AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

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Corporate Trust & Escrow Services | MICROEDGE HOLDINGS, LLC, MICROEDGE MERGER SUB, LLC | New York Business Corporation | US Bank National Association | Vista Equity Partners

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Title: AGREEMENT AND PLAN OF MERGER
Governing Law: Delaware Date: 7/28/2009
Industry: Computer Services Law Firm: Wilson Sonsini;Kirkland Ellis Sector: Technology

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

DATED AS OF JULY 27, 2009

BY AND AMONG

MICROEDGE HOLDINGS, LLC, MICROEDGE MERGER SUB, LLC,

MICROEDGE, INC., ADVENT SOFTWARE, INC.,

AND

WITH RESPECT TO ARTICLES VII, VIII AND IX ONLY,

U.S. BANK NATIONAL ASSOCIATION AS ESCROW AGENT

TABLE OF CONTENTS

		Page

ARTICLE I CERTAIN DEFINITIONS		1

1.1	Definitions	1
1.2	Construction of Certain Terms and Phrases	7

ARTICLE II SALE OF SHARES AND CLOSING		7

2.1	The Merger	7
2.2	Closing	7
2.3	Effective Time	8
2.4	Effect of the Merger	8
2.5	Organizational Documents; Directors and Officers	8
2.6	Conversion of Securities	8
2.7	Exchange of Certificates	9
2.8	Payments at Closing	9
2.9	Working Capital Adjustment	10
2.10	Indebtedness, Transaction Expenses	11

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY		11

3.1	Organization and Qualification	11
3.2	Capital Stock	12
3.3	Authority	12
3.4	Subsidiaries	13
3.5	No Conflict	13
3.6	Consents	14
3.7	Financial Statements and Condition	14
3.8	Receivables	14
3.9	Absence of Certain Changes or Events	15
3.10	Title to Properties; Absence of Liens and Encumbrances; Condition of Equipment; Customer Information	17
3.11	Other Agreements	18
3.12	Environmental Matters	20
3.13	Litigation	20
3.14	Compliance with Laws	20
3.15	Intellectual Property	21
3.16	Tax Matters	23
3.17	Employment and Benefit Matters	24
3.18	Transactions with Related Parties	26
3.19	Brokers/Transaction Expenses	27
3.20	Absence of Violation	27
3.21	Customers and Suppliers	27
3.22	Corporate Information	28

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER		28

4.1	Organization and Qualification	28
4.2	Authority	28
4.3	No Conflict	29
4.4	Title to the Shares	29
4.5	Brokers	29

ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB		29

5.1	Organization and Qualification	29
5.2	Authority	29
5.3	No Conflict; Required Filings and Consents	30
5.4	Ownership of Merger Sub; No Prior Activities	30
5.5	Brokers	30
5.6	Financing	30
5.7	Limited Guarantee	30

ARTICLE VI CONDUCT PENDING CLOSING; CERTAIN POST CLOSING MATTERS		31

6.1	Conduct of Business	31
6.2	Certain Restrictions	31
6.3	Access; Documents; Supplemental Information	33
6.4	No Solicitation	34
6.5	Reasonable Efforts; Notification	35
6.6	Notification of Certain Matters	35
6.7	Employee Benefits	36
6.8	Monthly Financial Statements	37
6.9	Non-Competition; Non-Solicitation	37
6.10	Intercompany Accounts	39
6.11	Stockholder Approval	39
6.12	Accounting System	39
6.13	Confidentiality Agreements	39

ARTICLE VII CONDITIONS TO OBLIGATIONS OF THE PARTIES		39

7.1	Obligations of the Parties	39
7.2	Obligations of Parent and Merger Sub	40
7.3	Obligations of Company and Stockholder	42

ARTICLE VIII SURVIVAL OF REPRESENTATIONS AND WARRANTIES		43

8.1	Survival of Representations and Warranties	43
8.2	Indemnification	43
8.3	Maximum Payments; Remedy	44
8.4	Escrow Arrangements	45

ARTICLE IX TERMINATION		50

9.1	Termination by Mutual Consent; Termination by Either Party	50
9.2	Termination by Parent	51
9.3	Termination by the Company	51
9.4	Notice of Termination; Effect of Termination	51

ARTICLE X MISCELLANEOUS		52

10.1	Expenses	52
10.2	Public Announcements	52
10.3	Contents of Agreement; Parties in Interest; Etc	52
10.4	Assignment and Binding Effect	52
10.5	Notices	52
10.6	Amendment	54

10.7	Governing Law	54
10.8	No Benefit to Others	54
10.9	Severability	54
10.10	Schedules and Annexes	54
10.11	Extensions	55
10.12	Counterparts; Signature Delivery	55
10.13	Tax Matters	55
10.14	Refunds; Waiver of Carrybacks	56
10.15	USA Patriot Act Compliance	57

iii

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of July 27, 2009 (the “ Agreement ”), is made and entered into by and among Microedge Holdings, LLC, a Delaware limited liability company (“ Parent ”), Microedge Merger Sub, LLC, a New York limited liability company (“ Merger Sub”) , MicroEdge, Inc., a New York corporation (the “ Company ”), Advent Software, Inc., a Delaware corporation (“ Stockholder ”), and with respect to ARTICLES VII , VIII and IX only, U.S. Bank National Association (“ Escrow Agent ”). All capitalized terms that are used in this Agreement shall have the respective meanings ascribed thereto in ARTICLE I hereof.

RECITALS

WHEREAS, the respective Board of Directors or Managers, as appropriate, of the Company, Merger Sub and Parent have approved and declared fair and advisable the merger of the Company with and into the Merger Sub (the “ Merger ”) upon the terms and subject to the conditions of this Agreement and in accordance with the New York Business Corporation Law (the “ NYBCL ”);

WHEREAS , the respective Boards of Directors or Managers, as appropriate, of the Company, Parent and Merger Sub have determined that the Merger is in furtherance of, and consistent with, their respective business strategies and is in the best interest of their respective securityholders, and have approved and declared advisable or adopted this Agreement and the Merger;

WHEREAS , concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of the Company to enter into this Agreement, Parent has delivered to the Company a limited guarantee of private investment funds affiliated with Vista Equity Partners (“ Vista ”), dated as of the date hereof, in favor of the Company with respect to certain obligations of Parent under this Agreement (the “ Limited Guarantee ”);

WHEREAS , immediately following the execution and delivery of this Agreement, the Company shall obtain the irrevocable adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, pursuant to an Action by Written Consent signed by Stockholder, which shall constitute the Company Stockholder Approval; and

WHEREAS, Buyer, Stockholder, Merger Sub and the Company wish to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe certain conditions to the Merger.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

CERTAIN DEFINITIONS

1.1 Definitions .

(a) Defined Terms . As used in this Agreement, the following defined terms have the meanings indicated below:

“ Actions ” or “ Proceedings ” means any action, suit, proceeding, arbitration, audit, hearing, charge, formal grievance, formal inquiry or Governmental Entity investigation.

“ Affiliate ” of a Person means any other Person who directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such Person. “ Control ” means the possession of the power, directly or indirectly, to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“ Business ” means the Company’s and its Subsidiaries’ business of providing grants management software and services (i.e., with the functionality offered by Company Products as of the Closing) to the grantmaking community, including private foundations, corporate philanthropy and employee giving programs, community foundations and various other giving organizations and any other activities engaged in or performed by the Company and its Subsidiaries as of the Closing Date. Notwithstanding the foregoing, the provision of investment management solutions, research management solutions, trade order solutions, interfaces, and/or custodial, market and investment data services to Persons in the grantmaking community shall not be considered part of the “Business” for purposes of this Agreement. Furthermore, without limiting the generality of the foregoing, the provision of investment management solutions, research management solutions, trade order solutions, interfaces, and/or custodial, market and investment data services to Persons who maintain donor advised fund programs (which programs, for the avoidance of doubt, are managed and/or serviced directly or indirectly by such Person or a third party who, in either case, is not proactively partnered with the Stockholder or any of its Subsidiaries) shall not be considered part of the “Business” for purposes of this Agreement.

“ Business Day ” shall mean each day that is not a Saturday, Sunday or other day on which banking institutions located in San Francisco, California are authorized or obligated by law or executive order to close, and shall consist of the time period from 12:01 a.m. through 12:00 midnight, Pacific time.

“ Cash ” shall mean all unrestricted cash, cash equivalents (including money market accounts, money market funds, money market instruments and demand deposits) and marketable securities of the Company and its Subsidiaries.

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

“ Company Intellectual Property ” shall mean any and all Intellectual Property Rights that are owned by the Company or any of its Subsidiaries, including all Company Registered Intellectual Property.

“ Company Products ” means products and services currently licensed, sold, distributed, offered, maintained and/or made commercially available by the Company or any of its Subsidiaries.

“ Customer Contract ” means each agreement (including binding oral agreements) between each of the customers listed on Schedule 3.21(a)(i) and the Company or its Subsidiaries.

“ Disregarded Conflict ” shall mean a Conflict under any Contract to which the Company or any of its Subsidiaries is a party which exists because Parent structured the transactions contemplated hereby as a merger instead of purchasing the outstanding capital stock of the Company directly from Stockholder, except for Conflicts arising under (i) Customer Contracts or in-licenses of Intellectual Property which have not been provided or made available to Parent, or (ii) Customer Contracts which have been provided or made available to Parent but where a potential Conflict is not ascertainable from the text of such Customer Contract.

“ Employee ” shall mean any current employee or director of the Company or any of its Subsidiaries.

“ Encumbrances ” means Liens, security interests, deeds of trust, encroachments, reservations, orders of Governmental Entities, decrees, judgments, contract rights, legal claims or equitable rights of any kind.

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

“ ERISA Affiliate ” shall mean any other Person under common control with the Company or any of its Subsidiaries or that, together with the Company or any of its Subsidiaries, is or was (at a relevant time) deemed a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code, and the regulations issued thereunder.

“ Environmental Laws ” shall mean all federal, state, local and foreign laws and regulations relating to pollution, protection of the environment and exposure of any individual to Hazardous Materials, including laws and regulations relating to emissions, discharges, releases or threatened releases of Hazardous Materials, or otherwise relating to the manufacture, processing, registration, distribution, labeling, recycling, use, treatment, storage, disposal, emission transport or handling of Hazardous Materials, any investigation, clean up or remediation thereof, or any products containing Hazardous Materials.

“ Escrow Amount ” shall mean $3,000,000.

“ Fundamental Company Representations ” means Section 3.1 (Organization and Qualification), Section 3.2 (Capital Stock), Section 3.3 (Authority), Section 3.4 (Subsidiaries), and Section 3.19 (Brokers).

“ Fundamental Stockholder Representations ” means Section 4.2 (Authority; Enforceability) and Section 4.6 (Brokers).

“ Governmental Entity ” means any United States or other national, state, municipal or local government, domestic or foreign, any subdivision, court, agency, entity, commission or authority thereof, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority.

“ Hazardous Materials ” means any chemicals, including substances, emissions or discharges that have been designated as radioactive, toxic, hazardous, a pollutant or contaminant or otherwise a danger to health, reproduction or the environment, including asbestos-containing materials (ACM), and petroleum and petroleum products or any fraction thereof.

“ Included Current Assets ” means all current assets, including accounts receivable, prepaid expenses and other current assets, but excluding Cash, federal or state income tax receivables, deferred tax assets and receivables from any of the Company’s and its Subsidiaries’ Affiliates, directors, employees, officers or stockholders and any of their Affiliates, each as determined in accordance with GAAP applied on a basis consistent with the preparation of the Company Financial Statements for fiscal year 2008 (provided that the methods, practices and policies used in the preparation of the Company Financial Statements for fiscal year 2008 are in accordance with GAAP).

“ Included Current Liabilities ” means (i) all current liabilities, including accounts payable (including outstanding checks), deferred revenue and accrued liabilities, but excluding deferred income

tax liabilities, Specified Deferred Revenue, Transaction Expenses and Indebtedness of the Company and its Subsidiaries, plus (ii) the amount of non-current deferred revenue for any maintenance, post-Contract support or other service arrangements whose terms are in excess of twelve (12) months, each as determined in accordance with GAAP applied on a basis consistent with the preparation of the Company Financial Statements for fiscal year 2008 (provided that the methods, practices and policies used in the preparation of the Company Financial Statements for fiscal year 2008 are in accordance with GAAP). Notwithstanding anything to the contrary in this section, Transaction Expenses and Indebtedness that are not settled before Closing and are required to be settled by the Company may be included in Included Current Liabilities if mutually agreed to by Stockholder and Parent.

“ Indebtedness ” shall mean with respect to the Company or any of its Subsidiaries (i) any obligations for borrowed money evidenced by notes, bonds, debentures or similar instruments, (ii) any indebtedness for the deferred purchase price of property, goods or services (including earn-outs and other contingent payments but excluding trade payables or accruals incurred in the Ordinary Course of Business with respect to which the Company or any of its Subsidiaries is liable, contingently or otherwise, as obligor or otherwise), (iii) any indebtedness secured by a Lien on the Company’s or any of its Subsidiaries’ assets, (iv) any amounts owed to any Person under any noncompetition, severance or similar arrangements (other than the severance arrangements listed on Schedule 1.1(c) ), (v) any liability or obligation of a Person under deferred compensation plans or phantom stock plans, (vi) any liability (including employer payroll taxes to the extent that the deductions associated with such vesting or exercise are reflected in the final Tax Return of the Company) with respect to the vesting or exercise of any equity-based compensation arrangement in connection with the transactions contemplated by this Agreement, (vii) any off-balance sheet financing of the Company or any of its Subsidiaries (but excluding all operating leases), (viii) obligations under capital leases with respect to which the Company or any of its Subsidiaries is liable, contingently or otherwise, as obligor guarantor or otherwise, (ix) any commitment by which the Company or any of its Subsidiaries assures a creditor against loss (including contingent reimbursement liability of obligation with respect to letters of credit), (x) any accrued and unpaid interest on, and any prepayment premiums, penalties or similar charges in respect of, any of the foregoing obligations computed as though payment is being made in respect thereof on the Closing Date, and (xi) in the nature of guarantees by the Company or any of its Subsidiaries of the obligations described in clauses (i) through (vi) above of any other Person (including guarantees in the form of an agreement to repurchase or reimburse); provided, that any amounts shall not be considered Indebtedness to the extent (but only to the extent) accrued for in the calculation of the Working Capital Amount.

“ Intellectual Property ” shall mean any or all of the following, throughout the world, (i) works of authorship including computer programs, source code, and executable code, whether embodied in software, firmware or otherwise, architecture, documentation, designs, files, records, and data, (ii) inventions (whether or not patentable), and improvements thereto (iii) proprietary and confidential information, trade secrets and know how, (iv) databases, data compilations and collections and technical data, (v) tools, methods and processes, and (vi) any and all instantiations of the foregoing in any form and embodied in any media.

“ Intellectual Property Rights ” shall mean worldwide common law and statutory rights associated with (i) patents and patent applications, (ii) copyrights, copyright registrations and copyright applications, “moral” rights and mask work rights, (iii) the protection of trade and industrial secrets and confidential information, (iv) logos, trade names, trade dress, trademarks and service marks, (v) domain names and web addresses, (vi) other proprietary rights relating to intangible intellectual property, (vii) analogous rights to those set forth above, and (viii) divisions, continuations, renewals, reissuances and extensions of the foregoing (as applicable).

“ Knowledge ” of the Company means the knowledge of the Persons listed on Schedule 1.1(a) , after reasonable inquiry of those employees of the Business who would reasonably be expected to have actual knowledge of the matter in question.

“ Laws ” means all foreign, federal, state and local statutes, laws, ordinances, regulations, rules, resolutions, orders, determinations, writs, injunctions, awards (including, without limitation, awards of any arbitrator), judgments and decrees, including judicial decisions applying or interpreting any such Law.

“ Liabilities ” means all liabilities or obligations of any kind whatsoever (whether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due and regardless of when or by whom asserted.

“ Liens ” shall mean any mortgage, pledge, lien, security interest, voting trust agreement, conditional or installment sale agreement, encumbrance, charge or other claims of third parties of any kind.

“ Material Adverse Effect ” shall mean any effect, change, event, condition, development, occurrence or state of facts (i) which has had or is reasonably likely to have in the future, individually or in the aggregate, (taking into account all other effects, changes, events, conditions, developments, occurrences or state of facts) a material adverse effect on the financial condition, business, assets, liabilities, properties, operations or results of operations of the Company and its Subsidiaries taken as a whole, except for (A) changes or effects resulting from general changes in economic and financial market conditions (whether in the United States or internationally) which conditions do not disproportionately affect the Company and its Subsidiaries taken as a whole, relative to other industry participants, (B) changes in conditions (including as a result of changes in laws, including, without limitation, common law, rules and regulations or the interpretations thereof) generally applicable to the types of businesses in which the Company is engaged and that are not unique to the Company and do not disproportionately affect the Company and its Subsidiaries taken as a whole, relative to other industry participants, (C) changes in GAAP, or changes in the interpretation of GAAP by a Governmental Entity, financial accounting standards board or similar advisory body, or an accounting firm of national reputation, pursuant to which the Company is required to change its prior accounting policies or practices, or (D) the effect of any change arising in connection with earthquakes, acts of war, sabotage or terrorism, military actions or escalation thereof, disproportionately affect the Company and its Subsidiaries taken as a whole, relative to other industry participants, (E) changes resulting from the announcement of the Merger and transactions described in this Agreement or the identity of Parent, or (F) any failure by the Company to meet the Company’s internal projections or forecasts of its own revenue, earnings or other financial performance or results of operations for any period, in and of itself, provided that any underlying causes of such failure may be deemed to constitute, in and of itself, a Material Adverse Effect and any underlying causes of such failure may be taken into account in making a determination as to whether there has been a Material Adverse Effect, or (ii) which would prevent or materially impair the ability of the Stockholder or the Company from consummating the Merger and the other transactions contemplated by this Agreement has occurred or would reasonably be expected to occur as a result of any such effect, change, event, condition, development, occurrence or state of facts.

“ Net Working Capital ” means the Included Current Assets minus Included Current Liabilities of the Company and its Subsidiaries.

“ Order ” means any writ, judgment, decree, injunction or similar order of any Governmental Entity (in each such case whether preliminary or final).

“ Ordinary Course of Business ” shall mean all actions taken by a Person if such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person.

“ Permitted Encumbrances ” shall mean (i) Liens for Taxes not yet due or which are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established on the Interim Financials to the extent required by GAAP; (ii) such minor encumbrances, easements or reservations of, or rights of others for, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning restrictions as to the use of real properties, which do not interfere in any material respect, individually or in the aggregate with the use, occupation and enjoyment of the property subject to the Lien by and in connection with the applicable business; (iii) Liens imposed by applicable Law (other than Tax law); (iv) pledges or deposits to secure obligations under workers’ compensation Laws or similar legislation or to secure public or statutory obligations; (v) 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 (vi) any Liens, the existence of which do not effect in any material respect, individually or in the aggregate, the use or operation of the assets subject thereto.

“ Person ” shall mean any individual, corporation, partnership, limited partnership, limited liability company, trust, association or entity or government agency or authority.

“ Registered Intellectual Property ” shall mean Intellectual Property Rights that have been registered, filed, certified or otherwise perfected or recorded with or by any state, government or other public or quasi-public legal authority.

“ Specified Deferred Revenue ” shall mean the sum of items identified in Schedule 1.1(b) hereto.

“ Subsidiary ” of a Person shall mean any corporation, partnership, joint venture or other entity in which such Person (i) owns, directly or indirectly, fifty percent (50%) or more of the outstanding voting securities or equity interests, or (ii) is a general partner.

“ Target Net Working Capital ” means negative $7,343,000.

“ Tax ” (and, with correlative meaning, “ Taxes ” and “ Taxable ”) shall mean any U.S. federal, state, local or non-U.S. net income, gross income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad valorem, value-added, transfer, stamp, or environmental tax, or any other tax, custom, duty, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or penalty, addition to tax or additional amount imposed by any Governmental Entity.

“ Tax Return ” shall mean any return, report or similar statement required to be filed with respect to any Tax (including any attached schedules), including, without limitation, any information return, claim for refund, amended return or declaration of estimated Tax.

“ Third Party ” means any Person (including a Governmental Entity) not an Affiliate of the other referenced person or persons.

“ Transaction Expenses ” means the sum of (i) any unpaid fees, costs and expenses incurred by or to be borne by the Company and its Subsidiaries or any of their Affiliates in connection with the drafting, negotiation, execution and delivery of this Agreement and the other certificates, documents or agreements contemplated by this Agreement and the consummation of the transactions contemplated herein and

therein, and (ii) (A) any unpaid transaction bonuses, borne or to be borne by the Company or any of its Subsidiaries and (B) any unpaid change-in-control or similar compensatory payments borne or to be borne by the Company which are triggered by the transactions contemplated by this Agreement or the other certificates, documents or agreements contemplated by this Agreement, including, without limitation, any retention bonus, stay bonus or similar payment but excluding, for purposes of clarity, any payments under the severance agreements listed on Schedule 1.1(c) .

1.2 Construction of Certain Terms and Phrases . Unless the context of this Agreement otherwise requires: (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement; (iv) the terms “Article” or “Section” refer to the specified Article or Section of this Agreement; (v) whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation;” (vi) the phrase “made available” shall mean that the information referred to has been made available if requested by the party to whom such information is to be made available; (vii) whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified; (viii) all accounting terms used herein and not expressly defined herein shall have the meanings given to them under United States generally accepted accounting principles as in effect at an applicable time, applied on a consistent basis (“ GAAP ”); (ix) any representation or warranty contained herein as to the enforceability of a Contract shall be subject to the effect and limitations of any bankruptcy, insolvency, reorganization, moratorium or other similar law affecting the enforcement of creditors’ rights generally and to general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (x) the table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

ARTICLE II

SALE OF SHARES AND CLOSING

2.1 The Merger . Upon the terms and subject to the satisfaction or waiver of the conditions set forth in this Agreement, and in accordance with the NYBCL, the Company shall be merged with and into Merger Sub at the Effective Time. As a result of the Merger, the separate corporate existence of the Company shall cease and Merger Sub shall continue as the surviving business entity of the Merger (the “ Surviving LLC ”).

2.2 Closing . Subject to the terms and conditions of this Agreement, the closing of the Merger (the “ Closing ”) will take place at the offices of Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road, Palo Alto, CA 94304, or at such other place as Parent, the Company and Stockholder mutually agree, at 10:00 a.m. Pacific time on October 1, 2009 (or earlier if agreed to by Parent), or if any of the conditions to Closing set forth in ARTICLE VII have not been satisfied or waived in writing by the party entitled to the benefit thereof on or prior to such date (other than conditions which by their nature are scheduled to occur at the Closing), on the third (3 rd ) Business Day following satisfaction or waiver of such conditions set forth in ARTICLE VII, or such other date as Parent, the Company and Stockholder mutually agree upon (the “ Closing Date ”). At the Closing, there shall also be delivered to the Company, Stockholder and Parent the certificates and other documents and instruments to be delivered pursuant to ARTICLE VII . The Escrow Amount so deducted from the Merger Consideration will be deposited into an escrow fund (the “ Escrow Fund ”) and held pursuant to the terms and conditions of this Agreement. Wire transfer instructions for Parent’s payments are set forth in Annex A .

2.3 Effective Time . The Parties shall cause a certificate of merger in substantially the form attached hereto as Exhibit C (the “ Certificate of Merger ”) to be executed and filed in accordance with the NYBCL and the terms of this Agreement. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of New York or at such other time as is specified by the parties as the Effective Time in the Certificate of Merger (the “ Effective Time ”).

2.4 Effect of the Merger . At the Effective Time, the effect of the Merger shall be as provided in this Agreement and in the applicable provisions of the NYBCL. Without limiting the generality of the foregoing, at the Effective Time, except as otherwise provided herein, (i) the Surviving LLC shall possess all the rights, privileges, immunities, powers and purposes of the Merger Sub and the Company, and (ii) all the property, real and personal, including subscriptions to shares, causes of action and every other asset of each the Company and Merger Sub, shall vest in Surviving LLC without further act or deed.

2.5 Organizational Documents; Directors and Officers

(a) At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub or the Company, the certificate of formation of the Surviving LLC shall be the certificate of formation of the Merger Sub, as in effect immediately prior to the Effective Time, until duly amended as provided therein or by applicable laws.

(b) At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub or the Company, the operating agreement of the Surviving LLC shall be the operating agreement of the Merger Sub, as in effect immediately prior to the Effective Time, until duly amended as provided therein or by applicable laws.

(c) The parties shall take all actions necessary so that the managers and officers of Merger Sub at the Effective Time shall, from and after the Effective Time, be the managers and officers of the Surviving LLC until their successors shall have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the certificate of formation and operating agreement of the Surviving LLC.

2.6 Conversion of Securities . At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or each of their securityholders, the following shall occur:

(a) Conversion Generally . All of the issued and outstanding Company Capital Stock (the “ Shares ”) immediately prior to the Effective Time (other than (i) any Shares to be cancelled pursuant to Section 2.6(b) , and (ii) any Shares owned by any Subsidiary of the Company or by any Subsidiary of Parent other than Merger Sub) shall be converted into the right to receive $30,659,000, as adjusted, if at all, pursuant to Section 2.9 below, with respect to the Working Capital Adjustment, payable in cash to the Stockholder, without interest (the “ Merger Consideration ”). At the Effective Time, all such Shares shall cease to be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each certificate which immediately prior to the Effective Time represented any such shares shall thereafter represent only the right to receive the Merger Consideration therefor.

(b) Cancellation of Certain Shares . Each Share held by Parent, Merger Sub or in the treasury of the Company immediately prior to the Effective Time shall be cancelled and extinguished without any conversion thereof and no payment shall be made with respect thereto.

(c) Merger Sub . Each limited liability company interest of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and be exchanged for one newly

and validly issued, fully paid and nonassessable limited liability company interest of the Surviving Corporation.

2.7 Exchange of Certificates .

(a) Exchange Procedures . At the Closing, Stockholder shall deliver a letter of transmittal in customary form and with such other provisions as the parties mutually agree (which shall specify that delivery shall be effected, and risk of loss and title to the Certificate, which immediately prior to the Effective Time represented the Shares (the “ Certificate ”), shall pass, only upon proper delivery of the Certificate to the Parent). Upon surrender of the Certificate for cancellation to the Parent together with such letter of transmittal, properly completed and duly executed, Stockholder shall be entitled to receive in exchange therefor the Merger Consideration which Stockholder has the right to receive in respect of the Shares formerly represented by such Certificate, and the Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any Merger Consideration payable to Stockholder. Until surrendered as contemplated by this Section 2.7 , the Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration.

(b) Further Rights in Shares . All Merger Consideration paid in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such Shares.

(c) No Further Dividends . No dividends or other distributions with respect to capital stock of the Surviving LLC with a record date on or after the Effective Time shall be paid to the holder of any unsurrendered Certificates.

(d) Withholding . Parent, the Company, or the Surviving LLC shall be entitled to deduct and withhold or cause to be deducted and withheld from the consideration otherwise payable pursuant to this Agreement such amounts as Parent, the Company, or the Surviving LLC are required to deduct and withhold under the NYBCL, or any provision of state, local or foreign Tax Law, with respect to the making of such payment. To the extent that amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such deduction and withholding was made.

2.8 Payments at Closing .

(a) At Closing and immediately following the filing of the Certificate of Merger with the Secretary of State of the State of New York, Parent will do the following:

(i) pay or cause to be paid to such account as Stockholder directs on Annex A hereto, by wire transfer of immediately available funds, an amount equal to the Escrow Amount, which shall be managed and paid out by the Escrow Agent in accordance with the terms of Section 8.4 ; and

(ii) pay or cause to be paid the Merger Consideration payable to Stockholder at Closing pursuant to Section 2.6(a) less the Escrow Amount by wire transfer of immediately available funds to such account as Stockholder directs on Annex A hereto.

(b) The Escrow Amount shall be withheld at the Closing from the Merger Consideration payable to the Stockholder in respect of its Shares pursuant to Section 2.6(a) . Without any act of Stockholder, Stockholder will be deemed to have received the full Merger Consideration payable in respect of the Shares in accordance with Section 2.6(a) and Section 2.7(a) and to have deposited with the Escrow Agent an amount equal to the Escrow Amount.

2.9 Working Capital Adjustment . The Merger Consideration shall be adjusted (such adjustment may be positive or negative), if at all, on a dollar-for-dollar basis (the “Working Capital Adjustment”) as set forth below:

(a) Within five (5) Business Days prior to the Closing, but in no event less than two (2) Business Days prior to the Closing, the Stockholder shall prepare and deliver to Parent an officer’s certificate of the Stockholder that contains a good faith estimate of the Net Working Capital of the Company and its Subsidiaries as of midnight, local time, on the day immediately preceding the anticipated Closing Date (the “ Estimated Net Working Capital ”). Stockholder shall also deliver a preliminary draft of such certificate no later than five (5) Business Days prior to Closing. If (i) the Estimated Net Working Capital exceeds (or is less negative than) the Target Working Capital, then the Merger Consideration payable to the Stockholder at the Closing pursuant to Section 2.5(a) shall be increased by an amount equal to the amount by which the Estimated Net Working Capital exceeds the Target Net Working Capital, and (ii) if the Estimated Net Working Capital is less than (or is more negative than) the Target Working Capital, then the Merger Consideration payable to the Stockholder at the Closing pursuant to Section 2.5(a) shall be reduced by an amount equal to the amount by which the Target Working Capital exceeds the Estimated Net Working Capital.

(b) Parent (with the Company’s cooperation and assistance) shall prepare and deliver to the Stockholder within seventy-five (75) days after the Closing Date an unaudited balance sheet of the Company as of the close of business on the Closing Date (as adjusted, if at all, pursuant to Sections 2.4(b) and 2.4(c), the “ Closing Balance Sheet ”) which shall also set forth a calculation of Net Working Capital determined from the Closing Balance Sheet (the “ Net Working Capital Calculation ”) and the amount, if any, by which the Net Working Capital so determined is less than or greater than the Estimated Net Working Capital (such amount being the “ Adjustment Calculation ”). The Closing Balance Sheet, the Net Working Capital Calculation, and the Adjustment Calculation shall be prepared in accordance with GAAP, and to the extent consistent with GAAP, the same accounting methods, policies and assumptions as were used to prepare the Company Financial Statement for fiscal year 2008, provided, that the Closing Balance Sheet, the Net Working Capital Calculation, and the Adjustment Calculation shall not have footnotes or other audit disclosures and shall not be subject to normal year-end adjustments.

(c) On or prior to the thirtieth (30th) day following Parent’s delivery of the Closing Balance Sheet, the Net Working Capital Calculation and the Adjustment Calculation, the Stockholder may give Parent written notice stating in reasonable detail the Stockholder’s objections (an “ Objection Notice ”) to the Closing Balance Sheet or the determination of the Net Working Capital Calculation or the Adjustment Calculation. Any Objection Notice shall specify in reasonable detail the dollar amount of any objection and the basis therefore. Any determination set forth on the Closing Balance Sheet, the Net Working Capital Calculation, or the Adjustment Calculation that is not objected to in an Objection Notice shall be deemed acceptable and shall be final and binding upon Parent and the Stockholder upon delivery of the Objection Notice. If the Stockholder does not give Parent an Objection Notice within such thirty (30) day period, then the Closing Balance Sheet, the Net Working Capital Calculation and the Adjustment Calculation will be conclusive and binding upon the Parent and the Stockholder and the Net Working Capital Calculation and the Adjustment Calculation set forth with the Closing Balance Sheet will constitute the Net Working Capital Calculation and the Adjustment Calculation for purposes of Section 2.9(b) above.

(d) Following Parent’s receipt of any Objection Notice, the Stockholder and Parent shall attempt to negotiate in good faith to resolve such dispute. In the event that the Stockholder and Parent fail to agree on any of the Stockholder’s proposed adjustments set forth in the Objection Notice within thirty (30) days after Parent receives the Objection Notice, the Stockholder and Parent agree that a firm of national reputation acceptable to both parties (the “ Accounting Arbitrator ”) shall, within the thirty (30) day period immediately following such failure to agree, make the final determination of the Net Working Capital in

accordance with the terms of this Agreement. Stockholder and Parent each shall provide the Accounting Arbitrator with their respective determinations of the Net Working Capital Calculation. The Accounting Arbitrator shall make an independent determination of the Net Working Capital Calculation that, assuming compliance with the previous clause, shall be final and binding on the Stockholder and Parent if such independent determination shall be within the range proposed by Stockholder and Parent in the Net Working Capital Calculation and the Objection Notice. The scope of the disputes to be resolved by the Accounting Arbitrator shall be limited to whether such calculation was done in accordance with the terms hereof and the accounting methods, standards, policies, practices, classifications, estimation methodologies, assumptions, procedures or level of prudence used to prepare the Financials, and whether there were mathematical errors in the calculation of the Net Working Capital Calculation, and the Accounting Arbitrator is not to make any other determination. The Accounting Arbitrator shall make its determination based solely on presentations and supporting material provided by the Stockholder and Parent and not pursuant to any independent review. If the Accounting Arbitrator’s determination of the Net Working Capital is outside of the range proposed by the Stockholder and Parent in the Net Working Capital Calculation and the Objection Notice, then the Net Working Capital Calculation that was closer to that of the Accounting Arbitrator shall be final and binding on the Stockholder and Parent. The fees, costs and expenses of the Accounting Arbitrator shall be paid by the Party whose proposed Adjustment Calculation was different by the greater amount from that of the final determination of the Accounting Arbitrator.

(e) The date on which the Closing Balance Sheet is finally determined pursuant to this Section 2.9 shall hereinafter be referred to as the “ Settlement Date .”

(f) If the Adjustment Calculation is negative, then, Parent shall be entitled to recover from the Stockholder an amount equal to the magnitude of the Adjustment Calculation; if the Adjustment Calculation is positive, then Company shall pay to the Stockholder an amount equal to the Adjustment Calculation.

(g) Any payment required to be made under Section 2.9(f) shall be made within 2 Business Days after the Settlement Date, without setoff for any other matter, by wire transfer of immediately available funds to an account designated by the receiving party. If such payment is not made within 2 Business Days of the Settlement Date, the paying party shall pay interest from the Settlement Date until the date paid at a simple rate of interest equal to ten percent (10%) per annum; provided, that in no event shall such rate exceed the maximum rate permitted by law.

2.10 Indebtedness, Transaction Expenses . The Stockholder shall take all actions necessary for the Company and its Subsidiaries to have no Indebtedness at Closing. In addition, the Stockholder shall pay, or cause to be paid, all Transaction Expenses, it being expressly agreed that, following the Closing, none of Parent, the Company or any of its Subsidiaries shall have any Liability or obligation of any nature whatsoever therefor.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as specifically set forth in the disclosure schedule of the Company delivered to Parent herewith (collectively, the “ Company Disclosure Schedule ”), the Company hereby represents and warrants to Parent as of the date hereof and as of the Closing Date as follows:

3.1 Organization and Qualification . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of New York. The Company has the corporate power to own its properties and to carry on its business as currently being conducted and to perform the terms of

this Agreement and the transactions contemplated hereby. The Company is duly qualified or licensed to do business and in good standing as a foreign corporation in each jurisdiction in which the ownership or leasing of its assets and properties or the nature of its activities in connection with the conduct of its business makes such qualification necessary, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect. The Company has delivered or made available a true and correct copy of its Certificate of Incorporation, as amended to date (the “ Certificate of Incorporation ”), and bylaws, as amended to date, each in full force and effect on the date hereof (collectively, the “ Charter Documents ”), to Parent. The Company is not in material default under or in material violation of any provision of its Charter Documents.

3.2 Capital Stock .

(a) The authorized capital stock of the Company (the “ Company Capital Stock ”) consists of 1,000 shares of the Company’s Common Stock (the “ Common Stock ”), of which 100 shares are issued and outstanding. All of the issued and outstanding shares of Company Capital Stock are owned beneficially and of record by Stockholder, free and clear of all Encumbrances. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents, or any agreement to which the Company is a party or by which it is bound. There are no outstanding options, warrants or other rights, or agreements, arrangements or commitments of any character in effect relating to the issued or unissued capital stock of the Company, or obligating the Company or Stockholder to transfer, vote, register, acquire, issue or sell any shares of capital stock of, or other equity interests in, the Company, including any securities directly or indirectly convertible into or exercisable or exchangeable for any capital stock or other equity securities of the Company. The Company does not own or have any right to acquire, directly or indirectly, any outstanding capital stock of, or other equity interest in, any Person other than its Subsidiaries. The Company does not have outstanding any bonds, debentures, notes or other obligations, the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with Stockholder on any matter. The Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any distribution in respect thereof. The Company has not paid or distributed any cash, stock or other dividends to the holders of any shares of the capital stock or other equity securities of the Company.

(b) At the Closing, the Shares shall constitute all of the issued and outstanding Company Capital Stock, and as a result of the Merger, Parent shall be the record and beneficial owner of all Company Capital Stock, free of all Encumbrances.

3.3 Authority .

(a) The execution and delivery of this Agreement by the Company, the consummation of the Merger and the consummation by the Company of the other transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby other than, with respect to the Merger, the affirmative vote of holders of a majority of outstanding Shares to adopt this Agreement and approve the transactions provided for herein in accordance with the NYBCL (the “Company Stockholder Approval”) and the filing and recordation of the Certificate of Merger as required by the NYBCL. This Agreement has been duly executed and delivered by the Company, and assuming due authorization, execution and delivery by Stockholder, Merger Sub and the Parent, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and by the application of general principles of equity.

(b) On or prior to the date of this Agreement, the Board of Directors of the Company (the “ Company Board ”) has unanimously determined that this Agreement and the transactions provided for herein, including the Merger, are fair to and in the best interest of the Company and the Stockholder, and adopted resolutions by a unanimous vote (a) approving this Agreement, and (b) declaring this Agreement and the Merger advisable and directed that this Agreement be submitted to the Stockholder for its adoption, which resolutions have not been subsequently withdrawn or modified in a manner adverse to Parent.

3.4 Subsidiaries .

(a) Schedule 3.4(a) lists each corporation, limited liability company, partnership, association, joint venture or other business entity of which the Company owns or has owned, directly or indirectly, more than 50% of the stock or other equity interest entitled to vote on the election of the members of the board of directors or similar governing body (each, a “ Subsidiary ”).

(b) Each Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization.

(c) Each Subsidiary has the corporate power to own its properties and to carry on its business as currently conducted and as currently contemplated to be conducted.

(d) Each Subsidiary is duly qualified or licensed to do business and in good standing in each jurisdiction in which the character or location of its assets or properties (whether owned, leased or licensed) or the nature of its business make such qualifications necessary, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect. A true and correct copy of each Subsidiary’s organizational documents, each as amended to date and in full force and effect on the date hereof, has been delivered or made available to Parent.

3.5 No Conflict . The execution and delivery by the Company of this Agreement, the consummation by the Company of the Merger, and the consummation of the transactions contemplated hereby, will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit under or give rise to any payments or Encumbrances (any such event, a “ Conflict ”) (i) assuming the Company Stockholder Approval is obtained, any provision of the Charter Documents or the organizational documents of the Company, (ii) any mortgage, indenture, lease (including, without limitation, all Lease Agreements), contract, covenant, plan, insurance policy or other agreement, instrument or commitment, permit, concession, franchise or license (each a “ Contract ” and collectively the “ Contracts ”) to which the Company or any of its Subsidiaries is a party or by which any of its properties or assets (whether tangible or intangible) are bound, or (iii) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company, its Subsidiaries or any of their respective properties or assets (whether tangible or intangible), except, with respect to clause (ii), for such Conflicts would not be material to the Company and its Subsidiaries, taken as a whole and except for Disregarded Conflicts. The execution and delivery by the Company of this Agreement, the consummation by the Company of the Merger and the consummation of the transactions contemplated hereby, will not result in the imposition or creation of any Encumbrance upon or with respect to any of the assets owned, leased or licensed by the Company or its Subsidiaries except for Disregarded Conflicts. Schedule 3.5 sets forth all necessary notices, consents, waivers and approvals as are required under any Contracts in connection with the Merger, or for any such Contract to remain in full force and effect without limitation, modification or alteration after the Closing so as to preserve all rights of, and benefits to, the Company and its Subsidiaries under such Contracts from and after the Closing except for Disregarded Conflicts and the items set forth on Schedule 3.5 shall be referred to as the “ Required Consents .” Following the Closing, the Company and its Subsidiaries will be permitted to exercise all of

its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company or any of its Subsidiaries, as the case may be, would otherwise be required to pay pursuant to the terms of such Contracts had the transactions contemplated by this Agreement not occurred except for Disregarded Conflicts.

3.6 Consents . No consent, waiver, approval, order or authorization of, or registration, declaration or filing with any Governmental Entity is required by, or with respect to, the Company in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for such consents, notices, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable securities laws, and (ii) the filing and recordation of the Certificate of Merger as required by the NYBCL.

3.7 Financial Statements and Condition .

(a) Attached hereto as Schedule 3.7(a) are copies of the Company’s (i) unaudited consolidated balance sheet as of December 31, 2008 and December 31, 2007 and the related unaudited consolidated statements of income, cash flow and stockholders’ equity for the period then ended (collectively, the “ Company Financial Statements ”) and (ii) an unaudited consolidated balance sheet as of June 30, 2009 (the “ Balance Sheet Date ”), and the related unaudited statements of income, cash flow and stockholders’ equity for the six months then ended (the “ Interim Financials ”). The Company Financials and the Interim Financials (collectively referred as the “ Financials ”) are true and correct in all material respects and have been prepared in accordance with GAAP consistently applied on a consistent basis throughout the periods indicated and consistent with each other (except that the Financials do not contain footnotes and other presentation items that may be required by GAAP). The Financials present fairly in all material respects the Company’s consolidated financial condition, operating results and cash flows as of the dates and during the periods indicated therein, subject in the case of the Interim Financials to normal year-end adjustments, which are not material in amount or significance in any individual case or in the aggregate. The Company’s unaudited consolidated balance sheet as of the Balance Sheet Date is referred to hereinafter as the “ Current Balance Sheet .” The books and records of the Company and each Subsidiary are materially correct and complete and have been, and are being maintained in all material respects in accordance with applicable legal and accounting requirements and the Financials are consistent with such books and records.

(b) The Monthly Financial Statements have been prepared in good faith.

(c) Except as set forth on the attached Schedule 3.7(c) , the Company and its Subsidiaries have no Liability arising out of any transaction entered into at or prior to the Closing Date, or any action or inaction at or prior to the Closing Date, or any state of facts existing at or prior to the Closing Date that would reasonably likely to, individually or in the aggregate, have a Material Adverse Effect, other than (i) liabilities reflected on the face of Current Balance Sheet, (ii) current liabilities incurred in the Ordinary Course of Business since the date of the Current Balance Sheet (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of contract, breach of warranty, tort, infringement, or violation of law), and (iii) executory obligations under any contract to which the Company is a party or is bound (but not liabilities for any breach of any such contracts occurring on or prior to the Closing Date) and (iv) liabilities incurred in connection with the transactions contemplated by this Agreement.

3.8 Receivables . All of the accounts receivable of the Company and its Subsidiaries, as shown on the Current Balance Sheet or the Final Working Capital Statement (net of allowances for doubtful account as reflected there on and as determined in accordance with GAAP), arose in the Ordinary Course of Business, are carried at values determined in accordance with GAAP consistently applied, are not subject to any valid set-off or counterclaim, and do not represent obligations for goods sold on consignment, on approval or on a sale-or-return basis or subject to any other repurchase or return arrangement and, to the

Company’s Knowledge and based on facts and circumstances available as of the date hereof, are reasonably believed to be collectible at the aggregate recorded amount therefor as shown on the Current Balance Sheet or the Final Working Capital Statement (net of allowances for doubtful account as reflected there on and as determined in accordance with GAAP). No person has any Lien on any accounts receivable of the Company and its Subsidiaries or any part thereof, and no agreement for free goods, discounts or other deferred price or quantity adjustment has been made with respect to any such receivables outside of the Ordinary Course of Business.

3.9 Absence of Certain Changes or Events .

(a) For purposes of this Section 3.9 , the term “in the aggregate” shall refer to a series of related transactions with a single party or group of related parties. Since December 31, 2008, except as set forth on Schedule 3.9(a) and except as expressly permitted under or required under this Agreement, the Company has conducted its business in the Ordinary Course of Business, and neither the Company nor any of its Subsidiaries have (provided, that the matters set forth in clauses (ii) - (v), (viii) - (x), (xiii), (xv)-(xviii), (xx), (xxi), and (xxiii) - (xxviii) shall apply to actions of the Stockholder made on behalf of the Company or any of its Subsidiaries):

(i) suffered a Material Adverse Effect that is continuing;

(ii) made any changes to its Charter Documents or altered any terms of any outstanding security of the Company;

(iii) paid, declared or set aside any dividend or distribution of cash or other property in respect of, or redeemed or repurchased or otherwise acquired any of, its capital stock or any warrants, options or other rights to acquire its stock, or made any other payments to any stockholder of the Company;

(iv) incurred loss of, or significant injury to, its material assets, or waived any rights of material value, whether or not covered by insurance, outside of the Ordinary Course of Business, whether as the result of any natural disaster, labor trouble, accident, other casualty, or otherwise;

(v) incurred, assumed or guaranteed any debt for borrowed money (other than trade indebtedness incurred in the Ordinary Course of Business);

(vi) issued or sold any securities convertible into or exchangeable for debt or equity securities of the Company;

(vii) issued or sold options or other rights to acquire from the Company, directly or indirectly, debt or equity securities of the Company or any securities convertible into or exchangeable for any such debt or equity securities;

(viii) [intentionally omitted];

(ix) mortgaged, pledged or subjected to any Encumbrance (other than a Permitted Encumbrance) any of its assets except in the Ordinary Course of Business;

(x) sold, assigned, leased, exchanged, transferred or otherwise disposed of any of its assets except in the Ordinary Course of Business, or canceled any debts or claims owing to or held by it;

(xi) written down the value of any assets or written off as uncollectible any accounts receivable, except write downs and write-offs in the Ordinary Course of Business, none of which, individually or in the aggregate, is material;

(xii) made any change in any method of accounting or material accounting practice;

(xiii) created new obligations, increased or modified the compensation or benefits payable or to become payable by the Company and its Subsidiaries to any of their employees or consultants, made any other change in employment terms for any employee, except for changes pursuant to employment agreements currently in effect or as required by applicable Laws;

(xiv) hired or entered into an employment agreement with, any executive level employees of the Company or its Subsidiaries or terminated the employment of any employees of the Company or its Subsidiaries;

(xv) received, or agreed to receive, any multi-year advance payments for maintenance obligations (other than Foundation Power hourly maintenance pre-payments);

(xvi) made any increase in or modification of any bonus, pension, insurance or other employee benefit plan, payment or arrangement (including without limitation the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any of its employees outside the Ordinary Course of Business other than any amendments to Benefit Plans to the extent necessary to maintain their compliance with applicable Laws;

(xvii) made any loan, advance or capital contribution to, or investment in, or guarantees for the benefit of, any Person other than advances made in the Ordinary Course of Business;

(xviii) entered into, amended, relinquished, terminated or not renewed any contract, lease, commitment or other right or obligation other than in the Ordinary Course of Business;

(xix) had any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company;

(xx) made any material change in the financial condition, assets, liabilities, personnel policies or practices, or contracts or business of the Company or any of its Subsidiaries or in its relationships with suppliers, customers, licensors, licensees, distributors, lessors or others, except changes in the Ordinary Course of Business;

(xxi) made any discharge or satisfaction of any Lien or payment of any liability or obligation by the Company or any of its Subsidiaries other than current liabilities in the Ordinary Course of Business; or

(xxii) entered into any agreement or arrangement made by the Company or any of its Subsidiaries to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this ARTICLE III untrue or incorrect as of the date when made;

(xxiii) sold, assigned, transferred, abandoned or permitted to lapse any Government Permits which, individually or in the aggregate, are material to the business of the Company

and its Subsidiaries, or any of the Intellectual Property or other intangible assets, or disclosed any proprietary confidential information to any Person, except in the Ordinary Course of Business;

(xxiv) entered into or modified any collective bargaining agreement or multiemployer plan;

(xxv) conducted its cash management customs and practices (including the collection of receivables, payment of payables, maintenance of inventory control and pricing and credit practices) other than in the Ordinary Course of Business;

(xxvi) deferred any capital expenditures or commitments therefore such that the aggregate outstanding amount of unpaid obligations and commitments with respect thereto shall comprise in excess of $10,000 on the Closing Date;

(xxvii) made any capital investment in, any loan to, or any acquisition of the securities or assets of any other Person (other than acquisitions of inventory in the Ordinary Course of Business) or taken any steps to incorporate any Subsidiary;

(xxviii) (A) made, changed or revoked any material Tax election, settled or compromised any Tax claim or liability, or changed (or made a request to any Government Authority to change) any material aspect of its method of accounting for Tax purposes or (B) prepared or filed any Tax Return (or any amendment thereof) unless such Tax Return or amendment shall have been prepared in a manner consistent with past practice; or

(xxix) committed or entered into any binding understanding or agreement to do any of the foregoing, other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement.

3.10 Title to Properties; Absence of Liens and Encumbrances; Condition of Equipment; Customer Information .

(a) Neither the Company nor any of its Subsidiaries owns any real property, nor has the Company or any of its Subsidiaries ever owned any real property. Schedule 3.10(a) sets forth a list of all real property currently leased, subleased or licensed by or from the Company or any of its Subsidiaries or otherwise used or occupied by the Company or any of its Subsidiaries (the “ Leased Real Property ”).

(b) The Company has provided or made available to Parent true, correct and complete copies (including any modifications thereto) of all leases, lease guaranties, subleases, agreements for the leasing, use or occupancy of, or otherwise granting a right in or relating to the Leased Real Property (“ Lease Agreements ”). Neither the Company nor any of its Subsidiaries has received any notice of a default, alleged failure to perform, or any offset or counterclaim with respect to any such Lease Agreements that has not been fully remedied and withdrawn. There are no other parties occupying, or with a right to occupy, the Leased Real Property other than the Company or its Subsidiaries.

(c) The Company and its Subsidiaries have good and valid title to, or, in the case of leased properties and assets, legal, valid, binding and enforceable leasehold interests in, all of its tangible properties and assets, real, personal and mixed, used or held for use in its business, free and clear of any Liens other than Permitted Encumbrances. The Company has all material authorizations, licenses and permits required to own its properties and carry on its business as currently being conducted. The assets of the Company and its Subsidiaries, including their employees, are sufficient to conduct and operate the Company’s business immediately following the Closing in substantially the same manner and to the extent

the Company’s business is currently being conducted. Neither Stockholder nor any of its Affiliates owns, utilizes or has any interest in any assets of, or performs any services for, or on behalf of, the Company.

3.11 Other Agreements .

(a) For purposes of this Section 3.11 , the term “in the aggregate” shall refer to a series of related transactions with a single party or group of related parties. Except as set forth in Schedule 3.11 , neither Company nor any of its Subsidiaries is a party to, or is bound by any of the following agreements (whether written or binding oral) (each, together with each Customer Contract described in Section 3.21, a “ Material Contract ” and collectively with the Customer Contracts described in Section 3.21, the “ Material Contracts ”):

(i) any employment, contractor or consulting agreement other than at-will employment agreements made in the Ordinary Course of Business, or any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any Employee;

(ii) any agreement or plan, including any stock option plan, restricted stock plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;

(iii) any fidelity or surety bond or completion bond;

(iv) any collective bargaining, union or works council agreements;

(v) any lease of personal property having a value in excess of $25,000 individually or $100,000 in the aggregate;

(vi) any agreement of indemnification or guaranty other than provisions contained in ordinary course license agreements;

(vii) any agreement, Contract, lease or commitment relating to fixed capital expenditures and involving future payments in excess of $25,000 individually or $50,000 in the aggregate;

(viii) any agreement, contract or commitment relating to the disposition or acquisition of assets (whether tangible or intangible) or any interest in any business enterprise outside the Ordinary Course of Business;

(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money, extension of credit or otherwise placing an Encumbrance on any portion of the Company’s or its Subsidiaries’ assets other than Permitted Encumbrances;

(x) any purchase order or contract for the purchase of materials involving in excess of $25,000 individually;

(xi) any dealer, distribution, reseller, alliance, joint marketing, affiliate or development agreement;

(xii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement of the Company or any of its Subsidiaries;

(xiii) [intentionally omitted];

(xiv) any material agreement for the out-license of Company Intellectual Property other than ordinary course license agreements;

(xv) purchase agreement relating to any business acquisition by the Company or any of its Subsidiaries within the last five years;

(xvi) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.17 or the schedules relating thereto;

(xvii) contract which prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world and, other than any contract entered into in the Ordinary Course of Business;

(xviii) any Lease Agreement;

(xix) any partnership, joint venture, shareholders’ or other similar contracts with any Person;

(xx) any agreement under which the Company or any of its Subsidiaries has advanced or loaned any amount to any of its Employees outside of the Ordinary Course of Business;

(xxi) any settlement, conciliation or similar agreement, the performance of which will involve any future payment of consideration in excess of $25,000;

(xxii) other than customer agreements and in-licenses of “off-the-shelf” commercially available software, all agreements related to Intellectual Property; or

(xxiii) any other agreement, contract, lease or commitment, including, without limitation, or any service, operating or management agreement or arrangement with respect to any of the Leased Real Property, that involves $50,000 individually or $100,000 in the aggregate or more and is not cancelable without penalty within 30 days.

(b) Each Material Contract to which the Company or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or its Subsidiary(ies), as the case may be, enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company or its Subsidiary(ies), as the case may be, and, to the Knowledge of the Company, the other parties thereto. To the Company’s Knowledge, there are no disputes with respect to such Material Contract. The Company is in compliance in all material respects with, and has not breached, violated or defaulted under (in any such case, in any material respect), or received notice (including with respect to the payment of any royalties or other payments due thereunder) that it has breached, violated or defaulted under (in any such case, in any material respect), any of the terms or conditions of any such Contract except for Disregarded Conflicts. To the Knowledge of the Company, no party that is obligated to the Company or any of its Subsidiaries pursuant to any such Contract is subject to any breach, violation or default thereunder, and to the Knowledge of the

Company, there is no event that, with the lapse of time, giving of notice or both, would constitute such a breach, violation or default result in a loss of rights or result in the creation of any Encumbrance under or pursuant to such Contract by the Company or any of its Subsidiaries or any such other party except for Disregarded Conflicts.

(c) All outstanding Indebtedness of the Company or any of its Subsidiaries may be prepaid without penalty.

3.12 Environmental Matters . Neither the Company nor any of its Subsidiaries (i) has received any notice or other communication of any alleged claim, violation of or liability under any Environmental Law which has not heretofore been cured or for which there is any remaining liability or (ii) has disposed of, emitted, discharged, handled, stored, transported, used or released any Hazardous Materials so as to give rise to any liability or corrective or remedial obligation under any Environmental Laws. The Company and all of its Subsidiaries have been and are in compliance in all material aspects with all Environmental Laws. To the Knowledge of the Company, there are no Hazardous Materials in, on, under or about the Leased Real Property the presence of which is reasonably likely to result in a material liability to the Company or any of its Subsidiaries.

3.13 Litigation . There is no action, suit, investigation, claim, arbitration or litigation pending or, to the Company’s Knowledge, threatened against or involving the Company, any of its Subsidiaries, or, to the Company’s Knowledge, any of their officers, directors or key employees of with respect to their business activities, or the Company’s and any of its Subsidiaries’ respective assets (including Intellectual Property Rights), at law or in equity, or before or by any court, arbitrator or Governmental Entity. Neither the Company nor any of its Subsidiaries is operating under, or is subject to, any judgment, writ, order, injunction, award or decree of any arbitration or any court, judge, justice or magistrate, including any bankruptcy court or judge, or by any Governmental Entity, and, to the Company’s Knowledge, none is threatened. The Company has no Knowledge of any reasonable basis for any other litigation relating to the Company or any of its Subsidiaries. Set forth on Schedule 3.13 is a list of (i) the material Proceedings and Orders against the Company and its Subsidiaries in the prior five (5) years and (ii) any material settlements entered into by the Company and its Subsidiaries with respect to any threatened Proceeding against the Company or any of its Subsidiaries in the prior five (5) years. The foregoing includes actions pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, or to the Company’s Knowledge, pending or threatened against any of its or its Subsidiaries’ employees, involving the prior employment of any of the Company’s or its Subsidiaries’ employees, their use in connection with the Company’s businesses of any information or techniques allegedly proprietary to any of their former employers or their obligations under any agreements with prior employers. As of the date hereof, there are no Proceedings pending or, to Company’s Knowledge, threatened against or affecting the Company or any of its Subsidiaries in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with the transactions contemplated hereby.

3.14 Compliance with Laws .

(a) The Company and each of its Subsidiaries is in compliance in all material respects and has conducted its business so as to comply in all material respects with all material Laws applicable to its assets and its business and operations, including all material Laws applicable to the Company’s relationship with its employees. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries has violated in any material respects any United States or foreign import or export control laws and regulations, export licensing laws and regulations and customs regulations (including without limitation its obligations under the Foreign Corrupt Practices Act) applicable to the Company and its Subsidiaries. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries has been cited by the United States Department of Commerce, the United States Customs

Service or any other relevant Governmental Entity for any violation of United States laws or regulations relating to importing or exporting of products, materials or services.

(b) The Company and its Subsidiaries is the holder of all material licenses, approvals, authorizations, permits, concessions, certificates and other franchises of any Governmental Entity (“ Governmental Permits ”) required to operate its business and in material compliance with the terms, conditions, limitations, restrictions, standards, prohibitions, requirements and obligations of such Governmental Permits. Schedule 3.14(b) sets forth a list of all such Governmental Permits. The Company’s and its Subsidiaries’ Governmental Permits are in full force and effect in all material respects. The transactions contemplated by this Agreement will not result in a material default under, or a material breach or violation of, or adversely affect the rights and benefits afforded by the Company and its Subsidiaries by, any Governmental Permit except for Disregarded Conflicts.

3.15 Intellectual Property .

(a) Schedule 3.15(a)(1) (i) lists all Registered Intellectual Property owned or purported to be owned by, or filed or held in the name of, the Company or any of its Subsidiaries (the “ Company Registered Intellectual Property ”) and (ii) lists any currently pending proceedings or actions (other than routine, non-substantive actions or proceedings) before any Governmental Entity (including the United States Patent and Trademark Office (the “ PTO ”) or equivalent authority anywhere in the world) in which any of the Company Registered Intellectual Property is involved, including without limitation any proceedings or actions in which claims are raised relating to the validity, enforceability, scope, ownership or infringement of any of the Company Registered Intellectual Property. Schedule 3.15(a)(2) lists all Company Products. To the Knowledge of Company, each item of Company Registered Intellectual Property is valid and subsisting.

(b) Each item of Company Intellectual Property, including all Company Registered Intellectual Property is free and clear of any Liens other than Permitted Encumbrances.

(c) To the extent that any material Company Intellectual Property has been (i) developed or created independently or jointly by any person other than the Company or any of its Subsidiaries for which the Company or any of its Subsidiaries has, directly or indirectly, provided consideration for such development or creation or (ii) otherwise been acquired from any other person, the Company or its Subsidiaries have obtained a valid and irrevocable written assignment for the transfer all rights and exclusive ownership therein.

(d) The Company or one of its Subsidiaries is the exclusive owner of all Company Intellectual Property. Neither the Company nor any of its Subsidiaries has (i) transferred ownership of, or granted any exclusive license of or exclusive right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any Intellectual Property Right that is or was Company Intellectual Property, to any other person or (ii) permitted the Company’s or any Subsidiary’s rights in such Company Intellectual Property to lapse or enter into the public domain.

(e) The operation of the business of the Company and its Subsidiaries as it is currently conducted, or is contemplated to be conducted, by the Company and its Subsidiaries, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture, support, licensing and sale of any Company Product, has not and does not infringe, misappropriate or otherwise violate and will not infringe, misappropriate or otherwise violate when conducted by Parent in substantially the same manner following the Closing, any Intellectual Property Rights of any person, violate any Intellectual Property Right of any person (including any right to privacy or publicity), or constitute unfair competition or trade practices under the laws of any jurisdiction, and neither the Company nor any of its Subsidiaries has received notice from any person claiming that such operation or any act, any Company Product or Intellectual Property of

the Company or any of its Subsidiaries infringes or misappropriates any Intellectual Property Rights of any person or constitutes unfair competition or trade practices under the laws of any jurisdiction. Such representation and warranty shall be deemed, for the purposes of patent infringement claims (other than such claims based on willful patent infringement, where such willfulness is claimed to have existed prior to the Closing) to be deemed made to the Knowledge of the Company.

(f) Neither this Agreement nor the transactions contemplated by this Agreement, including the assignment to Parent or Merger Sub by operation of law or otherwise of any contracts or agreements to which the Company or any of its Subsidiaries is a party, will result in: (i) Parent or any of its subsidiaries granting to any third party any right to or with respect to any Intellectual Property or Intellectual Property Rights owned by, or licensed to, any of them, (ii) Parent or any of its subsidiaries being bound by, or subject to, any non-compete or other material restriction on the operation or scope of their respective businesses, or (iii) Parent or any of its subsidiaries being obligated to pay any royalties or other material amounts, or offer any discounts, to any third party in excess of those payable by, or required to be offered by, any of them, respectively, in the absence of this Agreement or the transactions contemplated hereby.

(g) The Company and its Subsidiaries have not provided notice to any Person that such Person is infringing, misappropriating or otherwise violating any Company Intellectual Property.

(h) The Company and its Subsidiaries have taken commercially reasonable steps that are required or necessary to protect the Company’s and any Subsidiary’s rights in confidential information and trade secrets of the Company and its Subsidiaries related to the Company Products.

(i) All Intellectual Property used in the conduct of Company’s or any Subsidiary’s business as presently conducted or currently contemplated to be conducted by the Company or any of its Subsidiaries (i) was written and created solely by either (1) employees of the Company or any of its Subsidiaries acting within the scope of their employment who have validly and irrevocably assigned all of their rights, including all Intellectual Property and Intellectual Property Rights therein, to the Company or any of its Subsidiaries or (2) by third parties who have validly and irrevocably assigned in writing all of their rights, including all Intellectual Property and Intellectual Property Rights therein, to the Company or any of its Subsidiaries, or (ii) is licensed to Company by a third party pursuant to a valid license agreement.

(j) No Company Intellectual Property, Company Product or Intellectual Property of the Company or any of its Subsidiaries is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any of its Subsidiaries or may affect the validity, use or enforceability of such Company Intellectual Property.

(k) Neither the Company nor any other Person acting on its behalf has disclosed, delivered or licensed to any Person, agreed to disclose, deliver or license to any Person, or permitted the disclosure or delivery to any escrow agent or other Person of, any source code for any Company Products except for disclosures to employees, contractors or consultants under written and enforceable agreements that prohibit use or disclosure except in the performances of services to the Company.

(l) Neither the Company nor its Subsidiaries have inserted into Company Products, and to the Knowledge of the Company, no Company Products contain, any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components that permit unauthorized access or the unauthorized disablement or erasure of such Company Product or data or other software of users (“ Contaminants ”). The Company and each of its Subsidiaries has in place systems and procedures consistent with good (or better) industry standard security practices for enterprise software to prevent the introduction of Contaminants into Company Products from software licensed from third parties.

(m) The Company and each of its Subsidiaries has taken steps consistent with good (or better) industry standard security practices for enterprise software to protect the information technology systems used in connection with the operation of the Company and its Subsidiaries from Contaminants and other loss or impairment of data and related software. To the Knowledge of the Company, there have been no material unauthorized intrusions or breaches of the security of information technology systems.

(n) Schedule 3.15(n) contains a complete and accurate list of all software that is distributed as “open source software” or under a similar licensing or distribution model (including the GNU General Public License and the Lesser General Public License) that is incorporated into or distributed with a Company Product. Based on the Company’s licensing practices as of the date hereof, in no case

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