AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

STEEL HOLDINGS, INC.

STEEL MERGER SUB, INC.

and

SOFTBRANDS, INC.

Dated as of June 11, 2009

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AGREEMENT AND PLAN OF MERGER

     THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”) is made and entered into as of June 11, 2009 by and among Steel Holdings, Inc., a Delaware corporation (“ Parent ”), Steel Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“ Merger Sub ”), and SoftBrands, Inc., a Delaware corporation (the “ Company ”). All capitalized terms used in this Agreement shall have the respective meanings ascribed thereto in Article I .

(i) WITNESSETH:

     WHEREAS, it is proposed that Merger Sub will merge with and into the Company in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”) and each share of Company Capital Stock will thereupon be canceled and converted into the right to receive an amount of cash as set forth herein, all upon the terms and subject to the conditions set forth herein.

     WHEREAS, the Company Board has (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Agreement providing for the merger of Merger Sub with and into the Company in accordance with the DGCL, upon the terms and subject to the conditions set forth herein, and (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby in accordance with the DGCL upon the terms and conditions contained herein.

     WHEREAS, the board of directors of Parent and the board of directors of Merger Sub have (i) determined that it is in the best interests of Parent and Merger Sub, respectively, and declared it advisable to enter into this Agreement, and (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby in accordance with the DGCL upon the terms and conditions contained herein.

     WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of Parent and Merger Sub to enter into this Agreement, certain stockholders of the Company are entering into Voting Agreements, in substantially the form attached hereto as Exhibit A (the “ Voting Agreements ”), with Parent, pursuant to which such stockholders have irrevocably agreed to vote in favor of the Merger and the transactions contemplated thereby and to other matters set forth therein.

     WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and to prescribe certain conditions with respect to the consummation of the transactions contemplated by this Agreement.

     NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE I
DEFINITIONS & INTERPRETATIONS

     1.1 Certain Definitions . For all purposes of and under this Agreement, the following capitalized terms shall have the following respective meanings:

          (a) “ Acquisition Proposal ” means any offer, proposal, indication of interest or inquiry (other than an offer, proposal, indication of interest or inquiry by Parent or Merger Sub) to engage in an Acquisition Transaction.

          (b) “ Acquisition Transaction ” means any transaction or series of related transactions (other than the transactions contemplated by this Agreement) involving: (i) the purchase or other acquisition from the Company by any Person or “group” (as defined in or under Section 13(d) of the Exchange Act), directly or indirectly, of more than ten percent (10%) of the Company Capital Stock outstanding as of the consummation of such purchase or other acquisition, or any tender offer or exchange offer by any Person or “group” (as defined in or under Section 13(d) of the Exchange Act) that, if consummated in accordance with its terms, would result in such Person or “group” beneficially owning more than ten percent (10%) of the Company Capital Stock outstanding as of the consummation of such tender or exchange offer; (ii) a merger, consolidation, share exchange, reorganization, recapitalization, liquidation, dissolution, business combination or other similar transaction involving the Company pursuant to which the stockholders of the Company immediately preceding such transaction hold less than ninety percent (90%) of the equity interests in the surviving or resulting entity of such transaction; (iii) a sale, transfer, acquisition or disposition of more than ten percent (10%) of the consolidated assets of the Company and its Subsidiaries taken as a whole (measured by the lesser of book or fair market value thereof), or (iv) any other transaction the consummation of which is reasonably likely to impede, interfere with, prevent or materially delay the Merger or that is reasonably likely to dilute materially the benefits to Parent of the transactions contemplated hereby.

          (c) “ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with such Person. For purposes of the immediately preceding sentence, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

          (d) “ Antitrust Law ” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition or the creation or strengthening of a dominant position through merger or acquisition, in any case that are applicable to the transactions contemplated by this Agreement.

          (e) “ Business Day ” means any day, other than a Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which

banking institutions located in the State of New York are authorized or required by Law or other governmental action to close.

          (f) “ Change of Recommendation ” shall mean the failing to make, withholding, withdrawal (or not continuing to make), amendment, qualification or modification, in a manner adverse to Parent, by the Company Board (or any individual member or committee thereof) of the Company Board Recommendation (or approving, adopting, recommending or publicly proposing to recommend, an Acquisition Proposal, or failing to recommend against an Acquisition Proposal within two Business Days of a request by Parent to do so) or publicly proposing to do so, or the taking of any other action or the making of any other statement by the Company Board (or any individual member or committee thereof) that is inconsistent with the Company Board Recommendation, and, in the case of a tender or exchange offer made by a third party directly to the Company Stockholders, a failure to recommend that the Company Stockholders reject such tender or exchange offer.

          (g) “ COBRA ” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended and as codified in Section 4980B of the Code and Section 601 et. seq. of ERISA.

          (h) “ Code ” means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules and regulations thereto.

          (i) “ Common Per Share Amount ” means $0.92.

          (j) “ Company Balance Sheet ” means the consolidated balance sheet of the Company and its Subsidiaries as of September 30, 2008.

          (k) “ Company Board ” means the board of directors of the Company.

          (l) “ Company Capital Stock ” means the Company Common Stock and the Company Preferred Stock.

          (m) “ Company Common Stock ” means the Common Stock, par value $0.01 per share, of the Company, together with the Preferred Stock Purchase Rights appurtenant thereto issued under the Rights Agreement.

          (n) “ Company Employee Plan ” means any plan, program, policy, practice, contract, agreement or other arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind to employees, whether written, unwritten or otherwise, funded or unfunded, domestic or foreign, including each “employee benefit plan,” within the meaning of Section 3(3) of ERISA which is or has been maintained, contributed to, or required to be contributed to, by the Company or any ERISA Affiliate for the benefit of any employee, or with respect to which the Company or any ERISA Affiliate has or may have any liability or obligation, including all International Employee Plans.

          (o) “ Company Intellectual Property ” means all Intellectual Property Rights that are owned or purported to be owned by the Company or any Company Subsidiary.

          (p) “ Company Intellectual Property Agreements ” means the In-Licenses and the Out-Licenses, collectively.

          (q) “ Company Material Adverse Effect ” means any change, effect, event, circumstance or development (each a “ Change ”, and collectively, “ Changes ”), which individually or in the aggregate, (i) is or is reasonably likely to be materially adverse to the business, operations, condition (financial or otherwise), assets, liabilities or results of operations of the Company and its Subsidiaries, taken as a whole; provided , however , that none of the following shall be deemed, either individually or in the aggregate, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (A) any failure in and of itself (as opposed to the causes, facts and circumstances underlying such failure) by the Company or any of its Subsidiaries to meet internal or other estimates, predictions, projections or forecasts of revenue, net income or any other measure of financial performance or (B) any Change resulting from or arising out of any of the following: (1) general economic conditions in the United States or any other country (or changes therein), general conditions in the financial markets in the United States or any other country (or changes therein) and general political conditions in the United States or any other country (or changes therein), in any such case to the extent that such conditions do not have a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other companies similarly situated in the industries or geographies in which the Company operates; (2) general conditions in the industries in which the Company and its Subsidiaries conduct business (or changes therein), in any such case to the extent that such conditions do not have a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other companies similarly situated in such industries; (3) any conditions arising out of acts of terrorism or war, weather conditions or other force majeure events to the extent that such conditions do not have a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other companies similarly situated in the industries or geographies in which the Company operates; (4) the announcement of this Agreement, the consummation of the transactions contemplated hereby, any action required to cause compliance with the terms of, or the taking of any action expressly required by, this Agreement or any action approved or consented to in writing by Parent; (5) any changes after the date hereof in GAAP or accounting requirements applicable to the industries in which the Company or its Subsidiaries conduct business (or the interpretation of any of the foregoing); (6) changes in the Company’s stock price or the trading volume of the Company’s stock, in and of itself (as opposed to the causes, facts and circumstances underlying such changes); (7) any breach by Parent of this Agreement; or (8) the introduction or success of any product that competes with any product of the Company or its Subsidiaries, or (ii) prevents or materially delays, or is reasonably likely to prevent or materially delay, the ability of the Company and its Subsidiaries to perform their obligations under this Agreement or to consummate the transactions contemplated hereby in accordance with the terms hereof.

          (r) “ Company Options ” means any options to purchase shares of Company Common Stock or stock appreciation rights outstanding under any of the Company Stock Plans.

          (s) “ Company Preferred Stock ” means the Preferred Stock, par value $0.01 per share, of the Company.

          (t) “ Company Registered Intellectual Property ” means all Registered Intellectual Property owned by, or filed in the name of, the Company or its Subsidiaries.

          (u) “ Company Series B Preferred Stock ” means the Series B Preferred Stock, par value $0.01 per share, of the Company.

          (v) “ Company Series C-1 Preferred Stock ” means the Series C-1 Preferred Stock, par value $0.01 per share, of the Company.

          (w) “ Company Series D Preferred Stock ” means the Series D Preferred Stock, par value $0.01 per share, of the Company.

          (x) “ Company Source Code ” means Source Code with respect to the Company Products.

          (y) “ Company Stock Plans ” means (i) the Company’s Amended and Restated 2001 Stock Incentive Plan and (ii) any other compensatory option plans or Contracts of the Company, including option plans or Contracts assumed by the Company pursuant to a merger, acquisition or other similar transaction.

          (z) “ Company Stock-Based Award ” means each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured in whole or in part by the value of a number of shares of Company Common Stock granted under the Company Stock Plans or Company Employee Plans (including performance shares, restricted stock, restricted stock units, phantom units, deferred stock units and dividend equivalents, but not including any 401(k) plan of the Company), other than rights under Company Options.

          (aa) “ Company Stockholders ” means holders of shares of Company Capital Stock, in their capacity as such.

          (bb) “ Company Termination Fee ” means an amount in cash equal to $2,600,000.

          (cc) “ Company Warrants ” means all warrants to purchase shares of Company Capital Stock.

          (dd) “ Contract ” means any contract, subcontract, agreement, commitment, note, bond, mortgage, indenture, lease, license, sublicense, option or other instrument, obligation or binding arrangement or understanding of any kind or character, whether oral or in writing, pursuant to which a Person or any its assets or properties may be bound.

          (ee) “ Delaware Law ” means the DGCL and any other applicable law (including common law) of the State of Delaware.

          (ff) “ DOJ ” means the United States Department of Justice or any successor thereto.

          (gg) “ DOL ” means the United States Department of Labor or any successor thereto.

          (hh) “ Domain Name ” means any or all of the following: domain names, uniform resource locators (“ URLs ”) and other names and locators associated with the Internet.

          (ii) “ Employee Agreement ” means each management, employment, severance, consulting, relocation, repatriation, expatriation, visa, work permit or other agreement or Contract between the Company or any ERISA Affiliate and any employee.

          (jj) “ Environmental Law ” means any and all applicable Laws and regulations promulgated thereunder, or any agreement with any Governmental Authority related to the environment, relating to pollution, contamination, noise, nuisance, odor, wetlands, worker health and safety, the environment, the protection of the environment (including ambient air, surface water, groundwater or land) or exposure of any individual to or Hazardous Substances or otherwise relating to the sale, import, export, production, use, emission, storage, treatment, transportation, recycling, disposal, deposit, discharge, release or other handling of any Hazardous Substances or the investigation, clean-up or other remediation or analysis thereof.

          (kk) “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder, or any successor statue, rules and regulations thereto.

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

          (mm) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules and regulations thereto.

          (nn) “ Expenses ” means all out-of-pocket expenses (including, without limitation, all reasonable fees and expenses of outside counsel, investment bankers, banks, other financial institutions, accountants, financial printers, experts and consultants to a party hereto) incurred or payable by a party or on its behalf in connection with or related to the investigation, due diligence examination, authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby and the financing thereof and all other matters contemplated by this Agreement and the closing thereof, together with any reasonable out-of-pocket costs and expenses incurred by any party in enforcing any of its rights set forth in this Agreement, whether pursuant to litigation or otherwise.

          (oo) “ Freely Available Cash ” means unrestricted cash of the Company, net of any Tax obligations to the Company or any of its Subsidiaries, that is freely available for any purpose and that can be distributed, contributed or otherwise delivered to the Company (from any Affiliates of the Company) in accordance with Applicable Law, including those relating to solvency, adequate surplus and similar capital adequacy tests, but excluding any such cash required to pay (1) the amounts required to be paid pursuant to Section 2.7 to holders of Company Warrants, Company Options and Company Stock-Based Awards, (2) any unpaid

Expenses of the Company and any unpaid Expenses of the Company incurred in the Company’s sales process and (3) the aggregate amount of the Change of Control Payments.

          (pp) “ FTC ” means the United States Federal Trade Commission or any successor thereto.

          (qq) “ GAAP ” means generally accepted accounting principles in the United States, consistently applied.

          (rr) “ Governmental Authority ” means any government (including any political subdivision thereof), any governmental or regulatory entity or body, department, commission, official, board, agency, administrative authority or instrumentality exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government (including the NYSE Amex Equities), and any court, tribunal or judicial body, in each case whether federal, state, county, provincial, and whether local or foreign.

          (ss) “ Hazardous Substance ” means any material, chemical, emission or substance that has been designated by any Governmental Authority to be radioactive, toxic, hazardous, a pollutant or contaminant or otherwise a danger to health, reproduction or the environment and any other substance which is the subject of regulatory action by any Governmental Entity pursuant to any Environmental Law.

          (tt) “ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules and regulations thereto.

          (uu) “ Identified Company Representations ” means the representations or warranties of the Company set forth in Section 3.1 (Authorization), Section 3.2 (Requisite Stockholder Approval), Section 3.5 (Organization and Standing), Section 3.6 (Subsidiaries), Sections 3.7(a) , 3.7(b) and 3.7(c) (Capitalization) (other than changes in such section relating to the exercise of Company Options granted on or prior to the date hereof and the issuance of Company Common Stock upon the exercise of Company Options granted on or prior to the date hereof), Section 3.17(g) (280G), Section 3.24 (Related Party Transactions), Section 3.26 (Brokers), Section 3.29 (Change of Control), Section 3.30 (Rights Agreement) and Section 3.31 (State Anti-Takeover Statutes).

          (vv) “ Indebtedness ” means, with respect to the Company and its Subsidiaries, (i) indebtedness for borrowed money or issued in substitution for or exchange of indebtedness for borrowed money, (ii) obligations evidenced by notes, bonds, debentures or other similar instruments, (iii) obligations under leases (contingent or otherwise, as obligor, guarantor or otherwise) required to be accounted for as capitalized leases pursuant to GAAP, (iv) obligations for amounts drawn under acceptances, letters of credit, contingent reimbursement liabilities with respect to letters of credit or similar facilities, (v) any liability for the deferred purchase price of property or services, contingent or otherwise, as obligor or otherwise, other than accounts payable incurred in the ordinary course of business, (vi) guarantees and similar commitments relating to any of the foregoing items, and (vii) any accrued and unpaid interest on, and any prepayment premiums, penalties or similar contractual charges in respect of, any of the foregoing.

          (ww) “ Intellectual Property Rights ” means any or all of the following: (i) patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof (“ Patents ”); (ii) copyrights, copyright registrations and applications therefor and renewals thereof, copyrightable works, and all other rights corresponding thereto including moral and economic rights of authors and inventors, however denominated (“ Copyrights ”); (iii) industrial designs and any registrations and applications therefor; (iv) trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor, and all other indicia of source, together with all goodwill associated therewith (“ Trademarks ”); (v) Domain Names, Domain Name registrations and applications therefor; (v) trade secrets (including those trade secrets defined in the Uniform Trade Secrets Act and under corresponding foreign statutory and common law), business, technical and know-how information, non-public information, and confidential information and rights to limit the use or disclosure thereof by any Person; including databases and data collections and all rights therein (“ Trade Secrets ”); (vi) any similar or equivalent rights to any of the foregoing (anywhere in the world); (vi) computer software, including source code, object code, data and databases and documentation therefor; and (viii) all other intellectual property (anywhere in the world).

          (xx) “ International Employee Plan ” means each Company Employee Plan that has been adopted or maintained by the Company or any ERISA Affiliate, whether informally or formally, or with respect to which the Company or any ERISA Affiliate will or may have any liability , for the benefit of employees who perform services outside the United States.

          (yy) “ IRS ” means the United States Internal Revenue Service or any successor thereto.

          (zz) “ Knowledge ” of the Company, with respect to any matter in question, means the actual knowledge of any executive officer of the Company.

          (aaa) “ Law ” means any and all applicable federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or other requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

          (bbb) “ Legal Proceeding ” means any action, claim, suit, litigation, proceeding (public or private), criminal prosecution, audit or investigation by or before any Governmental Authority.

          (ccc) “ Liabilities ” means any liability, Indebtedness, obligation or commitment of any kind (whether accrued, absolute, contingent, matured, unmatured or otherwise and whether or not required to be recorded or reflected on a balance sheet prepared in accordance with GAAP).

          (ddd) “ Lien ” means any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim, infringement, interference, option, right of first refusal, preemptive

right, community property interest or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

          (eee) “ Multiemployer Plan ” means any Pension Plan that is a “multiemployer plan,” as defined in Section 3(37) of ERISA.

          (fff) “ Net Debt ” means Indebtedness less Freely Available Cash.

          (ggg) “ NYSE Amex Equities ” means the New York Stock Exchange Amex Equities, any successor inter-dealer quotation system operated by the NYSE, LLC or any successor thereto.

          (hhh) “ Order ” means any order, judgment, decision, decree, injunction, ruling, writ or assessment of any Governmental Authority (whether temporary, preliminary or permanent) that is binding on any Person or its property under applicable Law.

          (iii) “ Parent Termination Fee ” means an amount in cash equal to $8,000,000.

          (jjj) “ Pension Plan ” means each Company Employee Plan that is an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA.

          (kkk) “ Permitted Liens ” means any of the following: (i) Liens for Taxes, assessments and governmental charges or levies either not yet due and payable or which are being contested in good faith and by appropriate proceedings and for which appropriate reserves have been established to the extent required by GAAP; (ii) mechanics’, carriers’, workmen’s, warehousemen’s, repairmen’s, materialmen’s or other Liens or security interests that are not yet due or that are being contested in good faith and by appropriate proceedings; (iii) leases and subleases, and non-exclusive licenses of Intellectual Property Rights granted to customers by written agreement or operation of law in connection with the sale of products or provision of services in the ordinary course of business; (iv) Liens imposed by applicable Law (other than Tax Law); (v) pledges or deposits to secure obligations under workers’ compensation Laws or similar legislation or to secure public or statutory obligations; (vi) pledges and deposits to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary course of business; and (vii) Liens the existence of which are disclosed in the notes to the consolidated financial statements of the Company included in the Company SEC Reports.

          (lll) “ Per Share Amount ” means the Common Per Share Amount, the Series B Per Share Amount, the Series C-1 Per Share Amount and the Series D Per Share Amount.

          (mmm) “ Person ” means any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or Governmental Authority.

          (nnn) “ Registered Intellectual Property ” means Intellectual Property Rights that

have been registered, applied for, filed, certified or otherwise perfected, issued, or recorded with or by any Governmental Authority, including any quasi-public legal authority.

          (ooo) “ Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules or regulations thereto.

          (ppp) “ SEC ” means the United States Securities and Exchange Commission or any successor thereto.

          (qqq) “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules or regulations thereto.

          (rrr) “ Series B Per Share Amount ” means an amount equal to the Series B Liquidation Preference Payment (as defined in the Company’s Certificate of Designations, Preferences and Rights of Series B Convertible Preferred Stock filed with the Secretary of State of the State of Delaware on July 27, 2004 (the “ Series B Certificate of Designation ”)).

          (sss) “ Series C-1 Per Share Amount ” means an amount equal to the Series C-1 Liquidation Preference (as defined in the Company’s Certificate of Designations, Preferences and Rights of Series C-1 Convertible Preferred Stock filed with the Secretary of State of the State of Delaware on August 14, 2006 (the “ Series C-1 Certificate of Designation ”)).

          (ttt) “ Series D Per Share Amount ” means an amount equal to the Series D Liquidation Preference (as defined in the Company’s Certificate of Designations, Preferences and Rights of Series D Convertible Preferred Stock filed with the Secretary of State of the State of Delaware on August 14, 2006 (the “ Series D Certificate of Designation ”)).

          (uuu) “ Source Code ” means computer software and code, in form other than object code form, including related programmer comments and annotations, help text, data and data structures, instructions and procedural, object-oriented and other code, which may be printed out or displayed in human readable form.

          (vvv) “ Subsidiary ” of any Person means (i) a corporation more than fifty percent (50%) of the combined voting power of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one of more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries thereof, (ii) a partnership of which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, is the general partner and has the power to direct the policies, management and affairs of such partnership, (iii) a limited liability company of which such Person or one or more other Subsidiaries of such Person, directly or indirectly, is the managing member and has the power to direct the policies, management and affairs of such company or (iv) any other Person (other than a corporation, partnership or limited liability company) in which such Person, or one or more other Subsidiaries of such Person, directly or indirectly, has at least a majority ownership and power to direct the policies, management and affairs thereof.

          (www) “ Superior Proposal ” means any bona fide , unsolicited written Acquisition

Proposal for a majority of the outstanding shares of the Company Capital Stock or all or substantially all of the consolidated assets of the Company and its Subsidiaries (as defined in the Revised Model Business Corporation Act, it being understood that an Acquisition Proposal relating solely to the Company’s manufacturing software business or the Company’s hospitality software business shall not in any event constitute a Superior Proposal) that the Company Board shall have determined in good faith by majority vote (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel, and after taking into account, among other things, (i) the financial, legal and regulatory aspects of such Acquisition Proposal, (ii) the ability of the Person or group of Persons making such Acquisition Proposal to consummate the Acquisition Transaction contemplated thereby on the terms proposed, (iii) the likely timing of such transaction, (iv) the likelihood that the Acquisition Transaction contemplated thereby would be consummated, taking into account all approvals and consents required from Governmental Authorities, the Company Stockholders and other third parties in connection with and as a condition thereto, and (v) if any of the consideration contemplated by such Acquisition Proposal consists of cash, the extent to which the party or parties making such Acquisition Proposal has/have sufficient cash on hand or borrowing capacity to finance the Acquisition Transaction contemplated thereby, the extent to which such Acquisition Proposal is subject to third party financing and if so, whether such third party financing has been fully committed, any financing conditions related to any applicable third party financing and any financing conditions related to such Acquisition Proposal itself would be more favorable to the Company Stockholders (in their capacity as such) than the Merger as contemplated by the terms of this Agreement, including any alteration to the terms of this Agreement as agreed to in writing by Parent.

          (xxx) “ Tax ” means (i) any and all federal, state, local and foreign taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts, and (ii) any liability for the payment of any amounts of the type described in clause (i) as a result of any express or implied obligation to indemnify any other Person or as a result of any obligations under any agreements or arrangements with any other Person with respect to such amounts and including any liability for taxes of a predecessor entity.

          (yyy) “ Tax Returns ” means all returns, declarations, reports, statements and other documents required to be filed in respect of any Taxes.

          (zzz) “ Treasury Regulations ” means the treasury rules and regulations promulgated under the Code, as amended, or any successor statute, rules and regulations thereto.

     1.2 Additional Definitions . The following capitalized terms have the respective meanings ascribed thereto in the respective sections of this Agreement set forth opposite each of the capitalized terms below:

     1.3 Certain Interpretations .

          (a) Unless otherwise indicated, all references herein to Articles, Sections, Annexes, Exhibits or Schedules, shall be deemed to refer to Articles, Sections, Annexes, Exhibits or Schedules of or to this Agreement, as applicable.

          (b) Unless otherwise indicated, the words “include,” “includes” and “including,” when used herein, shall be deemed in each case to be followed by the words “without limitation.”

          (c) The table of contents and headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof.

          (d) When reference is made herein to a Person, such reference shall be deemed to include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires.

          (e) When reference is made herein to “ordinary course of business,” such reference shall be deemed to mean “ordinary course of the Company’s business and consistent with the Company’s past practices.”

          (f) Unless otherwise indicted, all references herein to the Subsidiaries of a Person shall be deemed to include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires.

          (g) The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any Law, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

ARTICLE II
THE MERGER

     2.1 The Merger . Upon the terms and subject to the conditions set forth in this Agreement and the applicable provisions of the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company (the “ Merger ”), the separate corporate existence of Merger Sub shall thereupon cease and the Company shall continue as the surviving corporation

of the Merger and as a wholly owned subsidiary of Parent. The Company, as the surviving corporation of the Merger, is sometimes referred to herein as the “ Surviving Corporation .”

     2.2 The Effective Time . Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date, Parent, Merger Sub and the Company shall cause the Merger to be consummated under the DGCL by filing a certificate of merger with the Secretary of State of the State of Delaware (the “ Delaware Secretary of State ”) in accordance with the applicable provisions of the DGCL (the “ Certificate of Merger ”) (the time of such filing and acceptance by the Delaware Secretary of State, or such later time as may be agreed in writing by Parent, Merger Sub and the Company and specified in the Certificate of Merger, being referred to herein as the “ Effective Time ”).

     2.3 The Closing . The consummation of the Merger (the “ Closing ”) shall take place at a closing to occur at the offices of Dorsey & Whitney LLP, on a date and at a time to be agreed upon by Parent, Merger Sub and the Company, which date shall be no later than the second (2 ^nd ) Business Day after the satisfaction or waiver (to the extent permitted hereunder) of the last to be satisfied or waived of the conditions set forth in Article VIII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder), of such conditions), or at such other location, date and time as Parent, Merger Sub and the Company shall mutually agree upon in writing. The date upon which the Closing shall actually occur pursuant hereto is referred to herein as the “ Closing Date .”

     2.4 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 of the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

     2.5 Certificate of Incorporation and Bylaws .

          (a) Certificate of Incorporation . At the Effective Time, subject to the provisions of Section 6.1(a) , the Certificate of Incorporation of the Company shall be amended and restated in its entirety to read identically to the Certificate of Incorporation of Merger Sub, as in effect immediately prior to the Effective Time, and such amended and restated Certificate of Incorporation shall become the Certificate of Incorporation of the Surviving Corporation until thereafter amended in accordance with the applicable provisions of the DGCL and such Certificate of Incorporation; provided , however , that at the Effective Time the Certificate of Incorporation of the Surviving Corporation shall be amended so that the name of the Surviving Corporation shall be the name of the Company (prior to the Merger).

          (b) Bylaws . At the Effective Time, subject to the provisions of Section 6.1(a) , the Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall become the Bylaws of the Surviving Corporation until thereafter amended in accordance with the applicable provisions of the DGCL, the Certificate of Incorporation of the Surviving Corporation and such Bylaws.

     2.6 Directors and Officers .

          (a) Directors . From and after the Effective Time, the initial directors of the Surviving Corporation shall be the directors of Merger Sub immediately prior to the Effective Time, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation until their respective successors are duly elected or appointed and qualified.

          (b) Officers . From and after the Effective Time, the initial officers of the Surviving Corporation shall be the officers of the Company immediately prior to the Effective Time, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation until their respective successors are duly appointed.

     2.7 Effect on Capital Stock .

          (a) Capital Stock . Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or the holders of any of the following securities, the following shall occur:

               (i)  Company Common Stock . Each share of Company Common Stock that is outstanding immediately prior to the Effective Time (other than (A) shares of Company Common Stock owned by Parent, Merger Sub or the Company, or by any direct or indirect wholly owned Subsidiary of Parent, Merger Sub or the Company, in each case immediately prior to the Effective Time and (B) any Dissenting Company Shares) shall be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Common Per Share Amount, without interest thereon, upon the surrender of the certificate representing such share of Company Common Stock in the manner provided in Section 2.8 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 2.10 ).

               (ii)  Company Series B Preferred Stock . Each share of Company Series B Preferred Stock that is outstanding immediately prior to the Effective Time (other than (A) shares of Company Series B Preferred Stock owned by Parent, Merger Sub or the Company, or by any direct or indirect wholly owned Subsidiary of Parent, Merger Sub or the Company, in each case immediately prior to the Effective Time, (B) any Dissenting Company Shares and (C) any Redeemed Series B Shares) shall be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to Series B Per Share Amount, without interest thereon, upon the surrender of the certificate representing such share of Company Series B Preferred Stock in the manner provided in Section 2.8 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 2.10 ).

               (iii)  Company Series C-1 Preferred Stock . Each share of Company Series C-1 Preferred Stock that is outstanding immediately prior to the Effective Time (other than (A) shares of Company Series C-1 Preferred Stock owned by Parent, Merger Sub or the Company, or by any direct or indirect wholly owned Subsidiary of Parent, Merger Sub or the Company, in each case immediately prior to the Effective Time and (B) any Dissenting

Company Shares) shall be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Series C-1 Per Share Amount, without interest thereon, upon the surrender of the certificate representing such share of Company Series C-1 Preferred Stock in the manner provided in Section 2.8 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 2.10 ).

               (iv)  Company Series D Preferred Stock . Each share of Company Series D Preferred Stock that is outstanding immediately prior to the Effective Time (other than (A) shares of Company Series D Preferred Stock owned by Parent, Merger Sub or the Company, or by any direct or indirect wholly owned Subsidiary of Parent, Merger Sub or the Company, in each case immediately prior to the Effective Time and (B) any Dissenting Company Shares) shall be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Series D Per Share Amount, without interest thereon, upon the surrender of the certificate representing such share of Company Series D Preferred Stock in the manner provided in Section 2.8 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 2.10 ).

               (v)  Cancellation of Treasury and Parent Company Capital Stock . Each share of Company Capital Stock owned by Parent or the Company (including those held by the Company as treasury stock), or by any direct or indirect wholly owned Subsidiary of Parent or the Company, in each case immediately prior to the Effective Time, shall be canceled and extinguished without any conversion thereof or consideration paid therefor.

               (vi)  Capital Stock of Merger Sub . Each share of common stock, par value $0.01 per share, of Merger Sub that is outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. Each certificate evidencing ownership of such shares of common stock of Merger Sub shall thereafter evidence ownership of shares of common stock of the Surviving Corporation.

          (b) Adjustment to Per Share Amount . Each Per Share Amount shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Capital Stock), cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Capital Stock occurring on or after the date hereof and prior to the Effective Time, in each case subject to the provisions of Section 5.1 , but excluding any change that results from any exercise of Company Stock Options or Company Warrants during such period.

          (c) Statutory Rights of Appraisal .

               (i) Notwithstanding anything to the contrary set forth in this Agreement, all shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time and held by Company Stockholders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly and validly exercised their statutory rights of appraisal in respect of such shares of Company Capital Stock

in accordance with Section 262 of the DGCL (collectively, “ Dissenting Company Shares ”) shall not be converted into, or represent the right to receive, the applicable Per Share Amount pursuant to Section 2.7(a) . Such Company Stockholders shall be entitled to receive payment of the appraised value of such Dissenting Company Shares in accordance with the provisions of Section 262 of the DGCL, except that all Dissenting Company Shares held by Company Stockholders who shall have failed to perfect or who shall have effectively withdrawn or lost their rights to appraisal of such Dissenting Company Shares under such Section 262 of the DGCL shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the applicable Per Share Amount, without interest thereon, upon surrender of the certificate or certificates that formerly evidenced such shares of Company Capital Stock in the manner provided in Section 2.8 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if required) in the manner provided in Section 2.10 ).

               (ii) The Company shall give Parent (A) prompt notice of any demands for appraisal received by the Company, withdrawals of such demands, and any other instruments served pursuant to Delaware Law and received by the Company in respect of Dissenting Company Shares and (B) the opportunity to participate in and, after the Effective Time, to direct all negotiations and proceedings with respect to demands for appraisal under Delaware Law in respect of Dissenting Company Shares. The Company shall not, except with the prior written consent of Parent or as required by Delaware Law, voluntarily make any payment with respect to any demands for appraisal, or settle or offer to settle any such demands for payment, in respect of Dissenting Company Shares.

          (d) Company Warrants . Immediately prior to the Effective Time, each of the Company Warrants that is outstanding and not exercised or canceled as of immediately prior to the Effective Time, will be canceled, and Parent shall cause the Surviving Corporation to pay to each holder thereof, reasonably promptly after the Effective Time, a single lump sum cash payment equal to the excess, if any, of (i) the product of the Common Per Share Amount and the number of shares of Company Common Stock subject to such Company Warrant, over (ii) the product of the exercise price per share with respect to each share of Company Common Stock subject to such Company Warrant and the number of shares of Company Common Stock subject to such Company Warrant. Such lump sum cash payment shall be made less any applicable withholding Tax at the Effective Time.

          (e) Company Options . Immediately prior to the Effective Time, each of the Company Options that is outstanding as of immediately prior to the Effective Time, whether or not theretofore vested or exercisable, will be accelerated and canceled, and Parent shall cause the Surviving Corporation to pay to each holder thereof, reasonably promptly after the Effective Time, a single lump sum cash payment equal to the excess, if any, of (i) the product of the Common Per Share Amount and the number of shares of Company Common Stock subject to such Company Options, over (ii) the product of the exercise price per share with respect to each share of Company Common Stock subject to such Company Option and the number of shares of Company Common Stock subject to such Company Option. Such lump sum cash payment shall be made less any applicable withholding Tax at the Effective Time. Prior to the Effective Time, the Company shall take or cause to be taken any and all actions reasonably necessary to give effect to the treatment of the Company Options pursuant to this Section 2.7(e) .

          (f) Company Stock-Based Awards . Immediately prior to the Effective Time, each Company Stock-Based Award that is outstanding as of immediately prior to the Effective Time, whether or not theretofore vested, will be accelerated and canceled, and Parent shall cause the Surviving Corporation to pay to each holder thereof, reasonably promptly after the Effective Time, a single lump sum cash payment equal to the product of (i) the Common Per Share Amount, and (ii) the number of shares of Company Common Stock subject to issuance upon settlement of such Company Stock-Based Award. Such lump sum cash payment shall be made less any applicable withholding Tax at the Effective Time. Prior to the Effective Time, the Company shall take or cause to be taken any and all actions reasonably necessary to give effect to the treatment of the Company Stock-Based Awards pursuant to this Section 2.7(f) .

     2.8 Exchange of Certificates .

          (a) Paying Agent . Prior to the Effective Time, Parent shall select a bank or trust company reasonably acceptable to the Company to act as the paying agent for the Merger (the “ Paying Agent ”).

          (b) Exchange Fund . Promptly following the Effective Time, but in no event later than one (1) Business Day thereafter, Parent shall deposit (or cause to be deposited) with the Paying Agent, for payment to the holders of shares of Company Capital Stock pursuant to the provisions of this Article II , an amount of cash equal to the aggregate consideration to which holders of Company Capital Stock become entitled under this Article II . Until disbursed in accordance with the terms and conditions of this Agreement, such funds shall be invested by the Paying Agent, as directed by Parent or the Surviving Corporation, solely in obligations of or guaranteed by the United States or obligations of an agency of the United States which are backed by the full faith and credit of the United States, in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Services Inc. or Standard & Poor’s Corporation, or in deposit accounts, certificates of deposit or banker’s acceptances of, repurchase or reverse repurchase agreements with, or Eurodollar time deposits purchased from, commercial banks, each of which has capital, surplus and undivided profits aggregating more than $500 million (based on the most recent financial statements of the banks which are then publicly available at the SEC or otherwise) (such cash amount being referred to herein as the “ Exchange Fund ”). Any interest and other income resulting from investments shall be paid to the Surviving Corporation. To the extent that there are any losses with respect to any such investments, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to promptly pay the cash amounts contemplated by this Article II , Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make such payments contemplated by this Article II . The Exchange Fund shall not be used for any other purpose except as provided in this Agreement.

          (c) Funds for Company Options, Company Stock-Based Awards and Company Warrants . Promptly following the Effective Time, but in no event later than one (1) Business Day thereafter, Parent shall deposit (or cause to be deposited) with the Surviving Corporation an amount of cash equal to the aggregate consideration to which holders of Company Options, Company Stock-Based Awards and Company Warrants become entitled under this Article II .

          (d) Payment Procedures . Reasonably promptly following the Effective Time, Parent and the Surviving Corporation shall cause the Paying Agent to mail to each holder of record (as of immediately prior to the Effective Time) of a certificate or certificates (the “ Certificates ”), which immediately prior to the Effective Time represented outstanding shares of Company Capital Stock (other than treasury shares, shares held by Parent, Merger Sub or any Subsidiary of the Company, Dissenting Company Shares and Redeemed Series B Shares) (i) a letter of transmittal in customary form (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable Per Share Amount payable in respect thereof pursuant to the provisions of this Article II . Upon surrender of Certificates for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, the holders of such Certificates shall be entitled to receive in exchange therefor an amount in cash equal to the product obtained by multiplying (x) the aggregate number of shares of Company Capital Stock evidenced by such Certificate, by (y) the applicable Per Share Amount (less any applicable withholding Taxes payable in respect thereof), and the Certificates so surrendered shall forthwith be canceled. The Paying Agent shall accept such Certificates upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. No interest shall be paid or accrued for the benefit of holders of the Certificates on the applicable Per Share Amount payable upon the surrender of such Certificates pursuant to this Section 2.8 . Until so surrendered, outstanding Certificates shall be deemed from and after the Effective Time, to evidence only the right to receive the applicable Per Share Amount, without interest thereon, payable in respect thereof pursuant to the provisions of this Article II . Promptly following the receipt of a letter of transmittal and the Certificate(s) from a holder of record, Parent and the Surviving Corporation shall cause the Paying Agent to pay to such holder of record (as of immediately prior to the Effective Time) of outstanding shares of Company Capital Stock (other than treasury shares, shares held by Parent, Merger Sub or any Subsidiary of the Company, Dissenting Company Shares and Redeemed Series B Shares) represented by book-entry on the records of the Company or the Companys transfer agent on behalf of the Company, an amount in cash equal to the product obtained by multiplying (x) the aggregate number of shares of Company Capital Stock held by such holder immediately prior to the Effective Time and (y) the applicable Per Share Amount, less any applicable withholding, Taxes payable in respect thereof. Notwithstanding anything herein to the contrary, Consideration payable in respect of each Company Warrants, Company Options and Company Stock-Based Awards shall be payable pursuant to Section 2.7 and Section 2.8(c) and not pursuant to this Section 2.8(d) , and no deposit shall be made with the Paying Agent by Parent in respect of the Company Warrants, Company Options and Company Stock-Based Awards.

          (e) Transfers of Ownership . In the event that a transfer of ownership of shares of Company Capital Stock is not registered in the stock transfer books or ledger of the Company, or if the Per Share Amount is to be paid in a name other than that in which the Certificates surrendered in exchange therefor are registered in the stock transfer books or ledger of the Company, the applicable Per Share Amount may be paid to a Person other than the Person in whose name the Certificate so surrendered is registered in the stock transfer books or ledger of the Company only if such Certificate is properly endorsed and otherwise in proper form for surrender and transfer and the Person requesting such payment has paid to Parent (or any agent

designated by Parent) any transfer or other Taxes required by reason of the payment of the applicable Per Share Amount to a Person other than the registered holder of such Certificate, or established to the satisfaction of Parent (or any agent designated by Parent) that such transfer or other Taxes have been paid or are otherwise not payable.

          (f) Required Withholding . Each of the Paying Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any cash amounts payable pursuant to this Agreement to any holder or former holder of shares of Company Capital Stock, Company Options, Company Stock-Based Awards or Company Warrants such amounts as may be required to be deducted or withheld therefrom under United States federal or state, local or foreign Tax law. To the extent that such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.

          (g) No Liability . Notwithstanding anything to the contrary set forth in this Agreement, none of the Paying Agent, Parent, the Surviving Corporation or any other party hereto shall be liable to a holder of shares of Company Capital Stock for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.

          (h) Distribution of Exchange Fund to Parent . Any portion of the Exchange Fund that remains undistributed to the holders of the Certificates on the date that is nine (9) months after the Effective Time shall be delivered to Parent upon demand, and any holders of shares of Company Capital Stock that were issued and outstanding immediately prior to the Merger who have not theretofore surrendered their Certificates evidencing such shares of Company Capital Stock for exchange pursuant to the provisions of this Section 2.8 shall thereafter look for payment of the applicable Per Share Amount payable in respect of the shares of Company Capital Stock evidenced by such Certificates solely to Parent, as general creditors thereof, for any claim to the applicable Per Share Amount (without interest thereon) to which such holders may be entitled pursuant to the provisions of this Article II .

     2.9 No Further Ownership Rights in Company Capital Stock . From and after the Effective Time, all shares of Company Capital Stock shall no longer be outstanding and shall automatically be canceled, retired and cease to exist, and each holder of a Certificate theretofore representing any shares of Company Capital Stock (other than Dissenting Company Shares) shall cease to have any rights with respect thereto, except the right to receive the applicable Per Share Amount payable therefor upon the surrender thereof in accordance with the provisions of Section 2.8 . The Per Share Amount paid in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to such shares of Company Capital Stock. From and after the Effective Time, there shall be no further registration of transfers on the records of the Surviving Corporation of shares of Company Capital Stock that were issued and outstanding immediately prior to the Effective Time, other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this Article II .

     2.10 Lost, Stolen or Destroyed Certificates . In the event that any Certificates shall have been lost, stolen or destroyed, the Paying 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, the applicable Per Share Amount payable in respect thereof pursuant to Section 2.7 ; provided , however , that Parent may, in its discretion and as a condition precedent to the payment of such Per Share Amount, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.

     2.11 Necessary Further Actions . If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, the directors and officers of the Company and Merger Sub shall take all such lawful and necessary action.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     Except as set forth in the corresponding section of the disclosure letter dated the date hereof and delivered by the Company to Parent concurrently with the execution of this Agreement (the “ Company Disclosure Letter ”), the Company hereby represents and warrants to Parent and Merger Sub as of the date hereof as follows:

     3.1 Authorization . The Company has all requisite power and authority to execute and deliver this Agreement and subject, in the case of the consummation of the Merger, to obtain the Requisite Stockholder Approval, to consummate the transactions contemplated hereby and to perform its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no additional corporate proceedings on the part of the Company are necessary to authorize this Agreement or the consummation of the transactions contemplated hereby other than obtaining the Requisite Stockholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforceability (a) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (b) is subject to general principles of equity.

     3.2 Requisite Stockholder Approval . The affirmative vote of (i) the holders of a majority of the outstanding shares of Company Capital Stock, voting together as a class (the “ Requisite Stockholder Approval ”) and (ii) subject to the Company’s repurchase rights provided in the Series B Certificate of Designation, the holders of a majority of the outstanding shares of Series B Preferred Stock (the “ Series B Preferred Approval ”) are the only votes of the holders of any class or series of Company Capital Stock that are necessary under applicable Law and the Company’s Certificate of Incorporation (including any certificates of designation for Company Preferred Stock) and Bylaws to adopt and approve this Agreement and consummate the transactions contemplated by this Agreement.

     3.3 Non-Contravention and Required Consents . The execution and delivery by the Company of this Agreement, the consummation by the Company of the transactions

contemplated hereby and the compliance by the Company with any of the provisions hereof do not and will not (i) violate or conflict with any provision of the Certificate of Incorporation or Bylaws of the Company or any of its Subsidiaries, (ii) subject to obtaining such Consents set forth in Section 3.3 of the Company Disclosure Letter, violate, conflict with, require any consent or other action by any Person under, or result in the breach of or constitute a default (or an event which with or without notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is entitled to under any provision of any Material Contract, (iii) assuming compliance with the matters referred to in Section 3.4 and, in the case of the consummation of the Merger, subject to obtaining the Requisite Stockholder Approval, violate or conflict with any Law or Order applicable to the Company or any of its Subsidiaries or by which any of their properties or assets are bound or (iv) result in the creation of any Lien upon any of the properties or assets of the Company or any of its Subsidiaries; other than, in the case of clauses (ii), (iii) and (iv), any such violations, conflicts, breaches, defaults, accelerations, rights or Liens that individually or in the aggregate would not reasonably be expected to constitute a Company Material Adverse Effect.

     3.4 Required Governmental Approvals . No consent, approval, Order or authorization of, or filing or registration with, or notification to (any of the foregoing being a “ Consent ”), any Governmental Authority is required on the part of the Company in connection with the execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby, except (i) the filing and recordation of the Certificate of Merger with the Delaware Secretary of State and such filings with Governmental Authorities to satisfy the applicable laws of states in which the Company and its Subsidiaries are qualified to do business, (ii) such filings and approvals as may be required by any federal or state securities laws, including compliance with any applicable requirements of the Exchange Act, (iii) compliance with any applicable requirements of the HSR Act and any applicable foreign Antitrust Laws and (iv) such other Consents of any Governmental Authority, the failure of which to obtain would not, individually or in the aggregate, have a Company Material Adverse Effect.

     3.5 Organization and Standing . The Company is a corporation duly organized, validly existing and in good standing under Delaware Law. Each of the Company’s Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization (to the extent the “good standing” concept is applicable in the case of any jurisdiction outside the United States). Each of the Company and its Subsidiaries has the requisite corporate power and authority and all Permits needed to carry on its respective business as it is presently being conducted and to own, lease or operate its respective properties and assets. Each of the Company and its Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification necessary (to the extent the “good standing” concept is applicable in the case of any jurisdiction outside the United States), except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a Company Material Adverse Effect. The Company has delivered or made available to Parent complete and correct copies of (a) the certificates of incorporation and Bylaws or other constituent documents, as amended to date, of the Company and the Subsidiaries listed on Section 3.5 of the Company Disclosure Schedule and (b) the final approved minutes of all meetings of the Company

Stockholders, the Company Board and each committee of the Company Board (other than minutes of such meetings that are related to the Company Board’s evaluation of its strategic alternatives, business combination transactions and other related matters). Neither the Company nor any of its Subsidiaries is in violation of its Certificate of Incorporation, Bylaws or other applicable constituent documents, except for such violations that would not, individually or in the aggregate, have a Company Material Adverse Effect.

     3.6 Subsidiaries .

          (a) Section 3.6(a) of the Company Disclosure Letter contains a complete and accurate list of the name, jurisdiction of organization, capitalization and schedule of stockholders of each Subsidiary of the Company. Except for the Subsidiaries listed on Section 3.6(a) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries owns, directly or indirectly, any capital stock of, or other equity or voting interest of any nature in, or any interest convertible into or exchangeable or exercisable for capital stock of, any Person.

          (b) All of the outstanding capital stock of, or other equity or voting interest in, each Subsidiary of the Company (i) have been duly authorized, validly issued and are fully paid and nonassessable and (ii) are owned, directly or indirectly, by the Company, free and clear of all Liens and free of any other restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity or voting interest) that would prevent the operation by the Surviving Corporation of such Subsidiary’s business as presently conducted.

          (c) There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from the Company or any of its Subsidiaries, or that obligate the Company or any of its Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “ Subsidiary Securities ”) or (iv) other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any shares of any Subsidiary of the Company. There are no outstanding agreements of any kind which obligate the Company or any of its Subsidiaries to issue, transfer, repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities (or cause any of the foregoing to occur).

     3.7 Capitalization .

          (a) The authorized capital stock of the Company consists of (i) 110,000,000 shares of Company Common Stock and (ii) 15,000,000 shares of Company Preferred Stock, (A) 1,000,000 of which are designated Series A Preferred Stock, (B) 4,331,540 of which are designated Series B Preferred Stock, (C) 18,000 of which are designated Series C Preferred Stock, (D) 18,000 of which are designated Series C-1 Preferred Stock and (E) 6,673 of which are

designated Series D Preferred Stock. As of June 10, 2009: (v) 44,866,535 shares of Company Common Stock were issued and outstanding, (w) no shares of Series A Preferred Stock were issued and outstanding, (w) 4,331,540 shares of Series B Preferred Stock were issued and outstanding in the amounts and to the stockholders listed on Schedule 3.7(a) , (x) no shares of Series C Preferred Stock were issued and outstanding, (y) 18,000 shares of Series C-1 Preferred Stock were issued and outstanding in the amounts and to the stockholders listed on Schedule 3.7(a) and (z) 6,000 shares of Series D Preferred Stock were issued and outstanding in the amounts and to the stockholders listed on Schedule 3.7(a) and there were no shares of Company Capital Stock held by the Company as treasury shares. All outstanding shares of Company Capital Stock are validly issued, fully paid, nonassessable and free of any preemptive rights. As of the date of this Agreement, the aggregate Series B Liquidation Preference Payment (as defined in the Series B Certificate of Designation) of all shares of Series B Preferred Stock outstanding is $4,591,432, the aggregate Series C-1 Liquidation Preference (as defined in the Series C-1 Certificate of Designation) of all shares of Series C-1 Preferred Stock outstanding is $18,648,000 and the aggregate Series D Liquidation Preference (as defined in the Series D Certificate of Designation) of all shares of Series D Preferred Stock outstanding is $6,215,999. The conversion price of (i) Company Series B Preferred Stock is $1.024 (ii) Company Series C-1 Preferred Stock is $1.964 and (iii) Company Series D Preferred Stock is $1.634. Since June 10, 2009, the Company has not issued any shares of Company Capital Stock other than pursuant to the exercise of Stock Options or settlement of Company Stock-Based Awards granted under a Company Stock Plan.

          (b) The Company has reserved 16,900,000 shares of Company Common Stock for issuance under the Company Stock Plans. As of June 10, 2009, with respect to the Company Stock Plans, there were (i) outstanding Company Options with respect to 7,698,625 shares of Company Common Stock, (ii) 5,651,619 shares of Company Common Stock subject to Company Stock-Based Awards and (iii) Company Options to purchase an aggregate of 1,507,500 shares of Company Common Stock with an exercise price less than the Common Per Share Amount, the weighted average exercise price of which is $0.48, and, since such date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Options or Company Stock-Based Awards, other than as permitted by Section 5.1(b) . As of June 10, 2009, there were outstanding Company Warrants with respect to 6,113,518 shares of Company Common Stock and Company Option issued outside the Company Stock Plans with respect to 983,765 shares of Company Common Stock in the amounts, to the holders and at the exercise prices listed on Schedule 3.7(b). Except for the Company Stock Plan, the Company has never adopted or maintained any other Company stock option plan or other plan providing for equity compensation (whether payable in stock, cash or other property) of any Person. Other than as listed in Section 3.7(b) of the Company Disclosure Letter, the Company has not granted any options or other compensation rights to purchase or acquire Company Common Stock other than pursuant to the Company Stock Plan. Section 3.7(b)(i) of the Company Disclosure Letter sets forth for each outstanding Company Option or Company Stock-Based Award, the name of the holder of such option or award, the number of shares of Company Common Stock issuable upon the exercise of such option or settlement of such award, the exercise price of any such option, the date on which such option or award was granted, the vesting schedule for such option or award (including any acceleration provisions with respect thereto), including the extent unvested and vested to date, and whether any such option is intended to qualify as an incentive stock option as defined in Section 422 of the Code. Except as set forth on Section 3.7(b) of the Company Disclosure Letter, each Company Option has been duly approved by the Company Board and properly recorded and reflected in the Company

financial statements that appear in the Company SEC Reports. Section 3.7(b)(ii) of the Company Disclosure Letter sets forth for each outstanding Company Warrant, the name of the holder of such Company Warrant, the number of shares of Company Common Stock issuable upon settlement of such Company Warrant, the date on which such Company Warrant was granted, and, if applicable, the vesting schedule for such Company Warrant (including any acceleration provisions with respect thereto). All Company Options, Company Stock-Based Awards and Company Warrants have been issued in compliance with all applicable federal, state and foreign securities laws. Except for the Company Options, Company Stock-Based Awards and Company Warrants set forth in Section 3.7(b)(i) and Section 3.7(b)(ii) of the Company Disclosure Letter, respectively, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, transfer, deliver, sell, repurchase or redeem, or cause to be issued, transferred, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. The forms of agreement pursuant to which such Company Options, Company Stock-Based Awards and Company Warrants have been issued have been delivered to Parent. There are no outstanding or authorized phantom stock, profit participation or other similar equity-based rights (whether payable in stock, cash or other property) with respect to the Company. Except as set forth on Section 3.7(b) of the Company Disclosure Letter, all holders of Company Options and Company Stock-Based Awards are current employees of the Company. True and complete copies of all agreements and instruments relating to or issued under the Company Stock Plan have been provided to Parent and such agreements and instruments have not been amended, modified or supplemented, and there is no Contract to amend, modify or supplement such agreements or instruments in any case from the form provided to Parent.

          (c) Except as set forth in this Section 3.7 , there are (i) no outstanding shares of capital stock of, or other equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iii) no outstanding options, warrants, rights or other commitments or agreements to acquire from the Company, or that obligates the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, the Company (the items in clauses (i), (ii), (iii) and (iv), together with the Company Capital Stock, being referred to collectively as “ Company Securities ”) and (v) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Company Securities. There are no outstanding agreements of any kind which obligate the Company or any of its Subsidiaries to issue, transfer, repurchase, redeem or otherwise acquire any Company Securities (or cause any of the foregoing to occur). Except as set forth on Section 3.7(c) of the Company Disclosure Letter, there are no rights, agreements or arrangements of any character which provide for any stock appreciation or similar right or grant any right to share in the equity, income, revenue or cash flow of the Company or its Subsidiaries.

          (d) Neither the Company nor any of its Subsidiaries is a party to any agreement

restricting the transfer of, relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any securities of the Company. Section 3.7(d) of the Company Disclosure Letter sets forth a list of all stockholders agreements, voting trusts and other agreements or understandings relating to voting or disposition of any shares of the Company Capital Stock or the capital stock of its Subsidiaries or granting to any person or group of persons the right to elect, or to designate or nominate for election, a member of the Company Board or the board of directors of any of its Subsidiaries.

          (e) The consideration to be received by each of the Company Stockholders pursuant to Section 2.7(a) shall be consistent with and will not otherwise violate any terms of the Company’s Certificate of Incorporation (including any certificates of designation for Company Preferred Stock) or Bylaws.

     3.8 Company SEC Reports . Since September 30, 2006, the Company has timely filed or furnished all forms, reports and documents with the SEC that have been required to be filed or furnished by it under applicable Laws prior to the date hereof, and the Company will timely file or furnish prior to the Effective Time all forms, reports and documents with the SEC that are required to be filed or furnished by it under applicable Laws prior to such time (all such forms, reports and documents, the “ Company SEC Reports ”). Each Company SEC Report was prepared in accordance with and complied, or will be prepared in accordance with and comply, as the case may be, as of its filing date, in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, each as in effect on the date such Company SEC Report was, or will be, filed or furnished. True, complete and correct copies of all Company SEC Reports filed prior to the date hereof have been furnished to Parent or are publicly available in the Electronic Data Gathering, Analysis and Retrieval (EDGAR) database of the SEC. As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded filing), each Company SEC Report did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading unless corrected in a later filed Company SEC Report. None of the Company’s Subsidiaries is required to file any forms, reports or other documents with the SEC. No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley Act with respect to any Company SEC Report. Neither the Company nor any of its executive officers has received notice from any Governmental Authority challenging or questioning the accuracy, completeness, form or manner of filing of such certifications, and as of the date hereof, there are no material unresolved comments issued by the staff of the SEC with respect to any of the Company SEC Reports.

     3.9 Company Financial Statements .

          (a) The audited consolidated financial statements and the unaudited consolidated interim financial statements of the Company and its Subsidiaries filed in or furnished with or incorporated by reference in the Company SEC Reports comply or will comply, as the case may be, in all material respects with the published rules and regulations of the SEC with respect thereto, and have been or will be, as the case may be, prepared in accordance with GAAP

consistently applied during the periods and at the dates involved (except as may be indicated in the notes thereto), and fairly present in all material respects, or will present in all material respects, as the case may be, the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended.

          (b) The Company and each of its Subsidiaries has established and maintains, adheres to and enforces a system of internal accounting controls that are effective in providing assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP, including policies and procedures that (i) require the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, (ii) provide assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with appropriate authorizations of management and the Company Board and (iii) provide assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and its Subsidiaries. Except as set forth on Section 3.9(b) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, the Company’s independent auditors, has identified or been made aware of (A) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company and its Subsidiaries (as defined in Rule 13a-15(f) under the Exchange Act) or (B) any fraud (whether or not material) that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company and its Subsidiaries, and the Company has disclosed to the Company’s independent auditors and the audit committee of the Company Board any of the foregoing.

          (c) Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, partnership agreement or any similar Contract (including any Contract relating to any transaction, arrangement or relationship between or among the Company or any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand (such as any arrangement described in Section 303(a)(4) of Regulation S-K of the SEC)) where the purpose or effect of such arrangement is to avoid disclosure of any material transaction involving the Company or any its Subsidiaries in the Company’s audited consolidated financial statements and unaudited consolidated interim financial statements.

          (d) The Company has reviewed the impact of recently issued accounting pronouncements by the Financial Accounting Standards Board (the “ FASB ”), which the Company is required to adopt, such as FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes — an interpretation of FASB Statement No. 109 (“ FIN 48 ”) and the adoption of such accounting standards would not have a Company Material Adverse Effect.

     3.10 No Undisclosed Liabilities . Neither the Company nor any of its Subsidiaries has any liabilities or obligations of any kind or nature (whether accrued, absolute, contingent, determinable or otherwise) other than (a) Liabilities reflected or otherwise reserved against in the Company Balance Sheet, (b) Liabilities arising under this Agreement or incurred in connection

with the transactions contemplated by this Agreement or (c) Liabilities that are not or would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect.

     3.11 Absence of Certain Changes .

          (a) Since September 30, 2008 through the date hereof, except for actions expressly contemplated by this Agreement, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice, and there has not been or occurred, and there does not exist, any event, occurrence, development or state of circumstances or facts that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

          (b) Since September 30, 2008 through the date hereof, neither the Company nor any of its Subsidiaries has taken any action that would be prohibited by Section 5.1(b) if proposed to be taken after the date hereof.

     3.12 Material Contracts .

          (a) For all purposes of and under this Agreement, a “ Material Contract ” means:

               (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to the Company and its Subsidiaries;

               (ii) any employment, severance or consulting Contract (in each case, under which the Company has continuing obligations as of the date hereof) with any current or former executive officer, independent contractor or employee of the Company or its Subsidiaries or member of the Company Board providing for fees or an annual base compensation in excess of $150,000;

               (iii) any Contract or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased or decreased, or the vesting of benefits of which will be accelerated, by the consummation of the transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of or otherwise altered by any of the transactions contemplated by this Agreement;

               (iv) any Contract in which the Company or any of its Subsidiaries has (A) granted most favored customer pricing provisions (solely with respect to the Company’s top ten (10) customers as measured by revenue for each of the SAP business, base manufacturing business and the hospitality business) or (B) any covenant (1) limiting the right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any Intellectual Property Rights or technology, to compete with or solicit for employment any Person in any geographic area or line of business, or to discontinue the marketing, sale, licensing or support of any Company Product or service, (2) granting any exclusive rights, (3) prohibiting the Company or any of its Subsidiaries (or, after the Closing Date, Parent) from engaging in business with any Person or levying a fine, charge or other payment for doing so or (4) otherwise prohibiting or

limiting the right of the Company or its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or subassemblies;

               (v) any Contract (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of assets other than in the ordinary course of business consistent with past practices or (B) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any other Person or other business enterprise other than the Company’s Subsidiaries;

               (vi) any indebtedness, mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of $250,000, or Liens on any material asset or material group of assets of the Company or its Subsidiaries, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly owned Subsidiaries, in each case in the ordinary course of business consistent with past practices;

               (vii) all Contracts with the Company’s top ten dealers, resellers or distributors for each of the SAP business, base manufacturing business and the hospitality business, as measured by revenue for the six-month period ended March 31, 2009;

               (viii) all Contracts with the Company’s top ten customers for each of the SAP business, base manufacturing business and the hospitality business, as measured by revenue for the six-month period ended March 31, 2009;

               (ix) all Contracts with the Company’s top ten customers for support and maintenance for each of the SAP business, base manufacturing business and the hospitality business, as measured by revenue for the six-month period ended March 31, 2009;

               (x) all Company Intellectual Property Agreements, except those not required to be set forth in Section 3.15(d) of the Company Disclosure Letter;

               (xi) all Leases for Assets with annual lease payments in excess of $150,000; or

               (xii) any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would be reasonably expected to have a Company Material Adverse Effect and is not disclosed pursuant to clauses (i) through (ix) above.

          (b) Section 3.12(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to or by which the Company or any of its Subsidiaries is a party or is bound. Prior to the date hereof, the Company has delivered or made available to Parent and Merger Sub a complete and correct copy of each Material Contract (including any amendments thereto) in existence as of the date hereof.

          (c) Each Material Contract is valid and binding on the Company (and/or each such Subsidiary of the Company party thereto) and, to the Knowledge of the Company, each other party thereto, and each Material Contract is in full force and effect, and neither the

Company nor any of its Subsidiaries party thereto, nor, to the Knowledge of the Company, any other party thereto, is in breach of, or default under, any such Material Contract, and no event has occurred that with or without notice or lapse of time or both would entitle such other party to terminate or modify such Material Contract or constitute such a breach or default thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto.

     3.13 Real Property .

          (a) Neither the Company nor any of its Subsidiaries owns any real property, nor have they ever owned any real property.

          (b) Section 3.13(b) of the Company Disclosure Letter contains a complete and accurate list of all of the existing leases, subleases or other agreements (collectively, the “ Leases ”) under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any real property (such property, the “ Leased Real Property ”) including, with respect to each Lease, the name of the lessor and the date of the Lease and each amendment thereto. The Company has heretofore delivered or made available to Parent a complete and accurate copy of all Leases (including all modifications, amendments, supplements, waivers and side letters thereto). The Company or its Subsidiaries have and own valid leasehold estates in the Leased Real Property, free and clear of all Liens other than Permitted Liens.

          (c) Section 3.13(c) of the Company Disclosure Letter contains a complete and accurate list of all of the existing material Leases whereby the Company or any of its Subsidiaries grants to any Person a right to use or occupy, now or in the future, any of the Leased Real Property.

          (d) All of the Leases set forth in Section 3.13(b) or Section 3.13(c) of the Company Disclosure Letter are in full force and effect and neither the Company nor any of its Subsidiaries is in material breach of or default under, or has received written notice of any material breach of or default under, any material Lease, and, to the Knowledge of the Company, no event has occurred that with or without notice or lapse of time or both would constitute a material breach or default thereunder by the Company, any of its Subsidiaries or any other party thereto.

     3.14 Personal Property and Assets . The machinery, equipment, furniture, fixtures and other tangible personal property and assets owned, leased or used or held for use by the Company or any of its Subsidiaries, including the Leased Real Property (the “ Assets ”) are in good condition and repair in all material respects and are, in the aggregate, sufficient and adequate to carry on their respective businesses in all material respects as presently conducted, and the Company and its Subsidiaries are in possession of and have good title to, or valid leasehold interests in or valid rights under contract to use, such Assets that are material to the Company and its Subsidiaries, taken as a whole, free and clear of all Liens other than Permitted Liens.

     3.15 Intellectual Property .

          (a) Section 3.15(a)(i) and Section 3.15(a)(ii) of the Company Disclosure Letter contain, respectively, a complete and accurate list of (i) all products and services currently marketed, sold, maintained or distributed by the Company or its Subsidiaries or which have been marketed, sold, maintained or distributed by the Company or its Subsidiaries in the two years prior to the date hereof and (ii) all products and service offerings that are in development as of the date hereof and that the Company expects or intends to make available commercially within twelve months after the date hereof (such products described in clauses (i) and (ii), the “ Company Products ”).

          (b) Section