AGREEMENT AND PLAN OF REORGANIZATION

Exhibit 2.3

EXECUTION COPY

AGREEMENT AND PLAN OF REORGANIZATION

OMNITURE, INC.,

VOYAGER ACQUISITION CORP

AND

VISUAL SCIENCES, INC.

Dated as of October 25, 2007

TABLE OF CONTENTS

		Page
ARTICLE I THE MERGER			2
1.1 The Merger			2
1.2 Effective Time; Closing			3
1.3 Effect of the Merger			3
1.4 Certificate of Incorporation and Bylaws			3
1.5 Directors and Officers			3
1.6 Effect on Capital Stock			4
1.7 Surrender of Certificates			6
1.8 No Further Ownership Rights in Company Common Stock			9
1.9 Lost, Stolen or Destroyed Certificates			9
1.10 Tax Consequences			9
1.11 Further Action			9
1.12 Dissenter’s Rights			10
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY			10
2.1 Organization; Standing and Power; Charter Documents; Subsidiaries			10
2.2 Capital Structure			11
2.3 Authority; Non-Contravention; Necessary Consents			14
2.4 SEC Filings; Financial Statements; Internal Controls			16
2.5 Absence of Certain Changes or Events			18
2.6 Taxes			18
2.7 Intellectual Property			21
2.8 Compliance; Permits			26
2.9 Litigation			27
2.10 Brokers’ and Finders’ Fees			27
2.11 Transactions with Affiliates			27
2.12 Employee Benefit Plans			27
2.13 Title to Properties			32
2.14 Environmental Matters			33
2.15 Contracts			34
2.16 Disclosure			36
2.17 Board Approval			37
2.18 Fairness Opinion			37
2.19 Insurance			37
2.20 Substantial Customers			37
2.21 Export Control Laws			38
2.22 Foreign Corrupt Practices Act			38
2.23 Takeover Statutes			38

		Page
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB			39
3.1 Organization; Standing and Power; Charter Documents; Significant Subsidiaries			39
3.2 Capital Structure			40
3.3 Authority; Non-Contravention; Necessary Consents			41
3.4 SEC Filings; Financial Statements; Internal Controls			43
3.5 Absence of Certain Changes or Events			44
3.6 Compliance			45
3.7 Litigation			45
3.8 Disclosure			45
3.9 Board Approval			46
3.10 Fairness Opinion			46
3.11 Brokers’ and Finders’ Fees			46
3.12 Company Stock			46
ARTICLE IV CONDUCT BY THE COMPANY PRIOR TO THE EFFECTIVE TIME			47
4.1 Conduct of Business by the Company			47
4.2 Conduct of Business by Parent			52
ARTICLE V ADDITIONAL AGREEMENTS			52
5.1 Prospectus/Joint Proxy Statement; Registration Statement			52
5.2 Meeting of Company and Parent Stockholders; Board Recommendation			54
5.3 Acquisition Proposals			55
5.4 Confidentiality; Access to Information; No Modification of Representations, Warranties or Covenants			59
5.5 Public Disclosure			60
5.6 Regulatory Filings; Reasonable Efforts			61
5.7 Notification of Certain Matters			62
5.8 Third-Party Consents			63
5.9 Equity Awards and Employee Benefits			63
5.10 Form S-8			66
5.11 Indemnification			66
5.12 Nasdaq Listing			68
5.13 Company Affiliates; Restrictive Legend			68
5.14 Treatment as Reorganization			68
5.15 Section 16 Matters			69
5.16 Merger Sub Compliance			69
ARTICLE VI CONDITIONS TO THE MERGER			69
6.1 Conditions to the Obligations of Each Party to Effect the Merger			69
6.2 Additional Conditions to the Obligations of the Company			70
6.3 Additional Conditions to the Obligations of Parent			71

		Page
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER			72
7.1 Termination			72
7.2 Notice of Termination; Effect of Termination			74
7.3 Fees and Expenses			74
7.4 Amendment			76
7.5 Extension; Waiver			76
ARTICLE VIII GENERAL PROVISIONS			76
8.1 Non-Survival of Representations and Warranties			76
8.2 Notices			76
8.3 Interpretation; Knowledge			78
8.4 Counterparts			79
8.5 Entire Agreement; Third-Party Beneficiaries			80
8.6 Severability			80
8.7 Other Remedies; Specific Performance			80
8.8 Governing Law			80
8.9 Jurisdiction			80
8.10 Rules of Construction			81
8.11 Assignment			81
8.12 Waiver of Jury Trial			81

TABLE OF DEFINED TERMS

Term		Section
Acquisition		7.3(b)(iii)
Acquisition Proposal		5.3(g)(i)
Affiliate Letter		5.13
Agreement		Introduction
Antitrust Clearance Date		7.1(b)
Appraisal Rights		1.12
Board Recommendations		5.2(b)
Book-Entry Shares		1.7(c)
Burdensome Condition		5.6(c)
Certificate of Merger		1.2
Certificates		1.7(c)
Change of Recommendation		5.3(d)(ii)
Closing		1.2
Closing Date		1.2
COBRA		2.12(b)
Code		Recitals
Company		Introduction
Company Affiliate		5.13
Company Balance Sheet		2.4(b)
Company Board Recommendation		5.2(b)
Company Charter Documents		2.1(b)
Company Common Stock		1.6(a)
Company Disclosure Letter		Article II

Term		Section
Company Employees		5.9(c)
Company Employee Plan		2.12(a)
Company Financials		2.4(b)
Company Intellectual Property		2.7(a)(ii)
Company Owned Intellectual Property		2.7(a)(vi)
Company Material Adverse Effect		8.3(c)
Company Options		2.2(b)(i)
Company Permits		2.8(b)
Company Preferred Stock		2.2(a)(i)
Company Products		2.7(c)
Company Registered Intellectual Property		2.7(a)(v)
Company Restricted Stock		1.6(b)
Company SEC Reports		2.4(a)
Company Stock Plan or Company Stock Plans		1.6(e)
Company Stockholders’ Meeting		2.16
Company Termination Fee		7.3(b)(i)(1)
Confidentiality Agreement		5.4(a)
Contaminants		2.7(r)
Continuing Employees		5.9(c)
Contract		2.2(a)(ii)
Controlled Group Affiliate		2.12(e)
D&O Insurance		5.11(b)
Delaware Law		Recitals
Dissenting Shares		1.12
Distributed Company Product		2.7(p)

Term		Section
Domain Names		2.7(a)(i)
Effect		8.3(c)
Effective Time		1.2
Employee		2.12(a)
Employee Agreement		2.12(a)
End Date		7.1(b)
Environmental Laws		2.14(b)
ERISA		2.12(c)(i)
Exchange Act		2.3(d)
Exchange Agent		1.7(a)
Exchange Fund		1.7(b)
Exempt Representations		1.1(c)
Export Approvals		2.21(b)
FCPA		2.22
GAAP		2.4(b)
Goldman Agreement		2.10
Goldman Fairness Opinion		2.18
Governmental Entity		2.3(d)
Hazardous Materials		2.14(b)
HSR Act		2.3(d)
Indemnified Parties		5.11(a)
Initial End Date		7.1(b)
Intellectual Property		2.7(a)(i)
International Employee Plan		2.12(g)
Knowledge		8.3(b)

Term		Section
Leased Real Property		2.13(a)
Leases		2.13(a)
Legal Requirements		2.2(d)(ii)
Liens		2.1(d)
Merger		1.1(a)
Merger Consideration		1.6(a)
Merger Sub		Introduction
Merger Sub Common Stock		1.6(d)
Nasdaq		1.6(g)
Open Source		2.7(p)
Option Exchange Ratio		5.9(a)(i)
Parent		Introduction
Parent Balance Sheet		3.4(b)
Parent Board Recommendation		5.2(b)
Parent Charter Documents		3.1(b)
Parent Common Stock		Recitals
Parent Disclosure Letter		Article III
Parent Financials		3.4(b)
Parent Material Adverse Effect		8.3(d)
Parent Options		3.2(b)(i)
Parent Preferred Stock		3.2(a)(i)
Parent SEC Reports		3.4(a)
Parent Stockholders Meeting		2.16
Parent Stock Plans		3.2(b)(i)
Party or Parties		Introduction

Term		Section
Permits		2.8(b)
Permitted Parent Action		5.2(b)
Person		8.3(e)
Per Share Cash Amount		1.6(a)
Per Share Stock Amount		1.6(a)
Prospectus/Joint Proxy Statement		2.16
PTO		2.7(b)
Registered Intellectual Property		2.7(a)(iii)
Registration Statement		2.16
Required Company Stockholders		2.3(a)
Routine Grants		4.1(b)(iv)
Required Parent Stockholders		3.3(a)
Sarbanes-Oxley Act		2.4(c)
SEC		2.3(d)
Second Merger		1.1(b)
Section 409A		2.12(i)
Securities Act		2.4(a)
Share Issuance		Recitals
Software		2.7(a)(iv)
Standard Terms		4.1(b)(iv)
Stockholders’ Meeting		5.2(a)
Subsidiary		2.1(a)
Subsidiary Charter Documents		2.1(b)
Substantial Customer Contracts		2.20(b)
Superior Offer		5.3(g)(ii)

Term		Section
Supplement Letter		1.1(c)
Surviving Corporation		1.1(a)
SVB Facility		4.1(b)(xxii)
Tax or Taxes		2.6(a)
Tax Incentive		2.6(b)(xii)
Tax Opinions		5.14
Tax Return		2.6(a)
Terminating Employee Plans		5.9(b)
Triggering Event		7.1(h)
URLs		2.7(a)(i)
Voting Agreements		Recitals
Voting Debt		2.2(c)

INDEX OF EXHIBITS

Exhibits A-1 and A-2		Voting Agreement
Exhibit B-1 and B-2		Tax Representation Letters
Exhibit C		Certificate of Incorporation

AGREEMENT AND PLAN OF REORGANIZATION

     This AGREEMENT AND PLAN OF REORGANIZATION (this “Agreement” ) is made and entered into as of October 25, 2007, by and among Omniture, Inc., a Delaware corporation ( “Parent” ), Voyager Acquisition Corp, a Delaware corporation and direct wholly-owned subsidiary of Parent ( “Merger Sub” ), and Visual Sciences, Inc., a Delaware corporation (the “Company” ). Hereafter, Parent, Merger Sub and Company shall be referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

     A. The respective Boards of Directors of Parent, Merger Sub and the Company have deemed it advisable and in the best interests of their respective corporations and stockholders that Parent and the Company consummate the business combination and other transactions provided for herein in order to advance their respective long-term strategic business interests.

     B. The respective Boards of Directors of Parent, Merger Sub and the Company have approved, in accordance with applicable provisions of the laws of the state of Delaware ( “Delaware Law” ), this Agreement and the transactions contemplated hereby, including the Merger.

     C. Concurrently with the execution of this Agreement, and as a condition and inducement to Parent’s and the Company’s willingness to enter into this Agreement, certain stockholders of Parent and the Company are entering into a Voting Agreement and irrevocable proxy in substantially the forms attached hereto as Exhibits A-1 and A-2, respectively (the “Voting Agreements”) .

     D. The Board of Directors of the Company has resolved to recommend to its stockholders the adoption of this Agreement.

     E. The Board of Directors of Parent has resolved to recommend to its stockholders the approval of the issuance of shares of Common Stock of the Parent, par value $0.001 per share (the “Parent Common Stock” ) pursuant to the terms of this Agreement (the “Share Issuance” ).

     F. Parent, as the sole stockholder of Merger Sub, has adopted this Agreement.

     G. Parent, Merger Sub and the Company desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe certain conditions to the Merger.

     H. For United States federal income tax purposes, the parties intend that the Merger qualify as a reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code” ), and the parties intend, by executing this Agreement, to adopt a plan of reorganization within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a).

      NOW, THEREFORE , in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE I
THE MERGER

     1.1 The Merger .

          (a) At the Effective Time and subject to and upon the terms and conditions of this Agreement and the applicable provisions of Delaware Law, Merger Sub shall be merged with and into the Company (the “Merger” ), the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation. The Company, as the surviving corporation after the Merger, is hereinafter sometimes referred to as the “Surviving Corporation.”

          (b) Alternative Structure . If following the date of this Agreement all of the conditions set forth in Article VI have been satisfied or waived (except that the tax representation letters in the forms as set forth in Exhibit B-1 and called for in Section 5.14 cannot be delivered and the condition set forth in Section 6.1(e) has not been waived), but the Closing could occur if the tax representation letters in the forms set forth in Exhibit B-2 could be executed and delivered (assuming Parent alters the structure as hereafter provided in this Section 1.1(b)) , Parent shall alter the structure of the business combination between Merger Sub and the Company contemplated by this Agreement, , by consummating a second-step merger of the Surviving Corporation into a limited liability company wholly-owned by Parent that is disregarded as an entity for federal tax purposes, in accordance with Delaware Law, immediately following the Merger (such second-step merger, the “Second Merger” ); provided , however , that (i) such wholly-owned disregarded limited liability company shall become a party to, and shall become bound by, the terms of this Agreement and (ii) the tax representation letters in the forms set forth in Exhibit B-2 shall be executed and delivered, and (iii) any action taken pursuant to this Section 1.1(b) shall not (unless consented to in writing by the Company prior to the Closing) (x) alter or change the kind or amount of consideration to be issued to the holders of the Company’s capital stock or other securities as provided for in this Agreement or (y) otherwise cause any closing condition set forth in Article VI not to be capable of being satisfied (unless duly waived by the party entitled to the benefits thereof). If such second-step merger occurs, references to the Merger in Recital I, Section 1.10, Section 2.6(b)(xiii), Section 4.1(b)(xviii), Section 5.14 and Section 6.1(e) shall be to the Merger and the second-step merger described in this Section 1.1(b), taken together as one integrated transaction for U.S. federal income tax purposes.

          (c) Except as provided in the following sentence, the representations and warranties in this Agreement shall be made as if the Second Merger will occur as part of the transactions contemplated hereby (it being understood that references in this Agreement to the “transactions contemplated hereby” and similar references shall include the Second Merger). The representations and warranties in (x) clause (iii) of the first sentence of Section 2.3(b) , (y) the last sentence of Section 2.3(b) and (z)  Section 2.7(j)(ii) (such representations, collectively, the “Exempt Representations” ) shall be made without regard to whether the Second Merger shall occur;

provided , however , that if the structure of the business combination is altered to include the Second Merger pursuant to Section 1.1(b) , the Company shall promptly (and in any event at least three (3) Business Days prior to the Closing) prepare and deliver to Parent a supplement to the Company Disclosure Letter which shall reflect the disclosure with respect to the Exempt Representations as if such representations and warranties had been made as to the Second Merger (the “Supplement Letter” ) and the disclosure set forth in the Supplement Letter shall qualify the applicable Exempt Representations to the extent such disclosure becomes applicable solely as a result of the Second Merger.

     1.2 Effective Time; Closing . Subject to the provisions of this Agreement, the parties hereto shall cause the Merger to be consummated by filing a Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the relevant provisions of Delaware Law (the “Certificate of Merger” ) (the time of such filing with the Secretary of State of the State of Delaware (or such later time as may be agreed in writing by the Company and Parent and specified in the Certificate of Merger) being the “Effective Time” ) as soon as practicable on the Closing Date. The closing of the Merger (the “Closing” ) shall take place at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, located at One Market, Spear Tower, Suite 3300, San Francisco, California, at a time and date to be specified by the parties, which shall be no later than the second business day after the satisfaction or waiver of the conditions set forth in Article VI (other than those that by their terms are to be satisfied or waived at the Closing), or at such other time, date and location as the parties hereto agree in writing; provided , however , that if all the conditions set forth in Article VI shall not have been satisfied or waived on such second business day, then the Closing shall take place on the first business day on which all such conditions shall have been satisfied or waived. The date on which the Closing occurs is referred to herein as the “Closing Date.”

     1.3 Effect of the Merger . At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of Delaware Law, including Section 259 of the General Corporation Law of the State of Delaware. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

     1.4 Certificate of Incorporation and Bylaws . At the Effective Time, the Certificate of Incorporation of the Company shall be amended and restated to read in its entirety in substantially the form attached hereto as Exhibit C , until thereafter amended in accordance with Delaware Law and as provided in such Certificate of Incorporation. At the Effective Time, the Bylaws of the Company shall be amended and restated in their entirety to be identical to the Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in such Bylaws.

     1.5 Directors and Officers . The initial directors of the Surviving Corporation shall be the directors of Merger Sub immediately prior to the Effective Time, until their respective successors are

duly elected or appointed and qualified. The initial officers of the Surviving Corporation shall be the officers of Merger Sub immediately prior to the Effective Time, until their respective successors are duly appointed.

     1.6 Effect on Capital Stock . Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of any shares of capital stock of the following securities, the following shall occur:

          (a) Company Common Stock . Each share of the Common Stock, par value $0.001 per share, of the Company ( “Company Common Stock” ) issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(c) and other than Dissenting Shares (as defined below)), will be canceled and extinguished and automatically converted (subject to Section 1.6(g) ) into the right to receive (x) 0.49 of a validly issued, fully paid and nonassessable share of Parent Common Stock (the “Per Share Stock Amount” ) and (y) $2.39 in cash, without interest (the “Per Share Cash Amount” and together with the Per Share Stock Amount, the “Merger Consideration” ) upon surrender of the certificate representing such share of Company Common Stock in the manner provided in Section 1.7 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit and bond, if required, in the manner provided in Section 1.9).

          (b) Repurchase Rights . If any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company (such shares of stock, the “Company Restricted Stock” ) that does not by its terms in effect on the date hereof and disclosed on Section 2.12(a) of the Company Disclosure Letter (or by the terms of another agreement with the Company in effect as of the date hereof and disclosed on Section 2.12(a) of the Company Disclosure Letter) provide that such repurchase option, risk of forfeiture or other condition lapses upon consummation of the transactions contemplated hereby, then (x) the shares of Parent Common Stock issued in exchange for such shares of Company Restricted Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends until such time as such repurchase option, risk of forfeiture or other condition expires or is otherwise extinguished, at which time Parent shall cause such legends to be removed and (y) the cash portion of the Merger Consideration payable with respect to such shares of Company Restricted Stock pursuant to the provisions of Section 1.6(a) shall be withheld and retained by Parent and shall be subject to the same repurchase option, risk of forfeiture or other condition. Parent shall hold the cash portion of the Merger Consideration so withheld until such repurchase option, risk of forfeiture or other condition expires or is otherwise extinguished at which time such portion of the Merger Consideration will be distributed to such former holder of shares of Company Restricted Stock; provided , however , such cash shall be permanently retained by Parent upon forfeiture by the holder of such shares of Parent Common Stock pursuant to the terms that governed such Company Restricted Stock prior to the Effective Time. Upon consummation of the Merger, (A) the Merger Consideration issued in exchange for any

shares of Company Restricted Stock will, without any further act of Parent, Merger Sub, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in the Contract providing for the rights of repurchase, forfeiture or other condition applicable to such Company Restricted Stock as set forth in this Section 1.6(b) , and (B) Parent will automatically succeed to and become entitled to exercise the Company’s rights and remedies under any such Contract without modification, except as set forth in this Section 1.6(b). The Company shall use reasonable efforts to ensure that, from and after the Effective Time, the Surviving Corporation is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.

          (c) Cancellation of Treasury and Parent Owned Stock . Each share of Company Common Stock held by Company or Parent or any direct or indirect wholly-owned Subsidiary of the Company or of Parent immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof.

          (d) Capital Stock of Merger Sub . Each share of common stock, par value $0.001, of Merger Sub (the “Merger Sub Common Stock” ) issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation. Each certificate evidencing ownership of shares of Merger Sub Common Stock shall evidence ownership of such shares of capital stock of the Surviving Corporation.

          (e) Stock Options . At the Effective Time, all Company Options outstanding under the Company’s 2006 Employment Commencement Equity Incentive Award Plan, 2004 Equity Incentive Award Plan, Amended and Restated 2000 Equity Incentive Plan, Avivo Corporation 1999 Equity Incentive Plan and any other compensatory option plans or Contracts of the Company, including option plans or Contracts assumed by the Company pursuant to a merger, acquisition or other similar transaction (each, a “Company Stock Plan” and collectively, the “Company Stock Plans” ) shall be assumed by Parent in accordance with Section 5.9(a).

          (f) Warrants . Subject to the consummation of the Merger, the Company shall cause, effective as of immediately prior to the Effective Time, any and all warrants to acquire shares of the capital stock of the Company to be cancelled or terminated and of no further force or effect, such that each holder of any such warrant shall cease to have any rights in respect thereof.

          (g) Fractional Shares . No fraction of a share of Parent Common Stock will be issued by virtue of the Merger, but in lieu thereof each holder of record of shares of Company Common Stock who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder of record) shall, upon surrender of such holder’s Certificate(s), receive from Parent an amount of cash (rounded to the nearest whole cent), without interest, equal to the product of (i) such fraction, multiplied by (ii) the average closing sale price of one share of Parent Common Stock for the ten (10) most recent trading days that Parent Common Stock has traded ending on the last trading day immediately prior to the Closing Date, as reported on the Nasdaq Stock Market’s Global Market ( “Nasdaq” ). As promptly as practicable after the determination of the amount of

cash, if any, to be paid to holders of fractional share interests, the Exchange Agent shall so notify Parent and Parent shall, or shall cause the Surviving Corporation to, deposit such amount with the Exchange Agent and shall cause the Exchange Agent to forward payments to such holders of fractional share interests subject to and in accordance with the terms hereof.

          (h) Adjustments to Per Share Stock Amount . The Per Share Stock Amount shall be adjusted to reflect fully the appropriate effect of any stock split, reverse stock split, subdivision, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock or Company Common Stock), reorganization, recapitalization, reclassification, combination or exchange of shares or other like change with respect to Parent Common Stock (including any amendment to Parent’s Certificate of Incorporation that disproportionately effects the Parent Common Stock to be delivered to the Company’s stockholders pursuant to Section 1.6(a) in comparison to the effect such amendment has on the Parent Common Stock outstanding immediately prior to such amendment) or Company Common Stock having a record date on or after the date hereof and prior to the Effective Time.

     1.7 Surrender of Certificates .

          (a) Exchange Agent . Prior to the Effective Time, Parent shall select an institution reasonably satisfactory to the Company to act as the exchange agent (the “Exchange Agent” ) in the Merger. The Company acknowledges that American Stock Transfer and Trust Company is reasonably satisfactory to the Company.

          (b) Parent to Provide Common Stock and Cash . Prior to the Effective Time, Parent shall enter into an agreement with the Exchange Agent which shall provide that Parent shall make available to the Exchange Agent for exchange in accordance with this Article I, the Merger Consideration payable pursuant to Section 1.6(a) in exchange for outstanding shares of Company Common Stock. In addition, Parent shall make available as necessary from time to time after the Effective Time as needed, additional cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 1.6(g) and any dividends or distributions which holders of shares of Company Common Stock may be entitled pursuant to Section 1.7(d) . Any cash and Parent Common Stock deposited with the Exchange Agent shall hereinafter be referred to as the “Exchange Fund.”

          (c) Exchange Procedures . Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record (as of the Effective Time) of a certificate or certificates (the “Certificates” ) which immediately prior to the Effective Time represented outstanding shares of Company Common Stock or non-certificated shares of Company Common Stock represented by book-entry ( “Book-Entry Shares” ) whose shares were converted into the right to receive the Merger Consideration pursuant to Section 1.6(a) , cash in lieu of any fractional shares pursuant to Section 1.6(g ) and any dividends or other distributions pursuant to Section 1.7(d): (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares shall pass, only upon delivery of the Certificates or Book-Entry Shares to the Exchange Agent and shall be in customary form and (ii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for certificates

representing whole shares of Parent Common Stock and the cash constituting the Merger Consideration, cash in lieu of any fractional shares pursuant to Section 1.6(g) and any dividends or other distributions pursuant to Section 1.7(d) . Upon surrender of Certificates or Book-Entry Shares for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto and such other documents as may reasonably be required by the Exchange Agent, the holder of record of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the number of whole shares of Parent Common Stock (after taking into account all Certificates and Book-Entry Shares surrendered by such holder of record) to which such holder is entitled pursuant to Section 1.6(a) (which, at the election of Parent, may be in uncertificated book entry form unless a physical certificate is requested by the holder of record or is otherwise required by applicable Legal Requirements or regulation), the portion of the cash constituting the Merger Consideration to which such holder is entitled pursuant to Section 1.6(a) , the payment in lieu of fractional shares which such holder has the right to receive pursuant to Section 1.6(g) and any dividends or distributions payable pursuant to Section 1.7(d) , and the Certificates and Book-Entry Shares so surrendered shall forthwith be canceled. In the event of a transfer of ownership of shares of Company Common Stock which is not registered in the transfer records of the Company, the Merger Consideration to which such holder is entitled pursuant to Section 1.6(a) , the payment in lieu of fractional shares which such holder has the right to receive pursuant to Section 1.6(g) and any dividends or distributions payable pursuant to Section 1.7(d) , may be paid to a transferee if the Certificates or Book-Entry Shares representing such shares of Company Common Stock are presented and surrendered to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer, such other documents and guarantees as may be required by the Exchange Agent and by evidence that any applicable stock transfer taxes have been paid, and any such Certificates or Book-Entry Shares so presented and surrendered shall be forthwith canceled. Until so surrendered, outstanding Certificates and Book-Entry Shares will be deemed from and after the Effective Time, for all corporate purposes, to evidence (i) the ownership of the number of full shares of Parent Common Stock into which such shares of Company Common Stock shall have been so converted pursuant to Section 1.6(a) , (ii) the right to receive the cash portion of the Merger Consideration payable for such shares of Company Common Stock pursuant to Section 1.6(a) , (iii) the right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 1.6(g) and (iv) any dividends or distributions payable pursuant to Section 1.7(d) .

          (d) Distributions With Respect to Unexchanged Shares . No dividends or other distributions with respect to Parent Common Stock with a record date after the Effective Time and no payment in lieu of fractional shares pursuant to Section 1.6(g) will be paid to the holders of any unsurrendered Certificates or Book-Entry Shares with respect to the shares of Parent Common Stock represented thereby until the holders of such Certificates or Book-Entry Shares shall surrender such Certificates or Book-Entry Shares in the manner provided in this Section 1.7 . Subject to applicable Legal Requirements, following surrender of any such Certificates or Book-Entry Shares in the manner provided in this Section 1.7 , the Exchange Agent shall deliver to the holders thereof, without interest (i) promptly after such surrender, the number of whole shares of Parent Common Stock issued in exchange therefor, pursuant to Section 1.6(a) and the cash constituting the Merger Consideration payable in exchange therefor pursuant to Section 1.6(a) along with payment in lieu of

fractional shares pursuant to Section 1.6(g) and the amount of any such dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such whole shares of Parent Common Stock and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.

          (e) Transfers of Ownership . If shares of Parent Common Stock are to be issued in a name other than that in which the Certificates surrendered in exchange therefor are registered, it will be a condition of the issuance thereof that the Certificates so surrendered will be properly endorsed and otherwise in proper form for transfer and that the Persons 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 shares of Parent Common Stock in any name other than that of the registered holder of the Certificates surrendered, or established to the reasonable satisfaction of Parent or any agent designated by it that such Tax has been paid or is not payable.

          (f) Required Withholding . Each of Parent, the Exchange Agent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as may be required to be deducted or withheld therefrom under the Code or under any provision of state, local or foreign Tax law or under any other applicable Legal Requirement. Such withheld amounts shall be promptly remitted to the appropriate Governmental Entity. To the extent such amounts are so deducted or withheld and remitted, the amount of such consideration shall be treated for all purposes under this Agreement as having been paid to the Person to whom such consideration would otherwise have been paid.

          (g) No Liability . Notwithstanding anything to the contrary in this Section 1.7 , neither the Exchange Agent, the Surviving Corporation nor any party hereto shall be liable to a holder of shares of Parent Common Stock or Company Common Stock for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law.

          (h) Investment of Exchange Fund . The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent on a daily basis; provided that no gain or loss thereon or income or loss generated thereby shall affect the amounts payable to Company stockholders pursuant to this Article I . Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable to Company stockholders pursuant to this Article I shall promptly be paid to Parent.

          (i) Termination of Exchange Fund . Any portion of the Exchange Fund which remains undistributed to the holders of Certificates or Book-Entry Shares one (1) year after the Effective Time shall, at the request of Parent, be delivered to Parent or otherwise according to the instruction of Parent, and any holders of the Certificates or Book-Entry Shares who have not surrendered such Certificates or Book-Entry Shares in compliance with this Section 1.7 shall after such delivery to Parent look only to Parent for the shares of Parent Common Stock and cash constituting the Merger Consideration pursuant to Section 1.6(a) , cash in lieu of any fractional shares pursuant to Section 1.6(g) and any dividends or other distributions pursuant to Section 1.7(d) with respect to the shares of Company Common Stock formerly represented thereby. If any

Certificate or Book-Entry Share shall not have been surrendered prior to seven (7) years after the Effective Time (or immediately prior to such earlier time as such amounts would otherwise escheat to or become property of any Governmental Entity), any such portion of the Exchange Fund (including amounts held by Parent after the distribution to it of the Exchange Fund) remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time shall, to the extent permitted by law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.

     1.8 No Further Ownership Rights in Company Common Stock . The Merger Consideration issued and paid upon the surrender for exchange of shares of Company Common Stock in accordance with the terms hereof (including any cash paid in respect thereof pursuant to Sections 1.6(a) and 1.6(g) and any dividends or distributions paid in respect thereof pursuant to Section 1.7(d) ) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such shares of Company Common Stock, and there shall be no further registration of transfers on the records of the Surviving Corporation of shares of Company Common Stock which were outstanding immediately prior to the Effective Time. On or after the Effective Time, any Certificates or Book-Entry Shares presented to the Exchange Agent, Parent or the Surviving Corporation for any reason shall, subject to compliance with Section 1.7 , be converted into the Merger Consideration to which such holder is entitled pursuant to Section 1.6(a) , any cash in lieu of any fractional shares to which such holder is entitled pursuant to Section 1.6(g) and any dividends or other distributions to which such holder is entitled pursuant to Section 1.7(d) , in each case without any interest thereon.

     1.9 Lost, Stolen or Destroyed Certificates . In the event any Certificates shall have been lost, stolen or destroyed, the Exchange 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 shares of Parent Common Stock and cash constituting the Merger Consideration as to which such holder is entitled pursuant to Section 1.6(a) , cash for fractional shares, if any, as may be required pursuant to Section 1.6(g) and any dividends or distributions payable pursuant to Section 1.7(d); provided , however , that the Exchange Agent may, as a condition precedent to the issuance and payment thereof, require the owner of such lost, stolen or destroyed Certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against Parent, the Company, the Surviving Corporation or the Exchange Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.

     1.10 Tax Consequences . It is intended by the parties hereto that the Merger shall constitute a reorganization within the meaning of Section 368(a) of the Code. The parties hereto adopt this Agreement as a plan of reorganization within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a).

     1.11 Further Action . At and after the Effective Time, the officers and directors of Parent and the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of the Company and Merger Sub, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company and Merger Sub, any other actions and things to vest,

perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.

     1.12 Dissenter’s Rights . Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time held by a holder who is entitled to demand and properly demands appraisal of such shares of Company Common Stock ( “Dissenting Shares” ), pursuant to, and who complies in all respects with, Section 262 of Delaware Law (the “Appraisal Rights” ), shall not be converted into the right to receive the Merger Consideration, but shall be converted into the right to receive such consideration as may be due such holder pursuant to Section 262 of Delaware Law unless such holder fails to perfect, withdraws or otherwise loses such holder’s right to such payment or appraisal. From and after the Effective Time, a holder of Dissenting Shares shall not have and shall not be entitled to exercise any of the voting rights or other rights of a stockholder of the Surviving Corporation. If, after the Effective Time, such holder fails to perfect, withdraws or otherwise loses any such Appraisal Rights, each such share of such holder shall no longer be considered a Dissenting Share and shall be deemed to have converted as of the Effective Time into the right to receive the Merger Consideration in accordance with Section 1.6(a) , cash in lieu of any fractional shares pursuant to Section 1.6(g) and any dividends or other distributions pursuant to Section 1.7(d) . The Company shall give prompt notice to Parent of any demands received by the Company for appraisal of shares of Company Common Stock, withdrawals of such demands and any other instruments served pursuant to Delaware Law received by the Company, and Parent shall have the right to control all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, except with the prior written consent of Parent voluntarily make any payment with respect to, or settle or offer to settle, any such demands or agree to do or commit to do any of the foregoing.

ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     Except as disclosed in writing in the disclosure letter supplied by Company to Parent dated as of the date hereof and certified by a duly authorized executive officer of the Company (the “Company Disclosure Letter” ), the Company represents and warrants to Parent and Merger Sub as follows:

     2.1 Organization; Standing and Power; Charter Documents; Subsidiaries .

          (a) Organization; Standing and Power . The Company and each of its Subsidiaries (i) is a corporation or other organization duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (except in the case of good standing for entities organized under the laws of any jurisdiction that does not recognize such concept), (ii) has the requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and (iii) is duly qualified or licensed and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the

failure to so qualify or to be in good standing, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. For purposes of this Agreement, “Subsidiary,” when used with respect to any party, shall mean any corporation or other organization, whether incorporated or unincorporated, at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries.

          (b) Charter Documents . The Company has delivered or made available to Parent: (i) a true and correct copy of its Certificate of Incorporation (including any Certificate of Designations) and its Bylaws of the Company, each as amended or amended and restated to date (collectively, the “Company Charter Documents” ) and (ii) the certificate of incorporation and bylaws, or like organizational documents (collectively, “Subsidiary Charter Documents” ), of each of its Subsidiaries, and each such instrument is in full force and effect. The Company is not in violation of any of the provisions of the Company Charter Documents and each Subsidiary is not in violation of its respective Subsidiary Charter Documents.

          (c) Minutes . The Company has made available to Parent and its representatives true and complete copies of the minutes of all meetings of the stockholders, the Board of Directors and each committee of the Board of Directors of the Company and each of its Subsidiaries held since September 30, 2004.

          (d) Subsidiaries . Section 2.1(d) of the Company Disclosure Letter sets forth each Subsidiary of the Company. All the outstanding shares of capital stock of, or other equity or voting interests in, each such Subsidiary have been duly authorized, validly issued and are fully paid and nonassessable and are owned by the Company, a wholly-owned Subsidiary of the Company, or the Company and another wholly-owned Subsidiary of the Company, free and clear of all pledges, claims, liens, charges, encumbrances, options and security interests of any kind or nature whatsoever (collectively, “Liens” ), including any restriction on the right to vote, possess, use, sell, transfer or otherwise dispose of such capital stock or other ownership interests, except for restrictions imposed by applicable securities laws. Other than the Subsidiaries of the Company, neither the Company nor any of its Subsidiaries owns any capital stock of, or other equity or voting interests of any nature in, or any interest convertible, exchangeable or exercisable for, capital stock of, or other equity or voting interests of any nature in, any other Person.

     2.2 Capital Structure .

          (a) Capital Stock .

               (i) The authorized capital stock of the Company consists of: (1) 75,000,000 shares of Company Common Stock, par value $0.001 per share and (2) 10,000,000 shares of preferred stock, par value $0.001 per share (the “Company Preferred Stock” ). At the close of business on October 19, 2007: (i) 20,940,600 shares of Company Common Stock were issued and outstanding, and (ii) no shares of Company Preferred Stock were issued and outstanding.

Since the close of business on October 19, 2007 through the execution of this Agreement, the Company has not issued any shares of Company Common Stock, other than pursuant to the exercise of Company Options (as defined below) outstanding as of October 19, 2007 and granted pursuant to the Company Stock Plans. No shares of Company Common Stock are owned or held by the Company or any Subsidiary of the Company.

               (ii) All of the outstanding shares of capital stock of the Company are, and all shares of capital stock of the Company which may be issued as contemplated or permitted by this Agreement will be, when issued, duly authorized and validly issued, fully paid and nonassessable and not subject to any preemptive rights. Section 2.2(a) of the Company Disclosure Letter sets forth a list of each holder of Company Restricted Stock and (a) the name and last known state of domicile of the holder of such Company Restricted Stock ( provided , however , that the Company may redact names of employees (other than with respect to officers of the Company) from such list), (b) the number of shares of Company Restricted Stock held by such holder, (c) the repurchase price of such Company Restricted Stock, (d) the date on which such Company Restricted Stock was purchased or granted and (e) the applicable vesting schedule pursuant to which the Company’s right of repurchase or forfeiture lapses, and (f) the extent to which such Company right of repurchase or forfeiture has lapsed as of the date hereof. There are no commitments or agreements of any character to which the Company is bound obligating Company to waive its right of repurchase or forfeiture with respect to any Company Restricted Stock as a result of the Merger (whether alone or upon the occurrence of any additional or subsequent events). For purposes of this Agreement, “Contract” shall mean any written, oral or other agreement, contract, subcontract, settlement agreement, lease, binding understanding, instrument, note, option, warranty, purchase order, license, sublicense, insurance policy, benefit plan or other legally binding commitment or undertaking of any nature, as in effect as of the date hereof or as may hereinafter be in effect.

          (b) Stock Options .

               (i) As of the close of business on October 19, 2007: (i) 3,359,430 shares of Company Common Stock were subject to issuance pursuant to outstanding options to purchase Company Common Stock under the Company Stock Plans (the “Company Options” ) and (ii) 920,296 shares of Company Common Stock were reserved for future issuance pursuant to Company Options or other equity-based awards available for grant under the Company Stock Plans. Since the close of business on October 19, 2007 through the execution of this Agreement, no Company Options have been granted and no shares of Company Common Stock have been reserved for future issuance pursuant to Company Options or other equity-based awards available for grant under the Company Stock Plans. There are no outstanding or authorized stock appreciation, phantom stock or other similar rights (whether payable in stock, cash or other property) with respect to the Company.

               (ii)  Section 2.2(a) of the Company Disclosure Letter sets forth a list of each outstanding Company Option issued and (a) the particular Company Stock Plan (if any) pursuant to which such Company Option was granted, (b) the name and last known state of domicile of the holder of such Company Option ( provided , however , that the Company may redact names of

employees (other than with respect to officers of the Company) from such list), (c) the number of shares of Company Common Stock subject to such Company Option, (d) the exercise price of such Company Option (and whether such option is subject to Section 409A of the Code), (e) the date on which such Company Option was granted, (e) the applicable vesting schedule (including any acceleration provisions with respect thereto), and the extent to which such Company Option is vested and exercisable as of the date hereof, (f) the date on which such Company Option expires, and (g) whether such Company Option is intended to qualify as an incentive stock option as defined in Section 422 of the Code. All shares of Company Common Stock subject to issuance under the Company Stock Plans, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and nonassessable. True and complete copies of the forms of all agreements relating to Company Options issued under the Company Stock Plans have been provided to Parent, such forms of agreements are not materially different from the agreements evidencing such Company Options (other than with respect to the name of the holder, the per share exercise price, the number of shares subject to such Company Options and the applicable vesting schedule), and such agreements and instruments have not been amended, modified or supplemented, and the Company has no obligations under any Contract to amend, modify or supplement such agreements in any case from the forms provided to Parent (or the actual agreements evidencing such Company Options).

          (c) Voting Debt . No bonds, debentures, notes or other indebtedness of the Company or any of its Subsidiaries (i) having the right to vote on any matters on which stockholders may vote (or which are convertible into, or exchangeable for, securities having such right) or (ii) the value of which is in any way based upon or derived from capital or voting stock of the Company or its Subsidiaries, are issued or outstanding as of the date hereof (collectively, “Voting Debt”).

          (d) Other Securities .

               (i) As of the date hereof, other than as set forth in Section 2.2(a)(i) and Section 2.2(b)(i) there are no securities, options, warrants, calls, rights, contracts, commitments, agreements, instruments, arrangements, understandings, obligations or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound obligating the Company or any of its Subsidiaries to (including on a deferred basis) issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock, Voting Debt or other voting securities of the Company or any of its Subsidiaries, or obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, instrument, arrangement, understanding, obligation or undertaking.

               (ii) All outstanding shares of Company Common Stock, all outstanding Company Options, and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance in all material respects with (i) all applicable federal, state and foreign securities laws and all other applicable Legal Requirements and (ii) all requirements set forth in applicable material Contracts. Except for shares of Restricted Stock, there are not any outstanding Contracts of the Company or any of its Subsidiaries to (i) repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity or voting interests in, the

Company or any of its Subsidiaries or (ii) dispose of any shares of the capital stock of, or other equity or voting interests in, any of its Subsidiaries. The Company is not a party to any voting agreement with respect to shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries and, to the Knowledge of the Company, other than the Company Voting Agreements and the irrevocable proxies granted pursuant to the Company Voting Agreements, there are no irrevocable proxies and no voting agreements, voting trusts, rights plans, anti-takeover plans or registration rights agreements with respect to any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries. For purposes of this Agreement, “Legal Requirements” shall mean any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.

     2.3 Authority; Non-Contravention; Necessary Consents .

          (a) Authority . The Company has all requisite corporate power and authority to enter into this Agreement and, subject to the adoption and approval of the Merger by the Required Company Stockholders (as defined below), to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement or to consummate the Merger and the other transactions contemplated hereby, subject only to the adoption of this Agreement by the Required Company Stockholders and the filing of the Certificate of Merger pursuant to Delaware Law. The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock (the “Required Company Stockholders” ) to adopt this Agreement is the only vote of the holders of any class or series of Company capital stock necessary to adopt this Agreement in order to consummate the Merger and the other transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).

          (b) Non-Contravention . The execution and delivery of this Agreement by the Company does not, and performance of this Agreement by the Company will not: (i) assuming the Required Company Stockholders adopt this Agreement, conflict with or violate the Company Charter Documents or any Subsidiary Charter Documents of any Subsidiary of the Company, (ii) subject to obtaining the adoption of this Agreement by the Company’s stockholders as contemplated in Section 5.2 and compliance with the requirements set forth in Section 2.3(d) , conflict with or violate any material Legal Requirement applicable to the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries or any of their respective properties is bound or affected, or (iii) result in any breach of or constitute a default (or an event that with

notice or lapse of time or both would become a default) under, or materially impair the Company’s or any of its Subsidiaries rights or materially alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the properties or assets of the Company or any of its Subsidiaries pursuant to, any Company Scheduled Contract, except, as to clauses (ii) and (iii), respectively, for any such conflicts, violations, breaches, defaults or other occurrences which would not be material to the Company and its Subsidiaries, taken as a whole. Section 2.3(b)(iv) of the Company Disclosure Letter lists all consents, waivers and approvals under any of the Company Scheduled Contracts required to be obtained in connection with the consummation of the transactions contemplated hereby, which, if individually or in the aggregate not obtained, would result in a loss of benefits to the Company or any of its Subsidiaries that would be material to the Company and its Subsidiaries, taken as a whole.

          (c)  Section 2.3(c) of the Company Disclosure Letter lists all consents, waivers and approvals under any of the Company’s or its Subsidiaries’ Contracts required to be obtained in connection with the consummation of the transactions contemplated hereby, (including (a) the Merger and (b) the Second Merger and indicating thereon which of the Merger or the Second Merger to which such disclosure relates) which, if individually not obtained, would reasonably be expected to result in a Company Material Adverse Effect.

          (d) Necessary Consents . No consent, approval, order or authorization of, or registration, declaration or filing with any supranational, national, state, municipal, local or foreign government, any instrumentality, subdivision, court, administrative agency or commission or other governmental authority or instrumentality, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority (a “Governmental Entity” ) is required to be obtained or made by the Company in connection with the execution and delivery of this Agreement or the consummation of the Merger and other transactions contemplated hereby, except for: (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other states in which the Company and/or Parent are qualified to do business, (ii) the filing of the Prospectus/Joint Proxy Statement with the Securities and Exchange Commission (the “SEC” ) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act” ) and the effectiveness of the Registration Statement, (iii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal, foreign and state securities (or related) laws and the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act” ) and satisfaction of such other requirements of the comparable applicable laws of other jurisdictions, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities or “blue sky” laws and the securities laws of any foreign country, and (v) such other consents, orders, authorizations, filings, declarations, approvals and registrations which if not obtained or made would not be material to the Company or the Surviving Entity or materially adversely affect the ability of the parties hereto to consummate the Merger within the time frame in which the Merger would otherwise be consummated in the absence of the need for such consent, approval, order, authorization, registration, declaration or filings.

     2.4 SEC Filings; Financial Statements; Internal Controls .

          (a) SEC Filings . The Company has filed all required registration statements, prospectuses, reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference) required to be filed by it with the SEC since September 30, 2004. The Company has made available to Parent all such registration statements, prospectuses, reports, schedules, forms, statements and other documents in the form filed with the SEC. All such required registration statements, prospectuses, reports, schedules, forms, statements and other documents (including those that the Company may file subsequent to the date hereof) are referred to herein as the “Company SEC Reports.” As of their respective dates or, if amended or supplemented prior to the date of this Agreement, as of the date of such amendment or supplement, each Company SEC Report (i) complied in all material respects with the requirements of the Securities Act of 1933, as amended (the “Securities Act” ), or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports and (ii) did not at the time it was filed (or became effective in the case of a registration statement), or if amended, supplemented or superseded by a filing prior to the date of this Agreement then on the date of such superseding filing, amendment or supplement, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries is required to file any forms, reports or other documents with the SEC. The Company has previously made available to Parent a complete and correct copy of any amendments or modifications, which have not yet been filed with the SEC but which are required to be filed, to agreements, documents or other instruments which previously had been filed by Company with the SEC pursuant to the Securities Act or the Exchange Act.

          (b) Financial Statements . Each of the consolidated financial statements (including, in each case, any related notes thereto) contained in the Company SEC Reports (the “Company Financials” ) (as amended or supplemented prior to the date of this Agreement, if applicable), including each Company SEC Report filed after the date hereof until the Closing: (i) was prepared in accordance with United States generally accepted accounting principles ( “GAAP” ) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q, 8-K or any successor form under the Exchange Act), and (ii) fairly presented in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as at the respective dates thereof and the consolidated results of the Company’s operations and cash flows for the periods indicated except that the unaudited interim financial statements were or are subject to normal year end adjustments which were not, or are not expected to be, material in amount to the Company and its Subsidiaries, taken as a whole. The Company does not intend to correct or restate, nor is there any basis for any correction or restatement of, in any material respect, any aspect of the Company Financials. The balance sheet of the Company dated as of June 30, 2007 contained in the Company SEC Report filed with the SEC on August 3, 2007 is hereinafter referred to as the “Company Balance Sheet.” Except as disclosed in the Company Financials, neither the Company nor any of its Subsidiaries has any liabilities (absolute, accrued, contingent or otherwise) of a nature required to be reflected or reserved against

on a consolidated balance sheet or in the related notes to the consolidated financial statements prepared in accordance with GAAP, except for liabilities or obligations (1) under this Agreement or incurred in connection with the transactions contemplated hereby, (2) incurred in the ordinary course of business since June 30, 2007 or (3) which are not, individually or in the aggregate, material to the business, results of operations or financial condition of the Company and its Subsidiaries taken as a whole.

          (c) Internal Controls . The Company has established and maintains disclosure controls and procedures and internal control over financial reporting, as such terms are defined in, and as required by, Rules 13a-15 and 15d-15 under the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act” ). The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended December 31, 2006, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued (and not subsequently withdrawn or qualified) an attestation report concluding that the Company maintained effective internal control over financial reporting as of December 31, 2006. Since December 31, 2006 and through the date hereof, to the Knowledge of the Company, no events, facts or circumstances have occurred, or exist, such that management would not be able to complete its assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended December 31, 2007, and conclude, after such assessment, that such controls were effective. The principal executive officer and principal financial officer of the Company have made all certifications required by the Sarbanes-Oxley Act and any related rules and regulations promulgated by the SEC. The Company and each of its Subsidiaries has established and maintains and adheres to and enforces in all material respects a system of internal control over financial reporting, which is sufficient in all material respects to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements (including the Company Financials) for external purposes in accordance with GAAP. To the Knowledge of the Company, since the date of the Company’s most recent Form 10-Q filed with the SEC, neither the Company nor any of its Subsidiaries (including any Employee), nor the Company’s independent auditors has identified or been made aware of (A) any significant deficiency or material weakness in the design or operation of internal control over financial reporting utilized by the

Company and its Subsidiaries, (B) any fraud, whether or not material, that involves the Company’s management or other Employees), or (C) any claim or allegation regarding any of the foregoing. In connection with the periods covered by the Company Financials since January 1, 2007, the Company has disclosed to Parent all significant deficiencies and material weaknesses identified in writing by the Company or the Company’s independent auditors (whether current or former) in the design or operation of the internal control over financial reporting utilized by the Company and its Subsidiaries. The Company is in compliance in all material respects with (i) the applicable provisions of the Sarbanes-Oxley Act and (ii) the applicable listing and corporate governance rules and regulations of Nasdaq.

     2.5 Absence of Certain Changes or Events . Since the date of the Company Balance Sheet there has not been any Company Material Adverse Effect and during the period from the date of the Company Balance Sheet to the date hereof there has not been: (i) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities, other than repurchases of unvested shares in connection with the termination of the employment relationship with any employee, or upon the resignation of any director or consultant, pursuant to stock option or purchase agreements and, in each case, at no cost or for a de minimis cost, (ii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock; (iii) any granting by the Company or any of its Subsidiaries of any increase in compensation or fringe benefits, except for normal increases of cash compensation in the ordinary course of business consistent with past practice (other than to directors or executive officers of the Company), or any payment by the Company or any of its Subsidiaries of any bonus, except for bonuses made in the ordinary course of business consistent with past practice (other than to directors or executive officers of the Company), or any granting by the Company or any of its Subsidiaries of any increase in severance or termination pay or any entry by the Company or any of its Subsidiaries into any currently effective employment, severance, termination or indemnification agreement or any agreement the benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are not officers and are terminable “at will” without the Company or its Subsidiaries incurring any material liability or financial obligation), (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any amendment or consent with respect to any Company Scheduled Contract in effect since the date of the Company Balance Sheet, (vi) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP, or (vii) any material revaluation by the Company or any of its Subsidiaries of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice.

     2.6 Taxes .

          (a) Definitions . For the 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, 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 2.6(a) as a result of being or ceasing to be a member of an affiliated, consolidated, combined or unitary 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 2.6(a) as a result of any express or implied obligation to indemnify any other person or as a result of any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor or transferor, or otherwise by operation of law; and (iii) “Tax Return” shall mean any report, return (including information return), claim for refund, election, estimated tax filing or declaration required to be supplied to any Governmental Entity or domestic or foreign taxing authority with respect to Taxes, including any schedule or attachment thereto, and including any amendments thereof.

          (b) Taxes; Tax Returns and Audits .

               (i) The Company and each of its Subsidiaries have prepared or caused to be prepared and timely filed or caused to be filed all required material Tax Returns relating to any and all Taxes concerning or attributable to the Company, its Subsidiaries or their respective operations, taking into account any extensions of time within which to file such Tax Returns, and such Tax Returns, in all material respects, are true and correct and have been completed in accordance with applicable Legal Requirements.

               (ii) The Company and each of its Subsidiaries have timely paid all material Taxes required to be paid, and paid or withheld with respect to their Employees and other third parties (and paid over to the appropriate Taxing authority) all income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be paid or withheld.

               (iii) Neither the Company nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed in writing against the Company or any of its Subsidiaries, nor has the Company or any of its Subsidiaries 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 Tax Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination.

               (v) Neither the Company nor any of its Subsidiaries has any material liabilities for unpaid Taxes as of the date of the Company Balance Sheet which have not been accrued or reserved on the Company Balance Sheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Company Balance Sheet other than in the ordinary course of business.

               (vi) The Company has made available to Parent or its legal counsel, copies of all material Tax Returns for the Company and each of its Subsidiaries filed since the fiscal year ended December 31, 2004.

               (vii) There are no Tax liens upon any property or assets of the Company or any Company Subsidiaries except for liens for current Taxes not yet due and payable or Taxes which are being contested in good faith and for which adequate reserves have been established on the Company Financials.

               (viii) Neither the Company nor any of its Subsidiaries is, or has been at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.

               (ix) Neither the Company nor any of its Subsidiaries has (a) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which was Company), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Company or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract, or otherwise.

               (x) Neither the Company nor any of its Subsidiaries has 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 during the two-year period immediately preceding the Closing Date.

               (xi) Neither the Company nor any of its Subsidiaries has engaged in a listed transaction under Treas. Reg. § 1.6011-4(b), including any 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.

               (xii) The Company and each of its Subsidiaries is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive” ).

               (xiii) None of the Company, any Company Subsidiary or, to the Knowledge of the Company, any of the Company’s affiliates has taken or agreed to take any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code. The Company is not aware of any agreement, plan or other circumstance that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

     2.7 Intellectual Property . Definitions . For the purposes of this Agreement, the following terms have the following meanings:

               (i)  “Intellectual Property” shall mean any or all of the following and all rights in, arising out of, or associated therewith: (a) all United States, international and foreign patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (b) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data and customer lists, and all documentation relating to any of the foregoing; (c) all copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; (d) all mask works, mask work registrations and applications therefor, and any equivalent or similar rights in semiconductor masks, layouts, architectures or topology; (e) domain names, uniform resource locators ( “URLs” ) and other names and locators associated with the Internet (collectively, “Domain Names” ), (f) all Software; (g) all industrial designs and any registrations and applications therefor throughout the world; (h) all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor throughout the world; (i) all databases and data collections and all rights therein throughout the world; (j) all moral and economic rights of authors and inventors, however denominated, throughout the world, and (k) any similar or equivalent rights to any of the foregoing anywhere in the world.

               (ii)  “Company Intellectual Property” shall mean any Intellectual Property that is owned by, or exclusively licensed to, the Company or any of its Subsidiaries.

               (iii)  “Registered Intellectual Property” shall mean all United States, international and foreign: (a) patents and patent applications (including provisional applications); (b) registered trademarks, applications to register trademarks, intent-to-use applications, or other registrations or applications related to trademarks; (c) registered copyrights and applications for copyright registration; and (d) any other Intellectual Property that is the subject of an application, certificate, filing, registration or other document issued, filed with, or recorded by any Governmental Entity.

               (iv)  “Software” shall mean any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code, (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing and (iv) all user documentation, including user manuals and training materials, relating to any of the foregoing.

               (v)  “Company Registered Intellectual Property” shall mean all of the Registered Intellectual Property owned by, or filed in the name of, the Company or any of its Subsidiaries.

               (vi)  “Company Owned Intellectual Property” shall mean all Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.

          (b) Registered Intellectual Property; Proceedings . Section 2.7(b) of the Company Disclosure Letter sets forth (a) all Company Registered Intellectual Property and specifies, where applicable, the jurisdictions in which each such item of Company Registered Intellectual Property has been issued or registered, and (b) all proceedings or actions currently pending before any court or tribunal (including the United States Patent and Trademark Office (the “PTO” ) or equivalent authority anywhere else in the world) related to any of the Company Registered Intellectual Property (excluding with respect to the prosecution of any Intellectual Property applications).

          (c) Company Products . Section 2.7(c) of the Company Disclosure Letter sets forth a list of all material products, software or service offerings of the Company or any of its Subsidiaries that were sold within the past two (2) years or which the Company or any of its Subsidiaries intends to sell within ninety (90) days after the date hereof (collectively, “Company Products” ).

          (d) No Order . No Company Intellectual Property owned by Company or Company Product is subject to any proceeding or outstanding order or stipulation (other than the proceedings set forth in Section 2.7(b) of the Company Disclosure Letter, and any restrictions agreed to with the PTO or equivalent authority in connection with the prosecution of Company Registered Intellectual Property) restricting in any manner the use, transfer, or licensing thereof by Company or any of its Subsidiaries, or which may affect the validity, use or enforceability of such Company Intellectual Property owned by Company or the use of such Company Product.

          (e) Registration . Each item of Company Registered Intellectual Property (other than such Intellectual Property intentionally abandoned by the Company or which the Company no longer wishes to protect) is subsisting and, to the Knowledge of the Company, valid, all necessary registration, maintenance and renewal fees currently due in connection with such Company Registered Intellectual Property have been made and all necessary documents, recordations and certificates in connection with such Company Registered Intellectual Property 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 prosecuting, maintaining or perfecting such Company Registered Intellectual Property.

          (f) Absence of Liens . Except as set forth on Section 2.7(f) of the Company Disclosure Letter, the Company owns and has good and exclusive title to each item of Company Intellectual Property owned by it, free and clear of any Liens (excluding non-exclusive licenses and related restrictions granted in the ordinary course of business consistent with past practice).

          (g) Third-Party Development . To the extent that any material technology, software or Intellectual Property has been developed or created independently or jointly by a third party for the Company or any of its Subsidiaries, or any technology, software or Intellectual Property is incorporated into any of the Company Products, the Company and its Subsidiaries have a written agreement with such third party with respect thereto and the Company and its Subsidiaries thereby either (a) have obtained ownership thereof, and are the exclusive or joint owners thereof, or (b) have obtained rights or covenants not to sue or assert sufficient for the conduct of its business as currently conducted and currently proposed to be conducted with respect to Company Products.

          (h) Transfers . Neither the Company nor any of its Subsidiaries has transferred ownership of, nor granted any exclusive license with respect to, any Intellectual Property that is material Company Intellectual Property, to any third party.

          (i) Licenses . Other than (i) “shrink wrap” and similar widely available commercial end-user licenses, (ii) the open source licenses identified in Section 2.7(p) of the Company Disclosure Letter, and (iii) non-exclusive licenses of company products to end-users pursuant to written agreements that have been entered into in the ordinary course of business, Section 2.7(i) of the Company Disclosure Letter sets forth a list of all contracts, licenses and agreements currently in effect to which the Company or any of its Subsidiaries is a party (x) with respect to Company Intellectual Property licensed or transferred to any third party, or (y) pursuant to which a third party has licensed or transferred to the Company or any of its Subsidiaries: (1) any Intellectual Property that is material to the Company or any of its Subsidiaries; or (2) any Intellectual Property on an exclusive basis.

          (j) No Conflict .

               (i) All Contracts relating to the in-license of material Intellectual Property currently used in the conduct of the Company’s business are in full force and effect. Each of the Company and its Subsidiaries is in material compliance with, and has not materially breached any term of any such Contracts.

               (ii) The consummation of the transactions contemplated by this Agreement will neither violate nor result in the breach, modification, cancellation, termination, suspension of, or acceleration of any payments with respect to, such Contracts, except, as to any such conflicts, violations, breaches, defaults or other occurrences which would not be material to the Company and its Subsidiaries, taken as a whole. Following the Closing Date, the Surviving Corporation will be permitted to exercise all of the Company’s and its Subsidiaries’ rights under such Contracts to the same extent the Company and its Subsidiaries would have been able to had the transactions contemplated by this Agreement not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company or any of its Subsidiaries would otherwise be required to pay. Neither this Agreement nor the transactions contemplated by this Agreement will result in, with respect to each of the Company’s and its Subsidiaries’ Contracts which is among the Company’s and its Subsidiaries’ top fifty (50) Contracts, based upon revenue generated for the twelve (12) month period ended on September 30, 2007, or to the Knowledge of the Company with respect to any other Contracts to which the Company or any of its Subsidiaries are currently a party, will result in (A) Parent granting to any third party any right to or with respect to any material Intellectual Property right owned by, or licensed to, Parent, (B) Surviving Corporation granting to any third party any right to or with respect to any material Intellectual Property right owned by, or licensed to, Surviving Corporation that were not licensed or exercisable by such third party prior to the Closing, (C) Parent being bound by, or subject to, any non-compete or other material restriction on the operation or scope of its business, (D) Surviving Corporation being bound by, or subject to, any non-compete or other material restriction on the operation or scope of its business to which the Company was not subject prior to

the Closing, or (E) Parent or Surviving Corporation being obligated to pay any royalties or other material amounts to any third party in excess of those payable by Parent or Company, respectively, prior to the Closing.

               (iii) The representations and warranties set forth in Section 2.7(j)(ii) are true and correct (after giving effect to the Second Merger), except for such failure to be true and correct with respect to any such individual Contract which would not reasonably be expected to result in a Company Material Adverse Effect.

          (k) No Infringement . To the Knowledge of the Company, the operation of the business of the Company and its Subsidiaries as such business currently is conducted and currently proposed to be conducted within ninety (90) days hereof with respect to Company Products, including the Company’s and its Subsidiaries’ design, development, manufacture, use, import, distribution, reproduction, sale, marketing or provision of the Company Products has not and does not infringe or misappropriate the Intellectual Property of any third party or constitute unfair competition or unfair trade practices under the laws of any jurisdiction where such Company Products are developed, manufactured, reproduced, marketed, distributed, used, sold or provided.

          (l) No Notice of Infringement . Neither the Company nor any of its Subsidiaries have received notice from any third party within the last two (2) years that the operation of the business of the Company or any of its Subsidiaries or any act, product or service of the Company or any of its Subsidiaries, infringes or misappropriates the Intellectual Property of any third party or constitutes unfair competition or unfair trade practices under the laws of any jurisdiction.

          (m) No Third Party Infringement . To the Knowledge of the Company, no person has or is infringing or misappropriating any material Company Owned Intellectual Property.

          (n) All Necessary Intellectual Property . To the Knowledge of the Company, the Intellectual Property owned by or licensed to the Company constitutes all material Intellectual Property used in and/or necessary to the conduct of the business of the Company and its Subsidiaries as it currently is conducted and currently proposed to be conducted within ninety (90) days hereof with respect to Company Products, including, without limitation, the design, development, manufacture, reproduction, use, import, sale, licensing, marketing, distribution and provision of the Company Products.

          (o) Proprietary Information Agreements . The Company and each of its Subsidiaries has taken reasonable steps to protect the Company’s and its Subsidiaries’ rights in the Company’s material confidential information and trade secrets that it wishes to protect or any trade secrets or confidential information of third parties provided to the Company or any of its Subsidiaries, and, without limiting the foregoing, each of the Company and its Subsidiaries has and enforces a policy requiring each Employee whose regular duties involve the creation of Intellectual Property to execute a proprietary information/confidentiality agreement substantially in the form provided to Parent, and all Employees of the Company and any of its Subsidiaries whose regular duties involve the creation of Intellectual Property have executed such an agreement, except where

the failure to do so would not reasonably be expected to be material to the Company and its subsidiaries, taken as a whole.

          (p) Open Source . Except as set forth in Section 2.7(p)(i) of the Company Disclosure Letter, no Company Intellectual Property or Intellectual Property of a third party or in the public domain that constitutes open source, public source or freeware Intellectual Property, or any modification or derivative thereof, including any version of any Software licensed pursuant to any GNU general public license or limited general public license or other public or open source license, or other Software that is licensed pursuant to a license that purports to require the distribution of, or access to, source code, purports to require licensing of other Software combined with such Software, or purports to restrict one’s ability to charge for distribution of Software (collectively “Open Source” ), was used in, incorporated into, integrated or bundled with any Company Product that is distributed by the Company to Third Parties (each a “Distributed Company Product” ). Section 2.7(p)(ii) of the Company Disclosure Letter sets forth a list of all Open Source that is included in, or provided or distributed with, any Distributed Company Product and for each such use of Open Source: (i) the applicable license terms, (ii) the applicable Distributed Company Product, and (iii) the copyright holder(s) of such Open Source. Except as set forth in Section 2.7(p)(iii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has (A) incorporated Open Source into, or combined Open Source with, any Company Product or Company Intellectual Property or used Open Source to develop or provide any Company Product or Company Intellectual Property, (B) distributed Open Source in conjunction with or for use with any Company Product or Company Intellectual Property, or (C) otherwise used Open Source, in each case, in a manner that (x) imposes or could impose a requirement or condition that such Company Product or Company Intellectual Property (or any portion thereof) (1) be disclosed or distributed in Source Code form, (2) be licensed for the purpose of making modifications or derivative works, or (3) be redistributable at no charge, or (y) grants or would require the grant of a license to any Person of any Company Intellectual Property.

          (q) No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, result in the disclosure or delivery by the Company or any person acting on its behalf to any person of any source code that is Company Owned Intellectual Property. Neither the execution of this Agreement nor any of the other transactions contemplated by this Agreement, will result in the release from escrow of any source code that is Company Intellectual Property.

          (r) To the Knowledge of the Company, all Company Products and Company Intellectual Property (and all parts thereof) are free of any disabling codes or instructions, timer, clock, counter or other limiting design or routing, “back door,” “Trojan horse,” “worm,” “virus” or other software routines or hardware components that in each case permit Third Party access not authorized by Company (pursuant to an applicable license agreement or otherwise) or disablement or erasure not authorized by Company (pursuant to an applicable license agreement or otherwise) of such Company Product or Company Intellectual Property (or all parts thereof) or data or other software of users or otherwise cause them to be incapable of being used in the full manner for which they were designed ( “Contaminants” ), except to the extent such Software licensed on a “test” or

“trial” basis and except in the case of a virus, that would not be material to the business of Company and its subsidiaries, taken as a whole.

          (s) The Company has complied with its internal privacy policies in all material respects and with all applicable Legal Requirements with respect to the collection of personally identifiable information, except for which noncompliance that individually or in the aggregate would not result in any liability to the Company and its Subsidiaries, taken as a whole. To the Knowledge of the Company, the execution, delivery and performance of this Agreement complies with all applicable material Legal Requirements relating to privacy, information security and the Company’s applicable privacy policies. True and correct copies of all current Company privacy policies are attached to Section 2.7(s) of the Company Disclosure Letter. There is no complaint to or audit, proceeding, investigation or claim currently pending against, or to the Knowledge of the Company threatened against, Company or its business by any Governmental Entity, or by any Person in respect of the collection, use or disclosure of personal information by any Person in connection with the Company or their businesses.

          (t) The Company has information technology systems reasonably sufficient to operate the business as it is currently conducted. The Company has taken reasonable steps and implemented reasonable procedures to limit the possibility that information technology systems used in connection with the operation of the Company are infected with Contaminants. The Company has taken reasonable steps, including the implementation of a disaster recovery plan to safeguard the information technology systems utilized in the operation of the business of the Company as it is currently conducted. To the Knowledge of the Company, there have been no material unauthorized intrusions or breaches of the security of the Company’s information technology systems within the past two (2) years.

     2.8 Compliance; Permits .

          (a) Compliance . Neither the Company nor any of its Subsidiaries is in conflict with, or in default or in violation of, any Legal Requirement applicable to the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries or any of their respective businesses or properties is, or the Company believes is reasonably likely to be, bound or affected, or any material Contract, permit, franchise or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or any of their respective business or properties is bound or affected except for those conflicts, defaults or violations that, individually or in the aggregate, would not cause the Company or its Subsidiaries to lose any benefit or incur any liability, in any case, material to the Company and its Subsidiaries, taken as a whole. No investigation or review by any Governmental Entity is pending or, to the Knowledge of the Company, has been threatened, against the Company or any of its Subsidiaries. There is no material judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition of material property by the Company or any of its Subsidiaries or the conduct of business by the Company and its Subsidiaries as currently conducted in all material respects.

          (b) Permits . The Company and its Subsidiaries hold all permits, licenses, variances, clearances, consents, commissions, franchises, exemptions, orders and approvals from Governmental Entities ( “Permits” ) that are required for the operation of the business of the Company (collectively, “Company Permits” ), except for where the failure to hold such Permits would not result in a liability material to the Company and its Subsidiaries, taken as a whole. As of the date hereof, no suspension or cancellation of any of the material Company Permits is pending or, to the Knowledge of the Company, threatened. The Company and its Subsidiaries are in compliance in all material respects with the terms of the material Company Permits.

     2.9 Litigation . There are no claims, suits, actions, judgments or proceedings pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, before any court, governmental department, commission, agency, instrumentality or authority, or any arbitrator that seeks to (a) restrain or enjoin the consummation of the transactions contemplated hereby or (b) which would reasonably be expected, either singularly or in the aggregate with all such claims, actions, judgments or proceedings, to be material to the Company and its Subsidiaries, taken as a whole.

     2.10 Brokers’ and Finders’ Fees . Except for fees payable to Goldman, Sachs & Co. pursuant to an engagement letter dated July 12, 2007 (the “Goldman Agreement” ) a copy of which has been provided to Parent, the Company has not incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby, and the Company has not entered into any indemnification agreement or arrangement with any Person in connection with this Agreement and the transactions contemplated hereby other than pursuant to the Goldman Agreement. Except pursuant to the Goldman Agreement, the Company will not incur any fees or expenses of any accountant, broker, financial advisor, consultant, legal counsel or other Person retained by the Company in connection with this Agreement, other than fees which accrue on a time and materials basis at customary rates for services rendered.

     2.11 Transactions with Affiliates . Except as set forth in the Company SEC Reports, since the date of the Company’s last proxy statement filed with the SEC, no event has occurred as of the date hereof that would be required to be reported by the Company pursuant to Item 404 of Regulation S-K promulgated by the SEC. Section 2.11 of the Company Disclosure Letter identifies each Person who is an “affiliate” (as that term is used in Rule 145 promulgated under the Securities Act) of the Company as of the date hereof.

     2.12 Employee Benefit Plans

          (a) Schedule . Section 2.12(a) of the Company Disclosure Letter sets forth a correct and complete list of (i) each “employee benefit plan,” within the meaning of Section 3(3) of ERISA, and (ii) each material plan, program or agreement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written or unwritten or otherwise, funded or unfunded (it being understood and agreed that any plan, program or agreement providing severance, termination pay, deferred compensation or stock or stock-related awards shall

be deemed material), which, in the case of plans, programs or agreements described in clauses (i) or (ii) is maintained, contributed to, or required to be contributed to, by the Company or any Controlled Group Affiliate (as defined in Section 2.12(e) ) for the benefit of any current or former or retired employee, consultant or director (each, an “Employee” ), or with respect to which the Company or any Controlled Group Affiliate has or may have any material liability or obligation, including each International Employee Plan (each such plan, program and arrangement, a “Company Employee Plan” ); and (iii) each material management, employment, severance, consulting, relocation, repatriation, expatriation, visa, work permit or other agreement or contract between the Company or any Controlled Group Affiliate and any Employee (each, an “Employee Agreement” ). Except to the extent required by Law or to conform any such Company Employee Plan to the requirements of any applicable Legal Requirements, as required by the terms of such Company Employee Plan or as permitted by the terms of this Agreement, or to the extent necessary to bring such plans or agreements into compliance with Section 409A of the Code or to secure an exemption from Section 409A of the Code, neither the Company nor any Controlled Group Affiliate has any plan or commitment to establish any new Company Employee Plan or Employee Agreement, to modify any Company Employee Plan or to adopt or enter into any Company Employee Plan or Employee Agreement.

          (b) Documents . The Company has made available to Parent for review (to the extent applicable) (i) all documents embodying each Company Employee Plan and each Employee Agreement including (without limitation) all amendments thereto and related trust documents, administrative service agreements, group annuity contracts, group insurance contracts, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Company Employee Plan), and with respect to any Company Employee Plan that has been merged into another Company Employee Plan, the plan documents in effect immediately prior to the merger of such plan, (ii) the most recent annual actuarial valuations and/or audited statement of assets and liabilities for each applicable Company Employee Plan, (iii) the three (3) most recent annual reports, returns, securities registration statements (other than those available on EDGAR) or other filings, if any, required to be filed with any Governmental Entity under applicable Legal Requirement in connection with each Company Employee Plan, (iv) the most recent IRS determination, opinion, notification and advisory letters with respect to Company Employee Plans intended to be qualified under Section 401(a) of the Code, (v) all material written correspondence by the Company to, or received by the Company from, any Governmental Entity relating to any Company Employee Plan, (vi) all discrimination tests for each Company Employee Plan, if applicable, for the most recent three (3) plan years; (vii) all model COBRA forms and related notices; (viii) all material communications from the Company to Employees relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any material liability under any Company Employee Plan; and (ix) the most recent summary plan description together with the summary(ies) of material modifications thereto, if any, required under ERISA with respect to each Company Employee Plan. As used in this Agreement, “COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

          (c) Benefit Plan Compliance .

               (i) With respect to each Company Employee Plan and Employee Agreement, no event has occurred and, to the Knowledge of the Company, there exists no condition or set of circumstances, in connection with which the Company or any of its Subsidiaries would be subject to any material liability under the Employee Retirement Income Security Act of 1974, as amended ( “ERISA” ), the Code or any other applicable Legal Requirement.

               (ii) Each Company Employee Plan has been, in all material respects, administered and operated in accordance with its terms, with the applicable provisions of ERISA, the Code and all other applicable material Legal Requirements and the terms of all applicable collective bargaining agreements. Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service as to its qualified status or may rely upon an opinion letter for a prototype plan, and there has been no event, condition or circumstance that has adversely affected or, to the Company’s Knowledge, would adversely affect such qualified status. The Company has not engaged in any “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, which is not otherwise exempt under Section 408 of ERISA, with respect to any Company Employee Plan. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material liability to Parent, Company or any of its Controlled Group Affiliates (other than ordinary administration expenses or the payment of vested benefits thereunder). There are no audits, inquiries or proceedings pending or, to the Knowledge of the Company, threatened by the Internal Revenue Service or U.S. Department of Labor, or any other Governmental Entity or any Employee with respect to any Company Employee Plan. Neither the Company nor any Controlled Group Affiliate is subject to any material penalty or tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code.

               (iii) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has entered into any agreement, arrangement or understanding, whether written or oral, with any trade union, works council or other Employee representative body or any material number or category of its Employees which would prevent the implementation of any lay-off, redundancy, severance or similar program within its or their respective workforces (or any part of them).

          (d) Plan Funding . With respect to the Company Employee Plans, there are no material benefit obligations for which contributions have not been timely made or properly accrued and there are no material benefit obligations which have not been accounted for by reserves, or otherwise properly footnoted in accordance with the requirements of GAAP, on the financial statements of the Company.

          (e) No Pension or Welfare Plans . Neither the Company nor any other person or entity under common control within the meaning of Section 414(b), (c), (m) or (o) of the Code (a “Controlled Group Affiliate” ) with the Company has ever maintained, established, sponsored, participated in, or contributed to, any (i) Company Employee Plan which is or was subject to

Title IV of ERISA or Section 412 of the Code, (ii) “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA), (iii) “multiple employer plan” within the meaning of Section 4001(a)(3) of ERISA or subject to Section 413(c) of the Code, or (iv) “welfare benefit fund” within the meaning of Section 419 of the Code. No Company Employee Plan provides health benefits that are not fully insured through an insurance contract.

          (f) Continuation Coverage . No Company Employee Plan provides post-termination or retiree welfare benefits (whether or not insured), with respect to any person for any reason (other than coverage mandated by applicable Legal Requirements) and neither the Company nor any Controlled Group Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Employee (either individually or to Employees as a group) or any other person that such Employee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by applicable Legal Requirements.

          (g) International Employee Plans . Each International Employee Plan has been established, maintained and administered in material compliance with its terms and conditions and with the requirements prescribed by any and all statutory or regulatory laws that are applicable to such International Employee Plan. Furthermore, no International Employee Plan has unfunded liabilities, that as of the Effective Time, will not be offset by insurance or fully accrued. Except as required by law, no condition exists that would prevent the Company or Parent from terminating or amending any International Employee Plan at any time for any reason without liability to the Company or its Controlled Group Affiliates (other than ordinary administration expenses or routine claims for benefits). Section 2.12(g) of the Company Disclosure Letter lists each country in which the Company or any of its Subsidiaries or affiliates has operations and the number of employees in each country. As used in this Agreement, “International Employee Plan” shall mean each Company Employee Plan that has been adopted or maintained by the Company or any Controlled Group Affiliate, whether informally or formally, or with respect to which the Company or any Controlled Group Affiliate will or may have any liability, for the benefit of Employees who perform services outside the United States.

          (h) Effect of Transaction . The execution of this Agreement and the consummation of the transactions contemplated hereby will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Employee Plan that will or may result in any material payment (whether of severance pay or otherwise), acceleration of payment, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Employee. No payment or benefit which will or may be made by the Company or any Controlled Group Affiliate with respect to any Employee or any other “disqualified individual” (as defined in Code Section 280G and the regulations thereunder) will be characterized as a “parachute payment,” within the meaning of Section 280G(b)(2) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any Controlled Group Affiliate is a party or by which it is bound to compensate any Employee for excise taxes paid pursuant to Section 4999 of the Code.

          (i) Section 409A . Each contract, agreement or arrangement to which the Company is a party that is a “nonqualified deferred compensation plan” subject to Section 409A of the Code has been operated since January 1, 2005 in good faith compliance with Section 409A of the Code and the guidance and regulations thereunder (“Section 409A”). No such nonqualified deferred compensation plan has been “materially modified” (within the meaning of IRS Notice 2005-1) at any time after October 3, 2004.

          (j) Past Acquisitions . Neither the Company nor any Controlled Group Affiliate is currently obligated to provide an Employee with any compensation or benefits pursuant to an agreement (e.g., an acquisition agreement) with a former employer of such Employee.

          (k) Labor . No employees are represented by any labor organization or works council with respect to their employment with the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is presently, nor has it been in the past, a party to, or bound by, any collective bargaining agreement or union contract with respect to Employees and no collective bargaining agreement is being negotiated by the Company or any of its Subsidiaries. To the Knowledge of the Company, there are no activities or proceedings of any labor union to organize any Employees. There is no labor dispute, strike, slowdown, concerted refusal to work overtime, or work stoppage against the Company or any of its Subsidiaries pending or, to the Knowledge of the Company, threatened or reasonably anticipated. None of the Company, any of its Subsidiaries or any of their respective representatives or Employees has committed any unfair labor practice in connection with the operation of the respective businesses of the Company or any of its Subsidiaries. There are no material actions, suits, claims, labor disputes or grievances pending or threatened or reasonably anticipated relating to any labor, safety or discrimination matters involving any Employee, including, without limitation, charges of unfair labor practices or discrimination complaints. Neither the Company nor any of its Subsidiaries has engaged in any unfair labor practices within the meaning of the National Labor Relations Act. Neither the Company nor any Subsidiary has taken any action which would constitute a “plant closing” or “mass layoff” within the meaning of the WARN Act or similar state or local law, issued any notification of