AGREEMENT AND PLAN OF MERGER

EXHIBIT 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

by and among

KPLT HOLDINGS, INC.,

KPLT MERGERCO, INC.

and

CENTERPLATE, INC.

Dated as of September 18, 2008

TABLE OF CONTENTS

AGREEMENT AND PLAN OF MERGER

          This AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of September 18, 2008, is made by and among KPLT HOLDINGS, INC., a Delaware corporation (“ Parent ”), KPLT MERGERCO, INC., a Delaware corporation, and a wholly owned Subsidiary of Parent (“ Merger Sub ”), and CENTERPLATE, INC., a Delaware corporation (the “ Company ”).

          WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the Company have approved and declared advisable this Agreement and the merger of Merger Sub with and into the Company (the “ Merger ”), upon the terms and subject to the conditions set forth in this Agreement;

          WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

          NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

The Merger

          SECTION 1.01 The Merger . Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the Delaware General Corporation Law (the “ DGCL ”), Merger Sub shall be merged with and into the Company at the Effective Time (as defined hereafter). Following the Effective Time, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation in the Merger (the “ Surviving Corporation ”).

          SECTION 1.02 Closing . The closing of the Merger (the “ Closing ”) will take place at 10:00 a.m. on a date to be specified by the parties (the “ Closing Date ”), which shall be no later than the second Business Day after satisfaction or waiver of the conditions set forth in Article VII, at the offices of Ropes & Gray LLP, Boston, MA, unless another date or place is agreed to in writing by the parties hereto.

          SECTION 1.03 Effective Time . Subject to the provisions of this Agreement, at the Closing, the parties shall file a certificate of merger (the “ Certificate of Merger ”) executed in accordance with the relevant provisions of the DGCL and shall make all other filings or recordings required under the DGCL to effect the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware, or at such other time as Parent and the Company shall agree and shall specify in the Certificate of Merger (the time the Merger becomes effective being the “ Effective Time ”).

          SECTION 1.04 Effects of the Merger . The Merger shall have the effects set forth in this Agreement and the applicable provisions of the DGCL.

          SECTION 1.05 Certificate of Incorporation and Bylaws .

          (a) The Certificate of Incorporation of the Company shall be the Certificate of Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law.

          (b) The Bylaws of the Company, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law.

          SECTION 1.06 Directors . The directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation, each of such directors to hold office, subject to the applicable provisions of the Certificate of Incorporation and Bylaws of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be.

          SECTION 1.07 Officers . The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation, such officers to hold office, subject to the applicable provisions of the Certificate of Incorporation and Bylaws of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be.

ARTICLE II

Effect of the Merger on the Securities of the Constituent Corporations

          SECTION 2.01 Effect on Capital Stock . As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of Company Common Stock or any shares of Capital Stock of Merger Sub:

     (a) Common Stock of Merger Sub . Each issued and outstanding share of common stock of Merger Sub shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of Capital Stock of the Surviving Corporation.

     (b) Cancellation of Treasury Stock . Each share of common stock, par value $0.01 per share, of the Company (each a “ Company Common Share ” and collectively, the “ Company Common Stock ”) and each share of Company Preferred Stock (as defined in Section 3.03) held by the Company as treasury stock or owned by Parent or any of its Subsidiaries (including as part of an IDS unit) immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist and no payment shall be made with respect thereto.

     (c) Company Capital Stock; Determination of Merger Consideration . Each Company Common Share, including the Company Common Shares represented by the IDSs (as defined hereafter), outstanding as of the Effective Time (other than the Dissent Shares, as defined hereafter, and shares cancelled pursuant to Section 2.01(b)), by virtue of the Merger, shall be converted into a right to receive $0.01 in cash, without interest (the “ Merger Consideration ”).

     (d) Dissenters’ Rights . Notwithstanding anything in this Agreement to the contrary, Company Common Shares that are outstanding immediately prior to the Effective Time and that are held by any person who is entitled to dissent from the Merger pursuant to Section 262 of the DGCL (the “ Dissenters’ Rights Statute ”), who did not vote in favor of the Merger or consent thereto in writing and who complies in all other respects with the Dissenters’ Rights Statute shall not be converted into a right to receive the Merger Consideration as provided in Section 2.01(c) (“ Dissent Shares ”), but rather the holders of Dissent Shares shall be entitled to the right to receive payment of the fair value of such Dissent Shares in accordance with the Dissenters’ Rights Statute; provided , however , that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to receive payment of the fair value under the Dissenters’ Rights Statute, then the right of such holder to be paid the fair value of such holder’s Dissent Shares shall cease and such Dissent Shares shall be deemed to have been converted as of the Effective Time into the right to receive the Merger Consideration, without interest, as provided in Section 2.01(c). The Company shall give prompt notice to Parent of any objections, notices of intent to dissent or demands received by the Company pursuant to the Dissenters’ Rights Statute and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands. Except with the prior written consent of Parent, the Company shall not make any payment with respect to, or offer to settle or settle, any such demands. Each holder of Dissent Shares who becomes entitled to payment for such shares pursuant to the Dissenters’ Rights Statute shall receive payment therefor from the Surviving Corporation in accordance with the Dissenters’ Rights Statute.

          SECTION 2.02 Payment for Company Common Shares .

          (a) Prior to the Effective Time, the Company shall appoint an agent, subject to Parent’s approval of the terms and conditions of such appointment (such approval not to be unreasonably withheld), which shall be the Company’s agent (the “ Exchange Agent ”) for the purpose of paying the Merger Consideration in exchange for all of the Company Common Shares outstanding immediately prior to the Effective Time (other than shares cancelled pursuant to Section 2.01(b)). At the Effective Time, Parent shall deposit, or cause the Surviving Corporation to deposit, with the Exchange Agent an amount in immediately available funds equal to the aggregate Merger Consideration required to be paid in accordance with Section 2.01. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of record of Company Common Shares at the Effective Time who has not already surrendered their Company Common Shares and delivered a letter of transmittal prior to the Effective Time (i) a letter of transmittal specifying that delivery shall be effected, and risk of loss and title to each certificate previously representing a Company Common Share (directly or indirectly as part of an IDS) (a “ Certificate ”) shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.04) or in the case of Company Common Shares rep-

resented by book-entry (“ Book-Entry Shares ”), upon the adherence to the procedures set forth in the letter of transmittal to the Exchange Agent, such letter of transmittal to be in the form and have such other provisions as Parent and the Company may agree, and (ii) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 2.04) or, in the case of Book-Entry Shares, the surrender of such Company Common Shares in exchange for the Merger Consideration.

          (b) Upon the surrender of a Certificate or of Book-Entry Shares (or affidavit of loss in lieu thereof as provided in Section 2.04) to the Exchange Agent in accordance with the terms of such letter of transmittal or the letter of transmittal distributed in connection with the Debt Tender Offer, duly executed, the holder of such Certificate or Book-Entry Shares shall be entitled to receive in exchange therefor a cash amount in immediately available funds (before giving effect to any required Tax withholdings as provided in Section 2.02(g)) equal to (x) the number of Company Common Shares represented by such Certificate or book-entry (or affidavit of loss in lieu thereof as provided in Section 2.04) multiplied by (y) the Merger Consideration, and the Certificate or Book-Entry Shares so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates or Book-Entry Shares. Until so surrendered or transferred, as the case may be, each such Certificate or Book-Entry Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration.

          (c) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the transferred Certificate or Book-Entry Share is registered, it shall be a condition to such payment that the Person requesting such payment shall pay to the Exchange Agent any transfer or other fees or Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Book-Entry Share or establish to the satisfaction of the Exchange Agent that such fee or Tax has been paid or is not payable.

          (d) After the Effective Time, there shall be no further registration of transfers of Company Common Shares. If, after the Effective Time, any Certificate or Book-Entry Shares is presented to the Surviving Corporation, it shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II.

          (e) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to Section 2.02(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Company Common Shares six (6) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Company Common Shares for the Merger Consideration in accordance with this Section 2.02 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Merger Consideration in respect of such Company Common Shares, in any case without any interest thereon. Notwithstanding the foregoing, Parent, the Surviving Corporation and the Exchange Agent shall not be liable to any holder of Company Common Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by holders of Company Common Shares two (2) years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the

extent permitted by applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.

          (f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to Section 2.02(a) to pay for Company Common Shares, for which appraisal rights have been perfected and have not been withdrawn or lost 30 days after the Effective Time, shall be returned to Parent, upon demand.

          (g) Parent, the Surviving Corporation and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any holder of shares of Company Common Stock pursuant to this Agreement such amounts as may be required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “ Code ”) and the rules and regulations promulgated thereunder, or under any provision of state or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Parent, the Surviving Corporation or Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Common Stock in respect of which such deduction and withholding was made.

          SECTION 2.03 Adjustments . If, during the period between the date of this Agreement and the Effective Time, any change in the outstanding Company Common Shares shall occur, including by reason of any reclassification, recapitalization, stock split or combination or exchange of Company Common Shares, or stock dividend thereon with a record date during such period or issuer tender or exchange offer or similar transaction (excluding any such change as a result of any exercise of options outstanding as of the date hereof to purchase Company Common Shares granted under the Company’s stock option or compensation plans or arrangements), the Merger Consideration and any other amounts payable pursuant to this Agreement shall be appropriately adjusted.

          SECTION 2.04 Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall pay, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of Company Common Shares, as contemplated by this Article II.

          SECTION 2.05 Effect on Units .

          (a) As of the Effective Time, each IDS separated in connection with the tender of Notes pursuant to the Debt Tender Offer shall entitle the holder thereof to receive (i) for the underlying Company Common Share, the Merger Consideration as provided in Section 2.01(c), (ii) for the underlying Note (or portion thereof) accepted for payment in the Debt Tender Offer, the Debt Tender Consideration and (iii) for the underlying Note (or portion thereof) not accepted for payment in the Debt Tender Offer, a new Subordinated Note of the Surviving Corporation representing the amount thereof which will remain outstanding.

          (b) As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any IDS, each issued and outstanding IDS that has not been separated in connection with the tender of Notes pursuant to the Debt Tender Offer shall be converted into an IDS of the Surviving Corporation consisting of the right to receive the Merger Consideration (in accordance with Section 2.01(c)) and one Subordinated Note of the Surviving Corporation. After the Effective Time, in order to receive the Merger Consideration for each Company Common Share underlying an IDS that has not be separated in connection with the tender of Notes pursuant to the Debt Tender, the holder must surrender such IDS for separation and the underlying Common Shares as described in Section 2.02.

ARTICLE III

Representations and Warranties of the Company

          Except (i) as set forth in the disclosure schedule of the Company dated the date hereof (the “ Company Disclosure Schedule ”) (it being understood that any matter disclosed in any section or subsection of the Company Disclosure Schedule is deemed to be disclosed in any other section or subsection of the Company Disclosure Schedule only to the extent that it is reasonably apparent from such disclosure that such disclosure is applicable to such other section or subsection) or (ii) as set forth in the Company SEC Documents (as defined hereafter) filed since January 1, 2008 and prior to the date hereof (excluding any disclosures set forth in any risk factor section, in any section relating to forward-looking statements and any other disclosures included therein to the extent that they are cautionary, predictive or forward-looking in nature), the Company represents and warrants to Parent and Merger Sub that:

          SECTION 3.01 Organization, Standing and Corporate Power .

          (a) Each of the Company and its Subsidiaries (as defined hereafter) is duly organized, validly existing and in good standing, if available, under the Laws (as defined hereafter) of the jurisdiction in which it is incorporated or organized and has all requisite corporate power and authority to own, operate and lease its properties and to carry on its business as now being conducted. The Company has made available to Parent complete and correct copies of its Certificate of Incorporation and Bylaws, each as amended and restated to the date hereof, and the Certificate of Incorporation and Bylaws or other similar documents of each Subsidiary of the Company, each as amended and restated to the date hereof.

          (b) Each of the Company and its Subsidiaries is duly qualified or licensed to do business and is in good standing, if available, in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. For purposes of this Agreement, “ Company Material Adverse Effect ” shall mean any change, state of facts, event, occurrence or effect that, individually or in the aggregate with all such other changes, states of facts, events, occurrences or effects, would have a material adverse effect on (i) the ability of the Company to consummate the Merger or (ii) the business, assets, financial condition, operations or results of operations of the Company and its Subsidiaries, taken as a whole, provided , that none of the following shall constitute a Company

Material Adverse Effect or, with the exception of (C) or (D), be taken into account when determining whether there has been or is reasonably expected to be a Company Material Adverse Effect: any effect on the Company resulting from or arising out of (A) to the extent that they do not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole, (i) any change in conditions in the United States, foreign or global economy or capital or financial markets generally, including any change in interest or exchange rates, or (ii) any change in conditions (including any change in general legal, regulatory, political, economic or business conditions) in the industry in which the Company and its Subsidiaries conduct business, (B) the announcement of the execution of this Agreement or pendency (but not the Closing) of the transactions contemplated hereby, (C) any change in the market price or trading volume of the Company Common Stock, the IDSs or the Subordinated Notes ( provided that the underlying cause of such change may constitute a Company Material Adverse Effect), (D) any failure to meet any revenue or earnings targets or projections of the Company ( provided that the underlying cause of such failure may constitute a Company Material Adverse Effect), (E) any change in GAAP or (F) to the extent they do not have a materially disproportionate effect on the Company and its Subsidiaries taken as a whole, any natural disaster or calamity, or act of terrorism, sabotage, military action or war or any escalation or worsening thereof (in each case, threatened, pending or declared).

          SECTION 3.02 Subsidiaries . Section 3.02 of the Company Disclosure Schedule lists all the Subsidiaries of the Company and, for each such Subsidiary, the jurisdiction of incorporation or formation, as applicable. All the outstanding shares of Capital Stock of, or other equity interests in, each such Subsidiary (i) have been duly authorized, validly issued and are fully paid and nonassessable, (ii) are owned directly or indirectly by the Company, (iii) are free and clear of all pledges, claims, liens, charges, encumbrances or security interests of any kind or nature whatsoever (collectively, “ Liens ”) and (iv) are free of any restriction on the right to vote, sell or otherwise dispose of such Capital Stock or other equity interests. Neither the Company nor any of its Subsidiaries directly or indirectly owns Capital Stock of, or any other equity interest in, any entity other than the Subsidiaries listed in Section 3.02 of the Company Disclosure Schedule. There are no stock appreciation rights, stock options, phantom stock, profit participation or similar rights outstanding with respect to the Capital Stock of any direct or indirect Subsidiary of the Company.

          SECTION 3.03 Capital Structure .

          (a) The authorized Capital Stock of the Company consists of 100,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per share (the “ Company Preferred Stock ”). As of the date of this Agreement (i) 20,981,813 shares of Company Common Stock were issued and outstanding, all of which shares of Company Common Stock are represented by the IDSs, (ii) 19,013,332 shares of Company Preferred Stock are held by the Company in its treasury, and (iii) no shares of Company Preferred Stock are issued and outstanding. All outstanding shares of Capital Stock of the Company are duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any preemptive rights.

          (b) (i) There are no issued, reserved for issuance or outstanding (A) securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for

shares of Capital Stock or voting securities of the Company or any of its Subsidiaries or (B) warrants, calls, options, subscriptions or other rights, agreements or commitments to acquire from the Company or any of its Subsidiaries, or any obligation of the Company or any of its Subsidiaries to issue, any Capital Stock, voting securities or securities convertible into or exchangeable or exercisable for Capital Stock or voting securities of the Company or any of its Subsidiaries and (ii) there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities. Neither the Company nor any of its Subsidiaries is a party to any voting agreement or proxy with respect to the voting of any such securities.

          (c) As of the date hereof, the only outstanding capital lease obligations requiring annual payments in excess of $100,000 individually or $1,000,000 in the aggregate, or indebtedness for borrowed money and indebtedness secured by mortgages or Liens, or guarantees of the foregoing of the Company or its Subsidiaries requiring annual payments in excess of $50,000 individually, are set forth on Section 3.03(c) of the Company Disclosure Schedule (including the respective amounts outstanding as of the date set forth therein of each of the foregoing).

          SECTION 3.04 Authority; Noncontravention .

          (a) The Company has all requisite corporate power and authority to execute and deliver this Agreement, perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action, other than Shareholder Approval (as defined hereafter), on the part of the Company, and no other corporate proceedings, other than Shareholder Approval, on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other Laws affecting creditors’ rights generally, and to general equity principles, in each case from time to time in effect). The Board of Directors of the Company, at a meeting duly called and held, duly adopted resolutions (i) approving and declaring advisable this Agreement, the Merger and the other transactions contemplated by this Agreement, (ii) resolving that the adoption of this Agreement be submitted to the shareholders of the Company for a vote and (iii) recommending that the shareholders of the Company adopt this Agreement (the “ Company Board Recommendation ”). The affirmative vote of the holders of a majority of the outstanding Company Common Shares (the “ Shareholder Approval ”) is the only vote of the holders of any of the Company’s Capital Stock necessary in connection with the consummation of the Merger.

          (b) The execution and delivery of this Agreement do not, and the consummation of the Merger and the other transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, require the consent, waiver, approval or authorization from any party to, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of termination, cancella-

tion or acceleration of any obligation, or result in the creation of any Lien in or upon any of the properties or other assets of the Company or any of its Subsidiaries under, (i) the Certificate of Incorporation or the Bylaws of the Company or the comparable organizational documents of any of its Subsidiaries, (ii) any Contract or Permit of the Company or any of its Subsidiaries or (iii) subject to the Shareholder Approval and the governmental filings and other matters referred to in Section 3.06, any Law applicable to the Company or any of its Subsidiaries or their respective properties or other assets, other than, in the case of clause (ii), any such conflicts, consents, waivers, approvals, authorizations, violations, breaches, defaults, rights or Liens that individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect.

          SECTION 3.05 Brokers and Other Advisors . No broker, investment banker, financial advisor or other person, other than UBS Securities LLC and Evercore Group L.L.C. (the fees and expenses of which will be paid by the Company), is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or com mission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company.

          SECTION 3.06 Governmental Approvals and Consents .

          (a) No consent, waiver, approval, order, license or permit of, or authorization of, action by or in respect of, or registration, declaration or filing with or notification to, any Federal, state, county, local or foreign government, any court, administrative, regulatory or other governmental agency, commission or authority, non-governmental self-regulatory agency, commission or authority, or any arbitrator, whether Federal, state, county, local or foreign (each, a “ Governmental Authority ”), is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger or the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (ii) compliance with any requirements of the applicable securities Laws or the rules or regulations of any stock exchanges on which any securities of the Company or any of its Affiliates are listed, (iii) any consent, waiver, approval, order, license or permit of, or authorization of, action by or in respect of, or registration, declaration or filing with or notification to, any Governmental Authority with respect to any liquor Laws or public health Laws, and (iv) any other consent, waiver, approval, order, license or permit of, or authorization of, action by or in respect of, or registration, declaration or filing with or notification to, any Governmental Authority with respect to which the failure to obtain or make, as applicable, individually or in the aggregate, has not had, or would not reasonably be expected to have, a Company Material Adverse Effect; provided , however , that the term “Governmental Authority” shall not include any Governmental Authority in its capacity as a party to a customer contract with the Company.

          (b) The Company has taken all actions necessary such that no restrictive provision of any “fair price,” “moratorium,” “control share acquisition,” “interested stockholder,” “business combination,” “stockholder protection” or other similar antitakeover statute or regulation enacted under state or Federal Laws (including Section 203 of the DGCL) is, or at the Effective Time, will be, applicable to this Agreement or to the transactions contemplated hereby.

          SECTION 3.07 Company SEC Documents; Financial Reports .

          (a) Since January 2, 2006, the Company has filed all required reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) with the Securities and Exchange Commission (the “ SEC ”) and the securities regulatory authority in each of the provinces of Canada (the “ Canadian Securities Commissions ” or the “ CSC ”) (collectively, the “ Company SEC Documents ”). As of their respective dates, the Company SEC Documents complied in all material respects with the requirements (except as and to the extent modified or superseded in any subsequent Company SEC Document filed prior to the date of this Agreement) of the Securities Act of 1933, as amended (the “ Securities Act ”), or the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Documents. As of their respective dates (except as and to the extent modified or superseded in any subsequent Company SEC Document filed prior to the date of this Agreement), none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, provided that, if the Company amends any of the Company SEC Documents, the fact of the filing of such amendment shall not, in and of itself, be deemed to mean or imply that any representation or warranty in this Agreement was not true when made or became untrue thereafter.

          (b) The financial statements of the Company included in the Company SEC Documents were prepared in accordance with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).

          (c) Neither the Company nor any of its Subsidiaries has any indebtedness, obligations or other liabilities (whether absolute, accrued, fixed, contingent or otherwise) (“ Liabilities ”) which would be required to be reflected or reserved against on a consolidated balance sheet of the Company prepared in accordance with GAAP or the notes thereto, except Liabilities (i) reflected or reserved against on the audited balance sheet of the Company as of January 2, 2008 (the “ Audited Balance Sheet Date ”) (including the notes thereto) included in the Company SEC Documents, (ii) incurred since the Audited Balance Sheet Date and reflected in any unaudited balance sheet of the Company included in the SEC Documents, (iii) incurred in connection with the transactions contemplated by this Agreement or (iv) incurred in the ordinary course of business consistent with past practice since such date which would not reasonably be expected to have a Company Material Adverse Effect.

          SECTION 3.08 Absence of Certain Changes or Events . Except for actions undertaken in connection with this Agreement and the transactions contemplated hereby, since January 2, 2008 (a) the Company and its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course consistent with past practice, (b) neither the Company nor any of its Subsidiaries has engaged in any material transaction or entered into any material agreement outside the ordinary course of business, (c) other than in the ordinary course of

business consistent with past practice, neither the Company nor any of its Subsidiaries has increased the compensation of any officer or granted any general salary or benefits increase to their respective employees, (d) other than in the ordinary course of business consistent with past practice, there has been no declaration, setting aside or payment of any dividend or other distribution with respect to the Company Common Stock, or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any stock or other securities of the Company or any of its Subsidiaries, (e) there has been no material change by the Company in accounting principles, practices or methods and (f) since the Audited Balance Sheet Date there has not occurred any circumstance or event that has had, or would be reasonably expected to have, a Company Material Adverse Effect.

          SECTION 3.09 Litigation . There is no Action pending, and since January 1, 2006 there has been no Action pending, or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective properties or assets that individually or in the aggregate has had, or would reasonably be expected to have, a Company Material Adverse Effect, nor is there, or since January 1, 2006 has there been, any judgment, decree, injunction, rule or order of any Governmental Authority or arbitrator outstanding against, or, to the Knowledge of the Company, investigation by any Governmental Authority involving, the Company or any of its Subsidiaries except for those that individually or in the aggregate have not had, or would not reasonably be expected to have, a Company Material Adverse Effect.

          SECTION 3.10 Contracts .

          (a) Section 3.10(a) of the Company Disclosure Schedule lists any loan or credit agreement, bond, debenture, note, mortgage, indenture, lease or other contract, agreement, obligation, commitment, instrument, permit or license (each, a “ Contract ”) to which the Company or any of its Subsidiaries is a party or any of their respective properties or other assets is subject as of the date hereof and which falls within any of the following categories:

     (i) any Contract with a customer of the Company or any of its Subsidiaries that has produced revenue for the Company or any of its Subsidiaries in excess of $5,000,000 during the twelve month period ended January 2, 2008 (each such customer, a “ Significant Customer ”);

     (ii) any material Contract pursuant to which Intellectual Property is licensed to or from the Company or any of its Subsidiaries, other than Contracts licensing the right to use off-the-shelf or other readily commercially available third party software, which is not licensed pursuant to a written agreement, but is executed by the licensee, such as by click-wrap or shrink-wrap license;

     (iii) any Contract to which the Company or any of its Subsidiaries is party concerning a partnership or joint venture with one or more Persons;

     (iv) any Contract containing terms purporting to materially limit the ability of the Company or any of its Subsidiaries to compete in any line of business in any geographic area;

     (v) any Contract that contains any outstanding commitments for capital expenditures in excess of $1,000,000;

     (vi) any Contract relating to indebtedness for borrowed money that has been incurred in amounts in excess of $500,000;

     (vii) any Contract with or for the benefit of any Affiliate of the Company or any of its Subsidiaries that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;

     (viii) any Contract with a supplier of the Company that has provided for payments by the Company or any of its Subsidiaries in excess of $2,750,000 during the twelve month period ended January 2, 2008 (each such supplier a “ Significant Supplier ”);

     (ix) any Contract with any individual (including a director, officer or employee of the Company or any of its Subsidiaries) who provides services to the Company or any of its Subsidiaries, that contains obligations of the Company or any of its Subsidiaries to pay annual compensation in excess of $100,000, or that contains obligations of the Company or any of its Subsidiaries to make severance payments, or any payments that will become due and payable as a consequence of the Merger;

     (x) all Collective Bargaining Agreements; and

     (xi) any Contract listed on Section 3.10(a)(xi) of the Company Disclosure Schedule.

All of the Contracts required to be disclosed by this Section 3.10(a) are referred to herein as “ Company Contracts .”

          (b) True and complete copies of each Company Contract, including all amendments and supplements thereto, have been made available to Parent. No breach or default, alleged breach or default, or event which would (with the passage of time, notice or both) constitute a breach or default thereunder by the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party or obligor with respect thereto, has occurred and is continuing except for those breaches and defaults that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

          (c) Section 3.10(c) of the Company Disclosure Schedule lists any contract that is listed on Sections 3.10(a)(i) through 3.10(a)(iii) of the Company Disclosure Schedule which contains (A) an express “change of control” provision that would require the consent of the counterparty in connection with the Merger or (B) a provision that allows the counterparty to terminate for convenience or at will.

          SECTION 3.11 Compliance with Laws . The business of the Company and each of its Subsidiaries is being conducted, and since January 1, 2006 has been conducted, in compliance in all material respects with all statutes, laws, ordinances, rules, regulations, judgments, orders and decrees of any Governmental Authority (collectively, “ Laws ”) applicable to the Company, its Subsidiaries, its properties or other assets or its business or operations, except

for instances of noncompliance that individually or in the aggregate have not had, and would not reasonably be expected to have, a Company Material Adverse Effect. Each of the Company and its Subsidiaries has obtained all Federal, state, local and foreign governmental approvals, authorizations, certificates, filings, franchises, licenses, notices, permits and rights (collectively, “ Permits ”) necessary for it to own, lease or operate its properties and assets and to carry on its business as presently conducted, except for any Permits with respect to which the failure to obtain would not reasonably be expected to have a Company Material Adverse Effect. All such Permits are valid and in full force and effect and there has not occurred any default under any such Permit except for any invalidity or defaults that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

          SECTION 3.12 ERISA .

          (a) List of Plans . All employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)), equity plans, or any deferred compensation, retirement, welfare benefit, bonus, incentive or fringe-benefit plan, program or arrangement, whether covering an individual or group, that are sponsored, maintained or contributed to by the Company or its Subsidiaries or under which the Company or its Subsidiaries has or may have any Liabilities, other than multi-employer plans (“ Employee Benefit Plans ”) are listed on Section 3.12(a) of the Company Disclosure Schedule. For each Employee Benefit Plan, the Company has provided or made available to Parent accurate and complete copies of each of the following: (a) if the Employee Benefit Plan has been reduced to writing, the plan document together with all amendments thereto, (b) if the Employee Benefit Plan has not been reduced to writing, a written summary of all material plan terms, (c) if applicable, copies of any trust agreements, custodial agreements, insurance policies, administrative agreements and similar agreements, and investment management or investment advisory agreements, (d) copies of any summary plan descriptions, employee handbooks or similar Employee Benefit Plan descriptions, (e) in the case of any Employee Benefit Plan that is intended to be qualified under Code Section 401(a), a copy of the most recent determination letter from the Internal Revenue Service and any related correspondence, and a copy of any pending request for such determination, (f) in the case of any funding arrangement intended to qualify as a VEBA under Code Section 501(c)(9), a copy of the IRS letter determining that it so qualifies and (g) in the case of any plan for which Forms 5500 are required to be filed, a copy of the two most recently filed Forms 5500, with schedules attached.

          (b) Material Compliance . To the Company’s Knowledge, each Employee Benefit Plan that is intended to be qualified under Code Section 401(a) is so qualified. All Employee Benefit Plans are materially in compliance with their terms and with the presently applicable provisions of ERISA and the Code. Nothing has occurred with respect to any Employee Benefit Plan that has subjected or would reasonably be expected to subject the Company to a penalty under Section 502 of ERISA or to an excise tax under the Code, or that has subjected or would reasonably be expected to subject any participant in, or beneficiary of, a Company Plan, to a tax under Code Section 4973. All required contributions to, and premium payments on account of, each Employee Benefit Plan have been made on a timely basis and have been properly accrued in accordance with GAAP.

          (c) Pension Plans . Neither the Company nor any of its ERISA Affiliates maintains or contributes to, or in the past six (6) years has maintained or contributed to, any plan subject to Title IV of ERISA or Code Section 412 other than a Multiemployer Plan.

          (d) Multiemployer Plans . All Multiemployer Plans are listed on Section 3.12(d) of the Company Disclosure Schedule. Neither the Company nor any of its ERISA Affiliates has incurred, or reasonably expects to incur, any liability under Sections 4201 et seq. or 4243 of ERISA with respect to any Multiemployer Plan. The Company and its ERISA Affiliates have complied with the minimum funding requirements of the Code and ERISA with respect to any Multiemployer Plan.

          (e) Investigations; Prohibited Transactions . Except where failure to comply would not reasonably be expected to have a Company Material Adverse Effect, with respect to all Employee Benefit Plans, (i) there are no pending nor, to the Company’s Knowledge, threatened investigations or claims (other than routine claims for benefits) and (ii) there have been no prohibited transactions under the Code or ERISA.

          (f) Post-Termination Benefits . Except as required under Section 601 et seq. of ERISA, no Employee Benefit Plan provides or has any obligation to provide benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment.

          (g) 409A . Except where failure to comply would not reasonably be expected to have a Company Material Adverse Effect, each Employee Benefit Plan that is subject to the requirements of Code Section 409A has been adopted and administered in good faith compliance with such Section and the regulations issued thereunder.

          (h) 280G . The consummation of the transactions contemplated by this Agreement will not (either alone or together with any other event) (i) entitle any current or former officer, employee, director or independent contractor to any bonus, severance, retirement, or other benefit or accelerate the time of payment or vesting or trigger any payment or funding of compensation under, increase the amount payable or trigger any other obligation pursuant to Employee Benefit Plan or (ii) cause any compensation or benefit payable to any employee of the Company or its Subsidiaries not to be deductible under Code Section 280G or to be subject to any excise tax under Code Section 4999.

          SECTION 3.13 Labor .

          (a) Section 3.13 of the Company Disclosure Schedule sets forth a list of all collective bargaining agreements with any labor union or other representative of a group of employees to which the Company or any of its Subsidiaries is a party (“ Collective Bargaining Agreements ”) as of the date hereof. True and complete copies of each such Collective Bargaining Agreement, including all amendments and supplements thereto, have been made available to Parent.

          (b) There is not any work stoppage, slowdown, lockout, picketing or employee strike involving the Company or any of its Subsidiaries and, to the Knowledge of the Company, none of the foregoing that would reasonably be expected to have a Company Material

Adverse Effect has been threatened. There are no unfair labor practice complaints pending against the Company or any of its Subsidiaries before the National Labor Relations Board or any other labor relations tribunal or authority. No petition has been filed or proceedings instituted by an employee or group of employees of the Company or any of its Subsidiaries with any labor relations board seeking recognition of a bargaining representative that is not already the bargaining representative of such employee or group of employees. There is no organizational effort currently being made or threatened by, or on behalf of, any labor union to organize any employees of the Company or any of its Subsidiaries and there is no pending demand for recognition of any employees of the Company or any of its Subsidiaries by or on behalf of, any labor union.

          (c) As of the date hereof, to the Knowledge of the Company, no current executive, key employee or group of employees has given notice of termination of employment or otherwise disclosed plans to terminate employment with the Company or any of its Subsidiaries.

          (d) The Company and its Subsidiaries are in compliance with all applicable Laws respecting employment and employment practices, terms and conditions of employment, including but not limited to wages and hours and the classification of employees and independent contractors, and have not been and are not engaged in any unfair labor practice as defined by any applicable Laws, the violation of which could, individually or in the aggregate, have a Company Material Adverse Effect. There is no investigation, audit or review pending (or, to the knowledge of the Company, threatened) by any Governmental Authority with respect to the Company or any of its Subsidiaries concerning employment and employment practices, terms and conditions of employment, or unfair labor practices as defined by any applicable Laws, an adverse finding in which could, individually or in the aggregate, have a Company Material Adverse Effect.

          (e) The Company and its Subsidiaries have provided to Parent copies of all written employment agreements, and are in material compliance with all employment agreements, consulting and other service contracts, written employee or human resources personnel policies (to the extent they contain enforceable obligations), handbooks or manuals, and severance or separation agreements, except as would not reasonably be expected to have a Company Material Adverse Effect.

          (f) Neither the Company nor any of its Subsidiaries has, during the ninety (90) day period prior to the date hereof, taken any action that would constitute a “Mass Layoff” or “Plant Closing” within the meaning of the Worker Adjustment Retraining and Notification (“ WARN ”) Act or would otherwise trigger notice requirements or liability under any other Laws respecting plant closing notice. No arbitration, court decision or governmental order to which the Company or any of its Subsidiaries is a party or is subject in any way limits or restricts the Company or any of its Subsidiaries from relocating or closing any of the operations of the Company or any of its Subsidiaries.

          SECTION 3.14 Intellectual Property .

          (a) Section 3.14 of the Company Disclosure Schedule sets forth a true and complete list of registered Intellectual Property and material unregistered Intellectual Property owned by or exclusively licensed to the Company or any of its Subsidiaries as of the date hereof,

identifying for each whether it is owned by or exclusively licensed to the Company or the relevant Subsidiary. Section 3.14 of the Company Disclosure Schedule lists the record owner of each such item of Intellectual Property and the jurisdiction in which each such item of Intellectual Property has been issued or registered or in which each such application for the issuance or registration of such item of Intellectual Property has been filed.

          (b) No registered Trademark or service mark (each, a “ Mark ”) identified on Section 3.14 of the Company Disclosure Schedule has been or is now involved in any opposition or cancellation proceeding and, to the Knowledge of the Company, no such proceeding is or has been threatened in writing with respect to any of such Marks.

          (c) (i) All registered Marks identified on Section 3.14 of the Company Disclosure Schedules (“ Company Registered IP ”) are valid and subsisting and, to the Knowledge of the Company, enforceable and (ii) neither the Company nor any of its Subsidiaries has received any notice from any third party challenging the validity or enforceability of any Company Registered IP or alleging any misuse of such Company Registered IP. Neither the Company nor any of its Subsidiaries has taken any action or failed to take any action that would reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation or unenforceability of any of the Company Registered IP which is necessary to operate the business. All necessary registration, maintenance, renewal and other relevant filing fees in connection with any of the Company Registered IP which is necessary to operate the business have been paid and all necessary documents, certificates and other relevant filing in connection with such Company Registered IP have been timely filed with the relevant patent, trademark, copyright or other relevant authorities in the United States, or other jurisdictions, for the purpose of maintaining such Company Registered IP.

          (d) The Company and its Subsidiaries own, license or otherwise have the right to use, free and clear of any and all encumbrances, liens, license (royalty bearing or royalty-free) or obligations to others requiring payment to any person or any obligation to grant any right to any person, all Intellectual Property that is necessary for the conduct of the business of the Company and its Subsidiaries, taken as a whole, except as would not be reasonably expected to have a Company Material Adverse Effect.

          (e) To the Knowledge of the Company, the business of the Company and its Subsidiaries as currently conducted (including the use of the Intellectual Property) does not infringe or otherwise violate any Third Party Intellectual Property and there is no such claim pending or, to the Knowledge of the Company, threatened against any of the Company or its Subsidiaries. To the Knowledge of the Company, there is no reasonable basis for any claim that the Company does not so own any of the Intellectual Property which is necessary to operate the business. No material Company Registered IP is subject to any outstanding order, judgment, decree, stipulation or agreement restricting the use or licensing thereof by the Company or its Subsidiaries.

          (f) To the Knowledge of the Company, and except as has not had or would not reasonably be expected to have a Company Material Adverse Effect, (i) no Third Party is infringing or otherwise violating any material Intellectual Property owned by the Company or its

Subsidiaries, and (ii) no such claims are pending or threatened against any Third Party by any of the Company or its Subsidiaries.

          (g) The Company and each of its Subsidiaries has taken all commercially reasonable steps in accordance with standard industry practices to protect its rights in its Intellectual Property and to protect the secrecy, confidentiality and value of all information that constitutes or constituted a trade secret of the Company or any of its Subsidiaries. During the two (2) years prior to the date of this Agreement, to the Knowledge of the Company, there have been no material unauthorized disclosures of the Company’s trade secrets or non-public proprietary information to a third party.

          (h) The Company and each of its Subsidiaries maintains policies and procedures regarding data security and privacy that are in material compliance with all applicable laws. The Company has installed or operates a Payment Card Industry compliant version of a point of sale system at approximately 50 of its venues and operates credit card processing devices in a manner consistent with Payment Card Industry Standards at its other venues. To the Knowledge of the Company, there have been no security breaches relating to violations or any security policy or any unauthorized access of any data or information of the Company’s software or technology systems in the last two (2) years. The use and dissemination by the Company of any and all personal and confidential data or information concerning individuals is in material compliance with all such privacy policies and laws.

          (i) The Company owns, leases, licenses or otherwise has the rights to use all material software systems, computer hardware, databases, computer equipment and other information technology assets that are necessary for the operations of the Company’s business, and, to the Knowledge of the Company, in the last twelve (12) months, there have been no material failures, breakdowns, breaches, outages or unavailability of any of the foregoing.

          SECTION 3.15 Environmental Matters . Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:

     (a) To the Company’s Knowledge: (i) the Company and its Subsidiaries are and have been in compliance with all Environmental Laws and Permits, and have obtained all Permits required under applicable Environmental Law for the operation of the business of the Company and its Subsidiaries; and (ii) there are no liabilities of the Company or any of its Subsidiaries arising under or relating to any Environmental Law (whether directly as a result of the operations and activities of the Company or its Subsidiaries, or indirectly as a result of the Company’s or any Subsidiary’s relationship with any predecessor in interest), and there is no condition, occurrence, activity or circumstance that would reasonably be expected to result in or be the basis for any such liabilities;

     (b) To the Company’s Knowledge, no notice, notification, demand, request for information, citation, summons or order has been received, no penalty has been assessed, no investigation, action, claim, suit or proceeding is pending, or, to the Knowledge of the Company, is threatened, by any Governmental Authority or other person relating to the Company or any of its Subsidiaries that alleges a violation by the Company

or any of its Subsidiaries of any Environmental Law, or that seeks to impose liability on or recover damages from the Company or any of its Subsidiaries pursuant to any Environmental Law;

     (c) To the Company’s Knowledge, no Releases of Hazardous Materials have occurred at, on or from any real property owned, leased or operated by the Company or any of its Subsidiaries, for which Releases the Company or any of its Subsidiaries would reasonably be expected to have any liability under Environmental Law. Neither the Company nor any of its Subsidiaries is conducting or paying, in whole or in part, for any investigation, response, or other corrective action under any Environmental Law at any location or facility; and

     (d) Neither the Company nor any of its Subsidiaries has retained or assumed, either contractually or by operation of Law, any liabilities or obligations under any Environmental Law.

          For purposes of this Agreement, “ Environmental Law ” means the common law and all federal, state and local laws, statutes, rules, regulations, codes, ordinances, orders, judgments and decrees relating to pollution or to the protection of the Environment and of human health (to the extent relating to exposure to Hazardous Materials), or to the use, handling, distribution, generation, transportation, storage, treatment, Release or exposure to Hazardous Materials; “ Environment ” means surface or ground water, soil, surface and subsurface strata, ambient air, indoor air, and natural resources such as wetlands, flora and fauna; “ Hazardous Materials ” means any chemical, substance, waste, pollutant, contaminant, compound, mixture or constituent in any form, including petroleum, asbestos and asbestos-containing materials, regulated or which can give rise to liability under any Environmental Law; and “ Release ” means any release, spill, emission, leaking, pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge, leaching, dispersal or migration on, into or through the Environment or into or out of any property, facility or equipment.

          SECTION 3.16 Taxes .

          (a) Each of the Company and its Subsidiaries has timely and properly filed or caused to be filed, taking into account any extensions, all U.S. federal income and other Tax Returns and reports required to be filed, and have paid or caused to be paid or adequately reserved for in accordance with GAAP, all material Taxes due and payable by it (whether or not shown on any Tax Return) on or prior to the date hereof. All such Tax Returns were true, correct and complete in all material respects.

          (b) With respect to any period for which Tax Returns have not yet been filed, or for which Taxes are not yet due or owing, the Company and each Subsidiary has, in accordance with GAAP, made due and sufficient accruals for such Taxes in the books and records of the Company or such Subsidiary (as appropriate). Section 3.16(b) of the Company Disclosure Schedule identifies each “tax position” and the measurement thereof as required by FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes. Parent has been provided with all work and other papers of the Company, each Subsidiary and its advisors related to the foregoing.

          (c) To the Knowledge of the Company, no claim has been made in writing by any taxing jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.

          (d) Neither the Company nor any of its Subsidiaries has received written notice of any proceeding or audit against, or with respect to any Taxes of, the Company or any of its Subsidiaries (and, to the Knowledge of the Company, no such audit or proceeding is currently pending against either the Company or any of its Subsidiaries). No material deficiencies for any Taxes have been assessed against the Company or any of its Subsidiaries.

          (e) The federal, state and foreign “net operating losses,” tax credit carryforwards and other tax attributes (collectively, the “ Tax Attributes ”) of the Company and its consolidated subsidiaries through the date of the most recently filed applicable Tax Return are set forth in Section 3.16(e) of the Company Disclosure Schedule. Section 3.16(e) of the Company Disclosure Schedule describes the amount or other limitation (if any) on the use of Tax Attributes pursuant to Section 382 or 383 of the Code (including the amount of net unrealized built-in gain or loss at the date of any ownership change, all within the meaning of Section 382 of the Code) or the separate return limitation year rules under the applicable consolidated return provisions of the regulations of the U.S. Department of the Treasury or comparable provisions of state, local or foreign Law.

          (f) Neither the Company nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock, occurring within the past two years, that was intended to qualify for tax-free treatment under Section 355 of the Code.

          (g) There are no liens for a material amount of Taxes, other than Taxes that are not yet due, on the assets of the Company or any of its Subsidiaries.

          (h) Neither the Company nor any of its Subsidiaries has been included in any consolidated, unitary or combined Tax Return provided for under the Law of the United States, any foreign jurisdiction, or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired, other than the consolidated, unitary or combined group of which the Company and its Subsidiaries are the sole members.

          (i) The Company and its Subsidiaries have timely withheld and paid to the appropriate Governmental Authorities all material Taxes required to have been withheld by them in connection with amounts paid or owing to any employee, creditor or other person. The Company and its Subsidiaries have complied in all material respects with all recordkeeping and reporting requirements in connection with amounts paid or owing to any employee, creditor, independent contractor, or other person.

          (j) There are no outstanding agreements or waivers extending the statutory period of limitation applicable to the assessment or collection of Taxes against the Company or any of its Subsidiaries.

          (k) Neither the Company nor any of its Subsidiaries is a party to any indemnification, allocation or sharing agreement with respect to Taxes (other than agreements among the Company and its Subsidiaries).

          (l) Neither the Company nor any Subsidiary will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of any: (i) adjustment under Section 481 of the Code (or any corresponding or similar provisions of state, local or foreign Tax law) made prior to the Closing Date, (ii) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provisions of state, local or foreign Tax law) executed during the six (6) year period ending on the Closing Date, (iii) any installment sale or other transaction disposition made on or prior to the Closing Date, or (iv) any prepaid amount received on or prior to the Closing Date.

          (m) Neither the Company nor any Subsidiary has participated in any “listed transaction” within the meaning of Treas. Reg. Section 1.6011-4(b).

          SECTION 3.17 Commercial Relationships . Since January 2, 2008 through the date hereof, none of the Company’s Significant Cu