AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

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AXS-ONE INC | UCAC, INC | UNIFY CORPORATION

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Title: AGREEMENT AND PLAN OF MERGER
Governing Law: Delaware Date: 4/20/2009
Industry: Software and Programming Law Firm: Wiggin Dana Sector: Technology

EXHIBIT 2.1

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

UNIFY CORPORATION,

UCAC, INC.

AND

AXS-ONE INC.

April 16, 2009

TABLE OF CONTENTS

			Page
ARTICLE I The Merger; Effective Time; Closing			1

	1.1	The Merger	1

	1.2	Effective Time	2

	1.3	Closing	2

	1.4	Effect of the Merger	2

ARTICLE II Certificate of Incorporation and By-Laws of the Surviving Corporation			2

	2.1	Certificate of Incorporation; Name	2

	2.2	By-Laws	2

ARTICLE III Directors and Officers of the Surviving Corporation			3

	3.1	Directors	3

	3.2	Officers	3

ARTICLE IV Merger Consideration; Conversion or Cancellation of Shares in the Merger			3

	4.1	Share Consideration for the Merger; Conversion or Cancellation of Shares in the Merger	3

	4.2	Payment for Shares in the Merger	5

	4.3	Cash For Fractional Parent Shares	7

	4.4	Transfer of Shares after the Effective Time	7

	4.5	Lost, Stolen or Destroyed Certificates	7

	4.6	Withholding Rights	7

	4.7	Treatment of Company Debt	8

ARTICLE V Representations and Warranties			10

	5.1	Representations and Warranties of Parent and Merger Sub	10

	5.2	Representations and Warranties of the Company	15

ARTICLE VI Additional Covenants and Agreements			30

	6.1	Conduct of Business of the Company	30

	6.2	Conduct by Parent	33

	6.3	No Solicitation	33

	6.4	Meetings of Stockholders	36

	6.5	Registration Statement	37

	6.6	Reasonable Efforts	37

	6.7	Access to Information	37

	6.8	Publicity	38

	6.9	Maintenance of Insurance	38

	6.10	Representations and Warranties	38

	6.11	Filings; Other Action	38

	6.12	Tax-Free Reorganization Treatment	38

	6.13	Company Options and Warrants	38

	6.14	Stockholders Agreements	39

	6.15	Nasdaq Listing	39

	6.16	Exemption from Liability Under Section 16(b)	39

	6.17	Employees	39

	6.18	Indemnification and Insurance	40

	6.19	Takeover Statute	42

	6.20	Accountants’ “Comfort” Letters	42

ARTICLE VII Conditions			43

	7.1	Conditions to Each Party’s Obligations	43

	7.2	Conditions to the Obligations of the Company	44

	7.3	Conditions to the Obligations of Parent	44

ARTICLE VIII Termination			45

	8.1	Termination by Mutual Consent	45

	8.2	Termination by either the Company or Parent	45

	8.3	Termination by the Company	46

	8.4	Termination by Parent	46

	8.5	Effect of Termination; Termination Fee	47

ARTICLE IX Miscellaneous and General			48

	9.1	Payment of Expenses	48

	9.2	Non-Survival of Representations and Warranties	49

	9.3	Modification or Amendment	49

	9.4	Waiver of Conditions	49

	9.5	Counterparts	49

	9.6	Governing Law	49

	9.7	Notices	49

	9.8	Entire Agreement; Assignment	50

	9.9	Parties in Interest	50

	9.10	Certain Definitions	50

	9.11	Obligation of the Company	51

	9.12	Severability	51

	9.13	Specific Performance	51

	9.14	Recovery of Attorney’s Fees	51

	9.15	Working Capital Note	51

	9.16	Captions	52

iii

DEFINED TERMS
Adjusted Debt Amount	Section 4.7(a)
Adjusted Working Capital	Section 4.7(a)
Agreement	Introduction
Applications	Section 4.7(b)
Authorized Representatives	Section 6.7
Certificate of Merger	Section 1.2
Certificates	Section 4.2(b)
Change in Control Price	Section 4.1(d)
Change of Recommendation	Section 6.3(d)
Closing	Section 1.3
Closing Date	Section 1.3
Code	Recitals
Company	Introduction
Company Acquisition Agreement	Section 6.3(c)
Company Acquisition Proposal	Section 6.3(b)
Company Contract	Section 5.2(p)
Company Disclosure Schedule	Section 5.2
Company Financial Statements	Section 5.2(h)(ii)
Company Insiders	Section 6.16(c)
Company Intellectual Property Rights	Section 5.2(o)(i)
Company International Employee Plans	Section 5.2(n)(iii)(11)
Company Key Employees	Section 5.2(p)(ii)
Company Option	Section 4.1(d)
Company Option Plans	Section 5.2(b)
Company SEC Reports	Section 5.2(h)(i)
Company Scheduled Plans	Section 5.2(n)(i)
Company Shares	Section 4.1(a)
Company Stockholders Agreement	Recitals
Company Stockholders Meeting	Section 6.4(a)
Company Superior Proposal	Section 6.3(b)
Company Termination Fee	Section 8.5(b)
Company Warrant	Section 4.1(e)
Confidentiality Agreement	Section 6.7
Damages	Section 6.18(a)
DGCL	Section 1.1
Dissenting Shareholder	Section 4.1(b)
Dissenting Shares	Section 4.1(b)
Earn Out	Section 4.7(b)
Effective Time	Section 1.2
Environmental Costs and Liabilities	Section 5.2(s)
Environmental Laws	Section 5.2(s)
ERISA	Section 9.10(a)
Exchange Act	Section 5.1(g)
Exchange Agent	Section 4.2(a)
Exchange Ratio	Section 4.1(a)

401K Plans	Section 6.17(b)
Fractional Securities Fund	Section 4.3
GAAP	Section 4.7(b)
Governmental Entity	Section 9.10(b)
Hazardous Material	Section 5.2(s)
HSR Act	Section 5.1(g)
Indemnified Parties	Section 6.18(a)
Knowledge	Section 9.10(c)
Management Member	Section 6.21
Management Performance Shares	Section 6.21
Material Adverse Effect	Section 9.10(d)
Merger	Recitals
Merger Sub	Introduction
Net License Review	Section 4.7(b)
NCM	Section 4.3
Old Notes	Section 4.7(a)
Originally Salary Level	Section 6.21
Parent	Introduction
Parent Disclosure Schedule	Section 5.1
Parent Financial Statements	Section 5.1(i)(ii)
Parent Reimbursement Fee	Section 8.5(d)
Parent SEC Reports	Section 5.1(i)(i)
Parent Shares	Section 4.1(a)
Parent Stockholders Agreement	Recitals
Parent Stockholders Meeting	Section 6.4(b)
Parent Termination Fee	Section 8.5(c)
Parent Voting Stockholder	Recitals
Parent Voting Stockholders	Recitals
Parties	Introduction
PBGC	Section 5.2(n)(ii)
Person	Section 9.10(e)
Plan Affiliate	Section 5.2(n)(i)
Proxy Statement	Section 6.5
Regular Severance	6.21
Restraints	Section 7.1(c)
Returns	Section 5.1(m)(i)
S-4 Registration Statement	Section 6.5
SEC	Section 5.1(i)(i)
Section 16 Information	Section 6.16(b)
Securities Act	Section 5.1(g)

Share Consideration	Section 4.2(a)
Significant Tax Agreement	Section 9.10(f)
Solicitation Period End-Date	Section 6.3(a)
Stock Merger Exchange Fund	Section 4.2(a)
Stockholders Agreement	Recitals
Subsidiary	Section 9.10(g)
Substitute Warrant	Section 4.1(d)
Surviving Corporation	Section 1.1
Tail Insurance	Section 6.18(b)
Tax	Section 9.10(h)
Taxes	Section 9.10(h)
Termination Fee	Section 8.5(d)
Transaction Expenses	Section 9.1
Voting Stockholder	Recitals
Voting Stockholders	Recitals
Working Capital Note	Section 9.15

iii

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of April 16, 2009, by and among UNIFY CORPORATION , a Delaware corporation (“Parent”), UCAC, INC , a Delaware corporation and a direct wholly-owned Subsidiary of Parent (“Merger Sub”), and AXS-ONE INC. , a Delaware corporation (the “Company”). Parent, Merger Sub and the Company are referred to collectively herein as the “Parties.” Capitalized terms are defined as set forth in the Table of Defined Terms contained herein.

RECITALS

WHEREAS , the Board of Directors of each of Parent, Merger Sub and the Company has determined that it is in the best interests of such corporation and its respective stockholders that the Company and Parent combine through the merger of Merger Sub with and into the Company (the “Merger”) and, in furtherance thereof, have approved the Merger and declared the Merger advisable;

WHEREAS , pursuant to the Merger, the outstanding shares of common stock of the Company shall be converted into shares of common stock of Parent at the rate set forth herein;

WHEREAS , for federal income tax purposes, it is intended that the Merger shall qualify as a tax-free reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the “Code”), and this Agreement is intended to be a “plan of reorganization” within the meaning of the regulations promulgated thereunder;

WHEREAS , concurrently with the execution hereof, certain holders (each a “Voting Stockholder” and collectively the “Voting Stockholders”) of Company Shares listed on Exhibit A-1 are entering into a stockholder agreement, in each case in the form attached as Exhibit A-2 hereto (each, a “Company Stockholders Agreement”); and

WHEREAS , concurrently with the execution hereof, certain holders (each a “Parent Voting Stockholder” and collectively the “Parent Voting Stockholders”) of Parent Shares listed on Exhibit B-1 are entering into a stockholder agreement, in each case in the form attached as Exhibit B-2 hereto (each, a “Parent Stockholders Agreement”).

NOW, THEREFORE , in consideration of the mutual representations, warranties, covenants and agreements set forth herein, the Parties hereby agree as follows:

ARTICLE I

The Merger; Effective Time; Closing

1.1 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”), at the Effective Time, Merger Sub shall be merged with and into the Company, the separate corporate existence of Merger Sub shall thereupon cease and the Company shall be the successor or surviving corporation. The Company, as the surviving corporation after the consummation of the Merger, is sometimes hereinafter referred to as the “Surviving Corporation.”

1.2 Effective Time . Subject to the provisions of this Agreement, the Parties shall cause the Merger to be consummated by filing the certificate of merger of Merger Sub and the Company (the “Certificate of Merger”) with the Secretary of State of the State of Delaware in such form as required by, and executed in accordance with, the relevant provisions of the DGCL as soon as practicable on or before the Closing Date. The Merger shall become effective upon such filing or at such time thereafter as is provided in the Certificate of Merger (the “Effective Time”).

1.3 Closing . Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Article VIII, the closing of the Merger (the “Closing”) shall take place at 10:00 a.m., local time, at the offices of counsel for Parent, on the second business day after all of the conditions to the obligations of the Parties to consummate the Merger as set forth in Article VII have been satisfied or waived in writing (other than conditions with respect to actions the respective Parties will take at the Closing itself), or such other date, time or place as is agreed to in writing by the Parties (the “Closing Date”).

1.4 Effect of the Merger . At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

ARTICLE II

Certificate of Incorporation and By-Laws of the Surviving Corporation

2.1 Certificate of Incorporation; Name . At the Effective Time, the Certificate of Incorporation of Merger Sub immediately prior to the Effective Time shall be the Certificate of Incorporation of the Surviving Corporation, until thereafter amended, and the name of the Surviving Corporation shall be the Company’s name.

2.2 By-Laws . At the Effective Time, the by-laws of Merger Sub in effect immediately prior to the Effective Time shall be the by-laws of the Surviving Corporation, until thereafter amended.

ARTICLE III

Directors and Officers of the Surviving Corporation

3.1 Directors . The directors of Merger Sub at the Effective Time shall be the initial directors of the Surviving Corporation, until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation’s Certificate of Incorporation and by-laws.

3.2 Officers . The officers of Merger Sub at the Effective Time shall be the initial officers of the Surviving Corporation, until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation’s Certificate of Incorporation and by-laws.

ARTICLE IV

Merger Consideration; Conversion or Cancellation of Shares in the Merger; Exchange and
Treatment of Company Debt

4.1 Share Consideration for the Merger; Conversion or Cancellation of Shares in the Merger . At the Effective Time, the manner of converting or canceling shares of the Company and Parent shall be as follows:

(a) Conversion of Company Stock . Subject to Sections 4.1(b) and 4.3 hereof, each share of common stock, $0.01 par value, of the Company (collectively, “Company Shares”) issued and outstanding immediately prior to the Effective Time (excluding any Company Shares described in Section 4.1(e) and any Dissenting Shares), shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted automatically into the right to receive a number of shares of common stock, $0.001 par value, of Parent (collectively, “Parent Shares”) determined by dividing 1,000,000 by the sum of (i) the number of Company Shares issued and outstanding immediately prior to the Effective Time and (ii) the number of Company Shares issuable upon exercise of Company Warrants outstanding immediately prior to the Effective Time. All Company Shares to be converted into Parent Shares pursuant to this Section 4.1(a) shall, by virtue of the Merger and without any action on the part of the holders thereof, cease to be outstanding, be canceled and cease to exist, and each holder of a certificate representing any such Company Shares shall thereafter cease to have any rights with respect to such Company Shares, except the right to receive for each of the Company Shares, upon the surrender of such certificate in accordance with Section 4.2, the number of Parent Shares specified above and cash in lieu of fractional shares. The ratio of Company Shares per share of Parent Shares is sometimes hereinafter referred to as the “Exchange Ratio.” Each Dissenting Share shall be converted into the right to receive payment from the Surviving Corporation with respect thereto in accordance with the provisions of the DGCL and pursuant to Section 4.1(b) below.

(b) Appraisal Rights . Company Shares that have not been voted for approval of this Agreement or consented thereto in writing and with respect to which written objection to the Merger has been properly made in accordance with Section 262 of the DGCL (“Dissenting Shares”), shall not be converted into the right to receive from Parent the Parent Shares otherwise issued with respect to such Company Shares at or after the Effective Time. At the Effective Time, all Dissenting Shares shall no longer be outstanding and automatically shall be cancelled and shall cease to exist, and, except as provided by applicable law, each holder of Dissenting Shares shall cease to have any rights with respect to the Dissenting Shares, other than such rights as are granted by Section 262 of the DGCL. Notwithstanding the foregoing, if a holder of Dissenting Shares (a “Dissenting Shareholder”) shall fail to validly perfect or shall waive or withdraw his, her or its objection or demand for payment of the fair value of his, her or its Shares, or if such Dissenting Shares (or such other Company Shares with respect to which appraisal rights have not terminated) become ineligible for such payment or if a court of competent jurisdiction shall determine that such Dissenting Shares is not entitled to relief under Section 262 of the DGCL, then, as of the Effective Time or the occurrence of such event of withdrawal or ineligibility, whichever last occurs, such holder’s Dissenting Shares will cease to be Dissenting Shares (or, in the case of such other Company Shares, the appraisal rights shall have terminated) and each such Company Share will be converted into the right to receive, and will be exchangeable for, the Parent Shares into which such Dissenting Shares would have been converted pursuant to Section 4.1(a), without interest. The Company shall promptly give Parent notice of any objection to the Merger received by the Company from a Dissenting Shareholder, and Parent shall have the reasonable opportunity, at its sole expense, to participate in all negotiations and proceedings with respect to such objection. The Company agrees that, except with the prior written consent of Parent, or as required under the DGCL, it will not voluntarily make any payment with respect to, or settle or offer or agree to settle, any such objection. Each Dissenting Shareholder or other shareholder who, pursuant to the provisions of Section 262 of the DGCL, becomes entitled to payment of the fair value of the Dissenting Shares will receive payment therefor after the fair value therefor has been agreed upon or finally determined pursuant to such provisions, and any Parent Shares that would have been issued with respect to such Dissenting Shares will be retained by Parent.

(c) Stock of Merger Sub . Each share of common stock, $0.01 par value, of Merger Sub issued and outstanding immediately prior to the Effective Time, shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted automatically into and exchanged for one (1) validly issued, fully paid and nonassessable share of common stock, $0.01 par value, of the Surviving Corporation. Each stock certificate representing any shares of Merger Sub shall continue to represent ownership of such shares of capital stock of the Surviving Corporation.

(d) Outstanding Options . Each option to purchase Company Shares (each, a “Company Option”) outstanding immediately prior to the Effective Time shall, by virtue of the Merger and in accordance with the applicable Company Option Plans, be cancelled prior to the Effective Time in exchange for the right to receive an amount, if any, in cash equal to (i) the Change in Control Price of the Company Shares covered by such Company Option, less (ii) the exercise price of such Company Option. As used herein, the “Change in Control Price” means the higher of (A) the highest price per Company Share paid in connection with the Merger, or (B) the highest fair market value per Company Share at any time during the sixty-day period immediately preceding the Effective Time. The Company shall cancel the Company Option Plans as of the Effective Date, and the sole remaining right of each holder of a Company Option after the Effective Date shall be to receive the consideration set forth in this Section 4.1(d). After the Effective Time, Parent shall grant options to purchase Parent Shares to continuing employees of the Surviving Corporation in accordance with Parent’s customary incentive compensation policies and procedures.

(e) Outstanding Warrants . Each outstanding warrant to purchase Company Shares (each, a “Company Warrant”) shall be assumed by Parent (in accordance with the further provisions contained in Section 6.13) and each such assumed warrant shall be converted into and represent a warrant to purchase the number of Parent Shares (a “Substitute Warrant”), in substantially the same form as the corresponding Company Warrant, determined by multiplying (i) the number of Company Shares subject to such Company Warrant immediately prior to the Effective Time by (ii) the Exchange Ratio, at an exercise price per share of Parent Shares of $0.01. Parent will reserve a sufficient number of Parent Shares for issuance under this Section 4.1(e).

(f) Cancellation of Parent Owned and Treasury Stock . All of the Company Shares that are owned by Parent, any direct or indirect wholly-owned Subsidiary of Parent or by the Company as treasury stock shall automatically cease to be outstanding, shall be canceled and shall cease to exist and no Parent Shares shall be delivered in exchange therefor.

(g) Adjustments to the Exchange Ratio . In the event of any reclassification, stock split or stock dividend with respect to Company Shares or Parent Shares, any change or conversion of Company Shares or Parent Shares into other securities or any other dividend or distribution with respect to Company Shares or Parent Shares (or if a record date with respect to any of the foregoing should occur) prior to the Effective Time, appropriate and proportionate adjustments, if any, shall be made to the Exchange Ratio, and all references to the Exchange Ratio in this Agreement shall be deemed to be to the Exchange Ratio as so adjusted.

4.2 Payment for Shares in the Merger . The manner of making payment for Shares in the Merger shall be as follows:

(a) Exchange Agent . On or prior to the Closing Date, Parent shall make available to American Stock Transfer & Trust, or other entity mutually agreed upon by the Parties in writing (the “Exchange Agent”), for the benefit of the holders of Company Shares, a sufficient number of certificates representing the Parent Shares required to effect the delivery of the aggregate consideration in Parent Shares and cash for the Fractional Securities Fund required to be issued pursuant to Section 4.1 (collectively, the “Share Consideration” and the certificates representing the Parent Shares comprising such aggregate Share Consideration being referred to hereinafter as the “Stock Merger Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Share Consideration out of the Stock Merger Exchange Fund and the Fractional Securities Fund. The Stock Merger Exchange Fund and the Fractional Securities Fund shall not be used for any purpose other than as set forth in this Agreement.

(b) Exchange Procedures . Promptly after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding Company Shares (the “Certificates”) (i) a form of letter of transmittal, in a form reasonably satisfactory to the Parties (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions for use in effecting the surrender of the Certificates for payment therefor. Upon surrender of Certificates for cancellation to the Exchange Agent, together with such letter of transmittal duly executed and any other required documents, the holder of such Certificates shall be entitled to receive for each of the Company Shares represented by such Certificates the Share Consideration, without interest, allocable to such Certificates and the Certificates so surrendered shall forthwith be canceled. Until so surrendered, such Certificates shall represent solely the right to receive the Share Consideration allocable to such Certificates.

(c) Distributions with Respect to Unexchanged Shares . No dividends or other distributions that are declared after the Effective Time on Parent Shares and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled by reason of the Merger to receive Parent Shares until such Persons surrender their Certificates as provided in Section 4.2(b) above. Upon such surrender, there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions having a record date after the Effective Time and payable with respect to such Parent Shares between the Effective Time and the time of such surrender. After such surrender there shall be paid to the Person in whose name the Parent Shares are issued any dividends or other distributions on such Parent Shares which shall have a record date after the date of such surrender. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions.

(d) Transfers of Ownership . If any certificate representing Parent Shares is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of certificates for such Parent Shares in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable.

(e) No Liability . Neither the Exchange Agent nor any of the Parties shall be liable to a holder of Company Shares for any Parent Shares, in accordance with Section 4.3, cash in lieu of fractional Parent Shares or any dividend to which the holders thereof are entitled, delivered to a public official pursuant to applicable escheat law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Shares held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect to such Parent Shares for the account of the Persons entitled thereto.

(f) Termination of Funds . Subject to applicable law, any portion of the Stock Merger Exchange Fund and the Fractional Securities Fund which remains unclaimed by the former stockholders of the Company for one (1) year after the Effective Time shall be delivered to Parent, upon demand of Parent, and any former stockholder of the Company shall thereafter look only to Parent for payment of their applicable claim for the Share Consideration for their Company Shares.

4.3 Cash For Fractional Parent Shares . No fractional Parent Shares shall be issued in the Merger. Each holder of Parent Shares shall be entitled to receive in lieu of any fractional Parent Shares to which such holder otherwise would have been entitled pursuant to Section 4.2 (after taking into account all Parent Shares then held of record by such holder) a cash payment in an amount equal to the product of (i) the fractional interest of a Parent Share to which such holder otherwise would have been entitled and (ii) the closing price of a Parent Share on the NASDAQ Capital Market (“NCM”) on the trading day immediately prior to the Effective Time (the cash comprising such aggregate payments in lieu of fractional Parent Shares being hereinafter referred to as the “Fractional Securities Fund”).

4.4 Transfer of Shares after the Effective Time . All Parent Shares issued upon the surrender for exchange of Company Shares in accordance with the terms hereof (including any cash paid in respect thereof) shall be deemed to have been issued in full satisfaction of all rights pertaining to such Company Shares, and no further registration of transfers shall be made. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this Article IV.

4.5 Lost, Stolen or Destroyed Certificates . In the event any certificates evidencing Company Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed certificates, upon the making of an affidavit of that fact by the holder thereof, such Parent Shares, cash for fractional shares, if any, and any dividends or other distributions to which the holders thereof are entitled; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificates to deliver an indemnification agreement as it may reasonably direct with respect to any claim that may be made against Parent, the Surviving Corporation or the Exchange Agent with respect to the certificates alleged to have been lost, stolen or destroyed.

4.6 Withholding Rights . Each of the Surviving Corporation, Parent and Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code and the rules and regulations promulgated thereunder, or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation, Parent or the Exchange Agent, as the case may be, and delivered to the relevant taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Shares in respect of which such deduction and withholding was made by the Surviving Corporation, Parent or the Exchange Agent, as the case may be.

4.7 Treatment of Company Debt .

(a) Exchange of Notes . Subject to the provisions below, the Company will use commercially reasonable efforts to cause the holders of existing Company convertible notes (the “Old Notes”) to agree as part of the Merger to exchange the Old Notes for Parent Shares. As of the date of this Agreement, the Old Notes have a principal and accrued interest value of approximately $12,900,000. At the Effective Time, the Old Notes will be exchanged for 2,100,000 Parent Shares (as adjusted to reflect stock splits, stock dividends and reverse stock splits of Parent), plus or minus the number of Parent Shares equal to (i) the Adjusted Working Capital, divided by (ii) five (5) (as such number may be appropriately adjusted to reflect stock splits, stock dividends and reverse stock splits of Parent). As used herein, “Adjusted Working Capital” is defined as the current assets of the Company as of the Closing Date, less the current liabilities of the Company as of the Closing Date, provided that for purposes of this calculation, (x) “current liabilities” shall exclude the liabilities set forth on Section 4.7(a)(i) of the Company Disclosure Schedule, and (y) “current liabilities” shall include the cost of cashing out the Company Options under Section 4.1(d), the outstanding balance, if any, under the Working Capital Note and the other liabilities set forth on Section 4.7(a)(ii) of the Company Disclosure Schedule.

(b) Earn-Out Applicable to Holders of Old Notes . Holders of the Old Notes shall be eligible to receive additional Parent Shares on a pro rata basis pursuant to the provisions of this Section 4.7(b) (the “Earn-Out”). The Earn-Out shall measure the Surviving Corporation’s net license revenue as recorded in accordance with United States Generally Accepted Accounting Principles (“GAAP”) on the financial statements of Parent or the Surviving Corporation (the “Net License Revenue”) for licensing any of the software or software applications of the Company acquired at Closing (the “Applications”), including any enhancements, improvements or derivate works, for a period of approximately one (1) year following the Closing, as more fully described below. For Net License Revenue over $2.0 million during such period, the holders of Old Notes shall collectively receive .35 Parent Shares (as such percentage may be adjusted to reflect stock splits, stock dividends and reverse stock splits of Parent) for each $1.00 of Net License Revenue recorded during such period. After the holders of Old Notes have received in the aggregate 2,580,000 Parent Shares (as adjusted to reflect stock splits, stock dividends and reverse stock splits of Parent) under the Earn-Out, the Parent Shares issued as the Earn-Out shall be distributed one-half to the holders of Old Notes and one-half to the Management Members until the Management Members have received 171,250 Parent Shares (as adjusted to reflect stock splits, stock dividends and reverse stock splits of Parent) under the Earn-Out. Thereafter, any additional Parent Shares issued as Earn-Out shall be distributed solely to the holders of Old Notes. Any fractional shares allocable under this Section 4.7(b) shall be rounded up to the nearest whole number. The Earn-Out measurement period shall commence upon the Closing and end on July 31, 2010. The Parent Shares issued as Earn-Out will be issued quarterly, within forty-five (45) days after the end of each of Unify’s fiscal quarters during the Earn-Out period.

For avoidance of doubt, Net License Revenue (a) does not include any fees recognized for performing any services, including any consulting services, maintenance services or support fees or any fees recognized in connection with licensing of any products or software, other than the Applications, and (b) includes (i) the amount of deferred license revenue for the Applications recorded on the Surviving Corporation’s books on the last day of the Earn-Out period, in accordance with GAAP, and (ii) any amounts invoiced to Group Technologies and its affiliates related to the licensing of the Applications during the Earn-Out period. In the case of so-called “bundled sales,” where Applications acquired hereunder are “bundled” with other software offered by Parent or its affiliates, or by Parent and a third party or parties, the amount of Net License Revenue allocable to the Applications acquired hereunder shall be used to determine the payments required hereunder. If Parent sells or otherwise transfers all or substantially all of the Company’s assets prior to the end of the Earn-Out period, or if Parent is acquired (by merger, tender offer, or otherwise) by a third-party acquirer prior to the end of the Earn-Out period, then (i) the Earn-Out period shall terminate; (ii) the holders of Old Notes shall be issued the number of Parent Shares, if any, equal to (x) 2,580,000 Parent Shares (as adjusted to reflect stock splits, stock dividends and reverse stock splits of Parent), minus (y) the number of Parent Shares previously issued to the holders of Old Notes under the Earn-Out; and (iii) the Management Members shall be issued the number of Parent Shares, if any, equal to (x) 171,250 Parent Shares (as adjusted to reflect stock splits, stock dividends and reverse stock splits of Parent), minus (y) the number of Parent Shares previously issued to the Management Members under the Earn-Out.

(c) Protective Provisions . The Parties acknowledge that the right of the holders of the Old Notes to the benefits of the Earn-Out described in Section 4.7(b) is an integral part of the consideration to be received pursuant to this Agreement and the Merger. In furtherance of the foregoing, Parent agrees that until the Earn-Out is determined and the Parent Shares have been issued to the holders of the Old Notes, Parent shall not take, and shall cause the Surviving Corporation not to take, any actions, or fail to take any actions with the specific intent of reducing or impairing the Earn-Out, and until such time, Parent shall use reasonable commercial efforts to:

(i) permit the holders of the Old Notes and their agents, attorneys and accountants to have reasonable access, upon reasonable notice and during normal business hours, to all books and records of the Surviving Corporation for the purpose of auditing Parent’s compliance with this Section 4.7; provided, however, that any such investigation shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Surviving Corporation and shall be arranged through responsible officers of the Surviving Corporation designated for such purpose; and, provided, further, that if the audit results in any additional payments to the holders of Old Notes in excess of ten percent (10%) of the actual amounts paid to such holders, then Parent shall be liable for the fees and expenses of the auditor, in addition to any additional payments due and owing to the holders of Old Notes, all of which Parent will pay within twenty (20) days after completion of the audit; and

(ii) cause the books and records of the licensing of Applications and the calculation of Net License Revenues to be kept in a manner that makes calculation of such Net License Revenues reviewable by holders of Old Notes or their designees.

ARTICLE V

Representations and Warranties

5.1 Representations and Warranties of Parent and Merger Sub . Parent and Merger Sub hereby represent and warrant to the Company that the statements contained in this Section 5.1 are true and correct in all material respects, except to the extent specifically set forth on the disclosure schedule delivered contemporaneously with this Agreement by Parent to the Company (the “Parent Disclosure Schedule”).

(a) Corporate Organization and Qualification . Each of Parent and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of incorporation and is qualified and in good standing as a foreign corporation in each jurisdiction where the properties owned, leased or operated, or the business conducted, by it require such qualification, except where failure to so qualify or be in good standing could not reasonably be expected to have a Material Adverse Effect on Parent. Each of Parent and its Subsidiaries has all requisite power and authority to own its properties and to carry on its business as it is now being conducted. All of the Subsidiaries of Parent are set forth in Section 5.1(a) of the Parent Disclosure Schedule. Parent has heretofore made available to the Company complete and correct copies of its Certificate of Incorporation and by-laws and the charter documents of its Subsidiaries, each as amended.

(b) Operations of Merger Sub . Merger Sub is a direct, wholly-owned Subsidiary of Parent, was formed solely for the purpose of engaging in the transactions contemplated hereby, has engaged in no other business activities and has conducted its operations only as contemplated hereby.

(c) Capitalization . The authorized capital stock of Parent consists of 40,000,000 shares of common stock, par value $0.001 per share, and 7,931,370 shares which are designated as preferred stock, par value $0.001 per share. As of the date hereof, there are (i) 7,001,249 Parent Shares issued and outstanding and no Parent Shares held in the Company’s treasury, (ii) 1,176,292 Parent Shares reserved for issuance upon exercise of outstanding stock options, (iii) 1,041,792 Parent Shares reserved for issuance upon exercise of outstanding warrants (vi) 279,954 Shares reserved for issuance upon debt conversion and (v) no preferred stock of Parent issued and outstanding, held in Parent’s treasury or reserved for issuance. All of the issued and outstanding Parent Shares have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. Other than as referenced above, Parent does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase or issuance of any Parent Shares or preferred shares or any other equity security of Parent or any securities representing the right to purchase or otherwise receive any Parent Shares or any other equity security of Parent.

Parent owns 100% of the outstanding equity interests in each Subsidiary. Except for the Parent Stockholder Agreements, there are not as of the date hereof and there will not be at the Effective Time any stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or to which it is bound relating to the voting of any shares of the capital stock of the Company. There are no existing rights with respect to the registration of Parent Shares under the Securities Act, including, but not limited to, demand rights or piggy-back registration rights. Except as set forth in Section 5.1(c) of the Parent Disclosure Schedule, since January 31, 2009 through the date hereof no options or warrants have been issued or accelerated or had their terms modified.

(d) Authority Relative to this Agreement . The Board of Directors of Merger Sub has declared the Merger advisable and Merger Sub has the requisite corporate power and authority to approve, authorize, execute and deliver this Agreement and to consummate the transactions contemplated hereby. The Board of Directors of Parent has declared the issuance of Parent Shares advisable and Parent has the requisite corporate power and authority to approve, authorize, execute and deliver this Agreement and to consummate the transactions contemplated hereby. This Agreement and the consummation by Parent and Merger Sub of the transactions contemplated hereby have been duly and validly authorized by the Boards of Directors of Parent and Merger Sub and no other corporate proceedings on the part of Parent or Merger Sub (other than approval of the Merger by the stockholders of Parent in accordance with the NCS listing requirements) are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Parent and Merger Sub and, assuming this Agreement constitutes the valid and binding agreement of the Company, constitutes the valid and binding agreement of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.

(e) Present Compliance with Obligations and Laws . Neither Parent nor any of its Subsidiaries is: (i) in violation of its Certificate of Incorporation, by-laws or similar documents; (ii) in default in the performance of any obligation, agreement or condition of any debt instrument which (with or without the passage of time or the giving of notice, or both) affords to any Person the right to accelerate any indebtedness or terminate any right; (iii) in default under or breach of (with or without the passage of time or the giving of notice) any other contract to which it is a party or by which it or its assets are bound; or (iv) in violation of any law, regulation, administrative order or judicial order, decree or judgment (domestic or foreign) applicable to it or its business or assets, except where any violation, default or breach under items (ii), (iii), or (iv) could not reasonably be expected to individually or in the aggregate, have a Material Adverse Effect on Parent.

(f) Consents and Approvals; No Violation . Neither the execution and delivery of this Agreement nor the consummation by Parent or Merger Sub of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the respective Certificate of Incorporation (or other similar documents) or by-laws (or other similar documents) of Parent or any of its Subsidiaries; (ii) require any consent, approval, authorization or permit of, or registration or filing with or notification to, any governmental or regulatory authority, except (A) in connection with the applicable requirements, if any, of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (B) pursuant to the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, (C) the filing of the Certificate of Merger pursuant to the DGCL and appropriate documents with the relevant authorities of other states in which Parent and Merger Sub are authorized to do business, (D) as may be required by any applicable state securities laws, (E) the consents, approvals, orders, authorizations, registrations, declarations and filings required under the antitrust laws of foreign countries, or (F) where the failure to obtain such consent, approval, order authorization or permit, or to make such registration, filing or notification, could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on Parent or adversely affect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby; (iii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration or lien or other charge or encumbrance) under any of the terms, conditions or provisions of any indenture, note, license, lease, agreement or other instrument or obligation to which Parent or any of its Subsidiaries is a party or by which any of their assets may be bound, except for such violations, breaches and defaults (or rights of termination, cancellation or acceleration or lien or other charge or encumbrance) as to which requisite waivers or consents have been obtained or which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect on Parent or adversely affect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby; (iv) cause the suspension or revocation of any authorizations, consents, approvals or licenses currently in effect which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on Parent; or (v) assuming the consents, approvals, authorizations or permits and registrations, filings or notifications referred to in this Section 5.1(f) are duly and timely obtained or made, violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent or any of its Subsidiaries or to any of their respective assets, except for violations which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect on Parent or adversely affect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby.

(g) Litigation . Except as set forth in the Parent SEC Reports filed prior to the date hereof, there are no actions, suits, claims, investigations or proceedings pending or, to the Knowledge of Parent, threatened against Parent or any of its Subsidiaries that, individually or in the aggregate, could be reasonably likely to result in obligations or liabilities of Parent or any of its Subsidiaries that, individually or in the aggregate, could be reasonably expected to have a Material Adverse Effect on Parent or a material adverse effect on the Parties’ ability to consummate the transactions contemplated by this Agreement. Neither Parent nor any of its Subsidiaries is subject to any outstanding judgment order, writ, injunction or decree which (i) has or may have the effect of impairing Parent’s ability to perform its obligations under this Agreement or (ii) individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on Parent.

(h) SEC Reports; Financial Statements .

(i) Since January 1, 2007, Parent has filed all forms, reports and documents with the Securities and Exchange Commission (the “SEC”) required to be filed by it pursuant to the federal securities laws and the SEC rules and regulations thereunder, all of which complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder (collectively, the “Parent SEC Reports”). None of the Parent SEC Reports, including, without limitation, any financial statements or schedules included therein, at the time filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) 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.

(ii) The consolidated balance sheets and the related consolidated statements of income, stockholders’ equity (deficit) and cash flows (including the related notes thereto) of Parent included in the Parent SEC Reports (collectively, “Parent Financial Statements”) comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles applied on a basis consistent throughout the periods involved (except as otherwise noted therein or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q under the Exchange Act), and present fairly the consolidated financial position of Parent and its consolidated Subsidiaries as of their respective dates, and the consolidated results of their operations and their cash flows for the periods presented therein, except that the unaudited interim financial statements do not include footnote disclosure of the type associated with audited financial statements and were or are subject to normal and recurring year-end adjustments which were not or are not expected to be material in amount.

(iii) Since January 1, 2007, there has not been any material change, by Parent or any of its Subsidiaries, in accounting principles, methods or policies for financial accounting purposes, except as required by concurrent changes in generally accepted accounting principles. There are no material amendments or modifications to agreements, documents or other instruments which previously had been filed by Parent with the SEC pursuant to the Securities Act or the Exchange Act, which have not yet been filed with the SEC but which are required to be filed.

(i) No Liabilities . Neither Parent nor any of its Subsidiaries has any material indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise, and whether due or to become due or asserted or unasserted), except for indebtedness, liabilities or obligation (i) which are fully reflected in, reserved against or otherwise described in the most recent Parent Financial Statements, (ii) which have been incurred after the date of the most recent Parent Financial Statements in the ordinary course of business, consistent with past practice, (iii) which are obligations to perform under executory contracts in the ordinary course of business (none of which is a liability resulting from a breach of contract or warranty, tort, infringement or legal action), or (iv) which do not or could not reasonably be expected to Material Adverse Effect on Parent.

(j) Absence of Certain Changes of Events . Except as described in the Parent SEC Reports, since the date of the most recent Parent Financial Statements, except with respect to the actions contemplated by this Agreement, there has not been (i) any Material Adverse Effect on Parent; (ii) any damage, destruction or loss (whether or not covered by insurance) that has had or could reasonably be expected to have a Material Adverse Effect on Parent; or (iii) any other action or event that would have required the consent of the Company pursuant to Section 6.2 had such action or event occurred after the date of this Agreement.

(k) Brokers and Finders . Neither Parent nor any of its Subsidiaries has employed any investment banker, broker, finder, consultant or intermediary in connection with the transactions contemplated by this Agreement which would be entitled to any investment banking, brokerage, finder’s or similar fee or commission in connection with this Agreement or the transactions contemplated hereby.

(l) S-4 Registration Statement and Proxy Statement/Prospectus . None of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the S-4 Registration Statement or the Proxy Statement will (i) in the case of the S-4 Registration Statement, at the time it becomes effective, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) in the case of the Proxy Statement, at the time of the mailing of the Proxy Statement and at the time of the Parent Stockholders Meeting and the Company Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. If at any time prior to the Effective Time any event with respect to Parent, Merger Sub or any of their respective affiliates, officers and directors or any of its Subsidiaries should occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the S-4 Registration Statement, Parent shall promptly inform the Company, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Parent and the Company. The S-4 Registration Statement will (with respect to Parent and Merger Sub) comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations promulgated thereunder. The Proxy Statement will (with respect to Parent and Merger Sub) comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding the foregoing, Parent and Merger Sub make no representation or warranty with respect to any written information supplied by the Company specifically for inclusion in such document which is contained in any of the foregoing documents.

(m) Listings . Parent’s securities are not listed, or quoted, for trading on any U.S. domestic or foreign securities exchange, other than the NCM.

(n) Transactions with Affiliates . Except as set forth in the Parent SEC Reports filed prior to the date of this Agreement, since the date of Parent’s last proxy statement to its stockholders, no event has occurred that would be required to be reported by Parent as a Certain Relationship or Related Transaction, pursuant to Item 404 of Regulation S-K promulgated by the SEC.

5.2 Representations and Warranties of the Company . The Company hereby represents and warrants to Parent and Merger Sub that the statements contained in this Section 5.2 are true and correct in all material respects, except to the extent specifically set forth on the disclosure schedule delivered contemporaneously with this Agreement by the Company to Parent and Merger Sub (the “Company Disclosure Schedule”).

(a) Corporate Organization and Qualification . Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of incorporation and is qualified and in good standing as a foreign corporation in each jurisdiction where the properties owned, leased or operated, or the business conducted, by it require such qualification, except where failure to so qualify or be in good standing as a foreign corporation could not reasonably be expected to have a Material Adverse Effect on the Company. Each of the Company and its Subsidiaries has all requisite power and authority (corporate or otherwise) to own its properties and to carry on its business as it is now being conducted. All of the Subsidiaries of the Company are set forth in Section 5.2(a) of the Company Disclosure Schedule. The Company has heretofore made available to Parent complete and correct copies of its Certificate of Incorporation and by-laws and the charter documents of its Subsidiaries, each as amended.

(b) Capitalization . The authorized capital stock of the Company consists of (i) 125,000,000 shares of common stock, $0.01 par value per share, of which 41,341,425 shares were issued and outstanding as of February 5, 2009, and (ii) 5,000,000 shares of preferred stock, $0.01 par value per share, none of which are issued or outstanding. All of the outstanding shares of capital stock of the Company and its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable. The Company has no outstanding stock appreciation rights, phantom stock or similar rights. All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company or a direct or indirect wholly-owned Subsidiary of the Company, free and clear of all liens, pledges, charges, encumbrances, claims and options of any nature. Except for options to purchase 3,690,314 Company Shares issued pursuant to the Company’s 1995, 1998, 2005 and 2008 stock incentive plans (the “Company Option Plans”) and warrants to purchase 10,300,000 Company Shares pursuant to the Company Warrants, there are no outstanding or authorized options, warrants, calls, rights (including preemptive rights), commitments or any other agreements of any character which the Company or any of its Subsidiaries is a party to, or may be bound by, requiring it to issue, transfer, grant, sell, purchase, redeem or acquire any shares of capital stock or any of its securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company or any of its Subsidiaries.

There are not as of the date hereof and there will not be at the Effective Time any stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or to which it is bound relating to the voting of any shares of the capital stock of the Company. The Company has provided to Parent a list, as of February 5, 2009, of the outstanding options and warrants to acquire Company Shares, the name of the holder of such option or warrant, the exercise price of such option or warrant, the number of shares as to which such option or warrant will have vested at such date and whether the exercisability of such option or warrant will be accelerated in any way by the transactions contemplated by this Agreement and the extent of acceleration, if any, and any adjustments to such options or warrants as a result of the transactions contemplated by this Agreement. Since January 1, 2009 through the date hereof, no options or warrants have been issued or accelerated or had their terms modified.

(c) Fairness Opinion . The Board of Directors of the Company has received an opinion in writing from Updata Capital, Inc., addressed to the Board of Directors of the Company, to the effect that, as of the date hereof and based upon and subject to the matters stated therein, the consideration to be received by the holders of Common Shares in the Merger is fair to such holders from a financial point of view. As of the date hereof, such opinion has not been withdrawn, revoked or modified.

(d) Authority Relative to this Agreement . The Board of Directors of the Company has declared the Merger advisable and the Company has the requisite corporate power and authority to approve, authorize, execute and deliver this Agreement and to consummate the transactions contemplated hereby. This Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby (other than the approval of the Merger by the stockholders of the Company in accordance with the DGCL). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.

(e) Present Compliance with Obligations and Laws . Neither the Company nor any of its Subsidiaries is: (i) in violation of its Certificate of Incorporation or by-laws or similar documents; (ii) in default in the performance of any obligation, agreement or condition of any debt instrument which (with or without the passage of time or the giving of notice, or both) affords to any Person the right to accelerate any indebtedness or terminate any right; (iii) in default under or breach of (with or without the passage of time or the giving of notice) any other contract to which it is a party or by which it or its assets are bound; or (iv) in violation of any law, regulation, administrative order or judicial order, decree or judgment (domestic or foreign) applicable to it or its business or assets, including laws or regulations related to classification and status of employees, except where any violation, default or breach under items (ii), (iii), or (iv) could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on the Company.

(f) Consents and Approvals; No Violation . Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of its Certificate of Incorporation or by-laws; (ii) require any consent, approval, authorization or permit of, or registration or filing with or notification to, any governmental or regulatory authority, except (A) in connection with the applicable requirements, if any, of the HSR Act, (B) pursuant to the applicable requirements of the Securities Act and the Exchange Act, (C) the filing of the Certificate of Merger pursuant to the DGCL and appropriate documents with the relevant authorities of other states in which the Company is authorized to do business, (D) as may be required by any applicable state securities laws, (E) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under the antitrust laws of any foreign country or, (F) where the failure to obtain such consent, approval, order, authorization or permit, or to make such registration, filing or notification, could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on the Company or adversely affect the ability of the Company to consummate the transactions contemplated hereby; (iii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration or lien or other charge or encumbrance) under any of the terms, conditions or provisions of any indenture, note, license, lease, agreement or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of their assets may be bound, except for such violations, breaches and defaults (or rights of termination, cancellation, or acceleration or lien or other charge or encumbrance) as to which requisite waivers or consents have been obtained or which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect on the Company or adversely affect the ability of the Company to consummate the transactions contemplated hereby; (iv) cause the suspension or revocation of any authorizations, consents, approvals or licenses currently in effect which could reasonably be expected to have a Material Adverse Effect on the Company; or (v) assuming the consents, approvals, authorizations or permits and registrations, filings or notifications referred to in this Section 5.2(f) are duly and timely obtained or made, violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company or any of its Subsidiaries or to any of their respective assets, except for violations which could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on the Company or adversely affect the ability of the Company to consummate the transactions contemplated hereby.

(g) Litigation . Except as disclosed in Company SEC Reports filed prior to the date hereof, there are no actions, suits, claims, investigations or proceedings pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that, individually or in the aggregate, could be reasonably likely to result in obligations or liabilities of the Company or any of its Subsidiaries that would have a Material Adverse Effect on the Company or a material adverse effect on the Parties’ ability to consummate the transactions contemplated by this Agreement. Neither the Company nor any of its Subsidiaries is subject to any outstanding judgment, order, writ, injunction or decree which (i) has or may have the effect of prohibiting or impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property (tangible or intangible) by the Company or any of its Subsidiaries, the conduct of the business by the Company or any of its Subsidiaries, or Company’s ability to perform its obligations under this Agreement or (ii), individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on the Company.

(h) SEC Reports; Financial Statements .

(i) Since January 1, 2007, the Company has filed all forms, reports and documents with the SEC required to be filed by it pursuant to the federal securities laws and the SEC rules and regulations thereunder, all of which complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act (collectively, the “Company SEC Reports”). No

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