AGREEMENT AND PLAN OF REORGANIZATION

Exhibit 2.1

AGREEMENT AND PLAN OF REORGANIZATION

THIS AGREEMENT AND PLAN OF REORGANIZATION, dated as of September 4, 2009 (the “ Agreement ”), by and among Steel Vault Corporation, a Delaware corporation (the “ Company ”), VeriChip Corporation, a Delaware corporation (“ Acquiror ”) and VeriChip Acquisition Corp., a Delaware corporation (“ MergerCo ”).

RECITALS

WHEREAS, upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”), Acquiror and the Company will enter into a business combination transaction pursuant to which MergerCo will merge with and into the Company (the “ Merger ”) and whereby each share of common stock, par value $0.01 per share, of the Company (the “ Company Common Stock ”) issued and outstanding immediately prior to the Effective Time will be converted into the right to receive .5 shares of common stock, par value $0.01 per share of Acquiror, subject to adjustment as hereafter provided (the “ Acquiror Common Stock ”);

WHEREAS, MergerCo is a wholly-owned subsidiary of Acquiror and was formed solely for purposes of accomplishing the Merger;

WHEREAS, as of the date hereof, Scott R. Silverman, Chairman of the Board of Directors of the Company (the “ Company Board ”) and Chairman of the Board of Directors of Acquiror (the “ Acquiror Board ”) beneficially owns and/or controls, as calculated in accordance with Rule 13d-3(d)(1)(i) of the Exchange Act, approximately 55% of the issued and outstanding Company Common Stock and approximately 49% of the issued and outstanding Acquiror Common Stock;

WHEREAS, the Company Board has established a special committee composed of independent and disinterested members of the Company Board (the “ Company Special Committee ”) to review and evaluate the terms and conditions, and determine the advisability, of a possible business combination with Acquiror;

WHEREAS, the Company Special Committee has negotiated the terms and conditions of this Agreement on behalf of the Company and has (i) determined that the Merger is advisable, fair to, and in the best interests of, the Company and its stockholders, and (ii) recommended the approval of this Agreement by the Company Board;

WHEREAS, the Company Board has, based upon the recommendation of the Company Special Committee, (i) determined that the Merger is advisable, fair to, and in the best interests of, the Company and its stockholders, (ii) approved and adopted this Agreement and declared its advisability and approved the Merger and the other transactions contemplated by this Agreement, and (iii) recommended the approval and adoption of this Agreement by the stockholders of the Company;

WHEREAS, the Acquiror Board has established a special committee composed of independent and disinterested members of the Acquiror Board (the “ Acquiror Special Committee ”) to review and evaluate the terms and conditions, and determine the advisability, of a possible business combination with the Company;

WHEREAS, the Acquiror Special Committee has negotiated the terms and conditions of this Agreement on behalf of Acquiror and has (i) determined that the Merger is advisable, fair to, and in the best interests of, Acquiror and its stockholders, and (ii) recommended the approval of this Agreement by the Acquiror Board;

WHEREAS, the Acquiror Board has, based upon the recommendation of the Acquiror Special Committee, (i) determined that the Merger is advisable, fair to, and in the best interests of, Acquiror and its stockholders, (ii) approved and adopted this Agreement and declared its advisability and approved the Merger and the other transactions contemplated by this Agreement, and (iii) recommended that the stockholders approve the issuance of Acquiror Common Stock in connection with the Merger;

WHEREAS, for federal income tax purposes, the Merger is intended to qualify as a reorganization under the provisions of Section 368(a) of the United States Internal Revenue Code of 1986, as amended (the “ Code ”); and

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

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the parties agree as follows:

ARTICLE 1.

CERTAIN DEFINITIONS; INTERPRETATION

SECTION 1.1. Certain Definitions . The following terms are used in this Agreement with the meanings set forth below:

“Acquiror” has the meaning assigned in the preamble to this Agreement.

“Acquiror Acquisition Proposal” means an offer or proposal regarding any of the following (other than the transactions contemplated by this Agreement): (i) any merger, reorganization, consolidation, share exchange, recapitalization, business combination, liquidation, dissolution, or other similar transaction involving, or, an acquisition in any manner of, all or any significant portion of the assets or any significant equity interest of, the Acquiror or any of its Subsidiaries, in a single transaction or series of related transactions which could reasonably be expected to interfere with the completion of the Merger; or (ii) any tender offer or exchange offer for any outstanding shares of capital stock of the Acquiror or any of its Subsidiaries or the filing of a registration statement under the Securities Act in connection therewith.

“Acquiror Adverse Recommendation Change” has the meaning assigned in Section 5.5(b).

“Acquiror Benefit Plans” has the meaning assigned in Section 4.3(n)(1).

“Acquiror Board” has the meaning assigned in the Recitals to this Agreement.

“Acquiror Certificate” means the Certificate of Incorporation of the Acquiror, as amended.

“Acquiror Common Stock” has the meaning assigned in the Recitals of this Agreement.

“Acquiror Disclosure Schedule” has the meaning assigned in Section 4.1.

“Acquiror ERISA Affiliate” has the meaning assigned in Section 4.3(n)(6).

“Acquiror Financial Statements” has the meaning assigned in Section 4.3(g)(2).

“Acquiror License Agreements” has the meaning assigned in Section 4.3(p)(1).

“Acquiror Material Contracts” has the meaning assigned in Section 4.2(i)(1).

“Acquiror Preferred Stock” has the meaning assigned in Section 4.3(e).

“Acquiror Reports” has the meaning assigned in Section 4.3(k).

“Acquiror SEC Documents” has the meaning assigned in Section 4.3(g)(1).

“Acquiror Special Committee” has the meaning assigned in the Recitals of this Agreement.

“Acquiror Stock” has the meaning assigned in Section 4.3(e).

“Acquiror Stock Options” has the meaning assigned in Section 4.3(e).

“Acquiror Stockholders Meeting” has the meaning assigned in Section 5.5(a).

“Acquisition Proposal” has the meaning assigned in Section 5.3(b).

“Adverse Recommendation Change” has the meaning assigned in Section 5.3(d).

“Affiliate” means, with respect to any specified person, any other person, directly or indirectly controlling, controlled by or under common control with such specified person. For purposes of this definition, “control” when used in connection with any specified person means the power to direct the management or policies of such person, directly or indirectly, whether through the ownership of voting securities, by Contract or otherwise; and the terms “controlling” and “controlled” have correlative meanings to the foregoing.

“Agreement” means this Agreement, as amended or modified from time to time in accordance with Section 8.2.

“Business Day” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized by law to close in New York, New York.

“Certificate of Merger” has the meaning assigned in Section 2.2.

“Closing” has the meaning assigned in Section 2.2.

“Closing Date” has the meaning assigned in Section 2.2.

“Code” has the meaning assigned in the Recitals to this Agreement.

“Common Stock Exchange Ratio” has the meaning assigned in Section 3.1(c).

“Company” has the meaning assigned in the preamble to this Agreement.

“Company Affiliate” has the meaning assigned in Section 5.12(a).

“Company Benefit Plans” has the meaning assigned in Section 4.2(o)(1).

“Company Board” has the meaning assigned in the Recitals to this Agreement.

“Company Bylaws” means the Second Amended and Restated By-laws of the Company.

“Company Certificate” means the Certificate of Incorporation of the Company, as amended.

“Company Common Stock” has the meaning assigned in the Recitals of this Agreement.

“Company Disclosure Schedule” has the meaning assigned in Section 4.1.

“Company ERISA Affiliate” has the meaning assigned in Section 4.2(o)(6).

“Company Financial Statements” has the meaning assigned in Section 4.2(g)(2).

“Company License Agreements” has the meaning assigned in Section 4.2(q)(1).

“Company Material Contract” has the meaning assigned in Section 4.2(i)(1).

“Company Preferred Stock” has the meaning assigned in Section 4.2(e).

“Company Reports” has the meaning assigned in Section 4.2(j)(6).

“Company Restricted Stock” has the meaning assigned in Section 3.1(c).

“Company Restricted Stock Award” has the meaning assigned in Section 3.1(c).

“Company SEC Documents” has the meaning assigned in Section 4.2(g)(1).

“Company Special Committee” has the meaning assigned in the Recitals to this Agreement.

“Company Stock” means, collectively, the Company Common Stock and the Company Preferred Stock.

“Company Stockholders Meeting” has the meaning assigned in Section 5.4(a).

“Company Stock Option” has the meaning assigned in Section 3.3(a).

“Company Stock Plan” means the Company’s 1998 Incentive Stock Option Plan, as amended, the Company’s 1999 Employee Stock Purchase Plan, the Company’s 2001 Flexible Stock Plan, as amended, the Company’s 2009 Stock Incentive Plan.

“Company Warrant” has the meaning assigned in Section 3.3(b).

“Contract” means, with respect to any person, any agreement, indenture, undertaking, debt instrument, contract, contractual obligation, lease or other commitment to which such person or any of its Subsidiaries is a party or by which any of them is bound or to which any of their properties is subject.

“Converted Company Stock Warrant” has the meaning assigned in Section 3.3(b).

“Copyrights” has the meaning assigned in Section 4.2(q)(1).

“Costs” has the meaning assigned in Section 5.19(a).

“Current Policy” has the meaning assigned in Section 5.19(e).

“DGCL” has the meaning assigned in the Recitals of this Agreement.

“Effective Date” means the date on which the Effective Time occurs.

“Effective Time” has the meaning assigned in Section 2.2.

“Environmental Laws” means any federal, state, municipal or local law which regulates, governs, relates to or otherwise imposes liability or standards of conduct concerning discharges, emissions, releases or threatened releases of any pollutants, contaminants or hazardous or toxic wastes, substances or materials, whether as liquids, solids or gases, into ambient air, surface water, ground water, land or into the environment, or otherwise relating to noise, odors, mold and other fungi, petroleum, asbestos, lead based paint, employee health and safety, including occupational safety laws or which regulates, governs, relates to the manufacture, processing, generation, distribution, use, treatment, storage, disposal, cleanup, transport or handling of pollutants, contaminants, or hazardous or toxic wastes, substances or materials, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization Act of 1986, as amended, the Resource Conservation and Recovery Act of 1976, as amended, the Toxic Substances Control Act of 1976, as amended, the Federal Water Pollution Control Act Amendments of 1972, the Clean Water Act of 1977, as amended, any so-called “Superfund” or “Superlien” Law (including those already referenced in this definition) and any other law of any Governmental Authority having a similar subject matter.

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

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

“Exchange Agent” has the meaning assigned in Section 3.4(a).

“Exchange Fund” has the meaning assigned in Section 3.4(a).

“GAAP” means United States generally accepted accounting principles at the time in effect.

“Governmental Authority” means any court, administrative agency or commission, self-regulatory organization or other foreign, federal, state or local governmental authority or instrumentality.

“Hazardous Substances” means any material or substance which (i) constitutes a hazardous substance, toxic substance or pollutant (as such terms are defined by or pursuant to any Environmental Law) or (ii) is regulated or controlled as a hazardous substance, toxic substance, pollutant or other regulated or controlled material, substance or matter pursuant to any Environmental Law, or (iii) has been determined to have deleterious effects on human health.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“Indemnified Parties” has the meaning assigned in Section 5.19(a).

“Intellectual Property” has the meaning assigned in Section 4.2(q)(1).

“IRS” means the Internal Revenue Service.

“Joint Proxy Statement/Prospectus” has the meaning assigned in Section 5.6(a).

“Knowledge” means, (i) with respect to the Company, the actual knowledge after reasonable inquiry of Scott R. Silverman or William J. Caragol, and, (ii) with respect to Acquiror, the actual knowledge after reasonable inquiry of Scott R. Silverman or William J. Caragol.

“Liens” means any charge, mortgage, pledge, security interest, restriction, claim, lien, or encumbrance.

“Material Adverse Effect” means with respect to Acquiror, the Company, or the Surviving Corporation, respectively, any change, effect, event or occurrence that, individually or in the aggregate, has a material adverse effect on the financial position, results of operations, assets, properties, business, or prospects of Acquiror and its Subsidiaries, taken as a whole, the Company and its Subsidiaries, taken as a whole, or the Surviving Corporation and its subsidiaries, taken as a whole, as the case may be; provided that “Material Adverse Effect” shall not be deemed to include the effects of (i) any changes in GAAP that affect generally entities such as the Company or the Acquiror, (ii) general business or economic conditions or from general changes or developments affecting the industries in which the Company or the Acquiror operate in areas where the Company or the Acquiror does business directly or through its Subsidiaries, except to the extent that any such change has a disproportionate impact on the Company or its Subsidiaries or Acquiror or its Subsidiaries, (iii) financial, banking or securities markets in general (including any disruption thereof and any decline in the price of any security or any market index), (iv) any change in the trading price of the Company Common Stock or Acquiror Common Stock between the date hereof and the Effective Time, or (v) the announcement of this Agreement or the consummation of the transactions contemplated hereby, including compliance with the covenants set forth herein, or any action taken or omitted to be taken by (x) the Company at the written request or with the prior written consent of Acquiror or MergerCo or (y) Acquiror or MergerCo at the written request or with the prior written consent of the Company.

“Merger” has the meaning assigned in the Recitals of this Agreement.

“MergerCo” has the meaning assigned in the preamble to this Agreement.

“Merger Communication” has the meaning assigned in Section 8.13.

“Merger Consideration” has the meaning assigned in Section 3.1(c).

“NASDAQ” means the NASDAQ Stock Market, LLC.

“Patents” has the meaning assigned in Section 4.2(q)(1).

“Permitted Liens” means (a) statutory Liens for current Taxes or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate Proceedings, (b) Liens arising under workers’ compensation, unemployment insurance, social security, retirement and similar legislation, (c) other statutory liens securing payments not yet due including builder, mechanic, warehousemen, materialmen, contractor, landlord, workmen, repairmen, and carrier Liens, (d) purchase money Liens and Liens securing rental payments under capital lease arrangements entered into in the ordinary course of business or necessary to meet production or other requirements for the fulfillment of customer contracts or orders, and (e) mortgages, or deeds of trust, security interests or other encumbrances on title related to indebtedness reflected on the consolidated financial statements of the Company or Acquiror.

“Person” means and includes an individual, bank, partnership, joint venture, limited liability company, corporation, trust, unincorporated organization and government or any department or agency thereof.

“Proceeding” means any claim, action, arbitration, audit, contest, hearing, investigation, litigation or suit (whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted, or heard by or before or otherwise involving, any court, administrative agency, other Governmental Authority or arbitrator.

“Recommendation” has the meaning assigned in Section 5.4(b).

“Registration Statement” has the meaning assigned in Section 5.6(a).

“Representatives” has the meaning assigned in Section 5.3(a).

“Requisite Stockholder Vote” means in the case of the Company, the affirmative vote of holders of shares of a majority of the outstanding shares of Company Common Stock entitled to vote at the Company Stockholders Meeting, and in the case of Acquiror, the affirmative vote of the holders of a majority of the total shares of Acquiror Common Stock cast at the Acquiror Stockholders Meeting.

“Rights” means, with respect to any person, securities or obligations convertible into or exercisable or exchangeable for, or giving any person any right to subscribe for, redeem or acquire, or any options, calls or commitments relating to, or any stock appreciation right or other instrument the value of which is determined in whole or in part by reference to the market price or value of, shares of capital stock of such person.

“SEC” means the U.S. Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.

“Securities Laws” means, collectively, the Securities Act, the Exchange Act, the Investment Advisors Act of 1940, the Investment Company Act of 1940, and any state securities and “blue sky” laws.

“Share” has the meaning assigned in Section 3.1(c).

“Software” has the meaning assigned in Section 4.2(q)(1).

“Subsidiary” means (1) when referring to subsidiaries of Acquiror: those subsidiaries set forth in Section 4.3(f) of the Acquiror Disclosure Schedule; and (2) when referring to subsidiaries of the Company: those subsidiaries set forth in Section 4.2(f) of the Company Disclosure Schedule.

“Substitute Option” has the meaning assigned in Section 3.3(a).

“Superior Proposal” has the meaning assigned in Section 5.3(c).

“Surviving Corporation” has the meaning assigned in Section 2.1.

“Tax Opinion” has the meaning assigned in Section 6.1(f).

“Taxes” shall mean (i) all taxes, charges, fees, duties (including customs duties), levies or other assessments, including income, gross receipts, net proceeds, ad valorem, turnover, real and personal property (tangible and intangible), sales, use, franchise, excise, value added, stamp, leasing, lease, user, transfer, fuel, excess profits, occupational, interest equalization, windfall profits, severance, license, payroll, environmental, capital stock, disability, employee’s income withholding, other withholding, unemployment and Social Security taxes, which are imposed by any Governmental Authority, and such term shall include any interest, penalties or additions to tax attributable thereto, and (ii) any liability of the Company, Acquiror, MergerCo or any Subsidiary for the payment of amounts determined by reference to amounts described in clause (i) as a result of being a member of an affiliated, consolidated, combined or unitary group.

“Tax Returns” means, collectively, all returns, declarations, reports, estimates, information returns and statements required to be filed under federal, state, local or any foreign tax laws.

“Trademarks” has the meaning assigned in Section 4.2(q)(1).

“Trade Secrets” has the meaning assigned in Section 4.2(q)(1).

“WARN” has the meaning assigned in Section 4.2(n)(3).

SECTION 1.2. Interpretation . When a reference is made in this Agreement to Recitals, Sections, Annexes or Schedules, such reference shall be to a Recital or Section of, or Annex or Schedule to, this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and are not part of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed followed by the words “without limitation.” No rule against the draftsperson shall be applied in connection with the interpretation or enforcement of this Agreement. Whenever this Agreement shall require a party to take an action, such requirement shall be deemed to constitute an undertaking by such party to cause its Subsidiaries also to take such action.

ARTICLE 2.

THE MERGER

SECTION 2.1. The Merger . Upon the terms and subject to the conditions hereof, at the Effective Time and in accordance with the provisions of this Agreement and the DGCL, MergerCo shall be merged with and into the Company, whereupon the separate corporate existence of MergerCo shall cease, and the Company shall continue as the surviving corporation (the “ Surviving Corporation ”). From and after the Effective Time, the Surviving Corporation shall possess all the rights, privileges, immunities, powers and franchises, of a public as well as a private nature, of the Company and MergerCo, and be subject to all the liabilities, obligations and duties of the Company and MergerCo, all as more fully described in the DGCL.

SECTION 2.2. Closing; Effective Time . Unless this Agreement has been terminated pursuant to ARTICLE 7 and subject to the satisfaction or, when permissible, waiver of the conditions set forth in ARTICLE 6, the closing of the Merger (the “ Closing ”) shall take place at the offices of Holland & Knight LLP in Fort Lauderdale, Florida, as soon as practicable but in no event later than 3:00 p.m. EST time on the fourth Business Day after the date on which each of the conditions set forth in ARTICLE 6 has been satisfied or waived or at such other place, at such other time or on such other date as MergerCo and the Company may mutually agree. The date on which the Closing actually occurs is hereinafter referred to as the “ Closing Date .” At the Closing, MergerCo and the Company shall cause a certificate of merger for the Merger (the “ Certificate of Merger ”) to be executed and filed with the Secretary of State of the State of Delaware in the form required by and executed in accordance with the applicable provisions of the DGCL. The Merger shall become effective as of the date and time of such filing or such other time after such filings as the parties hereto shall agree to in the Certificate of Merger (the “ Effective Time ”).

SECTION 2.3. Certificate of Incorporation . At the Effective Time, the Company Certificate shall be amended and restated to be the same as the Certificate of Incorporation of MergerCo, as in effect immediately prior to the Effective Time until thereafter amended as provided by the DGCL and such certificate of incorporation.

SECTION 2.4. Bylaws . At the Effective Time, the Company Bylaws shall be amended and restated to be identical to the bylaws of MergerCo, as in effect immediately prior to the Effective Time until thereafter amended in accordance with the terms thereof, the certificate of incorporation of the Surviving Corporation and the DGCL.

SECTION 2.5. Directors and Officers . The directors and officers of MergerCo immediately prior to the Effective Time shall become, from and after the Effective Time, the directors and officers of the Surviving Corporation, until their respective successors are duly elected or appointed, or until such person’s earlier death, resignation or removal.

SECTION 2.6. Further Assurances . At and after the Effective Time, the officers and directors of the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of the Company or MergerCo, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or MergerCo, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.

SECTION 2.7. Effect of the Merger . From and after the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges, powers and franchises of the Company and MergerCo shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions and duties of each of the Company and MergerCo shall, by operation of law, become the debts, liabilities, obligations, restrictions and duties of the Surviving Corporation.

SECTION 2.8. Acquiror Name Change . At the Effective Time, Acquiror shall file an amendment to its Certificate of Incorporation to change the name of Acquiror to “PositiveID Corporation.”

ARTICLE 3.

CONVERSION OF SHARES

SECTION 3.1. Effect on Capital Stock . At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Acquiror, MergerCo or the holders of any of the following securities:

(a) Capital Stock of MergerCo . Each share of common stock, par value $0.01 per share, of MergerCo issued and outstanding immediately prior to the Effective Time shall be canceled and shall be converted automatically into one share of common stock of the Surviving Corporation. Such share will constitute the only outstanding share of capital stock of the Surviving Corporation.

(b) Treasury Stock and Acquiror Owned Stock . Each share of Company Common Stock or Right to acquire Company Common Stock that is owned or controlled by the Company or Acquiror shall automatically be canceled, retired and shall cease to exist without payment of any consideration thereof and without any conversion thereof.

(c) Conversion of Company Common Stock . Each issued and outstanding share of Company Common Stock (including Shares subject to vesting or other restrictions (the “ Company Restricted Stock ”)) (each, a “ Share ”) shall be converted into and represent the right to receive, and will be exchangeable for, .5 shares (the “ Common Stock Exchange Ratio ”) of validly issued, fully paid and nonassessable shares of Acquiror Common Stock, subject to adjustment pursuant to Section 3.2 (the “ Merger Consideration ”).

(d) Appraisal Rights . The parties hereto agree that, in accordance with Section 262 of the DGCL, in connection with the Merger no appraisal rights will be available to holders of shares of the Company Common Stock.

SECTION 3.2. Adjustment of Merger Consideration . If, after the date of this Agreement, but prior to the Effective Time, the shares of Acquiror Common Stock issued and outstanding shall, through a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in the capitalization of Acquiror (regardless of the method of effectuation of any of the foregoing, including by way of a merger or otherwise), increase or decrease in number or be changed into or exchanged for a different kind or number of securities, then the applicable Merger Consideration shall be appropriately adjusted to provide the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such event.

SECTION 3.3. Treatment of Options and Warrants .

(a) Options . All options to purchase shares of Company Common Stock (each, a “ Company Stock Option ”) outstanding, whether or not exercisable and whether or not vested, at the Effective Time, issued under any Company Stock Plan and any other plan or agreement pursuant to which Company Stock Options have been issued, in each case as such may have been amended, supplemented or modified, shall remain outstanding following the Effective Time. At the Effective Time, the Company Stock Options shall, by virtue of the Merger and without any further action on the part of the Company or the holder thereof, be assumed by Acquiror in such manner that Acquiror (i) is a corporation “assuming a stock option in a transaction to which Section 424(a) applies” within the meaning of Section 424 of the Code and the regulations thereunder or (ii) to the extent that Section 424 of the Code does not apply to any such Company Stock Options, would be such a corporation were Section 424 of the Code applicable to such Company Stock Options. From and after the Effective Time, all references to the Company in the Company Stock Option Plans and the applicable stock option agreements issued thereunder shall be deemed to refer to Acquiror, which shall have assumed the Company Stock Option Plans as of the Effective Time by virtue of this Agreement and without any further action. Each Company Stock Option assumed by Acquiror (each, a “ Substitute Option ”) shall be exercisable upon the same terms and conditions as under the applicable Company Stock Option Plan and the applicable option agreement issued thereunder, except that (A) each such Substitute Option shall be exercisable for, and represent the right to acquire, that whole number of shares of Acquiror Common Stock (rounded upward to the nearest whole share) equal to the number of shares of Company Common Stock subject to such Company Stock Option multiplied by the Common Stock Exchange Ratio; and (B) the option price per share of Acquiror Common Stock shall be an amount equal to the option price per share of Company Common Stock subject to such Company Stock Option in effect immediately prior to the Effective Time divided by the Common Stock Exchange Ratio (the option price per share, as so determined, being rounded upward to the nearest whole cent). Such Substitute Option shall otherwise be subject to the same terms and conditions as such Company Stock Option.

(b) Warrants . Except as set forth on Schedule 3.3(b), each of the then outstanding warrants, if any, to purchase shares of Company Common Stock (each, a “ Company Warrant ”) will, by virtue of the Merger, and without any further action on the part of any holder thereof, be converted into a warrant (a “ Converted Company Warrant ”) to purchase that number of shares of Acquiror Common Stock determined by multiplying the number of shares of Company Common Stock subject to such Company Warrant at the Effective Time by the Common Stock Exchange Ratio, at an exercise price per share of Acquiror Common Stock equal to the exercise price per share of such Company Warrant immediately prior to the Effective Time divided by the Common Stock Exchange Ratio, rounded up to the nearest whole cent. If the foregoing calculation results in a Converted Company Warrant being exercisable for a fraction of a share of Acquiror Common Stock, then the number of shares of Acquiror Common Stock subject to such warrant will be rounded up to the nearest whole number of shares. The terms and conditions of each Converted Company Warrant will otherwise remain as set forth in the Company Warrant converted into such Converted Company Warrant. Notwithstanding anything herein to the contrary, the adjustment provided for in this Section 3.3(b) with respect to all warrants will be and is intended to be effected in a manner that is consistent with Section 424(a) of the Code and, to the extent applicable, Q&A-18(d) of Notice 2005-1.

SECTION 3.4. Payment for Company Stock .

(a) Exchange Agent . Not less than three (3) Business Days prior to the Closing Date, Acquiror shall designate a bank or trust company reasonably acceptable to the Company to act as exchange agent in connection with the Merger (the “ Exchange Agent ”) for the purpose of exchanging certificates that immediately prior to the Effective Time represented shares of Company Common Stock for the applicable Merger Consideration. At or prior to the Effective Time, Acquiror shall deposit with the Exchange Agent, for the benefit of the holders of Company Common Stock, certificates or, at Acquiror’s option, evidence of shares in book-entry form, representing shares of Acquiror Common Stock in such denominations as the Exchange Agent may reasonably specify. Such certificates (or evidence of book-entry form, as the case may be) for shares of Acquiror Common Stock so deposited, together with any dividends or distributions with respect thereto, are hereinafter referred to as the “ Exchange Fund .”

(b) Exchange .

(1) As soon as reasonably practicable after the Effective Time but no later than fourteen (14) days thereafter, the Surviving Corporation shall cause to be mailed to each record holder, as of the Effective Time, of shares of Company Common Stock, (i) a letter of transmittal (which shall be in customary form and shall specify that delivery shall be effected, and risk of loss and title to the certificates shall pass, only upon proper delivery of the certificates to the Exchange Agent) and (ii) instructions for use of the letter of transmittal in effecting the surrender of the certificates for payment of the applicable Merger Consideration therefor.

(2) In effecting the payment and delivery of the applicable Merger Consideration in respect of Shares entitled to the applicable Merger Consideration pursuant to Section 3.1, upon the surrender of such Shares, the Exchange Agent shall deliver the number of whole shares of Acquiror Common Stock represented by such holder’s properly surrendered certificates that such Shares are entitled to receive as Merger Consideration in accordance with this ARTICLE 3. Upon such delivery, such Shares so surrendered shall forthwith be canceled.

(3) If Acquiror Common Stock is to be remitted to a Person other than that in which the certificate for Shares surrendered for exchange is registered, it shall be a condition of such delivery: (a) that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer, and (b) the Person requesting such delivery shall pay to the Exchange Agent any transfer or other taxes required by reason of the delivery to a Person, other than that of the registered holder of the certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not applicable.

(4) Until surrendered in accordance with the provisions of this Section 3.4, each certificate shall, after the Effective Time, represent for all purposes only the right to receive upon such surrender, the applicable Merger Consideration applicable thereto, without any interest thereon, subject to any required withholding Taxes, the delivery of which shall be deemed to be the satisfaction in full of all rights pertaining to the shares of Company Common Stock exchanged in the Merger.

(5) The stock transfer books of the Company shall be closed immediately upon the Effective Time and there shall be no further registration of transfers of shares of Company Common Stock thereafter on the records of the Company. On or after the Effective Time, any certificates presented to the Exchange Agent or the Surviving Corporation for any reason shall be cancelled and exchanged into the applicable Merger Consideration with respect to the shares of Company Common Stock formerly represented thereby.

(c) No Issuance of Fractional Shares . No certificate or scrip representing fractional Acquiror Common Stock shall be issued upon the surrender of certificates formerly representing Company Common Stock or otherwise in the Merger, and in lieu thereof, any fractional Acquiror Common Stock shall be rounded up to the nearest whole share of Acquiror Common Stock; provided that, prior to applying the preceding sentence with respect to any holder of Company Common Stock, all Company Common Stock held by such holder shall be aggregated, taking into account all certificates formerly representing Company Common Stock delivered by such holder and the aggregate number of Company Common Stock represented thereby, and after giving effect to the exercise of any Company Stock Options or Company Warrants to be exercised by such holder in connection with the Closing.

(d) Lost Certificates . If any certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed and, if required by Acquiror, the posting by such Person of a bond in such reasonable amount as Acquiror may direct as indemnity against any claim that may be made against it with respect to such certificate, the Exchange Agent will deliver in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration with respect to the Shares formerly represented thereby, pursuant to this Agreement.

(e) Distributions With Respect to Unexchanged Shares . No dividends or other distributions with respect to shares of Acquiror Common Stock issuable with respect to the shares of Company Common Stock shall be paid to the holder of any unsurrendered certificates until those certificates are surrendered as provided in this ARTICLE 3. Upon surrender, there shall be issued and/or paid to the holder of the shares of Acquiror Common Stock issued in exchange therefor, without interest, (i) at the time of surrender, the dividends or other distributions payable with respect to those shares of Acquiror Common Stock with a record date on or after the date of the Effective Time and a payment date on or prior to the date of this surrender and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to those shares of Acquiror Common Stock with a record date on or after the date of the Effective Time but with a payment date subsequent to surrender.

(f) Termination of Exchange Fund . Any portion of the Exchange Fund which remains undistributed to the stockholders of the Company for eighteen months after the Effective Time shall be delivered to Acquiror, upon demand, and any holders of Shares prior to the Merger who have not theretofore complied with ARTICLE 3 shall thereafter look only to Acquiror for payment and delivery of the Merger Consideration, for unexchanged Shares to which such holders may be entitled.

(g) No Liability . None of Acquiror, MergerCo, the Surviving Corporation or the Exchange Agent shall be liable to any Person in respect of any portion of the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.

(h) Withholding . Acquiror and the Exchange Agent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code and the rules and regulations promulgated thereunder, or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by Acquiror or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Acquiror or the Exchange Agent.

ARTICLE 4.

REPRESENTATIONS AND WARRANTIES OF
THE COMPANY, ACQUIROR AND MERGERCO

SECTION 4.1. Disclosure Schedules . On or prior to the date hereof, the Company has delivered to Acquiror a schedule setting forth, among other things, items the disclosure of which is necessary or appropriate either: (i) in response to an express informational requirement contained in or requested by a provision hereof, or (ii) as an exception to one or more representations or warranties contained in Section 4.2 or to one or more of its covenants contained in ARTICLE 5 (the “ Company Disclosure Schedule ”). On or prior to the date hereof, Acquiror has delivered to the Company, a schedule setting forth, among other things, items the disclosure of which is necessary or appropriate either: (i) in response to an express informational requirement contained in or requested by a provision hereof, or (ii) as an exception to one or more representations or warranties contained in Section 4.3 or to one or more of its covenants contained in ARTICLE 5 (the “ Acquiror Disclosure Schedule ”). The inclusion of an item in either the Company Disclosure Schedule or the Acquiror Disclosure Schedule as an exception to a representation or warranty or covenant shall not be deemed an admission by a party that such item (or any undisclosed item or information of comparable or greater significance) represents a material exception or fact, event or circumstance with respect to the Company, Acquiror or MergerCo, respectively.

SECTION 4.2. Representations and Warranties of the Company . Except as set forth in the Company Disclosure Schedule or as set forth in the Company SEC Documents, the Company hereby represents and warrants to Acquiror and MergerCo as follows:

(a) Organization, Standing and Authority . The Company is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified or licensed to do business and is in good standing in all jurisdictions where its ownership or leasing of property or assets or the conduct of its business requires it to be so qualified or licensed, except for those jurisdictions in which failure to do so has not, or could not reasonably be expected to have a Material Adverse Effect.

(b) Corporate Power . The Company and each of its Subsidiaries has all requisite corporate power and authority to own, lease and operate their respective properties and to carry on their respective businesses as they are now being owned, leased, operated and conducted.

(c) Corporate Authority .

(1) The Company has the requisite corporate power and authority necessary to authorize the execution and delivery of, and performance of its obligations under, this Agreement and, subject to receipt of the Requisite Stockholder Vote to approve this Agreement, to consummate the transactions contemplated by this Agreement. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Company Board. This Agreement has been duly and validly executed and delivered by the Company and is a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject only to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability related to or affecting creditors’ rights and to general principles of equity.

(2) The Company Special Committee has (i) determined that the Merger is advisable, fair to and in the best interests of the Company and its stockholders, and (ii) recommended that the Company Board approve this Agreement.

(3) The Company Board, based on the recommendation of the Company Special Committee, has (i) determined that the Merger is advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved and adopted this Agreement and declared its advisability and approved the Merger and the other transactions contemplated by this Agreement, and (iii) recommended that the stockholders of the Company approve and adopt this Agreement.

(d) Regulatory Filings; Consents; No Defaults .

(1) No consents, approvals, orders or authorizations of, or filings, registrations, declarations or qualifications with, any Governmental Authority are required to be made or obtained by the Company in connection with the execution, delivery or performance by the Company of this Agreement, or to consummate the Merger, except for: (A) those required under the HSR Act, if any; (B) the filing and declaration of effectiveness of the Registration Statement and the Joint Proxy Statement/Prospectus and compliance with the Exchange Act or Securities Act; and (C) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business. As of the date hereof, the Company has no Knowledge of any reason why the approvals of all Governmental Authorities necessary to permit consummation of the transactions contemplated by this Agreement will not be received.

(2) Subject to the Requisite Stockholder Vote of the Company, no consent by or approval or authorization of or notice to any other Person (other than a Governmental Authority) is required, whether under any license or other Contract or otherwise.

(3) Subject to the Requisite Stockholder Vote of the Company, the receipt of the approvals and consents referred to in Section 4.2(d)(1) and Section 4.2(d)(2), the expiration of applicable waiting periods and the making of required filings under Securities Laws, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not and will not: (A) constitute a breach or violation of, or a default under, or give rise to any Lien, any acceleration of remedies, any right of termination (with or without the giving of notice, passage of time or both) or any put or call right under, any law, rule or regulation or any judgment, decree, order, governmental or nongovernmental permit or license, or Contract of the Company or of any of its Subsidiaries or to which the Company or any of its Subsidiaries or its or their properties is subject or bound, (B) constitute a breach or violation of, or a default under, the Company Certificate or the Company Bylaws or similar governing documents of any of its Subsidiaries, or (C) require any consent or approval under any such law, rule, regulation, judgment, decree, order, governmental or nongovernmental permit or license or Contract, except, in the case of clauses (A), (B) and (C), for any such conflict, violation, breach, default, loss, right, consent or approval or other occurrence which would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.

(e) Company Stock . The authorized capital stock of the Company consists of: (i) 80,000,000 shares of Company Common Stock, and (ii) 5,000,000 shares of preferred stock (“ Company Preferred Stock ”). As of September 4, 2009, (a) 9,596,398 shares of Company Common Stock were issued and outstanding, (b) no shares of Company Preferred Stock were issued and outstanding, (c) 8,300,000 shares of Company Common Stock were reserved for issuance upon the exercise of options issued or issuable under the Company Stock Plans, (d) 1,146,573 shares of Company Common Stock were reserved for issuance under stock options granted outside of the Company Stock Plans, (e) 1,241,334 shares of Company Common Stock were reserved for issuance under Company Warrants, (f) 2,098,485 shares of Company Common Stock were reserved for issuance under the terms of convertible promissory notes, and (g) no shares of Company Common

Stock were held in treasury. All of the outstanding shares of capital stock of the Company and each Subsidiary (i) have been duly authorized, validly issued, and are fully paid and nonassessable, (ii) are, and when issued were, free of preemptive or similar rights and (iii) are owned (legally and beneficially) free and clear of any and all Liens, encumbrances, equities, and restrictions on transferability (other than those imposed by the Securities Act and the state securities or “Blue Sky” Laws) or voting. As of the date hereof, other than the Company Stock Options and the Company Warrants, there are no shares of Company Common Stock authorized and reserved for issuance, the Company does not have any Rights issued or outstanding with respect to Company Stock, and the Company does not have any commitment to authorize, issue or sell any Company Stock or Rights, except pursuant to this Agreement. Section 4.2(e) of the Company Disclosure Schedule sets forth a list of the holders of outstanding Company Stock Options and Company Warrants, the date that each such Company Stock Option or Company Warrant was granted, the number of shares of Company Common Stock subject to each such Company Stock Option or Company Warrant, the vesting schedule and expiration date of each such Company Stock Option or Company Warrant and the price at which each such Company Stock Option or Company Warrant may be exercised. Except as set forth in Section 4.2(e) of the Company Disclosure Schedule, no options, warrants or other rights to purchase from the Company or any Subsidiary, agreements or other obligations of the Company or any Subsidiary to issue or other rights to convert any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company or any Subsidiary are outstanding; and, there is no agreement, understanding or arrangement among the Company or any Subsidiary and each of their respective stockholders or members or any other Person relating to the ownership or disposition of any capital stock of the Company or any Subsidiary or the election of directors or managers of the Company or any Subsidiary or the governance of the Company’s or any Subsidiary’s affairs, and such agreements, understandings and arrangements, if any, will not be breached or violated as a result of the execution and delivery of, or the consummation of the transactions contemplated by this Agreement.

(f) Subsidiaries . Set forth in Section 4.2(f) of the Company Disclosure Schedule is a list of all of the Company’s direct and indirect subsidiaries, including the states or countries in which such subsidiaries are organized, and if any of such subsidiaries is not wholly-owned by the Company or one of its subsidiaries, the percentage owned by the Company or any such subsidiary and the names and percentage ownership by any other Person. No equity securities of any of the Company’s subsidiaries are or may become required to be issued, transferred or otherwise disposed of (other than to the Company or a wholly-owned subsidiary of the Company) by reason of any Rights with respect thereto. There are no Contracts by which any of the Company’s Subsidiaries is or may be bound to sell or otherwise issue any shares of its capital stock, and there are no Contracts relating to the rights or obligations of the Company to vote or to dispose of such shares. All of the shares of capital stock of each of the Company’s Subsidiaries are fully paid and nonassessable and subject to no subscriptive or preemptive rights or Rights and are owned by the Company or a Company Subsidiary free and clear of any Liens.

(g) SEC Documents, Financial Statements .

(1) Since August 1, 2008, the Company has filed all reports, registrations, and statements it was required to file with the SEC under the Securities Act, or under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including, but not limited to the Company’s Annual Reports on Form 10-K, Forms 10-Q, Form 8-K, registration statements, definitive proxy statements, and information statements (collectively, the “ Company SEC Documents ”). The Company has provided or made available via EDGAR to Acquiror copies of the Company SEC Documents, each in the form (including exhibits and any amendments thereto) filed with the SEC (or, if not so filed, in the form used or circulated). As of their respective dates (and without giving effect to any amendments or modifications filed after the date of this Agreement) each of the Company SEC Documents, including the Company Financial Statements, exhibits and schedules thereto, filed or circulated prior to the date hereof complied (and each of the Company SEC Documents filed prior to the Merger will comply) as to form with applicable Securities Laws and did not (or in the case of reports, statements, or circulars filed after the date of this Agreement, will not) contain any untrue statement of a material fact or omit to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

(2) Each of the Company’s consolidated statements of financial condition or balance sheets included in or incorporated by reference into the Company SEC Documents, including the related notes and schedules, fairly presented (or, in the case of Company SEC Documents filed after the date of this Agreement, will fairly present) the consolidated financial condition of the Company and its Subsidiaries as of the date of such statement of financial condition or balance sheet and each of the consolidated statements of income, cash flows and changes in stockholders’ equity included in or incorporated by reference into Company SEC Documents, including any related notes and schedules (collectively, the foregoing financial statements and related notes and schedules are referred to as the “ Company Financial Statements ”), fairly presented (or, in the case of Company SEC Documents filed after the date of this Agreement and prior to the Merger, will fairly present) the consolidated results of operations, cash flows and stockholders’ equity, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to normal year-end audit adjustments), in each case in accordance with GAAP consistently applied during the periods involved (except as may be noted therein and except that such unaudited statements include no notes).

(3) Except as set forth in Section 4.2(g) of the Company Disclosure Schedule or on the Company Financial Statements, none of the Company or any of its Subsidiaries has any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) whether or not required to be recorded or reflected by GAAP to be set forth on a consolidated balance sheet of the Company and its consolidated subsidiaries or in the notes thereto, other than liabilities or obligations incurred in the ordinary course of business consistent with past practice since the date of the most recent Company Financial Statements included in the Company SEC Documents.

(h) Absence of Certain Changes . Except as set forth in Section 4.2(h) of the Company Disclosure Schedule, since June 30, 2009, the business of the Company and its Subsidiaries has been conducted in the ordinary course, consistent with past practice, and there has not been:

(1) any event, occurrence, development or state of circumstances or facts which has had or is reasonably likely to have a Material Adverse Effect on the Company and any of its Subsidiaries;

(2) any material event, occurrence, development or state of circumstances;

(3) any damage, destruction or loss to any assets or properties (whether or not covered by insurance) of the Company or any of its Subsidiaries;

(4) any obligation or any Contract entered into which either (i) required a payment by any party in excess of, or a series of payments which in the aggregate exceed, $25,000 or provides for the delivery of goods or performance of services, or any combination thereof, having a value in excess of $25,000 or (ii) has a term, or requires the performance of any obligations by the Company or any Subsidiary over a period, in excess of six months;

(5) any sales, transfers, conveyances, assignments or other dispositions of any assets or properties of the Company or any of its Subsidiaries, except sales of inventory in the ordinary course of business;

(6) any waiver, release or cancellation of any claims against third parties or debts owing to the Company or any of its Subsidiaries, or any rights which have any value;

(7) any transaction with an Affiliate of any stockholder or any member of the Company or any of its Subsidiaries;

(8) any authorization for issuance, sale, delivery or agreement or commitment to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any membership interests, shares of its capital stock or any other securities;

(9) any amendment of any term of any outstanding security of the Company or any of its Subsidiaries or to the Company or any of its Subsidiaries’ certificate of incorporation or bylaws (or similar governing documents);

(10) any (A) incurrence, assumption or guarantee by the Company or any of its Subsidiaries of any indebtedness for borrowed money, or (B) assumption, guarantee, endorsement or otherwise by the Company of any obligations of any other Person, in each case, other than in the ordinary course of business consistent with past practices;

(11) any creation or assumption by the Company or any of its Subsidiaries of any Lien on any asset other than in the ordinary course of business consistent with past practices, other than a Permitted Lien;

(12) any capital expenditures authorized or made which individually or in the aggregate are in excess of $25,000;

(13) any declaration or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company’s or any of its Subsidiaries capital stock or membership interests, or redemption or acquisition of any securities of the Company or any of its Subsidiaries;

(14) any making of any loans, advances or capital contributions to, or investments in, any other Person;

(15) any making of any Tax election or any settlement or compromise of any federal, state, local or foreign Tax liability, or waiver or extension of the statute of limitations in respect of any such Taxes;

(16) any change in any accounting policies or practices by the Company or any of its Subsidiaries except as required by GAAP; or

(17) any (A) employment, deferred compensation, severance, retirement or other similar agreement entered into with any director, officer, consultant, partner or employee of the Company or any of its Subsidiaries (or any amendment to any such existing agreement), (B) grant or agreement to grant any severance or termination pay to any director, officer, consultant, partner or employee of the Company or any of its Subsidiaries, or (C) change in compensation or other benefits payable to any director, officer, consultant, partner or employee of the Company or any of its Subsidiaries, except, in each case, in the ordinary course of business, or as required by Contract or applicable law with respect to employees of the Company or any of its Subsidiaries.

(i) Contracts .

(1) Except for this Agreement and except for Contracts filed in unredacted form as exhibits to the Company SEC Documents, none of the Company or its Subsidiaries is a party to or bound by any Contract: (i) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) containing covenants binding upon the Company or its Subsidiaries that restrict the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or its Affiliates) to compete in any business or geographic area; or (iii) that would prevent, materially delay or materially impede the Company’s ability to consummate the Merger or the other transactions contemplated by this Agreement. Each such Contract described in clauses (i) through (iii) is referred to herein as a “ Company Material Contract ”.

(2) Each of the Company Material Contracts is valid and binding on the Company or its Subsidiaries, as the case may be, and, to the Company’s Knowledge, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no default under any Company Material Contract by the Company or its Subsidiaries and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or its Subsidiaries, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.

(j) Compliance with Laws . Each of the Company and its Subsidiaries:

(1) is in compliance in all material respects with all applicable federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders or decrees applicable to the conduct of its businesses or to the employees conducting such businesses;

(2) has all material permits, licenses, authorizations, orders and approvals of, and has made all filings, applications and registrations with, all Governmental Authorities that are required in order to permit them to own or lease their properties and to conduct their businesses as presently conducted; all such permits, licenses, certificates of authority, orders and approvals are in full force and effect and are current and, to the Company’s Knowledge, no suspension or cancellation of any of them is threatened or is reasonably likely and all such filings, applications and registrations are current;

(3) has received, since August 1, 2008, no written notification or communication (or, to the Knowledge of the Company, any other communication) from any Governmental Authority (A) asserting non-compliance with any of the statutes, regulations, rules or ordinances of such Governmental Authority, (B) threatening any material penalty or to revoke any license, franchise, permit, or governmental authorization, (C) requiring any of them (including any of the Company’s or its Subsidiaries’ directors or controlling persons) to enter into a cease and desist order, agreement, or memorandum of understanding (or requiring the board of directors thereof to adopt any resolution or policy), or (D) restricting or disqualifying their activities;

(4) to the Company’s Knowledge, is not aware of any pending or threatened investigation, review or disciplinary Proceedings by any Governmental Authority against the Company, any of its Subsidiaries or any officer, director or employee thereof;

(5) in the conduct of its business with respect to employee benefit plans subject to Title I of ERISA, has not (A) breached any applicable fiduciary duty under Part 4 of Title I of ERISA which would subject it to material liability under Sections 405 or 409 of ERISA or (B) engaged in a “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code which would subject it to material liability or Taxes under Sections 409 or 502(i) of ERISA or Section 4975(a) of the Code;

(6) since August 1, 2008, has timely filed all material reports, registrations and statements, together with any amendments required to be made with respect thereto, that were required to be filed under any applicable law, regulation or rule, with any applicable Governmental Authority (the “ Company Reports ”). As of their respective dates, the Company Reports complied with the applicable statutes, rules, regulations and orders enforced or promulgated by the regulatory authority with which they were filed.

(k) Properties . Except as may be reflected in the Company’s Financial Statements dated before the date hereof, the Company and its Subsidiaries have good and marketable title, free and clear of all Liens (other than Permitted Liens) to all of the material properties and assets, tangible or intangible, reflected in such Company Financial Statements as being owned by the Company and its Subsidiaries as of the dates thereof. To the Company’s Knowledge, all buildings and all the material fixtures, equipment, and other property and assets held under leases or subleases by any of the Company and its Subsidiaries are held under valid leases or subleases, enforceable in accordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and to general principles of equity). Set forth in Section 4.2(k) of the Company Disclosure Schedule is a list of any and all real estate owned or leased by it or a Company Subsidiary as of the date hereof.

(l) Taxes .

(1) Except as set forth in Section 4.2(l) of the Company Disclosure Schedule, the Company and each of its Subsidiaries have timely filed in a complete and correct manner all Tax Returns that they were required to file, other than any Tax Returns the failure to complete correctly or to file would not, individually or in the aggregate, have a Material Adverse Effect. The Company and each of its Subsidiaries have paid all Taxes due, other than Taxes adequate reserves for which have been made in the Company Financial Statements and Taxes the failure to pay would not, individually or in the aggregate, have a Material Adverse Effect.

(2) There are no claims or assessments pending against the Company or any of its Subsidiaries for any alleged deficiency in any Tax, and neither the Company nor any of its Subsidiaries has been notified in writing of any proposed Tax claims or assessments against the Company or any of its Subsidiaries (other than, in each case, claims or assessments for which adequate reserves in the Company Financial Statements have been established and claims or assessments which would not, individually or in the aggregate, have a Material Adverse Effect).

(3) There are no Liens on any of the assets or properties of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax, except for statutory liens for current Taxes not yet due and payable (and except for Liens which would not, individually or in the aggregate, have a Material Adverse Effect).

(4) Neither the Company nor any of its Subsidiaries (x) is bound by any Tax allocation or Tax sharing agreement with a Person other than Acquiror which applies to U.S. federal or state income Taxes, or (y) has any liabilities under any Tax allocation or Tax sharing agreement (except for any liabilities which would not, individually or in the aggregate, have a Material Adverse Effect).

(m) Litigation .

(1) There are no Proceedings pending or, to the Company’s Knowledge, threatened, against or affecting the Company or any Subsidiary or any of their respective officers, directors, managers, employees, agents, members, or stockholders thereof in their capacity as such, or any of the properties or businesses of the Company or any Subsidiary, and neither the Company nor any Subsidiary is aware of any facts or circumstances which may give rise to any of the foregoing.

(2) There are no claims, actions, suits, proceedings or investigations pending or, to the Company’s Knowledge, threatened, by or against the Company or any Subsidiary with respect to this Agreement, or in connection with the transactions contemplated hereby or thereby, and neither the Company nor any Subsidiary has any reason to believe there is a valid basis for any such claim, action, suit, proceeding, or investigation.

(n) Employees; Labor Matters .

(1) Each of the Company and its Subsidiaries is in compliance in all material respects with all currently applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, including any such laws respecting employment discrimination, harassment, disability rights or benefits, equal opportunity, plant closure issues, affirmative action, workers’ compensation, employee benefits, severance payments, labor relations, employee leave issues, wage and hour standards, occupational safety and health requirements and unemployment insurance and related matters. None of the Company or any of its Subsidiaries is engaged in any unfair labor practice and there is no unfair labor practice complaint pending or threatened against the Company or any of its Subsidiaries before the National Labor Relations Board. There are no charges or complaints against the Company or any of its Subsidiaries pending or, to the Company’s Knowledge, threatened in writing alleging sexual or other harassment, or other discrimination or improper employment practices, by the Company, any of its Subsidiaries or by any of their employees, agents or representatives.

(2) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any collective bargaining agreement, Contract or other agreement or understanding with any labor union or organization, nor has it agreed to recognize any union or other collective bargaining unit, nor has any union or other collective bargaining unit been certified, or is seeking certification, as representing any of the employees of the Company or any of its Subsidiaries.

(3) The Company and its Subsidiaries are and have been in substantial compliance with all notice and other requirements under the Worker Adjustment and Retaining Notification (“ WARN ”) or similar state statute. None of the employees of the Company or its Subsidiaries have suffered an “employment loss” (as defined in WARN) during the 90-day period prior to the execution of this Agreement.

(o) Employee Benefit Plans .

(1) Set forth in Section 4.2(o) of the Company Disclosure Schedule is a complete list of each employee or director benefit plan, arrangement or agreement, whether or not written, including without limitation any employee welfare benefit plan within the meaning of Section 3(1) of ERISA, any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, employment, change of control or material fringe benefit plan, program or agreement that is sponsored, maintained or contributed to by the Company or any of its Subsidiaries, or with respect to which the Company has or reasonably could incur any liability, for the benefit of current or former employees or directors or their beneficiaries (the “ Company Benefit Plans ”).

(2) The Company has heretofore made available to Acquiror (A) true and complete copies of each of the Company Benefit Plans (or written explanations of any unwritten Company Benefit Plans) as in effect on the date hereof and amendments thereto, including summary plan descriptions; (B) the three most recent Annual Reports (Form 5500 Series) and accompanying schedules, if any; and (C) the most recent determination or opinion letter from the IRS (if applicable) for such Company Benefit Plan.

(3) With respect to each Company Benefit Plan, the Company and its Subsidiaries have complied, and are now in compliance, in all material respects with all provisions of ERISA, the Code and all laws and regulations applicable to such Company Benefit Plans and each Company Benefit Plan has been administered in all material respects in accordance with its terms. The IRS has issued a favorable determination or opinion letter with respect to each Company Benefit Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code that has not been revoked, and, to the Company’s Knowledge, no circumstances exist and no events have occurred that could reasonably be expected to adversely affect the qualified status of any such plan or the related trust (except for changes in applicable law for which the remedial amendment period has not yet expired). No Company Benefit Plan is intended to meet the requirements of Code Section 501(c)(9).

(4) All contributions required to be made by the Company to any Company Benefit Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Plan, for any period through the date hereof have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been reflected on the Company Financial Statements. Each Company Benefit Plan, if any, that is an employee welfare benefit plan under Section 3(1) of ERISA is either (A) funded through an insurance company Contract and is not a “welfare benefit fund” within the meaning of Section 419 of the Code or (B) unfunded.

(5) There is no pending or, to the Company’s Knowledge, threatened Proceedings relating to the Company Benefit Plans. Neither the Company nor any of its Subsidiaries has engaged in a transaction with respect to any Company Benefit Plan that would subject the Company or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA.

(6) No Company Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, and neither the Company nor any of its Subsidiaries has contributed or been obligated to contribute to a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a plan that has two or more contributing, but unrelated, sponsors and that is subject to Title IV of ERISA at any time on or after December 31, 1994. No liability under Subtitle C or D of Title IV of ERISA has been or is reasonably expected to be incurred by the Company or any of its Subsidiaries with respect to any ongoing, frozen or terminated “single-employer plan,” within the meaning of Section 4001 of ERISA, currently or formerly maintained by any of them, or the single-employer plan of any entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code (a “ Company ERISA Affiliate ”). No notice of a “reportable event,” within the meaning of Section 4043 of ERISA, for which the 30-day reporting requirement has not been waived has been required to be filed for any Company Benefit Plan or, to the Company’s Knowledge, by any Company ERISA Affiliate. Neither the Company nor any of its Subsidiaries or Company ERISA Affiliates has provided, or is required to provide, security to any Company Benefit Plan or any single-employer plan of a Company ERISA Affiliate.

(7) Neither the Company nor any of its Subsidiaries has any obligation for retiree health, life or other welfare benefits, except for benefits and coverage required by applicable law, including, without limitation, Section 4980B of the Code and Part 6 of Title I of ERISA. There are no restrictions on the rights of the Company or any of its Subsidiaries to amend or terminate any such plan (other than reasonable and customary advance notice and consent requirements and administrative expenses) without incurring any liability thereunder.

(8) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either standing alone or in conjunction with any other event) will (A) except as to the Persons listed in Section 4.2(o) of the Company Disclosure Schedule, result in any payment (including severance, unemployment compensation, “excess parachute” (within the meaning of Section 4999 of the Code), forgiveness of indebtedness or otherwise) becoming due to any director or any employee of the Company or any of its Subsidiaries under any Company Benefit Plan, (B) increase any benefits otherwise payable under any Company Benefit Plan, (C) result in any acceleration of the time of payment or vesting of any such benefit, or (D) affect in any way the ability to amend, terminate, merge or administer any Company Benefit Plan.

(9) The Company does not maintain a Company Benefit Plan or other arrangement that is subject to Section 409A of the Code, and each Company Benefit Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code since January 1, 2005.

(10) The Company has not granted any awards intended to constitute performance-based compensation not subject to the deduction limit under Section 162(m) of the Code.

(p) Environmental Matters . The Company and its Subsidiaries have complied in all respects with applicable Environmental Laws; no property (including buildings and any other structures) currently owned or operated by the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries (whether as fiduciary or otherwise) has a Lien, is being or, to the Company’s Knowledge, has been contaminated with, or has had any release of, any Hazardous Substance in such form or substance so as to create any liability for the Company or any of its Subsidiaries; the Company and any of its Subsidiaries are not subject to liability for any Hazardous Substance disposal or contamination on any other third-party property; within the last six years, the Company and any of its Subsidiaries have not received any written notice, demand letter, claim or request for information alleging any violation of, or liability of the Company or any of its Subsidiaries under, any Environmental Law; the Company and any of its Subsidiaries are not subject to any written order, decree, injunction or other agreement with any Governmental Authority or any third party relating to any Environmental Law; the Company and any of its Subsidiaries are not aware of or do not have any Knowledge of any facts that could lead to liability for handling or disposal of Hazardous Substances involving the Company or any of its Subsidiaries, any currently owned or operated property (whether as fiduciary or otherwise), or any reasonably likely liability related to any Lien held by the Company or any of its Subsidiaries; and the Company and any of its Subsidiaries have made available to Acquiror copies of all environmental reports, studies, sampling data, correspondence, filings and other environmental information in its possession or reasonably available to it relating to the Company or any of its Subsidiaries or any currently or formerly owned or operated property or any property in which the Company or any of its Subsidiaries (whether as fiduciary or otherwise) has held a Lien.

(q) Intellectual Property .

(1) The Company and its Subsidiaries have a valid right to use all trademarks, service marks, trade names, Internet domain names, designs, logos, slogans, trade dress, trade names, corporate names and other source identifiers, and rights or general intangibles of like nature (collectively, “ Trademarks ”); Software (as defined below); technology, trade secrets and other confidential information, know-how, proprietary processes, formulae, formulations, algorithms, databases, models, and methodologies (collectively, “ Trade Secrets ”) used in the Company’s and each Subsidiary’s business as currently conducted, except where the failure to do so would not constitute a Material Adverse Effect. The Company or its Subsidiaries either (i) own or have the valid right to use all patents, patent applications and invention registrations of any kind (“ Patents ”), Trademarks, and registered and unregistered copyrights, and registrations and applications thereof (“ Copyrights ”) necessary for the conduct of the Company’s and each of its Subsidiaries’ businesses as currently conducted, except where the failure to do so would not constitute a Material Adverse Effect, and/or (ii) are validly licensed or authorized under third-party Patents, Trademarks, Trade Secrets and Copyrights necessary for the same. As used in this Agreement, the term “ Intellectual Property ” means Patents, Copyrights, Trademarks, applications, applications for registration and registrations for any of the foregoing, and Trade Secrets; the term “ Company License Agreements ” means any agreements granting any right to use or practice any rights under any Intellectual Property (except for such agreements for Software already installed by the manufacturer before purchase on computers purchased by the Company or its Subsidiaries, shrink-wrap or click-wrap software or other off-the-shelf products that are generally available for less than $10,000), and any written settlements relating to any Intellectual Property, to which the Company or any of its Subsidiaries is a party or otherwise bound; and the term “ Software ” means any and all computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code.

(2) Section 4.2(q)(2) of the Company Disclosure Schedule sets forth, for the Intellectual Property owned and maintained by the Company and its Subsidiaries, a complete and accurate list of all U.S. and foreign (1) Patents and patent applications; (2) issued and pending Trademark registrations (including Internet domain name registrations for domains on which any Company or any Subsidiary website is located) and applications, and unregistered Trademarks; (3) copyright registrations and applications, and material unregistered Copyrights, and (4) material Trade Secrets, indicating for each item of registered Intellectual Property and for each application to register Intellectual Property, the person or entity in whose name the registration is held, the applicable jurisdiction, registration number (or application number), date issued (or date filed) and current status. Section 4.2(q)(2) of the Company Disclosure Schedule sets forth a complete and accurate list of all third party Software that is incorporated in any Software sold, licensed, leased or otherwise distributed by or used in the course of rendering services offered by the Company or any of its Subsidiaries, indicating for each the title and owner/licensor of the Software.

(3) All Intellectual Property owned by the Company and its Subsidiaries is free and clear of all Liens.

(4) The Patents, Trademarks, Copyrights and Trade Secrets listed in Section 4.2(q)(2) of the Company Disclosure Schedule are owned by the Company or a Subsidiary and are valid and enforceable, in full force and effect, and to the extent such Intellectual Property is the subject of a registration or application (as described in Section 4.2(q)(2)), such Intellectual Property is subsisting and has not been canceled, expired, or abandoned. All necessary registration, maintenance and renewal fees currently due have been paid for the purposes of maintaining such Intellectual Property owned by the Company or any of its Subsidiaries. There is no pending or, to the Company’s Knowledge, threatened opposition, interference or cancellation Proceeding before any court or registration authority in any jurisdiction against any of the items listed in Section 4.2(q)(2) of the Company Disclosure Schedule, or, to the Company’s Knowledge, against any Intellectual Property licensed to the Company or its Subsidiaries.

(5) To the Company’s Knowledge, the conduct of the Company’s and its Subsidiaries’ business as currently conducted, (including, without limitation, its activities, products, and services), does not infringe upon any Intellectual Property rights owned or controlled by any third party (either directly or indirectly such as through contributory infringement or inducement to infringe). Section 4.2(q)(5) of the Company Disclosure Schedule lists all U.S. and foreign Patents concerning which: (i) the Company has obtained or requested written opinion of counsel; or (ii) the Company has received (y) written allegation or notice of infringement, or (z) a license offer outside the ordinary course of business. There are no claims or suits pending or, to the Company’s Knowledge, threatened against the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has received any notice of a third party claim or suit against the Company or any of its Subsidiaries (1) alleging that its past or present activities, products, services or the conduct of its businesses infringes or has infringed upon, violates, misappropriates, or constitutes the unauthorized use of the Intellectual Property rights of any third party or (2) challenging the ownership, use, validity or enforceability of any Intellectual Property.

(6) There are no settlements, forbearances to sue, consents, judgments, or orders or similar obligations to which the Company or any of its Subsidiaries is bound which (1) restrict the Company’s or its Subsidiaries’ rights to use, transfer, license or enforce any Intellectual Property, (2) restrict the Company’s or its Subsidiaries’ business in order to accommodate a third party’s Intellectual Property, or (3) permit third parties to use, or grant any third party any right with respect to any Intellectual Property owned by the Company or any of its Subsidiaries. The Company and its Subsidiaries have not licensed or sublicensed their rights in any Intellectual Property other than pursuant to the Company License Agreements, and no royalties, honoraria or other fees are payable by the Company or its Subsidiaries for the use of or right to use any Intellectual Property licensed to the Company or its Subsidiaries, except pursuant to the Company License Agreements. The Company License Agreements are valid and binding obligations of all parties thereto, enforceable in accordance with their terms subject only to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity. Except as would not, individually or in the aggregate, have a Material Adverse Effect, each of the Company and its Subsidiaries is in compliance with, and has not breached any term of any such Company License Agreement and, to the Company’s Knowledge, all other parties to such Company License Agreements Contracts are in compliance with, and have not breached any term thereof. To the Company’s Knowledge, there exists no event or condition which will result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default by the Company or any other party under any such Company License Agreement.

(7) To the Company’s Knowledge, no Trade Secret of the Company or its Subsidiaries has been disclosed or authorized to be disclosed to any third party other than pursuant to a non-disclosure agreement that protects the Company and the applicable Subsidiary’s proprietary interests in and to such Trade Secrets. Neither the Company nor, to the Company’s Knowledge, any other party to any non-disclosure agreement relating to the Company’s Trade Secrets is in breach or default thereof. The Company and its Subsidiaries have taken commercially reasonable steps to protect their material Trade Secrets, and any Trade Secrets provided to the Company or any Subsidiary by a third party as a Trade Secret. The Company and its Subsidiaries have taken commercially reasonable steps to maintain and protect the material Company owned Intellectual Property currently used in the business. Without limiting the foregoing, each of the Company and its Subsidiaries has taken commercially reasonable steps to require current or former employees, consultants and contractors of the Company or any Subsidiary that have created any material Company owned Intellectual Property to assign to the Company or its Subsidiaries all of their right, title and interest in such Intellectual Property, and to the Company’s Knowledge, no party to any such agreement is in breach thereof.

(8) To the Company’s Knowledge, n