AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

Agreement and Plan of Merger

By and Among

Interwoven, Inc.,

Presidio Acquisition Corp.,

Discovery Mining, Inc.

and

Charles R. Work, as Representative

July 23, 2008

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Agreement and Plan of Merger

     This Agreement and Plan of Merger (this “ Agreement ”) is entered into as of July 23, 2008 (the “ Agreement Date ”) by and among Interwoven, Inc., a Delaware corporation ( “ Acquirer ”), Presidio Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Acquirer ( “ Sub ”), Discovery Mining, Inc., a Delaware corporation ( “ Company ”), and Charles R. Work, as representative of the Company Securityholders (the “ Representative ”).

Recitals

     A. The parties intend that, subject to the terms and conditions hereinafter set forth, Sub will merge with and into Company (the “ Merger ”), with Company to be the surviving corporation of the Merger, all pursuant to the terms and conditions of this Agreement, the Certificate of Merger (as defined in Article 1 ) and the applicable provisions of the laws of the State of Delaware.

     B. Company, Sub and Acquirer desire to make certain representations, warranties, covenants and other agreements in connection with the Merger as set forth herein.

     C. Concurrently with the execution and delivery of this Agreement, and as a condition and inducement for the parties’ willingness to enter into this Agreement, each of the employees of Company listed on Schedule 9.17-1 attached hereto (each, a “ Key Employee ”) is executing and delivering to Acquirer an offer letter for employment with Acquirer together with Acquirer’s standard employee invention assignment and confidentiality agreement, in each case to become effective upon the Closing (as defined in Section 7.1 ).

     D. Concurrently with the execution and delivery of this Agreement, and as a condition and inducement for the parties’ willingness to enter into this Agreement, each of the employees of Company listed on Schedule 9.17-3 attached hereto is entering into a non-competition agreement with Acquirer (each, a “ Non-Competition Agreement ”), in each case to become effective upon the Closing.

     E. Concurrently with the execution and delivery of this Agreement, and as a condition and inducement for the parties’ willingness to enter into this Agreement, certain employees of Company identified on Schedule 9.17-4 hereto who might otherwise have the right or entitlement to receive (i) accelerated vesting of, or accelerated right to exercise, any Company Options (as defined in Article 1 ) in connection with the Merger and/or the termination of employment or service with Company or Acquirer following the Merger and/or (ii) any severance payments or other benefits or payments in connection with the Merger and/or the termination of employment or service with Company or Acquirer following the Merger, are entering into benefits waivers (each, a “ Benefits Waiver ”), pursuant to which each such employee has agreed to waive elements of such accelerated vesting, accelerated right to exercise, payments and benefits as set forth therein.

     F. Concurrently with the execution and delivery of this Agreement, and as a condition and inducement for the parties’ willingness to enter into this Agreement, certain employee securityholders of Company identified on Schedule 9.17-5 hereto are entering into equity agreements with Company with respect to the revesting of certain Company Options held by such employee securityholders (each, an “ Equity Agreement ”), in each case to become effective upon the Closing.

     G. Concurrently with the execution and delivery of this Agreement and as a material inducement to the willingness of Acquirer to enter into this Agreement, Company is delivering to Acquirer a stockholder agreement substantially in the form attached hereto as Exhibit A-3 (the “ Stockholder Agreement ”) executed by each Company stockholder listed on Exhibit A-1 . Immediately

following the execution and delivery of this Agreement, Company will, in accordance with the terms of this Agreement, use commercially reasonable efforts to secure from each Company stockholder listed on Exhibit A-1 a written consent substantially in the form attached hereto as Exhibit A-2 (the “ Company Stockholder Consent ”) approving the Merger and adopting this Agreement.

     NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE 1
Certain Definitions

     As used herein, the following terms will have the meanings set forth below:

      “ Acquirer Ancillary Agreements ” means all agreements (other than this Agreement) and documents to which Acquirer is or will be a party that are required to be executed pursuant to this Agreement.

      “ Acquirer Common Stock ” means the common stock, par value $0.001 per share, of Acquirer, together with related stock purchase rights.

      “ Acquirer Options ” means options to purchase shares of Acquirer Common Stock.

      “ Acquirer SEC Reports ” has the meaning given in Section 4.8.

      “ Acquisition Proposal ” means any agreement, offer, proposal or bona fide indication of interest by a Person (other than Acquirer or any of its Subsidiaries) or any public announcement of intention to enter into any such agreement or of (or intention to make) any offer, proposal or bona fide indication of interest relating to or involving: (a) any acquisition or purchase of Company Capital Stock or Company Rights from Company or from the Company Securityholders by any Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) representing 10% or more of the voting interest in the total outstanding voting securities of Company; (b) any tender offer or exchange offer that, if consummated, would result in any Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) beneficially owning Company Capital Stock or Company Rights representing 10% or more of the voting interest in the total outstanding voting securities of Company; (c) any merger, consolidation, business combination or similar transaction involving Company; (d) any sale, lease, mortgage, pledge, exchange, transfer, license, acquisition or disposition of 10% or more of the assets of Company in any single transaction or series of related transactions; (e) any sale, lease, exchange, transfer, license or disposition to a Person of all or a significant portion of the Company Business; (f) any initial public offering of capital stock or other securities of Company pursuant to a registration statement filed under the Securities Act; or (g) any liquidation, dissolution, recapitalization or other significant corporate reorganization of Company or any extraordinary dividend (whether of cash or other property).

      “ Affiliate ” means an “affiliate” as such term is defined in Rule 405 promulgated under the Securities Act.

      “ Aggregate Exercise Price ” means the sum of (a) the aggregate exercise price of all Company Vested Options that will be cashed out, as set forth in Exhibit B-1 , in connection with the Merger pursuant to Section 2.2(b)(iii) and (b) the aggregate exercise price of all Company Options held by Leslie Brennan as of immediately prior to the Closing, as set forth in Exhibit B-2 .

      “ Applicable Laws ” means all foreign, federal, state, local, municipal or other laws, statutes, constitutions, principles of common law, resolutions, ordinances, codes, edicts, decrees, regulations, rules and other provisions having the force or effect of law, and all judicial and administrative orders, writs, injunctions, awards, judgments, decrees and determinations, applicable to a specified Person or to such Person’s assets, properties or business.

      “ Assumed Options ” has the meaning given in Section 2.2(c).

      “ Average Price Per Share ” means the average closing price of Acquirer Common Stock on the Nasdaq Stock Market (or such other exchange or quotation system on which shares of Acquirer Common Stock are then traded or quoted) and reported at www.nasdaq.com for the ten (10) consecutive trading days ending on (and inclusive of) the Agreement Date.

      “ business day ” means a day (a) other than Saturday or Sunday and (b) on which commercial banks are permitted by Applicable Laws to be open for business in San Francisco, California.

      “ Closing Expenses Certificate ” means a certificate executed by the Chief Financial Officer of Company dated as of the Closing Date, certifying the amount of Transaction Expenses (including an itemized list of each Transaction Expense with a description of the nature of such expense and the Person to whom such expense was or is owed). The Closing Expenses Certificate shall include a representation of Company, certified by the Chief Financial Officer of Company, that such certificate includes all of the Transaction Expenses paid or payable at any time prior to, at or following the Closing Date, it being the expressed intent of Company and Acquirer that to the maximum extent possible all the Transaction Expenses be deducted in the calculation of the Total Merger Consideration and that there be no Indemnifiable Transaction Expenses; provided , however , that any Transaction Expenses paid on or prior to the Closing Date shall not be included as an Indemnifiable Transaction Expense, provided that such amounts are appropriately reflected in the NWC Calculations.

      “ Common Cash Amount Per Share ” means (a) the Total Common Consideration divided by (b) the Fully Diluted Company Stock.

      “ Certificate of Merger ” means a certificate of merger in substantially the form of Exhibit C .

      “ Closing ” has the meaning given in Section 7.1 .

      “ Closing Date ” has the meaning given in Section 7.1 .

      “ Code ” means the Internal Revenue Code of 1986, as amended.

      “ Company Ancillary Agreements ” means all agreements (other than this Agreement) and documents to which Company is or will be a party that are required to be executed pursuant to this Agreement.

      “ Company Board ” means the Board of Directors of the Company.

      “ Company Business ” means the business of Company and its Subsidiaries as presently being conducted and as presently proposed to be conducted.

      “ Company Capital Stock ” means the capital stock of Company.

      “ Company Common Stock ” means the Common Stock, par value of $0.001 per share, of Company.

      “ Company Disclosure Letter ” has the meaning given in the lead-in paragraph to Article 3 .

      “ Company IP Rights ” means (a) any and all Intellectual Property used in the conduct of the Company Business and (b) any and all other Intellectual Property owned by Company and its Subsidiaries.

      “ Company Option Plan ” means the Discovery Mining, Inc. 2003 Stock Incentive Plan.

      “ Company Optionholders ” means the holders of Company Options.

      “ Company Options ” means options to purchase shares of Company Common Stock, whether or not under the Company Option Plan, but does not include the Company Preferred Stock.

      “ Company-Owned IP Rights ” means (a) Company IP Rights that are owned or are purportedly owned by or exclusively licensed by Company or any of its Subsidiaries and (b) Company IP Rights that were developed for Company or a Subsidiary by full or part time employees or consultants of Company or its Subsidiaries.

      “ Company Preferred Stock ” means the Preferred Stock, par value of $0.001 per share, of Company.

      “ Company Products ” means all products or services produced, marketed, licensed, sold, distributed or performed by or on behalf of Company or any of its Subsidiaries and all products or services currently under development by Company or any of its Subsidiaries.

      “ Company Registered Intellectual Property ” means all United States, international and foreign: (i) patents and patent applications (including provisional applications); (ii) registered trademarks and service marks, applications to register trademarks and service marks, intent-to-use applications, or other registrations or applications related to trademarks and service marks, (iii) registered Internet domain names, (iv) registered copyrights and applications for copyright registration; and (iv) Intellectual Property that are subject to an application, certificate, filing, registration or other document issued, filed with or recorded by any Governmental Entity, in each case, owned by, or registered or filed in the name of, Company or any of its Subsidiaries.

      “ Company Rights ” means all options, warrants, calls, rights, commitments, conversion privileges or preemptive or other rights or agreements outstanding to purchase or otherwise acquire any shares of Company Capital Stock or any securities or debt convertible into or exchangeable for shares of Company Capital Stock or obligating Company to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or agreement.

      “ Company Securityholders ” means the Company Stockholders and Company Optionholders, collectively.

      “ Company Series A Stock ” means the Series A Preferred Stock, par value $0.001 per share, of Company.

      “ Company Source Code ” means, collectively, any software source code or confidential manufacturing specifications or designs, any material portion or aspect of software source code or

confidential manufacturing specifications or designs, or any material proprietary information or algorithm contained in or relating to any software source code or confidential manufacturing specifications or designs, of any Company-Owned IP Rights or Company Products.

      “ Company Stockholder Approval ” has the meaning given in Section 3.22 .

      “ Company Stockholder Consent ” has the meaning given in Section 3.22.

      “ Company Stockholders ” means the record holders of shares of issued and outstanding Company Capital Stock.

      “ Company Unvested Option ” means an option to purchase Company Common Stock that, as of the Effective Time, is not vested under the terms of any Contract with Company or otherwise, after giving effect to any waiver of acceleration agreed to by the holder of such option.

      “ Company Vested Options ” means an option to purchase Company Common Stock that, as of the Effective Time, is vested under the terms of any Contract with Company or otherwise, after giving effect to any waiver of acceleration agreed to by the holder of such option.

      “ Company Warrants ” means warrants to purchase shares of Company Common Stock.

      “ Continuing Employees ” means the Offerees (as defined in Section 5.11 ) who execute the Offeree Documents (as defined in Section 5.11 ) and remain employees of the Surviving Company (as defined in Section 2.1 ) or any of its Subsidiaries or become employees of Acquirer or any of its Subsidiaries following the Effective Time.

      “ Contract ” means any legally binding contract, agreement, arrangement, commitment, undertaking, instrument, permit, mortgage, license, sublicense, letter of intent, quotation, statement of work, contract order or purchase order (in each case, whether oral or in writing).

      “ Delaware Law ” means the General Corporation Law of the State of Delaware.

      “ Dissenting Shares ” shall mean any shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time and in respect of which appraisal or dissenters’ rights shall have been perfected in accordance with Delaware Law in connection with the Merger.

      “ Effective Time ” means the date and time on which the Merger first becomes legally effective under the laws of the State of Delaware.

      “ Effective Time Holders ” means the Company Stockholders (other than holders of solely shares of Company Capital Stock which constitute and remain Dissenting Shares) and holders of Company Vested Options as of immediately prior to the Effective Time.

      “ Employee Agreement ” means any management, employment, severance, consulting, contractor, relocation, expatriation or other Contract (including any offer letter, agreement to employ or other Contract providing for compensation or benefits) between Company or any of its ERISA Affiliates and any current or former employee or director of Company or any of its ERISA Affiliates.

      “ Employee Plan ” means (i) any plan, program, policy, practice or Contract providing for compensation, severance, termination pay, deferred compensation, performance awards, equity or equity-related awards, bonus, pension, profit sharing, savings, retirement, welfare benefits, fringe benefits

or other employee benefits or remuneration of any kind, whether written, unwritten or otherwise, funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, which is or has been maintained, contributed to or required to be contributed to by Company or any of its ERISA Affiliates (including those provided, if applicable, through a human resources and benefits outsourcing entity or other provider) for the benefit of any current or former employee, director or consultant of Company or any of its ERISA Affiliates or with respect to which Company or any of its ERISA Affiliates has or may have any Liability and any loan to an employee in excess of $10,000 and (ii) any International Plan.

      “ Encumbrance ” means, with respect to any asset, any mortgage, deed of trust, lien, pledge, charge, security interest, title retention device, conditional sale or other security arrangement, collateral assignment, claim, charge, adverse claim of title, ownership or right to use, restriction or other encumbrance of any kind in respect of such asset (including any restriction on (a) the voting of any security or the transfer of any security or other asset, (b) the receipt of any income derived from any asset, (c) the use of any asset, and (d) the possession, exercise or transfer of any other attribute of ownership of any asset).

      “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

      “ ERISA Affiliate ” means any Person under common control with Company within the meaning of Section 414(b), (c), (m) or (o) of the Code and the regulations issued thereunder.

      “ Escrow Cash ” means an amount of cash equal to 10% of the Total Merger Consideration.

      “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

      “ Expense Funds ” has the meaning given in Section 2.4.

      “ Fully Diluted Company Stock ” means the sum, without duplication, of the aggregate number of shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time or issuable upon the exercise of Company Options (excluding New Company Options), Company Warrants or other direct or indirect rights to acquire shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time (whether or not then vested or exercisable); provided , however , that for purposes of calculating the Fully Diluted Company Stock, the Fully Diluted Company Stock shall exclude the New Company Options and the shares of Company Common Stock into which the New Company Options are exercisable.

      “ Fully Diluted Company Series A Stock ” means the sum, without duplication, of the aggregate number of shares of Company Series A Stock that are issued and outstanding immediately prior to the Effective Time or any direct or indirect rights to acquire shares of Company Series A Stock that are issued and outstanding immediately prior to the Effective Time (whether or not then vested or exercisable).

      “ GAAP ” means United States generally accepted accounting principles.

      “ Governmental Authority ” means any court, administrative agency, commission or other governmental agency or authority.

      “ Group ” shall have the definition ascribed to such term under Section 13(d) of the Exchange Act, the rules and regulations thereunder and related case law.

      “ Indemnifiable Transaction Expenses ” means any Transaction Expenses which have not been taken into account in the calculation of the Total Merger Consideration. All Indemnifiable Transaction Expenses shall constitute “Indemnifiable Damages” for purposes of Article 11 .

      “ Intellectual Property ” means any and all industrial and intellectual property rights and all rights associated therewith throughout the world, including all patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data, proprietary processes and formulae, algorithms, specifications, customer lists and supplier lists, all industrial designs and any registrations and applications therefor, all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor, including the goodwill symbolized by the foregoing, Internet domain names, Internet and World Wide Web URLs or addresses, all copyrights, copyright registrations and applications therefor, and all other rights corresponding thereto, all mask works, mask work registrations and applications therefor, and any equivalent or similar rights in semiconductor masks, layouts, architectures or topology, all computer software, including all source code, object code, firmware, development tools, files, records and data, all schematics, netlists, test methodologies, test vectors, emulation and simulation tools and reports, hardware development tools, and all rights in prototypes, breadboards and other devices, all databases and data collections and all rights therein, all moral and economic rights of authors and inventors, however denominated, and any similar or equivalent rights to any of the foregoing, and all tangible embodiments of the foregoing.

      “ International Plan ” means any Employee Plan that has been adopted or maintained by Company or any of its ERISA Affiliates, whether informally or formally, for the benefit of current or former employees, directors or consultants of Company or any of its ERISA Affiliates outside the United States.

      “ Knowledge ” of Company means, with respect to any fact, circumstance, event or other matter in question, the knowledge of such fact, circumstance, event or other matter that would have been ascertained after reasonable inquiry, consistent with such Person’s title and responsibilities, by any of the following individuals or Company employees who directly report to such individuals: Matthew Work, Leslie Brennan, Jennifer Rapp, Jason Maxham and Andrew Jenks.

      “ Liability ” means any debt, liability or obligation, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, known or unknown, and whether due or to become due, including those arising under any law, action or governmental order and those arising under any Contract.

      “ Material Adverse Change ” or “ Material Adverse Effect ,” when used with reference to any Person, means any change, event, circumstance or effect (each, an “ Effect ”) (regardless of whether such Effect constitutes a breach of any representations or warranties made in this Agreement) that, individually or in the aggregate, is or would be reasonably likely to become materially adverse to the condition (financial or otherwise), capitalization, properties, employees, assets (including intangible assets), Liabilities, business, operations, results of operations of such Person and its Subsidiaries, taken as a whole, except to the extent that any such Effect directly results from: (a) Effects in the economy or financial markets generally in the United States or Europe; (b) Effects that are the result of acts of war or terrorism; (c) Effects that are the result of factors generally affecting the industry in which the Person or its Subsidiaries operate; (d) changes in GAAP; (e) changes, events, circumstances or effects resulting from (i) any actions taken, or actions, plans, or intentions publicly announced by Acquirer or its affiliates, including any plans for the sale of a division or operational or employment related changes, or (ii) any actions taken or publicly announced by Company or its Subsidiaries at the prior written request or

direction of Acquirer; (f) any failure by the Person to meet internal projections or forecasts or published revenue or earnings predictions, in and of itself, provided, that such exclusion shall not apply to the underlying Effect that may have caused such failure; and (g) the institution of legal proceedings or litigation alleging breach of fiduciary duty based upon Company’s entry into this Agreement; provided , however , that, with respect to clauses (a), (b), and (c) change, event, circumstance or effect does not disproportionately adversely affect the Person and its Subsidiaries compared to other companies operating in the industry in which the Person operates.

      “ New Company Options ” means Company Options granted pursuant to Section 5.11(b) under the Company Option Plan, as amended pursuant to Section 5.11(b) .

      “ Net Working Capital ” means (a) Company’s consolidated total current assets as of the Closing Date (as defined by and determined in accordance with GAAP) minus (b) Company’s consolidated total current liabilities as of the Closing Date (as defined by and determined in accordance with GAAP). For purposes of calculating Net Working Capital, Company’s current assets shall include, among other things, accounts receivable, and Company’s current liabilities shall (i) include (A) all Debt of Company whether short- or long-term and (B) all Taxes for any period or portion of a period ending prior to or on the Closing Date (including liabilities for Taxes required to be accrued in accordance with GAAP) and (ii) exclude Transaction Expenses.

      “ Net Working Capital Certificate ” means a certificate executed by the Chief Financial Officer of Company, certifying the amount of Net Working Capital (including (a) an itemized list of Debt of Company with a description of the nature of such Debt and the Person to whom such indebtedness is owed, (b) an itemized list of each element of Company’s consolidated current assets, and (c) an itemized list of each element of Company’s consolidated current liabilities).

      “ Option Exchange Ratio ” means the quotient obtained by dividing (a) the Common Cash Amount Per Share by (b) the Average Price Per Share.

      “ Permitted Encumbrance ” means any Encumbrance for Taxes, assessments and other governmental charges that are not yet due and payable or that may thereafter be paid without penalty, or that are being contested in good faith by appropriate proceedings, or any imperfection of title or other Encumbrance that, individually or in the aggregate with other such imperfections and Encumbrances, would not materially affect the use, transfer, sale or voting of such asset.

      “ Person ” means any individual, corporation (including any not-for-profit corporation), general or limited partnership, limited liability partnership, joint venture, estate, trust, firm, company (including any limited liability company or joint stock company), association, organization, entity or Governmental Authority.

      “ Pro Rata Share ” means, with respect to a particular Effective Time Holder, the amount of cash such Effective Time Holder is entitled to receive pursuant to Section 2.2(b) with respect to its Company Capital Stock and Company Options and relative to the amount of cash all Effective Time Holders are entitled to receive pursuant to Section 2.2(b) with respect to their Company Capital Stock and Company Options.

      “ Regulations ” means the Treasury Regulations issued under the Code.

      “ SEC ” means the Securities and Exchange Commission.

      “ Securities Act ” means the Securities Act of 1933, as amended.

      “ Series A Cash Amount Per Share ” means (a) the Common Cash Amount Per Share plus (b) the Series A Liquidation Preference Per Share.

      “ Series A Liquidation Preference Per Share ” means $4.3371969.

      “ Sub Ancillary Agreements ” means all agreements (other than this Agreement) and documents to which Sub is or will be a party that are required to be executed pursuant to this Agreement.

      “ Subsidiary ” of a specified entity means any corporation, partnership, limited liability company, joint venture or other entity of which the specified entity (either alone or through or together with any other subsidiary) owns, directly or indirectly, 50% or more of the stock or other equity or partnership interests the holders of which are generally entitled to vote for the election of the Board of Directors or other governing body of such corporation or other entity.

      “ Systems ” means all records, databases, Company Websites (as defined in Section 3.14(a) ), software, systems and networks used by Company in the conduct of the Company Business.

      “ Tax ” and “ Taxes ” mean all federal, state, local or foreign income, gross receipts, gains, franchise, excise, capital stock, severance, stamp, premium, windfall profits, environmental, custom duties, real property, personal property, sales, use, employment, license, payroll, services, occupation, recording, registration, withholding, social security (or similar), unemployment, disability, value added, alternative or add-on minimum or transfer taxes, governmental charges, fees, levies, assessments or other taxes (whether payable directly or by withholding) imposed by any Governmental Authority responsible for the imposition of any such taxes (domestic or foreign) (each, a “ Tax Authority ”), and, with respect to such taxes, charges, fees, levies and assessments, any estimated tax, interest, fines, penalties or additions and interest on such fines, penalties and additions, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax Liability of any other Person.

      “ Termination Date ” means the date that is 30 days after the Agreement Date.

      “ Total Common Consideration ” means (a) the Total Merger Consideration less (b) the Total Series A Liquidation Preference.

      “ Total Series A Liquidation Preference ” means the product of (a) the Fully Diluted Company Series A Stock multiplied by (b) the Series A Liquidation Preference Per Share.

      “ Total Merger Consideration ” means (a) $36,000,000 plus (b) the Aggregate Exercise Price less (c) the sum of (i) the amount, if any, by which the Company Net Working Capital is less than $1,500,000 as of immediately prior to the Closing and (ii) Transaction Expenses.

      “ Transaction Expenses ” means all third party fees and expenses incurred by Company in connection with the Merger and this Agreement and the transactions contemplated hereby whether or not billed or accrued (including any fees and expenses of legal counsel and accountants, the maximum amount of fees and expenses payable to financial advisors, investment bankers and brokers of Company and the Subsidiaries notwithstanding any contingencies for earnouts, escrows, etc., and any such fees incurred by Company employees and Company Securityholders paid for or reimbursed or to be paid for or reimbursed by Company).

      “ Unvested Company Share ” means any Company Capital Stock that is issued but not vested under the terms of any Contract with Company (including any stock option agreement, stock option exercise agreement or restricted stock purchase agreement).

ARTICLE 2
Plan of Merger

     2.1 The Merger . Subject to termination of this Agreement as provided in Article 10 , the parties hereto will cause the Merger to be consummated by filing the Certificate of Merger with the Delaware Secretary of State in accordance with Delaware Law as soon as practicable on or after the Closing Date. Subject to the terms and conditions of this Agreement, at the Effective Time, Sub will be merged with and into Company in a statutory merger, the separate existence of Sub will cease and Company will be the surviving company in the Merger (the “ Surviving Company ”), all pursuant to the Certificate of Merger and in accordance with the applicable provisions of the Delaware Law.

     2.2 Conversion and Exchange of Capital Stock and Company Options .

          (a) Conversion of Shares of Sub Capital Stock . Subject to the terms and conditions of this Agreement, at the Effective Time, each share of capital stock of Sub that is issued and outstanding immediately prior to the Effective Time will be converted into and become one validly issued, fully paid and nonassessable share of common stock of the Surviving Company. Each certificate evidencing ownership of shares of Sub common stock will evidence ownership of such shares of common stock of the Surviving Company.

          (b) Conversion of Company Capital Stock and Company Options .

               (i)  Company Series A Stock . Subject to the terms and conditions of this Agreement, at the Effective Time, each share of Company Series A Stock that is issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares and shares owned by Company) will, by virtue of the Merger and without any further action on the part of Acquirer, Sub, Company or the holder thereof (except as expressly provided herein), be converted into and represent the right to receive an amount of cash (without interest) equal to the Series A Cash Amount Per Share. The amount of cash that each Effective Time Holder is entitled to receive pursuant to this Section 2.2(b)(i) shall be rounded to the nearest cent and computed after aggregating all cash such Effective Time Holder is entitled to receive pursuant to this Section 2.2(b) . The preceding provisions of this Section 2.2(b)(i) are subject to the provisions of Section 2.2(e) (regarding withholding rights) and Section 2.4 (regarding the Escrow Cash and Expense Funds).

               (ii)  Company Common Stock . Subject to the terms and conditions of this Agreement, at the Effective Time, each share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares and shares owned by Company) will, by virtue of the Merger and without any further action on the part of Acquirer, Sub, Company or the holder thereof (except as expressly provided herein), be converted into and represent the right to receive an amount of cash (without interest) equal to the Common Cash Amount Per Share. The amount of cash that each Effective Time Holder is entitled to receive pursuant to this Section 2.2(b)(ii) shall be rounded to the nearest cent and computed after aggregating all cash such Effective Time Holder is entitled to receive pursuant to this Section 2.2(b) . The preceding provisions of this Section 2.2(b)(ii) are subject to the provisions of Section 2.2(e) (regarding withholding rights) and Section 2.4 (regarding the Escrow Cash and Expense Funds).

               (iii)  Company Vested Options . Subject to the terms and conditions of this Agreement, at the Effective Time, each Company Vested Option (including Company Options that accelerate pursuant to Section 11(b) of the Company Option Plan and Company Options that accelerate pursuant to Section 2.2(c), but excluding Company Options for which acceleration is being waived pursuant to a Benefits Waiver), that is unexpired, unexercised and outstanding immediately prior to the

Effective Time will, by virtue of the Merger and without any further action on the part of Acquirer, Sub, Company or the holder thereof (except as expressly provided herein), be thereafter no longer exercisable but will be converted into and represent the right to receive an amount of cash (without interest) equal to the product of (1) the Common Cash Amount Per Share minus the exercise price per share of Company Common Stock subject to such Company Vested Option multiplied by (2) the number of shares of Company Common Stock subject to such Company Vested Option. The amount of cash that each Effective Time Holder is entitled to receive pursuant to this Section 2.2(b)(iii) shall be rounded to the nearest cent and computed after aggregating all cash such Effective Time Holder is entitled to receive pursuant to this Section 2.2(b) . The preceding provisions of this Section 2.2(b)(iii) are subject to the provisions of Section 2.2(e) (regarding withholding rights) and Section 2.4 (regarding the Escrow Cash and Expense Funds).

          (c) Company Unvested Options . At the Effective Time, each Company Unvested Option held by a Continuing Employee that is unexpired, unexercised and outstanding immediately prior to the Effective Time (including the Company Options for which acceleration is being waived and the New Company Options), shall, on the terms and subject to the conditions set forth in this Agreement, be assumed by Acquirer (as “ Assumed Option ”). Each such Company Unvested Option so assumed by Acquirer under this Agreement shall continue to have, and be subject to, the same terms and conditions as are in effect immediately prior to the Effective Time except as otherwise provided in this Section 2.2(c) , except that:

               (i) such Assumed Option shall be exercisable for that number of whole shares of Acquirer Common Stock equal to the product (rounded down to the next whole number of shares of Acquirer Common Stock, with no cash being payable for any fractional share eliminated by such rounding) of the number of shares of Company Common Stock that were issuable upon exercise of the related Company Unvested Options immediately prior to the Effective Time and the Option Exchange Ratio,

               (ii) the per share exercise price for the shares of Acquirer Common Stock issuable upon exercise of such Assumed Option shall be equal to the quotient (rounded up to the next whole cent) obtained by dividing the exercise price per share of Company Common Stock at which the related Company Unvested Option was exercisable immediately prior to the Effective Time by the Option Exchange Ratio, and

               (iii) no Assumed Option may be “early exercised” ( i.e. , an Assumed Option may be exercised for shares of Acquirer Common Stock only to the extent the Assumed Option is vested at the time of exercise pursuant to the existing vesting schedule of the Company Unvested Option so assumed).

Subject to the terms of the Company Option Plan and the documents governing the outstanding options under such plan as in effect on the date hereof, the Merger shall not terminate any of the outstanding Company Unvested Options held by Continuing Employees under such plan. Each Company Unvested Option held by a Person other than a Continuing Employee will, by virtue of the Merger and without any further action on the part of any holder thereof or any other Person, be accelerated, cashed out as a Company Vested Option pursuant to Section 2.2(b)(iii), cancelled and extinguished. As soon as reasonably practicable following the Closing Date, but no later than five business days after the Closing Date, Acquirer will cause the shares of Acquirer Common Stock issuable upon exercise of the Company Unvested Options assumed by Acquirer under this Agreement to be registered or to be issued pursuant to an effective registration statement on Form S-8 (or successor form) under the Securities Act “ Form S-8 ”). Notwithstanding the foregoing, Acquirer will not be obligated to register the issuance of any shares of

Acquirer Common Stock that are subject to an Acquirer Option held by a Person who is ineligible to have such Person’s securities registered on Form S-8.

          (d) Cancellation of Company Capital Stock Owned by Company . Notwithstanding Section 2.2(b) , each share of Company Capital Stock held by Company immediately prior to the Effective Time will be canceled and extinguished without any conversion thereof and without the issuance or payment of any consideration.

          (e) Withholding Rights . Acquirer, the Surviving Company and the Exchange Agent (as defined in Section 7.2(a) ) will be entitled to deduct and withhold from the consideration otherwise deliverable under this Agreement, and from any other payments otherwise required pursuant to this Agreement, to any holder of Company Capital Stock or Company Options such amounts as Acquirer, the Surviving Company or the Exchange Agent is required to deduct and withhold with respect to any such deliveries and payments under the Code or any provision of state, local, provincial or foreign Tax law. To the extent that amounts are so withheld, such withheld amounts will be treated for all purposes of this Agreement as having been delivered and paid to such holders in respect of which such deduction and withholding was made.

     2.3 Adjustments . In the event of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into capital stock), reorganization, reclassification, combination, recapitalization or other like change with respect to the Company Capital Stock or Acquirer Common Stock occurring after the Agreement Date and prior to the Effective Time, all references in this Agreement to specified numbers of shares of any class or series affected thereby, and all calculations provided for that are based upon numbers of shares of any class or series (or trading prices therefor) affected thereby, shall be equitably adjusted to the extent necessary to provide the parties the same economic effect as contemplated by this Agreement prior to such stock split, reverse stock split, stock dividend, reorganization, reclassification, combination, recapitalization or other like change.

     2.4 Escrow . As soon as reasonably practicable after the Effective Time and pursuant to the Escrow Agreement (as defined in Section 8.5 ), Acquirer will withhold from the portion of the Total Merger Consideration payable to each Effective Time Holder in the Merger upon conversion of his/her/its outstanding shares of Company Capital Stock and Company Vested Options pursuant to Section 2.2 (b) and shall cause to be deposited with the Escrow Agent (as defined in Section 11.2 ) such Effective Time Holder’s Pro Rata Share of the Escrow Cash. The Escrow Cash shall constitute security for the indemnification obligations of the Effective Time Holders pursuant to Article 11 . In addition, $100,000 of the Total Merger Consideration shall be withheld pro rata from the portion of the Total Merger Consideration payable to each Effective Time Holder in the Merger and shall deposited with the Escrow Agent, which deposited amount, together with any interest and other income thereon (collectively, the “ Expense Funds ”), to serve solely as a source of funds to reimburse the Representative for any expenses incurred or reasonably expected to be incurred by the Representative in the performance of its obligations in such capacity under this Agreement pursuant to Section 11.5 and, to the extent not used for such purpose, shall be released to the Effective Time Holders pursuant to the terms and conditions of this Agreement and the Escrow Agreement.

     2.5 Appraisal Rights .

          (a) Notwithstanding anything contained herein to the contrary, any Dissenting Shares shall not be converted into the right to receive the cash amount provided for in Section 2.2(b) , but shall instead be converted into the right to receive such consideration as may be determined to be due with respect to any such Dissenting Shares pursuant to Delaware Law. Each holder of Dissenting Shares who, pursuant to the provisions of Delaware Law, becomes entitled to payment thereunder for such shares

shall receive payment therefor in accordance with Delaware Law. If, after the Effective Time, any Dissenting Shares shall lose their status as Dissenting Shares, then any such shares shall immediately be converted into the right to receive the cash payable pursuant to Section 2.2(b) in respect of such shares as if such shares never had been Dissenting Shares, and Acquirer shall issue and deliver to the holder thereof, at (or as promptly as reasonably practicable after) the applicable time or times specified in Section 7.2(c) , following the satisfaction of the applicable conditions set forth in Section 7.2(c) , the amount of cash to which such holder would be entitled in respect thereof under this Section 2.5 as if such shares never had been Dissenting Shares. Company shall give Acquirer (i) prompt notice of any demands for appraisal or purchase received by Company, withdrawals of such demands, and any other instruments served pursuant to Delaware Law and received by Company and (ii) the right to direct all negotiations and proceedings with respect to demands for appraisal or purchase under Delaware Law. Company shall not, except with the prior written consent of Acquirer, or as otherwise required under Delaware Law, voluntarily make any payment or offer to make any payment with respect to, or settle or offer to settle, any claim or demand in respect of any Dissenting Shares.

          (b) The payout of consideration under this Agreement to the stockholders of Company (other than to holders of Dissenting Shares who shall be treated as provided in this Section 2.5 and under Delaware Law) shall not be affected by the exercise or potential exercise of appraisal rights or dissenters’ rights under Delaware Law by any stockholder of Company and the Company Stockholders have no obligation to repay any amount Acquirer, in its sole discretion, pays as a result of such expense.

     2.6 Total Merger Consideration . Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate consideration paid by Acquirer to the Company Securityholders (including the value of the shares of Acquirer Common Stock or other consideration, if any, that will be subject to Company Unvested Options assumed by Acquirer (excluding the New Company Options) at the Effective Time pursuant to Section 2.2(c) ) exceed the Total Merger Consideration, except to the extent that any amount in excess of the Total Merger Consideration is as a result of (a) any changes in the price of Acquirer Common Stock occurring after the calculation of the Average Price Per Share or (b) any payment with respect to Dissenting Shares.

     2.7 Net Working Capital Adjustment .

          (a) Company shall deliver the Net Working Capital Certificate to Acquirer not less than three business days prior to the Closing Date.

          (b) At Acquirer’s option, but in any event within 60 days after the Closing, Acquirer may object to the Net Working Capital calculations included in the Net Working Capital Certificate (the “ NWC Calculations ”) by delivering to the Representative a certificate (the “ Acquirer NWC Certificate ”) executed by Acquirer’s Chief Financial Officer setting forth Acquirer’s calculation of Net Working Capital and the amount by which Net Working Capital as calculated by Acquirer is less than the Net Working Capital set forth in the Net Working Capital Certificate.

          (c) The Representative may object to the Net Working Capital calculations set forth in the Acquirer NWC Certificate by providing written notice of such objection to Acquirer within 20 days after Acquirer’s delivery of the Acquirer NWC Certificate (the “ Notice of Objection ”).

          (d) If the Representative timely provides the Notice of Objection, then the parties shall confer in good faith for a period of up to 10 business days following Acquirer’s timely receipt of the Notice of Objection, in an attempt to resolve any disagreement and any resolution by them shall be in writing and shall be final and binding.

          (e) If, after such 10-business day period, the Representative and Acquirer cannot resolve any such disagreement, then the parties shall engage Deloitte & Touche USA LLP (the “ Reviewing Accountant ”) to review the NWC Calculations. After review of the NWC Calculations and Company’s books and records, the Reviewing Accountant shall promptly determine the Net Working Capital and such determination shall be final and binding on the parties.

          (f) If the Net Working Capital, as determined pursuant to Section 2.7(b) (in the event there is no Notice of Objection) or Section 2.7(d) or Section 2.7(e) , is in fact less than the Net Working Capital set forth in the Net Working Capital Certificate (such difference, the “ Negative Adjustment Amount ”), then, if and only if the Total Merger Consideration would be reduced after giving effect to the Negative Adjustment Amount, Acquirer shall be indemnified in accordance with Article 11 , without any dispute by the Representative, for the full amount of:

               (i) the Negative Adjustment Amount;

               (ii) if Net Working Capital as determined by the Reviewing Accountant, if applicable, is less than or equal to Net Working Capital as set forth in the Acquirer NWC Certificate, all fees and expenses, if any, of the Reviewing Accountant; and

               (iii) if Net Working Capital as determined by the Reviewing Accountant, if applicable, is greater than Net Working Capital as set forth in the Acquirer NWC Certificate, a percentage of the fees and expenses, if any, of the Reviewing Accountant, which percentage shall equal the difference between Net Working Capital as set forth in the Net Working Capital Certificate and Net Working Capital as determined by the Reviewing Accountant, if applicable, divided by the difference between Net Working Capital as set forth in the Net Working Capital Certificate and Net Working Capital as set forth in the Acquirer NWC Certificate. Notwithstanding the foregoing, Acquirer shall not be indemnified for any portion of fees and expenses, if any, of the Reviewing Accountant, if the Net Working Capital as determined by the Reviewing Accountant is greater than the Net Working Capital as set forth in the Acquirer NWC Certificate.

          (g) Acquirer’s decision to provide or not to provide the Acquirer NWC Certificate pursuant to, and to follow the procedure set forth in, this Section 2.7 shall not constitute a waiver of any other remedy Acquirer may have in connection with the NWC Calculations, including the indemnification provisions of Article 11 .

     2.8 Effects of the Merger .

          (a) General . At the Effective Time, the effect of the Merger will be as provided in this Agreement and the applicable provisions of Delaware Law. Without limiting the generality of the foregoing, at the Effective Time, all of the properties, rights, privileges, powers and franchises of Company and Sub will vest in the Surviving Company, and all Liabilities and duties of Company and Sub will become the Liabilities and duties of the Surviving Company.

          (b) Certificate of Incorporation . The Certificate of Incorporation of Sub immediately prior to the Effective Time will be the Certificate of Incorporation of the Surviving Company immediately after the Effective Time until thereafter amended in accordance with the provisions thereof or as provided by law; provided , however , that Article I of the Certificate of Incorporation of the Surviving Company will be amended at the Effective Time to read: “The name of the corporation is Discovery Mining, Inc.”

          (c) Bylaws . At the Effective Time, the Bylaws of the Surviving Company shall be amended in their entirety to read as the Bylaws of Sub, until thereafter amended as provided by Delaware Law, the Certificate of Incorporation of the Surviving Company and such Bylaws

          (d) Directors and Officers .

               (i) At the Effective Time, the members of the Board of Directors of Sub immediately prior to the Effective Time shall be appointed as the members of the Board of Directors of the Surviving Company immediately after the Effective Time until their respective successors are duly elected or appointed and qualified.

               (ii) At the Effective Time, the officers of Sub immediately prior to the Effective Time shall be appointed as the officers of the Surviving Company immediately after the Effective Time until their respective successors are duly appointed.

     2.9 Tax Consequences . The parties intend the merger to be a taxable sale of the Company Capital Stock by the Company Securityholders. Acquirer makes no representations or warranties to Company or to any holder of and shares of Company Capital Stock or Company Options regarding the Tax treatment of the Merger, or any of the Tax consequences to Company or any holder of shares of Company Capital Stock or Company Options of this Agreement, the Merger or any of the other transactions or agreements contemplated hereby. Company acknowledges that Company and the holders of shares of Company Capital Stock and Company Options are relying solely on their own Tax advisors in connection with this Agreement, the Merger and the other transactions and agreements contemplated hereby. The parties hereby agree to treat the Escrow Fund (other than amounts characterized as imputed interest) as proceeds from an installment sale within the meaning of, and to the extent permitted by, Section 453 of the Code, and no party shall take any actions inconsistent with this treatment.

     2.10 Further Assurances . Company agrees that if, at any time after the Effective Time, Acquirer believes or is advised that any further deeds, assignments or assurances are reasonably necessary or desirable to vest, perfect, confirm or continue in the Surviving Company, Sub or Acquirer title to any property or any right of Company as provided herein, Acquirer and any of its officers are hereby authorized by Company to execute and deliver all such proper deeds, assignments and assurances and do all other things necessary or desirable to vest, perfect, confirm or continue title to such property or rights in the Surviving Company, Sub or Acquirer and otherwise to carry out the purposes of this Agreement, in the name of Company or otherwise. The parties further agree that, upon Acquirer’s request, the parties will amend this Agreement to cause Company to merge into a different direct or indirect Subsidiary of Acquirer.

     2.11 Rights Not Transferable . The rights of the Company Securityholders as of immediately prior to the Effective Time, are personal to each such securityholder and will not be transferable for any reason otherwise than by operation of law, will or the laws of descent and distribution. Any attempted transfer of such right by any holder thereof (otherwise than as permitted by the immediately preceding sentence) will be null and void.

ARTICLE 3
Representations and Warranties of Company

     Company represents and warrants to Acquirer that, except as set forth in the letter addressed to Acquirer from Company and dated as of the Agreement Date, including all Schedules thereto (which will specifically reference the Sections of this Agreement to which the specific items of disclosure therein constitute an exception and shall be deemed also disclosed in any other section, subsection or clause of

the Company Disclosure Letter to the extent that it is clear, upon a reading of the actual text of such disclosure, without any independent knowledge on the part of the reader regarding the matter disclosed or any review of any external document or matter referred to by such disclosure (other than references to defined terms in each of those external documents as noted), that such disclosure is responsive to such other section, subsection or clause of this Article 3) which has been delivered by Company to Acquirer concurrently with the parties’ execution of this Agreement (the “ Company Disclosure Letter ”), each of the representations, warranties and statements contained in the following Sections of this Article 3 is true and correct as of the Agreement Date and will be true and correct on and as of the Closing Date. For all purposes of this Agreement, the statements contained in the Company Disclosure Letter will also be deemed to be representations and warranties made and given by Company under this Article 3 .

     3.1 Organization and Good Standing . Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has continuously been in good standing under the laws of the State of Delaware at all times since its inception. Company has the corporate power and authority to own, operate and lease its properties and to carry on the Company Business and is duly qualified or licensed to do business and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification or licensing necessary (each such jurisdiction being listed on Schedule 3.1 of the Company Disclosure Letter), except where the failure to be so qualified or licensed would not, individually or in the aggregate, reasonably be expected to be material to Company. Company is not in violation of its Certificate of Incorporation or Bylaws or other equivalent organizational or governing documents.

     3.2 Subsidiaries . Schedule 3.2 of the Company Disclosure Letter sets forth a true, correct and complete list of each Subsidiary of Company, and each such Subsidiary is wholly owned by Company. Company has no equity interest, direct or indirect, in, or loans to, any Person. Company is not obligated to make, nor bound by any Contract to make, any investment in or capital contribution in or on behalf of any other Person. Schedule 3.2 of the Company Disclosure Letter sets forth, with respect to each Subsidiary of Company, (a) its jurisdiction of incorporation or organization, (b) a correct and complete list of all jurisdictions in which it is qualified to do business, and (c) the address of its principal executive offices. Each Subsidiary of Company is duly organized, validly existing and in good standing (or appropriately recognized as legally in existence and active under the laws of its jurisdiction) under the laws of its jurisdiction of incorporation or organization identified on Schedule 3.2 of the Company Disclosure Letter and has the power and authority to own, operate and lease its properties and to carry on its business as presently being conducted. Each Subsidiary of Company is duly qualified or licensed to do business and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification or licensing necessary, except where the failure to be so qualified or licensed would not, individually or in the aggregate, have a material adverse effect on such Subsidiary. Neither Company nor any of its Subsidiaries is a general or limited partner of any general partnership, limited partnership or other entity.

     3.3 Power, Authorization and Validity .

          (a) Subject to adoption of this Agreement pursuant to the Company Stockholder Consent, Company has all requisite corporate power and authority to enter into and perform its obligations under this Agreement and all Company Ancillary Agreements. The execution and delivery of this Agreement and the Company Ancillary Agreements and the consummation of the transactions contemplated hereby have been duly and validly approved and authorized by the Company Board. This Agreement has been duly executed and delivered by Company and constitutes the valid and binding obligation of Company enforceable against Company in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The

Company Board, by resolutions duly adopted (and not thereafter modified or rescinded) by the unanimous vote of the Company Board, has approved and adopted this Agreement and approved the Merger, determined that this Agreement and the terms and conditions of the Merger and this Agreement are advisable and in the best interests of Company and its stockholders, and directed that the adoption of this Agreement be submitted to the Company Stockholders for consideration and recommended that all of the stockholders of Company adopt this Agreement.

          (b) No filing, authorization, consent, approval, permit, order, registration or declaration, governmental or otherwise, is necessary to enable Company to enter into, and to perform its obligations under, this Agreement or the Company Ancillary Agreements, except for: (i) the filing of the Certificate of Merger with the Delaware Secretary of State; and (ii) such other filings, authorizations, consents, approvals, permits, orders, registrations and declarations, if any, that if not made or obtained by Company would not be material to Company’s ability to consummate the Merger or to perform its obligations under this Agreement and the Company Ancillary Agreements and would not, individually or in the aggregate, be material to Company or its business.

     3.4 Capitalization .

          (a) The authorized capital stock of Company consist solely of (i) 10,000,000 shares of Company Common Stock and (ii) 1,750,000 shares of Company Preferred Stock, all of which are designated as Company Series A Stock. A total of 2,568,833 shares of Company Common Stock and 996,035 shares of Company Series A Stock are issued and outstanding as of the Agreement Date. Company holds no treasury shares. As of the Agreement Date, there are no other issued and outstanding shares of capital stock or other securities of Company and no outstanding commitments or Contracts to issue any shares of capital stock or other securities of Company other than pursuant to the exercise of outstanding Company Options under the Company Option Plans. Schedule 3.4(a) of the Company Disclosure Letter accurately sets forth, as of the Agreement Date, the name of each Person that is the registered owner of any shares of Company Common Stock or Company Series A Stock and the number of such shares so owned by such Person, and the number of shares of Company Common Stock that would be owned by such Person assuming conversion of all shares of Company Preferred Stock so owned by such Person giving effect to all anti-dilution and similar adjustments. The number of such shares set forth as being so owned by such Person constitutes the entire interest of such Person in the issued and outstanding capital stock or voting securities of Company as of the Agreement Date. All issued and outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are free of any Encumbrances, preemptive rights, rights of first refusal or “put” or “call” rights created by statute, Company’s Certificate of Incorporation or Bylaws, or any Contract to which Company is a party or by which Company is bound. All issued and outstanding shares of Company Capital Stock were issued in material compliance with all Applicable Laws and all material requirements set forth in applicable Contracts. There is no Liability for dividends declared or accrued and unpaid by Company. Company is not under any obligation to register under the Securities Act any shares of Company Capital Stock or any other securities of Company, whether currently outstanding or that may subsequently be issued.

          (b) There are no Unvested Company Shares issued and outstanding.

          (c) As of the Agreement Date, Company has reserved an aggregate of 1,500,000 shares of Company Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Company Option Plan, of which 543,415 shares are subject to outstanding and unexercised Company Options and 956,585 shares remain available for issuance thereunder. Schedule 3.4(c)-1 of the Company Disclosure Letter sets forth, as of the Agreement Date, a true, correct and complete list of all holders of outstanding Company Options, including the number of shares of Company

Common Stock subject to each such option, the date of grant, the exercise or vesting schedule (and the terms of any acceleration thereof), the exercise price per share, the Tax status of such option under Section 422 of the Code and the plan arrangement or agreement pursuant to which such options were granted. Schedule 3.4(c)-2 of the Company Disclosure Letter sets forth a true, correct and complete list (which schedule will be a subset of Schedule 3.4(c)-1 of the Company Disclosure Letter), as of the Agreement Date, of all holders of outstanding Company Options that are held by Persons that are not employees of Company or any of its Subsidiaries (including non-employee directors, consultants, advisory board members, vendors, service providers or other similar persons), including a description of the relationship between each such Person and Company. All issued and outstanding Company Options were issued in compliance with all Applicable Laws and all requirements set forth in applicable Contracts. All Company Unvested Options to be assumed by Acquirer pursuant to Section 2.2(c) were granted under, and in compliance with, Rule 701 promulgated under the Securities Act and any applicable guidance issued thereunder.

          (d) No bonds, debentures, notes or other indebtedness of Company or its Subsidiaries (i) having the right to vote on any matters on which Company Stockholders may vote (or which is convertible into, or exchangeable for, securities having such right) or (ii) the value of which is in any way based upon or derived from capital or voting securities of Company, is issued or outstanding as of the Agreement Date (collectively, “ Company Voting Debt ”).

          (e) Except for the Company Options described in Schedule 3.4(c)-1 of the Company Disclosure Letter and the New Company Options, there are no options, warrants, calls, rights or Contracts of any character to which Company is a party or by which it is bound obligating Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Company Capital Stock, options, warrants or other rights to purchase shares of Company Capital Stock or other securities of Company, or any Company Voting Debt, or obligating Company to grant, extend, accelerate the vesting and/or repurchase rights of, change the price of, or otherwise amend or enter into any such option, warrant, call, right or Contract. Except for the New Company Options, there are no Contracts relating to voting, purchase or sale of any shares of Company Capital Stock (i) between or among Company and any of its securityholders, other than written contracts granting Company the right to purchase unvested shares upon termination of employment or service, and (ii) to Company’s Knowledge, between or among any of Company’s securityholders. Neither the Company Option Plan nor any Contract of any character to which Company and/or its Subsidiaries is a party to or by which Company and/or its Subsidiaries is bound relating to any Company Options require or otherwise provide for any accelerated vesting of any Company Options in connection with the Merger or any other transaction contemplated by this Agreement or upon termination of employment or service with Company, Acquirer or any of their respective Subsidiaries, or any other event, before, upon or following the Merger or otherwise. A true and complete copy of the Company Option Plan, all agreements and instruments relating to or issued under the Company Option Plan (including executed copies of all Contracts relating to the Company Option and the shares of Company Capital Stock purchased under such option) have been provided to Acquirer’s counsel, and such plans and Contracts have not been amended, modified or supplemented since being provided to Acquirer’s counsel, and there are no Contracts or understandings to amend, modify or supplement such plans or Contracts in any case from those provided to Acquirer’s counsel.

          (f) The Spreadsheet (as defined in Section 5.14 ) will accurately set forth, as of the Closing, the name of each Person that is the registered owner of any shares of Company Capital Stock and/or Company Options and the number and class of such shares of Company Capital Stock so owned, or subject to Company Options so held, by such Person. The number of such shares set forth as being so owned, or subject to Company Options so owned, by such Person will constitute the entire interest of such person in the issued and outstanding capital stock, voting securities or other securities of Company.

As of the Closing, no other Person not disclosed in the Spreadsheet will have a right to acquire any shares of Company Capital Stock and/or Company Options from Company. In addition, the shares of Company Capital Stock and/or Company Options disclosed in the Spreadsheet will be, as of the Closing, free and clear of any Encumbrances created by Company’s Certificate of Incorporation or Bylaws or any Contract to which Company is a party or by which it is bound.

          (g) Company has good and marketable title to all of the issued and outstanding stock or other securities or equity interests of each of its Subsidiaries set forth on Schedule 3.4(g) of the Company Disclosure Letter, free and clear of any Encumbrance. All such issued and outstanding stock or other securities or equity interests have been duly authorized and validly issued, are fully paid and nonassessable, are not subject to any right of rescission, right of first refusal or preemptive right, and have been offered, issued, sold and delivered by the relevant Subsidiary of Company in compliance with all requirements of Applicable Laws and all requirements set forth in applicable Contracts. There are no stock appreciation rights, options, warrants, calls, rights, commitments, conversion privileges or preemptive or other rights or agreements outstanding to purchase or otherwise acquire any stock or other securities or equity interests of any Subsidiary of Company or any securities or debt convertible into or exchangeable for such stock or other securities or equity interests or obligating such Subsidiary of Company to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or agreement.

     3.5 No Conflicts . Neither the execution and delivery of this Agreement or the Company Ancillary Agreements, nor the consummation of any of the transactions contemplated herein or therein, will (a) conflict with, result in any violation or default under (with or without notice or lapse of time, or both), give rise to a right of termination, cancellation or acceleration or any obligation or loss of any benefit under, or require any consent, approval or waiver from any Person pursuant to (i) any provision of Company’s Certificate of Incorporation or Bylaws or similar charter documents of Company or any of its Subsidiaries, each as currently in effect, (ii) any Applicable Law, or (iii) any Material Agreement to which Company or any of its Subsidiaries is a party or by which Company or any of its Subsidiaries or any of their respective assets or properties are bound or affected, except, in the case of clauses (ii) and (iii), as would not be material to Company or (b) result in the creation of any Encumbrance on any of the material properties or assets of Company or any of its Subsidiaries or, to Company’s Knowledge, any shares of Company Capital Stock.

     3.6 Litigation .

          (a) There is no action, suit, arbitration, mediation, proceeding, claim or investigation pending or, to Company’s Knowledge, threatened against Company or any of its Subsidiaries or any of their respective assets or properties (or, to the Knowledge of Company and its Subsidiaries, there is no action, suit, arbitration, mediation, proceeding, claim or investigation pending or threatened against any director or officer in their capacity as such or relating to their employment, services or relationship with Company or any of its Subsidiaries) before any Governmental Authority or arbitrator.

          (b) There is no judgment, decree, injunction, rule or order against Company or any of its Subsidiaries or any of their respective assets or properties (or, to the Knowledge of Company and its Subsidiaries, against any director or officer in their capacity as such or relating to their employment, services or relationship with Company or any of its Subsidiaries).

          (c) To Company’s Knowledge, no Person has submitted a written notice to Company asserting a claim against Company or any of its Subsidiaries based upon Company’s entering into this Agreement or any Company Ancillary Agreement or consummating the Merger or any of the transactions contemplated by this Agreement or any Company Ancillary Agreement.

          (d) Neither Company nor any of its Subsidiaries has any material action, suit, arbitration, mediation, proceeding, claim or investigation pending against any other Person.

     3.7 Financial Statements .

          (a) Company has delivered to Acquirer its consolidated unaudited financial statements for each fiscal year and interim fiscal period subsequent to Company’s inception date (including, in each case, balance sheets, statements of operations and statements of cash flows and including consolidated unaudited financial statements for the six-month period ended June 30, 2008) (collectively, the “ Financial Statements ”), which are included as Schedule 3.7(a) of the Company Disclosure Letter. All of the Financial Statements (i) are prepared from and are in accordance with the books and records of Company, (ii) complied as to form in all material respects with applicable accounting requirements with respect thereto as of their respective dates, (iii) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered; provided , however , that the Balance Sheet is subject to normal and recurring year-end adjustments (which will not be material individually or in the aggregate) , (iv) fairly present the consolidated financial condition of Company and its Subsidiaries at the dates therein indicated and the consolidated results of operations and cash flows of Company and its Subsidiaries for the periods therein specified, and (v) are true, complete and correct in all material respects, insofar as the accounting policies have been consistently applied by Company’s or its Subsidiaries’ accountants with those of prior years. Neither Company nor any of its Subsidiaries has any Liabilities other than (A) those set forth or adequately provided for in the Balance Sheet included in the Financial Statements as of June 30, 2008 (the “ Balance Sheet ”), (B) those incurred in the conduct of Company’s business since June 30, 2008 (the “ Balance Sheet Date ”) in the ordinary course, consistent with past practice, which are of the type that either ordinarily recur and, individually or in the aggregate, or are not material in nature or amount and do not result from any breach of Contract, tort or violation of law, and (C) those incurred by Company in connection with the execution of this Agreement. Except for Liabilities reflected in the Financial Statements, Company has no off balance sheet Liability of any nature to, or any financial interest in, any third party or entities, the purpose or effect of which is to defer, postpone, reduce or otherwise avoid or adjust the recording of expenses incurred by Company. All reserves that are set forth in or reflected in the Balance Sheet have been established in accordance with GAAP consistently applied and are adequate.

          (b) Company has established and maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions, receipts and expenditures of Company and its Subsidiaries are being executed and made only in accordance with appropriate authorizations of management and the Company Board, (ii) transactions are recorded as necessary (A) to permit preparation of financial statements in conformity with GAAP and (B) to maintain accountability for assets, (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of Company and its Subsidiaries, (iv) the amount recorded for assets on the books and records of Company is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Neither Company, any of its Subsidiaries or Company’s independent auditors nor, to Company’s Knowledge, any current or former employee, consultant or director of Company or any of its Subsidiaries has identified or been made aware of any fraud, whether or not material, that involves Company’s management or other current or former employees, consultants, directors or management of Company or any of its Subsidiaries who have a role in the preparation of financial statements or the internal accounting controls utilized by Company or its Subsidiaries, or any claim or allegation regarding any of the foregoing. Neither Company nor any of its Subsidiaries nor, to Company’s Knowledge, any director, officer, employee, auditor, accountant or representative of Company or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, in each case regarding deficient accounting or auditing practices, procedures, methodologies or methods of Company

or any of its Subsidiaries or their respective internal accounting controls or any material inaccuracy in Company’s financial statements. No attorney representing Company or any of its Subsidiaries, whether or not employed by Company or any of its Subsidiaries, has reported to the Company Board or any committee therefore or to any directors or officer of Company evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by Company, its Subsidiaries or any of their respective officers, directors, employees or agents. There are no significant deficiencies or material weaknesses in the design or operation of Company’s internal controls which could adversely affect Company’s ability to record, process, summarize and report financial data. At the Balance Sheet Date, there were no material loss contingencies (as such term is used in Statement of Financial Accounting Standards No. 5 (“ Statement No. 5 ”) issued by the Financial Accounting Standards Board in March 1975) that are not adequately provided for in the Balance Sheet as required by said Statement No. 5. There has been no material change in Company accounting policies since Company’s inception, except as described in the Financial Statements or required by GAAP.

          (c) Schedule 3.7(c) of the Company Disclosure Letter sets forth the names and locations of all banks, trust companies, savings and loan associations and other financial institutions at which Company and its Subsidiaries maintain accounts of any nature and the names of all persons authorized to draw thereon or make withdrawals therefrom.

          (d) Schedule 3.7(d) of the Company Disclosure Letter accurately lists all indebtedness of Company and its Subsidiaries (i) for money borrowed, (ii) evidenced by notes, bonds, debentures or similar instruments, (iii) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of business), (iv) under capital leases or (v) in the nature of guarantees of the obligations described in clauses (i) through (iv) above of any other Person (collectively, “ Debt ”), including, for each item of Debt, the agreement governing the Debt and the interest rate, maturity date and any assets or properties securing such Debt. All Debt may be prepaid at the Closing without penalty under the terms of the Contracts governing such Debt.

     3.8 Taxes .

          (a) Company and each of its Subsidiaries have timely filed all returns, reports, declarations, claims for refund, estimates and information returns and statements or other documents relating to Taxes, including any schedule or attachment thereto and any amendment thereof (the “ Returns ”), required to be filed by Company or such Subsidiary under all Applicable Laws and regulations. All such Returns were true, complete and correct in all respects and were prepared in substantial compliance with all Applicable Laws. Company and each of its Subsidiaries have paid all Taxes due and owing (whether or not shown on any Return).

          (b) The unpaid Taxes of Company and its Subsidiaries (i) did not, as of the Balance Sheet Date, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Balance Sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company and its Subsidiaries in filing their Returns. Since the Balance Sheet Date, neither Company nor any of its Subsidiaries has incurred any Liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice. There are no Encumbrances for Taxes (other than Taxes not yet due and payable) upon any of the assets of Company or any of its Subsidiaries.

          (c) No director or officer (or employee responsible for Taxes) of Company or any of its Subsidiaries expects any authority to assess any additional Taxes for any period for which Returns

have been filed. No deficiencies for any Tax have been threatened, claimed, proposed or assessed against Company or any of its Subsidiaries which have not been settled or paid. No Return of Company or any of its Subsidiaries has ever been audited by the Internal Revenue Service or any other Taxing agency or authority, no such audit is in progress and neither Company nor any of its Subsidiaries has been notified of any request for such an audit or other examination. No claim has ever been made by a Governmental Authority in a jurisdiction where Company or any of its Subsidiaries does not file Returns that Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction. No adjustment relating to any Returns filed by Company or any of its Subsidiaries has been proposed by any Governmental Authority to Company or any of its Subsidiaries (or any representative thereof). There is not in effect any waiver by Company or any of its Subsidiaries of any statute of limitations with respect to any Taxes or agreement to any extension of time for filing any Return which has not been filed, and Company has not consented to extend to a date later than the Agreement Date the period in which any Tax may be assessed or collected by any Governmental Authority. Company has delivered to Acquirer correct and complete copies of all federal and state income tax Returns for all periods ending on or after December 31, 2002, examination reports and statements of deficiencies assessed against or agreed to by Company or any of its Subsidiaries.

          (d) Company is not a party to, and does not owe any amount under, any Tax-sharing or allocation agreement. Company has not been a member of an affiliated group filing a consolidated federal income Tax return (other than a group the common parent of which was Company) and has no Liability for the Taxes of any Person (other than Company and its Subsidiaries) under Section 1.1502-6 of the Regulations (or any similar provision of state, local or foreign law) as a transferee or successor, by contract or otherwise.

          (e) Company and each of its Subsidiaries have withheld and paid (and until Closing will withhold and pay) all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

          (f) Each of Company and its Subsidiaries has disclosed on its federal income tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any of its Subsidiaries has consummated, has participated in or is currently participating in any transaction which was or is a “Tax shelter” transaction as defined in Section 6662, 6011, 6111 or 6112 of the Code or the Regulations. None of Company or any of its Subsidiaries has entered into any reportable transaction as defined in Section 1.6011-4(b) of the Regulations.

          (g) Neither Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (iii) intercompany transaction; (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.

          (h) There is no agreement, plan, arrangement or other Contract covering any current or former employee or other service provider of Company or any Subsidiary or ERISA Affiliate (as defined below) to which Company and/or any Subsidiary is a party or by which Company and/or any Subsidiary is bound that, considered individually or considered collectively with any other such agreements, plans, arrangements or other Contracts, will, or could reasonably be expected to, as a result of the transactions contemplated by this Agreement (whether alone or upon the occurrence of any

additional or subsequent events), give rise directly or indirectly to the payment of any amount that could reasonably be expected to be non-deductible under Section 162(m) of the Code (or any corresponding or similar provision of state, local or foreign Tax law) or characterized as a “parachute payment” within the meaning of Section 280G of the Code (or any corresponding or similar provision of state, local or foreign Tax law). Schedule 3.8(h) of the Company Disclosure Letter lists each Person who Company reasonably believes is, with respect to Company, any Subsidiary and/or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), as determined as of the Agreement Date.

          (i) Company is not a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.

          (j) To Company’s Knowledge, no payment pursuant to any Employee Plans or other arrangement between Company or a Subsidiary and any “service provider” (as such term is defined in Section 409A of the Code and the United States Treasury Regulations and IRS guidance thereunder), including, without limitation, the grant, vesting or exercise of any equity option, would subject any Person to a tax pursuant to Section 409A of the Code, whether pursuant to the consummation of the Merger, any other transaction contemplated by this Agreement or otherwise.

          (k) All Company Options have been appropriately authorized by the Company Board, including approval of the option exercise price or the methodology for determining the option exercise price and the substantive option terms.  Except for the New Company Options to be granted pursuant to Section 5.11(b), all Company Options granted to employees in the United States that are potentially subject to Code Section 409A have a per share exercise price that reflects the fair market value of the Company Common Stock as determined in good faith compliance with Section 409A of the Code and the regulations issued thereunder on the date that the option was granted.  No Company Options have been retroactively granted, or the exercise price of any Company Option determined retroactively.

     3.9 Title to Assets and Properties; Condition of Equipment and Property . Company and its Subsidiaries have good and valid title to, or a valid leasehold interest in, all of the assets and properties used in the Company Business, not including Company IP Rights, or shown on the Balance Sheet, free and clear of any Encumbrance, except for Permitted Encumbrances. Such assets and properties are sufficient for the continued operation of the business of Company and its Subsidiaries as presently being conducted in all material respects. All machinery, vehicles, equipment and other tangible personal property owned or leased by Company or any of its Subsidiaries or used in the Company Business are (a) suitable for the uses to which they are currently employed, (b) in generally good operating condition, (c) regularly and properly maintained, and (d) not obsolete, dangerous or in need of renewal or replacement, except for renewal or replacement in the ordinary course of business, consistent with past practice. All properties used in the operations of Company or any of its Subsidiaries are reflected on the Balance Sheet to the extent required under GAAP to be so reflected. All leases of real or personal property to which Company or any of its Subsidiaries is a party are fully effective and afford Company or such Subsidiary peaceful and undisturbed leasehold possession of the subject matter of the lease. Company and its Subsidiaries are not materially in violation of any zoning, building, safety or environmental ordinance, regulation or requirement applicable to the operation of its owned or leased properties or of any other Applicable Law, nor has Company or any of its Subsidiaries received any notice of violation of law from a Governmental Agency with jurisdiction over Company relating to such issues with which it has not complied. Schedule 3.9-1 of the Company Disclosure Letter identifies each parcel of real property leased by Company or any Subsidiary. Company has heretofore provided to Acquirer’s counsel true, correct and complete copies of all leases, subleases and other agreements under which Company and/or any Subsidiary uses or occupies or has the right to use or occupy, now or in the future, any real property or facility, including all modifications, amendments and supplements thereto.

Neither Company nor any of its Subsidiaries owns any real property. Company and its Subsidiaries have adequate rights of ingress and egress into any real property used in the operation of the Company Business. Schedule 3.9-2 of the Company Disclosure Letter sets forth a complete and accurate list and a brief description of all personal property owned or leased by Company or any of its Subsidiaries with an individual value of $10,000 or greater.

     3.10 Absence of Certain Changes . Since the Balance Sheet Date, Company and each of its Subsidiaries has carried on its business in the ordinary course in accordance with the procedures and practices in effect on the Balance Sheet Date, and since the Balance Sheet Date there has not been with respect to Company or any of its Subsidiaries:

          (a) any Material Adverse Change;

          (b) any Liability incurred other than in the ordinary course of business, consistent with past practice, or any borrowing of monies in excess of $50,000 in the aggregate;

          (c) any making of any loan, advance or capital contribution to, or investment in, any Person other than travel loans or advances made in the ordinary course of business, consistent with past practice;

          (d) any Contract with respect to any acquisition, sale or transfer of any asset of Company or any of its Subsidiaries (other than the sale or nonexclusive license of Company Products to its customers in the ordinary course of business consistent with past practice or any such transaction for which the consideration is less than $10,000);

          (e) any material damage, destruction or loss, whether or not covered by insurance, affecting its assets, properties or business;

          (f) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect to any securities of Company or combination or recapitalization of any securities of Company or any direct or indirect redemption, purchase or other acquisition by Company of its securities, or any change in any rights, preferences, privileges or restrictions of any of its outstanding securities;

          (g) any entry into, amendment of, or relinquishment, termination or nonrenewal by it of any Contract or other right or obligation other than in the ordinary course of business, consistent with past practice, but in no event involving obligations (contingent or otherwise) of or payments to it in excess of $50,000 individually or $100,000 in the aggregate;

          (h) any payment or discharge of any Encumbrance or Liability, which Encumbrance or Liability was not either (i) shown on the Balance Sheet or (ii) incurred in the ordinary course of business, consistent with past practice, after the Balance Sheet Date;

          (i) any sale, disposition, transfer or license to any Person of any rights to Company IP Rights other than in the ordinary course of business consistent with past practice or any acquisition or license from any Person of any Intellectual Property or any sale, disposition, transfer or providing of any copy of any Company Source Code to any Person, in each case involving consideration in excess of $10,000;

          (j) any deferral of the payment of any accounts payable other than in the ordinary course of business, consistent with past practice, or in an amount which is not material, or any discount,

accommodation or other concession made other than in the ordinary course of business, consistent with past practice, in order to accelerate or induce the collection of any receivable;

          (k) any material change in the manner in which it extends discounts, credits or warranties to its customers or otherwise deals with its customers;

          (l) any material labor dispute or any claim of unfair labor practices;

          (m) any change with respect to its officers or management or supervisory employees (collectively, the “ Management Employees ”);

          (n) any modification of the benefits payable, or to become payable, to any of its directors, officers or employees, or any increase in the compensation (including severance and equity compensation) payable, or to become payable, to any of its directors, officers or employees, or any bonus payment or arrangement made to or with any of such directors, officers or employees;

          (o) any increase in or modification of any bonus, pension, insurance or other employee benefit plan, payment or arrangement (including the granting of options, awards or appreciation rights with respect to its capital stock) made to, for or with any of its directors, officers, employees, consultants or independent contractors;

          (p) any modification or change to the right to exercise or convert, or to the exercise or purchase prices of, any shares of Company Capital Stock or other securities, or any acceleration or other modification of (i) the vesting of or right to exercise any option, warrant or other right to purchase shares of Company Capital Stock or other securities or (ii) the vesting or release of any shares of Company Capital Stock or other securities from any repurchase options or rights of refusal held by it or any other party or any other restrictions;

          (q) any amendment or change to Company’s Certificate of Incorporation or Bylaws other equivalent organizational or governing documents of Company or any Subsidiary; or

          (r) any announcement of, any negotiation by or any entry into any Contract by Company or any Subsidiary to do any of the things described in the preceding clauses (a) through (q) (other than negotiations and agreements with Acquirer and its representatives regarding the transactions contemplated by this Agreement).

     3.11 Contracts . Except for this Agreement and the Contracts specifically identified in the specific subsections of Schedule 3.11 of the Company Disclosure Letter, or which are no longer in effect, neither Company nor any of its Subsidiaries is a party or subject to any of the following (whether oral or in writing):

          (a) any distribution, original equipment manufacturing, reseller, marketing, sales representative or similar Contract under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for any product, service or technology owned, marketed, licensed or provided by it in excess of $50,000 per annum;

          (b) any Contract for the purchase, sale, license, provision or manufacture of products, materials, supplies, equipment or services, including online marketing, media purchase and optimization Contracts, requiring payment to or from it in an amount in excess of $50,000 per annum;

          (c) any Contract (i) in which it has granted or received most favored customer pricing provisions, exclusive sales, distribution, marketing, manufacturing or on-line distribution rights, rights of refusal, rights of first negotiation or similar rights or (ii) limiting the right of Company or any of its Subsidiaries (A) to sell, distribute or manufacture any products or services or (B) to purchase or otherwise obtain any software, components, parts, subassemblies or services, with respect to any Company Products;

          (d) any Contract providing for the development of any software, content (including textual content and visual or graphics content), technology or Intellectual Property, independently or jointly, by or for (or for the benefit or use of) it;

          (e) any Contract under which (i) it is a licensor of Intellectual Property rights, (ii) it is a licensee of Intellectual Property rights of any other Person (other than “shrink wrap” and similar generally available commercial end-user licenses to software that (A) is not incorporated into, integrated or bundled with, or used by Company or any of its Subsidiaries in the development, manufacture, compilation or provision of any of the Company Products and (B) that have an individual acquisition cost of $1,000 or less (any such software licenses, “ Immaterial Software Licenses ”)), (iii) it agrees to encumber, not assert, transfer or sell rights in or with respect to any Intellectual Property, or (iv) it agrees to provide source code to any third party;

          (f) any Contract to license or authorize any third party to manufacture or reproduce any of its products, services, technology or Intellectual Property;

          (g) any joint venture or partnership Contract, any Contract relating to a limited liability company or any other Contract which has involved, or is reasonably expected to involve, a sharing of revenues, profits, cash flows, expenses or losses by it with any other party;

          (h) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into with customers and distributors in the ordinary course of business pursuant to Company’s standard form which has not been materially modified (a copy of which has been delivered to Acquirer’s counsel);

          (i) any Contract for or relating to the employment or hiring for services of any of its directors, officers, employees, consultants or independent contractors or any other type of Contract with any of its directors, officers, employees, consultants or independent contractors which is not immediately terminable by it without cost or other Liability to it, including any Contract requiring it to make a payment to any director, officer, employee, consultant or independent contractor on account of the Merger, any transaction contemplated by this Agreement or any Contract that is entered into in connection with this Agreement;

          (j) any Contract or trust deed encumbering any of its assets or properties, any promissory note, any credit line, credit facility, loan agreement or other Contract for the borrowing of money pursuant to which it may borrow or loan funds, any security agreement encumbering any of its assets or properties, any security agreement encumbering any asset or property of a third party for its benefit, any guarantee by it of any obligation or indebtedness of another party or any guarantee of any of its obligations or indebtedness, and any Contract for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board;

          (k) any Contract, under which services are currently being provided or obligations of either party thereto are continuing, containing indemnification, warranty or similar provisions with

respect to products or services or any Contract containing any support, maintenance or service obligation or cost on the part of Company or any of its Subsidiaries (other than under its form of standard customer or distributor agreement, the terms of which have not been materially modified, the form of which has been delivered to Acquirer’s counsel);

          (l) any Contract for the sale, licensing or leasing by or to it of any assets, properties, products, services or rights having a value in excess of $50,000 per annum or which is material to the Company Business and any Contract for the sale, purchase or disposition of any real property;

          (m) any Company IP Rights Agreement (as defined in Section 3.13(g) ) that (i) involves or involved a payment to or from it of $50,000 or more, (ii) grants any exclusive rights, including any exclusivity with respect to any product, service, market, industry, field of use or geographic territory, (iii) requires the ongoing payment of any royalties or periodic fees or payments by it, or (iv) is material to the Company Business, its Intellectual Property rights or technology or any of its current or proposed products or services;

          (n) any application hosting, application management, application usage, website hosting, website linking, consent or data sharing, data feed, information exchange, advertising, fee sharing, lead or customer referral, commerce, co-branding, framing, service, order or transaction processing or similar Contract relating to any aspect or element of any of the Company Websites (as defined in Section 3.14 ) or any other website or use of the public internet, or the extranet or intranet of any Person;

          (o) any Contract or plan (including any Company stock option, Company stock purchase and/or Company stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of Company or any of its Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any shares of Company Capital Stock, other securities or options, warrants or other rights therefor, except for those Contracts disclosed on Schedule 3.4(c)-1 of the Company Disclosure Letter;

          (p) any Contract under which Company provides any advice or services to any third party, including any consulting Contract, professional Contract or software implementation, deployment or development services Contract (including, for each such Contract, a description of the percentage of completion and expected additional hours, resources and costs necessary to complete such services) in excess of $10,000;

          (q) any Contract with any labor union or any collective bargaining agreement or similar Contract with its employees;

          (r) any Contract pursuant to which it has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise;

          (s) any other Contract to which it is a party or by which it or any of its assets or properties are bound that involves a future financial commitment by it in excess of $50,000; or

          (t) any Contract between Company and any Governmental Authority.

          All Contracts required by subsections (a) through (t) of this Section 3.11 to be listed on Schedule 3.11 of the Company Disclosure Letter (collectively, “ Material Agreements ”) are valid and in

full force and effect. A true and complete copy of each Material Agreement and all amendments and schedules thereto has been delivered to Acquirer’s counsel. No statement of work or contract order will be deemed to be disclosed on Schedule 3.11 of the Company Disclosure Letter unless such statement of work or contract order, as applicable, is specifically listed on Schedule 3.11 of the Company Disclosure Letter.

     3.12 No Default; No Restrictions .

          (a) Company and its Subsidiaries are not, nor to Company’s Knowledge is any other party, in material breach or default under any Material Agreement. No event has occurred, and no circumstance or condition exists, caused either by Company or, to Company’s Knowledge, the contract counterparty, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, (i) result in a violation or breach of any provision of any Material Agreement by Company; or (ii) to Company’s Knowledge, give the respective contract counterparty (A) the right to declare a default or exercise any remedy under any Material Agreement, (B) the right to a material rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Agreement, (C) the right to accelerate the maturity or performance of any obligation of Company or any of its Subsidiaries under any Material Agreement, or (D) the right to cancel, terminate or modify any Material Agreement. Neither Company nor any of its Subsidiaries has received any written notice from a contract counterparty regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Agreement. Neither Company nor any of its Subsidiaries has any material Liability for renegotiation of Contracts or subcontracts with any Governmental Authority.

          (b) Neither Company nor any of its Subsidiaries is a party to, and no asset or property of Company or any of its Subsidiaries is bound or affected by, any judgment, injunction, order, decree or Contract that restricts or prohibits, or purports to restrict or prohibit, Company or any of its Subsidiaries or, following the Effective Time, the Surviving Company, from freely engaging in the Company Business or from competing anywhere in the world (including any judgments, injunctions, orders, decrees or Contracts restricting the geographic area in which Company or any of its Subsidiaries may sell, license, market, distribute or support any products or technology or provide services or restricting the markets, customers or industries that Company or any of its Subsidiaries may address in operating the Company Business or restricting the prices which Company or any of its Subsidiaries may charge for their respective products, technology or services) or that includes any grants by Company or any of its Subsidiaries of exclusive rights or licenses.

     3.13 Intellectual Property .

          (a) Company and its Subsidiaries (i) own and have independently developed or acquired or (ii) have the valid right or license to all Company IP Rights. The Company IP Rights are sufficient for the conduct of the Company Business as currently conducted and, to Company’s Knowledge, as currently planned by Company to be conducted in the future.

          (b) Neither Company nor any of its Subsidiaries has transferred ownership of any Intellectual Property that is or was Company-Owned IP Rights to any third party or knowingly permitted Company’s rights in any Intellectual Property that is or was Company-Owned IP Rights to enter the public domain or, except as set forth in Schedule 3.13(b) of the Company Disclosure Letter, with respect to any Company Registered Intellectual Property, lapse (other than through the expiration of Company Registered Intellectual Property at the end of its maximum statutory term).

          (c) Except as set forth in Schedule 3.13(c) of the Company Disclosure Letter, Company and its Subsidiaries own and have good and exclusive title to each item of Company-Owned IP

Rights and each item of Company Registered Intellectual Property, free and clear of any Encumbrances (other than non-exclusive object code licenses of software by Company or any of its Subsidiaries in the ordinary course of its business consistent with past practice on its standard form of customer agreement (a copy of which has been provided to Acquirer’s counsel) that has not been materially modified (“ Standard Form Agreements ”)). Except as set forth in Schedule 3.13(c) of the Company Disclosure Letter, the right, license and interest of Company or any of its Subsidiaries of Company in and to all third-party Intellectual Property rights licensed by Company or any of its Subsidiaries from a third party are free and clear of all Encumbrances (excluding restrictions contained in the applicable license agreements, including in any open source licenses, with such third parties and Standard Form Agreements).

          (d) Neither the execution and delivery or effectiveness of this Agreement nor the performance of Company’s obligations under this Agreement will cause the forfeiture or termination of, or give rise to a right of forfeiture or termination of, any Company-Owned IP Right or impair the right of Company or any of its Subsidiaries or, after the Closing, Acquirer to use, possess, sell or license any Company-Owned IP Right or portion thereof. Except as set forth in Schedule 3.13(d) of the Company Disclosure Letter, after the Closing, all Company-Owned IP Rights will be fully transferable, alienable or licensable by Acquirer without restriction and without payment of any kind to any third party.

          (e) Schedule 3.13(e) of the Company Disclosure Letter lists all Company Products by name and version number.

          (f) Schedule 3.13(f) of the Company Disclosure Letter lists all Company Registered Intellectual Property, including the jurisdictions in which each such item of Intellectual Property has been issued or registered or in which any application for such issuance and registration has been filed or in which any other filing or recordation has been made. Schedule 3.13(f) of the Company Disclosure Letter sets forth a list of all actions that are required to be taken by Company or any of its Subsidiaries within 120 days of the Agreement Date with respect to any of the Company Registered Intellectual Property in order to avoid prejudice to, or impairment or abandonment of, such Company Registered Intellectual Property. Each item of Company Registered Intellectual Property is valid and subsisting or, in the case of applications, applied for.

          (g) Neither Company nor any of its Subsidiaries is or will be, as a result of the execution and delivery or effectiveness of this Agreement or the performance of Company’s obligations under this Agreement, in breach of any Contract governing any Company IP Rights (the “ Company IP Rights Agreements ”) and the consummation of the transactions contemplated by this Agreement will not result in the modification, cancellation, termination, suspension of, or acceleration of any payments with respect to the Company IP Rights Agreements (other than with respect to any Immaterial Software Licenses), or give any non-Company party to any Company IP Rights Agreement (other than any Immaterial Software Licenses) the right to do any of the foregoing. Following the Closing, the Surviving Company (as wholly-owned by Acquirer) will be permitted to exercise all of the rights of Company and its Subsidiaries under the Company IP Rights Agreements (other than with respect to any Immaterial Software Licenses) to the same extent Company and its Subsidiaries would have been able to had the transactions contemplated by this Agreement not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which Company or any of its Subsidiaries would otherwise be required to pay.

          (h) There are no royalties, honoraria, fees or other payments payable by Company or any of its Subsidiaries to any Person (other than salaries payable to employees, consultants and independent contractors not contingent on or related to use of their work product or registration fees payable with respect to any Company Registered Intellectual Property) as a result of the ownership, use,

possession, license-in, license-out, sale, marketing, advertising or disposition of any Company-Owned IP Rights by Company or any of its Subsidiaries.

          (i) To Company’s Knowledge, there is no unauthorized use, unauthorized disclosure, infringement or misappropriation of any Company-Owned IP Rights by any third party, including any employee or former employee of Company or any of its Subsidiaries. Except as set forth in Schedule 3.13(i) of the Company Disclosure Letter, neither Company nor any of its Subsidiaries has brought any action, suit or proceeding for infringement or misappropriation of any Intellectual Property right or breach of any Company IP Rights Agreement.

          (j) Neither Company nor any of its Subsidiaries has been sued in any suit, action or proceeding (or received any written notice or, to Company’s Knowledge, threat) which involves a claim of infringement or misappropriation of any Intellectual Property right of any third party or which contests the validity, ownership or right of Company or any of its Subsidiaries to exercise any Intellectual Property right. Neither Company nor any of its Subsidiaries has received any written communication that involves an offer to license or grant any other rights or immunities under any third-party Intellectual Property right.

          (k) The operation of the Company Business, as currently conducted, by Company or any of i