AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

You are currently viewing:

This Agreement and Plan of Merger involves

ADOBE SYSTEMS INCORPORATED | SNOWBIRD ACQUISITION CORPORATION

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: AGREEMENT AND PLAN OF MERGER
Governing Law: Delaware Date: 9/15/2009
Industry: Software and Programming Law Firm: Wilson Sonsini;Latham Watkins Sector: Technology

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

ADOBE SYSTEMS INCORPORATED

SNOWBIRD ACQUISITION CORPORATION

and

OMNITURE, INC.

Dated as of September 15, 2009

TABLE OF CONTENTS

		Page

ARTICLE I — THE OFFER		2

1.1	The Offer	2
1.2	Company Actions	5
1.3	Directors	6
1.4	Top-Up Option	8

ARTICLE II — THE MERGER		9

2.1	The Merger	9
2.2	Closing; Effective Time	9
2.3	Effects of the Merger	9
2.4	Certificate of Incorporation and Bylaws	10
2.5	Directors and Officers	10
2.6	Stockholders’ Meeting	10
2.7	Merger Without Stockholder Action	11

ARTICLE III — EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF SHARES		12

3.1	Conversion of Capital Stock	12
3.2	Exchange of Certificates	12
3.3	Appraisal Rights	15
3.4	Treatment of Options, SARs, Restricted Stock and other Equity Awards	15
3.5	Additional Benefits Matters	18

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER		19

4.1	Corporate Organization	19
4.2	Authority	19
4.3	Consents and Approvals	20
4.4	Broker’s Fees	20
4.5	Legal Proceedings	20
4.6	Available Funds	20
4.7	Certain Compensation Arrangements	21
4.8	Offer Documents; Proxy Statement; Parent Information	21
4.9	No Other Representations or Warranties	22

ARTICLE V — REPRESENTATIONS AND WARRANTIES OF COMPANY		22

5.1	Corporate Organization	22
5.2	Capitalization	23
5.3	Authority	24
5.4	No Violation; Required Filings and Consents	25
5.5	Financial Statements	25
5.6	Broker’s Fees	26

5.7	Absence of Certain Changes or Events	26
5.8	Legal Proceedings	27
5.9	Reports	27
5.10	Absence of Undisclosed Liabilities	28
5.11	Permits; Compliance with Applicable Laws and Reporting Requirements	29
5.12	Taxes and Tax Returns	29
5.13	Employee Benefit Programs	30
5.14	Labor and Employment Matters	34
5.15	Material Contracts	34
5.16	Properties	35
5.17	Environmental Liability	36
5.18	State Takeover Laws; Required Stockholder Vote	36
5.19	Intellectual Property	37
5.20	Insurance	44
5.21	Customers	44
5.22	Privacy	44
5.23	Opinion of Financial Advisor	46
5.24	Schedule 14D-9; Proxy Statement; Company Information	47
5.25	No Other Representations or Warranties	47
5.26	Definition of Company’s Knowledge	47

ARTICLE VI — COVENANTS RELATING TO CONDUCT OF BUSINESS		47

6.1	Conduct of Business Pending the Effective Time	47
6.2	Certain Tax Matters	51

ARTICLE VII — ADDITIONAL AGREEMENTS		52

7.1	Third Party Consents and Regulatory Approvals	52
7.2	No Solicitation	54
7.3	Access to Information	57
7.4	Employment and Benefit Matters	58
7.5	Directors’ and Officers’ Indemnification and Insurance	60
7.6	Additional Agreements	62
7.7	Advice of Changes	62
7.8	Publicity	62
7.9	Rule 16b-3 Actions	62
7.10	Rule 14d-10 Matters	63
7.11	State Takeover Laws	64

ARTICLE VIII — CONDITIONS PRECEDENT TO THE CONSUMMATION OF THE MERGER		64

8.1	Conditions	64

ARTICLE IX — TERMINATION, AMENDMENT AND WAIVER		64

9.1	Termination	64
9.2	Effect of Termination	66
9.3	Amendment	67

9.4	Extension; Waiver	68

ARTICLE X — MISCELLANEOUS		68

10.1	Nonsurvival of Representations, Warranties and Agreements	68
10.2	Expenses	68
10.3	Notices	68
10.4	Interpretation	69
10.5	Counterparts	70
10.6	Entire Agreement	70
10.7	Governing Law; Jurisdiction and Venue; WAIVER OF JURY TRIAL	70
10.8	Severability	71
10.9	Assignment; Reliance of Other Parties	71
10.10	Specific Performance	71
10.11	Definitions	72

iii

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (the “ Agreement ”), dated as of September 15, 2009, by and among Adobe Systems Incorporated , a corporation organized under the laws of Delaware (“ Parent ”), Snowbird Acquisition Corporation , a Delaware corporation and a wholly-owned subsidiary of Parent (“ Purchaser ”), and Omniture, Inc. , a corporation organized under the laws of the State of Delaware (“ Company ”).

WHEREAS , the boards of directors of each of Parent, Purchaser and Company have approved the acquisition of Company by Parent on the terms and conditions set forth in this Agreement;

WHEREAS , pursuant to this Agreement, and subject to the terms and conditions set forth herein, Purchaser shall (and Parent has agreed to cause Purchaser to) commence a tender offer (the “ Offer ”) to purchase all of Company’s issued and outstanding common stock, par value $0.001 per share (“ Company Common Stock ”), at a price per share of $21.50 net to the Company Stockholders in cash (such amount or any greater amount per share paid pursuant to the Offer being hereafter referred to as the “ Offer Price ”);

WHEREAS , following consummation of the Offer, upon the terms and conditions set forth herein, Purchaser will be merged with and into Company, with Company as the surviving corporation (the “ Merger ” and, with the Offer, the “ Transaction ”), whereby each issued and outstanding share of Company Common Stock not owned directly or indirectly by Parent, Purchaser or the Company will be converted into the right to receive the Offer Price in cash;

WHEREAS , the Company Board has unanimously (A) (i) determined that this Agreement, the Offer and the Merger are advisable and in the best interests of Company and the Company Stockholders, (ii) approved the Offer and the Merger and approved and declared advisable this Agreement, each in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”) and (B) resolved and agreed to recommend that the Company Stockholders accept the Offer, tender their shares of Company Common Stock into the Offer, and if required by applicable Law, adopt this Agreement;

WHEREAS , as an inducement and condition to Parent entering into this Agreement, certain Company Stockholders and the directors of Company are entering into tender and stockholder support agreements (collectively, the “ Support Agreements ”) with Parent and Purchaser simultaneously with the execution of this Agreement, whereby, among other things, such stockholders have agreed, upon the terms and subject to the conditions set forth therein, to tender the shares of Company Common Stock held by such stockholders (in their individual capacities) in the Offer and to support the actions necessary to consummate the Merger;

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a material inducement to Parent’s willingness to enter into this Agreement, certain employees of Company are countersigning and delivering to Parent offer letters previously delivered to such employees by Parent;

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a material inducement to Parent’s willingness to enter into this Agreement, certain employees of the Company are executing and delivering to Parent non-competition agreements; and

WHEREAS , the parties desire to make certain representations, warranties and agreements in connection with the Transaction and to prescribe certain conditions to the Transaction.

NOW, THEREFORE , in consideration of the foregoing and the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows:

ARTICLE I — THE OFFER

1.1 The Offer.

(a) Provided that this Agreement shall not have been terminated in accordance with Article IX hereof, and provided that Company has fulfilled its obligation to provide information to Parent and Purchaser as contemplated by Section 1.1(c) and is prepared to file the Schedule 14D-9 contemporaneously with or immediately following filing by Parent and Purchaser of the Offer Documents with the Securities and Exchange Commission (the “ SEC ”), subject to there being no statute, rule, regulation, legislation of, or order, decree, judgment, injunction or ruling by, a Governmental Authority of competent jurisdiction enjoining, restraining, making illegal, or otherwise prohibiting the commencement of the Offer, as promptly as reasonably practicable (but in no event later than seven (7) Business Days) after the date of this Agreement, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 of the Exchange Act) an offer to purchase all outstanding shares of Company Common Stock at the Offer Price. Each of Parent and Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof. Subject to the applicable terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, promptly after the expiration of the Offer, accept for payment and pay for (after giving effect to any required withholding Tax pursuant to Section 1.1(f) ), all shares of Company Common Stock validly tendered pursuant to the Offer and not withdrawn (the time and date of acceptance for payment, the “ Acceptance Date ”).

(b) Purchaser reserves the right to waive, in whole or in part, any Tender Offer Condition or modify the terms of the Offer; provided , however , that without the prior written consent of Company, or except as contemplated by this Agreement, Purchaser shall not, and Parent shall not permit Purchaser to, other than in accordance with Section 1.1(e), decrease the Offer Price or change the form of consideration payable in the Offer, waive or amend the Minimum Condition, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, extend the Offer other than in a manner pursuant to, and in accordance with, this Section 1.1(b) , impose additional conditions to the Offer, amend any of the Tender Offers Condition, in a manner that broadens such conditions or amend any other term of the Offer in any manner adverse to the Company Stockholders. The Offer shall remain open until 12:00 midnight, New York City, New York time, on the date that is twenty (20) Business Days

after the commencement (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) of the Offer (the “ Expiration Date ”), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the succeeding sentence, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, (i) Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the Nasdaq that is applicable to the Offer and (ii) in the event that any of Tender Offer Conditions are not satisfied or waived as of any then-scheduled Expiration Date, Purchaser shall extend the Offer for successive extension periods of ten (10) Business Days; provided , however , that notwithstanding the foregoing clauses (i) and (ii) of this sentence, in no event shall Purchaser be required to extend the Offer beyond the Outside Date. Purchaser may provide for a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act), and one or more consecutive extensions thereof, after the Expiration Date in accordance with Rule 14d-11 of not more than twenty (20) Business Days in the aggregate. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and promptly pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to such subsequent offering period. Nothing contained in this paragraph shall affect any termination rights of the parties in Article IX. Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 9.1 .

(c) On the date of commencement of the Offer, Parent and Purchaser shall (i) file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “ Schedule TO ”) with respect to the Offer which shall contain the offer to purchase and related letter of transmittal and summary advertisement and other ancillary documents and instruments required thereby pursuant to which the Offer will be made (collectively with any supplements or amendments thereto, the “ Offer Documents ”), and (ii) use their respective reasonable best efforts to cause the Offer Documents to be disseminated to the Company Stockholders as and to the extent required by the Exchange Act. Parent and Purchaser shall cause the Offering Documents to comply in all material respects with the Exchange Act and all other requirements of Law. Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by Company and its counsel. Parent and Purchaser agree to provide Company with (i) any comments or other communications, whether written or oral, that may be received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and prior to responding thereto, and (ii) a reasonable opportunity to provide comments on that response (to which reasonable and good faith consideration shall be given) and to participate in such response, including by participating in any discussions with the SEC. Notwithstanding the foregoing, in connection with any action by Parent or Purchaser in response to or as a result of any action by Company or the Company Board permitted by Section 7.2(e), Parent and Purchaser shall not be required to provide Company the opportunity to review or comment on (or include comments proposed by Company in any provision of) the Offer Documents, or any amendment or supplement thereto, with respect to such action, the reasons for such actions or any additional information reasonably related to such actions. If at any time prior to the

Effective Time, any information relating to the Offer, the Merger, Company, Parent, Purchaser or any of their respective Affiliates, is discovered by Company or Parent which should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be filed with the SEC and disseminated to the Company Stockholders, as and to the extent required by applicable Law or any applicable rule or regulation of any stock exchange. Company shall furnish to Parent and Purchaser all information concerning Company required by the Exchange Act to be set forth in the Offer Documents.

(d) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to pay for any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer and shall cause Purchaser to fulfill its obligations under this Agreement.

(e) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Company Common Stock occurring on or after the date hereof and prior to the date of acceptance of any particular shares tendered in the Offer or any subsequent offering period provided for by Parent and the Purchaser pursuant to Section 1.1(b). In addition, if the aggregate of (without duplication) (i) the number of shares of Company Common Stock issued and outstanding, plus (ii) the number of shares of Company Common Stock issuable upon the exercise of outstanding derivative securities, including warrants and other convertible or exchangeable securities or rights to purchase Company Common Stock, plus (iii) the number of shares of Company Common Stock (x) issuable upon the exercise of Company Stock Options, (y) subject to Company SARs and (z) subject to Company RSUs, all as of September 11, 2009, exceeds 91,855,809, then Parent and Purchaser may reduce the Offer Price by an amount not to exceed the product of (A) the Offer Price immediately before such reduction, multiplied by (B) the quotient of (i) such excess, divided by (ii)(A) 91,855,809 plus (B) the amount of such excess (such reduction in the Offer Price, a “ Capitalization Adjustment ”). The Company agrees that upon a Capitalization Adjustment, the Company Board shall reaffirm the Company Recommendations giving effect to such Capitalization Adjustment, and the Company Board shall not effect an Adverse Recommendation Change as a result of such Capitalization Adjustment. Each of Parent, Purchaser and Company shall amend and supplement the Offer Documents and Schedule 14D-9 as promptly as practicable to reflect such Capitalization Adjustment.

(f) Each of Purchaser and the Paying Agent shall be entitled to deduct and withhold from the Offer Price to any holder of a Certificate or a Book-Entry Share, as the case may be, such amounts as it reasonably determines that it is required to deduct and withhold with respect to the making of such payment under the Code, or any other applicable provision of Law. To the extent that amounts are so withheld and paid to the appropriate Governmental Authority

by Purchaser or the Paying Agent, as the case may be, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Certificate or Book-Entry Share, as applicable, in respect of which such deduction and withholding was made by Purchaser or the Paying Agent, as the case may be.

(g) In the event that this Agreement is terminated pursuant to Section 9.1 , Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer made pursuant to this Agreement.

1.2 Company Actions.

(a) Company, after affording Parent a reasonable opportunity to review and comment thereon, (a) shall file with the SEC and mail to the Company Stockholders on the date of the filing by Parent and Purchaser of the Offer Documents (provided that such filing shall not take place prior to the seventh (7 th ) Business Day after the date of this Agreement without Company’s consent), a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “ Schedule 14D-9 ”) reflecting, subject to Section 7.2 , the recommendation of the Company Board that the Company Stockholders tender their shares of Company Common Stock pursuant to the Offer and (b) shall disseminate the Schedule 14D-9 as required by Rule 14d-9 promulgated under the Exchange Act. The Schedule 14D-9 will set forth, and Company hereby represents, that the Company Board has unanimously, at a meeting duly called and held at which a quorum was present throughout, (i) determined that the Transaction, and each of the Offer and the Merger, is advisable and in the best interests of Company and the Company Stockholders, (ii) approved the Offer, the Merger and this Agreement in accordance with the DGCL, (iii) recommended acceptance of the Offer and adoption of this Agreement by the Company Stockholders if such adoption is required by applicable Laws (the “ Company Recommendations ”), and (iv) taken all other action necessary to render Section 203 of the DGCL inapplicable to each of the Offer and the Merger; provided , however , that the Company Recommendations may be withdrawn, modified or amended only prior to the acceptance for payment of shares of Company Common Stock pursuant to the Offer and in any case only to the extent permitted by Section 7.2 . Company hereby consents to the inclusion in the Offer Documents of the Company Recommendations to the extent that the Company Recommendation is not withheld, withdrawn, amended or modified in accordance with Section 7.2 . Company shall include in its entirety in the Schedule 14D-9, and will use all reasonable efforts to obtain all necessary consents to permit the inclusion in its entirety of, the fairness opinion of Company’s Financial Advisor delivered to the Company Board in connection with the Transaction. Company shall cause the Schedule 14D-9 to comply in all material respects with the Exchange Act and all other requirements of Law. If at any time prior to the Acceptance Date, any information relating to the Offer, the Merger, Company, Parent, Purchaser or any of their respective Affiliates, is discovered by Company or Parent which should be set forth in an amendment or supplement to the Schedule 14D-9 so that the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such

information shall be filed with the SEC and disseminated to the Company Stockholders, as and to the extent required by applicable Law or any applicable rule or regulation of any stock exchange. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing with the SEC, and Company shall give reasonable and good faith consideration to any comments made by Parent, Purchaser or their counsel. Company agrees to provide Parent and Purchaser with (i) any comments or other communications, whether written or oral, that may be received from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt thereof and prior to responding thereto, and (ii) a reasonable opportunity to provide comments on that response (to which reasonable and good faith consideration shall be given) and to participate in such response, including by participating in any discussions with the SEC. Notwithstanding the foregoing, in connection with any actions by the Company or Company Board permitted by Section 7.2(e) , the Company shall not be required to provide Parent the opportunity to review or comment on (or include comments proposed by Parent in any provision of) the Schedule 14D-9, and any amendment or supplement thereto, with respect to such actions, the reasons for such actions or any additional information reasonably related to such actions. Each of Parent and Purchaser shall furnish to the Company all information concerning Parent and Purchaser required by the Exchange Act to be set forth in the Schedule 14D-9.

(b) In connection with the Offer, Company will promptly furnish Purchaser with mailing labels, security position listings, non-objecting beneficial owner lists and any available listing or computer list containing the names and addresses of the record holders of the shares of Company Common Stock as of the most recent practicable date, and shall furnish Purchaser with such additional available information and such other assistance as Purchaser or its agents may reasonably request in communicating the Offer to, and soliciting tenders of shares of Company Common Stock from, Company’s record and beneficial stockholders.

(c) Subject to the requirements of applicable Laws, and except for such steps as are necessary to disseminate the Offer Documents to consummate the Offer as contemplated hereby and any other documents necessary to consummate the Merger as contemplated hereby, Parent, Purchaser and their Representatives, shall keep confidential any information provided by or on behalf of Company pursuant to Section 1.2(b) and use all such information only in connection with the Offer and the Merger as contemplated herein and, should the Offer terminate or if this Agreement shall be terminated, will promptly deliver and cause their Representatives to deliver to the Company (and delete electronic copies of) all copies, summaries and extracts of such information then in their possession or control.

1.3 Directors.

(a) Subject to compliance with applicable Laws, promptly upon acceptance for payment of such number of shares of Company Common Stock as represents at least a majority of the then-outstanding shares of Company Common Stock pursuant to the Offer and from time to time thereafter, Purchaser shall be entitled to designate such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of (x) the total number of directors on the Company Board (determined after giving effect to the election of any additional directors pursuant to this Section 1.3 ) multiplied by (y) the percentage that the

aggregate number of shares of Company Common Stock beneficially owned by Purchaser or any of its Affiliates bears to the total number of shares of Company Common Stock then outstanding, and Company shall, upon request of Purchaser, promptly take all actions necessary to cause Purchaser’s designees to be so elected (including, if necessary, seeking the resignations of one or more existing directors or increasing the size of the Company Board) in compliance with applicable Law; provided , however , that Purchaser shall be entitled to designate at least a majority of the directors on the Company Board (as long as Purchaser and its Affiliates beneficially own a majority of the outstanding shares of Company Common Stock); provided further that prior to the Effective Time, the Company Board shall always have at least two members who are not officers, directors, employees or designees of Parent or Purchaser or any of their Affiliates (“ Purchaser Insiders ”). If the number of directors who are not Purchaser Insiders is reduced below two prior to the Effective Time, the remaining director who is not a Purchaser Insider shall be entitled to designate a Person to fill such vacancy who is not a Purchaser Insider and who shall be a director not deemed to be a Purchaser Insider for all purposes of this Agreement, and Company shall cause such designee to be appointed to the Company Board. If, notwithstanding compliance with the foregoing provisions, the number of directors who are not Purchaser Insiders is reduced to zero, then the other directors on the Company Board shall designate and appoint to the Company Board two directors who are not officers, directors, employees or otherwise affiliated with Purchaser or Parent (other than as a result of such designation).

(b) Company’s obligations to appoint Purchaser’s designees to the Company Board shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 1.3 , and shall include in the Schedule 14D-9 such information with respect to Company and its officers and directors as is required under such Section and Rule in order to fulfill its obligations under this Section 1.3 . Parent will supply to Company any information with respect to itself and its Affiliates required by such Section and Rule.

(c) Following the election or appointment of Purchaser’s designees pursuant to this Section 1.3 and prior to the Effective Time, any amendment or termination of this Agreement by Company, any extension by Company of the time for the performance of any of the obligations or other acts of Parent or Purchaser hereunder, any waiver or enforcement of any of Company’s rights or any of the obligations of Parent or Purchaser hereunder will require the consent of, or be taken at the direction of, a majority of the directors of Company then in office who are not Purchaser Insiders (or the approval or direction of the sole director if there shall only be one director then in office who is not a Purchaser Insider). Following the election or appointment of Parent’s designees pursuant to this Section 1.3 and prior to the Effective Time, any actions with respect to the enforcement of this Agreement by Company shall be effected only by the action of a majority of the directors of Company then in office who are not Purchaser Insiders (or the action of the sole director if there shall only be one director then in office who is not a Purchaser Insider), and such authorization shall constitute the authorization of the Company Board and no other action on the part of Company, including any action by any other director of Company, shall be required to authorize any such action.

(d) Promptly after the Acceptance Date, Company shall take all action necessary to elect to be treated as a “controlled company” as defined by Nasdaq Marketplace Rule 5615(c) and make all necessary filings and disclosures associated with such status.

1.4 Top-Up Option.

(a) Company hereby grants to Purchaser an irrevocable option (the “ Top-Up Option ”), exercisable only on the terms and conditions set forth in this Section 1.4 , to purchase at a price per share equal to the Offer Price paid in the Offer up to that number of newly issued shares of Company Common Stock (the “ Top-Up Shares ”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent or Purchaser at the time of exercise of the Top-Up Option, shall constitute one share more than 90% of the sum of the following: (A) the total number of shares of Company Common Stock outstanding immediately after the issuance of the Top-Up Shares plus (B) the total number of shares of Company Common Stock that are issuable within the ten (10) Business Days after the issuance of the Top-Up Shares upon the vesting, conversion or exercise of all derivative securities, including Company Compensatory Awards, warrants, options, convertible or exchangeable securities or other rights to acquire Company Common Stock, regardless of the conversion or exercise price or other terms and conditions thereof; provided , however , (A) the Top-Up Option shall not be exercisable for a number of shares of Company Common Stock in excess of the sum of the shares of Company Common Stock authorized, unissued and not reserved for Company Compensatory Awards or held by the Company at the time of exercise of the Top-Up Option; provided , further , however , that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of shares of Company Common Stock pursuant thereto, the Short Form Threshold would be reached. Upon Parent’s request, Company shall use reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and outstanding as of immediately prior to the exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Shares. The Top-Up Option shall be exercisable only once at any time following the Acceptance Date and prior to the earlier to occur of (a) the Effective Time and (b) the termination of this Agreement in accordance with its terms.

(b) The parties shall cooperate to ensure that the issuance and delivery of the Top-Up Shares comply with all applicable Law, including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act. If Purchaser wishes to exercise the Top-Up Option, Purchaser shall give Company one (1) Business Day prior written notice, specifying (i) the number of shares of Company Common Stock directly or indirectly owned by Parent or Purchaser at the time of such notice and (ii) a place and a time for the closing of such purchase. Company shall, as soon as practicable following receipt of such notice, deliver written notice to Purchaser specifying, based on the information provided by Purchaser in its notice, the number of Top-Up Shares. At the closing of the purchase of Top-Up Shares (A), the purchase price owed by Purchaser to Company therefor shall be paid to Company (i) in cash, by wire transfer or cashier’s check, (ii) by issuance by Purchaser to Company of a promissory note, bearing 3.5% per annum simple interest, due thirty (30) days after the Effective

Time or (iii) a combination thereof, and with such other terms reasonably satisfactory to Company and Purchaser, and (B) Company shall cause to be issued and delivered to Purchaser a certificate or certificates representing the Top-Up Shares or, if Company does not then have certificated shares of Company Common Stock, the applicable number of Book-Entry Shares.

(c) Parent and Purchaser acknowledge that the shares of Company Common Stock that Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Purchaser represent and warrant to Company that Purchaser is, or will be upon the purchase of the Top-Up Shares, an “accredited investor”, as defined in Rule 501 of Regulation D under the Securities Act. Purchaser agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Purchaser for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act). Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws.

ARTICLE II — THE MERGER

2.1 The Merger.

Upon the terms and subject to the satisfaction or waiver of the conditions set forth in Article VIII, and in accordance with the DGCL, at the Effective Time, Purchaser shall merge with and into Company. Company shall continue as the surviving corporation (the “ Surviving Corporation ”), and the separate corporate existence of Company, with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger. Upon consummation of the Merger, the separate corporate existence of Purchaser shall terminate.

2.2 Closing; Effective Time.

Subject to the terms and conditions of this Agreement, the closing of the Merger (the “ Closing ”) will take place at the Menlo Park, California offices of Latham & Watkins LLP, unless another place is agreed to in writing by the parties hereto, at 10:00 a.m., local time, on a date (the date upon which the Closing occurs, the “ Closing Date ”) specified by the parties, which shall be no later than two (2) Business Days after the satisfaction or waiver (subject to applicable Law) of the latest to occur of the conditions set forth in Article VIII (other than those conditions that relate to action to be taken at the Closing), unless this Agreement has been theretofore terminated pursuant to its terms or unless extended by mutual agreement of the parties. On the Closing Date, the Company shall file with the Secretary of State of the State of Delaware a certificate of merger in the form attached hereto as Exhibit A (the “ Certificate of Merger ”), and the parties shall make all other filings or recordings required by the DGCL. The Merger shall become effective (the “ Effective Time ”) upon such filing.

2.3 Effects of the Merger.

At and after the Effective Time, the Merger shall have the effects set forth in this Agreement and in the appropriate provisions of the DGCL. Without limiting the generality of

the foregoing, and subject thereto, at the Effective Time, the Surviving Corporation shall possess all the rights, privileges, powers and franchises, and be subject to all of the restrictions, disabilities and duties of Company and Purchaser, as provided under Section 259 of the DGCL.

2.4 Certificate of Incorporation and Bylaws.

At the Effective Time, by virtue of the Merger, the Certificate of Incorporation, as amended, of the Surviving Corporation shall be amended to be identical to the form attached hereto as Exhibit B (which shall contain such provisions as are necessary to give full effect to the exculpation and indemnification provided for in Section 7.5 ), and as so amended shall be the Certificate of Incorporation of the Surviving Corporation until thereafter amended as provided therein and in accordance with applicable Law (the “ Surviving Corporation Charter ”). From and after the Effective Time, the Bylaws, as amended, of Company, as in effect immediately prior to the Effective Time, shall be amended and restated to be identical to the Bylaws of Purchaser as in effect immediately prior to the Effective Time (which shall contain such provisions as are necessary to give full effect to the exculpation and indemnification provided for in Section 7.5 ), and as so amended shall be the Bylaws of the Surviving Corporation, until thereafter amended as provided therein and in accordance with applicable Law (the “ Surviving Corporation Bylaws ”).

2.5 Directors and Officers.

(a) From and after the Effective Time, the directors of Purchaser immediately prior to the Effective Time shall become the directors of the Surviving Corporation, until their successors shall have been duly elected, appointed or qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation Charter and the Surviving Corporation Bylaws.

(b) From and after the Effective Time, the officers of Company at the Effective Time shall be the officers of the Surviving Corporation, until their successors shall have been duly elected, appointed or qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation Charter and the Surviving Corporation Bylaws.

2.6 Stockholders’ Meeting.

(a) If the adoption of this Agreement by the Company Stockholders is required by applicable Law in order to consummate the Merger, Company, acting through the Company Board, shall, in accordance with applicable Law:

(i) duly set a record date for, call, give notice of, convene and hold a special meeting of its stockholders (the “ Special Meeting ”) as soon as practicable following the acceptance for payment of and payment for shares of Company Common Stock by Purchaser pursuant to the Offer and the expiration of any subsequent offering period pursuant to Section 1.1(b) for the sole purpose of obtaining the approval of the Company Stockholders of the adoption of this Agreement in accordance with the DGCL;

(ii) prepare and file with the SEC a preliminary proxy statement for the Special Meeting relating to this Agreement; provided that Parent, Purchaser and their counsel

shall be given a reasonable opportunity to review and comment on the preliminary proxy statement prior to its filing with the SEC, and Company shall give reasonable and good faith consideration to any comments made by Parent, Purchaser or their counsel, and use its reasonable efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “ Proxy Statement ”) to be mailed to its stockholders, and (y) to obtain the necessary adoption of this Agreement by its stockholders;

(iii) subject to the fiduciary duties of the Company Board, include in the Proxy Statement the Company Recommendations that the Company Stockholders vote in favor of the adoption and approval of this Agreement; and

(iv) include in the Proxy Statement the opinion of Company’s Financial Advisor referred to in Section 5.23 .

(b) If at any time prior to the Special Meeting, any information relating to the Merger, Company, Parent, Purchaser or any of their respective Affiliates, is discovered by Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement to the Proxy Statement shall be filed with the SEC and disseminated to the Company Stockholders, as and to the extent required by applicable Law.

(c) Parent shall furnish all information concerning Parent and Purchaser as the Company may reasonable request in connection with the preparation and filing with the SEC of the Proxy Statement. Each of Parent and Purchaser agrees that it will vote, or cause to be voted, all of the shares of Company Common Stock then owned by it or any of its Subsidiaries in favor of the approval of the Merger and adoption and approval of this Agreement.

2.7 Merger Without Stockholder Action.

Notwithstanding Section 2.6 , in the event that Purchaser shall hold at least 90% of the outstanding shares of Company Common Stock pursuant to the Offer or otherwise (the “ Short Form Threshold ”), subject to the terms and conditions hereof, the parties hereto agree to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after Purchaser obtains the Short Form Threshold without a meeting of stockholders of Company, in accordance with Section 253 of the DGCL.

ARTICLE III — EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF SHARES

3.1 Conversion of Capital Stock.

As of the Effective Time, by virtue of the Merger and without any action on the part of any party hereto or of the holder of any shares of the capital stock of Company or capital stock of Purchaser:

(a) Capital Stock of Purchaser. Each share of the common stock, $0.0001 par value per share, of Purchaser (the “ Purchaser Common Stock ”), issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, $0.0001 par value per share of the Surviving Corporation.

(b) Cancellation of Certain Stock. All shares of Company Common Stock that are owned by Company or by any wholly owned Subsidiary of Company, and any shares of Company Common Stock owned by Parent or Purchaser or by any wholly owned Subsidiary of Parent or Purchaser immediately prior to the Effective Time, shall be cancelled and shall cease to exist and no consideration shall be delivered in exchange therefor.

(c) Conversion of Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (x) shares to be cancelled in accordance with Section 3.1(b) and (y) Dissenting Shares) shall be automatically converted into the right to receive an amount in cash, without interest, equal to the Offer Price per share (the “ Merger Consideration ”). As of the Effective Time, all such shares of Company Common Stock, when converted as provided in this Section 3.1(c) , shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate (each, a “ Certificate ” and collectively, the “ Certificates ”) or book-entry share (each, a “ Book-Entry Share ” and collectively, the “ Book-Entry Shares ”) representing any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration upon surrender of such Certificate or Book-Entry Share in accordance with Section 3.2 .

(d) The Merger Consideration shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Company Common Stock occurring on or after the date hereof and prior to the Effective Time.

3.2 Exchange of Certificates.

The procedures for exchanging outstanding shares of Company Common Stock for the Merger Consideration are as follows:

(a) Paying Agent. Prior to the Effective Time, Parent shall (i) designate, or cause to be designated, a bank or trust company that is reasonably acceptable to Company (the “ Paying Agent ”) and (ii) enter into a paying agent agreement, in form and substance reasonably acceptable to Company, with such Paying Agent to act as agent for the payment of the Merger Consideration. Promptly after the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent funds in an amount sufficient to make the payments contemplated by Section 3.1 in accordance with the procedures set forth in Section 3.2(b) (such funds, the

“ Exchange Fund ”). In the event the Exchange Fund shall be insufficient to make all such payments, Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the deficiency in the amount of funds required to make such payments. The Paying Agent shall make payments of the aggregate Merger Consideration out of the Exchange Fund in accordance with this Agreement. The Exchange Fund shall not be used for any other purpose.

(b) Exchange Procedures. As soon as reasonably practicable after the Effective Time, Parent or the Surviving Corporation shall cause the Paying Agent to promptly mail to each holder of record of a Certificate or Book-Entry Shares which immediately prior to the Effective Time represented outstanding shares of Company Common Stock whose shares were converted pursuant to Section 3.1(c) into the right to receive the Merger Consideration, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates, shall pass only upon delivery of the Certificates (or affidavits of loss in lieu thereof pursuant to Section 3.2(h) hereof) to the Paying Agent and shall be in such form and have such other provisions as Parent and Company may mutually agree or the Paying Agent may reasonably specify), and (ii) instructions for effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration. Upon surrender of a Certificate or Book-Entry Share, as applicable, for cancellation to the Paying Agent, together with such letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required pursuant to such instructions, the holder of such Certificate or such Book-Entry Share shall be entitled to receive in exchange therefor cash equal to the Merger Consideration payable in respect of the shares of Company Common Stock previously represented by such Certificate or such Book-Entry Share, and the Certificate or Book-Entry Share so surrendered shall immediately be cancelled. In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of Company, payment may be made to a Person other than the Person in whose name the Certificate or Book-Entry Share so surrendered is registered, if such Certificate or such Book-Entry Share is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 3.2 , each Certificate or Book-Entry Share, as applicable, shall be deemed at any time after the Effective Time to represent only the right to receive, upon such surrender the Merger Consideration. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate or Book-Entry Share.

(c) No Further Ownership Rights in Company Common Stock. The Merger Consideration delivered upon the surrender for exchange of Certificates (or affidavit of loss in lieu thereof) or Book-Entry Shares, as applicable, in accordance with the terms hereof shall be deemed to have been delivered (and paid) in full satisfaction of all rights pertaining to such shares of Company Common Stock, and from and after the Effective Time the stock transfer books of Company shall be closed and thereafter, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged as provided in this Article III.

(d) Termination of Exchange Fund. Any portion of the Exchange Fund that remains undistributed to the holders of Certificates or Book-Entry Shares six (6) months after the Effective Time shall be delivered to Parent, upon demand, and any holder of a Certificate or a Book-Entry Share who has not previously complied with this Section 3.2 prior to the end of such six (6) month period shall thereafter look only to Parent for payment of its claim for the Merger Consideration.

(e) No Liability. To the extent permitted by applicable Law, none of Parent, Purchaser, Company, the Surviving Corporation or the Paying Agent or any of their respective Affiliates shall be liable to any Person in respect of Merger Consideration properly delivered to a public official pursuant to the requirements of any applicable abandoned property, escheat or similar Law.

(f) Investment of Exchange Fund. The Paying Agent shall invest any cash included in the Exchange Fund, as directed by Parent; provided , however , that such investments shall be in obligations of or guaranteed by the U.S. or any agency or instrumentality thereof and backed by the full faith and credit of the U.S., in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank that are then publicly available); provided , further , however , that no gain or loss thereon or income or loss generated thereby shall affect the amounts payable by Parent and Purchaser to Company Stockholders pursuant to this Article III. Any net profit resulting from, or interest or income produced by, such investments, shall be placed in the Exchange Fund and any amounts in excess of the amounts payable to Company Stockholders shall be payable to Parent.

(g) Withholding Rights. Each of Parent, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the Merger Consideration, or consideration otherwise payable pursuant to this Agreement to any holder of a Certificate, a Book-Entry Share or a Company Stock Option, as the case may be, such amounts as it reasonably determines that it is required to deduct and withhold with respect to the making of such payment under the Code, or any other applicable provision of Law. To the extent that amounts are so withheld and paid to the appropriate Governmental Authority by the Surviving Corporation, Parent or the Paying Agent, as the case may be, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Certificate, Book-Entry Share, or Company Stock Option, as applicable, in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Paying Agent, as the case may be.

(h) Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation or the Payment Agent the posting by such Person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration deliverable in respect thereof pursuant to this Agreement.

3.3 Appraisal Rights.

(a) Notwithstanding anything in this Agreement to the contrary, any shares (the “ Dissenting Shares ”) of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by Company Stockholders who, in accordance with Section 262 of the DGCL (the “ Appraisal Rights Provisions ”), (i) have not voted in favor of adopting this Agreement, (ii) shall have demanded properly in writing appraisal for such shares, (iii) have otherwise complied in all respects with the Appraisal Rights Provisions, and (iv) have not effectively withdrawn, lost or failed to perfect their rights to appraisal (the “ Dissenting Stockholders ”), will not be converted into the Merger Consideration, but at the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, shall be cancelled and shall cease to exist and shall represent the right to receive only those rights provided under the Appraisal Rights Provisions; provided , however , that all shares of Company Common Stock held by Company Stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such shares of Company Common Stock under the Appraisal Rights Provisions shall thereupon be deemed to have been cancelled and to have been converted, as of the Effective Time, into the right to receive the Merger Consideration relating thereto, without interest, in the manner provided in Sections 3.1 and 3.2 .

(b) Company shall give Parent and Purchaser prompt notice of any demands received by Company for the exercise of appraisal rights with respect to shares of Company Common Stock, and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands subject, prior to the Effective Time, to consultation with Company. Company shall not, except with the prior written consent of Parent, which consent shall not be unreasonably withheld, make any payment with respect to, or settle or offer to settle, any such demands.

3.4 Treatment of Options, SARs, Restricted Stock and other Equity Awards.

(a) Except as set forth in this Section 3.4(a) or in Section 3.4(a) of the Company Disclosure Schedule, on the Acceptance Date and without any action on the part of the holders thereof, Parent shall cause each Company Stock Option, Company SAR, Company RSU and other equity-based award granted under the Company Specified Plans and denominated in shares of Company Common Stock that is not a Company Restricted Stock Award (each such award, a “ Company Specified Plan Award”) that is outstanding as of immediately prior to the Acceptance Date, whether or not then vested or exercisable, to be assumed by Parent and converted automatically on the Acceptance Date into an option, stock appreciation right, restricted stock unit award or other equity-based award, as the case may be, denominated in shares of Parent Common Stock and which will have the same terms and conditions as those of the related Company Specified Plan Award except that (i) the number of shares of Parent Common Stock subject to each such award shall be determined by multiplying the number of shares of Company Common Stock subject to such Company Specified Plan Award as of immediately prior to the Acceptance Date by a fraction (the “Specified Award Exchange Ratio ”), the numerator of which is the Offer Price and the denominator of which is the closing price of Parent Common Stock on The NASDAQ Global Select Market on the Acceptance Date (rounded

down to the nearest whole share) and (ii) if applicable, the exercise or purchase price per share of Parent Common Stock (rounded upwards to the nearest whole cent) shall equal (x) the per share exercise or purchase price for the shares of Company Common Stock otherwise purchasable pursuant to such Company Specified Plan Award as of immediately prior to the Acceptance Date divided by (y) the Specified Award Exchange Ratio; provided , however , that in no case shall the exchange of a Company Stock Option be performed in a manner that is not in compliance with the adjustment requirements of Section 409A of the Code; provided , further , that in the case of any assumed Company Stock Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, the per share exercise price of the option, the number of shares of Parent Common Stock subject to such option and the terms and conditions of exercise of such option shall be determined in order to comply with Section 424 of the Code and satisfy the requirements of Section 424(a) of the Code and Treasury Regulation Section 1.424-1. Notwithstanding the foregoing, unless determined otherwise by Parent and notice is provided to the Company at least twenty (20) days prior to the Acceptance Date, each Company Specified Plan Award that is held by a person who is not an employee of, or a consultant to, the Company or any Subsidiary of the Company as of the Acceptance Date (the “ Cashed Out Specified Plan Awards ”) shall not be assumed by Parent pursuant to this Section 3.4 and shall, as of immediately prior to the Acceptance Date, be cancelled, extinguished and automatically converted into the right to receive an amount in cash equal to the product obtained by multiplying (x) the aggregate number of shares of Company Common Stock that were issuable upon exercise or settlement of such Cashed Out Specified Plan Award immediately prior to the Acceptance Date and (y) the Offer Price less any per share exercise price of such Cashed Out Specified Plan Award. In the event any Cashed Out Specified Plan Award is subject to Section 409A of the Code, the payment of the amount of cash with respect thereto shall be delayed to the extent necessary to comply with Section 409A of the Code.

(b) Except as otherwise set forth in this Section 3.4(b) or in Section 3.4(b) of the Company Disclosure Schedule, at the Effective Time and without any action on the part of the holders thereof, the Surviving Corporation shall cause each Company Stock Option, Company SAR, Company RSU and other equity-based award granted under any Company Stock Option Plan other than the Company Specified Plans (each, a “ Company Remaining Plan ”) and denominated in shares of Company Common Stock that is not a Company Restricted Stock Award (each such award, a “ Company Remaining Plan Award, ” and any such award or any Company Specified Plan Award being referred to herein as a “ Company Compensatory Award ”) that is outstanding as of immediately prior to the Effective Time, whether or not then vested or exercisable, to be assumed by Parent and converted automatically at the Effective Time into an option, stock appreciation right, restricted stock unit award or other equity-based award, as the case may be, denominated in shares of Parent Common Stock and which will have the same terms and conditions as those of the related Company Remaining Plan Award except that (i) the number of shares of Parent Common Stock subject to each such award shall be determined by multiplying the number of shares of Company Common Stock subject to such Company Remaining Plan Award as of immediately prior to the Effective Time by a fraction (the “ Remaining Plan Award Exchange Ratio ”), the numerator of which is the per share Merger Consideration and the denominator of which is the average closing price of Parent Common Stock on The NASDAQ Global Select Market for the five (5) trading days immediately preceding the Closing Date (rounded down to the nearest whole share) and (ii) if applicable, the

exercise or purchase price per share of Parent Common Stock (rounded upwards to the nearest whole cent) shall equal (x) the per share exercise or purchase price for the shares of Company Common Stock otherwise purchasable pursuant to such Company Remaining Plan Award as of immediately prior to the Effective Time divided by (y) the Remaining Plan Award Exchange Ratio; provided , however , that in no case shall the exchange of a Company Stock Option be performed in a manner that is not in compliance with the adjustment requirements of Section 409A of the Code; provided , further , that in the case of any assumed Company Stock Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, the per share exercise price of the option, the number of shares of Parent Common Stock subject to such option and the terms and conditions of exercise of such option shall be determined in order to comply with Section 424 of the Code and satisfy the requirements of Section 424(a) of the Code and Treasury Regulation Section 1.424-1. Notwithstanding the foregoing, unless determined otherwise by Parent and notice is provided to the Company at least twenty (20) days prior to the Effective Time, each Company Remaining Plan Award that is held by a person who is not an employee of, or a consultant to, the Company or any Subsidiary of the Company as of the Effective Time (the “ Cashed Out Remaining Plan Awards ,” and together with the Cashed Out Specified Plan Awards, “ Cashed Out Compensatory Awards ”) shall not be assumed by Parent pursuant to this Section 3.4 and shall, as of immediately prior to the Effective Time, be cancelled, extinguished and automatically converted into the right to receive an amount in cash equal to the product obtained by multiplying (x) the aggregate number of shares of Company Common Stock that were issuable upon exercise or settlement of such Cashed Out Remaining Plan Award immediately prior to the Effective Time and (y) the per share Merger Consideration less any per share exercise price of such Cashed Out Remaining Plan Award. In the event any Cashed Out Remaining Plan Award is subject to Section 409A of the Code, the payment of the amount of cash with respect thereto shall be delayed to the extent necessary to comply with Section 409A of the Code.

(c) At the Effective Time by virtue of the Merger and without any action on the part of the holders thereof, each Company Restricted Stock Award shall automatically be cancelled, and each share of Company Common Stock subject to a Company Restricted Stock Award shall be converted into the right to receive an amount of cash equal to the per share Merger Consideration (“ Unvested Cash ”), which shall be subject to, and payable to the holder of such Company Restricted Stock Award, in accordance with the vesting schedule applicable to such Company Restricted Stock Award as in effect immediately prior to Effective Time.

(d) Parent shall take such actions as are necessary for the assumption and conversion of the Company Compensatory Awards pursuant to this Section 3.4 including the reservation, issuance and listing of Parent Common Stock as is necessary to effectuate the transactions contemplated by this Section 3.4 . As soon as reasonably practicable after the Acceptance Date (with respect to any holder of a Company Specified Plan Award) or the Effective Time (with respect to any holder of a Company Specified Plan Award), Parent shall deliver to each holder of any such Company Compensatory Award an appropriate notice setting forth such holder’s rights pursuant to such Company Compensatory Award. Parent shall (i) prepare and file with the SEC a registration statement on Form S-8 with respect to the shares of Parent Common Stock issuable upon exercise or vesting of the assumed Company Specified Plan Awards promptly following the Acceptance Date (and in no event later than five (5) Business

Days thereafter) and (ii) prepare and file with the SEC a registration statement on Form S-8 with respect to the shares of Parent Common Stock issuable upon exercise or vesting of the assumed Company Remaining Plan Awards promptly following the Effective Time (and in no event later than five (5) Business Days thereafter), and, with respect to each of clause (i) and (ii), shall maintain the effectiveness of each such registration statement thereafter for so long as any such Company Compensatory Awards remain outstanding.

(e) Prior to the Acceptance Date, the 2006 Employee Stock Purchase Plan (the “ ESPP ”) shall be terminated. The rights of participants in the ESPP with respect to any offering period then underway under the ESPP shall be determined by treating a Business Day to be determined by Company that is prior to the Acceptance Date as the last day of such offering period and by making such other pro-rata adjustments as may be necessary to reflect the shortened offering period but otherwise treating such shortened offering period as a fully effective and completed offering period for all purposes under such ESPP. Prior to the Acceptance Date, the Company shall take all actions (including, if appropriate, amending the terms of such the ESPP) that are necessary to give effect to the transactions contemplated by this Section 3.4(e) .

(f) Subject to Parent’s compliance with the preceding provisions of this Section 3.4 , the parties agree that, (i) following the Acceptance Date no holder of a Company Specified Plan Award or any participant in any Company Specified Plan shall have any right hereunder to acquire any Equity Interest (including any “phantom” stock or stock appreciation rights) in the Company, any of its Subsidiaries or the Surviving Corporation, and (ii) following the Effective Time, no holder of a Company Remaining Plan Award or any participant in any Company Remaining Plan, or other Company Plan or employee benefit arrangement of the Company or under any employment agreement shall have any right hereunder to acquire any Equity Interest (including any “phantom” stock or stock appreciation rights) in the Company, any of its Subsidiaries or the Surviving Corporation.

3.5 Additional Benefits Matters.

Company shall take all actions reasonably necessary to effect the transactions described in Section 3.4(a) and Section 3.4(c) pursuant to the terms of the applicable Company Stock Option Plans and agreements evidencing the Company Stock Options, Company SARs, Company RSUs and Company Restricted Stock Awards. All amounts payable pursuant to Section 3.4(a) shall be paid without interest, and no Unvested Cash or rights to receive any payments (or any payment) pursuant to Section 3.4(a) or Section 3.4(b) may be pledged, encumbered, sold, assigned or transferred (including any transfer by operation of law), by any Person, other than Parent, or be taken or reached by any legal or equitable process in satisfaction of any liability of such Person, prior to the distribution to such Person of such payment pursuant to Section 3.4(a) or Section 3.4(b) in accordance with this Agreement. Any payments made pursuant to Section 3.4(a) or Section 3.4(b) shall be net of all applicable withholding taxes that Parent, the Surviving Corporation or the Paying Agent, as the case may be, shall be required or otherwise permitted by applicable law to deduct and withhold from the relevant Cashed Out Compensatory Award or Unvested Cash under the Code, the rules and regulations promulgated thereunder or any provision of applicable state, local or foreign law. To the extent that amounts

are so withheld by Parent, the Surviving Corporation or the Paying Agent, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Cashed Out Compensatory Award or Unvested Cash in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Paying Agent.

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER

Parent and Purchaser hereby jointly and severally represent and warrant to Company as follows:

4.1 Corporate Organization.

(a) Parent is a Delaware corporation duly organized, validly existing and in corporate good standing under the laws of Delaware. Purchaser is a Delaware corporation duly organized, validly existing and in corporate good standing under the laws of Delaware.

(b) Purchaser was formed solely for the purpose of engaging in the transactions contemplated by this Agreement. All of the issued and outstanding capital stock of Purchaser is validly issued, fully paid and non-assessable and is owned, beneficially and of record, by Parent, free and clear of any Encumbrance. Except for obligations and liabilities incurred in connection with its incorporation and the transactions contemplated by this Agreement, Purchaser has not and will not have incurred, directly or indirectly, any obligations or liabilities or engaged in any business activities of any type or kind whatsoever or entered into any agreements or arrangements with any Person that would impair in any material respect the ability of Parent or Purchaser to perform its respective obligations under this Agreement or prevent or materially delay the consummation of the transactions contemplated by this Agreement.

4.2 Authority.

Each of Parent and Purchaser has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and perform its obligations hereunder. The adoption, execution, delivery and performance of this Agreement and the approval of the consummation of the transactions contemplated hereby have been recommended by, and are duly and validly authorized by all necessary action of, each of Parent and Purchaser. Except for the filing of the Certificate of Merger, no other corporate proceedings on the part of Parent or Purchaser are necessary to authorize the adoption, execution, delivery and performance of this Agreement or to consummate each of the Offer, the Merger and the other transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Parent and Purchaser, and (assuming due authorization, execution and delivery by Company), constitutes the valid and binding obligations of Parent and Purchaser, enforceable against Parent and Purchaser in accordance with its terms.

4.3 Consents and Approvals.

Except (a) for filings, permits, authorizations, consents, and approvals and for the termination or expiration, as applicable, of any applicable waiting periods, as may be required under, and other applicable requirements of, the Exchange Act, the Securities Act, the HSR Act and the Antitrust Laws, and state or foreign securities or state “Blue Sky” laws, (b) for filing of the Certificate of Merger, and (c) as otherwise set forth in Section 4.3 of the Parent Disclosure Schedule, none of the execution, delivery or performance of this Agreement by Parent and Purchaser, the consummation by Parent and Purchaser of the transactions contemplated hereby, including the Offer and the Merger, or compliance by Parent and Purchaser with any of the provisions hereof will (i) conflict with or result in any breach of any provision of the organizational documents of Parent or Purchaser, (ii) require either Parent or Purchaser to make any filing with, give any notice to, or obtain any permit, authorization, consent, or approval of, any Governmental Authority, (iii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which Parent and Purchaser, as the case may be, is a party or by which it or any of their respective properties or assets may be bound, or (iv) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent and Purchaser or any of their respective properties or assets, excluding from the foregoing clauses (ii), (iii) and (iv) such filings, notices, permits, authorizations, consents, approvals, violations, breaches or defaults that would not, individually or in the aggregate, have a Parent Material Adverse Effect.

4.4 Broker’s Fees.

Neither Parent nor Purchaser nor any of their respective officers, directors, employees or agents has employed any broker, finder or financial advisor or incurred any liability for any fees or commissions in connection with any of the transactions contemplated by this Agreement except for fees and commissions incurred in connection with the engagement of Goldman Sachs & Co., and for legal, accounting and other professional fees payable in connection with the Merger, all of which will be paid by Parent.

4.5 Legal Proceedings.

There is no claim, suit, action, proceeding or investigation of any nature pending or, to the knowledge of Parent, threatened, against Parent, Purchaser or any Subsidiary of Parent challenging the validity or propriety of the transactions contemplated by this Agreement, which, if adversely determined, would, either individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

4.6 Available Funds.

Parent has, and at each of the Acceptance Date and the date of the Effective Time will have, sufficient cash, available lines of credit or other sources of immediately available funds to enable it to pay the aggregate Offer Price and the aggregate Merger Consideration in full as well as to make all other required payments payable in connection with the transactions contemplated hereby.

4.7 Certain Compensation Arrangements.

The parties acknowledge that certain payments have been made or are to be made and certain benefits have been granted or are to be granted according to certain employment compensation, severance and other employee benefit plan(s) to which Parent is a party (the “ Parent Arrangement(s) ”) to certain Company Stockholders and holders of other securities of Company (the “ Covered Securityholders ”). Parent hereby represents and warrants that all such amounts payable under Parent Arrangement(s) (i) are being paid or granted as compensation for future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) were not, and are not calculated based on the number of shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. Parent also hereby represents and warrants that (i) the adoption, approval, amendment or modification of each Parent Arrangement since the discussions relating to the transactions contemplated hereby between Company and Parent began has been or will be approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of Parent in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto, and (ii) the “safe harbor” provided pursuant to Rule 14d-10(d)(2) is otherwise applicable thereto as a result of the taking of all necessary actions by the Parent Board, or the Executive Compensation Committee thereof, to cause such safe harbor to be applicable to such Parent Arrangements. A true and complete copy of any resolutions of the Parent Board, or the Executive Compensation Committee thereof, reflecting any approvals and actions referred to in the preceding sentence to the extent taken prior to the date of this Agreement will be provided to the Company within five (5) Business Days following the execution of this Agreement.

4.8 Offer Documents; Proxy Statement; Parent Information.

(a) The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company Stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by Company in writing for inclusion in the Offer Documents.

(b) The information relating to Parent, Purchaser and their respective Affiliates to be contained in the Proxy Statement (where and to the extent required by applicable Laws to consummate the Merger), and any other documents filed with the SEC in connection with the Merger, will not, on the date the Proxy Statement is first mailed to the Company Stockholders or at the time of the Special Meeting, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not false or misleading at the time and in light of the circumstances under which such statement is made.

4.9 No Other Representations or Warranties.

(a) Except for the representations and warranties contained in this Article IV, none of Parent, Purchaser or any other Person on behalf of Parent or Purchaser makes any express or implied representation or warranty with respect to Parent or Purchaser or with respect to any other information provided to Company in connection with the transactions contemplated hereby. None of Parent or Purchaser or any other Person on behalf of Parent or Purchaser shall be held liable for damage, liability or loss resulting from the distribution to Company, or Company’s use of, any such information, including any information, documents, projections, forecasts or other material made available to Company in expectation of the transactions contemplated by this Agreement, unless any such information is expressly included in a representation or warranty contained in this Article IV.

ARTICLE V - REPRESENTATIONS AND WARRANTIES OF COMPANY

Except as set forth in the disclosure schedules delivered concurrently with the execution of this Agreement to Parent and Purchaser (the “ Company Disclosure Schedule ”), which schedules shall identify any exceptions to the representations, warranties and covenants contained in this Agreement (with reference to the particular Section to which such information relates; provided that an item disclosed in any Section shall be deemed to have been disclosed for each other Section of this Agreement to the extent the relevance of such disclosure to such other Section of this Agreement is reasonably apparent), Company hereby represents and warrants to Parent and Purchaser as follows:

5.1 Corporate Organization.

(a) Company is a corporation duly organized, validly existing and in corporate good standing under the laws of the State of Delaware. Company has all requisite corporate power and authority to own, lease or operate all of its properties and assets and to carry on its business as it is now being conducted. Company is duly licensed or qualified to do business and is in corporate good standing in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned, leased or operated by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified and in corporate good standing has not had, either individually or in the aggregate, a Company Material Adverse Effect. The Certificate of Incorporation and the Bylaws of Company, copies of which have previously been made available to Parent and Purchaser, are true, correct, and complete copies of such documents as currently in effect.

(b) Section 5.1(b) of the Company Disclosure Schedule sets forth the name and jurisdiction of organization of each Subsidiary of Company. Each of Company’s Subsidiaries is duly organized and validly existing under the laws of the jurisdiction of its organization. Each of Company’s Subsidiaries has all requisite corporate power and authority to own, lease or operate all of its properties and assets and to carry on its business as it is now being conducted. Each of Company’s Subsidiaries is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned, leased, or operated by it makes such licensing or qualification necessary and, if applicable, is in corporate good standing under the laws of the jurisdiction of its organization, except where the failure to be so licensed or qualified and in good standing has not had, either individually or in the aggregate, a Company Material Adverse Effect.

(c) The articles or certificate of incorporation and bylaws or equivalent organizational documents of each of Company’s Subsidiaries, copies of which have previously been made available to Parent and Purchaser, are true, correct, and complete copies of such documents as currently in effect.

5.2 Capitalization.

(a) The authorized capital stock of Company consists of 250,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, $0.001 par value per share (the “ Company Preferred Stock ”). At the close of business on September 11, 2009, there were 77,250,058 shares of Company Common Stock and no shares of Company Preferred Stock issued and outstanding. At the close of business on September 11, there were 245,495 shares of Company Common Stock were subject to issuance pursuant the exercise of outstanding warrants to purchase Company Common Stock. Company has no shares of Company Common Stock or Company Preferred Stock reserved for issuance other than as described above, as described in Section 5.2(b) below or as reserved for issuance under the ESPP. All issued and outstanding shares of Company Common Stock have been, and all shares of Company Common Stock which may be issued pursuant to the exercise of outstanding Company Stock Options will be when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof except as required by Law. There are no bonds, debentures, notes or other indebtedness having general voting rights, or convertible into securities having such rights (“ Voting Debt ), of Company or any of its Subsidiaries issued and outstanding. Except for the Company Stock Option Plans and outstanding awards issued thereunder, the ESPP or as reflected in Section 5.2(a) of the Company Disclosure Schedule, Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments, rights agreements or agreements of any character calling for Company to issue, deliver or sell, or cause to be issued, delivered or sold any shares of Company Common Stock or Company Preferred Stock or any other Equity Interest or Voting Debt of Company or any Subsidiary of Company or any securities convertible into, exchangeable for or representing the right to subscribe for, purchase or otherwise receive any shares of Company Common Stock or Company Preferred Stock or any other Equity Interest or Voting Debt of Company or any Subsidiary of Company or obligating Company or any such Subsidiary to grant, extend or enter into any such subscriptions, options, warrants, calls, commitments, rights agreements or any other similar agreements.

(b) Except with respect to Company Restricted Stock Awards, there are no outstanding contractual obligations of Company to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests or Voting Debt in, Company or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary of Company. Except with respect to Company Restricted Stock Awards, there are no shares of Company Common Stock outstanding that are subject to vesting over time or upon the satisfaction of any condition precedent, or which are otherwise subject to any right or obligation of repurchase or redemption on the part of Company. No Subsidiary of Company owns any shares of Company Common Stock.

(c) As of September 11, 2009, there were 2,975,965 shares of Company Common Stock reserved and available for grant under the Company Stock Option Plans. As of September 11, 2009, Company had outstanding Company Stock Options to purchase 11,088,592 shares of Company Common Stock, 172,500 shares of Company Common Stock subject to Company SARs, 2,599,164 shares of Company Common Stock subject to Company RSUs and 23,560 shares of Company Common Stock subject to Company Restricted Stock Awards were outstanding and granted under, Company Stock Option Plans, and in addition, as of September 11, 2009, Company had 1,526,695 shares of Company Common Stock reserved for issuance under the ESPP. All of such Company Stock Options, Company SARs, Company RSUs and Company Restricted Stock Awards have been granted to service providers of Company and its Subsidiaries (or any predecessor company) pursuant to the Company Stock Option Plans. Section 5.2(c) of the Company Disclosure Schedule sets forth an accurate and complete list of each outstanding Company Stock Option, Company SAR, Company RSUs and Company Restricted Stock Award as of September 11, 2009 and (i) the name of each holder thereof, (ii) the date of grant, (iii) the portion which is vested as of such date, (iv) the vesting schedule of such Company Stock Option, Company SAR, Company RSU or Company Restricted Stock Award, (v) the exercise or purchase price thereof, if applicable (vi) the Company Stock Option Plan under which such Company Stock Option, Company SAR, Company RSU or Company Restricted Stock Award, as the case may be, was granted, (vii) with respect to a Company Stock Option, the expiration date of such Company Stock Option, (viii) with respect to a Company Stock Option, whether such Company Stock Option is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code and (ix) with respect to a Company RSU, whether such Company RSU is subject to Section 409A of the Code.

(d) All outstanding shares of capital stock of, or other Equity Interests in, each Subsidiary of Company set forth in Section 5.1(b) of the Company Disclosure Schedule have been validly issued, fully paid and nonassessable and are owned directly or indirectly by Company, free and clear of any Encumbrances. Other than the Subsidiaries of Company set forth in Section 5.1(b) of the Company Disclosure Schedule, Company does not directly or indirectly own any Equity Interests in any other Person except for non-controlling investments made in the ordinary course of business.

(e) There are no voting trusts or other agreements to which Company or any of its Subsidiaries is a party with respect to the voting of any shares of Company Common Stock or any capital stock of, or other equity interest of Company or any of its Subsidiaries. Neither Company nor any of its Subsidiaries has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to its shares of capital stock that are in effect.

5.3 Authority. Company has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and perform its obligations hereunder subject to obtaining the approval of the Company Stockholders to adopt this Agreement. The adoption, execution, delivery and performance of this Agreement and the approval of the consummation of the transactions contemplated hereby have been duly

authorized by all necessary corporate action on the part of Company and no other corporate proceedings on the part of Company are necessary to authorize the adoption, execution, delivery and performance of this Agreement or to consummate the transactions contemplated hereby, except for the adoption of this Agreement by the Company Stockholders and the filing of the Certificate of Merger with the Secretary of the State of Delaware. As of the date hereof, the Company Board has unanimously (i) determined and declared that this Agreement advisable, (ii) approved this Agreement in accordance with the DGCL, (iii) recommended that the Company Stockholders accept the Offer, tender their shares of Company Common Stock into the Offer, and if required by applicable Law, adopt this Agreement and (iv) determined that each member of the Company Compensation Committee approving any plan, program, agreement, arrangement, payment or benefit as an Employment Compensation Arrangement in order to satisfy the non-exclusive safe harbor under Rule 14d-10(d)(2) is an “independent director” within the meaning of Rule 5605(a)(2) of the Nasdaq Stock Market LLC. This Agreement has been duly and validly executed and delivered by Company and (assuming due authorization, execution and delivery by Parent and Purchaser) constitutes the valid and binding obligations of Company, enforceable against Company in accordance with its terms.

5.4 No Violation; Required Filings and Consents.

Assuming the adoption of this Agreement by the Company Stockholders and except (a) for filings, permits, authorizations, consents, orders, authorizations, registrations, declarations and approvals as may be required under, and other applicable requirements of the Exchange Act, the Securities Act, the HSR Act and the Antitrust Laws, and state and foreign securities or state “Blue Sky” laws, (b) for filing of the Certificate of Merger, and (c) as otherwise set forth in Section 5.4 of the Company Disclosure Schedule, none of the execution, delivery or performance of this Agreement by Company, the consummation by Company of the transactions contemplated hereby, or compliance by Company with any of the provisions hereof will (i) conflict with or result in any breach of any provision of the Certificate of Incorporation or Bylaws of Company, (ii) require Company or any of its Subsidiaries to make any filing with, give any notice to, or obtain any permit, authorization, consent or approval of, any Governmental Authority, (iii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, modification, cancellation or acceleration) under, any of the terms, conditions or provisions of any Company Material Contract, or (iv) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Company or any of its properties or assets, excluding from the foregoing clauses (ii), (iii) and (iv) such filings, notices, permits, authorizations, consents, approvals, violations, breaches, defaults or rights of termination, modification, cancellation or acceleration or such violations of any order, writ, injunction, decree, statute, rule or regulation that, would not, individually or in the aggregate, (A) reasonably be expected to prevent the consummation of the Offer and the Merger or (B) reasonably be expected to have a Company Material Adverse Effect.

5.5 Financial Statements.

Each of the consolidated financial statements (including, in each case, any notes thereto) (the “ Company Financial Statements ”) contained in the Company SEC Reports, (i) has been prepared from and in accordance with the books and records of Company and its Subsidiaries in

all material respects, (ii) has been prepared in accordance with U.S. generally accepted accounting principles (“ GAAP ”) applied (except as may be indicated in the notes thereto and, in the case of unaudited quarterly financial statements, as permitted by Form 10-Q under the Exchange Act) on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), and (iii) each presents fairly in all material respects the consolidated financial position, stockholders’ equity, results of operations and cash flows of Company and the consolidated Subsidiaries as of the respective dates thereof and for the respective periods indicated therein (subject, in the case of unaudited statements, to normal and recurring year-end adjustments that have not been and will not be, individually or in the aggregate, material in magnitude). The balance sheet of the Company dated as of June 30, 2009 contained in the Company SEC Report filed with the SEC on August 6, 2009 is hereinafter referred to as the “ Company Balance Sheet .” Without limiting the generality of the foregoing or of any representation made in Section 5.9 , (i) Ernst & Young LLP has not resigned or been dismissed as independent public accountant of Company as a result of or in connection with any disagreement with Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, (ii) no executive officer of Company has failed in any respect to make, without qualification, the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley Act with respect to any form, report or schedule filed by Company with the SEC since the enactment of the Sarbanes-Oxley Act and (iii) no enforcement action has been initiated or, to the knowledge of Company, threatened against Company by the SEC relating to disclosures contained in any Company SEC Report.

5.6 Broker’s Fees.

Neither Company nor any of its officers, directors, employees, or agents has employed any broker, finder or financial advisor or incurred any liability for any fees or commissions in connection with any of the transactions contemplated by this Agreement (including the Offer and the Merger), except for fees and commissions incurred in connection with the engagement of Morgan Stanley & Co. Incorporated (the “ Company’s Financial Advisor ”) and for legal, accounting and other professional fees payable in connection with the transactions contemplated hereby, all of which will be payable by Company. True, correct and complete copies of all agreements between Company and the Company’s Financial Advisor concerning this Agreement and the Transaction, including any fee arrangements, have been previously made available to Parent.

5.7 Absence of Certain Changes or Events.

Except as set forth on the face of the Company SEC Reports filed with or furnished to the SEC after January 1, 2008 and prior to the date of this Agreement (but excluding any risk factors or forward-looking statements contained therein), (a) on the date of the Company Balance Sheet there did not exist a Company Material Adverse Effect, and (b) since the date of the Company Balance Sheet through the date of this Agreement (i) Company and each of its Subsidiaries have conducted its respective business in all material respects in the ordinary course consistent with their past practices, (ii) there has not been any change, circumstance or event which has had, either individually or in the aggregate, a Company Material Adverse Effect, and (iii) no action has been taken by Company or any of its Subsidiaries that, if taken during the period from the date of this Agreement through the Acceptance Date, would, unless consented to by Parent, constitute a breach of clauses (a) — (r) (other than clauses (b), (c), (f), (q) and (r)) of Section 6.1.

5.8 Legal Proceedings.

As of the date of this Agreement, (a) there is no suit, claim, action, arbitration, investigation of a Governmental Authority, alternative dispute resolution action or any other judicial, administrative or arbitral proceeding pending or, to the knowledge of Company, threatened against Company or any of its Subsidiaries or any executive officer or director of Company or any of its Subsidiaries (in their capacity as such), and (b) neither Company nor any Subsidiary, nor to the knowledge of Company, any executive officer or director of Company or any of its Subsidiaries (in their capacity as such), is subject to any outstanding order, writ, judgment, injunction or decree of any Governmental Authority, which, in the case of (a) or (b), (i) would, individually or in the aggregate, (A) reasonably be expected to prevent or materially delay the consummation of the Offer or the Merger, or (B) otherwise prevent or materially delay performance by Company of any of its material obligations under this Agreement, or (ii) has or would reasonably be expected to, individually or in the aggregate, result in the imposition of any material liability upon Company or any of its Subsidiaries or the imposition of any material restriction on the operation of the business of Company or any of its Subsidiaries.

5.9 Reports.

(a) Since January 1, 2007 Company has filed or furnished (as applicable) all forms, reports, registrations, schedules, statements and other documents, together with any amendments required to be made with respect thereto, that were and are required to be filed or furnished (as applicable) under the Exchange Act or the Securities Act (together with all certifications required pursuant to the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act )) (such documents and any other documents filed by Company with the SEC, as have been amended since the time of their filing, collectively, the “ Company SEC Reports ”). As of their respective effective dates (in the case of the Company SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective SEC filing dates (in the case of all other Company SEC Reports), or in each case, if amended prior to the date hereof, as of the date of the last such amendment, the Company SEC Reports complied in all material respects with the applicable requirements of the Exchange Act or the Securities Act, as the case may be, the Sarbanes-Oxley Act and the applicable rules and regulations of the SEC thereunder and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of Company’s Subsidiaries is required to file or furnish any forms, reports, registrations, schedules, statements or other documents with the SEC. As of the date of this Agreement, Company has made available to Parent and Purchaser true, correct, and complete copies of all amendments and modifications that have not been filed by Company with the SEC to all agreements, documents and other instruments that previously had been filed by Company with the SEC and are currently in effect.

(b) Company and its Subsidiaries maintain a system of internal accounting controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting. Company and its Subsidiaries (i) maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; and (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (ii) have implemented and maintain disclosure controls and procedures (as defined in Rule 13a-15(e) and 15d-15(e) of the Exchange Act) that are designed to ensure that material information relating to Company, including its consolidated Subsidiaries, is made known to the chief executive officer and the chief financial officer of Company by others within those entities as appropriate to allow timely decisions regarding required disclosure, and (iii) has disclosed, based on its most recent evaluation prior to the date hereof, to Company’s outside auditors and the audit committee of the Company Board, (A) any significant deficiencies and material weaknesses of which Company has knowledge in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect Company’s ability to record, process, summarize and report financial information, and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in Company’s internal control over financial reporting.

(c) Except as previously disclosed by Company to Parent, since January 1, 2007, to Company’s knowledge, no Key Employee or member of the Company Board has received or otherwise had or obtained knowledge of any substantive complaint, allegation, assertion or claim, whether written or oral, of the violation or possible violation of any applicable Laws of the type described in Section 806 of the Sarbanes-Oxley Act by Company or any of its Subsidiaries.

5.10 Absence of Undisclosed Liabilities.

Except as set forth on the face of the Company SEC Reports filed with or furnished to the SEC after January 1, 2008 and prior to the date of this Agreement (but excluding any risk factors or forward-looking statements contained therein), since the date of the Company Balance Sheet, except for those liabilities that are reflected or reserved against on the Company Financial Statements, liabilities or obligations under this Agreement or incurred in connection with the transactions contemplated hereby and for liabilities incurred in the ordinary course of business consistent with past practice, neither Company nor any of its Subsidiaries has incurred any obligation or liability (contingent or otherwise) of a nature required by GAAP to be disclosed on a consolidated balance sheet of Company, including the notes thereto, that, either alone or when combined with all similar liabilities, either has had, either individually or in the aggregate, a Company Material Adverse Effect.

5.11 Permits; Compliance with Applicable Laws and Reporting Requirements.

Company and its Subsidiaries hold all permits, licenses, variances, authorizations, exemptions, orders, registrations and approvals of all Governmental Authorities which are required for the operation of their respective businesses in all material respects (the “ Company Permits ”), each of the Company Permits is in full force and effect, and Company and each of its Subsidiaries is in material compliance with the terms of the Company Permits. Company and its Subsidiaries are and have at all times since January 1, 2005 been, in material compliance with all applicable Laws (including the Sarbanes-Oxley Act of 2002 and the USA PATRIOT Act of 2001). To the knowledge of Company, neither Company not any of its Subsidiaries, nor any of their respective directors, officers, agents, employees or any other Persons acting with or on their behalf has, (i) violated the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1 et seq., or any other similar applicable Law, (ii) made, promised or provided, or caused to be made, promised or provided, directly or indirectly, any payment or thing of value to a foreign or domestic official, foreign or domestic political party, candidate for office, official of any public international organization or official of any state-owned entity or any other person, for the purpose of influencing a decision, inducing an official to violate their lawful duty, securing any improper advantage, or inducing a foreign or domestic official to use their influence to affect a governmental decision, (iii) paid, accepted or received any unlawful contributions, payments, expenditures, entertainment or gifts, or (iv) violated or operated in noncompliance with any money laundering law, anti-terrorism law or regulation, anti-boycott regulations or embargo regulations. The representations and warranties set forth in this Section 5.11 are not being made with respect to compliance with privacy and security laws, which matters are addressed in Section 5.22.

5.12 Taxes and Tax Returns.

(a) Each of Company and its Subsidiaries has (i) timely filed (or has caused to be timely filed on its behalf) (after taking into account any extension of time within which to file) all material Tax Returns required to be filed by it; and (ii) timely paid (or has caused to be timely paid on its behalf) all material Taxes required to have been paid by it, except for Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP. All such Tax Returns were correct and complete is all material respects and were prepared in substantial compliance with all applicable laws and regulations. The most recent financial statements contained in the Company SEC Reports reflect an adequate reserve (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) for all Taxes payable by Company and its Subsidiaries for all taxable periods and portions thereof through the date of such financial statements in accordance with GAAP, whether or not shown as being due on any Tax Returns. Since the date of the most recent Company SEC Report, neither Company nor any Subsidiary of Company has incurred any material liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and practice. No deficiencies for any material amount of Taxes have been proposed, asserted or assessed against Company or any of its Subsidiaries as of the date hereof, and no requests for waivers of the time to assess any such material Taxes are pending. Neither Company no any of its Subsidiaries has granted any extension or waiver of the statute of limitations period applicable to any material Tax Return, which period (after giving effect to such extension or waiver) has not yet expired.

(b) As of the date hereof, no examination or audit of any material Tax Return of Company or any of its Subsidiaries or any administrative or judicial proceeding in respect of any material amount of Tax is currently in progress or, to Company’s knowledge, threatened.

(c) No claim has ever been made in writing at any time in the past five years by an authority in a jurisdiction where the Company or any Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.

(d) Neither Company nor any of its Subsidiaries (i) is or has ever been a member of a group of corporations with which it has filed (or been required to file) consolidated, affiliated, combined or unitary Tax Returns, other than a group the common parent of which was Company, (ii) is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement, or (iii) has liability for Taxes of any other Person (other than Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.

(e) Each of Company and its Subsidiaries has timely withheld and paid all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any Company Personnel, creditor, depositor, stockholder, or other third party, and has complied in all material respects with any applicable information reporting, filing or similar requirements with respect to any such payments.

(f) Neither Company nor any of its Subsidiaries has participated in any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(1) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax Law.

(g) During the five-year period ending on the date hereof, neither Company nor any of its Subsidiaries was a “distributing corporation” or a “controlled corporation” in a transaction intended to be governed by Section 355 of the Code.

(h) Neither Company nor any of its Subsidiaries (i) is or was a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code; or (ii) was created or organized in the U.S. such that such entity would be taxable in the U.S. as a domestic entity pursuant to Treasury regulations Section 301.7701-5(a)..

5.13 Employee Benefit Programs.

(a) Section 5.13(a) of the Company Disclosure Schedule contains a correct and complete list identifying each Company Plan, other than Foreign Plans (as defined in Section 5.13(j) ) set forth in Section 5.13(j) of the Company Disclosure Schedule. “ Company Plan ” means each “employee pension benefit plan” (the “ Company Pension Plans ”), as such term is defined in Section 3(2) of ERISA, “employee welfare benefit plan”, as such term is defined in Section 3(1) of ERISA, and each stock option plan, restricted stock plan, stock purchase plan, deferred compensation plan, bonus or incentive plan, each material employment, consulting, severance or other similar contract, arrangement or policy (it being understood that any contract,

arrangement or policy providing for severance or the accelerated vesting of equity awards shall be disclosed hereunder without respect to materiality), and each other plan, arrangement (written or oral), program, agreement or commitment providing workers’ compensation, disability benefits, supplemental unemployment benefits, vacation benefits, or accident benefits (including any “voluntary employees’ beneficiary association” as defined in Section 501(c)(9) of the Code providing for the same or other benefits) which is maintained, administered or contributed to by the Company or any ERISA Affiliate and covers any employee or former employee of the Company or any of its Subsidiaries or with respect to which the Company or any ERISA has or may reasonably be expected to have any material liability.

(b) Company has made available to Parent complete and accurate copies of each of the following with respect to each Company Plan: (i) current plan document and any amendments thereto and, if such Company Plan is not in writing, a description of the material terms of such Company Plan; (ii) current trust agreement or insurance contract (including any fiduciary liability policy or fidelity bond), if any; (iii) most recent IRS determination or opinion letter, if any; (iv) the three most recent annual reports on Form 5500; (v) the two most recent financial and/or actuarial reports, if any; and (vi) summary plan description, any summary of material modifications thereto, and any material employee communications.

(c) Each of the Company Plans, which are maintained or contributed to by Company or any ERISA Affiliate, has been and is administered in material compliance with its terms and has been and is in material compliance with the applicable provisions of ERISA (including the funding and prohibited transactions provisions thereof), the Code and all other applicable Laws.

(d) No Company Plan is or was at any time within the preceding six (6) years subject to Title IV or Part 3 of Title I of ERISA or Section 412 of the Code, and neither Company nor any ERISA Affiliate is subject to any liability under Title IV or Part of Title I of ERISA. Each of the Company Pension Plans that is intended to be a qualified plan within the meaning of Code Section 401(a) has received a favorable determination or opinion letter from the IRS or may rely upon an opinion letter for a prototype plan. Company has made all contributions due to date, or such contributions are accrued on the financial statements of Company, to Company Pension Plans (other than Foreign Plans) required thereunder. Neither Company nor any ERISA Affiliate has, within the preceding six (6) years, maintained, established, sponsored, participated in, or contributed to a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a “ Multiemployer Plan ”).

(e) Neither Company nor any of its Subsidiaries provides or has agreed to provide healthcare to any employees after their employment is terminated (other than as required by Part 6 of Subtitle B of

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates