AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

Confidential and Proprietary

AGREEMENT AND PLAN OF MERGER

Among

ATHENAHEALTH, INC.,

ARIES ACQUISITION CORPORATION,

ANODYNE HEALTH PARTNERS, INC.

and

THE SECURITYHOLDERS’ REPRESENTATIVES

Dated as of October 5, 2009

TABLE OF CONTENTS

AGREEMENT AND PLAN OF MERGER

      THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of October 5, 2009, is by and among athenahealth, Inc., a Delaware corporation (“ Parent ”), Aries Acquisition Corporation, a Delaware corporation (“ MergerCo ”), Anodyne Health Partners, Inc., a Delaware corporation (the “ Company ”) and Richard Maclean and Walter Beinecke, as Securityholders’ Representatives (collectively, the “ Securityholders’ Representatives ”). Certain terms used in this Agreement are defined in Section 1.1 hereof. An index of defined terms used in this Agreement is set forth in Section 1.2 hereof.

      WHEREAS , Parent, MergerCo and the Company wish to effect a business combination through a merger (the “ Merger ”) of MergerCo with and into the Company on the terms and conditions set forth in this Agreement and in accordance the Delaware General Corporation Law (the “ DGCL ”);

      WHEREAS , the Board of Directors of the Company (the “ Company Board ”) has unanimously approved this Agreement, the Merger and the other transactions contemplated by this Agreement and determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interest of its stockholders;

      WHEREAS , the Boards of Directors of Parent and MergerCo have approved this Agreement, the Merger and the other transactions contemplated by this Agreement;

      WHEREAS , the Securityholders’ Representatives, Parent and the Escrow Agent shall enter into an Escrow Agreement to be effective at, and subject to the occurrence of, the Effective Time;

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

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

ARTICLE I — DEFINED TERMS

      Section 1.1 Certain Terms Defined . For the purposes of this Agreement:

     An “ Affiliate ” of any Person shall mean another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, “ control ” (and its derivatives) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of capital stock or other securities, by contract or agreement or otherwise.

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     “ Aggregate Exercise Price ” means the aggregate of the exercise prices of the (i) Company Options issued and outstanding as of immediately prior to the Closing and to the extent vested immediately prior to the Closing and (ii) the Company Warrants issued and outstanding as of immediately prior to the Closing.

     “ Active athena Lead ” means any prospect (i) Parent has had a meeting with within the previous 12 months, (ii) who has had a meeting scheduled with Parent or who is in active discussions with Parent to schedule a meeting, or (iii) who is registered in Parent’s customer management relationship system in Parent’s active sales process which means any stages of meeting, proposal, negotiation, need identification, shared vision or prove value; provided, however, that notwithstanding the foregoing, (a) no BI Customer shall be deemed to be an Active athena Lead, except for the BI Customers set forth on Schedule 5.8, and (b) no prospect shall be considered an Active athena Lead if Parent requests assistance or obtains information regarding such prospect from the Company and in connection therewith, Parent specifically agrees that such prospect shall not be an Active athena Lead.

     “ athenaCollector Bookings ” means an amount equal to (i) the estimated value of new contracts for athenaCollector, as determined by Parent consistent with its past practice, entered into by the Company’s then existing Business Intelligence Products clients during the Bookings Measurement Period multiplied by 0.1667 and (ii) the estimated value of new contracts for athenaCollector, as determined by Parent consistent with its past practice, entered into by (x) prospects during the Bookings Measurement Period that were referred to Parent by the Company that were identified as part of the Company’s sales process and (y) that were not currently an Active athena Lead, multiplied by 0.1667.

     “ Available Escrow Amount ” means the Escrow Amount as reduced by amounts (i) previously distributed from the Escrow Amount to the Securityholders pursuant to Section 3.6 or Section 3. 7 or any Parent/MergerCo Indemnified Party pursuant to Article IX or (ii) subject to any outstanding Indemnity Claims made by any Parent/MergerCo Indemnified Party pursuant to Article IX .

     “ BI Bookings ” means an amount equal to the estimated twelve month value, consistent with Parent’s past practice and prorated from when the new athenaCollector contract is signed until the end of the BI Measurement Period, of new athenaCollector contracts that include Business Intelligence Products as part of the services provided under such contracts which are entered into by prospects during the Bookings Measurement Period who are not then existing clients of the Company or Parent multiplied by 0.0125; provided , that if the estimated value of new athenaCollector contracts would otherwise be included in BI Bookings and athenaCollector Bookings it will only be counted towards athenaCollectorBookings.

     “ BI Measurement Period ” means the period starting on January 1, 2010 and continuing through and including December 31, 2010.

     “ BI Measurement Period Revenues ” means the sum of (a) the BI Revenues and (b) the BI Bookings.

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     “ BI Revenues ” means an amount equal to the sum of (i) the revenue derived from the sale of Business Intelligence Products which is recognized by the Company during the BI Measurement Period and (ii) the revenue recognized by Parent from its then existing athenaCollector clients who purchased or were provided without charge the Business Intelligence Products (as measured from and after the date such Business Intelligence Products are implemented through the end of the BI Measurement Period) multiplied by 0.0125.

     “ BPO Business ” means the Company’s billing services business, consisting of the employees, assets, liabilities, rights and agreements set forth on the schedules to the Contribution Agreement in the form attached hereto as Exhibit K .

     “ BPO Business Spin-Off ” means the contribution of the BPO Business to AHP Billing Services, Inc. and subsequent dividend of all of the capital stock of AHP Billing Services, Inc. to the Company’s Stockholders pursuant to the Contribution Agreement in the form attached hereto as Exhibit K .

     “ Balance Sheet Date ” means June 30, 2009.

     “ Base Amount ” means $22,300,000 in cash.

     “ Base Consideration ” means the Base Amount, subject to the adjustments contemplated by Section 3.5 , less Indebtedness of the Company, if any, outstanding at the Effective Time and assumed or paid by Parent, MergerCo or the Surviving Company pursuant to Section 3.3 less Company Transaction Expenses outstanding at the Effective Time and assumed or paid by Parent, Merger Co or the Surviving Company pursuant to Section 3.4 .

     “ Base Consideration At Closing ” means the Base Consideration less the Securityholders’ Representative Reimbursement Amount.

     “ BI Customer ” means each customer of the Company that utilizes or has contracted to utilize Business Intelligence Products.

     “ Bookings Measurement Period ” means the period starting on the Closing Date and continuing through and including June 30, 2012.

     “ Business ” means the business of the Company, excluding the BPO Business, as currently conducted and proposed to be conducted.

     “ Business Day ” means any day other than a day on which the Securities and Exchange Commission is closed.

     “ Business Intelligence Products ” shall mean any and all current and future versions of Anodyne Analytics and Anodyne Dashboard.

     “ Bylaws ” means the Company’s Bylaws as in effect on the date hereof.

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     “ Certificate of Incorporation ” means the Company’s fifth amended and restated certificate of incorporation filed with the Secretary of State of the State of Delaware on November 26, 2008, as may be amended as of the date hereof.

     “ Certificates ” shall mean the Common Certificates and the Series A Certificates.

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

     “ Common Certificate ” shall mean a stock certificate which immediately prior to the Effective Time represented any shares of Company Common Stock.

     “ Company Capital Stock ” shall mean any of the Company Common Stock and the Series A Preferred Stock.

     “ Company Common Stock ” shall mean any of the Series A Common Stock, Series B Common Stock and Series C Common Stock.

     “ Company Copyrights ” means registered and material unregistered Copyrights owned by the Company or used or held for use by the Company in the Business.

     “ Company Intellectual Property ” includes, without limitation, the Products, Company Patents, Company Marks, Company Copyrights and Company Trade Secrets.

     “ Company Intellectual Property Assets ” means all Intellectual Property Assets owned by the Company or used or held for use by the Company in the Business and all Products.

     “ Company Marks ” means registered and material unregistered Marks owned by the Company or used or held for use by the Company in the Business.

     “ Company Material Adverse Effect ” shall mean any fact, change, event, circumstance, development or effect that (i) is materially adverse to the business, assets, liabilities, condition (financial or otherwise), prospects or results of operations of the Company, taken as a whole, provided , however , that none of the following constitute, or will be considered in determining whether there has occurred, a Company Material Adverse Effect, but with respect to items (a), (c), (d) and (e) only to the extent that such changes, events, circumstances, developments or effects do not adversely affect the Company in a disproportionate manner relative to other similarly situated participants in the industries or markets in which it operates: (a) changes that are the result of factors generally affecting the industries or markets in which the Company operates; (b) changes resulting from the announcement of the transactions contemplated hereby; (c) changes in laws, rules, regulations or GAAP or the interpretation thereof; or (d) changes that are the result of economic factors affecting the national, regional or world economy, acts of God, hostilities or acts of war, sabotage or terrorism or (ii) would materially impair or delay the ability of the Company to perform its obligations hereunder, including the consummation of the Merger.

     “ Company Notes ” means the promissory notes issued to the noteholders party to that certain Note and Restricted Common Stock Purchase Agreement dated as of March 4, 2008, including, but not limited to, the promissory notes, as amended and restated, originally issued to the noteholders pursuant to that certain Note and Restricted Common Stock Purchase Agreement

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dated as of October 3, 2007 and that certain Note and Restricted Common Stock Purchase Agreement dated as of September 1, 2006, and (ii) that certain Subordinated Note and Warrant Issuance Agreement dated as of November 26, 2008.

     “ Company Options ” means an option (whether or not vested or exercisable) to purchase Common Stock that has been granted under the Company Stock Option Plans.

     “ Company Patents ” means Patents owned by the Company or used or held for use by the Company in the Business.

     “ Company Restricted Stock ” means restricted stock (whether or not vested) that has been granted under the Company Stock Option Plans and restricted stock (whether or not vested) granted pursuant to that certain Restricted Stock Purchase Agreement by and between the Company and Michael Funk dated as of May 23, 2009.

     “ Company Stock Option Plans ” means the Company’s Amended and Restated 2006 Stock Incentive Plan and the 2007 Stock Incentive Plan.

     “ Company Trade Secrets ” means Trade Secrets owned by the Company or used or held for use by the Company in the Business.

     “ Company Transaction Expenses ” means all fees, costs or expenses paid or payable by the Company (whether on behalf of itself or on behalf of any of the Securityholders or the Securityholders’ Representatives) in connection with the transactions contemplated hereby, including with respect to financial, accounting, tax and legal advisors to such Persons.

     “ Company Warrants ” means, collectively, the Investor Warrants, the RBC Warrant and the SVB Warrant.

     “ Contract ” means any contract, commitment, agreement, instrument, arrangement, understanding, obligation, undertaking, permit, concession, franchise, license, whether oral or written (including all amendments thereto).

     “ Copyrights ” means copyrights in both published and unpublished works, including without limitation all compilations, databases and computer programs, manuals and other documentation and all copyright registrations and applications, and all derivatives, translations, adaptations and combinations of the above.

     “ Court ” means any court or arbitration tribunal of the United States, any domestic state, any foreign country and any political subdivision or agency thereof.

     “ Credit Agreements ” shall mean that certain Commercial Promissory Note, dated as of February 15, 2008, issued by the Company to RBC Bank (USA) (formerly known as RBC Centura Bank) in the principal amount of $400,000, that certain Amended and Restated Commercial Promissory Note, dated as of November 26, 2008, issued by the Company to RBC Bank (USA) (formerly known as RBC Centura Bank) in the principal amount of $1,500,000, that certain Commercial Promissory Note, dated as of November 26, 2008, issued by the Company to RBC Bank (USA) (formerly known as RBC Centura Bank) in the principal amount of $500,000,

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that certain Loan and Security Agreement, dated February 15, 2008, by and between RBC Centura Bank, the Company and AHP Acquisition Corporation and that certain Modification Agreement, dated November 26, 2008, by and between RBC Bank (USA) (formerly known as RBC Centura Bank), the Company and AHP Acquisition Corporation.

     “ Current Assets ” means, as of the date of determination, the amount of cash and cash equivalents, accounts receivables net of doubtful accounts, prepaid renewal fees and all other current assets of the Company (but excluding any restricted cash), in each case as determined in accordance with GAAP as consistently applied and on a basis consistent with the Base Balance Sheet; provided however, that Current Assets shall exclude deferred expenses.

     “ Current Liabilities ” means, as of date of determination, the amount of accounts payable, accrued expenses, accrued interest, accrued but unpaid Taxes and all other current liabilities of the Company, in each case as determined in accordance with GAAP as consistently applied and on a basis consistent with the Base Balance Sheet. Current Liabilities shall be deemed to include all Company Transaction Expenses that have not been paid on or prior to the Closing Date, including, without limitation, with respect to financial, accounting, tax and legal advisors to such Persons; provided however, that Current Liabilities shall exclude deferred revenues.

     “ Earnout Consideration ” means collectively the BI Revenue Additional Consideration and the athenaCollector Bookings Additional Consideration.

     “ Environment ” shall mean soil, surface waters, groundwater, land, stream sediments, surface or subsurface strata and ambient air and biota living in or on such media.

     “ Environmental Laws ” shall mean all laws relating to protection of the Environment, including, without limitation, the federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Endangered Species Act and similar federal, state and local laws as in effect on the Closing Date.

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

     An “ ERISA Affiliate ” of the Company shall mean any entity that is considered a single employer with the Company under ERISA Section 4001(b) or part of the same “controlled group” as the Company for purposes of ERISA Section 302(d)(8)(c).

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

     “ Fully Diluted Number ” means an amount equal to the sum of, without duplication, (a) the total number of shares of Company Common Stock outstanding immediately prior to the Closing, plus (b) the total number of shares of Company Common Stock issuable upon exercise of Company Options that are issued and outstanding as of immediately prior to the Closing and to the extent vested immediately prior to the Closing, plus (c) the total number of shares of Company Common Stock issuable upon exercise of the Company Warrants, if any such shares are outstanding immediately prior to the Closing (to the extent such Warrants are exercised or Warrant Consideration is payable with respect thereto), plus (d) the total number of shares of

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Common Stock issuable upon conversion of the total number of shares of Series A Preferred Stock outstanding immediately prior to the Closing. Notwithstanding anything to the contrary set forth herein, the calculation of Fully Diluted Number shall not include any shares of Company Capital Stock held by the Company in treasury.

     “ GAAP ” shall mean generally accepted accounting principles as applied in the United States on a consistent basis.

     “ Hazardous Material ” shall mean any pollutant, toxic substance, hazardous waste, hazardous materials, hazardous substances, petroleum or petroleum-containing products as defined in, or listed under, any Environmental Law.

     “ Indebtedness ” means, with respect to the Company, (a) all indebtedness of the Company, whether or not contingent, for borrowed money, (b) all obligations of the Company for the deferred purchase price of property or services, (c) all obligations of the Company evidenced by notes, bonds, debentures or other similar instruments, including any prepayment penalties, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by the Company, (e) all obligations of the Company as lessee under leases that have been or should be recorded as capital leases in accordance with GAAP, (f) all obligations, contingent or otherwise, of the Company under acceptance, letter of credit or similar facilities, (g) all obligations of the Company to purchase, redeem, retire, defease or otherwise acquire for value any equity interest or equity securities of the Company or any warrants, rights or options to acquire such equity interest or equity securities, (h) all Indebtedness of other Persons of any type referred to in clauses (a) through and including (g) above guaranteed directly or indirectly in any manner by the Company, and (i) all Indebtedness of any type referred to in clauses (a) through and including (g) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Encumbrance on property (including accounts and contract rights) owned by the Company, even though the Company has not assumed or become liable for the payment of such Indebtedness.

     “ Indemnifying Securityholders ” means any Stockholder or holder of Company Options or Company Warrants (to the extent such warrants are exercised), or holder of Company Notes.

     “ Intellectual Property Assets ” means any and all of the following, as they exist throughout the world: (a) Patents, (b) Marks, (c) Copyrights, (d) Trade Secrets, (e) any and all other intellectual property rights and/or proprietary rights relating to any of the foregoing, and (f) goodwill, franchises, licenses, permits, consents, approvals, and claims of infringement and misappropriation against third parties.

     “ Investor Warrants ” means, collectively, that certain Warrant to Purchase Series B Common Stock, dated as of November 26, 2008, issued to Brook Venture Fund IIA, L.P. and that certain Warrant to Purchase Series B Common Stock, dated as of November 26, 2008, issued to Frontier Fund I, L.P..

     “ IRS ” shall mean the United States Internal Revenue Service.

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     “ knowledge ,” “ to the Company’s knowledge ” and words and phrases of similar import shall mean the actual knowledge or awareness of the following executive officers of the Company: Michael Funk, Gil Kochman, Sean Molley, and Davin Juckett.

     “ Law ” means any federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law).

     “ Licenses In ” means licenses, sublicenses or other agreements under which the Company is granted rights by others in Intellectual Property Assets.

     “ Licenses Out ” means licenses, sublicenses or other agreements under which the Company has granted rights to others in Intellectual Property Assets.

     “ Lien ” means, with respect to any asset, any mortgage, lien, license, pledge, charge, security interest, restriction or encumbrance of any kind in respect of such asset.

     “ Losses ” of a Person shall mean, without duplication, any and all losses, liabilities, damages, claims, awards, judgments, costs and expenses, interest and penalties (including, without limitation, reasonable attorneys’ fees actually incurred) asserted against, imposed upon or sustained or incurred by such Person. Notwithstanding the above, Losses shall not include any punitive damages, incidental and consequential damages, damages for lost profits or damages for diminution in value.

     “ Marks ” means rights in registered and unregistered trademarks, service marks, trade names, trade dress, logos, packaging design, slogans and Internet domain names, and registrations and applications for registration of any of the foregoing.

     “ Merger Consideration ” means the sum of (a) the Base Consideration, (b) the BI Revenue Additional Consideration, if any, and (c) the athenaCollector Bookings Additional Consideration, if any.

     “ Noteholders ” means the holders of the Company Notes.

     “ Option Consideration ” means, with respect to any Company Option, an amount equal to (a) the number of shares of Company Common Stock into which such Company Option is exercisable immediately prior the Closing to the extent vested as of such time multiplied by (b) the excess, if any, of the Per Share Common Consideration over the exercise price per share of such Company Option.

     “ Order ” means any judgment, order, decision, writ, injunction, ruling or decree of, or any settlement under the jurisdiction of, any Court or Governmental Authority.

     “ Parent Material Adverse Effect ” shall mean any fact, change, event, circumstance, development or effect that (i) is materially adverse to the business, assets, liabilities, condition (financial or otherwise), prospects or results of operations of Parent and MergerCo, taken as a whole, or (ii) would materially impair or delay the ability of Parent or MergerCo to perform its obligations hereunder, including the consummation of the Merger.

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     “ Patents ” means patents, patent applications of any kind, patent rights, inventions, discoveries and invention disclosures (whether or not patented).

     “ Per Share Common Consideration ” means an amount equal to (a) (i) the Merger Consideration, minus (ii) the aggregate Per Share Series A Liquidation Payment, plus (iii) the Aggregate Exercise Price, divided by (b) the Fully Diluted Number.

     “ Per Share Series A Consideration ” means an amount equal to (a) the Per Share Series A Liquidation Payment, plus (b) the amount determined by multiplying (i) the quotient of (A) the Series A Original Issue Price (as defined in the Certificate of Incorporation) divided by (B) the Series A Conversion Price (as defined in the Certificate of Incorporation) by (ii) the Per Share Common Consideration, which quotient in clause (b)(i) the Company hereby represents and warrants is, as of the date hereof, equal to one (1).

     “ Per Share Series A Liquidation Payment ” means an amount equal to the Series A Original Issue Price (as defined in the Certificate of Incorporation), which amount the Company hereby represents and warrants is equal to $1.00.

     “ Person ” shall mean an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity or group (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended).

     “ Products ” means products, computer programs and/or services and related documentation currently or previously researched, designed, developed, manufactured, performed, licensed, sold, distributed and/or otherwise made available by the Company in connection with the Business.

     “ Release ” shall mean any releasing, disposing, discharging, injecting, spilling, leaking, pumping, dumping, emitting, escaping or emptying of a Hazardous Material into the Environment.

     “ RBC Warrant ” shall mean that certain Warrant to Purchase Series B Common Stock, dated as of March 7, 2008, issued to RBC Centura Bank.

     “ Securityholders ” means any Stockholder or holder of Company Options or Company Warrants (to the extent such warrants are exercised).

     “ Series A Certificate ” shall mean a stock certificate which immediately prior to the Effective Time represented any shares of Series A Preferred Stock.

     “ Series A Common Stock ” means the Series A Common Stock, $0.001 par value per share.

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

     “ Series B Common Stock ” means the Series B Common Stock, $0.001 par value per share.

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     “ Series C Common Stock ” means the Series C Common Stock, $0.001 par value per share.

     “ Subsidiaries ” means the subsidiaries of the Company identified on Schedule 4.3 .

     “ SVB Warrant ” shall mean that certain Warrant to Purchase Series B Common Stock, dated as of June 26, 2007, issued to Silicon Valley Bank.

     “ Tax ” or “ Taxes ” means any federal, state, local, or non-U.S. income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code §59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person.

     “ Tax Returns ” means all returns, declarations, reports, claims for refund, information statements and other documents relating to Taxes, including all schedules and attachments thereto, and including all amendments thereof.

     “ Tax Authority ” means any Governmental Authority responsible for the imposition or collection of any Tax.

     “ Trade Secrets ” means rights in know-how, trade secrets, confidential or proprietary information, research in progress, algorithms, data, designs, processes, formulae, drawings, schematics, blueprints, flow charts, models, strategies, prototypes, techniques, testing procedures and testing results.

     “ Transaction Documents ” means this Agreement, the Escrow Agreement and such other instruments and agreements required by this Agreement to be executed and delivered hereunder.

     “ Treasury Regulations ” means the Treasury Regulations (including temporary regulations) promulgated by the United States Department of Treasury with respect to the Code or other federal tax statutes.

     “ WARN ” shall mean the Worker Adjustment and Retraining Notification Act of 1988, as amended.

     “ Warrant Consideration ” means, with respect to the Company Warrants, a cash amount equal to (a) the number of shares of Series B Common Stock into which it is exercisable immediately prior the Closing, to the extent vested and exercisable, multiplied by (b) the excess, if any, of the Per Share Common Consideration over the exercise price per share thereof (which exercise price the Company hereby represents and warrants is $0.01 per share of Series B Common Stock, in the case of the Investor Warrants, $1.35 per share of Series B Common Stock, in the case of the RBC Warrant and $1.0258 per share of Series B Common Stock, in the case of the SVB Warrant).

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      Section 1.2 Definitions . The following terms have the meanings set forth in the Sections set forth opposite such term below:

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ARTICLE II — THE MERGER; EFFECT OF THE MERGER ON THE COMPANY
CAPITAL STOCK

      Section 2.1 The Merger . Subject to the terms and conditions of this Agreement and in accordance with the DGCL, at the Effective Time, the Company and MergerCo shall consummate the Merger pursuant to which (a) MergerCo shall be merged with and into the Company and the separate corporate existence of MergerCo shall thereupon cease, (b) the Company shall be the surviving company in the Merger (the “ Surviving Company ”) and shall continue to be governed by the laws of the State of Delaware and (c) the separate corporate

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existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger. The Merger shall have the effects specified in the DGCL.

      Section 2.2 Effective Time . On the Closing Date, MergerCo and the Company shall duly execute the certificate of merger substantially in the form attached hereto as Exhibit A (the “ Certificate of Merger ”) and file such Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL. The Merger shall become effective at such time as the Certificate of Merger, accompanied by payment of the filing fee (as provided in the DGCL), has been examined by, and received the endorsed approval of, the Secretary of State of the State of Delaware, or at such subsequent time as Parent and Company shall agree and shall specify in the Certificate of Merger (the date and time the Merger becomes effective being the “ Effective Time ”).

      Section 2.3 Certificate of Incorporation and Bylaws . The certificate of incorporation of MergerCo, as in effect immediately prior to the Effective Time, shall be amended as set forth on Exhibit B hereto and, as amended, shall be the certificate of incorporation of the Surviving Company until thereafter amended as provided by law and by the terms of such certificate of incorporation. The bylaws of MergerCo, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Company until thereafter amended as provided by law, by the terms of the certificate of incorporation of the Surviving Company and by the terms of such bylaws. Notwithstanding the foregoing, the name of the Surviving Company shall be “Anodyne Health Partners, Inc.” and the certificate of incorporation and bylaws of the Surviving Company shall so provide.

      Section 2.4 Closing . The closing of the Merger (the “ Closing ”) shall occur as promptly as practicable (but in no event later than the third Business Day) after all of the conditions set forth in Article VIII shall have been satisfied or, if permissible, waived by the party entitled to the benefit of the same (other than those that by their terms are to be satisfied or waived at the Closing), and, subject to the foregoing, shall take place at such time and on a date to be specified by the parties (the “ Closing Date ”). The Closing shall take place at the offices of Goodwin Procter LLP, Exchange Place, Boston, Massachusetts 02109, or at such other place as agreed to by the parties hereto.

      Section 2.5 Board Representatives and Officers . The members of the Board of Directors of MergerCo and the officers of MergerCo immediately prior to the Effective Time shall be the initial members of the Board of Directors of the Surviving Company and the officers of the Surviving Company, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Company.

      Section 2.6 Effect on Company Capital Stock . As of the Effective Time, by virtue of the Merger and without any action on the part of the holders of any Company Capital Stock (each a “ Stockholder ,” and collectively, the “ Stockholders ”) or any holders of capital stock of MergerCo:

          (a) All shares of common stock, par value $0.001 per share, of MergerCo issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into 1,000 fully paid and

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nonassessable shares of common stock, par value $0.01 per share, of the Surviving Company following the Merger, and such shares shall constitute the only outstanding shares of capital stock of the Surviving Company.

          (b) Each share of Company Capital Stock that is owned by the Company, by Parent, by MergerCo, or by any other wholly owned subsidiary of Parent, shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor.

          (c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 2.6(b) and any Dissenting Shares) will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the Per Share Common Consideration, without interest. As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a Common Certificate shall cease to have any rights with respect thereto, except the right to receive (subject to any adjustments specified herein and subject to any applicable withholding Tax as specified in Section 3.1(f) ), upon the surrender of such Common Stock Certificate or the delivery of an affidavit as described in Section 3.1(d) , the Per Share Common Consideration, without interest.

          (d) Each share of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 2.6(b) and any Dissenting Shares) will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the Per Share Series A Consideration, without interest. As of the Effective Time, all such shares of Series A Preferred Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a Series A Certificate shall cease to have any rights with respect thereto, except the right to receive (subject to any adjustments specified herein and subject to any applicable withholding Tax as specified in Section 3.1(f) ), upon the surrender of such Series A Certificate or the delivery of an affidavit as described in Section 3.1(d) , the Per Share Series A Consideration, without interest.

      Section 2.7 Treatment of Company Options; Company Restricted Stock and Company Stock Option Plans .

          (a) Immediately prior to the Effective Time, the Company shall cause all Company Options issued and outstanding at such time to be, in connection with the Merger, accelerated in accordance with the terms of the Company Stock Option Plans. At the Effective Time, all Company Options outstanding immediately prior to the Effective Time that have not been exercised will be cancelled in exchange for a cash payment in the amount of the Option Consideration, if any, without interest, with respect to such Company Options and such Company Options thereupon shall no longer represent the right to purchase Company Common Stock or any other equity security of the Company, Parent, the Surviving Corporation or any other Person or the right to receive any other consideration. On or immediately prior to the Effective Time, each holder of a Company Option outstanding immediately prior to the Effective Time (each an “ Optionholder ,” and collectively the “ Optionholders ”) shall be entitled to receive

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(subject to any adjustments specified herein and subject to any applicable withholding Tax as specified in Section 3.1(f) ) the Option Consideration, if any, without interest. As promptly as practicable after the Closing, Parent shall pay, or shall cause the Surviving Corporation to pay, to each Optionholder cash constituting the Option Consideration to which such Optionholder is entitled pursuant to this Section 2.7(a) (less any applicable withholding Tax as specified in Section 3.1(f) ).

          (b) Immediately prior to the Effective Time, the Company shall cause all restrictions on the Company Restricted Stock to lapse in accordance with the terms of such Company Restricted Stock’s award agreement and such Company Restricted Stock shall be automatically converted into and represent only the right to receive (subject to any adjustments specified herein and subject to any applicable withholding Tax as specified in Section 3.1(f) ) an amount in cash, with respect to each share of Company Restricted Stock, equal to the Per Share Common Consideration.

          (c) The Company shall take all necessary steps as may be required to effect the provisions of Section 2.7(a) and (b) and to terminate the Company Stock Option Plans.

      Section 2.8 Treatment of Company Warrants .

          (a) At the Effective Time, if any Company Warrant is then outstanding, such Company Warrant shall, upon the Effective Time and in accordance with Section 7.1 of the Investor Warrants, Section 1.6.3 of the RBC Warrant and Section 1.6.2 of the SVB Warrant, entitle the holder thereof to receive, upon exercise thereof, an amount in cash equal to the Warrant Consideration, if any, without interest, and upon payment thereof shall be automatically cancelled and terminated.

          (b) For the avoidance of doubt, if any Company Warrant is exercised for its underlying shares of Company Common Stock prior to Closing, then the holder of such Company Warrant shall receive, in respect of each such underlying share, the Per Share Common Consideration to which it is entitled pursuant to Section 2.6 as a Stockholder hereunder.

ARTICLE III — PAYMENT FOR SECURITIES

      Section 3.1 Payment for Company Capital Stock, Company Options, Company Warrants and Company Notes .

          (a) Parent shall make the following payments:

     (i) As soon as practicable following the date of this Agreement and in any event not less than five Business Days before the Closing Date, Parent shall appoint a national bank or trust company reasonably acceptable to the Company to act as paying agent (the “ Paying Agent ”) in the Merger. Promptly following the Effective Time, but in any event not later than one (1) Business Day following the Effective Time, Parent shall deposit with the Paying Agent, for the benefit of the Securityholders, for payment through the Paying Agent in accordance with this Section 3.1 ,

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cash in an amount (the “ Payment Fund ”) equal to the Base Consideration At Closing. Promptly following the Effective Time, the Paying Agent shall, pursuant to irrevocable instructions, make the payments provided for in Sections 2.6 , 2.7(b) , and 2.8 out of the Payment Fund. The Payment Fund shall not be used for any other purpose, except as provided in this Agreement. The Company has prepared an estimated schedule of the allocation of the Base Consideration At Closing payable to the Securityholders, which is attached hereto as Exhibit C (the “ Base Consideration Allocation Schedule ”). The parties hereto acknowledge and agree that the Company will amend the Base Consideration Allocation Schedule as of the Effective Time to (i) reflect any actual adjustments and allocation of the Merger Consideration required by Section 3.5(a)(ii) or necessary in connection with the exercise of any options or warrants; and (ii) instruct the Paying Agent as to the portion of the Payment Fund payable as of the Effective Time to each of the Securityholders.

     (ii) No later than the Closing, Parent shall, pursuant to irrevocable instructions, pay the Noteholders in accordance with this Section 3.1 , cash in an amount equal to the amounts set forth on Exhibit D attached hereto (such amounts the “ Noteholder Closing Payments ”), as adjusted below as of the Closing Date. The Company has prepared an estimated schedule of the allocation of the Noteholder Closing Payments payable to the Noteholders, which is attached hereto as Exhibit D . The Company shall deliver to Parent on the Closing Date, a revised schedule to the Noteholder Closing Payments as adjusted for any additional accrued interest through and including the Closing Date.

     (iii) At the Effective Time, Parent shall cause to be delivered to JP Morgan Chase Bank, National Association (the “ Escrow Agent ”) an amount of cash equal to $7,700,000 (the “ Escrow Amount ”). The Escrow Amount shall be held by the Escrow Agent in a separate account (the “Escrow Fund”) solely for purposes of (a) the payment to Parent of the Final Net Working Capital Adjustment Amount, if any such payment is required by Section 3.5(b)(iii)(A) hereof, (b) the payment to the Securityholders and TripleTree, LLC of the BI Revenue Additional Consideration, if any such payment is required by Section 3.6 hereof, (c) the payment to the Securityholders and TripleTree, LLC of the athenaCollector Bookings Additional Consideration, if any such payment is required by Section 3.7 hereof, or (d) the payment to Parent in satisfaction of any indemnification or other claims of any Parent/MergerCo Indemnified Party required by Article IX . At the Effective Time, Parent shall cause to be delivered to the Escrow Agent an amount of cash equal to $100,000 (the “ Securityholders’ Representative Reimbursement Amount ”) of the Base Amount. The Securityholders’ Representative Reimbursement Amount shall be held by the Escrow Agent in an account (which will be a separate and segregated account from the Escrow Fund) for purposes of satisfying the Securityholders’

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obligations to the Securityholders’ Representative under this Agreement. The Securityholders’ Representative Amount shall be governed by the terms of an escrow agreement to be entered into by and among Parent, the Securityholders’ Representatives and the Escrow Agent, such escrow agreement to be substantially in the form attached hereto as Exhibit F (the “ Escrow Agreement ”). The Company has prepared an estimated schedule of the allocation of the Escrow Amount payable to the Securityholders and TripleTree, LLC, which is attached hereto as Exhibit E (the “ Escrow Allocation Schedule ”). The Escrow Fund shall be governed by the terms of the Escrow Agreement. The parties hereto acknowledge and agree that the Company will amend the Escrow Consideration Allocation Schedule as of the Effective Time to (i) reflect any actual adjustments and allocation of the Merger Consideration required by Section 3.5(a)(ii) or necessary in connection with the exercise of any options or warrants; and (ii) instruct the Escrow Agent as to the portion of the Payment Fund payable as of the Effective Time to each of the Securityholders and Triple Tree, LLC. For federal income tax purposes, any payment made by the Escrow Agent to the Securityholders shall be treated as deferred Merger Consideration and shall be subject to imputation of interest under Section 483 or Section 1274 of the Code. Any interest or other income earned on the Escrow Amount will be included in the gross income of Parent in accordance with Proposed Treasury Regulations under Section 468B(g) of the Code.

     (iv) Each Securityholder’s percentage interest in the Escrow Amount in the event any such amounts (including any interest or other income earned thereon) may be ultimately released and distributed to the Securityholders is set forth on the Escrow Allocation Schedule.

          (b) No later than the Closing, the Company shall, or shall cause each Noteholder to deliver a letter of transmittal in the form attached hereto as Exhibit G (the “ Noteholder Letter of Transmittal ”), which specifies that delivery shall be effected, and risk of loss and title of the Company Notes shall pass, only upon proper delivery of the Company Notes to the Parent and payment instructions for payment of the Noteholder Closing Payment attributable to each Company Note. As soon as reasonably practicable following the Effective Time, Parent shall, or shall cause the Surviving Company to deliver to the Securityholders a letter of transmittal in the form attached hereto as Exhibit H (the “ Equityholder Letter of Transmittal ” and individually and collectively with the Noteholder Letter of Transmittal, the “ Letter of Transmittal ”), which specifies that delivery shall be effected, and risk of loss and title to shares of Company Capital Stock shall pass, only upon proper delivery of the Certificates to the Paying Agent and instructions for use in effecting the surrender of a Certificate in exchange for the Base Consideration At Closing attributable to each share formerly represented by such Certificate. Upon surrender of a Company Note to the Parent or a Certificate (if applicable) to the Paying Agent, together with such applicable Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, (i) the Noteholder shall be entitled to receive payment in cash in the amount set forth opposite such Noteholder’s name on Exhibit D , and the Company Note so surrendered shall forthwith be canceled as of the Closing and (ii) the holder of such

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Certificate shall be entitled to receive in exchange therefor cash in an amount equal to the product of the number of shares represented by such Certificate multiplied by the portion of the Base Consideration At Closing attributable to such shares (subject to any applicable withholding Tax as specified in Section 3.1(f) ), and the Certificate (if applicable) so surrendered shall forthwith be canceled as of the Effective Time.

          (c) If payment is to be made to a Person other than the Person in whose name the Certificate or Company Note surrendered is registered, it shall be a condition of payment that the Certificate or Company Note so surrendered shall be properly endorsed or otherwise in proper form for transfer and delivered to Parent or the Paying Agent, as applicable, with all documents required to evidence and effect such transfer and that the Person requesting such payment pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of the Certificate or Company Note surrendered or establish to the satisfaction of the Surviving Company that such Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1(c) , each Certificate (other than Certificates representing shares of Company Capital Stock to be canceled in accordance with Section 2.6(b) and Dissenting Shares) or Company Note shall at any time after the Effective Time represent solely the right to receive, upon such surrender the amount contemplated by Sections 2.6 or 3.1(c) .

          (d) If any Company Note shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Note to be lost, stolen or destroyed, the Parent will deliver as payment for such lost, stolen or destroyed Company Note the portion of the Noteholder Closing Payments attributable to such Company Note. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, the Paying Agent will deliver in exchange for such lost, stolen or destroyed Certificate the portion of the Base Consideration At Closing attributable to each share formerly represented thereby. Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Note or Certificate to deliver to Parent an affidavit which includes an indemnity against any claim that may be made against Parent or the Surviving Company with respect to the Certificate or Company Note alleged to have been lost, stolen or destroyed.

          (e) To the extent permitted by applicable law, none of Parent, MergerCo, the Company, the Surviving Company or the Paying Agent shall be liable to any Person in respect of any portion of the Base Consideration At Closing from the Payment Fund or Noteholder Closing Payments properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificate or Company Note shall not have been surrendered prior to twelve (12) months after the Effective Time, any such shares, cash, dividends or distributions in respect of such Certificate or Company Note shall, to the extent permitted by applicable law, become the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.

          (f) Each of the Paying Agent, the Surviving Company and Parent shall be entitled to deduct and withhold from the portion of the Base Consideration At Closing attributable to any share of Company Capital Stock, any Company Options, any Company Warrants, the portion of the Noteholder Closing Payments attributable to any Company Note or

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amounts otherwise payable pursuant to this Agreement to any holder thereof, such amounts as are required to be withheld with respect to the making of such payment under the Code, and the rules and regulations promulgated thereunder, or any provision of United States federal, state or local tax laws. To the extent that amounts are so withheld, such withheld amounts shall be (i) remitted by the Paying Agent, the Surviving Company and Parent, as the case may be, to the applicable Governmental Authority and (ii) treated for all purposes of this Agreement as having been paid to the holder thereof in respect of which such deduction and withholding was made.

          (g) The right to receive a portion of the Merger Consideration or Noteholder Closing Payments in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to Company Stock, Company Options, Company Warrants and Company Notes, as applicable. At the Effective Time, the stock transfer books of the Company shall be closed and no further registration of transfers of shares or notes shall thereafter be made on the records of the Company. If, after the Effective Time, Certificates or Company Notes are presented to the Surviving Company for transfer, such Certificates or Company Notes shall be canceled and exchanged for the Merger Consideration or Noteholder Closing Payments, as applicable, as provided in this Article III , subject, in the case of a Certificate, to applicable law in the case of Dissenting Shares.

          (h) Parent shall cause the Paying Agent to invest any cash included in the Payment Fund as directed by Parent in a cash compensation account of the Paying Agent. Any interest and other income resulting from such investments shall be the property of and will be promptly paid to Parent. If for any reason (including losses) the cash in the Payment Fund shall be insufficient to fully satisfy all of the payment obligations to be made by the Paying Agent hereunder, Parent shall promptly deposit cash into the Payment Fund in an amount that is equal to the deficiency in the amount of cash required to fully satisfy such payment obligations.

          (i) Promptly following the date that is twelve (12) months after the Effective Time, Parent shall cause the Paying Agent to deliver to the Surviving Company all cash, Certificates and other documents in its possession relating to the Merger, and the Paying Agent’s duties shall terminate. Any former Stockholders or Noteholders who have not complied with Section 3.1 prior to the end of such twelve (12) month period shall thereafter look only to the Surviving Company (subject to abandoned property, escheat or other similar laws) for payment of their claim for right to receive the Merger Consideration or the Noteholder Closing Payments, as applicable. If any Certificates or Company Notes shall not have been surrendered immediately prior to the date that such unclaimed funds would otherwise become subject to any abandoned property, escheat or similar law unclaimed funds payable with respect to such Certificates or Company Notes shall, to the extent permitted by applicable law, become the property of Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.

      Section 3.2 Appraisal Rights .

          (a) The Company shall comply with all requirements of Section 262 of the DGCL and shall keep Parent promptly informed of all matters relating thereto.

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          (b) Notwithstanding anything in this Agreement to the contrary but only to the extent required by the DGCL, any shares of Company Capital Stock outstanding immediately prior to the Effective Time held by any holder who has not voted in favor of the Merger and is otherwise entitled to demand, and who properly demands, to receive payment of the fair value for such shares of Company Capital Stock in accordance with Section 262 of the DGCL (such shares, “ Dissenting Shares ”) shall not be converted pursuant to Section 2.6 into the right to receive the Merger Consideration unless such holder fails to perfect or otherwise effectively withdraws or loses such holder’s right to receive payment of the fair value of such Dissenting Shares. If, after the Effective Time, such holder fails to perfect or loses its right to demand or receive such payment, such shares of Company Capital Stock shall be treated as if they had been converted as of the Effective Time into the right to receive Merger Consideration, without interest thereon, pursuant to Section 2.6 .

          (c) The Company shall give Parent (i) prompt notice and a copy of any notice of a Stockholder’s demand for payment or objection to the Merger, of any request to withdraw a demand for payment and of any other instrument delivered to it pursuant to Section 262 of the DGCL and (ii) the opportunity to participate in all negotiations and proceedings with respect to such demands, objections and requests. Except with the prior written consent of Parent, the Company shall not make any payment with respect to any such demands, objections and requests and shall not settle (or offer to settle) any such demands, objections and requests or approve any withdrawal of the same.

      Section 3.3 Payments at Closing for Indebtedness of the Company . At the Closing (and at least three Business Days prior to the Closing, an estimate thereof), the Company shall deliver a certificate setting forth an itemized list of any and all Indebtedness and Company Transaction Expenses. As of the Effective Time, Parent and MergerCo shall provide sufficient funds to the Surviving Company to enable the Surviving Company to repay or assume any outstanding Indebtedness of the Company. Parent and MergerCo will cooperate in arranging for such repayment and shall take such reasonable actions as may be necessary to facilitate such repayment and to facilitate the release, in connection with such repayment, of any mortgage, pledge, lien, conditional sale agreement, security title, encumbrance or other charge (collectively, “ Encumbrances ”) securing such Indebtedness of the Company.

      Section 3.4 Payments at Closing for Company Transaction Expenses . As of the Effective Time, Parent and MergerCo shall provide sufficient funds to the Company to enable the Company to pay, and the Company shall pay, any outstanding Company Transaction Expenses that have not been paid prior to the Closing Date.

      Section 3.5 Working Capital Adjustment .

          (a)  Preparation of Estimated Closing Balance Sheet; Estimated Net Working Capital .

     (i) The Company shall prepare in good faith and, at least three Business Days prior to the Closing Date, deliver to Parent (A) an estimated balance sheet of the Company, which shall be reasonably acceptable to Parent, as of the close of business on the day immediately

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prior to the Closing Date, reflecting thereon the Company’s best estimate of all balance sheet items of the Company (the “ Estimated Closing Balance Sheet ”) and (B) the Net Working Capital of the Company as of the close of business on the day immediately prior to the Closing Date based on the Estimated Closing Balance Sheet (“ Estimated Net Working Capital ”). The Estimated Closing Balance Sheet shall be prepared in accordance with GAAP, consistently applied (except no footnotes shall be required), and using the same GAAP accounting principles, practices, methodologies and policies, that were used to prepare the Base Balance Sheet.

     (ii) The cash consideration to be paid by Parent at Closing shall be adjusted, dollar for dollar, down to the extent that the Estimated Net Working Capital is less than the Net Working Capital target of $265,000. The cash consideration to be paid by Parent at Closing shall be adjusted, dollar for dollar, up to the extent that the Estimated Net Working Capital is greater than the Net Working Capital target of $265,000. The difference between the Estimated Net Working Capital and such Net Working Capital target is referred to as the “ Estimated Net Working Capital Adjustment Amount .”

     (iii) As used in this Section 3.5 , the term “ Net Working Capital ” means, as of the date of determination, an amount equal to the difference at such time of (A) the sum of all Current Assets minus (B) the sum of all Current Liabilities.

          (b)  Preparation of Final Closing Balance Sheet .

     (i) As promptly as practicable, but no later than 90 days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Representatives (A) a balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date, reflecting thereon Parent’s best estimate of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the day immediately prior to the Closing Date (the “ Closing Balance Sheet ”) and (B) the Net Working Capital of the Company based on the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet.

     (ii) Unless the Securityholders’ Representatives deliver the Dispute Notice within 30 days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “ Final Closing Balance Sheet ,” shall be binding upon the Securityholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Representatives

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disagree with the Closing Balance Sheet, the Securityholders’ Representatives may, within 30 days after receipt thereof, notify Parent in writing (the “ Dispute Notice ”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Representatives shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b) . Parent and the Securityholders’ Representatives shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Representatives are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “ Final Closing Balance Sheet ” and shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Representatives are unable to resolve the dispute within 15 days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Representatives shall submit the dispute to a mutually acceptable independent accounting firm (the “ Accountants ”). The Accountants shall act as experts and not arbiters and shall determine only those items in dispute on the Closing Balance Sheet. Promptly, but no later than 30 days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Representatives as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “ Final Closing Balance Sheet ,” shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b) shall be paid by (A) the Securityholders (from the Escrow Fund), if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Representatives’ calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Securityholders (from the Escrow Fund) and Parent. Parent and the Securityholders’ Representatives agree that they will, and agree to cause their respective representatives and independent accountants to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b) , including, without limitation, the making available to the extent necessary of books, records, work papers and personnel.

     (iii) The Merger Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Net Working Capital set forth on the Final Net Working Capital Calculation (the “ Closing Net Working Capital ”) is greater than or less than the Estimated

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Net Working Capital, as applicable. Within three Business Days following determination of the Closing Net Working Capital in accordance with Section 3.5(b)(ii) , (A) if the Closing Net Working Capital is less than the Estimated Net Working Capital, Parent and the Securityholders’ Representatives shall jointly direct the Escrow Agent to pay to Parent from the Escrow Fund an amount equal to the difference between such amounts and to deliver the balance amount, if any, to Parent and (B) if the Closing Net Working Capital is greater than the Estimated Net Working Capital, Parent shall deliver or cause to be delivered to the Paying Agent the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital, and Parent shall cause the Paying Agent to distribute such amount to the Securityholders and Triple Tree, LLC in accordance with the Base Consideration Allocation Schedule. The difference between the Closing Net Working Capital and the Estimated Net Working Capital, whether a positive or a negative number, is referred to as the “ Final Net Working Capital Adjustment Amount .”

      Section 3.6 BI Revenue Additional Consideration .

          (a)  Preparation of BI Revenue Additional Consideration Calculation . Within 30 days after the final close of Parent’s audit for the fiscal year ended December 31, 2010, Parent shall prepare and deliver to the Securityholders’ Representatives a calculation of BI Measurement Period Revenues.

          (b)  Disagreements .

     (i) The Securityholders’ Representatives may dispute any element of the calculation of the BI Measurement Period Revenues by notifying Parent of such disagreement in writing and setting forth in reasonable detail the particulars of such disagreement, within 20 days after its receipt of the calculation of such BI Measurement Period Revenues. In the event that the Securityholders’ Representatives do not provide such a notice of disagreement within such 20-day period, the Securityholders’ Representatives shall be deemed to have accepted the calculation of the BI Measurement Period Revenues delivered by Parent, which shall be final, binding and conclusive for all purposes hereunder.

     (ii) In the event any such notice of disagreement is provided on a timely basis, Parent and the Securityholders’ Representatives shall attempt, for a period of 15 days (or such longer period as they may mutually agree), to resolve any disagreements with respect to the calculation of the BI Measurement Period Revenues. If, at the end of such period, Parent and the Securityholders’ Representatives are unable to resolve such disagreements, then the Accountants shall resolve any remaining disagreements.

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     (iii) The Accountants shall determine as promptly as practicable, but in any event within 30 days of the date on which such dispute is referred to the Accountants, whether such BI Measurement Period Revenues were properly calculated, and shall deliver to Parent and the Securityholders’ Representatives a written report setting forth its findings, which shall be final, conclusive and binding on Parent and the Securityholders. The fees and expenses of the Accountants in connection with its services under this Section 3.6(b) shall be paid (A) by Parent if the Accountants’ calculation of the BI Measurement Period Revenues is closer to the Securityholders’ Representatives’ calculation of the BI Measurement Period Revenues than such calculation by Parent, (B) by the Securityholders (from the Escrow Account) if the reverse is true or (C) otherwise equally by Parent and the Securityholders (from the Escrow Account).

     (iv) Each party shall, and shall cause its representatives to, cooperate with the other and provide timely access to information for purposes of resolving any dispute pursuant to this Section 3.6(b) , including without limitation, making available to the other parties such books, records, work papers, reports of Parent’s outside independent certified public accountants, and personnel, to the extent necessary. Parent covenants and agrees that during the BI Measurement Period the books and records of the Surviving Company shall be maintained in a manner that will allow Parent’s accounting firm to reasonably determine the BI Revenue Additional Consideration pursuant to this Agreement.

          (c)  Quarterly Reports . Within 45 days following the end of each fiscal quarter during the BI Measurement Period, Parent shall prepare and deliver to the Securityholders’ Representatives a calculation of BI Measurement Period Revenues measured as of the end of such fiscal quarter. The quarterly reports delivered pursuant to this Section 3.6(c) shall be for review purposes only, and shall not be subject to the disagreement provisions of Section 3.6(b) or the basis for payment of any BI Revenue Additional Consideration pursuant to Section 3.6(d) . However, if the Securityholders’ Representatives have questions or concerns then the Securityholders’ Representatives will be provided, upon the Securityholders’ Representatives’ reasonable request, with access to the Parent’s and the Company’s books and records and chief financial officer in order for the Securityholders’ Representatives to ask and evaluate the Securityholders’ Representatives’ questions and to address the Securityholders’ Representatives’ concerns.

          (d)  Payment . Subject to Section 3.6(e) , Parent shall cause the Escrow Agent to distribute from the Escrow Fund in accordance with the Escrow Allocation Schedule, no later than the later of (i) 45 days after the final close for Parent’s audit for the fiscal year ended December 31, 2010 (but no later than March 16, 2011) and (ii) ten Business Days after the BI Measurement Period Revenues are finally determined pursuant to Section 3.6(b) (but, subject to Section 3.6(b) no later than March 16, 2011), an aggregate amount determined in accordance with Exhibit I .

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          (e)  Payment Limitation . The amount payable pursuant to Section 3.6(d) shall be reduced by (and the Escrow Agent shall retain in the Escrow Fund pursuant to the terms of the Escrow Agreement) an amount equal to the aggregate amount of all outstanding and unpaid Indemnity Claims made by any Parent/MergerCo Indemnified Party pursuant to Article IX in accordance with the Escrow Agreement; provided, that, in no event shall the amount payable pursuant to this Section 3.6 exceed $4,800,000 in the aggregate. The aggregate amount to which the Securityholders and Triple Tree, LLC are entitled pursuant to Section 3.6 is referred to herein as the “ BI Revenue Additional Consideration .”

      Section 3.7 athenaCollector Bookings Additional Consideration .

          (a)  Preparation of athenaCollector Bookings Additional Consideration Calculation . Within 45 days following the end of each fiscal quarter (each, a “ Bookings Quarter ”) during the Bookings Measurement Period, beginning with the fiscal quarter ending December 31, 2009, Parent shall prepare and deliver to the Securityholders’ Representatives a calculation of athenaCollector Bookings for each Bookings Quarter.

          (b)  Disagreements .

     (i) The Securityholders’ Representatives may dispute any element of the calculation of the athenaCollector Bookings by notifying Parent of such disagreement in writing and setting forth in reasonable detail the particulars of such disagreement, within 20 days after its receipt of the calculation of such athenaCollector Bookings. In the event that the Securityholders’ Representatives do not provide such a notice of disagreement within such 20-day period, the Securityholders’ Representatives shall be deemed to have accepted the calculation of the athenaCollector Bookings delivered by Parent, which shall be final, binding and conclusive for all purposes hereunder.

     (ii) In the event any such notice of disagreement is provided on a timely basis, Parent and the Securityholders’ Representatives shall attempt, for a period of 15 days (or such longer period as they may mutually agree), to resolve any disagreements with respect to the calculation of the athenaCollector Bookings. If, at the end of such period, Parent and the Securityholders’ Representatives are unable to resolve such disagreements, then the Accountants shall resolve any remaining disagreements.

     (iii) The Accountants shall determine as promptly as practicable, but in any event within 30 days of the date on which such dispute is referred to the Accountants, whether such athenaCollector Bookings were properly calculated, and shall deliver to Parent and the Securityholders’ Representatives a written report setting forth its findings, which shall be final, conclusive and binding on Parent and the Securityholders. The fees and expenses of the Accountants in connection with its services under this Section 3.7(b) shall be paid (A) by Parent if the

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Accountants’ calculation of the athenaCollector Bookings is closer to the Securityholders’ Representatives’ calculation of the athenaCollector Bookings than such calculation by Parent, (B) by the Securityholders (from the Escrow Account) if the reverse is true or (C) otherwise equally by Parent and the Securityholders’ (from the Escrow Account).

     (iv) Each party shall, and shall cause its representatives to, cooperate with the other and provide timely access to information for purposes of resolving any dispute pursuant to this Section 3.7(b) , including without limitation, making available to the other parties such books, records, work papers, reports of Parent’s outside independent certified public accountants, and personnel, to the extent necessary. Parent covenants and agrees that during the Bookings Measurement Period that the books and records of the Surviving Company shall be maintained in a manner that will allow Parent’s accounting firm to reasonably determine the athenaCollector Bookings Additional Consideration pursuant to this Agreement.

          (c)  Payment . Subject to Section 3.7(d) , Parent shall cause the Escrow Agent to distribute from the Escrow Fund in accordance with the Escrow Allocation Schedule, no later than the later of (i) 45 days after the end of a Bookings Quarter and (ii) ten Business Days after the athenaCollector Bookings for such Bookings Quarter are finally determined pursuant to Section 3.7(b) , an aggregate amount equal to the athenaCollector Bookings for such Bookings Quarter multiplied by 0.85. Subject to Section 3.7(d) , Parent shall cause the Escrow Agent to distribute from the Escrow Fund in accordance with the Escrow Allocation Schedule within 45 days after the end of Parent’s fiscal years ending December 31, 2010 and December 31, 2011 and the interim period of June 30, 2012, an aggregate amount equal to the accrued but unpaid athenaCollector Bookings for such periods; provided, that such athenaCollector Bookings resulted in the actual implementation of athenaCollector.

          (d)  Payment Limitation . The amount paid pursuant to Section 3.7(c) shall be reduced by (and the Escrow Agent shall retain in the Escrow Fund pursuant to the terms of the Escrow Agreement) an amount equal to the aggregate amount of all outstanding and unpaid Indemnity Claims made by any Parent/MergerCo Indemnified Party pursuant to Article IX in accordance with the Escrow Agreement. In no event shall the amount payable pursuant to this Section 3.7 exceed $2,900,000 in the aggregate (the “ Maximum athenaCollector Bookings Additional Consideration ”); provided, that the Maximum athenaCollector Bookings Additional Consideration shall be increased on a dollar for dollar basis to the extent and in the amount that the BI Revenue Additional Consideration is less than $4,800,000. The aggregate amount to which the Securityholders and Triple Tree, LLC are entitled pursuant to this Section 3.7 is referred to herein as the “ athenaCollector Bookings Additional Consideration .”

      Section 3.8 Protective Provisions.

          (a) During the period from the Closing Date until the end of the Bookings Measurement Period, the Parent shall, and shall cause the Company:

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     (i) to act in good faith and to operate the business of the Company in the ordinary course of business;

     (ii) to maintain the Company as a wholly-owned subsidiary;

     (iii) not to combine, merge or consolidate the Company or liquidate it or, except in the usual and ordinary course of business, sell or otherwise dispose of any of its assets;

     (iv) to use reasonable efforts to preserve the role and responsibility of Michael Funk as the Company’s chief executive officer, and to preserve the relationships of the Company with its customers; provided that in the event that Mr. Funk leaves the Company, or is for any reason unable to fulfill the responsibilities of a chief executive officer, Parent shall be free to adjust the roles and responsibilities of the remaining employees as it determines in good faith to be necessary or advisable to carry out and increase the business of the Company;

     (v) to use reasonable efforts to cause each employee of the Company to devote substantially all of his or her time to the business and operations of the Company; provided that it is understood that Michael Funk and other senior executives of the Company may be required to spend significant time on matters relating to the Parent and its subsidiaries as a whole;

     (vi) to keep the Company’s products and business and working capital substantially as historically operated and as contemplated by the Company’s business plans in existence as of the Closing Date, as such plans have been presented to Parent, subject to changes resulting from the BPO Business Spin-Off;

     (vii) to permit the Securityholders’ Representatives and their representatives to inspect the books and records of the Company during regular business hours, upon reasonable advance notice and subject to appropriate confidentiality agreements;

     (viii) to maintain separate accounting books and records for the Company; and

     (ix) to otherwise act in good faith with respect to the Earnout Consideration.

          (b) In addition, with respect to any sales of the Company’s products to, or other uses of the Company’s products by, affiliates of the Parent or the Company, the Company shall receive full fair market value credit for any such sales or uses as though any such products were sold at full price.

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          (c) For purposes of the calculation of the BI Revenues, any existing clients of the Company as of the Closing Date (whether or not they are shared clients with Parent) shall continue to be treated as clients of the Company and all revenues derived from the sale of Business Intelligence Products to such customers shall be included in subpart (i) of the definition of BI Revenues.

          (d) In addition to the above provisions, with respect to the athenaCollector Bookings Additional Consideration, the Parent agrees that with respect to the Company’s clients and with respect to the prospects referred to Parent by the Company, the Parent will pursue any sales opportunities with diligence and in good faith, consistent with Parent’s customary sales practices and the Company and Parent shall comply with the following:

     (i) Until the expiration of the Bookings Measurement Period, if the Company identifies a prospect for athenaCollector, the Company shall promptly initiate the following registration process:

     a. The prospect is identified.

     b. The Company introduces the prospect to Parent by (i) sending notification by email or other writing containing identifying information, general customer location, size, type of business, and other prospect-specific information reasonably required by Parent to a designated person from Parent, and (ii) scheduling at least one meeting with a representative of the prospect and Parent.

     c. If the prospect is not an Active athena Lead, then Parent’s designated person will send by e-mail or other writing confirmation of receipt, and the prospect will be deemed a “ Qualified Lead ” beginning on the date of the initial meeting between such prospect and Parent and continuing until the expiration of the Bookings Measurement Period.

     d. The Company provides the designated person from Parent with information identifying the practice, and information regarding the sales relationship, personal relationship, existence of a proposal, or the means by which the prospect is qualified and any relevant RFP.

     e. The Qualified Lead is added to Parent’s pipeline in its sales management system.

     (ii) The pipeline shall be reviewed monthly via conference call with designated persons from the Company and Parent.

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ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     The Company hereby represents and warrants to Parent and MergerCo, that, except as set forth in the various Sections of the schedules to this Agreement (the “ Schedules ”) that correspond with the Sections of this Article IV , the statements contained in this Article IV are true and correct as of the date of this Agreement.

      Section 4.1 Existence; Good Standing; Authority .

          (a) The Company is a Delaware corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite power and authority to own, operate and/or lease its properties and carry on its business in all material respects as currently conducted. As of the date of this Agreement, the Company is duly licensed or qualified to do business as a foreign corporation in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such licensure or qualification necessary except where failure to qualify would not be reasonably likely to have, individually, or in the aggregate a Company Material Adverse Effect. The copies of the Bylaws and the Certificate of Incorporation, each as in effect as of the date hereof and made available to Parent’s and MergerCo’s counsel, are complete and correct, and no amendments thereto are pending.

          (b) The Company has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, the performance by the Company of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by the Company Board. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by each of Parent and MergerCo, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought in a proceeding at law or in equity).

      Section 4.2 Capitalization .

          (a) The authorized capital stock of the Company consists of 15,727,027 shares, consisting of (i) 14,843,277 shares of Company Common Stock, of which (x) 7,214,394 shares have been designated as Series A Common Stock, (y) 6,890,238 shares have been designated as Series B Common Stock and (z) 738,645 shares have been designated as Series C Common Stock. and (ii) 1,083,750 shares of Series A Preferred Stock all of which are issued and outstanding. With respect to such authorized Company Common Stock, (1) 5,070,375 shares of Series A Common Stock are issued and outstanding, (2) 6,606,446 shares of Series B Common Stock are issued and outstanding and 103,262 shares of Series B Common Stock are reserved for

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future issuance pursuant to the Company Warrants, (3) 738,645 shares of Series C Common Stock are issued and outstanding, (4) 489,722 shares of Common Stock are duly reserved for future issuance pursuant to Company Options outstanding as of this date of this Agreement and (5) no shares of Common Stock and no shares of Series A Preferred Stock were owned beneficially or of record by the Company. Section 4.2(a) of the Schedules sets forth the following information relating to each Stockholder: (i) its name, address (as listed in the corporate record books of the Company) and (ii) the number and class or series of shares of Company Capital Stock held by such Person and the respective certificate numbers.

          (b) Except as set forth on Section 4.2(b) of the Schedules, none of the outstanding shares of Company Capital Stock are subject to, nor were they issued in violation of, any purchase option, call option, right of first refusal, first offer, co-sale or participation, preemptive right, subscription right or any similar right. Except as set forth in Section 4.2(a) , no shares of voting or non-voting capital stock, other equity interests or other voting securities of the Company are issued, reserved for issuance or outstanding. All Company Options have been granted under the Company Stock Option Plans. Section 4.2(b) of the Schedules sets forth a true and complete list of all outstanding Company Options and all other options and rights to purchase Company Capital Stock, together with the number of shares of Company Capital Stock subject to such security, the date of grant or issuance, the exercise price and the expiration date of such security and the aggregate number of shares of Company Capital Stock subject to such securities. Except as set forth in Section 2.6 , no Company Option shall entitle the holder thereof to receive anything after the Merger in respect of such Company Option. All outstanding shares of Company Capital Stock are validly issued, fully paid and nonassessable. Except for the Company Capital Stock, there are no bonds, debentures, notes, other Indebtedness or any other securities of the Company with voting rights (other than the Company Options and the Company Warrants, convertible into, or exchangeable for, securities with voting rights) on any matters on which Stockholders may vote.

          (c) Except as described in Sections 4.2(a) and 4.2(b) , there are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities or Contracts or obligations of any kind (contingent or otherwise) to which the Company is a party or by which it is bound obligating the Company, directly or indirectly, to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of the Company or obligating the Company to issue, grant, extend or enter into any such security, option, warrant, call, right, Contract or obligation. Except as set forth in the Certificate of Incorporation, there are no outstanding obligations of the Company (contingent or otherwise) to repurchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock (or options or warrants to acquire any such shares) of the Company. There are no stock-appreciation rights, stock-based performance units, “phantom” stock rights or other Contracts or obligations of any character (contingent or otherwise) pursuant to which any Person is or may be entitled to receive any payment or other value based on the revenues, earnings or financial performance, stock price performance or other attribute of the Company or its business or assets or calculated in accordance therewith (other than payments or commissions to sales representatives of the Company based upon revenues generated by them without augmentation as a result of the transactions contemplated hereby, in each case in the ordinary course of business consistent with past practice) to cause the Company to register its securities or which otherwise relate to the registration of any securities of the Company. Except as set forth on Section 4.2(c) of the Schedules, there are no voting trusts, proxies or other Contracts of any character to which the Company or, to the Knowledge of the Company, any of the Stockholders is a party or by which

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any of them is bound with respect to the issuance, holding, acquisition, voting or disposition of any shares of capital stock or similar interests of the Company.

      Section 4.3 Subsidiaries . Except as set forth on Schedule 4.3 , the Company does not own, of record or beneficially, directly or indirectly, (a) with respect to any corporation, more than 50% of the total voting power of all classes of capital stock entitled to vote in the election of directors thereof and (b) with respect to any Person other than a corporation, at least a majority of any class of capital stock (however designated) entitled to vote in the election of the governing body, partners, managers or others that will control the management of such Person. Except as set forth on Schedule 4.3 , there are no corporations, partnerships, joint ventures, associations or other entities in which the Company owns, of record or beneficially, any other direct or indirect equity or other interest or right (contingent or otherwise) to acquire any of the same. The Company is not a member of any partnership nor is the Company a participant in any joint venture or similar arrangement.

      Section 4.4 No Conflict; Consents .

          (a) Subject to the adoption and approval of this Agreement by the Stockholders, the execution and delivery by the Company of this Agreement, and the consummation by the Company of the transactions in accordance with the terms hereof, do not (i) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under, or give rise to a right of termination of, any contract, agreement, permit, license, authorization or obligation to which the Company is a party or by which the Company or any of its assets are bound, except for any such conflicts, violations, defaults and terminations that would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) conflict with, or result in, any violation of any provision of the Certificate of Incorporation or the Bylaws; (iii) violate or result in a violation of, or constitute a default (whether after the giving of notice, lapse of time or both) under, any provision of any law, regulation or rule, or any order of, or any restriction imposed by, any court or other governmental agency applicable to the Company.

          (b) Except as set forth in Schedule 4.4 , no notice to, declaration or filing with, or consent or approval of any federal, state, local or foreign government, any governmental, regulatory or administrative authority, agency, bureau or commission or any court, tribunal or judicial or arbitral body (a “ Governmental Authority ”) or other third party is required by or with respect to the Company in connection with the execution and delivery by the Company of this Agreement, and the consummation by the Company of the transactions in accordance with the terms hereof, except for the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other states in which the Company duly licensed or qualified to do business.

      Section 4.5 Financial Statements .

          (a) The Company has made available to Parent and MergerCo true and complete copies of the following financial statements, copies of which are attached hereto as Schedule 4.5 (collectively, the “ Financial Statements ”):

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     (i) Audited balance sheet of the Company as of December 31, 2008 and the related audited statements of operations, stockholders’ equity and cash flows of the Company for the year ended December 31, 2008; and

     (ii) Unaudited balance sheet of the Company as of June 30, 2009 (the “ Base Balance Sheet ”) and the related unaudited statements of operations, stockholders’ equity and cash flows for the fiscal period then ended; provided, however, that the Base Balance Sheet is subject to normal year-end adjustments.

          (b) The Financial Statements (i) have been prepared in accordance with GAAP consistently applied and (ii) present fairly in all material respects the financial condition, statements of operations, stockholders’ equity and cash flows of the Company as of the dates and for the periods indicated therein.

          (c) The Company maintains a system of “internal controls over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are executed and access to assets is permitted only in accordance with management’s general or specific authorization; (ii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, and to maintain asset accountability; (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets and (iv) the recorded accountability for Company assets is compared with the existing Company assets at reasonable intervals and appropriate action is taken with respect to any difference.

          (d) The Company is not a party to, or has any commitment to become a party to, any joint venture, off balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand or any “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Exchange Act), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company’s financial statements.

      Section 4.6 Absence of Certain Changes . Except as set forth on Schedule 4.6 and in the ordinary course of business consistent with past practices, from the date of the Base Balance Sheet to the date of this Agreement, there has not been (a) any change in the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Company, except such changes that have not had or would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (b) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, capital stock or property) in respect of, any of the Company’s capital stock or any purchase, redemption or other acquisition of any of the Company’s capital stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such capital stock or other securities, (c) any split, combination or reclassification of any of the Company’s capital stock or any issuance or the authorization of any other securities in respect of, in lieu of or in substitution for capital stock or other securities of

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the Company, (d) any granting by the Company of (i) any loan or increase in compensation, perquisites or benefits or any bonus or award or (ii) any payment by the Co