AGREEMENT AND PLAN OF REORGANIZATION

Exhibit 2.1

EXECUTION COPY

AGREEMENT AND PLAN OF REORGANIZATION

TALEO CORPORATION,

DOLPHIN ACQUISITION CORPORATION,

PORPOISE ACQUISITION LLC,

VURV TECHNOLOGY, INC.,

DEREK MERCER

AND

U.S. BANK NATIONAL ASSOCIATION

Dated as of May 5, 2008

TABLE OF CONTENTS

		Page
ARTICLE I THE MERGER			2
1.1 The Mergers			2
1.2 Effective Time			2
1.3 Effect of the Mergers			3
1.4 Organizational Documents			3
1.5 Directors and Officers			3
1.6 Effect of the First Merger on the Capital Stock of the Constituent Corporations			4
1.7 Effect of Second Merger on Capital Stock			14
1.8 Dissenting Shares			14
1.9 Surrender of Certificates			15
1.10 No Further Ownership Rights in Company Capital Stock			17
1.11 Lost, Stolen or Destroyed Certificates			17
1.12 Tax Consequences			17
1.13 Taking of Necessary Action; Further Action			18
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY			18
2.1 Organization of the Company			18
2.2 Company Capital Structure			19
2.3 Subsidiaries			21
2.4 Authority			21
2.5 No Conflict			22
2.6 Consents			22
2.7 Company Financial Statements			23
2.8 Internal Controls			24
2.9 No Undisclosed Liabilities			24
2.10 No Changes			24
2.11 Accounts Receivable			25
2.12 Tax Matters			25
2.13 Restrictions on Business Activities			28
2.14 Title to Properties; Absence of Liens and Encumbrances; Condition of Equipment			28
2.15 Intellectual Property			29
2.16 Agreements, Contracts and Commitments			36
2.17 Interested Party Transactions			38
2.18 Governmental Authorization			38
2.19 Litigation			39
2.20 Minute Books			39
2.21 Environmental Matters			39
2.22 Brokers’ and Finders’ Fees; Third Party Expenses			40
2.23 Employee Benefit Plans and Compensation			40
2.24 Insurance			47
2.25 Compliance with Laws			47
2.26 Export Control Laws			47
2.27 Foreign Corrupt Practices Act			48
2.28 Warranties; Indemnities			48

TABLE OF CONTENTS
(continued)

		Page
2.29 Substantial Customers and Suppliers; Customer Information			48
2.30 Complete Copies of Materials			49
2.31 Representations Complete			49
2.32 Information Statement			49
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT, SUB AND NEWLLC			49
3.1 Organization and Standing			49
3.2 Authority			50
3.3 No Conflict; Required Filings and Consents			50
3.4 Parent Common Stock			50
3.5 SEC Documents; Parent Financial Statements			50
3.6 Litigation			51
3.7 Cash Resources			51
3.8 Brokers’ and Finders’ Fees			51
3.9 NewLLC			51
3.10 Sub			51
3.11 Company Stock			51
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME			51
4.1 Conduct of Business of the Company			51
4.2 No Solicitation			55
4.3 Procedures for Requesting Parent Consent			56
ARTICLE V ADDITIONAL AGREEMENTS			57
5.1 Access to Information			57
5.2 Confidentiality			57
5.3 Public Disclosure			57
5.4 Reasonable Efforts			57
5.5 Notification of Certain Matters			58
5.6 Additional Documents and Further Assurances			58
5.7 Delivery of Monthly Financial Statements			58
5.8 Stockholder Approval; Fairness Hearing			59
5.9 Merger Notification			61
5.10 Notice to Holders of Company Options			62
5.11 Consents			62
5.12 Restrictions on Transfer			63
5.13 Termination of Agreements			63
5.14 Proprietary Information and Inventions Assignment Agreement			63
5.15 New Employment Benefits			63
5.16 Employment Agreements			64
5.17 Resignation of Officers and Directors			64
5.18 S-8 Registration			64
5.19 Termination of Certain Company Employee Plans			64
5.20 Expenses			65

TABLE OF CONTENTS
(continued)

		Page
5.21 Closing Disbursements			65
5.22 Treatment as a Reorganization			65
5.23 Release of Liens			66
5.24 FIRPTA Compliance			66
ARTICLE VI CONDITIONS TO THE MERGER			66
6.1 Conditions to Obligations of Each Party to Effect the First Merger			66
6.2 Conditions to the Obligations of Parent, Sub and NewLLC			66
6.3 Conditions to Obligations of the Company			70
ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ESCROW			71
7.1 Survival of Representations and Warranties			71
7.2 Indemnification			71
7.3 Maximum Payments; Remedy			72
7.4 Escrow Arrangements			73
7.5 Stockholder Representative			80
7.6 Expense Escrow Account			81
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER			82
8.1 Termination			82
8.2 Effect of Termination			83
8.3 Amendment			83
8.4 Extension; Waiver			83
ARTICLE IX GENERAL PROVISIONS			83
9.1 Notices			83
9.2 Interpretation			85
9.3 Counterparts			85
9.4 Entire Agreement; Assignment			85
9.5 Severability			85
9.6 Other Remedies			85
9.7 No Third Party Beneficiaries			86
9.8 Governing Law; Exclusive Jurisdiction			86
9.9 Rules of Construction			86
9.10 Waiver of Jury Trial			86
9.11 USA Patriot Act Compliance			86

INDEX OF EXHIBITS

Exhibit		Description
Exhibit A		Form of Employment Agreement
Exhibit B		Form of Non-Competition Agreement
Exhibit C		Form of Change in Control Agreement Letter
Exhibit D		Form of Lock-up Agreement
Exhibit E-1		Company Support Stockholders
Exhibit E-2		Form of Support Stockholder Written Consent
Exhibit F-1		Form of Certificate of First Merger
Exhibit F-2		Form of Certificate of Second Merger
Exhibit G		U.S. Bank Money Market Accounts
Exhibit H		Form of 280G Waiver
Exhibit I		Form of Legal Opinion of Company Counsel
Exhibit J		Form of Legal Opinion of Parent Counsel

Schedules
Schedule 1.6(a)(iii)		Excluded Company Indebtedness
Schedule 1.6(a)(v)		Change of Control Employees
Schedule 1.6(a)(ix)		Excluded Capital Lease Obligations
Schedule 1.6(a)(xxx)		Key Employees
Schedule 5.13		Terminated Agreements
Schedule 5.23		Liens
Schedule 6.2(x)		Foreign Qualifications
Schedule 7.2(b)		Indemnification Agreements

CONFIDENTIAL

     THIS AGREEMENT AND PLAN OF REORGANIZATION (the “ Agreement ”) is made and entered into as of May 5, 2008 by and among Taleo Corporation, a Delaware corporation (“ Parent ”), Dolphin Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (“ Sub ”), Porpoise Acquisition LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent (“ NewLLC ”), Vurv Technology, Inc., a Delaware corporation (the “ Company ”), and with respect to Article VII, Article VIII and Article IX hereof only, Derek Mercer as stockholder representative (the “ Stockholder Representative ”), and U.S. Bank National Association as escrow agent.

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     A. The Boards of Directors of each of Parent, Sub, NewLLC and the Company believe it is advisable and in the best interests of each company and its respective stockholders that Parent acquire the Company through the statutory merger of Sub with and into the Company and, as part of the same overall transaction, the statutory merger of the First-Step Corporation with and into NewLLC immediately thereafter, upon the terms and conditions set forth herein, and, in furtherance thereof, have approved this Agreement and the transactions contemplated hereby, including the First Merger and the Second Merger.

     B. Pursuant to the First Merger, among other things, and subject to the terms and conditions of this Agreement, (i) all of the issued and outstanding capital stock of the Company shall be converted into the right to receive the consideration set forth herein, and (ii) all of the issued and outstanding options to purchase capital stock of the Company shall be assumed by Parent and converted into options to purchase common stock of Parent as set forth herein.

     C. Pursuant to the Second Merger, among other things, and subject to the terms and conditions of this Agreement, all of the issued and outstanding capital stock of the First-Step Corporation shall be cancelled without any consideration or other payment therefor.

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

     E. The Company, on the one hand, and Parent and Sub, on the other hand, desire to make certain representations, warranties, covenants and other agreements in connection with the transactions contemplated hereby.

     F. Concurrent with the execution and delivery of this Agreement, as a material inducement to Parent and Sub to enter into this Agreement, (i) each of the Key Employees shall have executed an employment agreement, each in substantially the forms attached hereto as Exhibit A (each employment agreement, an “ Employment Agreement ”), with Parent to be effective as of the Effective Time, (ii) Derek Mercer shall have executed a key employee non-competition and consulting agreement, in substantially the form attached hereto as Exhibit B (the “ Non-Competition Agreement ”) (iii) each of the Change in Control Employees shall have countersigned a letter relating to such employee’s Change in Control Severance Agreement, in substantially the form attached hereto as Exhibit C (a “ Change in Control Agreement Letter ”), (iv) the Principal Stockholders shall have entered into Lock-up Agreements with Parent, in substantially the form attached hereto as Exhibit D (a “ Lock-up

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Agreement ”) and (v) the Company’s Board of Directors shall have unanimously approved this Agreement and the transactions contemplated hereby.

     G. Promptly after the execution and delivery of this Agreement, the Company shall submit to each of the persons and entities identified on Exhibit E-1 (the “ Company Support Stockholders ”) an irrevocable written consent in substantially the form attached hereto as Exhibit E-2 (the “ Support Stockholder Written Consent ”).

     H. For United States federal income tax purposes, the parties intend that the Mergers qualify as a tax-free “reorganization” under the provisions of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (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.

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

ARTICLE I

     1.1 The Mergers . At the Effective Time and subject to and upon the terms and conditions of this Agreement and the applicable provisions of the Delaware General Corporation Code (“ Delaware Law ”), Sub shall be merged with and into the Company (the “ First Merger ”), the separate corporate existence of Sub shall cease, and the Company shall continue as the surviving corporation. The Company as the surviving corporation after the First Merger is sometimes referred to hereinafter as the “ First-Step Corporation .” Immediately after the Effective Time, and as part of a single overall transaction with the First Merger and pursuant to an integrated plan, Parent shall cause the First-Step Corporation to be merged with and into NewLLC pursuant to the applicable provisions of Delaware Law (the “ Second Merger ”), whereupon the separate corporate existence of the First-Step Corporation shall cease and NewLLC shall continue as the surviving entity (the First Merger and the Second Merger are referred to herein together as the “ Mergers ”). NewLLC as the surviving entity after the Second Merger is sometimes referred to hereinafter as the “ Surviving LLC .”

     1.2 Effective Time . Unless this Agreement is earlier terminated pursuant to Section 8.1 hereof, the closing of the First Merger and the Second Merger (the “ Closing ”) will take place as promptly as practicable, and in any event no more than three (3) Business Days, after the conditions set forth in Article VI hereof have been satisfied or waived, at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto, California, unless another time or place is mutually agreed upon in writing by Parent and the Company. The date upon which the Closing actually occurs shall be referred to herein as the “ Closing Date .” On the Closing Date, the parties hereto shall cause the First Merger and the Second Merger to be consummated by filing or causing to be filed with the Secretary of State of the State of Delaware a certificate of merger in substantially the form attached hereto as Exhibit F-1 (the “ Certificate of First Merger ”), and immediately thereafter a certificate of merger in substantially the form attached hereto as Exhibit F-2 (the “ Certificate of Second Merger ,” together with

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the Certificate of First Merger, the “ Certificates of Merger ”) in accordance with the applicable provisions of Delaware Law, the time of filing of the Certificate of First Merger by the Secretary of State of the State of Delaware shall be referred to herein as the “ Effective Time .”

     1.3 Effect of the Mergers . The effect of the Mergers shall be as set forth in this Agreement and as provided in the applicable provisions of Delaware Law. Without limiting the generality of the foregoing, and subject thereto, upon the filing of the Certificates of Merger, except as otherwise agreed to pursuant to the terms of this Agreement, all of the property, rights, privileges, powers and franchises of the Company, Sub and NewLLC shall vest in the Surviving LLC, and all debts, liabilities and duties of the Company, Sub and NewLLC shall become the debts, liabilities and duties of the Surviving LLC.

     1.4 Organizational Documents .

          (a) Unless otherwise determined by Parent prior to the Effective Time, the certificate of incorporation of the First-Step Corporation shall be amended and restated as of the Effective Time to be identical to the certificate of incorporation of Sub as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in such certificate of incorporation; provided, however , that at the Effective Time, Article I of the certificate of incorporation of the First-Step Corporation shall be amended and restated in its entirety to read as follows: “The name of the corporation is Vurv Technology, Inc.”

          (b) Unless otherwise determined by Parent prior to the Effective Time, the bylaws of the First-Step Corporation shall be amended and restated as of the Effective Time to be identical to the bylaws of Sub as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in the certificate of incorporation of the First-Step Corporation and such bylaws.

          (c) Unless otherwise determined by Parent prior to the Effective Time, the certificate of formation of the Surviving LLC shall be the certificate of formation of NewLLC as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in the certificate of formation; provided, however , that at the effective time of the Second Merger, the certificate of formation of the Surviving LLC shall be amended to change the name of the Surviving LLC to “Vurv Technology LLC.”

          (d) Unless otherwise determined by Parent prior to the Effective Time, the operating agreement of the Surviving LLC shall be the operating agreement of NewLLC as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in such operating agreement.

     1.5 Directors and Officers .

          (a)  Directors of First-Step Corporation . Unless otherwise determined by Parent prior to the Effective Time, the directors of Sub immediately prior to the Effective Time shall be the directors of the First-Step Corporation immediately after the Effective Time, each to hold the office of a director of the First-Step Corporation in accordance with the provisions of Delaware Law, the certificate of incorporation and bylaws of the First-Step Corporation until their successors are duly elected and qualified, or until their earlier resignation or removal.

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          (b)  Officers of First-Step Corporation . Unless otherwise determined by Parent prior to the Effective Time, the officers of Sub immediately prior to the Effective Time shall be the officers of the First-Step Corporation immediately after the Effective Time, each to hold office in accordance with the provisions of the bylaws of the First-Step Corporation.

          (c)  Directors of Subsidiaries of Surviving LLC . Unless otherwise determined by Parent prior to the Effective Time, Parent, the Company and the Surviving LLC shall cause the directors of Sub immediately prior to the Effective Time to be the directors of any Subsidiaries immediately after the Effective Time, each to hold office as a director of each such Subsidiary in accordance with the provisions of the laws of the respective jurisdiction of organization and the respective bylaws or equivalent organizational documents of each such Subsidiary.

          (d)  Officers of Subsidiaries of Surviving LLC . Unless otherwise determined by Parent prior to the Effective Time, Parent, the Company and the Surviving LLC shall cause the officers of Sub immediately prior to the Effective Time to be the officers of any Subsidiaries immediately after the Effective Time, each to hold office as an officer of each such Subsidiary in accordance with the provisions of the laws of the respective jurisdiction of organization and the bylaws or equivalent organizational documents of each such Subsidiary.

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

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

               (i) “ Aggregate Preferred Liquidation Preference ” shall mean the sum of the Series A Preferred Liquidation Preference, the Series B Preferred Liquidation Preference, the Series C Preferred Liquidation Preference and the Series D Preferred Liquidation Preference.

               (ii) “ Business Day ” shall mean each day that is not a Saturday, Sunday or other day on which Parent is closed for business or banking institutions located in San Francisco, California are authorized or obligated by law or executive order to close.

               (iii) “ Cash Consideration ” shall mean (A) $36,425,000, minus (B) an amount equal to any Company Indebtedness outstanding as of immediately prior to the Effective Time (other than as set forth on Schedule 1. 6(a)(iii) ), minus (C) the Third Party Expense Adjustment Amount, minus (D) the Expense Escrow Amount, minus (E) the Employee Severance Amount.

               (iv) “ Cash Percentage ” shall mean (A) the quotient obtained by dividing (1) the Cash Consideration, by (2) the Merger Consideration minus the Vested Options Value, multiplied by (B) 100.

               (v) “ Change of Control Employees ” shall mean the employees of the Company identified on Schedule 1. 6(a)(v) hereto.

               (vi) “ Common Consideration ” shall mean (A) the Merger Consideration, minus (B) the Aggregate Preferred Liquidation Preference.

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               (vii) “ Company Capital Stock ” shall mean the Company Common Stock, the Company Preferred Stock and all other shares of capital stock, if any, of the Company, taken together.

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

               (ix) “ Company Indebtedness ” shall mean all liabilities or obligations of the Company (A) for borrowed money, whether secured or unsecured or for the extension of credit, (B) evidenced by letters of credit, capitalized lease obligations, notes, bonds, debentures, derivative or similar instruments, (C) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of business), and (D) in the nature of a guarantee of any of the obligations described in clauses (A) through (C) above; provided , that “Company Indebtedness” shall not include up to $9 million outstanding under the SVB Loan Agreement, and (ii) amounts due pursuant to the capitalized lease obligations identified on Schedule 1. 6(a)(ix) hereto.

               (x) “ Company Material Adverse Effect ” shall mean any change, event or effect that is, or is reasonably likely to be, materially adverse to the business, assets (whether tangible or intangible), financial condition, operations or results of operations of the Company and its Subsidiaries, taken as a whole; provided, however , that in no event shall any of the following, alone or in combination with any of the others, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (A) any occurrence or occurrences relating to the industry in which the Company and its Subsidiaries operate, other than that which affects the Company and its Subsidiaries, taken as a whole, disproportionately; (B) any adverse effect (including any loss of or adverse change in the relationship of the Company or its Subsidiaries with their respective customers, suppliers, partners or similar relationship, and excluding any loss of or adverse change in any employee relationship) directly related to the public announcement or pendency of the transactions contemplated by this Agreement; (C) general economic, market or political conditions (including acts of terrorism or war) that do not disproportionately affect the Company and its Subsidiaries, taken as a whole; (D) any changes (after the date hereof) in GAAP or Law, or (E) the failure of the Company to meet internal financial projections with respect to sales to new customers, provided that the underlying cause of such failure may be taken into account in making a determination as to whether there has been a Company Material Adverse Effect except as otherwise provided in this definition.

               (xi) “ Company Options ” shall mean all issued and outstanding options to purchase or otherwise acquire Company Capital Stock (whether or not vested) held by any employee, consultant or director of the Company or its Subsidiaries.

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

               (xiii) “ Company Series A Preferred Stock ” shall mean the Series A Convertible Preferred Stock, $0.001 par value per share, of the Company.

               (xiv) “ Company Series B Preferred Stock ” shall mean the Series B Convertible Preferred Stock, $0.001 par value per share, of the Company.

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               (xv) “ Company Series C Preferred Stock ” shall mean the Series C Convertible Preferred Stock, $0.001 par value per share, of the Company.

               (xvi) “ Company Series D Preferred Stock ” shall mean the Series D Convertible Junior Preferred Stock, $0.001 par value per share, of the Company.

               (xvii) “ Continuing Employee ” shall mean each employee of the Company who is an employee of Parent or any of its subsidiaries immediately following the Effective Time.

               (xviii) “ Court ” shall mean any court or arbitration tribunal of the United States, any domestic state, or any foreign country, and any political subdivision or agency thereof.

               (xix) “ Employee Severance Amount ” shall mean $375,000.

               (xx) “ Escrow Agent ” shall mean U.S. Bank National Association or another institution acceptable to Parent and the Stockholder Representative.

               (xxi) “ Escrow Amount ” shall mean a number of shares of Parent Common Stock issued to the Company Stockholders and placed in escrow in accordance with the terms of this Agreement, equal to the quotient obtained by dividing (A) twelve and one-half percent (12 ¹ / 2 %) of the Merger Consideration, by (B) the Parent Trading Price.

               (xxii) “ Estimated Third Party Expenses ” shall mean the amount of Third Party Expenses (both paid and unpaid) incurred or expected to be incurred by the Company as of the Closing Date as estimated by the Company in good faith and based on reasonable assumptions, as set forth on the Statement of Expenses.

               (xxiii) “ Excess Third Party Expenses ” shall mean Third Party Expenses incurred by the Company that are not reflected on the Statement of Expenses, and, therefore, are not part of the Third Party Expense Adjustment Amount, if any.

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

               (xxv) “ Expense Escrow Amount ” shall mean $250,000 to be placed in the Expense Escrow Account in accordance with the terms of this Agreement.

               (xxvi) “ Expense Reimbursement Amount ” shall mean up to $2.4 million in investment banking, legal and accounting fees and expenses (both paid and unpaid) incurred by the Company in connection with its abandoned initial public offering and the transactions contemplated by this Agreement.

               (xxvii) “ FASB ” shall mean the Financial Accounting Standards Board.

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

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               (xxix) “ HSR Act ” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

               (xxx) “ Key Employees ” shall mean the employees of Company identified on Schedule 1. 6(a)(xxx) hereto.

               (xxxi) “ Knowledge ” or “ Known ” shall mean, with respect to the Company, the actual knowledge of Angel Cabrera, Debbie Giambruno, Mike Gibson, Darren Jaffrey, Jim Lewis, Tom Love, Amy McGeorge, Derek Mercer and Mark Silverman.

               (xxxii) “ Law ” shall mean any law (statutory, common or otherwise), constitution, treaty, convention, ordinance, equitable principle, code, rule, regulation, executive order, or other similar authority enacted, adopted, promulgated, or applied by any Governmental Entity, each as amended and now in effect.

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

               (xxxiv) “ Merger Consideration ” shall mean the sum of (A) the Cash Consideration, and (B) the Stock Consideration multiplied by the Parent Trading Price.

               (xxxv) “ Option Exchange Ratio ” shall mean the quotient obtained by dividing (A) the Per Share Common Merger Consideration, by (B) the Parent Trading Price.

               (xxxvi) “ Order ” shall mean any order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive, approval, award, judgment, injunction, or other similar determination or finding issued, granted or made by any Governmental Entity or Court.

               (xxxvii) “ Parent Common Stock ” shall mean shares of the Class A common stock, par value $0.0001 per share, of Parent.

               (xxxviii) “ Parent Material Adverse Effect ” shall mean any change, event or effect that is, or is reasonably likely to be, materially adverse to the business, assets (whether tangible or intangible), financial condition, operations or results of operations or capitalization of Parent; provided, however , that in no event shall any of the following, alone or in combination with any of the others, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been or will be, a Parent Material Adverse Effect: (A) any change or changes in the price per share of Parent Common Stock or a change in the trading volume of Parent Common Stock (but not the underlying cause of such change or the effects therefrom); (B) any failure to meet or otherwise satisfy analyst or other third party expectations relating to the results of Parent’s operations (but, in each case, not the underlying cause of such failure or the effects therefrom); (C) any occurrence or occurrences relating to the industry in which the Parent operates, other than that which affects Parent disproportionately; (D) any adverse effect (including any loss of or adverse change in the relationship of Parent or its subsidiaries with their respective customers, suppliers, partners or similar relationship, and excluding any loss of or adverse change in any employee relationship) directly related to the public announcement or pendency of the transactions contemplated by this Agreement; (E) general economic,

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market or political conditions (including acts of terrorism or war) that do not disproportionately affect Parent; or (F) any changes (after the date hereof) in GAAP or Law.

               (xxxix) “ Parent Option ” shall mean any option to purchase shares of Parent Common Stock assumed pursuant to the terms of Section 1. 6(c) hereof in connection with the assumption of a Company Option.

               (xl) “ Parent Trading Price ” shall mean the average of the daily closing price of a share of Parent Common Stock as reported by The Nasdaq Stock Market for the thirty (30) trading days ending three (3) Business Days prior to the Closing Date.

               (xli) “ Per Share Common Merger Consideration ” shall mean that amount obtained by dividing (A) the Common Consideration, by (B) the Total Outstanding Common Shares.

               (xlii) “ Per Share Series A Preferred Liquidation Preference ” shall mean Merger Consideration in an amount equal to the sum of (A) $1.00, plus (B) $0.02 per calendar quarter (prorated on a daily basis for partial periods), compounded quarterly, from November 6, 2003 through and as of the Closing Date, minus (C) the amount of all declared but unpaid dividends.

               (xliii) “ Per Share Series B Preferred Liquidation Preference ” shall mean Merger Consideration in an amount equal to the sum of (A) $2.50, plus (B) $0.05 per calendar quarter (prorated on a daily basis for partial periods), compounded quarterly, from December 28, 2004 through and as of the Closing Date, minus (C) the amount of all declared but unpaid dividends.

               (xliv) “ Per Share Series C Preferred Liquidation Preference ” shall mean Merger Consideration in an amount equal to the sum of (A) $3.88, plus (B) $0.0776 per calendar quarter (prorated on a daily basis for partial periods), compounded quarterly, from May 15, 2006 through and as of the Closing Date, minus (C) the amount of all declared but unpaid dividends.

               (xlv) “ Per Share Series D Preferred Liquidation Preference ” shall mean Merger Consideration in an amount equal to the sum of (A) $4.25, plus (B) $0.085 per calendar quarter (prorated on a daily basis for partial periods), compounded quarterly, from January 11, 2007 through and as of the Closing Date, minus (C) the amount of all declared but unpaid dividends.

               (xlvi) “ Person ” shall mean an individual or entity, including a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Entity (or any department, agency, or political subdivision thereof).

               (xlvii) “ Plan ” shall mean the Company’s Stock Option Plan, as amended and restated as of March 23, 2006.

               (xlviii) “ Principal Stockholders ” shall mean, collectively, Derek Mercer, QuestMark Partners II, L.P., QuestMark Partners Side Fund II, L.P., Tudor Ventures II, L.P., The Raptor Private Portfolio LP and The Altar Rock Private Portfolio LP.

               (xlix) “ Pro Rata Portion ” shall mean, with respect to each Stockholder (other than a Stockholder holding Dissenting Shares who does not effectively withdraw or lose such

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Stockholder’s dissenter’s rights as contemplated by Section 1.8(b) hereof), an amount equal to the quotient obtained by dividing (A) the number of shares of Company Common Stock and Company Preferred Stock owned by such Stockholder as of immediately prior to the Effective Time by (B) the total number of shares of Company Common Stock and Company Preferred Stock issued and outstanding as of immediately prior to the Effective Time (other than Dissenting Shares held by Stockholders who do not effectively withdraw or lose such holders’ dissenters’ rights as contemplated by Section 1.8(b) hereof).

               (l) “ Related Agreements ” shall mean the Nondisclosure Agreement, the Change in Control Agreement Letters, the Certificates of Merger and all other agreements and certificates entered into by the Company in connection with the transactions contemplated herein.

               (li) “ Requisite Stockholder Vote ” shall mean the affirmative vote of the holders of at least 90% of the outstanding Company Capital Stock.

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

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

               (liv) “ Series A Preferred Liquidation Preference ” shall mean that amount obtained by multiplying (A) the aggregate number of shares of Company Series A Preferred Stock issued and outstanding immediately prior to the Effective Time (after giving effect to any conversion to Company Common Stock occurring immediately prior to the Effective Time), by (B) the Per Share Series A Preferred Liquidation Preference, rounded to the nearest one hundredth (0.01) (with amounts 0.005 and above rounded up).

               (lv) “ Series B Preferred Liquidation Preference ” shall mean that amount obtained by multiplying (A) the aggregate number of shares of Company Series B Preferred Stock issued and outstanding immediately prior to the Effective Time (after giving effect to any conversion to Company Common Stock occurring immediately prior to the Effective Time), by (B) the Per Share Series B Preferred Liquidation Preference, rounded to the nearest one hundredth (0.01) (with amounts 0.005 and above rounded up).

               (lvi) “ Series C Preferred Liquidation Preference ” shall mean that amount obtained by multiplying (A) the aggregate number of shares of Company Series C Preferred Stock issued and outstanding immediately prior to the Effective Time (after giving effect to any conversion to Company Common Stock occurring immediately prior to the Effective Time), by (B) the Per Share Series C Preferred Liquidation Preference, rounded to the nearest one hundredth (0.01) (with amounts 0.005 and above rounded up).

               (lvii) “ Series D Preferred Liquidation Preference ” shall mean that amount obtained by multiplying (A) the aggregate number of shares of Company Series D Preferred Stock issued and outstanding immediately prior to the Effective Time (after giving effect to any conversion to Company Common Stock occurring immediately prior to the Effective Time), by (B) the Per Share Series D Preferred Liquidation Preference, rounded to the nearest one hundredth (0.01) (with amounts 0.005 and above rounded up).

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               (lviii) “ Statement of Expenses ” shall mean the statement of Estimated Third Party Expenses as of the Closing Date delivered by the Company to Parent at least three (3) Business Days prior to the Closing Date, such statement showing detail of both previously paid and currently unpaid Third Party Expenses incurred by the Company, as well as the Third Party Expenses that are expected to be incurred by the Company in connection with this Agreement and the transactions contemplated hereby, the form of such statement reasonably acceptable to Parent and certified as true and correct by the Company’s Chief Financial Officer.

               (lix) “ Stock Consideration ” shall mean 4,100,000 shares of Parent Common Stock.

               (lx) “ Stockholder ” shall mean any holder of any Company Capital Stock or Vested Company Options immediately prior to the Effective Time.

               (lxi) “ Stock Percentage ” shall mean (A) one hundred percent (100%), minus (B) the Cash Percentage.

               (lxii) “ SVB Loan Agreement ” shall mean that certain Loan and Security Agreement dated November 26, 2006, by and between Silicon Valley Bank, the Company and KnowledgePoint, LLC.

               (lxiii) “ Third Party Expenses ” shall mean all fees and expenses incurred in connection with the Mergers, including without limitation all legal, accounting, financial advisory, consulting and all other fees and expenses of third parties incurred by a party in connection with the negotiation and effectuation of the terms and conditions this Agreement and the transactions contemplated hereby, as well as the legal, accounting and investment banking fees and expenses of the Company incurred in connection with its abandoned public offering.

               (lxiv) “ Third Party Expense Adjustment Amount ” shall mean the difference between (A) the Estimated Third Party Expenses and (B) the Expense Reimbursement Amount; provided , that if the Estimated Third Party Expenses are less than or equal to the Expense Reimbursement Amount, the “Third Party Expense Adjustment Amount” shall be $0.

               (lxv) “ Total Outstanding Common Shares ” shall mean the sum of (A) the aggregate number of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, and (B) the aggregate number of shares of Company Common Stock issuable upon conversion or exercise of securities convertible into or exercisable for Company Common Stock outstanding immediately prior to the Effective Time; provided, however , that “Total Outstanding Common Shares” shall not include (1) the aggregate number of shares of Company Common Stock that are issuable upon full exercise, exchange or conversion of all Unvested Company Options or (2) the aggregate number of shares of Company Common Stock issuable upon conversion of shares of Company Series A Preferred Stock, Company Series B Preferred Stock and Company Series D Preferred Stock that are outstanding as of the Effective Time.

               (lxvi) “ Total Outstanding Shares ” shall mean the aggregate number of shares of Company Capital Stock issued and outstanding immediately prior to the Effective Time.

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               (lxvii) “ Unvested Company Option ” shall mean any Company Option (or portion thereof) that is unvested immediately prior to the Effective Time, and does not vest as a result of the occurrence of the First Merger.

               (lxviii) “ Vested Company Option ” shall mean any Company Option (or portion thereof) that is vested immediately prior to the Effective Time, or vests as a result of the occurrence of the First Merger.

               (lxix) “ Vested Option Parent Shares ” shall mean the number of whole shares of Parent Common Stock equal to the product of (1) the number of shares of Company Common Stock that are issuable upon full exercise of Vested Company Options immediately prior to the Effective Time, multiplied by (2) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock.

               (lxx) “ Vested Options Value ” shall mean the product obtained by multiplying (A) the Vested Option Parent Shares, by (B) the Parent Trading Price.

          (b)  Effect on Capital Stock . At the Effective Time, by virtue of the First Merger and without any action on the part of Sub, the Company or the holders of shares of Company Capital Stock, each share of Company Capital Stock (excluding, for avoidance of doubt, Company Options, which shall be treated as provided for in Section 1. 6(c) below, and shares of Company Capital Stock held by the Company, which shall be treated as provided for in Section 1. 6(d) below) issued and outstanding immediately prior to the Effective Time, upon the terms and subject to the conditions set forth in this Section 1.6 and throughout this Agreement, including the escrow provisions set forth in Article VII hereof, will be cancelled and extinguished and will be converted automatically into the right to receive upon surrender of the certificate representing such shares of Company Capital Stock in the manner provided in Section 1.9 hereof, such portion of the Merger Consideration as set forth below:

               (i) each outstanding share of Company Series A Preferred Stock will be converted automatically into the right to receive the Per Share Series A Preferred Liquidation Preference;

               (ii) each outstanding share of Company Series B Preferred Stock will be converted automatically into the right to receive the Per Share Series B Preferred Liquidation Preference;

               (iii) each outstanding share of Company Series C Preferred Stock will be converted automatically into the right to receive (A) the Per Share Series C Preferred Liquidation Preference and (B) the Per Share Common Merger Consideration;

               (iv) each outstanding share of Company Series D Preferred Stock will be converted automatically into the right to receive the Per Share Series D Preferred Liquidation Preference;

               (v) each outstanding share of Company Common Stock will be converted automatically into the right to receive the Per Share Common Merger Consideration;

               (vi) the Per Share Series A Preferred Liquidation Preference, Per Share Series B Preferred Liquidation Preference, Per Share Series C Preferred Liquidation Preference, Per Share Series D Preferred Liquidation Preference and the Per Share Common Merger Consideration shall each be paid the Cash Percentage in cash and the Stock Percentage in shares of Parent Common Stock, with the

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Stock Consideration issuable to a Stockholder being paid in such number of shares of Parent Common Stock as is equal to the quotient obtained by dividing (A) the dollar amount due to be paid in shares of Parent Common Stock by (B) the Parent Trading Price.

               (vii) for purposes of calculating the number of shares of Parent Common Stock issuable and the amount of cash payable to each Stockholder pursuant to this Section 1.6(b) , all shares of the Company Capital Stock held by each Stockholder shall be aggregated on a certificate-by-certificate basis. The aggregate number of shares of Parent Common Stock issuable and the amount of cash payable to each Stockholder for each share certificate shall be rounded down to the nearest whole number of shares of Parent Common Stock and nearest whole cent, respectively; provided, however , that the maximum number of shares of Parent Common Stock issuable to Stockholders and amount of cash payable pursuant to the First Merger shall not exceed (1) the Stock Consideration less the Vested Option Parent Shares and (2) the Cash Consideration, respectively; and

               (viii) notwithstanding anything set forth in this Section 1.6 , any Dissenting Shares will be treated as set forth in Section 1.8 hereof.

          (c)  Treatment of Company Options .

               (i)  Effect on Company Options . As soon as practicable following the Closing but effective as of the Effective Time, each Company Option shall be assumed by Parent as a Parent Option. Except as otherwise set forth in this Agreement, each Company Option so assumed by Parent pursuant to this Section 1. 6(c) shall continue to have, and be subject to, the same terms and conditions (including vesting terms) set forth in the Plan and the option agreements relating thereto, as in effect immediately prior to the Effective Time, except that (a) such assumed Company Option will be exercisable for that number of whole shares of Parent Common Stock equal to the product of the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time multiplied by the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, (b) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such assumed Company Option shall be equal to the quotient obtained by dividing the exercise price per share of Company Common Stock at which such assumed Company Option was exercisable immediately prior to the Closing Date by the Option Exchange Ratio, rounded up to the nearest whole cent, and (c) each such assumed Company Option shall include the right to exercise the option through a so-called “broker-assisted cashless exercise.” The assumption of Company Options pursuant to this Section 1.6(c) , with respect to any options intended to be “incentive stock options” (as defined in Section 422 of the Code) shall be effected in a manner consistent with Section 424(a) of the Code. Within fifteen (15) Business Days after the Effective Time, Parent will issue to each holder of an outstanding Company Option a document evidencing the foregoing assumption of such Company Options by Parent.

               (ii)  Necessary Actions . Prior to the Effective Time, and subject to the review and approval of Parent, the Company shall take all actions necessary to effect the transactions anticipated by this Section 1.6 under all Company Option agreements, all agreements related to Company Common Stock and any other plan or arrangement of the Company (whether written or oral, formal or informal), including delivering all required notices or obtaining any required consents.

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          (d)  Cancellation of Company Owned Stock . Each share of Company Capital Stock held by the Company or any direct or indirect subsidiary of the Company immediately prior to the Effective Time shall be cancelled and extinguished as of the Effective Time.

          (e)  Adjustments to Parent Common Stock . If, after the date of this Agreement and prior to the Effective Time, the outstanding shares of Parent Common Stock shall have been changed into or exchanged for a different number of shares or kind of shares and/or other securities of Parent or another corporation or entity by reason of any reclassification, split-up, stock dividend or stock combination or any arrangement, amalgamation or similar statutory procedure (an “ Adjustment Event ”), then the number of shares of Parent Common Stock to be delivered as consideration hereunder shall be appropriately adjusted so that each holder of Company Stock Certificates shall be entitled to receive at the Effective Time, in lieu of the number of shares of Parent Common Stock provided for in this Section 1.6 , such number and kind of shares and/or other securities as such holder would have received if the record date and payment date for such Adjustment Event had been immediately after the Effective Time.

          (f)  Withholding Taxes . The Company, and on its behalf Parent and the Surviving LLC, shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any Person such amounts as may be required to be deducted or withheld therefrom under any provision of federal, state, local or foreign tax law or under any applicable legal requirement. Any such amounts shall be withheld or deducted from the Cash Consideration payable to the Stockholder, provided that if such Cash Consideration is insufficient to satisfy the full amount to be withheld or deducted, the remainder shall be satisfied out of the Stock Consideration issuable to the Stockholder. The number of shares of Stock Consideration, if any, to be used to satisfy the remaining amount required to be so deducted or withheld shall be determined by dividing such remaining amount by the Parent Trading Price, rounded to the nearest whole share (with 0.5 of a share rounded up). To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.

          (g)  Capital Stock of Sub . Each share of Common Stock of Sub issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of Common Stock of the First-Step Corporation. Each stock certificate of Sub evidencing ownership of any such shares shall continue to evidence ownership of such shares of capital stock of the First-Step Corporation.

          (h)  Allocation of Shares of Company Capital Stock . With respect to each holder of shares of the Company Capital Stock that is a corporation, the Cash Consideration shall be received by such holder in exchange for its most recently acquired shares of Company Capital Stock (in inverse order of the acquisition thereof, from most recently acquired to least recently acquired) to the extent of the value of such shares as of the Effective Time. With respect to each holder of shares of the Company Capital Stock that is not a corporation, the Cash Consideration shall be received by such holder in exchange for its most recently acquired shares of Company Capital Stock other than Company Capital Stock acquired by such holder one year or less before the Closing Date (in inverse order of the acquisition thereof, from most recently acquired to least recently acquired) to the extent of the value of such shares as of the Effective Time. For the purposes hereof, a holder shall be considered to have acquired a share of Company Capital Stock on the date on which such holder acquired such share or, if earlier, on the date on which such holder acquired an interest in a predecessor of the Company in respect of which interest it received its share of Company Capital Stock in a carryover basis transaction; provided that, in the event a

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holder acquired a share of Company Capital Stock by gift or bequest, such share shall be considered to have been acquired by such holder on the date such share was acquired by the donor or decedent.

          (i)  Payment of Company Expenses . All Third Party Expenses of the Company that are not Excess Third Party Expenses shall be paid as follows:

               (i) The Expense Reimbursement Amount shall be paid at Closing (to the extent not previously paid) by Parent without regard to and exclusive of the Merger Consideration, in accordance with the instructions provided to Parent by the Company, as set forth on the Statement of Expenses;

               (ii) The Third Party Expense Adjustment Amount shall be paid at Closing by Parent and deducted from the Cash Consideration; and

               (iii) All Excess Third Party Expenses shall be paid out of the Escrow Fund in accordance with Section 7. 2(a)(v) of this Agreement.

     1.7 Effect of Second Merger on Capital Stock . At the effective time of the Second Merger, each share of capital stock of the First-Step Corporation issued and outstanding immediately prior to the effective time of the Second Merger shall be cancelled without any consideration or other payment therefor. At the effective time of the Second Merger, each membership interest in NewLLC issued and outstanding immediately prior to the effective time of the Second Merger shall remain issued and outstanding and shall not be effected by the Second Merger.

     1.8 Dissenting Shares .

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

          (b) Notwithstanding the provisions of Section 1. 8(a) hereof, if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal or dissenters’ rights under Delaware Law, as applicable, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares shall automatically be converted into and represent only the right to receive the consideration for Company Capital Stock, as applicable, set forth in Section 1.6 hereof, without interest thereon, and subject to the provisions of Section 7.4 hereof, upon surrender of the certificate representing such shares.

          (c) The Company shall give Parent (i) prompt notice of any written demand for appraisal received by the Company pursuant to the applicable provisions of Delaware Law, and (ii) the opportunity to participate in all negotiations and proceedings with respect to such demands. The Company shall not, except with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed) make any payment with respect to any such demands or offer to settle or settle any such demands. Notwithstanding the foregoing, to the extent that Parent, the

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Surviving LLC or the Company (i) makes any payment or payments in respect of any Dissenting Shares in excess of the consideration that otherwise would have been payable in respect of such shares in accordance with this Agreement or (ii) incurs any Losses, (including attorneys’ and consultants’ fees, costs and expenses and including any such fees, costs and expenses incurred in connection with investigating, defending against or settling any action or proceeding) in respect of any Dissenting Shares (excluding payments for such shares) ((i) and (ii) together, “ Dissenting Share Payments ”), Parent shall be entitled to recover under the terms of Article VII hereof the amount of such Dissenting Share Payments.

     1.9 Surrender of Certificates .

          (a)  Exchange Agent . Computershare Investor Services LLC shall serve as the exchange agent (the “ Exchange Agent ”) for the First Merger.

               (i)  Parent to Provide Consideration . On or prior to the Closing Date, Parent shall make available to the Exchange Agent for exchange in accordance with this Article I that portion of the Merger Consideration payable pursuant to Section 1.6 hereof in exchange for outstanding shares of Company Capital Stock; provided, however , that Parent shall (i) deposit into the Escrow Fund a number of shares equal to the Escrow Amount, (ii) deposit into the Escrow Fund the amount of cash equal to the Employee Severance Amount and (iii) deposit into the Expense Escrow Account, on behalf of the Stockholders, cash in an amount equal to the Expense Escrow Amount, to be held by the Expense Escrow Agent pursuant to Section 7.6 hereof, in each case out of the aggregate Merger Consideration otherwise payable to the Company Stockholders pursuant to Section 1.6 hereof; provided, however , that the Expense Escrow Amount will not include the Pro Rata Portion of the Expense Escrow Amount for any Stockholder who exercises its dissenters rights pursuant to Section 1.8 , in which case Parent shall set aside such Stockholder’s Pro Rata Portion along with the amount of cash that such Stockholder would otherwise be entitled to receive pursuant to Section 1.6 . For purposes of determining the Merger Consideration to be so deposited, Parent shall assume that no holder of shares of Company Capital Stock will perfect appraisal rights with respect to such shares. Any cash deposited with the Exchange Agent or the Escrow Agent shall not be used for any purpose other than as set forth in this Article I and Article VII and any cash deposited with the Escrow Agent shall be invested by the Escrow Agent as directed by Parent or the Surviving LLC in the case of the Employee Severance Amount or the Stockholder Representative in the case of the Expense Escrow Account in (A) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America with a remaining term at the time of acquisition thereof not in excess of 90 days, (B) money market accounts or certificates of deposit maturing within 90 days of the acquisition thereof and issued by a bank or trust company organized under the laws of the United States of America or a State thereof having a combined capital surplus in excess of $500,000,000 (a “ United States Bank ”), (C) commercial paper issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor’s Corporation and P1 by Moody’s Investors Service, Inc. with a remaining term at the time of acquisition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. Absent such direction from Parent or the Surviving LLC, any cash deposited with the Escrow Agent shall be invested in a money market account as set forth on Exhibit G hereto. The earnings and interest thereon shall be paid as Parent directs in the case of the Employee Severance Amount and as the Stockholder Representative directs in the case of the Expense Escrow Amount.

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          (b)  Exchange Procedures . As soon as practicable, but in no event more than three (3) Business Days, following the Closing Date, Parent or the Exchange Agent shall mail a letter of transmittal in Parent’s standard form to each Stockholder at the address set forth opposite each such Stockholder’s name on the Spreadsheet. After receipt of such letter of transmittal and any other documents that Parent or the Exchange Agent may require in order to effect the exchange (the “ Exchange Documents ”), the Stockholders will surrender the certificates representing their shares of Company Capital Stock (the “ Company Stock Certificates ”) to the Exchange Agent for cancellation together with duly completed and validly executed Exchange Documents. Upon surrender of a Company Stock Certificate for cancellation to the Exchange Agent, or such other agent or agents as may be appointed by Parent, together with such Exchange Documents, duly completed and validly executed in accordance with the instructions thereto, subject to the terms of Section 1. 9(d) hereof, the holder of such Company Stock Certificate shall be entitled to receive from the Exchange Agent in exchange therefor, a certificate representing the number of whole shares of Parent Common Stock (less the Pro Rata Portion of the number of shares to be deposited in the Escrow Fund pursuant to Section 1. 9(a)(i) hereof and Article VII hereof) and the cash payment to which such holder is entitled pursuant to Section 1.6 hereof (less the Pro Rata Portions of the Employee Severance Amount and the Expense Escrow Amount to be deposited in the Expense Escrow Account pursuant to Section 1. 9(a)(i) hereof and Article VII hereof, and the Company Stock Certificate so surrendered shall be cancelled. Until so surrendered, each Company Stock Certificate outstanding after the Effective Time will be deemed, for all corporate purposes thereafter, to evidence only the right to receive the number of full shares of Parent Common Stock and cash into which such shares of Company Capital Stock shall have been so converted. No portion of the Merger Consideration will be paid to the holder of any unsurrendered Company Stock Certificate with respect to shares of Company Capital Stock formerly represented thereby until the holder of record of such Company Stock Certificate shall surrender such Company Stock Certificate and the Exchange Documents pursuant hereto.

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

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

          (e)  No Liability . Notwithstanding anything to the contrary in this Section 1.9 , neither the Exchange Agent, the Surviving LLC, nor any party hereto shall be liable to a holder of shares

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of Company Capital Stock for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law.

          (f)  Exchange Agent to Return Undistributed Consideration . At any time following the six (6) month anniversary of the Closing Date, Parent shall be entitled to require the Exchange Agent to deliver to Parent or its designated successor or assign all cash amounts and shares of Parent Common Stock that have been deposited with the Exchange Agent pursuant to this Agreement, and any and all interest thereon or other income or proceeds thereof, not disbursed to the holders of Company Stock Certificates pursuant to this Agreement, and thereafter the holders of Company Stock Certificates shall be entitled to look only to Parent as general creditors thereof with respect to any and all cash amounts and shares of Parent Common Stock that may be payable or issuable to such holders of Company Stock Certificates and duly executed letters of transmittal and related documents (if any) in the manner set forth in this Agreement. No interest shall be payable for the cash amounts delivered to Parent pursuant to the provisions of this Section 1. 9(f) and which are subsequently delivered to the holders of Company Stock Certificates.

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

     1.11 Lost, Stolen or Destroyed Certificates . In the event any Company Stock Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed certificates, upon the making of an affidavit of that fact by the holder thereof, such amount, if any, as may be required pursuant to Section 1.6 hereof; provided, however , that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the Stockholder who is the owner of such lost, stolen or destroyed certificates to either (i) deliver a bond in such amount as it may direct or (ii) provide an indemnification agreement in form and substance acceptable to Parent, against any claim that may be made against Parent or the Exchange Agent with respect to the certificates alleged to have been lost, stolen or destroyed.

     1.12 Tax Consequences . Parent, Sub, NewLLC and Company (i) intend that the Mergers shall constitute a reorganization within the meaning of Section 368(a)(1)(A) of the Code, (ii) shall treat the First Merger and the Second Merger as integrated steps in a single transaction as contemplated by this Agreement, (iii) shall report the Mergers (if such Person has tax reporting obligations in respect thereof) as a single statutory merger of the Company with and into Parent qualifying as a reorganization within the meaning of Section 368(a)(1)(A) of the Code for federal income tax purposes, and (iv) by executing this Agreement, adopt a plan of tax-free reorganization within the meaning of Treasury Regulations Sections 1.368 2(g) and 1.368 3. However, no party hereto makes any representations or warranties regarding the tax treatment of the First Merger or the Second Merger, or any of the tax consequences relating to the First Merger or the Second Merger, this Agreement, or any of the other transactions or agreements contemplated hereby. Each party hereto acknowledges that it is relying solely on its own tax advisors in

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connection with the First Merger and the Second Merger, this Agreement and the other transactions and agreements contemplated hereby.

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

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     Subject to such exceptions as are specifically disclosed in the disclosure schedule dated as of the date hereof (each of which disclosures, in order to be effective, shall clearly reference the appropriate section and, if applicable, subsection of this Article II to which it relates and each of which disclosures shall be deemed to be incorporated by reference into the representations and warranties made in this Article II; provided, however, that any information disclosed under any section of the disclosure schedule shall be deemed disclosed and incorporated into any other section of the disclosure schedule where it is reasonably apparent that such disclosure, without reference to extrinsic documentation, is relevant to such other section) delivered by the Company to Parent concurrently with the execution of this Agreement (the “ Disclosure Schedule ”) the Company hereby represents and warrants to Parent, Sub and NewLLC on the date hereof and as of the Effective Time, as follows:

     2.1 Organization of the Company .

          (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has the corporate power to own its properties and to carry on its business as currently conducted. The Company is duly qualified or licensed to do business and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (whether owned, leased or licensed) or the nature of its business make such qualifications necessary, except where the failure to so qualify would not be material to the Company and its Subsidiaries, taken as a whole. The Company has delivered a true and correct copy of its Certificate of Incorporation, as amended to date (the “ Certificate of Incorporation ”) and bylaws, as amended to date, each in full force and effect on the date hereof (collectively, the “ Charter Documents ”), to Parent. The Board of Directors of the Company has not approved or proposed any amendment to any of the Charter Documents.

          (b)  Section 2. 1(b) of the Disclosure Schedule lists the directors and officers of the Company as of the date hereof, separately noting which of such directors and officers has any rights to indemnification from the Company and the scope and duration of such rights.

          (c)  Section 2. 1(c) of the Disclosure Schedule lists every state or foreign jurisdiction in which the Company has Employees or facilities.

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     2.2 Company Capital Structure

          (a) The authorized capital stock of the Company consists of 75,000,000 shares of Common Stock, of which 13,022,538 are issued and outstanding, 17,200,000 shares of Series A Convertible Preferred Stock, all of which are issued and outstanding, 4,480,000 shares of Series B Convertible Preferred Stock, all of which are issued and outstanding, 1,288,660 shares of Series C Convertible Preferred Stock, all of which are issued and outstanding and 1,882,353 shares of Series D Convertible Junior Preferred Stock, 1,853,388 of which are issued and outstanding. The Company Series A Preferred Stock, the Company Series B Preferred Stock, the Company Series C Preferred Stock and the Company Series D Preferred Stock are convertible on a one-share for one-share basis into Company Common Stock. As of the date hereof, the capitalization of the Company is as set forth in Section 2. 2(a)(i) of the Disclosure Schedule. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2. 2(a)(i) of the Disclosure Schedule which further sets forth each such Person’s (a) address, (b) the number of shares of Company Capital Stock held by such Person (including whether such shares are Company Common Stock, Company Series A Preferred Stock, the Company Series B Preferred Stock, the Company Series C Preferred Stock or the Company Series D Preferred Stock), (c) the respective certificate number(s) representing such shares, (d) the liquidation preference and conversion ratio applicable to each share of Company Preferred Stock, and (e) the date of acquisition of such shares. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents, or any agreement to which the Company is a party or by which it is bound, except as set forth in Section 2. 2(a)(ii) of the Disclosure Schedule. All outstanding shares of Company Capital Stock and Company Options have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, laws, rules, or regulations, including federal and state securities laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder of the Company) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. No Stockholder has exercised any right of redemption, if any, provided in the Certificate of Incorporation with respect to shares of the Company Preferred Stock, and the Company has not received notice that any Stockholder intends to exercise such rights. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. No shares of Company Capital Stock are unvested. For purposes of this Agreement, a share of Company Capital Stock shall be deemed “unvested” if such share is not vested or is subject to a risk of forfeiture or other condition under any applicable stock restriction agreement or other agreement with the Company. The Company has no other capital stock authorized, issued or outstanding.

          (b) Except for the Plan, neither the Company nor any of its Subsidiaries has ever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any person. The Company has reserved 4,000,000 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company upon the issuance of stock or the exercise of options granted under the Plan, of which (i) 3,566,000 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options granted under the Plan, (ii) 62,687 shares have been issued upon the exercise of options granted under the Plan and remain outstanding as of the date hereof and (iii) 371,313 shares remain available for future grant. As of the date hereof, no shares of Company Common Stock are issuable upon the exercise of outstanding Company Options that have not been issued under the Plan. Section 2. 2(b) of the Disclosure Schedule sets forth for each outstanding

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Company Option the name of the holder of such option, the type of entity of such holder, and any ultimate parent entity of such holder, if not an individual, the domicile address of such holder, the number of shares of Company Capital Stock issuable upon the exercise of such option, the exercise price of such option, the date of grant of such option, the vesting schedule for such option, including the extent vested to date and whether the vesting of such option is subject to acceleration as a result of the transactions contemplated by this Agreement or any other events (including a complete description of any such acceleration provisions), whether such option was issued under the Plan and whether such option is a nonstatutory option or intended to qualify as an incentive stock option as defined in Section 422 of the Code. The terms of the Plan and the applicable agreements for each Company Option permit the assumption or substitution of options to purchase Parent Common Stock as provided in this Agreement, without the consent or approval of the holders of such securities, the Stockholders or otherwise and without any acceleration of the exercise schedules or vesting provisions in effect for such Company Options. True and complete copies of all agreements and instruments relating to or issued under the Plan have been provided to Parent and such agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments from the forms thereof provided to Parent.

          (c) Except for the Company Preferred Stock and Company Options, there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Company or any of its Subsidiaries is a party or by which the Company is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the equity of the Company or any of its Subsidiaries (whether payable in equity, cash or otherwise). Except as contemplated hereby, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company or any of its Subsidiaries. Except as set forth in Section 2. 2(c) of the Disclosure Schedule, there are no agreements to which the Company or any of its Subsidiaries is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. As a result of the Mergers, Parent will be the sole record and beneficial holder of all issued and outstanding Company Capital Stock and all rights to acquire or receive any shares of Company Capital Stock, whether or not such shares of Company Capital Stock are outstanding.

          (d)  Section 2. 2(d) of the Disclosure Schedule sets forth the outstanding principal, accrued interest and applicable rate of interest of all outstanding loans from the Company to any Stockholder.

          (e) The allocation of the Merger Consideration set forth in Section 1. 6(b) hereof is consistent with the certificate of incorporation of the Company as amended as of immediately prior to the Effective Time.

          (f) The information contained in Section 2. 2(a)(i) of the Disclosure Schedule will be complete and correct as of the Closing Date.

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     2.3 Subsidiaries .

          (a)  Section 2. 3(a) of the Disclosure Schedule lists each entity in which the Company owns any shares of capital stock or any interest in, or controls, directly or indirectly, any other corporation, limited liability company, partnership, association, joint venture or other business entity.

          (b)  Section 2. 3(b) of the Disclosure Schedule lists each corporation, limited liability company, partnership, association, joint venture or other business entity of which the Company owns or has owned, directly or indirectly, more than 50% of the stock or other equity interest entitled to vote on the election of the members of the board of directors or similar governing body (each, a “ Subsidiary ”).

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

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

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

          (f)  Section 2. 3(f) of the Disclosure Schedule lists the directors and officers of each Subsidiary as of the date of this Agreement.

          (g) Except as set forth in Section 2. 3(g) of the Disclosure Schedule, no Subsidiary has conducted its business under any other name.

          (h) All of the outstanding shares of capital stock of each Subsidiary are owned of record and beneficially by the Company. All outstanding shares of stock of each Subsidiary are duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the charter documents or bylaws of such Subsidiary, or any agreement to which such Subsidiary is a party or by which it is bound, and have been issued in compliance with all applicable legal requirements. There are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which any Subsidiary is a party or by which any Subsidiary is bound obligating the Subsidiary to issue, deliver, sell, repurchase or redeem, or cause to be issued, sold, repurchased or redeemed, any shares of the capital stock of such Subsidiary or obligating such Subsidiary to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to any of the Subsidiaries. Neither the Company nor any Subsidiary has agreed or is obligated to make any future investment in or capital contribution to any Person, other than agreements between the Company and any Subsidiary.

     2.4 Authority . The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and to consummate the transactions

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contemplated hereby and thereby. The execution and delivery by the Company of this Agreement and any Related Agreements to which the Company is a party and the consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and no further action is required on the part of the Company to authorize the Agreement and any Related Agreements to which it is a party and the transactions contemplated hereby and thereby, subject only to the approval of this Agreement and the transactions contemplated hereby by the Stockholders. The vote required to approve this Agreement and the transactions contemplated hereby by the Stockholders is set forth in Section 2.4 of the Disclosure Schedule. This Agreement and the transactions contemplated hereby have been unanimously approved by the Board of Directors of the Company. This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and by general principles of equity.

     2.5 No Conflict . The execution and delivery by the Company of this Agreement and any Related Agreement to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or both) or give rise to a right of first refusal, termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (any such event, a “ Conflict ”) (i) any provision of the Charter Documents or the organizational documents of any of its Subsidiaries, as amended, (ii) assuming that all consents, approvals and other authorizations described in Section 2.5 of the Disclosure Schedule have been obtained and that all filings and other actions described in Section 2.5 of the Disclosure Schedule have been made or taken, any material mortgage, indenture, lease (including, without limitation, all Lease Agreements), contract, covenant, plan, insurance policy or other agreement, instrument or commitment, permit, concession, franchise or license (each a “ Contract ” and collectively the “ Contracts ”) to which the Company is a party or by which any of its properties or assets (whether tangible or intangible) are bound, or (iii) any material judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of their respective properties or assets (whether tangible or intangible), except with respect to clauses (ii) and (iii) for any such Conflicts that would not individually or in the aggregate prevent or materially delay consummation of the First Merger or Second Merger or otherwise prevent or materially delay the Company from performing its obligations under this Agreement or that would not, individually or in the aggregate, constitute a Company Material Adverse Effect. Section 2.5 of the Disclosure Schedule sets forth all necessary notices, consents, waivers and approvals as are required under any Contracts in connection with the First Merger or Second Merger, or for any such Contract to remain in full force and effect without limitation, modification or alteration after the Effective Time and after the effective time of the Second Merger so as to preserve all rights of, and benefits to, the Company and its Subsidiaries under such Contracts from and after the Effective Time. The terms and conditions of the Contracts do not require the payment of any additional amounts or consideration as a result of the consummation of the Mergers, other than ongoing fees, royalties or payments which the Company or any of its Subsidiaries, as the case may be, would otherwise be required to pay pursuant to the terms of such Contracts had the transactions contemplated by this Agreement not occurred.

     2.6 Consents . Except as set forth in Section 2.6 of the Disclosure Schedule, no consent, notice, waiver, approval, order or authorization of, or registration, declaration or filing with any court,

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tribunal, administrative agency or commission or other federal, state, county, local or other foreign governmental authority, instrumentality, agency or commission, or regional or international organization (each, a “ Governmental Entity ”) or any third party, including a party to any agreement with the Company or any of its Subsidiaries (so as not to trigger any Conflict), is required by, or with respect to, the Company or any of its Subsidiaries in connection with the execution and delivery by the Company of this Agreement and any Related Agreement to which the Company or any of its Subsidiaries is a party or the consummation of the transactions contemplated hereby and thereby, except for (i) such consents, notices, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable securities laws, (ii) the filing of the Notification and Report Forms with the United States Federal Trade Commission (“ FTC ”) and the Antitrust Division of the United States Department of Justice (“ DOJ ”) required by the HSR Act and the expiration or termination of the applicable waiting period under the HSR Act and such consents, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be required under U.S. or foreign laws or regulations applicable to mergers or acquisitions involving foreign parties, (iv) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (v) the filing of a certificate of merger with respect to the Second Merger with the Secretary of State of the State of Delaware and (vi) the adoption of this Agreement and approval of the transactions contemplated by this Agreement by the Stockholders.

     2.7 Company Financial Statements . Section 2.7 of the Disclosure Schedule sets forth the Company’s (i) audited consolidated balance sheet as of January 31, 2007, and the related consolidated statements of income, cash flow and stockholders’ equity for the twelve (12) month period then ended (the “ Year-End Financials ”), (ii) the unaudited consolidated balance sheet as of October 31, 2007, and the related unaudited consolidated statements of income, cash flow and stockholders’ equity for the nine (9) month period then ended, (iii) the unaudited consolidated balance sheet as of January 31, 2008 (the “ Current Balance Sheet Date ”), and the related unaudited consolidated statements of income, cash flow and stockholders’ equity for the twelve (12) month period then ended, and (iv) the unaudited consolidated balance sheet as of March 31, 2008, and the related unaudited consolidated statements of income, cash flow and stockholders’ equity for the two (2) month period then ended ((ii), (iii) and (iv), the “ Interim Financials ”). The Year-End Financials and the Interim Financials (collectively referred as the “ Financials ”) are true and correct in all material respects and have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and consistent with each other (except that the Interim Financials do not contain footnotes and other presentation items that may be required by GAAP). The Financials present fairly the Company’s consolidated financial condition, operating results and cash flows as of the dates and during the periods indicated therein, subject in the case of the Interim Financials to normal year-end adjustments, which are not material in amount or significance in any individual case or in the aggregate. The Company’s unaudited consolidated balance sheet as of the Current Balance Sheet Date is referred to hereinafter as the “ Current Balance Sheet .” The Company has not had any disagreement (as such term is defined in Item 304 of Regulation S-K promulgated under the Securities Act) with any of its auditors regarding accounting matters or policies during any of its past three full fiscal years or during the current fiscal year-to-date. The books and records of the Company and each Subsidiary have been, and are being maintained in all material respects in accordance with applicable legal and accounting requirements and the Financials are consistent with such books and records. Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract relating to any transaction or relationship between or among the Company or any of its Subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or

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limited purpose Person on the other hand, or any “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K of the SEC). As of the Closing Date, the Closing Financials (x) will be true and correct in all material respects and will have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated, and (y) will present fairly, in all material respects, the Company’s consolidated financial condition, operating results and cash flows as of the dates and during the periods indicated therein.

     2.8 Internal Controls . The Company and each of its Subsidiaries has established and maintains, adheres to and enforces a system of internal accounting controls which management of the Company believes, without having conducted an evaluation of such controls, are effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP (including the Financials), including policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect, in all material respects, the transactions and dispositions of the assets of the Company and its Subsidiaries, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with appropriate authorizations of management and the Board of Directors of the Company and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition use or disposition of the assets of the Company and its Subsidiaries. To the Company’s Knowledge and except as set forth on Section 2.8 of the Disclosure Schedule, none of the Company, any of its Subsidiaries, any Employee thereof, or the Company’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness since February 1, 2008 in the system of internal accounting controls utilized by the Company and its Subsidiaries, (ii) any fraud or other wrongdoing that involves the Company’s management or other Employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company and its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.

     2.9 No Undisclosed Liabilities . Neither the Company nor any of its Subsidiaries has any liability, indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of any type, whether accrued, absolute, contingent, matured, unmatured or other (whether or not required to be reflected in financial statements in accordance with GAAP) in excess of $50,000 individually or $100,000 in the aggregate, except for those which (i) have been reflected in the unaudited consolidated balance sheet of the Company as of the Current Balance Sheet Date, (ii) have arisen in the ordinary course of business consistent with past practices since the Current Balance Sheet Date, (iii) are Third Party Expenses, or (iv) are liabilities or obligations incurred in connection with the transactions contemplated hereby.

     2.10 No Changes . From April 10, 2008 through the date hereof, (a) the business of the Company and each of its Subsidiaries has been conducted in the ordinary course of business consistent with past practice; (b) there has not been any event, change, development or set of circumstances that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; and (c) except as set forth on Section 2. 10(c) of the Disclosure Schedule, there has not been any action or event, nor any authorization, commitment or agreement by the Company or any of its Subsidiaries with respect to any action or event, that if taken or if it occurred after the date hereof would be prohibited by Section 4.1 hereof.

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     2.11 Accounts Receivable .

          (a) The Company has made available to Parent a list of all accounts receivable of the Company and its Subsidiaries as of the Current Balance Sheet Date, together with an aging schedule indicating a range of days elapsed since invoice.

          (b) All of the accounts receivable of the Company and its Subsidiaries arose in the ordinary course of business, are carried at values determined in accordance with GAAP consistently applied to the Company’s Knowledge, are not subject to any valid set-off or counterclaim, do not represent obligations for goods sold on consignment, on approval or on a sale-or-return basis or subject to any other repurchase or return arrangement. Except for Silicon Valley Bank, no person has any Lien on any accounts receivable of the Company and its Subsidiaries and no request or agreement for deduction or discount has been made with respect to any accounts receivable of the Company and its Subsidiaries, other than in the ordinary course of business consistent with past practices.

     2.12 Tax Matters .

          (a)  Definition of Taxes . 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 as well as public imposts, fees and social security charges (including health, unemployment, workers’ compensation and pension insurance), together with all interest, penalties and additions imposed with respect to such amounts, (ii) any liability for the payment of any amounts of the type described in clause (i) of this Section 2. 12(a) as a result of being 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. 12(a) as a result of any express or implied obligation to indemnify any other person or as a result of any obligation under any agreement or arrangement with any other person with respect to such amounts and including any liability for taxes of a predecessor or transferor or otherwise by operation of law.

          (b)  Tax Returns and Audits .

               (i) Except as set forth in Section 2. 12(b)(i) of the Disclosure Schedules, the Company and each of its Subsidiaries have (a) prepared and timely filed all required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports, including attachments and amendments thereto (“ Returns ”) relating to any and all Taxes concerning or attributable to the Company or any of its Subsidiaries or their respective operations and such Returns are true and correct and have been completed in accordance with applicable law and (b) timely paid all Taxes they are required to pay.

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

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               (iii) Neither the Company nor any of its Subsidiaries is delinquent in the payment of any Tax, or has been delinquent in the payment of any material Tax, nor is there any Tax deficiency outstanding, assessed or proposed 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 Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company or any of its Subsidiaries has been proposed by any Tax authority to the Company or any of its Subsidiaries or any representative thereof. No claim has ever been made by an authority in a jurisdiction where the Company or any of its Subsidiaries does not file Returns that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.

               (v) Neither the Company nor any of its Subsidiaries has any liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has incurred any liability for Taxes since the Current Balance Sheet Date other than in the ordinary course of business. The Company and each of its Subsidiaries have identified all uncertain tax positions contained in all Returns filed by the Company or its Subsidiaries and, except as set forth in Section 2. 12(b)(v) of the Disclosure Schedule, have established adequate reserves and made any appropriate disclosures in the Financials in accordance with the requirements of Financial Interpretation No. 48 of FASB Statement No. 109.

               (vi) The Company has made available to Parent or its legal counsel, copies of all Returns for the Company and its Subsidiaries filed for all periods since inception.

               (vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. There is no basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company or any of its Subsidiaries.

               (viii) 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 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, (c) any liability for the Taxes of any Person, under Treasury Regulation §1.1502-6 (or any similar provision of state, local or foreign law, and including any arrangement for group or consortium relief or similar arrangements), as a transferee or successor, by contract or agreement, by operation of law or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.

               (ix)  Section 2. 12(b)(ix) of the Disclosure Schedule sets forth the following information with respect to the Company and each of its Subsidiaries: (1) the basis of the Company and each of its Subsidiaries in its assets; (2) the amount of any net operating loss, net capital loss, unused investment, foreign, or other Tax credit and the amount of any limitation upon any of the foregoing; and

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(3) the amount of any deferred gain or loss allocable to the Company and each of its Subsidiaries arising out of any deferred intercompany transaction as defined in Treas. Reg. § 1.1502-13 or any similar provision of applicable law.

               (x) Neither the Company nor any of its Subsidiaries has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.

               (xi) 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.

               (xii) Neither the Company nor any of its Subsidiaries has engaged in a “reportable transaction” as set forth in Treas. Reg. §1.6011-4(b), including any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a “listed transaction,” as set forth in Treasury Regulation Section 1.6011-4(b)(2).

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

               (xiv) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any deduction or loss from taxable income as a result of any (a) change in method of accounting under Section 481 of the Code prior to the Closing, (b) closing agreement under Section 7121 of the Code entered into prior to the Closing, (c) deferred intercompany gain or excess loss account as of the Closing under Treasury Regulations under Section 1502 of the Code (or in each of items (a), (b), or (c), under any similar provision of applicable law), (d) installment sale or open transaction disposition prior to the Closing or (e) receipt of a prepaid amount prior to Closing.

               (xv) The Company and its Subsidiaries are 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 ”) and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.

               (xvi) To the extent required, the Company and each of its Subsidiaries has properly reported and/or withheld and remitted on amounts deferred under any Company nonqualified deferred compensation plan subject to Section 409A of the Code, in good faith and pursuant to IRS Notices 2005-1, 2006-100 and 2007-89 for the years 2005, 2006 and 2007.

          (c)  Executive Compensation Tax . There is no contract, agreement, plan or arrangement to which the Company or any of its Subsidiaries is a party, including the provisions of this Agreement, covering any Employee of the Company or any of its Subsidiaries, which, individually or collectively, would give rise to the payment of any amount that would not be deductible pursuant to Sections 280G or 404 of the Code or that would give rise to an Employee penalty and Company reporting obligations and related penalties, if any, under Section 409A of the Code.

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     2.13 Restrictions on Business Activities . Except as set forth in Section 2.13 of the Disclosure Schedule there is no agreement (non-competition or otherwise), commitment, judgment, injunction, order or decree to which the Company or any of its Subsidiaries is a party or otherwise binding upon the Company or any of its Subsidiaries which has or may reasonably be expected to have the effect of prohibiting or impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property (tangible or intangible) by the Company or any of its Subsidiaries, the conduct of business by the Company or any of its Subsidiaries, or otherwise limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any person. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries has entered into any agreement under which the Company or any of its Subsidiaries is restricted from selling, licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the market.

     2.14 Title to Properties; Absence of Liens and Encumbrances; Condition of Equipment .

          (a) Neither the Company nor any of its Subsidiaries owns any real property, nor has the Company or any of its Subsidiaries ever owned any real property. Section 2. 14(a) of the Disclosure Schedule sets forth a complete and accurate list of all real property currently leased, subleased or licensed by or from the Company or any of its Subsidiaries or otherwise used or occupied by the Company or any of its Subsidiaries (the “ Leased Real Property ”), including the name of the lessor, licensor, sublessor, master lessor and/or lessee, the date and term of the lease, license, sublease or other occupancy right and each amendment thereto and, with respect to any current lease, license, sublease or other occupancy right, the square footage of the premises leased thereunder and the aggregate annual rental payable thereunder.

          (b) The Company has provided Parent true, correct and complete copies of all leases, lease guaranties, subleases, agreements for the leasing, use or occupancy of, or otherwise granting a right in or relating to the Leased Real Property, including all amendments, terminations and modifications thereof and all consents and waivers relating thereto (“ Lease Agreements ”); and there are no other Lease Agreements for real property affecting the Leased Real Property or to which Company or any of its Subsidiaries is bound, other than those identified in Section 2. 14(a) of the Disclosure Schedule. All such Lease Agreements are in full force and effect and valid and effective in accordance with their respective terms, and there is not, under any of such Lease Agreements, any existing default, no rentals past due, or event of default (or event which with notice or lapse of time, or both, could constitute a default). Neither the Company nor any of its Subsidiaries has received any notice of a default, alleged failure to perform, or any offset or counterclaim with respect to any such Lease Agreement, which has not been fully remedied and withdrawn. There are no other parties occupying, or with a right to occupy, the Leased Real Property, except as set forth in Section 2. 14(a) of the Disclosure Schedule. Neither the Company nor any of its Subsidiaries owe any brokerage commissions or finders fees with respect to any such Leased Real Property or would owe any such fees if any existing Lease Agreement were renewed pursuant to any renewal options contained in such Lease Agreements.

          (c) The Leased Real Property is sufficient and otherwise suitable for the conduct of the business as presently conducted.

          (d) The Company and its Subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of its material tangible properties and material

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assets, real, personal and mixed, used or held for use in its business, free and clear of any Liens, except (i) as reflected in the Current Balance Sheet, (ii) Liens for Taxes not yet due and payable, and (iii) such imperfections of title and encumbrances, if any, which do not detract from the value or interfere with the present use of the property subject thereto or affected thereby. Each Lease Agreement constitutes the entire agreement of the landlord and the tenant thereunder, and no term or condition thereof has been modified, amended or waived, except as described in Section 2.14(a) of the Disclosure Schedule and shown in the copies of the Lease Agreements that have previously been delivered by the Company to Parent. The Company and its Subsidiaries have not transferred or assigned any interest in any such Lease Agreement, nor has the Company or any of its Subsidiaries subleased or otherwise granted rights of use or occupancy of any of the premises described therein to any other Person.

          (e)  Section 2. 14(e) of the Disclosure Schedule lists, as of March 31, 2008, all material items of equipment (the “ Equipment ”) owned or leased by the Company or any of its Subsidiaries, and such Equipment is (i) adequate for the conduct of the business of the Company or any of its Subsidiaries as currently conducted and as currently contemplated to be conducted, and (ii) in good operating condition, regularly and properly maintained, subject to normal wear and tear.

     2.15 Intellectual Property .

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

               “ Intellectual Property ” shall mean any or all of the following (i) works of authorship including computer programs, source code, and executable code, whether embodied in software, firmware or otherwise, architecture, documentation, designs, files, records, and data, (ii) inventions (whether or not patentable), discoveries, improvements, and technology, (iii) proprietary and confidential information, trade secrets and know how, (iv) databases, data compilations and collections and technical data, (v) logos, trade names, trade dress, trademarks and service marks, (vi) domain names, web addresses and sites, (vii) tools, methods and processes, (viii) devices, prototypes, schematics, breadboards, netlists, maskworks, test methodologies, verilog files, emulation and simulation reports, test vectors and hardware development tools, and (ix) any and all instantiations of the foregoing in any form and embodied in any media.

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

               “ Company Intellectual Property ” shall mean any and all Intellectual Property and Intellectual Property Rights that are owned or purported to be owned by or exclusively licensed to the Company or any of its Subsidiaries and all such Company Intellectual Property are identified in Section 2. 15(a) of the Disclosure Schedule.

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

          (b)  Section 2. 15(b)(1) of the Disclosure Schedule (i) lists all Registered Intellectual Property owned or purported to be owned by, or filed in the name of, the Company or any of its Subsidiaries (the “ Company Registered Intellectual Property ”) and identifies which of such Company Registered Intellectual Property is material to the business of the Company or any of its subsidiaries, as presently conducted or currently contemplated by the Company to be conducted (the “ Material Company Registered Intellectual Property ”) and (ii) lists any proceedings or actions before any Governmental Entity (including the United States Patent and Trademark Office (the “ PTO ”) or equivalent authority anywhere in the world) in which any of the Company Registered Intellectual Property is involved, including without limitation any proceedings or actions in which claims are raised relating to the validity, enforceability, scope, ownership or infringement of any of the Company Registered Intellectual Property. Section 2. 15(b)(2) of the Disclosure Schedule lists all products, technologies and services (including products, technologies and services currently under development) owned or purported to be owned, exclusively licensed or offered by the Company or any of its Subsidiaries.

          (c) Except as set forth on Section 2. 15(c)(1) of the Disclosure Schedule, each item of Company Registered Intellectual Property is valid and subsisting, and all necessary registration, maintenance and renewal fees in connection with such Company Registered Intellectual Property have been paid and all necessary documents 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 maintaining such Registered Intellectual Property. Except as set forth in Section 2. 15(c)(2) of the Disclosure Schedule, there are no actions that must be taken by the Company within 60 days of the Closing Date, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of maintaining, perfecting or preserving or renewing any Company Registered Intellectual Property. In each case in which the Company or any of its Subsidiaries has acquired any Intellectual Property Rights from any person, the Company and its Subsidiaries have obtained a valid and enforceable assignment sufficient to irrevocably transfer all rights in such Intellectual Property and the associated Intellectual Property Rights (including the right to seek past and future damages with respect thereto) to the Company or any of its Subsidiaries and, except as set forth on Section 2. 15(c)(3) of the Disclosure Schedule, to the maximum extent provided for by, and in accordance with, applicable laws and regulations, the Company and its Subsidiaries have recorded each such assignment with the relevant governmental authorities, including the PTO, the U.S. Copyright Office, or their respective equivalents in any relevant foreign jurisdiction, as the case may be.

          (d) All Company Intellectual Property will be fully transferable, alienable and/or licensable by Surviving Corporation and/or Parent without restriction and without payment of any kind to any third party.

          (e) Each item of Company Intellectual Property, including all Company Registered Intellectual Property listed in Section 2. 15(b) of the Disclosure Schedule, and all Intellectual Property licensed to the Company or any of its Subsidiaries, is free and clear of any Liens, other than those set

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forth on Section 2.15(e) of the Disclosure Schedule. The Company is the exclusive owner or exclusive licensee of all Company Intellectual Property.

          (f) To the extent that any Intellectual Property that is material to the business of the Company has been developed or created independently or jointly by any person other than the Company or any of its Subsidiaries for which the Company or any of its Subsidiaries has, directly or indirectly, provided consideration for such development or creation, the Company or its Subsidiaries have a written agreement with such person with respect thereto, and the Company or its Subsidiaries thereby have obtained ownership of, and is the exclusive owner of, all such Intellectual Property therein and associated Intellectual Property Rights by operation of law or by valid assignment, and has required the waiver of all moral rights, except as set forth in Section 2. 15(f) of the Disclosure Schedule.

          (g) Neither the Company nor any of its Subsidiaries has (i) transferred ownership of, or granted any exclusive license of or exclusive right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any Company Intellectual Property, to any other person or (ii), except as set forth on Section 2. 15(g) of the Disclosure Schedule, permitted the Company’s or any Subsidiary’s rights in such Company Intellectual Property to enter into the public domain.

          (h) Other than (i) the Open Source Software listed in Section 2. 15(u) of the Disclosure Schedule, (ii) the licenses set forth on Section 2. 15(i)(1) of the Disclosure Schedule, or (iii) as otherwise set forth in Section 2. 15(h) of the Disclosure Schedule, all Intellectual Property that is used in or necessary to the conduct of Company’s or any Subsidiary’s business as presently conducted or currently contemplated by the Company to be conducted by the Company or any of its Subsidiaries was written and created solely by either (i) employees of the Company or any of its Subsidiaries acting within the scope of their employment who have validly and irrevocably assigned all of their rights, including all Intellectual Property Rights therein, to the Company or any of its Subsidiaries or (ii) by third parties who have validly and irrevocably assigned all of their rights, including all Intellectual Property Rights therein, to the Company or any of its Subsidiaries, and no third party owns or has any rights to any of the Company Intellectual Property.

          (i) Other than (i) the Open Source Software listed in Section 2. 15(u) of the Disclosure Schedule and (ii) the licenses set forth on Section 2. 15(i)(1) of the Disclosure Schedule, the Company Intellectual Property constitutes all of the Intellectual Property and Intellectual Property Rights that are used in, necessary to or otherwise would be infringed by the conduct of the business of the Company or any of its Subsidiaries as it currently is conducted or currently planned by the Company to be conducted, including the design, development, manufacture, use, import, marketing, licensing out and sale of any product, technology or service (including without limitation products, technology or services currently under development). Other than the Open Source Software listed in Section 2.15(u) , Section 2. 15(i)(2) of the Disclosure Schedule sets forth all third party software (including without limitation hardware embedded software) and any other third party Intellectual Property that is used in or necessary to the conduct of the business of the Company or any of its Subsidiaries as it currently is conducted or currently planned by the Company to be conducted, including the design, development, manufacture, use, import, marketing, licensing out and sale of any product, technology or service. Section 2. 15(i)(2) of the Disclosure Schedule also specifies in general categories how such Intellectual Property is used by the Company or any of its Subsidiaries, under what licenses, and whether there is or has been any failure to comply with the terms of these licenses (including without limitation any failure to make timely payments).

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          (j) Other than (i) the Open Source Software listed in Section 2. 15(u) of the Disclosure Schedule, (ii) the licenses set forth on Section 2. 15(i)(1) of the Disclosure Schedule and (iii) nonexclusive licenses and related agreements with respect thereto of the Company’s or any Subsidiary’s products to end users pursuant to written agreements that have been entered into in the ordinary course of business that do not materially differ in substance from the Company’s or any Subsidiary’s standard form(s) of end user license and related agreements including attachments (which is or are included in Section 2. 15(j) of the Disclosure Schedule), Section 2. 15(j) of the Disclosure Schedule lists all material contracts, licenses and agreements to which the Company is a party with respect to any Company Intellectual Property or other Intellectual Property.

          (k) Except as set forth on Section 2. 15(k) of the Disclosure Schedule, no third party that has licensed Intellectual Property or Intellectual Property Rights to the Company or any of its Subsidiaries has ownership rights or license rights to improvements or derivative works made by the Company or any of its Subsidiaries in such Intellectual Property that has been licensed to the Company or any of its Subsidiaries.

          (l) Other than (i) the Open Source Software listed in Section 2. 15(u) of the Disclosure Schedule, and (ii) other non exclusive licenses and related agreements with respect thereto of the Company’s or any Subsidiary’s products to end users pursuant to written agreements that have been entered into in the ordinary course of business that do not materially differ in substance from the Company’s or any Subsidiary’s standard form(s) of end user license including attachments (which is or are included in Section 2. 15(l) of the Disclosure Schedule), Section 2. 15(l) of the Disclosure Schedule lists all contracts, licenses and agreements between the Company or any of its Subsidiaries and any other person wherein or whereby the Company or any of its Subsidiaries has agreed to, or assumed, any obligation or duty, that is not capped to a maximum amount of liability no greater than $100,000 or the amounts paid under such agreements, to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or any of its Subsidiaries or such other person of the Intellectual Property Rights of any person other than the Company or any of its Subsidiaries.

          (m) There are no contracts, licenses or agreements between the Company or any of its Subsidiaries and any other person with respect to Company Intellectual Property or other Intellectual Property used in and/or necessary to the conduct of the business as it is currently conducted or currently planned by the Company to be conducted under which there is any ongoing or, to the Knowledge of the Company, threatened action, claim or proceeding or, to the Knowledge of Company, other dispute regarding the scope of such agreement, or performance under such agreement including with respect to any payments to be made or received by the Company or any of its Subsidiaries thereunder.

          (n) The operation of the business of the Company and its Subsidiaries as it is currently conducted, or is currently contemplated by the Company to be conducted, by the Company and its Subsidiaries, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture, licensing out and sale of any product, technology or service (including products, technology or services currently under development) of the Company or any of its Subsidiaries does not infringe or misappropriate, and will not infringe or misappropriate, when conducted by Parent and/or Surviving Corporation in substantially the same manner following the Closing, any Intellectual Property Rights of any person, violate any right of any person (including any right to privacy or publicity), or constitute unfair competition or trade practices under the laws of any jurisdiction, and, except as set forth

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in Section 2.15(n) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has received notice from any person claiming that such operation or any act, any product, technology or service (including products, technology or services currently under development) or Intellectual Property of the Company or any of its Subsidiaries infringes or misappropriates any Intellectual Property Rights of any person or constitutes unfair competition or trade practices under the laws of any jurisdiction (nor does the Company have Knowledge of any basis therefor).

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

          (p) To the Knowledge of the Company, except as set forth on Section 2. 15(p) of the Disclosure Schedule, no Person is infringing or misappropriating any Company Intellectual Property.

          (q) The Company and its Subsidiaries have taken all reasonable steps that are required or necessary to protect the Company’s and any Subsidiary’s rights in confidential information and trade secrets of the Company and its Subsidiaries or provided by any other person to the Company or any of its Subsidiaries. Without limiting the foregoing, (i) the Company and its Subsidiaries have, and enforce, a policy requiring each current and former employee to execute proprietary information, confidentiality and assignment agreements substantially in the Company’s standard form for employees (a copy of which is attached to Section 2. 15(q)(i) of the Disclosure Schedule (the “ Employee Proprietary Information Agreement ”)), (ii) the Company and its Subsidiaries have, and enforce, a policy requiring each current and former consultant or contractor to execute a consulting agreement containing proprietary information, confidentiality and assignment provisions substantially in the Company’s standard form for consultants or contractors (a copy of which is attached to Section 2. 15(q)(ii) of the Disclosure Schedule (the “ Consultant Proprietary Information Agreement ”)) and (iii) except as set forth on Section 2. 15(q)(iii) of the Disclosure Schedule, all current and former employees, consultants and contractors of the Company or any of its Subsidiaries have executed an Employee Proprietary Information Agreement or a Consultant Proprietary Information Agreement, as appropriate.

          (r) Except as set forth on Section 2. 15(r) of the Disclosure Schedule, no Company Intellectual Property, Intellectual Property Rights or service of the Company or any of its Subsidiaries is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or any of its Subsidiaries or may affect the validity, use or enforceability of such Company Intellectual Property.

          (s) To the Knowledge of the Company, no (i) product, technology, service or publication of the Company or any of its Subsidiaries, (ii) material published or distributed by the Company or any of its Subsidiaries, or (iii) conduct or statement of the Company or any of its

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Subsidiaries constitutes a defamatory statement or material, false advertising or otherwise violates any law or regulation.

          (t)

               (i) (a) No government funding, facilities or resources of a university, college, other educational institution, research center or Governmental Entity or funding from third parties (other than private investors, lenders, and other similar non-governmental funding sources in the ordinary course of business) was used in the development of the Company Intellectual Property and (b) no Governmental Entity, university, college, other educational institution or research center has any claim or right in or to the Company Intellectual Property.

               (ii) To the Company’s Knowledge, no current or former employee, consultant or independent contractor of the Company or any of its Subsidiaries who was involved in, or who contributed to, the creation or development of any Company Intellectual Property, has performed services for the government, a university, college or other educational institution, or a research center, during a period of time during which such employee, consultant or independent contractor was also performing services for the Company or any of its Subsidiaries.

          (u)  Section 2. 15(u) of the Disclosure Schedule lists all software that is distributed as “open source software” or under a similar licensing or distribution model (including but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License) (collectively, “ Open Source Software ”) that has been used, linked to and/or incorporated into any Company product or service in any way and describes the manner in which such Open Source Software was used and/or incorporated (such description shall include, without limitation, whether (and, if so, how) the Open Source Software was modified and/or distributed by the Company and whether (and if so, how) such Open Source Software was incorporated into and linked in any Company product or service). Neither the Company nor any Subsidiary has used and/or incorporated Open Source Software in any manner that would, as the business of the Company is currently conducted or currently contemplated by Company to be conducted, (i) require the disclosure or distribution in source code form of any Company Intellectual Property, (ii) require the licensing of any Company Intellectual Property for the purpose of making derivative works,