AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

NUANCE COMMUNICATIONS, INC.

EPIC ACQUISITION CORPORATION

EPIC ACQUISITION LLC

eCOPY, INC.

U.S. BANK NATIONAL ASSOCIATION, as Escrow Agent

AND

STOCKHOLDER REPRESENTATIVE

Dated as of September 30, 2009

TABLE OF CONTENTS

TABLE OF CONTENTS
(continued)

TABLE OF CONTENTS
(continued)

INDEX OF EXHIBITS

Schedules

Company Disclosure Schedule

Schedule 1.6(a)(v) — Closing Bonuses

Schedule 1.6(a)(xxvi) — Knowledge Parties

Schedule 1.6(a)(xxxi) — Promissory Notes

Schedule 2.15(b)(iii) — Specified Individuals

Schedule 4.5 — List of Employees Receiving Bonuses

Schedule 4.10(a) — List of Returns

Schedule 4.10(c) — Current IRS Audit

Schedule 4.11 — Company RSUs

TABLE OF CONTENTS
(continued)

     THIS AGREEMENT AND PLAN OF MERGER (the “ Agreement ”) is made and entered into as of September 30, 2009 by and among Nuance Communications, Inc., a Delaware corporation (“ Parent ”), Epic Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“ Sub I ”), Epic Acquisition LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“ Sub II ”, and with Sub I, the “ Subs ”), eCopy, Inc., a Delaware corporation (the “ Company ”), U.S. Bank National Association, to act as escrow agent hereunder, and as a party to this Agreement solely with respect to ARTICLE VI herein (the “ Escrow Agent ”) and Gary Hall, who will serve as the representative of the Company’s stockholders, and is referred to herein from time to time as the “ Stockholder Representative .”

RECITALS

     A. The Boards of Directors of each of Parent, Sub I and the Company believe it is in the best interests of each company and its respective stockholders that Parent acquire the Company through the statutory merger of Sub I with and into the Company (the “ First Step Merger ”) and, in furtherance thereof, have approved this Agreement.

     B. As soon as practicable following the First Step Merger, Parent shall cause the Company to merge with and into Sub II (the “ Second Step Merger ” and, taken together with the First Step Merger, the “ Integrated Merger ” or the “ Merger ”). The Integrated Merger is intended to constitute a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”). Parent and the Company intend that the First Step Merger and the Second Step Merger will constitute integrated steps in a single “plan of reorganization” within the meaning of Treas. Reg. §§1.368-2(g) and 1.368-3, which plan of reorganization the parties adopt by executing this Agreement.

     C. Pursuant to the First Step Merger, among other things, and subject to the terms and conditions of this Agreement, all of the issued and outstanding capital stock of the Company shall be converted into the right to receive the consideration set forth herein.

     D. A portion of the consideration payable in connection with the First Step Merger shall be placed in escrow as security for the indemnification obligations set forth in this Agreement.

     E. The Company, on the one hand, and Parent and the Subs, on the other hand, desire to make certain representations, warranties, covenants and other agreements in connection with the Integrated Merger.

     F. Concurrent with the execution and delivery of this Agreement, as a material inducement to Parent and the Subs to enter into this Agreement, certain individuals are entering into Employee Proprietary Information, Inventions, Non-Competition and No-Hire Agreements, each in substantially the form attached hereto as Exhibit A (the “ Employee Proprietary Information,

Inventions, Non-Competition and No-Hire Agreements ”), with Parent, the Interim Surviving Corporation or the Final Surviving Entity, as determined by Parent.

     G. NOW, THEREFORE, in consideration of the mutual agreements, covenants and other promises set forth herein, the mutual benefits to be gained by the performance thereof, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, the parties hereby agree as follows:

ARTICLE I

THE MERGER

     1.1 The Integrated Merger . At the Effective Time (as defined in Section 1.2 hereof) and subject to and upon the terms and conditions of this Agreement and the applicable provisions of the General Corporation Law of the State of Delaware (“ Delaware Law ”), Sub I shall be merged with and into the Company, the separate corporate existence of Sub I shall cease, and the Company shall continue as the surviving corporation and as a wholly owned subsidiary of Parent. The surviving corporation after the First Step Merger is hereinafter referred to as the “ Interim Surviving Corporation .” As soon as practicable after the Effective Time, and subject to and upon the terms and conditions of this Agreement and the applicable provisions of Delaware Law and the Delaware Limited Liability Company Act (the “ LLC Act ”), the Interim Surviving Corporation shall be merged with and into Sub II, the separate corporate existence of the Interim Surviving Corporation shall cease, and Sub II shall continue as the surviving entity and as a wholly owned subsidiary of Parent. The surviving entity after the Second Step Merger is hereinafter referred to as the “ Final Surviving Entity .”

     1.2 Effective Time . Unless this Agreement is earlier terminated pursuant to Section 8.1 hereof, the closing of the First Step Merger (the “ Closing ”) will take place promptly following the execution and delivery hereof by the parties hereto, conditioned upon the satisfaction or waiver of the conditions set forth in ARTICLE V hereof, at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 1700 K Street N.W., Fifth Floor, Washington, D.C. 20006, unless another time or place is mutually agreed upon in writing by Parent and the Company. The date upon which the Closing actually occurs shall be referred to herein as the “ Closing Date .” On the Closing Date, the parties hereto shall cause the First Step Merger to be consummated by filing a Certificate of Merger in substantially the form attached hereto as Exhibit B-1 , with the Secretary of State of the State of Delaware (the “ Certificate of Merger ”), in accordance with the applicable provisions of Delaware Law (the time of the acceptance of such filing by the Secretary of State of the State of Delaware shall be referred to herein as the “ Effective Time ”). As soon as practicable after the Effective Time, Parent shall cause the Second Step Merger to be consummated by filing a Certificate of Merger in substantially the form attached hereto as Exhibit B-2 with the Secretary of State of the State of Delaware (the “ Second Step Certificate of Merger ”) in accordance with the applicable provisions of Delaware Law and the LLC Act.

     1.3 Effect of the First Step Merger and the Second Step Merger . At the Effective Time, the effect of the First Step Merger shall be as provided in the applicable provisions of Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, except as otherwise agreed to pursuant to the terms of this Agreement, all of the rights, privileges, powers and franchises of the Company and Sub I shall vest in the Interim Surviving Corporation, and all restrictions, disabilities and duties of the Company and Sub I shall become the restrictions, disabilities and duties of the Interim Surviving Corporation. At the effective time of the Second Step Merger, the effect of the Second Step Merger shall be as provided in the applicable provisions of Delaware Law and the LLC Act. Without limiting the generality of the foregoing, and subject thereto, at the effective time of the Second Step Merger, except as otherwise agreed to pursuant to the terms of this Agreement, all of the rights, privileges, powers and franchises of the Interim Surviving Corporation shall vest in Sub II as the surviving entity in the Second Step Merger, and all restrictions, disabilities and duties of the Interim Surviving Corporation shall become the restrictions, disabilities and duties of Sub II as the surviving entity in the Second Step Merger.

     1.4 Formation Documents .

          (a) The certificate of incorporation of the Interim Surviving Corporation shall be amended and restated as of the Effective Time to be identical to the certificate of incorporation of Sub I as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in such certificate of incorporation; provided , however , that at the Effective Time, Article I of the certificate of incorporation of the Interim Surviving Corporation shall be amended and restated in its entirety to read as follows: “The name of the corporation is eCopy, Inc.”

          (b) Unless otherwise determined by Parent prior to the Effective Time, immediately following the Effective Time, the Board of Directors of the Interim Surviving Corporation shall amend and restate the bylaws of the Interim Surviving Corporation to be the same as the bylaws of Sub I, as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in the certificate of incorporation of the Interim Surviving Corporation and such bylaws.

          (c) The certificate of formation of Sub II as in effect immediately prior to the effective time of the Second Step Merger shall be the certificate of formation of the Final Surviving Entity in the Second Step Merger until thereafter amended in accordance with the LLC Act and as provided in such certificate of formation; provided, however , that at the effective time of the Second Step Merger, Article I of such certificate of formation shall be amended and restated in its entirety to read as follows: “The name of this limited liability company is eCopy, LLC.”

          (d) Unless otherwise determined by Parent prior to the Effective Time, the Limited Liability Company Agreement of Sub II as in effect immediately prior to the effective time of the Second Step Merger shall be the Limited Liability Company Agreement of the Final

Surviving Entity, until thereafter amended in accordance with the LLC Act and as provided in such Limited Liability Company Agreement; provided, however , that at the Effective Time, such Limited Liability Company Agreement shall be amended and restated in its entirety to read as follows: “The name of this limited liability company is eCopy, LLC.”

     1.5 Management .

          (a) Directors/Managers of Company . The directors of Sub I immediately prior to the Effective Time shall be the directors of the Interim Surviving Corporation immediately after the Effective Time and the managers of the Final Surviving Entity immediately after the effective time of the Second Step Merger, each to hold the office of a director/manager of the Interim Surviving Corporation and the Final Surviving Entity, respectively, in accordance with the provisions of Delaware Law and the certificate of incorporation and bylaws of the Interim Surviving Corporation and the LLC Act and the Certificate of Formation of the Final Surviving Entity until their respective successors are duly elected and qualified.

          (b) Officers of Company . The officers of Sub I immediately prior to the Effective Time shall be the officers of the Interim Surviving Corporation immediately after the Effective Time and the officers of the Final Surviving Entity after the effective time of the Second Step Merger, each to hold office in accordance with the provisions of the bylaws of the Interim Surviving Corporation and the Limited Liability Company Agreement of the Final Surviving Entity, respectively.

     1.6 Effect of First Step Merger on the Capital Stock of the Constituent Corporations.

          (a) Definitions . For all purposes of this Agreement, the following terms shall have the following respective meanings:

               (i) “ Accredited Stockholder ” shall mean any Stockholder that is an “accredited investor” for purposes of the Securities Act, each of whom shall have executed and delivered to Parent an accredited investor questionnaire, in the form attached hereto as Exhibit C .

               (ii) “ Aggregate Option Exercise Amount ” shall mean an amount equal to the aggregate exercise price of all Company In the Money Options outstanding as of the Effective Time.

               (iii)  “ Business Day(s) ” shall mean each day that is not a Saturday, Sunday or holiday on which banking institutions located in New York, New York are authorized or obligated by Law or executive order to close.

               (iv) “ Cash Consideration ” shall mean an amount equal to the sum of (a) $34,200,000 plus (b) the aggregate exercise price of any Company Options actually received by the

Company in cash (including by check) since January 31, 2009 minus (c) the Third Party Expenses (as defined in Section 4.1 hereof) minus (d) Closing Bonuses.

               (v) “ Closing Bonuses ” shall mean the bonuses payable to the persons and in the amounts set forth on Schedule 1.6(a)(v) .

               (vi)  “ Common Per Share Consideration ” shall mean the difference between (x) the quotient obtained by dividing (1) the Net Merger Consideration by (2) the Company Common Stock Deemed Outstanding and (y) the quotient obtained by dividing (1) the Series A Premium by (2) the number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time plus the number of shares of Company Common Stock underlying the Company In the Money Options.

               (vii)  “ Company Capital Stock ” shall mean shares of Company Common Stock and Company Preferred Stock.

               (viii)  “ Company Common Stock ” shall mean shares of common stock, $0.01 par value per share, of the Company.

               (ix) “ Company Common Stock Deemed Outstanding ” shall mean the number of shares of Company Common Stock outstanding immediately prior to the Effective Time, plus the number of shares of Company Common Stock underlying the Company In the Money Options, plus the number of shares of Company Common Stock issuable upon conversion of all of the shares of Company Preferred Stock issued and outstanding immediately prior to the Effective Time. For the avoidance of doubt, Company Common Stock Deemed Outstanding does not include Company RSUs.

               (x) “ Company In the Money Option ” shall mean a Company Vested Option having an exercise price per share less than the Common Per Share Consideration.

               (xi)  “ Company Material Adverse Effect ” shall mean any change, event or effect that is or is reasonably likely to be materially adverse to the business, assets (whether tangible or intangible), financial condition, operations or capitalization of the Company and any Company Subsidiaries, taken as a whole; provided , however , that none of the following shall, by itself, constitute a “ Company Material Adverse Effect ”: (i) changes that are the result of factors generally affecting the industries or markets in which the Company and the Company Subsidiaries conduct business that do not disproportionately affect the Company and the Company Subsidiaries, taken as a whole, as compared to other companies of similar size and scope that operate in the same industry or business as the Company and the Company Subsidiaries; (ii) changes in Laws or GAAP as applied on a consistent basis, or the interpretation thereof that do not disproportionately affect the Company and the Company Subsidiaries, taken as a whole, as compared to other companies of similar size and scope that operate in the same industry or business as the Company and the Company Subsidiaries; (iii) any action taken at the written request of Parent; and (iv) changes that

are the result of economic factors affecting the national, regional or world economy or acts of war or terrorism that do not disproportionately affect the Company and the Company Subsidiaries, taken as a whole, as compared to other companies of similar size and scope that operate in the same industry or business as the Company and the Company Subsidiaries.

               (xii)  “ Company Options ” shall mean all options (including commitments to grant options) to purchase or otherwise acquire Company Common Stock (whether or not vested) held by any person or entity, each of which is listed on Section 2.2(b) of the Disclosure Schedule, that are issued and outstanding immediately prior to the Effective Time.

               (xiii) “ Company Subsidiary ” shall have the meaning ascribed to such term in Section 2.3 hereof.

               (xiv) “ Company Preferred Stock ” shall mean the Series A Preferred Stock, and the Series B Preferred Stock, taken together.

               (xv) “ Company Vested Options ” shall mean all Company Options that are vested (and have not been exercised) immediately prior to the Effective Time (after giving effect to any vesting acceleration provisions).

               (xvi) “ Contract ” shall mean any written or oral agreement, contract, subcontract, lease, binding understanding, instrument, note, bond, mortgage, indenture, option, warranty, purchase order, license, sublicense, benefit plan, obligation, commitment or undertaking of any nature.

               (xvii) “ Environmental Laws ” shall mean all Laws relating to pollution or protection of the environment or exposure of any individual to Hazardous Materials, including Laws relating to emissions, discharges, releases or threatened releases of Hazardous Materials, or otherwise relating to the manufacture, processing, registration, distribution, labeling, recycling, use, treatment, storage, disposal, transport or handling of Hazardous Materials and including any Hazardous Materials related electronic waste, product content or product take-back requirements.

               (xviii) “ Equity Consideration ” shall mean the number of shares of Parent Common Stock equal to the Equity Consideration Value, divided by the Signing Price, rounded down to the nearest whole share.

               (xix) “ Equity Consideration Value ” shall mean an amount equal to the sum of (i) $57,100,000 plus (ii) $1,170,172.02 (representing fifty percent (50%) of the aggregate principal amount outstanding under the Notes, together with accrued interest thereon, as of the Effective Time.

               (xx) “ Escrow Amount ” shall mean an amount equal to $7,500,000.

               (xxi) “ Escrow Participants ” shall mean all Stockholders and all Optionholders.

               (xxii) “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

               (xxiii) “ Financial Statement Preparation ” shall mean the preparation, in compliance with Regulation S-X promulgated by the SEC and the revenue recognition policies that Parent or its independent public accountants have requested that the Company implement, and delivery of the audited balance sheets and statements of income, changes in stockholders’ equity and cash flows, including the footnotes thereto, of the Company and Company Subsidiaries (on a consolidated basis) as of, and for the fiscal years ended, June 30, 2008 and 2009.

               (xxiv) “ GAAP ” shall mean United States generally accepted accounting principles consistently applied.

               (xxv) “ Hazardous Materials ” shall mean chemicals, pollutants, contaminants, wastes, toxic substances, radioactive and biological materials, asbestos-containing materials (ACM), hazardous substances, petroleum and petroleum products or any fraction thereof.

               (xxvi) “ Knowledge ” or “ Known ” shall mean, with respect to the Company, the actual knowledge of those individuals set forth on Schedule 1.6(a)(xxvi) , after their due inquiry of the employees and/or consultants of the Company materially involved with respect to the matter in question; provided , however , that with respect to (i) Section 2.7 hereof, “Knowledge” shall mean the actual knowledge of those individuals set forth on Schedule 1.6(a)(xxvi)(i) , after their due inquiry of the employees and/or consultants of the Company materially involved with respect to the matter in question, and (ii) Sections 2.14 and 2.15 hereof, “Knowledge” shall mean the actual knowledge of those individuals set forth on Schedule 1.6(a)(xxvi)(ii) , after their due inquiry of the employees and/or consultants of the Company materially involved with respect to the matter in question.

               (xxvii) “ Law ” shall mean any foreign, federal, state or local law, statute, regulation, ordinance, rule, order, injunction, judgment, doctrine, decree, ruling, writ, assessment, award or arbitration award of a Governmental Entity, settlement, Contract or governmental requirement enacted, promulgated, entered into, or imposed by, any Governmental Entity (including, for the sake of clarity, common law).

               (xxviii) “ Lien ” shall mean any lien, pledge, charge, claim, mortgage, security interest or other encumbrance of any sort.

               (xxix) “ Merger Consideration ” shall mean the Equity Consideration Value plus the Cash Consideration.

               (xxx) “ Net Merger Consideration ” shall mean an amount equal to the sum of (i) the Merger Consideration and (ii) the Aggregate Option Exercise Amount.

               (xxxi) “ Notes ” shall mean those promissory notes issued by certain Stockholders to the Company, as set forth on Schedule 1.6(a)(xxxi) ).

               (xxxii) “ Noteholder ” shall mean any Stockholder who has issued a Note in favor of the Company.

               (xxxiii) “ Optionholder ” shall mean any holder of Company Options immediately prior to the Effective Time.

               (xxxiv) “ Parent Common Stock ” shall mean the common stock, par value $0.001 per share, of Parent.

               (xxxv)  “ Parent Material Adverse Effect ” shall mean any change, event or effect that is or is reasonably likely to be materially adverse to the business, assets (whether tangible or intangible), financial condition, operations or capitalization of Parent and any of its subsidiaries, taken as a whole; provided , however , that none of the following shall, by itself, constitute a “ Parent Material Adverse Effect ”: (i) changes that are the result of factors generally affecting the industries or markets in which Parent and its subsidiaries conduct business that do not disproportionately affect Parent and its subsidiaries, taken as a whole, as compared to other companies of similar size and scope that operate in the same industry or business as Parent and its subsidiaries; (ii) changes in Laws or GAAP as applied on a consistent basis, or the interpretation thereof that do not disproportionately affect Parent and its subsidiaries, taken as a whole, as compared to other companies of similar size and scope that operate in the same industry or business as Parent and its subsidiaries; (iii) any action taken at the written request of the Company; and (iv) changes that are the result of economic factors affecting the national, regional or world economy or acts of war or terrorism that do not disproportionately affect Parent and its subsidiaries, taken as a whole, as compared to other companies of similar size and scope that operate in the same industry or business as Parent and its subsidiaries.

               (xxxvi) “ Plans ” shall mean the Company’s Amended and Restated 2007 Equity Incentive and Grant Plan, the Company’s 2000 Omnibus Plan, and the Company’s 1997 Stock Option Plan, each as amended and in effect.

               (xxxvii) “ Pro Rata Portion ” shall mean, with respect to each Escrow Participant, an amount equal to the quotient (expressed as a percentage) obtained by dividing (a) the number of shares of Company Common Stock held by such Escrow Participant by (b) the number of shares of Company Common Stock held by all Escrow Participants (in each case, including the number of shares of Company Common Stock underlying any Company In the Money Options or issuable upon conversion of any shares of Company Preferred Stock).

               (xxxviii) “ Related Agreements ” shall mean the Certificates of Merger, the Offer Letters, and the Employee Proprietary Information, Inventions, Non-Competition and No-Hire Agreements.

               (xxxix) “ SEC ” shall mean the United States Securities and Exchange Commission.

               (xl) “ Securities Act ” shall mean the Securities Act of 1933, as amended.

               (xli) “ Series A Preferred Stock ” shall mean the Company’s Series A Convertible Preferred Stock, $0.01 par value per share.

               (xlii) “ Series A Per Share Consideration ” shall mean $8.70.

               (xliii) “ Series A Premium ” shall mean the product obtained by multiplying (x) the difference between the Series A Per Share Consideration and the Series B Per Share Consideration by (y) the number of shares of Series A Preferred Stock outstanding as of immediately prior to the Effective Time.

               (xliv) “ Series B Preferred Stock ” shall mean the Company’s Series B Convertible Preferred Stock, $0.01 par value per share.

               (xlv) “ Series B Per Share Consideration ” shall mean the quotient obtained by dividing (x) the Net Merger Consideration by (y) the Company Common Stock Deemed Outstanding.

               (xlvi) “ Settlement Agreement ” shall mean that Confidential Settlement Agreement and Release, dated March 25, 2009, by and among the Company and the other parties thereto.

               (xlvii) “ Signing Price ” shall mean $14.4912 (reflecting the volume-weighted sales price per share rounded to four (4) decimal places of Parent Common Stock on the Nasdaq Global Select Market for the consecutive period of five (5) Business Days beginning at 9:30 a.m. New York time on the fifth (5th) Business Day immediately preceding the date of this Agreement and concluding at 4:00 p.m. New York time on the first (1 ^st ) Business Day immediately preceding the date of this Agreement, as calculated by Bloomberg Financial LP under the function “ NUAN Equity AQR ”).

               (xlviii) “ Stockholder ” shall mean any holder of any Company Capital Stock that is issued and outstanding immediately prior to the Effective Time.

               (xlix) “ Stockholder Representative Amount ” shall mean an amount equal to $300,000.

               (l) “ Unaccredited Stockholder ” shall mean any Stockholder other than the Accredited Stockholders.

          (b)  Effect on Capital Stock . At the Effective Time, by virtue of the First Step Merger and without any action on the part of Sub I, the Company or the holders of shares of Company Capital Stock, each share of Company Capital Stock (excluding, for the avoidance of doubt, unexercised Company Options and all Company RSUs) issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares (as defined in Section 1.7(a) hereof) and subject to the escrow provisions contained herein), upon the terms and subject to the conditions set forth in this Section 1.6 and throughout this Agreement, will be cancelled and extinguished and be converted automatically into the right to receive, upon surrender of the certificate representing such shares of Company Capital Stock in the manner provided in Section 1.9 hereof, the amounts set forth below:

               (i) Each outstanding share of Series A Preferred Stock will be converted automatically into the right to receive the Series A Per Share Consideration.

               (ii) Each outstanding share of Series B Preferred Stock will be converted automatically into the right to receive the Series B Per Share Consideration.

               (iii) Each outstanding share of Company Common Stock will be converted automatically into the right to receive the Common Per Share Consideration.

          (c)  Treatment of Company Options and Company RSUs .

               (i) No Company Option shall be assumed or otherwise replaced by Parent. Immediately prior to the Effective Time, and conditioned on the consummation of the First Step Merger, each Company Option (whether vested or unvested and regardless of the exercise price thereof) shall be cancelled and each holder of a Company In the Money Option shall automatically (without any further action required of such holder) be entitled to the right to receive a cash payment in an amount equal to the product of (1) the number of shares of Company Common Stock underlying all Company In the Money Options held by such holder immediately prior to the Effective Time, multiplied by (2) the Common Per Share Consideration, and minus (3) the aggregate amount necessary to exercise all of the Company In the Money Options held by such holder (the “ Option Merger Consideration ”). The payment of the Option Merger Consideration to a holder of a Company In the Money Option shall be reduced by any income or employment Tax withholding required under the Code or any provision of state, local or foreign tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the applicable holder of the Company In the Money Option.

               (ii) No consideration shall be paid by Parent, the Subs or the Company to effectuate the cancellation and termination of any unvested Company Option (or portion thereof) and

any Company Vested Option with an exercise price greater than the Common Per Share Consideration.

               (iii) Prior to the Effective Time, and subject to the reasonable review and approval of Parent, the Company shall have taken all actions necessary to effect the transactions anticipated by this Section 1.6(c) under the Plans, all Company Option agreements, and any other plan or arrangement of the Company (whether written or oral, formal or informal).

               (iv) At the Effective Time, each Company restricted stock unit that is issued pursuant to Section 4.11 hereof (each, a “ Company RSU ”) and that is outstanding immediately prior to the Effective Time shall be assumed by Parent (each, an “ Assumed Unit ”). Each Assumed Unit shall be converted into an award to receive that number of shares of Parent Common Stock equal to the product obtained by multiplying (x) the number of shares of Company Common Stock subject to such Assumed Unit immediately prior to the Effective Time by (y) the RSU Exchange Ratio, rounded down, if necessary, to the nearest whole share of Parent Common Stock. Each Assumed Unit shall otherwise be subject to the same terms and conditions (including as to vesting) as were applicable under the respective Company RSU immediately prior to the Effective Time. The “ RSU Exchange Ratio ” shall mean the quotient obtained by dividing (A) the Common Per Share Consideration by (B) the Signing Price.

               (v) Parent shall use its commercially reasonable efforts to file a registration statement on Form S-8 with the SEC as soon as reasonably practicable following the Closing Date with respect to the shares of Parent Common Stock subject to the Assumed Units and use commercially reasonable efforts to maintain the effectiveness of such registration statement for so long as such Assumed Units remain outstanding.

          (d)  Form of Payment of Consideration . Payment and/or issuance of the amounts set forth in Section 1.6(b) hereof shall be effectuated as follows:

               (i) Notwithstanding anything to the contrary set forth in Section 1.6(b) hereof or elsewhere in this Agreement, each Unaccredited Stockholder (excluding, for the avoidance of doubt, holders of Company In the Money Options) shall receive the amounts to which such Unaccredited Stockholder is entitled pursuant to Section 1.6(b) hereof solely in cash (the aggregate of such amount for all Unaccredited Stockholders, the “ Aggregate Unaccredited Cash Consideration ” and the difference between the Cash Consideration and the sum of the Aggregate Unaccredited Cash Consideration and the Option Merger Consideration, the “ Cash Consideration Balance ”).

               (ii) The Equity Consideration and the Cash Consideration Balance shall be distributed to each Accredited Stockholder (excluding, for the avoidance of doubt, holders of Company In the Money Options) in satisfaction of the amounts to which each Accredited Stockholder is entitled pursuant to Section 1.6(b) hereof. The amount of Equity Consideration and

Cash Consideration Balance that each Accredited Stockholder shall be entitled to receive shall be in the same proportion that the dollar value to which such Accredited Stockholder is entitled under Section 1.6(b) hereof bears to the total dollar value to which all Accredited Stockholders are entitled under Section 1.6(b) hereof (in each case, valuing each share of Parent Common Stock at the Signing Price). Notwithstanding anything herein to the contrary, in no event, however, will any Accredited Stockholder receive consideration having a value in excess of the amount to which such Accredited Stockholder is entitled under Section 1.6(b) hereof (valuing each share of Parent Common Stock at the Signing Price).

               (iii) Notwithstanding any other provisions of this Agreement to the contrary, (A) each distribution of Cash Consideration payable to an Escrow Participant pursuant to this Section 1.6(d) shall be reduced by such Escrow Participant’s Pro Rata Portion of the Escrow Amount and the Stockholder Representative Amount in accordance with Section 6.3 hereof, and (B) each Escrow Participant’s Pro Rata Portion of the Escrow Amount and the Stockholder Representative Amount shall be deposited into the Escrow Fund and the Stockholder Representative Fund as provided herein. Notwithstanding anything herein to the contrary, the amount deposited into the Stockholder Representative Fund shall be reduced by all applicable income and employment Tax withholdings from deposits thereto with respect to the Optionholders.

          (e)  No Fractional Shares . No fraction of a share of Parent Common Stock will be issued pursuant to the First Step Merger, but in lieu thereof, each Accredited Stockholder who would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock to be received by such Accredited Stockholder) shall receive from Parent an amount of cash (rounded to the nearest whole cent) equal to the product of (i) such fraction, multiplied by (ii) the Signing Price. Notwithstanding anything in this Section 1.6 to the contrary, in no event shall Parent be obligated to distribute in the aggregate shares of Parent Common Stock in excess of the Equity Consideration or cash in excess of the Cash Consideration.

          (f)  Withholding Taxes and Other Deductions . Notwithstanding any other provision in this Agreement, Parent, the Company, the Subs, the Exchange and Paying Agent (as defined in Section 1.9 ) and the Escrow Agent shall have the right to deduct and withhold Taxes (as defined in Section 2.11 ) from any payments to be made hereunder if such withholding is required by Law and to request any necessary Tax forms, including Form W-9 or the appropriate series of Form W-8, as applicable, or any similar information, from the Stockholders, Optionholders, and any other recipients of payments hereunder. In addition, notwithstanding any provision in this Agreement to the contrary, Parent, the Company, the Subs and the Exchange and Paying Agent shall have the right to deduct and withhold from the total amount of Cash Consideration to which each Noteholder is entitled pursuant to Section 1.6 hereof, an amount equal to any unpaid principal and accrued interest on any Note issued by such Noteholder in favor of the Company (the “ Noteholder Obligations ”) in satisfaction of a portion of the Noteholder Obligations equal to the amount so withheld. Any portion of the Noteholder Obligations not so withheld shall remain outstanding. To the extent that any of the aforementioned amounts are so withheld, such withheld amounts shall be treated for all purposes of

this Agreement as having been delivered and paid to the Stockholder, Optionholder, or other recipient of payments in respect of which such deduction and withholding was made.

          (g)  Capital Stock of Subs . Each share of Common Stock of Sub I issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of Common Stock of the Interim Surviving Corporation. Each stock certificate of Sub I evidencing ownership of any such shares shall continue to evidence ownership of such shares of capital stock of the Interim Surviving Corporation. Each share of Common Stock of the Interim Surviving Corporation issued and outstanding immediately after the Effective Time shall be converted into and exchanged for the applicable corresponding interest of the Final Surviving Entity. Each stock certificate of the Interim Surviving Corporation evidencing ownership of any such shares shall continue to evidence the applicable corresponding interest in the Final Surviving Entity.

     1.7 Dissenting Shares .

          (a) Notwithstanding any other provisions of this Agreement to the contrary, any shares of Company Capital Stock held by a holder who has not voted for the Merger, or who has not effectively withdrawn or lost such holder’s appraisal rights under Delaware Law (collectively, the “ Dissenting Shares ”) shall not be converted into or represent a right to receive the applicable consideration for Company Capital Stock set forth in Section 1.6 hereof, but the holder thereof shall only be entitled to such rights as are provided by Delaware Law.

          (b) Notwithstanding the provisions of Section 1.7(a) hereof, if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights under Delaware Law, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares shall automatically be converted into and represent only the right to receive the consideration for Company Capital Stock, as applicable, set forth in Section 1.6 hereof, without interest thereon, upon surrender of the certificate representing such shares.

          (c) Parent shall give the Stockholder Representative (i) prompt notice of any written demand for appraisal received by Parent or the Final Surviving Entity pursuant to the applicable provisions of Delaware Law, and (ii) the opportunity to participate in all negotiations and proceedings with respect to such demands. Neither Parent nor the Final Surviving Entity shall, except with the prior written consent of the Stockholder Representative (such consent not to be unreasonably withheld), make any payment with respect to any such demands (unless there has been a final judgment by a court of competent jurisdiction (other than entry or approval of a settlement agreement), in which case Parent may make a payment without the consent of the Stockholder Representative) or offer to settle or settle any such demands. Notwithstanding the foregoing but subject to the terms and conditions of ARTICLE VI , to the extent that Parent or the Final Surviving Entity (i) makes any payment or payments in respect of any Dissenting Shares in excess of the

consideration that otherwise would have been payable in respect of such shares in accordance with this Agreement or (ii) incurs any other costs or expenses (including specifically, but without limitation, attorneys’ fees, costs and expenses in connection with any action or proceeding or in connection with any investigation) in respect of any Dissenting Shares (excluding payments for such shares) (together “ Dissenting Share Payments ”), Parent shall be entitled to recover under the terms of Section 6.2 hereof the amount of such Dissenting Share Payments without regard to the Threshold Amount (as defined in Section 6.4(a) hereof).

     1.8 Parent’s Obligations Fulfilled . Notwithstanding anything herein to the contrary, before the Exchange and Paying Agent shall make any payments hereunder to Stockholders/former Stockholders and Optionholders/former Optionholders, the Stockholder Representative shall deliver to Parent and the Exchange and Paying Agent a schedule (a “ Payment Schedule ”) setting forth (i) the name and address of each Stockholder/former Stockholder and Optionholder/former Optionholder entitled to distribution of Merger Consideration at such time and (ii) the amount of consideration to which each such Stockholder/former Stockholder and Optionholder/former Optionholder is then entitled, together with any supporting schedules and documentation (showing the number and type of securities held immediately prior to the Effective Time by each such holder, together with calculations of the amount then payable to such holder). The Stockholder Representative shall be responsible for instructing the Exchange and Paying Agent as to the distribution of such amounts then deposited. Parent and the Exchange and Paying Agent may rely on the instructions of the Stockholder Representative for distributions and shall have no responsibility or liability with respect thereto; provided, that the distribution instructions of the Stockholder Representative are followed. Upon Parent making each aggregate payment required of it under this Agreement to the Exchange and Paying Agent, Parent shall have fulfilled its obligations with respect to such payment. Neither Parent nor the Exchange and Paying Agent shall have any liability whatsoever with respect to the distribution of such payments among the Stockholders/former Stockholders and Optionholders/former Optionholders of the Company, provided, that there is no gross negligence, bad faith, or willful misconduct in connection with the distribution of such payments.

     1.9 Payment of Consideration; Surrender of Certificates .

          (a)  Exchange and Paying Agent . Parent’s transfer agent, who is currently Computershare, Inc. and its fully owned subsidiary, Computershare Trust Company, N.A. a national banking association, shall serve as the exchange and paying agent (such institution, the “ Exchange and Paying Agent ”) for the Merger, other than with respect to the Option Merger Consideration. The Interim Surviving Entity or the Final Surviving Entity shall serve as the paying agent for the Option Merger Consideration.

          (b)  Parent to Provide Consideration . Subject to the provisions of Section 6.3 hereof relating to escrow arrangements, promptly following the Effective Time but in any event no later than one Business Day after the Effective Time, Parent shall make available to (i) the Exchange

and Paying Agent for exchange in accordance with this ARTICLE I the shares of Parent Common Stock issuable and the cash payable at the Effective Time to the Stockholders pursuant to Section 1.6(b) hereof in exchange for outstanding shares of Company Capital Stock and (ii) the Interim Surviving Corporation or the Final Surviving Entity the Option Merger Consideration payable at the Effective Time to the Optionholders pursuant to Section 1.6(c) ; provided, however, that Parent shall deposit into (A) the Escrow Fund the Cash Consideration that comprises the Escrow Amount out of Cash Consideration otherwise deliverable to the Escrow Participants pursuant to Section 1.6 hereof and (B) the Stockholder Representative Fund the Cash Consideration that comprises the Stockholder Representative Amount (as reduced by all applicable income and employment Tax withholdings) out of the Cash Consideration otherwise deliverable to the Escrow Participants pursuant to Section 1.6 hereof. The Pro Rata Portion of the consideration comprising the Escrow Amount shall be deemed to be contributed to the Escrow Fund and the Pro Rata Portion of the consideration comprising the Stockholder Representative Amount (as reduced by all applicable income and employment Tax withholdings) shall be deemed to be contributed to the Stockholder Representative Fund with respect to each such Escrow Participant.

          (c)  Exchange Procedures . On or promptly following the Effective Time but in any event no later than one Business Day after the Effective Time, Parent shall (or shall cause the Exchange and Paying Agent to) mail a letter of transmittal in substantially the form attached hereto as Exhibit D (the “ Letter of Transmittal ”) to each Stockholder at the address set forth opposite each such Stockholder’s name on Section 2.2(a) of the Disclosure Schedule. After receipt of such Letter of Transmittal, the Stockholders will surrender the certificates representing their shares of Company Capital Stock (the “ Company Stock Certificates ”) to the Exchange and Paying Agent for cancellation, and each of the Stockholders shall deliver a duly completed and validly executed Letter of Transmittal. Upon surrender of a Company Stock Certificate for cancellation to the Exchange and Paying Agent, together with a Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, subject to the terms of Section 1.9(e) hereof, the holder of such Company Stock Certificate shall be entitled to receive from the Exchange and Paying Agent in exchange therefor, Parent Common Stock and/or cash to which such holder is entitled pursuant to Section 1.6 hereof (less the Pro Rata Portion of the Escrow Amount to be deposited into the Escrow Fund and the Pro Rata Portion of the Stockholder Representative Amount to be deposited into the Stockholder Representative Fund with respect to such Stockholder, if applicable), and the Company Stock Certificate so surrendered shall be cancelled. Until so surrendered, each Company Stock Certificate outstanding after the Effective Time will be deemed, for all corporate purposes thereafter, to evidence only the right to receive the applicable portion of the Merger Consideration pursuant to Section 1.6 hereof in exchange for shares of Company Capital Stock (without interest) into which such shares of Company Capital Stock shall have been so converted. No portion of the Merger Consideration will be paid to the holder of any unsurrendered Company Stock Certificate with respect to shares of Company Capital Stock formerly represented thereby until the holder of record of such Company Stock Certificate shall surrender such Company Stock Certificate pursuant hereto.

          (d)  Distributions With Respect to Unexchanged Shares . No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time will be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock represented thereby until the holder of record of such Company Stock Certificate shall surrender such Company Stock Certificate. Subject to applicable Law, following surrender of any such Company Stock Certificate, there shall be paid to the record holder of the certificates representing whole shares of Parent Common Stock issued in exchange therefor, without interest, at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock. No interest shall be payable on any cash deliverable upon the exchange of any Company Capital Stock.

          (e)  Transfers of Ownership . If any certificate for shares of Parent Common Stock is to be issued in a name other than that in which the Company Stock Certificate surrendered in exchange therefor is registered, or if any cash amounts are to be disbursed pursuant to Section 1.6 hereof to a person other than the person or entity whose name is reflected on the Company Stock Certificate surrendered in exchange therefor, it will be a condition of the issuance or delivery thereof that the certificate so surrendered will be properly endorsed and otherwise in proper form for transfer and that the person requesting such exchange will have paid to Parent or any agent designated by it any transfer or other taxes required by reason of the issuance of a certificate for shares of Parent Common Stock in any name other than that of the registered holder of the certificate surrendered, or established to the satisfaction of Parent or any agent designated by it that such tax has been paid or is not payable.

          (f)  Exchange and Paying Agent to Return Merger Consideration . At any time following the last day of the six (6) month period following the Effective Time, Parent shall be entitled to require the Exchange and Paying Agent to deliver to Parent or its designated successor or assign the shares of Parent Common Stock and all cash amounts that have been deposited with the Exchange and Paying Agent pursuant to Section 1.9(b) hereof, and any income or proceeds thereof, not disbursed to the holders of Company Stock Certificates pursuant to Section 1.9(c) hereof, and thereafter the holders of Company Stock Certificates shall be entitled to look only to Parent (subject to the terms of Section 1.9(g) hereof) only as general creditors thereof with respect to any and all amounts that may be payable to such holders of Company Stock Certificates pursuant to Section 1.6 hereof upon the due surrender of such Company Stock Certificates in the manner set forth in Section 1.9(c) hereof.

          (g)  No Liability . Notwithstanding anything to the contrary in this Section 1.9 , neither the Exchange and Paying Agent, the Final Surviving Entity, nor any party hereto shall be liable to a holder of shares of Company Capital Stock for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.

     1.10 No Further Ownership Rights in Company Capital Stock . The cash and shares of Parent Common Stock paid in respect of the surrender for exchange of shares of Company Capital Stock in accordance with the terms hereof shall be deemed to be full satisfaction of all rights pertaining to such shares of Company Capital Stock, and there shall be no further registration of transfers on the records of the Final Surviving Entity of shares of Company Capital Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Stock Certificates are presented to the Final Surviving Entity for any reason, they shall be canceled and exchanged as provided in this ARTICLE I .

     1.11 Lost, Stolen or Destroyed Certificates . In the event any Company Stock Certificates shall have been lost, stolen or destroyed, the Exchange and Paying Agent shall issue in exchange for such lost, stolen or destroyed certificates, upon the making of an affidavit of that fact by the holder thereof, such amount, if any, as may be required pursuant to Section 1.6 hereof; provided , however , that the Exchange and Paying Agent may, in its discretion and as a condition precedent to the issuance thereof, require the Stockholder who is the owner of such lost, stolen or destroyed certificates to either (i) deliver a bond in such amount as it may reasonably direct or (ii) provide an indemnification agreement in a form and substance acceptable to the Exchange and Paying Agent, against any claim that may be made against Parent or the Exchange and Paying Agent with respect to the certificates alleged to have been lost, stolen or destroyed. Any Stockholder complying with the provisions of this Section 1.11 shall be deemed to have surrendered such lost, stolen or destroyed Company Stock Certificate for all purposes hereunder, including, without limitation, for purposes of receiving the Parent Common Stock and cash to which such Stockholder is entitled pursuant to Section 1.6 hereof (less the Pro Rata Portion of the Escrow Amount to be deposited into the Escrow Fund and the Pro Rata Portion of the Stockholder Representative Amount to be deposited into the Stockholder Representative Fund with respect to such Stockholder, if applicable).

     1.12 Payments at Closing . At or immediately following the Closing, the Company, the Interim Surviving Corporation or the Final Surviving Entity shall pay all Third Party Expenses and Closing Bonuses to the extent that they have not been paid prior to the close of business on the Business Day immediately preceding the Closing Date.

     1.13 Reorganization Status . The Integrated Merger is intended to constitute a “reorganization” within the meaning of Section 368(a) of the Code. Parent and the Company intend that the First Step Merger and the Second Step Merger will constitute integrated steps in a single “plan of reorganization” within the meaning of Treas. Reg. §1.368-2(g) and 1.368-3, which plan of reorganization the parties adopt by executing this Agreement. None of the parties hereto will take any action, except as specifically contemplated by this Agreement, that reasonably would be expected to cause the Integrated Merger to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Without limiting the foregoing, at all times since the formation of Sub II through the time of the Second Step Merger, Sub II will be directly and wholly owned by Parent and will be classified as an entity that is disregarded as separate from its owner within the meaning of

Treas. Reg. §1.7701-2(c)(2). Parent and the Company will file all Returns in a manner consistent with this Section 1.13 .

     1.14 Taking of Necessary Action; Further Action . If at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Final Surviving Entity with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company, Parent, the Subs, and the officers and directors of the Company, Parent and the Subs are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action.

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     The Company hereby represents and warrants to Parent and the Subs, subject to such exceptions as are specifically disclosed in the disclosure schedule supplied by the Company to Parent (the “ Disclosure Schedule ”) and dated as of the date hereof (referencing the appropriate section and paragraph numbers, provided that the disclosures in any section or paragraph of the Disclosure Schedule shall qualify other sections and paragraphs of the Disclosure Schedule to the extent that it is reasonably apparent from a reading of the disclosure that such disclosure is applicable to such other sections and paragraphs), on the date hereof and as of the Effective Time, as though made at the Effective Time, as follows (references to “Company” in this ARTICLE II shall refer, wherever not inappropriate by reference to the context, to the Company and each Company Subsidiary):

     2.1 Organization of the Company . The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. The Company has the corporate power to own its properties and to carry on its business as currently conducted. The Company is duly qualified or licensed to do business and in good standing as a foreign corporation in each jurisdiction in which such qualification or licensure is required by Law, except for those jurisdictions where the failure to be so qualified or licensed and in good standing would not reasonably be expected to have, individually, or in the aggregate, a Company Material Adverse Effect. The Company and each Company Subsidiary has made available a true and correct copy of its certificate of incorporation and bylaws or comparable governing documents, each as amended to date and in full force and effect on the date hereof (collectively, the “ Charter Documents ”), to Parent. Section 2.1 of the Disclosure Schedule lists the directors and officers of the Company as of the date hereof. Except as set forth on Section 2.1 of the Disclosure Schedule, the operations now being conducted by the Company are not now and have never been conducted by the Company under any other name. Section 2.1 of the Disclosure Schedule also lists (i) each jurisdiction in which the Company is qualified or licensed to do business and (ii) every state or foreign jurisdiction in which the Company has employees or facilities.

     2.2 Company Capital Structure .

          (a) The authorized capital stock of the Company consists of 35,000,000 shares of Common Stock, of which 4,935,938 shares are issued and outstanding, and 5,180,575 shares of Company Preferred Stock, of which 2,020,202 shares have been designated Series A Preferred Stock, of which 2,020,202 shares are issued and outstanding, and 3,160,373 shares have been designated Series B Preferred Stock, of which 3,160,373 shares are issued and outstanding. Each share of Preferred Stock outstanding is convertible into one share of Company Common Stock. As of the date hereof, the capitalization of the Company is as set forth in Section 2.2(a)(i) of the Disclosure Schedule. The Company Capital Stock is held by the persons with the domicile addresses and in the numbers of shares set forth in Section 2.2(a)(i) of the Disclosure Schedule. To the Knowledge of the Company, Section 2.2(a)(ii) of the Disclosure Schedule sets forth a complete and accurate list of the Accredited Stockholders. Except as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, all outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the Charter Documents of the Company, or any agreement to which the Company is a party or by which it is bound, and together with all Company Options have been issued in compliance with all applicable federal and state securities Laws. Except as set forth in Section 2.2(a)(iv) of the Disclosure Schedule, the Company has not, and will not have, suffered or incurred any liability (contingent or otherwise) or claim, loss, damage, deficiency, cost or expense relating to or arising out of the issuance or repurchase of any Company Capital Stock or options or warrants to purchase Company Capital Stock, or out of any agreements or arrangements relating thereto (including any amendment of the terms of any such agreement or arrangement). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. The Company has no capital stock other than the Company Capital Stock authorized, issued or outstanding. The Company has no Company Capital Stock that is unvested.

          (b) Except for the Plans or as set forth in Section 2.2(b)(i) of the Disclosure Schedule, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any person. The Company has reserved 3,388,450 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company upon the exercise of options granted under the Plans or any other plan, agreement or arrangement (whether written or oral, formal or informal), of which 3,087,690 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options. Except for the Company RSUs and the Company Options set forth in Section 2.2(b)(ii) of the Disclosure Schedule (such schedule to contain, for each holder of Company Options, the name and address of such holder, the number of shares of Company Common Stock issuable upon exercise of such Company Options held by such holder, the vesting schedule and exercise price of such Company Options, the dates on which such Company Options were granted and will expire, and whether any Company Options are intended to be incentive stock options under the Code), there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Company is a party or by which the Company is bound

obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the Company Capital Stock or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. Except as set forth in Section 2.2(b)(iii) of the Disclosure Schedule, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting securities of the Company. Except as set forth in Section 2.2(b)(iv) of the Disclosure Schedule, there are no agreements to which the Company is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock.

     2.3 Subsidiaries . Section 2.3 of the Disclosure Schedule lists each of the Company’s subsidiaries as of the date hereof (each, a “ Company Subsidiary ”), the jurisdiction of incorporation of each such Company Subsidiary, and the Company’s equity interest therein. Each subsidiary of the Company is wholly owned by the Company. Neither the Company nor any Company Subsidiary has agreed, is obligated to make, or is bound by any Contract under which it may become obligated to make any future investment in, or capital contribution to, any other entity. Except for the Company Subsidiaries and as set forth in Section 2.3 of the Disclosure Schedule, neither the Company nor any Company Subsidiary directly or indirectly owns any equity or similar interest in or any interest convertible, exchangeable or exercisable for, any equity or similar interest in, any person.

     2.4 Authority .

          (a) The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby. Subject to obtaining the requisite approval of the Stockholders of this Agreement (the “ Sufficient Stockholder Vote ”), the execution and delivery of this Agreement and any Related Agreements to which the Company is a party and the consummation of the transactions contemplated hereby and thereby (excluding the Second Step Merger) have been duly authorized by all necessary corporate action on the part of the Company and no further action is required on the part of the Company to authorize the Agreement and any Related Agreements to which it is a party and the transactions contemplated hereby and thereby (excluding the Second Step Merger). This Agreement has been approved by the Board of Directors of the Company. This Agreement and each of the Related Agreements to which the Company is a party has been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, except as such enforceability may be subject to the Laws of general application relating to bankruptcy, insolvency, and the relief of debtors and rules of Law governing specific performance, injunctive relief, or other equitable

remedies; provided , however , that the Certificate of Merger will not be effective until filed with the Secretary of State of the State of Delaware.

          (b) Parent will have the opportunity to review any materials to be submitted to the Stockholders in connection with the solicitation of their approval of this Agreement (the “ Soliciting Materials ”), which will include the recommendation of the Board of Directors of the Company in favor of this Agreement.

     2.5 No Conflict .

          (a) Except as set forth on Section 2.5(a) of the Disclosure Schedule, the execution and delivery by the Company of this Agreement and any Related Agreement to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any right or benefit under (any such event, a “ Conflict ”) (i) any provision of the Charter Documents, (ii) any Material Contract (as defined in Section 2.15 hereof), or (iii) any Law applicable to the Company or any of its properties (whether tangible or intangible) or assets.

          (b) Section 2.5(b) of the Disclosure Schedule sets forth a list of all necessary consents, waivers and approvals of parties to any Material Contract as are required thereunder in connection with the Merger, or for any such Material Contract to remain in full force and effect without limitation, modification or alteration after the Effective Time so as to preserve all rights of, and benefits to, the Company under such Material Contracts from and after the Effective Time; provided, however, that the foregoing representation shall not be deemed breached as a result of the operation of provisions contained in any agreement to which Parent is a party but to which the Company is not. Following the Effective Time, the Interim Surviving Corporation (and following the Second Step Merger, the Final Surviving Entity) will be permitted to exercise all of its rights under the Material Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay pursuant to the terms of such Material Contracts had the transactions contemplated by this Agreement not occurred; provided, however, that the foregoing representation shall not be deemed breached as a result of the operation of provisions contained in any agreement to which Parent is a party but to which the Company is not. No other parties to any Material Contract listed on Section 2.5(b) of the Disclosure Schedule, conditioned its grant of a consent, waiver or approval (including by threatening to exercise a “recapture” or other termination right) upon the payment of a consent fee, “profit sharing” payment or other consideration, including increased rent payments or other payments under the Material Contract listed on Section 2.5(b) of the Disclosure Schedule.

     2.6 Governmental Consents . No consent, notice, waiver, approval, order or authorization of, or registration, declaration or filing with any court, administrative agency or commission or other federal, state, county, local or other foreign governmental or regulatory

authority, instrumentality, agency or commission (each, a “ Governmental Entity ”), is required by, or with respect to, the Company in connection with the execution and delivery of this Agreement and any Related Agreement to which the Company is a party or the consummation of the transactions contemplated hereby and thereby, except for the filing of the Certificate of Merger with the Secretary of State of the State of Delaware.

     2.7 Company Financial Statements .

               (i)  Section 2.7 of the Disclosure Schedule sets forth the Company’s (a) audited balance sheets as of June 30, 2007 and June 30, 2008, and the consolidated statements of income, cash flow and stockholders’ equity for the twelve (12) month periods then ended (the “ Year-End Financials ”), and (b) audited balance sheet as of June 30, 2009 (the “ Balance Sheet Date ”), and the related audited statement of income, cash flow and stockholders’ equity for the period then ended (the “ 2009 Financials ”). Except as set forth in Section 2.7 of the Disclosure Schedule, the Year-End Financials and the 2009 Financials (collectively referred to as the “ Financials ”) are true and correct in all material respects and have been prepared in accordance with GAAP and Regulation S-X promulgated under the Exchange Act (“ Regulation S-X ”) applied on a consistent basis throughout the periods indicated and consistent with each other. The Financials present fairly in all material respects the Company’s financial condition, operating results and cash flows as of the dates and during the periods indicated therein. The Company’s audited consolidated balance sheet as of the Balance Sheet Date is referred to hereinafter as the “ Current Balance Sheet .” The reserves set forth in the 2009 Financials have been calculated in a manner consistent with GAAP and with the past practices of the Company and the Company has made any appropriate disclosures in the Financials in accordance with the requirements of Financial Interpretation No. 48 of Financial Accounting Standards Board Statement No. 109.

     2.8 No Undisclosed Liabilities . Except as set forth in Section 2.8 of the Disclosure Schedule, the Company has no liability, indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of any type, whether accrued, absolute, contingent, matured, unmatured or other, required to be reflected in financial statements in accordance with GAAP (“ Liabilities ”), which individually or in the aggregate (i) has not been reflected in the Current Balance Sheet, or (ii) has not arisen in the ordinary course of business, consistent with past practices, since the Balance Sheet Date in an amount that does not exceed $25,000 in any one case or $100,000 in the aggregate. The aggregate amount of the Company’s indebtedness for borrowed money outstanding on the date hereof is $0.

     2.9 Internal Controls . The Company maintains accurate books and records reflecting its assets and liabilities in all material respects and maintains proper and adequate internal accounting controls which provide reasonable assurance that: (i) transactions are executed with management’s authorization; (ii) transactions are recorded as necessary to permit preparation of the consolidated financial statements of the Company in accordance with GAAP and to maintain accountability for the Company’s consolidated assets; (iii) the reporting of the Company’s assets is compared with

existing assets as necessary to permit preparation of the consolidated financial statements of the Company in accordance with GAAP and to maintain accountability for the Company’s consolidated assets; (iv) accounts, notes and other receivables and inventory are recorded accurately in all material respects, and adequate procedures are implemented to effect the collection thereof on a timely basis; and (v) there are adequate procedures in place regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets. As of the date of this Agreement, to the Company’s Knowledge, (x) there are no significant deficiencies in the design or operation of the Company’s internal controls over financial reporting which could adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data or material weaknesses in internal controls over financial reporting and (y) there has been no fraud, whether or not material, that involved management or other employees of the Company who have a significant role in the Company’s internal controls over financial reporting.

     2.10 No Changes . Except as provided in Section 2.10 of the Disclosure Schedule, since the Balance Sheet Date through the date of this Agreement, there has not been, occurred or arisen any:

          (a) transaction by the Company except in the ordinary course of business, consistent with past practices, as conducted on that date and consistent with past practices;

          (b) amendments or changes to the Charter Documents of the Company;

          (c) capital expenditure or commitment by the Company exceeding $50,000 individually or $250,000 in the aggregate;

          (d) payment, discharge or satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business, consistent with past practices, of liabilities reflected or reserved against in the Current Balance Sheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;

          (e) destruction of, damage to, or loss of any material assets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance);

          (f) employment dispute, including but not limited to, claims or matters raised by any individuals or any workers’ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;

          (g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;

          (h) adoption of or change in any material Tax (as defined in Section 2.11 ) election or any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;

          (i) revaluation by the Company of any of its assets (whether tangible or intangible), including without limitation, writing down the value of inventory or writing off notes or accounts receivable;

          (j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);

          (k) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;

          (l) entry into a Material Contract or any termination, extension, amendment or modification of the terms of any Material Contract;

          (m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, consistent with past practices, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties;

          (n) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices, in an amount not to exceed $10,000 in any one case or $25,000 in the aggregate;

          (o) incurrence by the Company of any indebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;

          (p) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;

          (q) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or, to the Knowledge of the Company, threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or, to the Knowledge of the Company, any reasonable basis for any of the foregoing;

          (r) notice of any claim or potential claim of ownership, interest or right by any person other than the Company or a Company Subsidiary of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company of any other person’s Intellectual Property Rights (as defined in Section 2.14 hereof);

          (s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of options under a Plan and issuances of Company Common Stock upon the exercise of options issued under the Plans;

          (t) (i) sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property Rights of any person or entity, (ii) except in the ordinary course of business, consistent with past practices, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights with a third party, or (iv) material change in pricing or royalties set or charged by the Company to its distributors or resellers or licensees or in pricing or royalties set or charged by persons who have licensed Technology or Intellectual Property Rights to the Company;

          (u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any product, service or technology of the Company;

          (v) event or condition of any character that has had or is reasonably likely to have a Company Material Adverse Effect;

          (w) lease, license, sublease or other occupancy of any Leased Real Property (as defined in Section 2.13 hereof) by the Company; or

          (x) agreement by the Company to do any of the things described in the preceding clauses (a) through (w) of this Section 2.10 (other than negotiations with Parent and its

representatives regarding the transactions contemplated by this Agreement and the Related Agreements).

     2.11 Tax Matters .

          (a) Definition of Taxes . For purposes of this Agreement, the term “ Tax ” or, collectively, “ Taxes ” shall mean (i) any and all U.S. federal, state, local and non-U.S. taxes, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes as well as social security charges (including but not limited to health, unemployment and pension insurance), together with all interest, penalties and additions imposed with respect to such amounts, (ii) any liability for the payment of any amounts of the type described in clause (i) of this Section 2.11(a) as a result of being or having been a member of an affiliated, consolidated, combined, unitary or similar group for any period (including any arrangement for group or consortium relief or similar arrangement), and (iii) any liability for the payment of any amounts of the type described in clauses (i) or (ii) of this Section 2.11(a) as a result of any express or implied obligation to indemnify any other person or as a result of any obligation under any agreement or arrangement with any other person with respect to such amounts and including any liability for taxes of a predecessor or transferor or otherwise by operation of law.

          (b) Tax Returns and Audits . Except as set forth in Section 2.11(b) of the Disclosure Schedule:

               (i) The Company has (a) prepared and timely filed all required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“ Returns ”) relating to any and all Taxes concerning or attributable to the Company or its operations and such Returns have been completed in accordance with applicable Law in all material respects and (b) timely paid all Taxes it is required to pay, other than U.S. federal income taxes relating to the Company’s method of accounting regarding revenue recognition and/or deferral of revenue for Tax purposes in an amount not to exceed $10,700,000.

               (ii) The Company has paid or withheld with respect to its Employees and other third parties, all U.S. federal, state and non-U.S. income taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be withheld, and has timely paid over any such withheld Taxes to the appropriate authorities.

               (iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed in writing against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.

               (iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any Tax authority to the Company or any representative thereof. No written claim has ever been made by an authority in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.

               (v) As of the date of the Current Balance Sheet, the Company had no liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Current Balance Sheet other than in the ordinary course of business, consistent with past practices or as contemplated in this Agreement.

               (vi) The Company has made available to Parent or its legal counsel, copies of all Tax Returns for the Company filed for all periods with respect to which the statute of limitations has not expired.

               (vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes, other than Liens for Taxes not yet due and payable.

               (viii) The Company has (a) never been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (b) never been a party to any Tax sharing, indemnification, allocation or similar agreement, (c) no liability for the Taxes of any person or entity under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-us law (including any arrangement for group or consortium relief or similar arrangement)), as a transferee or successor, by operation of law, by contract or agreement, or otherwise and (d) never been a party to any joint venture, partnership or other arrangement that, to the Company’s Knowledge, could be treated as a partnership for Tax purposes.

               (ix) The Company has not been a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code during any applicable period of determination specified in Section 897(c) of the Code.

               (x) The Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.

               (xi) The Company has not engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b), including a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance

transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).

               (xii)  Section 2.11(b)(xii) of the Disclosure Schedule sets forth the amount of any deferred gain or loss allocable to the Company arising out of any deferred intercompany transaction as defined in Treas. Reg. § 1.1502-13 or any similar provision of applicable law.

               (xiii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any taxable period or portion thereof after the Closing Date as a result of any (a) change in method of accounting for any taxable period or portion thereof ending on or prior to the Closing Date, (b) closing agreement under Section 7121 of the Code executed prior to the Closing, (c) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated prior to the Closing (or in the case of each of (a), (b) and (c), under any similar provision of applicable Law), (d) installment sale or open transaction disposition consummated prior to the Closing or (e) prepaid amount received prior to Closing other than the prepaid amounts received in sales transactions that are recorded in accordance with GAAP in the general ledger accounts named “Deferred Revenue,” as disclosed in the Company’s 2009 Financial Statements, line item termed “Deferred Revenue and Long-Term Deferred Revenue.”

               (xiv) The Company uses the accrual method of accounting for tax purposes.

               (xv) Neither the Company nor any Company Subsidiary is subject to Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment, place of business or source of income in such country.

               (xvi) The Company and each Company Subsidiary is in compliance in all material respects with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (“ Tax Incentive ”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.

               (xvii) To the Knowledge of the Company after consultation with Grant Thornton LLP, the transfer pricing practices and methodology of the Company and the Company Subsidiaries have been reviewed by Grant Thornton LLP and are correct in all material respects.

     2.12 Restrictions on Business Activities . Except as set forth in Section 2.12 of the Disclosure Schedule, there is no agreement (non-competition or otherwise), commitment, judgment, injunction, order or decree to which the Company is a party or otherwise binding upon the Company which has or may reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Company, any acquisition of property (tangible or intangible) by the Company, the conduct of business by the Company, or otherwise limiting the freedom of the Company to engage in any line of business or to compete with any person. Without limiting the

generality of the foregoing, except as set forth in Section 2.12 of the Disclosure Schedule, the Company has not entered into any agreement under which the Company is restricted from selling, licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the market.

     2.13 Title to Properties; Absence of Liens and Encumbrances .

          (a) The Company does not own any real property, nor has the Company ever owned any real property. Section 2.13(a) of the Disclosure Schedule sets forth a list of all real property currently leased, subleased or licensed by or from the Company or otherwise used or occupied by the Company for the operation of its business (the “ Leased Real Property ”) and each lease, sublease, license or other occupancy agreement relating to the Leased Real Property to which the Company or any Company Subsidiary is a party or by which it is bound, the name of the lessor, licensor, sublessor, master lessor and/or lessee, the date and term of the lease, license, sublease or other occupancy right and each amendment thereto (the “ Lease Agreements ”). All such Lease Agreements are valid and effective in accordance with their respective terms, and there is not, under any of such leases, any existing default by the Company or any Company Subsidiary, no rentals are past due, or event of default (or event which with notice or lapse of time, or both, would constitute a default). The Company has not received any written notice of a default, alleged failure to perform, or any offset or counterclaim with respect to any such Lease Agreement, which has not been fully remedied and withdrawn.

          (b) The Leased Real Property is in good operating condition and repair (subject to normal wear and tear), free from structural, physical and mechanical defects and is structurally sufficient and otherwise suitable for the conduct of the business as presently conducted. Neither the operation of the Company on the Leased Real Property nor, to the Company’s Knowledge, such Leased Real Property, including the improvements thereon, violate in any material respect any applicable building code, zoning requirement or statute relating to such property or operations thereon, and any such non-violation is not dependent on so-called non-conforming use exceptions. The Company does not owe any brokerage commissions or finders fees with respect to any Leased Real Property or would owe any such fees if any existing Lease Agreement were renewed pursuant to any renewal options contained in such Lease Agreements. The Company has performed in all material respects all of its obligations under any termination agreements pursuant to which it has terminated any leases, subleases, licenses or other occupancy agreements for real property that are no longer in effect and has no continuing liability with respect to such terminated agreements.

          (c) The Company has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of its tangible properties and assets, real, personal and mixed, used or held for use in its business, free and clear of any Liens, except (i) as reflected in the Current Balance Sheet, (ii) Liens for Taxes not yet due and payable, and (iii) such imperfections of

title and encumbrances, if any, which do not materially detract from the value or interfere with the present use of the property subject thereto or affected thereby (collectively, “ Permitted Liens ”).

          (d) All equipment owned or leased by the Company currently in use and held for future use is in good operating condition, regularly and properly maintained, subject to normal wear and tear.

     2.14 Intellectual Property.

          (a) Definitions . For all purposes of this Agreement, the following terms shall have the following respective meanings:

               (i) “ Technology ” shall mean any or all of the following (A) works of authorship including, without limitation, computer programs, source code, and executable code, whether embodied in software, firmware or otherwise, architecture, documentation, designs, files, records, databases, and data, (B) inventions (whether or not patentable), discoveries, improvements, and technology, (C) proprietary and confidential information, trade secrets and know how, (D) databases, data compilations and collections and technical data, (E) domain names, web addresses and sites, (F) tools, methods and processes, and (G) any and all instantiations or embodiments of the foregoing in any form and embodied in any media.

               (ii) “ Intellectual Property Rights ” shall mean worldwide common law and statutory rights associated with (A) patents and patent applications of any kind (collectively, the “ Patents ”), (B) copyrights, copyright registrations and copyright applications, “moral” rights and mask work rights, (C) the protection of trade and industrial secrets and confidential information, (D) logos, trademarks, trade names and service marks, and (E) any other proprietary rights relating to Technology, including any analogous rights to those set forth above.

               (iii) “ Company Intellectual Property ” shall mean any and all Technology and Intellectual Property Rights that are owned by or exclusively licensed to the Company.

               (iv) “ Registered Intellectual Property Rights ” shall mean any and all Intellectual Property Rights that have been registered, applied for, filed, certified or otherwise perfected, issued, or recorded with or by any state, government or other public or quasi-public legal authority.

               (v) “ Shrink-Wrap Code ” shall mean off-the-shelf commercially available software where available for a cost of not more than $250,000 in the aggregate for all users and workstations.

          (b)  Section 2.14(b) of the Disclosure Schedule lists all Registered Intellectual Property Rights owned by, or filed in the name of, the Company (the “ Company Registered Intellectual Property Rights ”) and any material proceedings or actions before any court, tribunal

(including the United States Patent and Trademark Office (the “ PTO ”) or equivalent authority anywhere in the world) related to any of the Company Registered Intellectual Property Rights or Company Intellectual Property.

          (c) Each item of Company Registered Intellectual Property Rights is valid and subsisting, and all necessary registration, maintenance and renewal fees in connection with such Company Registered Intellectual Property Rights have been paid and all necessary documents and certificates in connection with such Company Registered Intellectual Property Rights have been filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such Company Registered Intellectual Property Rights. There are no actions that must be taken by the Company within one hundred (100) days following the date of this Agreement, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of maintaining, perfecting or preserving or renewing any Registered Intellectual Property Rights. In each case in which the Company has acquired any Registered Intellectual Property Rights or any other material Intellectual Property Rights from any person, the Company has obtained a valid and enforceable assignment sufficient to irrevocably transfer all such Intellectual Property Rights (including the right to seek past and future damages with respect thereto) to the Company, and, to the maximum extent provided for by, and in accordance with, applicable laws and regulations, the Company has recorded each such assignment with the relevant Governmental Entities, including the PTO, the U.S. Copyright Office, or their respective equivalents in any relevant foreign jurisdiction, as the case may be.

          (d) Except as set forth in Section 2.14(d) of the Disclosure Schedule, all Company Intellectual Property is fully transferable and licensable by the Company, and following the Closing will be fully transferable and licensable by the Final Surviving Entity and/or Parent, without restriction and without payment of any kind to any third party; provided , however , that the representations made in this Section 2.14(d) shall not be deemed breached as a result of the operation of provisions contained in any agreement to which Parent is a party but to which the Company is not.

          (e) Each item of Company Intellectual Property, including all Company Registered Intellectual Property Rights listed in Section 2.14(b) of the Disclosure Schedule, and all Technology and Intellectual Property Rights licensed to the Company, is free and clear of any Liens (other than Permitted Liens, non-exclusive licenses of Company Intellectual Property, and those Liens set forth on Section 2.14(e) of the Disclosure Schedule). Except as set forth in Section 2.14(e) of the Disclosure Schedule, the Company is the exclusive owner or exclusive licensee of all Company Intellectual Property.

          (f) Except as set forth in Section 2.14(f) of the Disclosure Schedule, to the extent that any Technology has been developed or created independently or jointly by any person other than the Company for which the Company has, directly or indirectly, provided consideration for

such development or creation, the Company has a written agreement with such person with respect thereto, and the Company thereby has obtained ownership of, and is the exclusive owner of, all such Technology and associated Intellectual Property Rights by operation of law or by valid assignment, and has required the waiver of all non-assignable rights.

          (g) Except as set forth in Section 2.14(g) of the Disclosure Schedule, the Company has not (i) transferred ownership of, or granted any exclusive license of or exclusive right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any Technology or Intellectual Property Rights that are or were Company Intellectual Property, to any other person or (ii) in the five (5)-year period immediately preceding the Closing, permitted the Company’s rights in any Intellectual Property Rights that are or were Company Registered Intellectual Property Rights to enter into the public domain.

          (h) Except as set forth in Section 2.14(h) of the Disclosure Schedule, and except for the Technology and Intellectual Property Rights licensed to the Company pursuant to the in-bound licenses listed in Section 2.14(u) and Section 2.15(a)(xv) of the Disclosure Schedule and any Shrink-Wrap Code that is not incorporated into, combined with, or distributed in conjunction with any Company products or services, all Technology used in or necessary to the conduct of Company’s business as presently conducted or currently contemplated to be conducted by the Company in its written documents was written and created solely by either (i) employees of the Company acting within the scope of their employment who have validly and irrevocably assigned all of their rights, including all Intellectual Property Rights therein, to the Company or (ii) by third parties who have validly and irrevocably assigned all of their rights, including all Intellectual Property Rights therein, to the Company and no third party owns or has any rights to any of the Company Intellectual Property.

          (i) The Company Intellectual Property, together with Technology and Intellectual Property Rights non-exclusively licensed to the Company pursuant to the non-exclusive in-bound licenses listed in Section 2.14(u) of the Disclosure Schedule, constitutes all of the Technology and Intellectual Property Rights used in or necessary to the conduct of the business of the Company as it currently is conducted or currently contemplated by the Company in its written documents to be conducted, including, without limitation, the design, development, marketing, manufacture, use, import and sale of any product, technology or service (including products, technology or services currently under development). The Final Surviving Entity will own or possess sufficient rights to all Technology and Intellectual Property Rights immediately following the Closing Date that are used in or necessary to the operation of the business of the Company as it currently is conducted or currently contemplated by the Company in its written documents to be conducted; provided , however , that the representations made in this Section 2.14(i) shall not be deemed breached as a result of the operation of provisions contained in any agreement to which Parent is a party but to which the Company is not or by any actions taken by the Parent or the Final Surviving Entity.

          (j) Except as set forth in Section 2.14(j) of the Disclosure Schedule, none of the contracts, licenses and agreements pursuant to which the Company licenses any Technology or Intellectual Property Rights will terminate, or may be terminated by a third party, solely by the passage of time or at the election of a third party within one hundred twenty (120) days after the Closing Date, other than agreements that automatically renew for an additional term of at least one (1) year without the requirement for any action by the Company or any other party thereto.

          (k) Except as set forth in Section 2.14(k) of the Disclosure Schedule, no third party that has licensed Technology or Intellectual Property Rights to the Company has ownership rights or license rights to improvements or derivative works made by the Company in such Technology or Intellectual Property Rights that have been licensed to the Company.

          (l) There are no contracts, licenses or agreements between the Company and any other person with respect to Company Intellectual Property or other Technology or Intellectual Property Rights used in and/or necessary to the conduct of the business as it is currently conducted or currently contemplated by the Company in its written documents to be conducted under which there is any dispute regarding the scope of such agreement, or performance under such agreement including with respect to any payments to be made or received by the Company thereunder.

          (m) Except as set forth in Section 2.14(m) of the Disclosure Schedule, neither the Company Intellectual Property nor the operation of the business of the Company as it has been conducted, is currently conducted and is currently contemplated by the Company in its written documents to be conducted, including but not limited to the design, development, use, import, branding, advertising, promotion, marketing, distribution, manufacture and sale of any product, technology or service (including products, technology or services currently under development) of the Company has infringed or misappropriated, infringes or misappropriates, or will infringe or misappropriate when conducted by Parent and/or the Final Surviving Entity following the Closing in the manner currently contemplated to be conducted by the Company in its written documents, any Intellectual Property Rights of any person, violate any right of any person (including any right to privacy or publicity), or constitute unfair competition or trade practices under the Laws of any jurisdiction. Except as set forth in Section 2.14(m) of the Disclosure Schedule, the Company has not received written notice from any person claiming that such operation or any act, any product, technology or service (including products, technology or services currently under development) or Technology of the Company infringes or misappropriates any Intellectual Property Rights of any person or constitutes unfair competition or trade practices under the Laws of any jurisdiction (nor does the Company have Knowledge of any basis therefor). The representations and warranties of the Company set forth in this Section 2.14(m) are the only representations and warranties of the Company with respect to the matters set forth in this Section 2.14(m) . Notwithstanding anything in this Section 2.14(m) to the contrary, the foregoing representations in this Section 2.14(m) shall not be deemed breached as a result of the operation of the business of the Company following the Closing, to the extent the infringement arises from or is caused by (i) any modification, enhancement or improvement made by Parent or any of its affiliates following the Closing, to the extent the

infringement would not have occurred but for such modification, enhancement or improvement, (ii) the use by Parent or any of its affiliates of any Company Intellectual Property in a manner for which it