share multiplied by (b) the Common Base Number.

“ Closing Statement ” is defined in Section 2.6.7(b).

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“ Closing Working Capital ” means an amount equal to the Closing Company Assets minus Closing Company Liabilities.

“ Code ” shall mean the federal Internal Revenue Code of 1986, as amended.

“ Common Base Number ” shall mean the aggregate number of shares of Common Stock outstanding immediately prior to the Effective Time including, for the avoidance of doubt, any Dissenting Shares (other than shares owned by the Company, if any) plus the number of shares of Common Stock issuable upon the exercise of all Vested Options outstanding immediately prior to the Effective Time (calculated on a net-exercise basis using the Common Merger Consideration Per Share as the fair market value for purposes of such calculation) plus the number of shares of Common Stock issuable upon the conversion of all Preferred Stock outstanding immediately prior to the Effective Time in accordance with the terms of the Company’s Charter.

“ Common Merger Consideration ” shall mean the Merger Consideration minus the Preferred Preferential Amount.

“ Common Merger Consideration Per Share ” shall mean the quotient (expressed in dollars and cents) determined by dividing the Common Merger Consideration by the Common Base Number (subject to the reductions provided for in Section 2.6 and Section 2.10).

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

“ Company ” is defined in the Preamble.

“ Company Debt ” shall mean all indebtedness of the Company for borrowed money, including without limitation the sum of (a) all obligations of the Company for borrowed money including all prepayment premiums, interest, penalties and other amounts becoming due as a result of this transaction, (b) the present value (using the interest rate set forth in such lease as the discount rate or using an 5% discount rate if no interest rate is set forth in such lease) of all payment obligations of the Company under capital leases to which the Company is a party, (c) any payment obligations of the Company in respect of outstanding letters of credit which are not evidenced by trade payables, (d) any liability of the Company with respect to outstanding interest rate swaps, collars, caps and similar hedging obligations, (e) any outstanding indebtedness of the type referred to in clauses (a) through (d) above of any Person other than the Company which is either guaranteed by, or secured by a security interest upon any property owned by, the Company, and (f) any unpaid interest, prepayment premiums or penalties accrued or owing on any such indebtedness of the Company.

“ Company Employees ” shall mean all employees of the Company or any ERISA Affiliate.

“ Company Indemnitees ” is defined in Section 9.3.

“ Company Intellectual Property ” shall mean any Intellectual Property and Intellectual Property Rights, including the Company Registered Intellectual Property Rights (as defined in Section 3.6.1), that are owned or used by the Company.

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“ Company Plans ” is defined in Section 3.12(a).

“ Company Products ” shall mean all software products or other products under development or marketed, licensed, sold or distributed by the Company including the “Patterns” software product and the related software development kits.

“ Company Registered Intellectual Property Rights ” is defined in Section 3.6.1.

“ Company Securities ” shall mean (i) all shares of Company Stock issued and outstanding immediately prior to the Effective Time and (ii) all Options issued and outstanding immediately prior to the Effective Time.

“ Company Shareholder Approval ” is defined in Section 3.1.2.

“ Company Stock ” shall mean the Common Stock, the Series A Preferred Stock and the Series B Preferred Stock.

“ Company Stock Option Plan ” shall mean Company’s 2001 Equity Incentive Plan (as amended from time to time).

“ Confidentiality Agreement ” is defined in Section 5.3.

“ Consideration Schedule ” is defined in Section 2.6.5.

“ Contractual Obligation ” shall mean, with respect to any Person, any contract, agreement, arrangement, deed, mortgage, lease, license, indenture, note, bond, guarantee, loan, credit agreement, commitment, obligation, security agreement or other document or instrument (including any document or instrument evidencing or otherwise relating to any indebtedness but excluding the Charter and Bylaws of such Person), whether oral or in writing, to which such Person is a party or by which such Person, its assets or properties are legally bound.

“ Controlled Group Liability ” shall mean liabilities (i) under Title IV of ERISA, (ii) under ERISA Section 302, (iii) under Code Sections 412 and 4971, or (iv) as a result of a failure to comply with the continuation coverage requirements of ERISA Section 601 et seq. and Code Section 4980B (“ COBRA ”), other than such liabilities that arise solely out of, or relate solely to, the Company Plans.

“ D&O Indemnified Parties ” is defined in Section 5.4.1.

“ Disclosed Company Breach ” is defined in Section 9.7.

“ Dispute Notice ” is defined in Section 2.6.7(b).

“ Dissenting Shares ” is defined in Section 2.6.6.

“ Effective Time ” is defined in Section 2.2.

“ Enforceable ” shall mean, with respect to any Contractual Obligation, that such Contractual Obligation is the legal, valid and binding obligation of the Person in question, enforceable

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against such Person in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding at law or in equity).

“ Environmental Laws ” shall mean any federal, state or local law as in effect as of the date hereof relating to (i) worker safety and exposure to Hazardous Substances, (ii) releases or threatened releases of Hazardous Substances and (iii) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances.

“ ERISA ” shall mean the federal Employee Retirement Income Security Act of 1974 or any successor statute, as amended and as in effect as of the date hereof.

“ ERISA Affiliate ” shall mean any other Person under common control with the Company or any of its Affiliates or that, together with the Company or any of its Affiliates, could be deemed a “single employer” within the meaning of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, and the regulations issued thereunder.

“ Escrow Agent ” shall mean Mellon Investor Services LLC (operating with the service name BNY Mellon Shareowner Services), a New Jersey limited liability company.

“ Escrow Contribution Amount ” shall mean $4,400,000 divided by the sum of (i) the Common Base Number (provided, however, that for purposes of this definition, the number of shares of Common Stock issuable upon the exercise of all Vested Options shall be calculated on a fully-diluted, and not on a net-exercise, basis) plus (ii) the number of shares of Common Stock issuable upon the exercise of all Unvested Options outstanding (calculated on a fully-diluted, and not on a net-exercise, basis).

“ Escrow Deposit Amount ” shall mean $4.4 million minus the Unvested Options Escrow Amount.

“ Estimated Closing Balance Sheet ” is defined in Section 2.6.7(a).

“ Estimated Closing Statement ” is defined in Section 2.6.7(a).

“ Estimated Closing Working Capital ” is defined in Section 2.6.7(a).

“ Estimated Common Merger Consideration ” shall mean the Estimated Merger Consideration minus the Preferred Preferential Amount.

“ Estimated Merger Consideration ” is defined in Section 2.6.7(a).

“ Excluded Specified Liabilities ” shall have the meaning set forth on Schedule 1.2.

“ Final Merger Consideration ” shall mean the definitive Merger Consideration agreed to (or deemed to be agreed to) by Parent and the Shareholders Representatives in accordance with Section 2.6.7(b) or (c) of this Agreement or, if applicable, resulting from the determinations made by the Independent Accountant in accordance with this Section 2.6.7(d).

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“ Financial Statements ” is defined in Section 3.2.1(a).

“ GAAP ” shall mean generally accepted accounting principles in the United States as currently in effect.

“ GAAP Liabilities ” is defined in Section 3.2.2(c).

“ Governmental Authority ” shall mean any federal, state or local government, foreign or other government authority or regulatory or administrative agency or instrumentality (or any department, bureau or division thereof) or any court, arbitrator, mediator, tribunal or judicial body.

“ Governmental Order ” shall mean any order, writ, injunction, judgment, edict, ruling, requirement, decree, stipulation, determination or award entered by any Governmental Authority.

“ Hazardous Substances ” shall mean: (i) substances defined in or regulated as toxic or hazardous under the following federal statutes and their state counterparts, as well as these statutes’ implementing regulations, in each case, as amended and as in effect as of the Closing Date: the Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Safe Drinking Water Act, the Asbestos Hazard Emergency Response Act, the Atomic Energy Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, and the Clean Air Act; (ii) petroleum and petroleum products, including crude oil and any fractions thereof; (iii) natural gas, synthetic gas and any mixtures thereof; (iv) PCBs; (v) asbestos; and (vi) toxic mold.

“ HSR Act ” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“ Indemnity Escrow Agreement ” shall have the meaning set forth in Section 2.10.

“ Indemnity Escrow Amount ” shall mean an amount of cash equal to the Escrow Deposit Amount, plus any portion of the Escrow Contribution Amount with respect to Unvested Options, that is deposited with the Escrow Agent pursuant to this Agreement and the Indemnity Escrow Agreement, together with any interest or earnings thereon.

“ Independent Accountant ” is defined in Section 2.6.7(d).

“ Information Statement ” is defined in Section 5.2.2(b).

“ Intellectual Property ” shall mean any or all intellectual property, including without limitation, the following: (A) works of authorship, including without limitation, computer programs, algorithms, routines, source code and executable code, whether embodied in firmware, software or otherwise, documentation, designs, files, records and data (“ Software ”); (B) inventions (whether or not patentable), improvements, and technology; (C) proprietary and confidential information, including technical data, customer and supplier lists and data, trade secrets, show-how, know-how and techniques; (D) databases, data compilations and collections and technical data; (E) tools, methods, processes, devices, prototypes, schematics, bread boards, net lists, mask works, test methodologies and hardware and Software development tools; (F) World Wide Web addresses (“ WWW ”), uniform resource locators and domain names; and (G) all instantiations of the foregoing in any form and embodied in any media.

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“ Intellectual Property Rights ” shall mean any and all rights in, arising out of, or associated with Intellectual Property and any or all of the following and all rights in, arising out of, or associated therewith: (A) all United States and foreign patents and utility models and applications therefor, and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries, including without limitation, invention disclosures (“ Patents ”); (B) all trade secrets and other rights in privacy, data, know-how and confidential or proprietary information; (C) all copyrights, copyrights registrations and applications therefor and all other rights corresponding thereto throughout the world (“ Copyrights ”); (D) all industrial designs and any registrations and applications therefor throughout the world; (E) all rights in WWW addresses, uniform resource locators and domain names and applications and registrations therefor (“ Internet Properties ”); (F) all rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefore (“ Trademarks ”); and (G) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“ Interim Financials ” is defined in Section 3.2.1(b).

“ IP Licenses ” means all the contracts , licenses and agreements to which the Company is a party with respect to any Intellectual Property or Intellectual Property Rights licensed to or by, or created for or by, the Company.

“ Key Employee Agreement ” is defined in the Recitals.

“ Knowledge ” with respect to the Company shall mean the actual knowledge of the officers and members of the board of directors of the Company, without giving effect to imputed knowledge or giving rise to any duty to investigate.

“ Leases ” is defined in Section 3.5.2.

“ Legal Requirement ” shall mean any federal, state or local, foreign or other law, statute, ordinance, code, rule or regulation, or any Governmental Order, or any license, franchise, consent, approval, permit or similar right granted under any of the foregoing.

“ Letter of Transmittal ” is defined in Section 2.7.2(a).

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“ Lien ” shall mean any mortgage, pledge, lien, security interest, pledge, charge, claim, restriction on transfer, attachment or other encumbrance of any sort, provided , however , that the term “Lien” shall not include (i) statutory liens for Taxes not yet due and payable (ii) encumbrances in the nature of zoning restrictions, easements, rights or restrictions of record on the use of real property if the same do not materially detract from the value of the property encumbered thereby or impair the use of such property in the Business, (iii) liens to secure landlords, lessors or renters under leases or rental agreements confined to the premises rented, (iv) deposits or pledges made in connection with, or to secure payment of, worker’s compensation, unemployment insurance, old age pension programs mandated under applicable Legal Requirements or other social security, (v) liens in favor of carriers, warehousemen, mechanics and materialmen, liens to secure claims for labor, materials or supplies and other like liens for amounts not yet due and payable and (vi) restrictions on transfer of securities imposed by applicable state and federal securities laws.

“ Loss ( es )” shall mean any loss, liability, claim, damage, Action, obligation, fine, judgment, award, Tax, cost or expense (including costs of investigation and defense and reasonable attorneys’ and experts’ fees), whether absolute, accrued, contingent or otherwise and whether or not involving a third party claim.

“ Material Adverse Effect ” shall mean any change, effect or circumstance that is materially adverse to the business, assets, condition (financial or otherwise), liabilities, or results of operations of the Company, taken as a whole, or that materially and adversely affects the ability of the Company to perform its obligations under this Agreement and consummate the transactions contemplated hereby; provided , however , that none of the following shall be deemed in themselves (either alone or in combination) to constitute, and none of the following shall be taken into account in determining whether there has been or may be, a Material Adverse Effect: (i) any change, effect or circumstance that arises out of or relates to a general deterioration in the economy or in the industries in which the Company operates; (ii) any change, effect or circumstance that arises out of or relates to the outbreak or escalation of hostilities involving the United States, the declaration by the United States of a national emergency or war or the occurrence of any other calamity or crisis, including an act of terrorism; (iii) any change, effect or circumstance that arises out of or relates to a natural disaster or any other natural occurrence beyond the control the Company; provided, however , that the exceptions in clauses (i), (ii) and (iii) will not apply, to the extent that such change, effect or circumstance disproportionately affects the Company compared to the manner in which such change, effect, or circumstance generally affects the industries or businesses in which the Company operates; (iv) any change, effect or circumstance that arises out of or relates to the disclosure of the fact that Parent is the prospective acquirer of the Company; (v) any change, effect or circumstance that arises out of or relates to any action taken by Parent or any of its Affiliates; (vi) any change, effect or circumstance that arises out of or relates to the announcement or pendency of the transactions contemplated hereby (including any cancellations of or delays in customer orders, any reduction in sales, any disruption in supplier, distributor, partner or similar relationships or any loss of employees arising out of the announcement or pendency of the transactions contemplated hereby); provided, however , that the exception in this clause (vi) will not apply to the use of the term “Material Adverse Effect” in Section 6.1 with respect to any representation or warranty to the extent the subject matter of such representation or warranty relates to any change, effect or circumstance that will result from the transactions contemplated hereby; (vii) any adverse

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change, effect, or circumstance that arises out of or relates to any change after the date hereof in accounting requirements or principles imposed upon the Company or any change after the date hereof in applicable laws, rules or regulations or the interpretation thereof by the applicable Governmental Authority; or (viii) any adverse change, effect, or circumstance that arises out of or relates to compliance with the terms of, or the taking of any action required by, this Agreement.

“ Material Contract s” is defined in Section 3.7.

“ Maximum Loss ” is defined in Section 9.4.

“ Merger ” is defined in the Recitals.

“ Merger Consideration ” shall mean a cash amount equal to $88 million plus or minus, as the case may be, the amount (if any) by which the Closing Working Capital is greater than or less than the Working Capital Target Amount (subject to the adjustments provided in Section 2.6 and 2.10), plus, if applicable, the Additional Amount.

“ Merger Sub ” is defined in the Preamble.

“ Minimum Loss ” is defined in Section 9.4.

“ Non-Consenting Shareholders ” is defined in Section 5.2.2.

“ Option ” shall mean any option, warrant or other right to purchase, or that is convertible into, capital stock of the Company.

“ Option Merger Consideration ” is defined in Section 2.6.2(b)(i).

“ Option Notice ” is defined in Section 2.6.2(b)(i).

“ Optionholders ” shall mean the Persons who are the holders of the Options outstanding as of immediately prior to the Effective Time.

“ Ordinary Course of Business ” shall mean the conduct of the Business in the ordinary course, consistent with past practice.

“ Parent ” is defined in the Preamble.

“ Parent Indemnitees ” is defined in Section 9.2.

“ Paying Agent ” is defined in Section 2.7.1.

“ Permits ” is defined in Section 3.10.

“ Person ” shall mean any individual, partnership, firm, corporation, limited liability company, association, trust, joint venture, unincorporated organization or other entity or Governmental Authority.

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“ Personalty Leases ” is defined in Section 3.5.1.

“ Preamble ” shall mean the first paragraph of the Agreement.

“ Preferred Preferential Amount ” shall mean the sum of (i) the aggregate of all Series A Preferred Preferential Per Share Amounts to be received by all holders of Series A Preferred Stock pursuant to this Agreement, plus (ii) the aggregate of all Series B Preferred Preferential Per Share Amounts to be received by all holders of Series B Preferred Stock pursuant to this Agreement.

“ Preferred Stock ” shall mean, collectively, the Series A Preferred Stock and the Series B Preferred Stock.

“ PTO ” is defined in Section 3.6.1.

“ Real Property ” is defined in Section 3.5.2.

“ Registered Intellectual Property Rights ” shall mean all United States, international and foreign: (A) Patents, including applications therefor; (B) registered Trademarks, applications to register Trademarks, including intent-to-use applications, other registrations or applications related to Trademarks; (C) registrations of, and applications for the use of, Internet Properties; (D) Copyright registrations and applications to register Copyrights; and (E) any other Intellectual Property and Intellectual Property Rights that are the subject of an actual application, certificate, filing, registration or other document issued by, filed with, or recorded by, any state, government or other public legal authority or governmental entity.

“ Remaining Representative ” is defined in Section 2.11.1.

“ Resolution Period ” is defined in Section 2.6.7(c).

“ Restated Articles ” shall mean the Company’s Amended and Restated Articles of Incorporation filed with the Secretary of State of the State of Washington on May 12, 2005.

“ ROFR/Co-Sale Agreement ” shall mean the Right of First Refusal and Co-Sale Agreement dated as of May 16, 2005 among the Company and the other Persons signatory thereto.

“ Schedules ” means the Schedules to this Agreement which have been delivered to Parent by the Company at or prior to the execution of this Agreement and including any amendment to the Schedules pursuant to a written agreement of Parent and the Company and any Schedule Supplement qualifying the representations and warranties set forth in Article 3 pursuant to Section 5.2.3(a) hereof; provided, however , that any Schedule Supplement will not be effective to cure or correct any breach or failure to be true of any representation or warranty or covenant in this Agreement (including for purposes of Article 6 and Article 9) except as expressly set forth in Section 9.7.

“ Schedule Supplement ” is defined in Section 5.2.3(a).

“ Section 280G Payments ” is defined in Section 5.8.

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“ Series A Preferred Preferential Per Share Amount ” shall mean with respect to each share of Series A Preferred Stock outstanding immediately prior to the Effective Time, an amount per share equal to $1.5122, plus an amount equal to all declared and accrued but unpaid dividends on such share of Series A Preferred Stock as of the Effective Time.

“ Series A Preferred Stock ” shall mean the issued and outstanding shares of Series A Preferred Stock of the Company, par value $0.001 per share.

“ Series B Preferred Preferential Per Share Amount ” shall mean with respect to each share of Series B Preferred Stock outstanding immediately prior to the Effective Time, an amount per share equal to $1.524, plus an amount equal to all declared and accrued but unpaid dividends on such share of Series B Preferred Stock as of the Effective Time.

“ Series B Preferred Stock ” shall mean the issued and outstanding shares of Series B Preferred Stock of the Company, par value $0.001 per share.

“ Shareholder Representatives ” shall mean William McAleer and Richard B. Dodd.

“ Shareholders ” shall mean the Persons who are the holders of the Company Stock outstanding as of immediately prior to the Effective Time.

“ Specified Entities ” shall have the meaning set forth on Schedule 1.2.

“ Specified Liabilities ” shall have the meaning set forth on Schedule 1.2.

“ Specified Representations ” is defined in Section 6.1.

“ Surviving Corporation ” is defined in Section 2.1.1.

“ Tax ” shall mean any (and in the plural “ Taxes ” shall mean all) federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, sales, use, transfer, value added, excise, stamp, occupation, premium, profit, windfall profit, customs, duties, real property, personal property, capital stock, social security, employment, unemployment, disability, payroll withholding, license, recapture and other taxes, assessments and other governmental charges, fees, impositions and liabilities arising under or imposed by any Legal Requirement, including all interest, penalties and additions with respect to any of the foregoing.

“ Tax Benefit ” shall mean any actual reduction in cash Taxes paid by any Person as a result of the incurrence of any Loss which Tax Benefit shall be determined after taking into account any other items of loss, deduction or credit of such Person.

“ Tax Return ” shall mean all federal, state, local, and foreign Tax returns, reports, estimates, information statements and claims for refund of Tax, and any schedules or attachments to any of the foregoing or amendments thereto, in each case filed or required to be filed with a Governmental Authority.

“ Terminating Employee Plans ” is defined in Section 5.9.

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“ Third Party Expenses ” is defined in Section 12.9.

“ Unvested Option ” means any Option (or portion thereof) that is not exercisable as of immediately prior to the Effective Time (after giving effect to any vesting acceleration arising in connection with the transactions contemplated by this Agreement, but excluding any vesting acceleration that may occur as a result of the termination of any Unvested Optionholder’s employment after the Effective Time as disclosed in Schedule 3.1.4(c) (without giving effect to any Schedule Supplement)).

“ Unvested Option Merger Consideration ” is defined in Section 2.6.2(b)(iii).

“ Unvested Optionholders ” means the holders of Unvested Options.

“ Unvested Options Escrow Amount ” shall mean the product of (a) the number of Unvested Options outstanding immediately prior to the Effective Time multiplied by (b) the Escrow Contribution Amount.

“ Vested Option ” means any Option that is not an Unvested Option.

“ Vested Option Merger Consideration ” is defined in Section 2.6.2(b)(ii).

“ Vested Optionholders ” means the holders of Vested Options.

“ Voting Agreement ” is defined in the Recitals.

“ WARN Act ” is defined in Section 3.13.

“ WBCA ” shall mean the Washington Business Corporations Act, Title 23B of the Revised Code of Washington.

“ Working Capital Target Amount ” shall mean $2,000,000.

ARTICLE 2.

THE MERGER

(a) At the Effective Time, and upon the terms and subject to the conditions of this Agreement and the WBCA, Merger Sub shall be merged with and into the Company, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation (the Company, as the surviving corporation after the Merger, is sometimes referred to in this Agreement as the “ Surviving Corporation ”), and (b) from and after the Effective Time, the Merger shall have all the effects of a merger under the laws of the State of Washington and other applicable law.

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Unless this Agreement shall have been terminated pursuant to Section 11.1, and subject to the satisfaction (or to the extent permitted, the waiver) of the conditions set forth in Articles 6 and 7 of this Agreement, the closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at 10:00 a.m. local time at the offices of Perkins Coie LLP, 1201 Third Avenue, 48th Floor, Seattle, Washington, on the later of (i) July 1, 2008 and (ii) the second Business Day after the satisfaction or waiver of all conditions set forth in Articles 6 and 7 of this Agreement (excluding in each case conditions that, by their terms, cannot be satisfied until the Closing, but the Closing shall be subject to the satisfaction or waiver of those conditions), or at such other place or on such other date as Parent and the Company may mutually agree in writing.

At the Closing, the parties hereto shall cause the Merger to be consummated by executing and filing articles of merger, in substantially the form attached hereto as Exhibit C , with the Secretary of State of the State of Washington as required by, and executed in accordance with the relevant provisions of, the WBCA (the “ Articles of Merger ”), the time of acceptance by the Secretary of State of Washington of such filing or such later time as may be agreed to by the parties set forth in the Articles of Merger being referred to in this Agreement as the “ Effective Time .” This Agreement shall be deemed the “plan of merger” under Chapter 11 of the WBCA and together with Exhibit D hereto but excluding the other Exhibits and Schedules hereto shall be filed with the Articles of Merger pursuant to Section 23B.11.050(1) of the WBCA.

At and after the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Articles of Merger and the applicable provisions of the WBCA. 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 and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

2.4.1 At the Effective Time, the Articles of Incorporation of the Company in effect immediately prior to the Effective Time shall be amended in their entirety as set forth in Exhibit D to this Agreement, and as so amended shall be the Articles of Incorporation of the Surviving Corporation, until duly amended in accordance with applicable law.

2.4.2 At and after the Effective Time, the Bylaws of the Company, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation until thereafter duly amended in accordance with applicable law, the Articles of Incorporation of the Surviving Corporation and such Bylaws.

The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the Articles of

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Incorporation and Bylaws of the Surviving Corporation, and the officers of the Merger Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, in each case until their respective successors are duly elected or appointed and qualified in the manner provided in the Articles of Incorporation and Bylaws of the Surviving Corporation and in accordance with applicable law.

On the terms and subject to the conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, the Company or the holder of any Company Securities, the following shall occur, in the order listed:

Each share of Preferred Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares) will be canceled and extinguished, and each such share of Preferred Stock which is issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares) shall be automatically converted into solely the right to receive in cash, without interest, (a) the Series A Preferred Preferential Per Share Amount (with respect to the Series A Preferred Stock) or the Series B Preferential Per Share Amount (with respect to the Series B Preferred Stock) plus (b) the Common Merger Consideration Per Share; provided, that (i) a portion of the Common Merger Consideration Per Share equal to the Escrow Contribution Amount will be deposited with the Escrow Agent and become part of the Indemnity Escrow Amount and shall be paid only pursuant to the terms of Section 2.10, and (ii) the Common Merger Consideration Per Share shall be subject to reduction to the extent that any indemnification claims made by a Parent Indemnitee are satisfied out of the Indemnity Escrow Amount in accordance with the terms of this Agreement and the Indemnity Escrow Agreement; provided further, that any portion constituting an Adjustment Surplus shall only be paid pursuant to the terms of Section 2.6.7(e).

(a) Each share of Common Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares) will be canceled and extinguished, and each share of Common Stock which is issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares and other than any shares of Common Stock to be canceled pursuant to Section 2.6.3) shall be automatically converted into solely the right to receive in cash, without interest, the Common Merger Consideration Per Share; provided, that (i) a portion of the Common Merger Consideration Per Share equal to the Escrow Contribution Amount will be deposited with the Escrow Agent and become part of the Indemnity Escrow Amount and shall be paid only pursuant to the terms of Section 2.10, and (ii) the Common Merger Consideration Per Share shall be subject to reduction to the extent that any indemnification claims made by a Parent Indemnitee are satisfied out of the Indemnity Escrow Amount in accordance with the terms of this Agreement and the Indemnity Escrow Agreement; provided, further, that any portion constituting an Adjustment Surplus shall only be paid pursuant to the terms of Section 2.6.7(e).

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(b) (i) In accordance with Section 12(b) of the Company Stock Option Plan, immediately prior to the Effective Time, all Options that are not exercised prior to the Closing will be cancelled and, after the Closing, Optionholders shall have the right to receive, as applicable, an award to acquire Vested Option Merger Consideration and/or Unvested Option Merger Consideration (each, as applicable, the “ Option Merger Consideration ”) in the manner set forth in Section 2.6.2(b)(ii) or (iii), and subject to Section 2.6.2(b)(iv). Promptly following the date hereof, the Company shall send a notice (the “ Option Notice ”) to all holders of outstanding Options, which notice shall notify such holders that (i) in accordance with Section 12(b) of the Company Stock Option Plan, Parent has agreed to substitute awards representing the right to acquire the same consideration paid to holders of Common Stock in the Merger for Options outstanding immediately prior to the Effective Time, and (ii) all Options that are not exercised prior to the Closing will be cancelled and, after the Closing, Optionholders shall receive an award representing the right to acquire Option Merger Consideration in the manner set forth in this Section 2.6.2(b).

(ii) As of the Effective Time, each Vested Option with a per share exercise price that is less than the Common Merger Consideration Per Share shall be cancelled and, subject to the terms of this Agreement, each holder of any such Vested Options shall receive, in substitution therefor, an award representing the right to receive an amount of cash (without interest) equal to the product obtained by multiplying (i) the number of shares of Common Stock issuable upon the exercise of such Vested Option by (ii) the excess of the Common Merger Consideration Per Share over the exercise price per share attributable to such Vested Option (such amount applicable to each Vested Option being hereinafter referred to as the “ Vested Option Merger Consideration ”); provided, that (A) a portion of the Vested Option Merger Consideration equal to the Escrow Contribution Amount will be deposited with the Escrow Agent and become part of the Indemnity Escrow Amount with respect to each Vested Option to purchase one share of Common Stock and shall be paid only pursuant to the terms of Section 2.10 and (B) the Vested Option Merger Consideration shall be subject to reduction to the extent that any indemnification claims made by a Parent Indemnitee are satisfied out of the Indemnity Escrow Amount in accordance with the terms of this Agreement and the Indemnity Escrow Agreement; provided further, that any portion constituting an Adjustment Surplus shall only be paid pursuant to the terms of Section 2.6.7(e).

(iii) As of the Effective Time, each Unvested Option with a per share exercise price that is less than the Common Merger Consideration Per Share shall be cancelled and, subject to the terms of this Agreement, each holder of any such Unvested Options shall receive, in substitution therefore, an award representing the right to receive an amount of cash (without interest), equal to the product obtained by multiplying (i) the number of shares of Common Stock issuable upon the exercise of such Unvested Option by (ii) the excess of the Common Merger Consideration Per Share over the exercise price per share attributable to such Unvested Option (such amount applicable to each Unvested Option being hereinafter referred to as the “ Unvested Option Merger Consideration ”); provided , however , that any Unvested Option Merger Consideration shall not be payable or otherwise provided to the holder of such Unvested Option until the time, and in the manner, set forth in this Section 2.6.2(b)(iii). Subject to the terms hereof, Parent shall pay the Unvested Option Merger Consideration to each holder of an Unvested Option promptly following the later of (i) the date the Common Merger Consideration Per Share to which the Unvested Option Merger Consideration relates is paid to holders of

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Common Stock, or (ii) the 15th day of the calendar month immediately following the calendar month in which the Unvested Option would have vested under its original vesting schedule (as determined pursuant to the last sentence of this Section 2.6.2(b)(iii)), and, in its discretion, Parent may make such payments through a paying agent authorized by Parent to administer such payments on Parent’s behalf; provided, that the Unvested Option Merger Consideration shall be permanently retained by Parent and its Subsidiaries with respect to each Unvested Option to the extent such Unvested Option would have been forfeited by the holder of such Option pursuant to its original terms or would not have vested under its original vesting schedule; provided further, that with respect to the Unvested Option Merger Consideration otherwise payable to a holder of Unvested Options (A) at the time such amount is otherwise payable, a portion of such Unvested Option Merger Consideration equal to the Escrow Contribution Amount will, with respect to each Unvested Option, be deposited with the Escrow Agent and become a part of the Indemnity Escrow Amount and shall be paid only pursuant to the terms of Section 2.10, and (B) such Unvested Option Merger Consideration shall be subject to reduction to the extent that any indemnification claims made by a Parent Indemnitee are satisfied (whether prior to or after such deposit with the Escrow Agent) out of the Indemnity Escrow Amount in accordance with the terms of this Agreement and the Indemnity Escrow Agreement (it being understood that this proviso shall not apply in the case that all of the claims by the Parent Indemnitees under the Indemnity Escrow Agreement have been satisfied and the Indemnity Escrow Amount has otherwise been distributed to the holders of the Company Securities in accordance with its terms); provided further, that in the event that any Adjustment Surplus is paid to the Shareholders and Vested Optionholders pursuant to the terms of Section 2.6.7(e), the per share amount of Unvested Option Merger Consideration payable to a holder of Unvested Options in accordance with this Section 2.6.2(b)(iii) shall be increased (without duplication for the corresponding increase in the Common Merger Consideration Per Share) by an amount equal to the Adjustment Surplus Per Share; provided further, that in the event that any Adjustment Deficit is paid to Parent pursuant to the terms of Section 2.6.7(e), the per share amount of Unvested Option Merger Consideration payable to a holder of Unvested Options in accordance with this Section 2.6.2(b)(iii) shall be decreased (without duplication for the corresponding decrease in the Common Merger Consideration Per Share) by an amount equal to the Adjustment Deficit Per Share. Without limiting the terms of any written waiver or other written Contractual Obligation entered into by an Optionholder, for purposes of determining the time in which an Unvested Option would have vested under its original vesting schedule, the original vesting schedule shall include any vesting acceleration provided under the terms of the stock option agreements for the holder’s Options and any employment or consulting agreement between the Company and the holder in effect and disclosed to Parent as of the date of this Agreement and continuing without alteration through the Closing Date.

(iv) The payment of the Option Merger Consideration to Optionholders as described in this Section 2.6.2(b) shall be reduced by any income, employment or other tax withholding required under the Code or any provision of state, local or foreign tax law. To the extent that amounts are withheld for taxes pursuant to the preceding sentence, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of such Option. Except as otherwise required by applicable law or other guidance of the Internal Revenue Service, or pursuant to a determination (within the meaning of Section 1313(a) of the Code or any comparable provision of law), each of Parent, Merger Sub, and the

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Surviving Corporation shall treat the Options and the payment of Option Merger Consideration to Optionholders in the manner set forth in this Section 2.6.2(b) as either exempt from or complying with the provisions of Section 409A of the Code, as the case may be. No interest will be paid or accrued on the Option Merger Consideration payable to the Optionholders pursuant to this Agreement.

All shares of Common Stock that are owned by the Company (other than as the nominee or fiduciary of another Person) and any shares of Common Stock owned by Parent, Merger Sub or any other direct or indirect wholly-owned subsidiary of Parent shall, at the Effective Time, be cancelled and shall cease to exist, and no consideration shall be delivered in exchange therefor.

Each share of common stock of the Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. Each stock certificate of Merger Sub evidencing ownership of any shares shall continue to evidence ownership of such shares of capital stock of the Surviving Corporation.

Schedule 2.6.5 sets forth (i) the names of the Shareholders and Vested Optionholders, the aggregate number of shares of Company Stock owned by each Shareholder or issuable to each Vested Optionholder, the pro rata portion of the Merger Consideration (based on the amount of Closing Working Capital estimated as of the date of this Agreement) allocable to such Shareholder, the aggregate Option Merger Consideration allocable to such Optionholder, and the aggregate amount to be deposited on behalf of such Shareholder and/or Vested Optionholder with the Escrow Agent as a part of the Indemnity Escrow Amount pursuant to the terms of this Agreement and the Indemnity Escrow Agreement, in each case calculated as of the date of, and in accordance with the terms of, this Agreement; and (ii) the names of the Unvested Optionholders, the aggregate number of shares of Company Stock issuable to each Unvested Optionholder to the extent of his or her Unvested Options, and the aggregate Unvested Option Merger Consideration that may become payable to such Unvested Optionholder, the aggregate amount to be deposited on behalf of such Unvested Optionholder with the Escrow Agent as a part of the Indemnity Escrow Amount pursuant to this Agreement and the Indemnity Escrow Agreement in each case calculated as of the date of, and in accordance with the terms of, this Agreement. For purposes of illustration, attached to Schedule 2.6.5 is a current estimate of the calculation of the Closing Company Assets, Closing Company Liabilities and Closing Working Capital, as well as the types of assets and liabilities that are intended to be included in such calculations; provided, however , that such illustration shall not require the exclusion of any assets or liabilities from the definition of Closing Company Assets or Closing Company Liabilities, respectively, to the extent they would otherwise be included as part of the Closing Working Capital pursuant to the definition thereof. Such Schedule 2.6.5 shall be updated by the

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Company immediately prior to the Closing at such time as the Estimated Closing Statement is delivered to Parent pursuant to Section 2.6.7(a) and shall reflect any changes after the date of this Agreement (such schedule, as updated, the “ Consideration Schedule ”). For purposes of calculating the amount of the Merger Consideration or Option Merger Consideration to be paid to each Shareholder or Optionholder, all amounts payable to such holder (without rounding) shall be aggregated and after such aggregation, such amount shall be rounded to the nearest whole cent.

Each Shareholder that complies with all the requirements under Chapter 13 of the WBCA for perfecting such Shareholder’s right to dissent from the Merger and obtain payment of the fair value of the shares of Company Stock he, she or it owns shall be entitled to dissenters’ rights with respect to such shares (the “ Dissenting Shares ”) in lieu of any portion of the Merger Consideration to which such Shareholder would otherwise be entitled under this Agreement. Notwithstanding the foregoing, if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s rights as a holder of Dissenting Shares, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares shall automatically be converted into and represent only the right to receive the portion of the Merger Consideration to which such holder is then entitled under this Agreement, without interest thereon and upon compliance with the requirements of Section 2.7.2 of this Agreement. Notwithstanding any provision of this Agreement to the contrary, any Dissenting Shares held by a shareholder who has perfected such shareholder’s rights as a holder of dissenting shares for such shares in accordance with the WBCA shall not be converted into the right to receive any portion of the Merger Consideration pursuant to this Section 2.6. The Company will not settle or compromise any Action with respect to Dissenting Shares without the written consent of Parent.

(a) At least three (3) Business Days prior to the Closing Date, the Company will cause to be prepared and delivered to Parent a certificate signed by the Company’s chief financial officer which shall include (i) an unaudited balance sheet of the Company prepared in accordance with GAAP applied consistently with respect to the accounting policies, practices and procedures used to prepare the Financial Statements and setting forth the Company’s good faith estimate of the balance sheet of the Company as of the Closing Date (the “ Estimated Closing Balance Sheet ”), and (ii) a statement (the “ Estimated Closing Statement ”) based on the Closing Balance Sheet, setting forth in reasonable detail a good faith estimate of (a) the Closing Working Capital (the “ Estimated Closing Working Capital ”) and (b) based on the amount of the Estimated Closing Working Capital, the amount of the Merger Consideration (the “ Estimated Merger Consideration ”); provided, however , that if the Estimated Closing Working Capital set forth in the Estimated Closing Balance Sheet exceeds $2,000,000, the Merger Consideration set forth in the Estimated Closing Balance Sheet shall be calculated as if the Estimated Closing Working Capital equaled $2,000,000, and shall not increase the Merger Consideration until the amount of the Final Merger Consideration is determined (if applicable).

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(b) Within ninety (90) days following the Closing, Parent shall prepare (or caused to be prepared) a balance sheet of the Company as of the Closing Date (the “ Closing Balance Sheet ”) and a statement (the “ Closing Statement ” and, together with the Closing Balance Sheet, the “ Closing Financial Data ”) indicating Parent’s calculation (based on the Closing Balance Sheet and consistent with the definitions of Closing Company Assets and Closing Company Liabilities set forth in this Agreement) of the Merger Consideration and the components thereof, including the Closing Working Capital, together with reasonable supporting detail. The Closing Balance Sheet shall be prepared in accordance with GAAP applied consistently with respect to the accounting policies, practices and procedures used to prepare the Financial Statements. Parent shall deliver a copy of the Closing Financial Data to the Shareholder Representatives promptly after it has been prepared. After receipt of the Closing Financial Data, the Shareholder Representatives shall have thirty (30) days to review the Closing Financial Data. Parent shall (i) provide the Shareholder Representatives and the authorized representatives of the Shareholder Representatives copies of, or reasonable access during normal business hours to, all relevant work papers and information to the extent required to complete their review of the Closing Financial Data, and (ii) cooperate with the reasonable requests of the Shareholder Representatives and the authorized representatives of the Shareholder Representatives with respect to the review of the Closing Financial Data, including by providing on a timely basis all information reasonably necessary in reviewing the Closing Financial Data; provided, however , that clauses (i) and (ii) of this sentence shall be subject to the Shareholder Representatives and their authorized representatives executing confidentiality and similar arrangements reasonably required by Parent. Unless the Shareholder Representatives deliver a written notice signed by each of the Shareholder Representatives to Parent on or prior to the thirtieth (30th) day after the Shareholder Representatives’ receipt of the Closing Financial Data specifying in reasonable detail the amount, nature and basis of all disputed items (a “ Dispute Notice ”), each of the Shareholder Representatives shall be deemed to have accepted and agreed to, on behalf of themselves and the Shareholders, Parent’s calculation of the Closing Working Capital and the Merger Consideration, and such amounts shall be final, binding and conclusive.

(c) If the Shareholder Representatives timely deliver a Dispute Notice, the Shareholder Representatives and Parent shall, within ten (10) Business Days (or such longer period as the parties may agree in writing) following receipt of such notice (the “ Resolution Period ”), attempt in good faith to resolve their differences and any resolution in writing signed by each of them as to any disputed amounts and as to the amounts of the Closing Working Capital and the Merger Consideration shall be final, binding and conclusive.

(d) If, at the conclusion of the Resolution Period, there are any amounts remaining in dispute, then such amounts remaining in dispute shall be submitted for binding resolution to a nationally recognized independent public accounting firm (which may not be Parent’s independent registered public accounting firm) appointed by the mutual agreement of Parent and the Shareholder Representatives (the “ Independent Accountant ”) within ten (10) days after the expiration of the Resolution Period. Each party agrees to execute, if requested by the Independent Accountant, a reasonable engagement letter, including customary indemnities. The Independent Accountant shall act as an arbitrator to determine the amounts still in dispute. The Independent Accountant’s calculation of the Closing Working Capital and the Merger Consideration shall be made within thirty (30) calendar days of its selection, shall be set forth in a written statement delivered to the Shareholder Representatives and Parent and shall be

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final, binding and conclusive. The Independent Accountant shall have exclusive jurisdiction over, and resort to the Independent Accountant as provided in this Section 2.6.7(d) shall be the only recourse and remedy of the parties against one another with respect to, any disputes arising out of or relating to the adjustments pursuant to this Section 2.6.7. The fees, costs and expenses of the Independent Accountant shall be paid out of the Indemnity Escrow Amount if the Merger Consideration as determined by the Independent Accountant is closer to the Merger Consideration last proposed by the Parent and by the Parent if the Merger Consideration as determined by the Independent Accountant is closer to the Merger Consideration last proposed by the Shareholders Representatives.

(e) If the Final Merger Consideration exceeds the Estimated Merger Consideration, then the Shareholders and Vested Optionholders shall be entitled to receive a cash payment equal in the aggregate to the amount of such excess (such excess, the “ Adjustment Surplus ”) within five (5) Business Days after the Final Merger Consideration is determined pursuant to Section 2.6.7(b), (c) or (d). The Adjustment Surplus shall be paid to the Paying Agent (or to Parent, in the case of, and to the extent of, Dissenting Shareholders). The Paying Agent shall then distribute the Adjustment Surplus to the Shareholders (other than Dissenting Shareholders) and Vested Optionholders on a pro rata basis in accordance with the number of shares of Common Stock held, or issuable upon conversion of shares of Preferred Stock held or upon exercise of the Vested Options held, by the Shareholders and Vested Optionholders, as applicable, immediately prior to the Effective Time; and the Adjustment Surplus will be deemed to increase the Merger Consideration (and, without duplication, the Common Merger Consideration) in each case pursuant to these terms. If the Final Merger Consideration is less than Estimated Merger Consideration, then Parent shall be entitled to receive a disbursement out of the Indemnity Escrow Amount equal to such difference (an “ Adjustment Deficit ”) within five (5) Business Days after the Final Merger Consideration is determined pursuant to Section 2.6.7(b), (c) or (d), and the Adjustment Deficit will be deemed to decrease the Merger Consideration (and, without duplication, the Common Merger Consideration) in each case pursuant to these terms.

(a) On or prior to the Closing Date, Parent shall deposit the Closing Merger Consideration (other than the portion payable to Vested Optionholders with respect to Vested Options) with Mellon Investor Services LLC, operating with the service name BNY Mellon Shareowner Services (the “ Paying Agent ”), for exchange and payment in accordance with this Section 2.

(b) Promptly following the Effective Time, Parent shall deliver, in trust, to the Company, for the benefit of those holders of Vested Options, sufficient funds for timely payment of that portion of the Closing Merger Consideration payable to the Vested Optionholders with respect to Vested Options pursuant to Section 2.6.2 of this Agreement.

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(a) Prior to the Closing, Parent and the Paying Agent will enter into a paying agent agreement in customary form which will provide for payment to each Shareholder (other than a holder of Dissenting Shares) his, her or its allocable share of the Closing Merger Consideration pursuant to this Section 2 not later than ten (10) Business Days following receipt by the Paying Agent of one or more Certificates, together with a Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto. As soon as practicable after the Effective Time, the Paying Agent shall cause to be mailed to each holder of record of a certificate or certificates which represented Company Stock immediately prior to the Effective Time (the “ Certificates ”), other than a holder of Dissenting Shares, unless such holder subsequently withdraws or loses (through failure to perfect or otherwise) such holder’s dissenters’ rights, (i) a Letter of Transmittal which shall include instructions for use in effecting the surrender of the Certificates in exchange for the appropriate portion of the Closing Merger Consideration pursuant to Section 2.7.2(b) in substantially the form attached as Exhibit E or as otherwise acceptable to the Paying Agent and Parent (the “ Letter of Transmittal ”) and (ii) a cover letter in a form that is customary and is reasonably acceptable to the Paying Agent and to Parent.

(b) Upon surrender of a Certificate for cancellation to Paying Agent or to such other agent or agents as may be appointed by Parent, together with such Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, (i) each holder of shares of Series A Preferred Stock shall be paid an amount equal to the product of (A) the sum of the Series A Preferred Preferential Per Share Amount and the Closing Common Merger Consideration Per Share times (B) the number of shares of Series A Preferred Stock held by such holder; (ii) each holder of shares of Series B Preferred Stock shall be paid an amount equal to the product of (A) the sum of the Series B Preferred Preferential Per Share Amount and the Closing Common Merger Consideration Per Share times (B) the number of shares of Series B Preferred Stock held by such holder; and (iii) each holder of shares of Common Stock shall be paid an amount equal to the product of the Closing Common Merger Consideration Per Share times the number of shares of Common Stock held by such holder. Thereupon, the Certificate so surrendered shall be canceled. Until surrendered, each outstanding Certificate that, prior to the Effective Time, represented Company Stock (other than Dissenting Shares) will be deemed from and after the Effective Time to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.6 without any interest thereon.

(c) Promptly after the Effective Time, the Company shall mail or otherwise deliver to each Vested Optionholder entitled to payments pursuant to Section 2.6.2(b)(ii) an acknowledgement to be signed by such holder which shall include a confirmation of the Shareholder Representatives as the agents of such holder pursuant to Section 2.11 for the purposes set forth herein, and an agreement that such holder shall receive its payment of the Vested Option Merger Consideration to which such holder is entitled pursuant to Section 2.6.2(b)(ii) and be bound by the provisions of this Agreement. Upon return of such acknowledgement to the Company, duly executed and properly completed in accordance with the instructions thereto, the holder of such Vested Options shall be entitled to receive in exchange therefor from the Company, at the next administratively practicable date, that portion of the Vested Option Merger Consideration that such holder has the right to receive pursuant to Section 2.6.2(b)(ii) in respect of the Vested Options, after giving effect to any withholding Tax provided for in Section 2.6.2(b)(iv).

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At any time following one year after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) which had been made available to the Paying Agent and which have not been disbursed to holders of Certificates. Thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) only as a general creditor thereof with respect to the Merger Consideration payable upon surrender of their Certificates, without any interest thereon. Neither the Surviving Corporation nor the Paying Agent shall be liable to any holder of a Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.

The portion of the Merger Consideration paid upon the surrender for exchange of shares of Company Stock in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to such shares of Company Stock, and there shall be no further registration of transfers on the records of the Company of shares of Company Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this Section 2.

In the event any Certificates evidencing shares of Company Stock shall have been lost, stolen or destroyed, Parent shall cause the Paying Agent to pay the portion of the Closing Merger Consideration applicable to such shares in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof; provided , however , that Parent or Paying Agent may, in its discretion and as a condition precedent to the payment thereof, require the owner of such lost, stolen or destroyed Certificates to provide and to deliver a bond in such amount as it may reasonably direct as indemnity against any claim that may be made against Parent with respect to the Certificates alleged to have been lost, stolen or destroyed.

If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and or to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company, the officers and directors of the Surviving Corporation and Parent are fully authorized to take, and will use their reasonable efforts to take, all lawful and reasonable action.

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As of the Closing Date, Parent, the Shareholder Representatives and the Escrow Agent shall enter into an Indemnity Escrow Agreement (the “ Indemnity Escrow Agreement ”), in substantially the form attached hereto as Exhibit F , to be administered by the Escrow Agent pursuant to the terms of the Indemnity Escrow Agreement. At the Closing, Parent shall deposit a portion of the Merger Consideration equal to the Escrow Deposit Amount with the Escrow Agent, to be held in escrow as a source of funds for the indemnity obligations under Section 9.2 of this Agreement, the payment of any Adjustment Deficit under Section 2.6.7(e), and the payment of costs and expenses to the extent contemplated by this Agreement (including Sections 2.6.7, 2.11.2 and 9.8), and to be disbursed in accordance with the terms of the Indemnity Escrow Agreement. If any portion of the Indemnity Escrow Amount is determined to be payable to the Shareholders and Optionholders pursuant to the terms hereof and the Indemnity Escrow Agreement, such amount shall be paid to the Shareholders and Optionholders in the manner set forth in the Indemnity Escrow Agreement.

2.11.1 Each Shareholder, by entering into this Agreement and/or surrendering one or more Certificates and a Letter of Transmittal and accepting a portion of the Merger Consideration, and each Optionholder, by accepting his or her Option Merger Consideration, shall be deemed to have irrevocably authorized and appointed each of the Shareholder Representatives and any replacement representative appointed pursuant to Section 2.11.2, with full power of substitution and resubstitution, as his, her or its representative and true and lawful attorney-in-fact and agent to act in his, her or its name, place and stead with respect to all matters arising in connection with this Agreement, including, without limitation, the power and authority, in his sole discretion, to:

(a) take any action contemplated to be taken by the Shareholders or Optionholders and/or the Shareholder Representatives under this Agreement or the Indemnity Escrow Agreement;

(b) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement or the Indemnity Escrow Agreement, including, without limitation, with respect to any indemnification claim pursuant to Article 9; and

(c) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement, including, without limitation, pursuant to Article 9.

Parent and the Surviving Corporation shall be entitled to rely upon, without independent investigation, any act, notice, instruction or communication signed by both of the Shareholder Representatives or, if one of the Shareholder Representatives has resigned and has not been replaced, any of the foregoing signed by the remaining Shareholder Representative (the “ Remaining Representative ”) and any document executed by both of the Shareholder Representatives or the Remaining Representative (as applicable) shall be an action of the

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Shareholder Representatives for purposes of this Agreement and Parent shall be fully protected in connection with any action or inactio