Agreement and Plan of Merger

Exhibit 2.1

Agreement and Plan of Merger

By and Among

Interwoven, Inc.,

Broadway Merger LLC,

Optimost LLC,

and

Mark Wachen , as Representative

October 17, 2007

Agreement and Plan of Merger

     This Agreement and Plan of Merger (this “ Agreement ”) is entered into as of October 17, 2007 (the “ Agreement Date ”) by and among Interwoven, Inc., a Delaware corporation (“ Acquirer ”), Broadway Merger LLC, a New York limited liability company and a wholly owned subsidiary of Acquirer (“ Sub ”), Optimost LLC, a New York limited liability company (“ Company ”), and Mark Wachen, a resident of the State of New York, as Representative.

Recitals

     A. The parties intend that, subject to the terms and conditions hereinafter set forth, Sub will merge with and into Company (the “ Merger ”), with Company to be the surviving limited liability company of the Merger, all pursuant to the terms and conditions of this Agreement, the Certificate of Merger (as defined in Article 1 ) and the applicable provisions of the laws of the State of New York.

     B. The Managing Member of Company (the “ Managing Member ”) has approved and adopted this Agreement and, accordingly, has approved the Merger.

     C. Concurrently with the execution and delivery of this Agreement, and as a condition and inducement for the parties’ willingness to enter into this Agreement, each of the employees of Company listed on Exhibit A attached hereto (each, a “ Key Employee ”) is executing and delivering to Acquirer each of the following documents, which will be effective subject to the occurrence of, and as of, the Effective Time (as defined in Article 1 ): (i) an offer letter for employment with Acquirer, (ii) Acquirer’s standard employee invention assignment and confidentiality agreement, and (iii) a noncompetition agreement with Acquirer (each, a “ Noncompetition Agreement ” and together with the documents described in the foregoing clauses (i) and (ii), the “ Key Employee Documents ”) in substantially the form attached hereto as Exhibit B .

     D. Immediately following the execution and delivery of this Agreement, Company will secure from each Company Unitholder listed on Exhibit C-1 attached hereto a written consent substantially in the form of Exhibit C-2 attached hereto (the “ Company Unitholder Consent ”) approving and adopting this Agreement and approving the Merger, and a unitholder agreement substantially in the form attached hereto as Exhibit C-3 (the “ Unitholder Agreement ”).

     NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE 1
Certain Definitions

     As used herein, the following terms will have the meanings set forth below:

     “ Acquirer Ancillary Agreements ” means all agreements (other than this Agreement) and documents to which Acquirer is or will be a party that are required to be executed pursuant to this Agreement.

     “ Acquirer Common Stock ” means the common stock, par value $0.001 per share, of Acquirer, together with related stock purchase rights.

     “ Acquirer Options ” means options to purchase shares of Acquirer Common Stock.

     “ Acquisition Proposal ” means any agreement, offer, proposal or bona fide indication of interest by a Person (other than Acquirer or any of its Subsidiaries) or any public announcement of intention to enter into any such agreement or of (or intention to make) any offer, proposal or bona fide indication of interest relating to or involving: (a) any acquisition or purchase of Company Units or Company Rights from Company or from the Company Unitholders by any Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) representing 10% or more of the voting interest in the total outstanding voting securities of Company; (b) any tender offer or exchange offer that, if consummated, would result in any Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) beneficially owning Company Units or Company Rights representing 10% or more of the voting interest in the total outstanding voting securities of Company; (c) any merger, consolidation, business combination or similar transaction involving Company; (d) any sale, lease, mortgage, pledge, exchange, transfer, license, acquisition or disposition of 10% or more of the assets of Company in any single transaction or series of related transactions other than in connection with the sale of inventory in the ordinary course of business; (e) any sale, lease, exchange, transfer, license or disposition to a Person of all or a significant portion of the Company Business; (f) any initial public offering of capital stock or other securities of Company pursuant to a registration statement filed under the Securities Act; or (g) any liquidation, dissolution, recapitalization or other significant corporate reorganization of Company or any extraordinary dividend (whether of cash or other property).

     “ Affiliate ” means an “affiliate” within the meaning of Rule 144 or Rule 405 promulgated under the Securities Act.

     “ Applicable Laws ” means all foreign, federal, state, local, municipal or other laws, statutes, constitutions, principles of common law, resolutions, ordinances, codes, edicts, decrees, regulations, rules and other provisions having the force or effect of law, and all judicial and administrative orders, writs, injunctions, awards, judgments, decrees and determinations, applicable to a specified Person or to such Person’s assets, properties or business.

     “ Average Price Per Share ” means the average closing price of Acquirer Common Stock on the Nasdaq Stock Market (or such other exchange or quotation system on which shares of Acquirer Common Stock are then traded or quoted) and reported at www.nasdaq.com for the fifteen (15) consecutive trading days ending on (and inclusive of) the trading day that is three trading days prior to the Closing Date.

     “ business day ” means a day other than Saturday or Sunday and on which commercial banks are open for business in San Francisco, California.

     “ Cash Amount Per Class A Unit ” means (a) the Total Class A Merger Consideration divided by (b) the Fully Diluted Company Class A Units.

     “ Cash Amount Per Class B Unit ” means $2568.46.

     “ Certificate of Merger ” means a certificate of merger in substantially the form of Exhibit D .

     “ Closing ” has the meaning given in Section 7.1 .

     “ Closing Date ” has the meaning given in Section 7.1 .

     “ Code ” means the Internal Revenue Code of 1986, as amended.

     “ Company Ancillary Agreements ” means all agreements (other than this Agreement) and documents to which Company is or will be a party that are required to be executed pursuant to this Agreement.

     “ Company Business ” means the business of Company and its Subsidiaries as presently being conducted.

     “ Company Class A Units ” means the Class A Units under the Company Operating Agreement.

     “ Company Class B Units ” means the Class B Units under the Company Operating Agreement.

     “ Company IP Rights ” means (a) any and all Intellectual Property used in the conduct of the Company Business and (b) any and all other Intellectual Property owned by Company and its Subsidiaries.

     “ Company Operating Agreement ” means the Optimost LLC Amended and Restated Operating Agreement dated as of November 1, 2006.

     “ Company Options ” means options to purchase Company Class A Units, whether or not pursuant to the Company Option Plan.

     “ Company Option Plan ” means the Optimost LLC 2006 Equity Compensation Plan.

     “ Company-Owned IP Rights ” means (a) Company IP Rights that are owned or are purportedly owned by or exclusively licensed by Company or any of its Subsidiaries and (b) Company IP Rights that were developed for Company or a Subsidiary by full or part time employees or consultants of Company or its Subsidiaries.

     “ Company Products ” means all products or services produced, marketed, licensed, sold, distributed or performed by or on behalf of Company or any of its Subsidiaries and all products or services currently under development by Company or any of its Subsidiaries.

     “ Company Registered Intellectual Property ” means all United States, international and foreign: (A) patents and patent applications (including provisional applications); (B) registered trademarks, applications to register trademarks, intent-to-use applications, or other registrations or applications related to trademarks; (C) registered Internet domain names; (D) registered copyrights and applications for copyright registration; and (E) any other Intellectual Property that is the subject of an application, certificate, filing, registration or other document issued, filed with, or recorded by any governmental authority owned by, registered or filed in the name of, Company or any of its Subsidiaries.

     “ Company Rights ” means all options, warrants, calls, rights, commitments, conversion privileges or preemptive or other rights or agreements outstanding to purchase or otherwise acquire any Company Units or any securities or debt convertible into or exchangeable for Company Units or obligating Company to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or agreement.

     “ Company Source Code ” means, collectively, any software source code or confidential manufacturing specifications or designs, any material portion or aspect of software source code or confidential manufacturing specifications or designs, or any material proprietary information or algorithm contained in or relating to any software source code or confidential manufacturing specifications or designs, of any Company-Owned IP Rights or Company Products.

     “ Company Units ” means the Company Class A Units and the Company Class B Units.

     “ Company Unitholders ” means the record holders of issued and outstanding Company Units.

     “ Company Unvested Option ” means an option to purchase Company Class A Units that, as of the Effective Time, is not vested under the terms of any Contract with Company.

     “ Company Vested Options ” means an option to purchase Company Class A Units that, as of the Effective Time, is vested under the terms of any Contract with Company.

     “ Company Warrants ” means warrants to purchase Company Class A Units.

     “ Continuing Employees ” means the Offerees (as defined in Section 5.10 ) who execute the Offeree Documents (as defined in Section 5.10 ) and remain employees of the Surviving Company (as defined in Section 2.1 ) or any of its Subsidiaries or become employees of Acquirer or any of its Subsidiaries following the Effective Time.

     “ Contract ” means any contract, agreement, arrangement, commitment, undertaking, instrument, permit, mortgage, license, sublicense, letter of intent, quotation, statement of work, contract order or purchase order (in each case, whether oral or in writing).

     “ Effective Time ” means the date and time on which the Merger first becomes legally effective under the laws of the State of New York as a result of the filing with the New York Secretary of State of the Certificate of Merger in accordance with the relevant provisions of the New York Law.

     “ Effective Time Holders ” means the Company Unitholders and the holders of Vested Company Options, after giving effect to the Twelve-Month Acceleration, as of immediately prior to the Effective Time.

     “ Employee Agreement ” means any management, employment, severance, consulting, contractor, relocation, expatriation, loan, visa, work permit or other Contract (including any offer letter, agreement to employ or other Contract providing for compensation or benefits) between Company or any of its ERISA Affiliates and any current or former employee or director of Company or any of its ERISA Affiliates.

     “ Employee Plan ” means (i) any plan, program, policy, practice or Contract providing for compensation, severance, termination pay, deferred compensation, performance awards, equity or equity-related awards, bonus, pension, profit sharing, savings, retirement, welfare benefits, fringe benefits or other employee benefits or remuneration of any kind, whether written, unwritten or otherwise, funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, which is or has been maintained, contributed to or required to be contributed to by Company or any of its ERISA Affiliates (including those provided, if applicable, through a human resources and benefits outsourcing entity or other provider) for the benefit of any current or former employee, director or consultant of Company or any of its ERISA Affiliates or with respect to which Company or any of its ERISA Affiliates has or may have any Liability and any loan to an employee in excess of $10,000 and (ii) any International Plan.

     “ Encumbrance ” means, with respect to any asset, any mortgage, deed of trust, lien, pledge, charge, security interest, title retention device, conditional sale or other security arrangement, collateral assignment, claim, charge, adverse claim of title, ownership or right to use, restriction or other encumbrance of any kind in respect of such asset (including any restriction on (a) the voting of any security or the transfer of any security or other asset, (b) the receipt of any income derived from any asset,

(c) the use of any asset, and (d) the possession, exercise or transfer of any other attribute of ownership of such asset).

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

     “ ERISA Affiliate ” means any Person under common control with Company within the meaning of Section 414(b), (c), (m) or (o) of the Code and the regulations issued thereunder.

     “ Escrow Cash ” means an amount of cash equal to 15% of the Total Merger Consideration.

     “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

     “ Fully Diluted Company Class A Units ” means the sum, without duplication, of the aggregate number of Company Class A Units that are issued and outstanding immediately prior to the Effective Time or issuable upon the exercise of Company Options (excluding New Company Options but including all Company Vested Options cashed out pursuant to Section 2.2(b)(iv) ), Company Warrants or other direct or indirect rights to acquire Company Class A Units that are issued and outstanding immediately prior to the Effective Time (whether or not then vested or exercisable); provided , however , that for purposes of calculating the Fully Diluted Company Class A Units, the Fully Diluted Company Class A Units shall exclude the New Company Options and the Company Class A Units into which the New Company Options are exercisable.

     “ Fully Diluted Company Class B Units ” means the sum, without duplication, of the aggregate number of Company Class B Units that are issued and outstanding immediately prior to the Effective Time or any direct or indirect rights to acquire Company Class B Units that are issued and outstanding immediately prior to the Effective Time (whether or not then vested or exercisable).

     “ GAAP ” means United States generally accepted accounting principles.

     “ Governmental Authority ” means any court, administrative agency, commission or other governmental agency or authority.

     “ Intellectual Property ” means any and all industrial and intellectual property rights and all rights associated therewith throughout the world, including all patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data, proprietary processes and formulae, algorithms, specifications, customer lists and supplier lists, all industrial designs and any registrations and applications therefor, all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor, including the goodwill symbolized by the foregoing, Internet domain names, Internet and World Wide Web URLs or addresses, all copyrights, copyright registrations and applications therefor, and all other rights corresponding thereto, all mask works, mask work registrations and applications therefor, and any equivalent or similar rights in semiconductor masks, layouts, architectures or topology, all computer software, including all source code, object code, firmware, development tools, files, records and data, all schematics, netlists, test methodologies, test vectors, emulation and simulation tools and reports, hardware development tools, and all rights in prototypes, breadboards and other devices, all databases and data collections and all rights therein, all moral and economic rights of authors and inventors, however denominated, and any similar or equivalent rights to any of the foregoing, and all tangible embodiments of the foregoing.

     “ International Plan ” means any Employee Plan that has been adopted or maintained by Company or any of its Subsidiaries, for the benefit of current or former employees, directors or consultants of Company or any of its Subsidiaries outside the United States.

     “ Knowledge ” means, with respect to any fact, circumstance, event or other matter in question, the actual knowledge of such fact, circumstance, event or other matter after reasonable inquiry of (a) an individual, if used in reference to an individual or (b) the individuals listed on Schedule 1.1 attached hereto, if in reference to Company, after reasonable inquiry by such individuals of the management personnel employed by Company charged with administrative or operational responsibility for such matters for Company, provided that such person(s) from whom inquiry should be made has actual knowledge of the particular fact, circumstance, event or other matter.

     “ Liability ” means any debt, liability or obligation, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, known or unknown, and whether due or to become due, including those arising under any law, action or governmental order and those arising under any Contract.

     “ made available ” means, when used in relation to Acquirer or Acquirer’s counsel, that a copy of the subject documents was actually delivered by Company to Acquirer or its counsel or was uploaded to the online data room organized by Company for the purpose of conducting due diligence with respect to Company, in either case either (a) at least 3 business days before the Agreement Date or (b) as listed on Schedule 1.1 of the Company Disclosure Letter.

     “ Material Adverse Change ” or “ Material Adverse Effect ,” when used with reference to any Person, means any event, change, violation, inaccuracy, circumstance or effect (each, an “ Effect ”) (regardless of whether such Effect constitutes a breach of any representations or warranties made in this Agreement) that is or is reasonably likely to be or become, individually or in the aggregate, materially adverse to the condition (financial or otherwise), capitalization, properties, , assets (including intangible assets), Liabilities, business, operations or results of operations of such Person and its Subsidiaries, taken as a whole, except to the extent that any such Effect directly results from: (A) changes in general economic conditions (provided that such changes do not affect such Person disproportionately as compared to such Person’s competitors); or (B) changes affecting the industry generally in which such Person operates (provided that such changes do not affect such Person disproportionately as compared to such Person’s competitors).

     “ New Company Options ” means Company Options granted pursuant to Section 5.10(b) under the Company Option Plan, as amended pursuant to Section 5.10(b) .

     “ Net Working Capital ” means (a) Company’s consolidated total current assets as of the Closing Date (as defined by and determined in accordance with GAAP and Company’s historical accounting practices to the extent such accounting practices are in compliance with GAAP) minus (b) Company’s consolidated total current liabilities as of the Closing Date (as defined by and determined in accordance with GAAP and Company’s historical accounting practices to the extent such accounting practices are in compliance with GAAP). For purposes of calculating Net Working Capital, (i) Company’s current liabilities shall include (A) all debt of Company whether short- or long-term, and (B) all Transaction Expenses; and (ii) accounts receivable included in Company’s current assets shall include only those accounts receivable outstanding less than 90 days from the relevant invoice date.

     “ Net Working Capital Certificate ” means a certificate executed by the Chief Executive Officer of Company, certifying the estimated amount of Net Working Capital (including (i) an itemized list of indebtedness of Company with a description of the nature of such indebtedness and the Person to whom such indebtedness is owed, (ii) an itemized list of Company’s consolidated current assets, and (iii) an

itemized list of Company’s consolidated current liabilities).

     “ New York Law ” means the New York Limited Liability Company Law.

     “ Option Exchange Ratio ” means the quotient obtained by dividing (A) the Cash Amount Per Class A Unit by (B) the Average Price Per Share.

     “ Permitted Encumbrance ” shall mean (i) Encumbrances for taxes not yet due and payable, or (ii) Encumbrances for assessments and other governmental charges or landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings.

     “ Person ” means any individual, corporation (including any not-for-profit corporation), general or limited partnership, limited liability partnership, joint venture, estate, trust, firm, company (including any limited liability company or joint stock company), association, organization, entity or Governmental Authority.

     “ Pro Rata Share ” means, with respect to a particular Effective Time Holder, the amount of cash such Effective Time Holder is entitled to receive pursuant to Section 2.2(b) with respect to its Company Units and/or Company Vested Options, relative to the amount of cash all Effective Time Holders are entitled to receive pursuant to Section 2.2(b) with respect to their Company Units and/or Company Vested Options.

     “ Regulations ” means the Treasury Regulations issued under the Code.

     “ SEC ” means the Securities and Exchange Commission.

     “ Securities Act ” means the Securities Act of 1933, as amended.

     “ Sub Ancillary Agreements ” means all agreements (other than this Agreement) and documents to which Sub is or will be a party that are required to be executed pursuant to this Agreement.

     “ Subsidiary ” of a specified entity means any corporation, partnership, limited liability company, joint venture or other entity of which the specified entity (either alone or through or together with any other subsidiary) owns, directly or indirectly, 50% or more of the stock or other equity or partnership interests the holders of which are generally entitled to vote for the election of the Board of Directors or other governing body of such corporation or other entity.

     “ Systems ” means all records, databases, Company Websites (as defined in Section 3.15(a) ), software, systems and networks used by Company in the conduct of the Company Business.

     “ Tax ” and “ Taxes ” mean all federal, state, local or foreign income, gross receipts, gains, franchise, excise, capital stock, severance, stamp, premium, windfall profits, environmental, custom duties, real property, personal property, sales, use, employment, license, payroll, services, occupation, recording, registration, withholding, social security (or similar), unemployment, disability, value added, alternative or add-on minimum or transfer taxes, governmental charges, fees, levies, assessments or other taxes (whether payable directly or by withholding) imposed by any Governmental Authority responsible for the imposition of any such taxes (domestic or foreign) (each, a “ Tax Authority ”), and, with respect to such taxes, charges, fees, levies and assessments, any estimated tax, interest, fines, penalties or additions and interest on such fines, penalties and additions, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax Liability of any other Person.

     “ Termination Date ” means November 15, 2007.

     “ Total Class A Merger Consideration ” means (a) the Total Merger Consideration less (b) the Total Class B Merger Consideration.

     “ Total Class B Merger Consideration ” means (a) the Fully Diluted Company Class B Units multiplied by (b) the Cash Amount Per Class B Unit.

     “ Total Merger Consideration ” means (a) $52,000,000 plus (b) the aggregate exercise price of all Company Vested Options cashed out pursuant to Section 2.2(b)(iv) minus (c) the amount, if any, by which the Net Working Capital is less than $1,500,000 as of immediately prior to the Closing (such amount being a “ Net Working Capital Shortfall ”).

     “ Unvested Company Units ” means any Company Units that are not vested under the terms of any Contract with Company (including any option agreement, option exercise agreement or restricted unit purchase agreement).

ARTICLE 2
Plan of Merger

     2.1 The Merger . Subject to termination of this Agreement as provided in Article 10 , the parties hereto will cause the Merger to be consummated by filing the Certificate of Merger with the New York Secretary of State in accordance with New York Law as soon immediately after the Closing Date. Subject to the terms and conditions of this Agreement, at the Effective Time, Sub will be merged with and into Company in a statutory merger, the separate existence of Sub will cease and Company will be the surviving limited liability company in the Merger (the “ Surviving Company ”), all pursuant to the Certificate of Merger and in accordance with the applicable provisions of the New York Law.

     2.2 Conversion and Exchange of Units and Options .

          (a) Conversion of Sub Units . Subject to the terms and conditions of this Agreement, at the Effective Time, each membership unit of Sub that is issued and outstanding immediately prior to the Effective Time will be converted into one validly issued, fully paid and nonassessable membership unit of the Surviving Company. Each certificate evidencing ownership of Sub membership units will evidence ownership of such membership units of the Surviving Company.

          (b) Conversion of Company Units and Company Vested Options; Treatment of Warrants .

               (i)  Company Class B Units . Subject to the terms and conditions of this Agreement, at the Effective Time, each Company Class B Unit that is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without any further action on the part of Acquirer, Sub, Company or the holder thereof (except as expressly provided herein), be converted into and represent the right to receive an amount of cash (without interest) equal to the Cash Amount Per Class B Unit. The amount of cash that each Effective Time Holder is entitled to receive pursuant to this Section 2.2(b)(i) shall be rounded to the nearest cent and computed after aggregating all cash such Effective Time Holder is entitled to receive pursuant to this Section 2.2(b) . The preceding provisions of this Section 2.2(b)(i) are subject to the provisions of Section 2.2(e) (regarding withholding rights) and Section 2.4 (regarding the Escrow Cash).

               (ii)  Company Class A Units . Subject to the terms and conditions of this Agreement, at the Effective Time, each Company Class A Unit that is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without any further action on the part of Acquirer, Sub, Company or the holder thereof (except as expressly provided herein), be converted into and represent the right to receive an amount of cash (without interest) equal to the Cash Amount Per Class A Unit. The amount of cash that each Effective Time Holder is entitled to receive pursuant to this Section 2.2(b)(ii) shall be rounded to the nearest cent and computed after aggregating all cash such Effective Time Holder is entitled to receive pursuant to this Section 2.2(b) . The preceding provisions of this Section 2.2(b)(ii) are subject to the provisions of Section 2.2(e) (regarding withholding rights) and Section 2.4 (regarding the Escrow Cash).

               (iii)  Company Warrants . No Company Warrants, whether vested or unvested, shall be assumed by Acquirer in the Merger, and at the Effective Time, each Company Warrant will be by virtue of the Merger, and without any further action on the part of any holder thereof, be cancelled and extinguished.

               (iv)  Company Vested Options . Subject to the terms and conditions of this Agreement, at the Effective Time (including Company Options that will be accelerated as to 12 months of vesting pursuant to the Company Option Plan or otherwise (the “ Twelve-Month Acceleration ”), each Company Vested Option that is unexpired, unexercised and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without any further action on the part of Acquirer, Sub, Company or the holder thereof (except as expressly provided herein), be thereafter no longer exercisable but will be converted into and represent the right to receive an amount of cash (without interest) equal to the product of (1) the Cash Amount Per Class A Unit minus the exercise price per Company Class A Unit subject to such Company Vested Option multiplied by (2) the number of Company Class A Units subject to such Company Vested Option. The amount of cash that each Effective Time Holder is entitled to receive pursuant to this Section 2.2(b)(iv) shall be rounded to the nearest cent and computed after aggregating all cash such Effective Time Holder is entitled to receive pursuant to this Section 2.2(b) . The preceding provisions of this Section 2.2(b)(iv) are subject to the provisions of Section 2.2(e) (regarding withholding rights) and Section 2.4 (regarding the Escrow Cash).

          (c) Company Unvested Options . At the Effective Time, each Company Unvested Option held by a Continuing Employee that is unexpired, unexercised and outstanding immediately prior to the Effective Time (including the New Company Options), shall, on the terms and subject to the conditions set forth in this Agreement, be assumed by Acquirer. Each such Company Unvested Option so assumed by Acquirer under this Agreement shall continue to have, and be subject to, the same terms and conditions as are in effect immediately prior to the Effective Time, except that (i) such Acquirer Option shall be exercisable for that number of whole shares of Acquirer Common Stock equal to the product (rounded down to the next whole number of shares of Acquirer Common Stock, with no cash being payable for any fractional share eliminated by such rounding) of the number of Company Class A Units that were issuable upon exercise of such option immediately prior to the Effective Time and the Option Exchange Ratio, (ii) the per share exercise price for the shares of Acquirer Common Stock issuable upon exercise of such Acquirer Option shall be equal to the quotient (rounded up to the next whole cent) obtained by dividing the exercise price per Company Class A Unit at which such Company Unvested Option was exercisable immediately prior to the Effective Time by the Option Exchange Ratio, and (iii) no Acquirer Option may be “early exercised” ( i.e. , an Acquirer Option may be exercised for shares of Acquirer Common Stock only to the extent such Acquirer Option is vested at the time of exercise pursuant to the applicable vesting schedule). Except with respect to the Twelve-Month Acceleration, the Merger shall not terminate any of the outstanding Company Unvested Options held by Continuing Employees under such plan or accelerate the exercisability or vesting of such options or the shares of Acquirer Common Stock which shall be subject to those options upon Acquirer’s assumption of the

options in the Merger. As soon as reasonably practicable following the date on which Acquirer first again becomes eligible to use Form S-8 (or successor form) promulgated by the SEC under the Securities Act, Acquirer will cause the shares of Acquirer Common Stock issuable upon exercise of the Company Unvested Options assumed by Acquirer under this Agreement to be registered or to be issued pursuant to an effective registration statement on Form S-8 (or successor form). Notwithstanding the foregoing, Acquirer will not be obligated to register the issuance of any shares of Acquirer Common Stock that are subject to an Acquirer Option held by a Person who is ineligible to have such Person’s securities registered on Form S-8 (or successor form).

          (d) Cancellation of Company-Owned Units . Notwithstanding Section 2.2(b) , each Company Unit held by Company immediately prior to the Effective Time will be canceled and extinguished without any conversion thereof and without the issuance or payment of any consideration.

          (e) Withholding Rights . Acquirer, the Surviving Company and the Exchange Agent (as defined in Section 7.2(a) ) will be entitled to deduct and withhold from the consideration otherwise deliverable under this Agreement, and from any other payments otherwise required pursuant to this Agreement, to any holder of Company Units, or any Company Options such amounts as Acquirer, the Surviving Company or the Exchange Agent is required to deduct and withhold with respect to any such deliveries and payments under the Code or any provision of state, local, provincial or foreign Tax law. To the extent that amounts are so withheld, such withheld amounts will be treated for all purposes of this Agreement as having been delivered and paid to such holders in respect of which such deduction and withholding was made.

     2.3 Adjustments . In the event of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into capital stock), reorganization, reclassification, combination, recapitalization or other like change with respect to the Company Units or Acquirer Common Stock occurring after the Agreement Date and prior to the Effective Time, all references in this Agreement to specified numbers of shares of any class or series affected thereby, and all calculations provided for that are based upon numbers of shares of any class or series (or trading prices therefor) affected thereby, shall be equitably adjusted to the extent necessary to provide the parties the same economic effect as contemplated by this Agreement prior to such stock split, reverse stock split, stock dividend, reorganization, reclassification, combination, recapitalization or other like change.

     2.4 Escrow . At the Effective Time and pursuant to the Escrow Agreement (as defined in Section 8.5 ), Acquirer will withhold from the portion of the Total Merger Consideration payable to each Effective Time Holder in the Merger upon conversion of his/her/its outstanding Company Units and Company Vested Options pursuant to Section 2.2 and shall cause to be deposited with the Escrow Agent (as defined in Section 11.2 ) such Effective Time Holder’s Pro Rata Share of the Escrow Cash. The Escrow Cash shall constitute security for the indemnification obligations of the Effective Time Holders pursuant to Article 11 .

     2.5 Total Merger Consideration . At the Effective Time, Acquirer shall cause to be deposited with the Exchange Agent (as defined in Section 7.2(a)) an amount equal to (i) the Total Merger Consideration less (ii) the Escrow Cash. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the aggregate consideration paid by Acquirer to the holders of Company Units and Company Options (including the value of the shares of Acquirer Common Stock or other consideration, if any, that will be subject to Company Unvested Options assumed by Acquirer (excluding the New Company Options) at the Effective Time pursuant to Section 2.2(c) ) exceed the Total Merger Consideration, except to the extent that any amount in excess of the Total Merger Consideration is as a result of any changes in the price of Acquirer Common Stock occurring after the calculation of the Average Price Per Share.

     2.6 Net Working Capital Adjustment .

          (a) Company shall deliver the Net Working Capital Certificate to Acquirer not less than three business days prior to the Closing Date.

          (b) At Acquirer’s option, but in any event within 12 months of the Closing Date (such date, for purposes hereof, the “ Audit Completion Date ”), Acquirer may object to the Net Working Capital calculations included in the Net Working Capital Certificate (the “ NWC Calculations ”) by delivering to the Representative a certificate (the “ Acquirer NWC Certificate ”) executed by Acquirer’s Chief Financial Officer setting forth Acquirer’s calculation of Net Working Capital and the amount by which Net Working Capital as calculated by Acquirer is less than the Net Working Capital set forth in the Net Working Capital Certificate.

          (c) The Representative may object to the Net Working Capital calculations set forth in the Acquirer NWC Certificate by providing written notice of such objection to Acquirer within 20 days after Acquirer’s delivery of the Acquirer NWC Certificate (the “ Notice of Objection ”).

          (d) If the Representative timely provides the Notice of Objection, then the parties shall engage Deloitte & Touche USA LLP (the “ Reviewing Accountant ”) to review the NWC Calculations. After review of the NWC Calculations and Company’s books and records, the Reviewing Accountant shall promptly determine the Net Working Capital and such determination shall be final and binding on the parties.

          (e) If the Net Working Capital, as determined pursuant to Section 2.6(b) (in the event there is no Notice of Objection) or Section 2.6(d) , is in fact less than the Net Working Capital set forth in the Net Working Capital Certificate (such difference, the “ Negative Adjustment Amount ”), then, if and only if the Total Merger Consideration would be reduced after giving effect to the Negative Adjustment Amount, Acquirer shall be indemnified in accordance with Article 11 , without giving effect to the Basket (as defined in Section 11.4(a) ) and without any dispute by the Representative, for the full amount of:

               (i) the Negative Adjustment Amount;

               (ii) if Net Working Capital as determined by the Reviewing Accountant is less than or equal to Net Working Capital as set forth in the Acquirer NWC Certificate, all fees and expenses of the Reviewing Accountant relating to the review of the NWC Calculations; and

               (iii) if Net Working Capital as determined by the Reviewing Accountant is greater than Net Working Capital as set forth in the Acquirer NWC Certificate, a percentage of the fees and expenses of the Reviewing Accountant, which percentage shall equal the difference between Net Working Capital as set forth in the Net Working Capital Certificate and Net Working Capital as determined by the Reviewing Accountant divided by the difference between Net Working Capital as set forth in the Net Working Capital Certificate and Net Working Capital as set forth in the Acquirer NWC Certificate.

          (f) Except to the extent set forth in Section 2.6(e), all fees and expenses of the Reviewing Accountant relating to the review of the NWC Calculations shall be paid by Acquirer.

     2.7 Effects of the Merger .

          (a) General . At the Effective Time, the effect of the Merger will be as provided in this Agreement and the applicable provisions of New York Law. Without limiting the generality of the

foregoing, at the Effective Time, all of the properties, rights, privileges, powers and franchises of Company and Sub will vest in the Surviving Company, and all Liabilities and duties of Company and Sub will become the Liabilities and duties of the Surviving Company.

          (b) Articles of Organization . The Articles of Organization of Sub immediately prior to the Effective Time will be the Articles of Organization of the Surviving Company immediately after the Effective Time until thereafter amended in accordance with the provisions thereof or as provided by law; provided , however , that Article I of the Articles of Organization of the Surviving Company will be amended at the Effective Time to read: “The name of the limited liability company is Optimost LLC.”

          (c) Operating Agreement . The Operating Agreement of Sub immediately prior to the Effective Time will continue unchanged and be the Operating Agreement of the Surviving Company immediately after the Effective Time until thereafter amended in accordance with the provisions thereof or as provided by law.

          (d) Manager . At the Effective Time, the initial managers of the Surviving Company will be the managers of Sub immediately prior to the Effective Time, until their respective successors are duly elected or appointed and qualified.

     2.8 Tax Consequences . The parties intend the merger to be a taxable sale of the Company Units by the Company Unitholders consistent with IRS Revenue Ruling 99-6. Acquirer makes no representations or warranties to Company or to any holder of Company Units or Company Options regarding the Tax treatment of the Merger, or any of the Tax consequences to Company or any holder of Company Units or Company Options of this Agreement, the Merger or any of the other transactions or agreements contemplated hereby. Company acknowledges that Company and the holders of Company Capital Units and Company Options are relying solely on their own Tax advisors in connection with this Agreement, the Merger and the other transactions and agreements contemplated hereby.

     2.9 Further Assurances . Company agrees that if, at any time after the Effective Time, Acquirer believes or is advised that any further deeds, assignments or assurances are reasonably necessary or desirable to vest, perfect, confirm or continue in the Surviving Company, Sub or Acquirer title to any property or any right of Company as provided herein, Acquirer and any of its officers are hereby authorized by Company to execute and deliver all such proper deeds, assignments and assurances and do all other things necessary or desirable to vest, perfect, confirm or continue title to such property or rights in the Surviving Company, Sub or Acquirer and otherwise to carry out the purposes of this Agreement, in the name of Company or otherwise. The parties further agree that, upon Acquirer’s request, the parties will amend this Agreement to cause Company to merge into Sub (with Sub to be the surviving corporation) or to cause Company to merge into a different direct or indirect Subsidiary of Acquirer.

     2.10 Rights Not Transferable . The rights of the Company Unitholders and the holders of Company Options, in each case as of immediately prior to the Effective Time, are personal to each such securityholder and will not be transferable for any reason otherwise than by operation of law, will or the laws of descent and distribution. Any attempted transfer of such right by any holder thereof (otherwise than as permitted by the immediately preceding sentence) will be null and void.

ARTICLE 3
Representations and Warranties of Company

     Company represents and warrants to Acquirer that, except as set forth in the letter addressed to Acquirer from Company and dated as of the Agreement Date, including all Schedules thereto (referencing the appropriate Sections of this Agreement) which has been delivered by Company to Acquirer

concurrently with the parties’ execution of this Agreement (the “ Company Disclosure Letter ”), each of the representations, warranties and statements contained in the following Sections of this Article 3 is true and correct. For all purposes of this Agreement, the statements contained in the disclosures and Schedules to the Company Disclosure Letter will also be deemed to be representations and warranties made and given by Company under or, as applicable, limitations upon and exceptions to the representation and warranties in, this Article 3.

     3.1 Organization and Good Standing . Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York. Company has the corporate power and authority to own, operate and lease its properties and to carry on the Company Business and is duly qualified or licensed to do business and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification or licensing necessary (each such jurisdiction being listed on Schedule 3.1 of the Company Disclosure Letter), except where the failure to be so qualified or licensed would not, individually or in the aggregate, reasonably be expected to be material to Company. Company is not in violation of its Articles of Organization or the Company Operating Agreement.

     3.2 Subsidiaries . Schedule 3.2 of the Company Disclosure Letter sets forth a true, correct and complete list of each Subsidiary of Company, and each such Subsidiary is wholly owned by Company. Except for any Subsidiary, Company has no equity interest, direct or indirect, in, or loans to, any Person. Company is not obligated to make, nor bound by any Contract to make, any investment in or capital contribution in or on behalf of any other Person. Schedule 3.2 of the Company Disclosure Letter sets forth, with respect to each Subsidiary of Company, (a) its jurisdiction of incorporation or organization, (b) a correct and complete list of all jurisdictions in which it is qualified to do business, and (c) the address of its principal executive offices. Each Subsidiary of Company is duly organized, validly existing and in good standing (or appropriately recognized as legally in existence and active under the laws of its jurisdiction) under the laws of its jurisdiction of incorporation or organization identified on Schedule 3.2 of the Company Disclosure Letter and has the power and authority to own, operate and lease its properties and to carry on its business as presently being conducted. Each Subsidiary of Company is duly qualified or licensed to do business and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification or licensing necessary, except where the failure to be so qualified or licensed would not, individually or in the aggregate, have a Material Adverse Effect on such Subsidiary. Neither Company nor any of its Subsidiaries is a general or limited partner of any general partnership, limited partnership or other entity.

     3.3 Power, Authorization and Validity .

          (a) Company has the corporate power and authority to enter into and perform its obligations under this Agreement and all Company Ancillary Agreements. The execution, delivery and performance of this Agreement and the Company Ancillary Agreements, and the Merger have been duly and validly approved and authorized by Company and the Managing Member, and this Agreement has been duly executed and delivered by Company. Except for the approval of holders of a majority of the outstanding Company Class A Units, no other approval or authorization of the Company Unitholders or any officer of Company to approve the Merger, this Agreement and, if required, each Company Ancillary Agreement is required to approve the Merger, this Agreement and, if required, each Company Ancillary Agreement and all other agreements, transactions and actions contemplated hereby and thereby.

          (b) No filing, authorization, consent, approval, permit, order, registration or declaration, governmental or otherwise, is necessary to enable Company to enter into, and to perform its obligations under, this Agreement or the Company Ancillary Agreements, except for: (i) the approval of holders of a majority of the outstanding Company Class A Units (the “ Company Unitholder Approval ”); (ii) the filing

of the Certificate of Merger with the New York Secretary of State; and (iii) such other filings, authorizations, consents, approvals, permits, orders, registrations and declarations, if any, that if not made or obtained by Company would not be material to Company’s ability to consummate the Merger or to perform its obligations under this Agreement and the Company Ancillary Agreements and would not, individually or in the aggregate, have a Material Adverse Effect on Company.

          (c) This Agreement and the Company Ancillary Agreements are, or when executed by Company will be, valid and binding obligations of Company enforceable against Company in accordance with their respective terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.

     3.4 Capitalization .

          (a) The issued and outstanding membership units of Company consist solely of (i) 20,792,554.55 Company Class A Units and (ii) 415.97 Company Class B Units. Except as set forth in the preceding sentence, (i) there are no other issued and outstanding Company Units or other securities of Company, other than Company Options as of the Agreement Date and (ii) there are no outstanding Contracts to issue any Company Units or other securities of Company as of the Agreement Date. Schedule 3.4(a)-1 of the Company Disclosure Letter accurately sets forth, as of the Agreement Date, the name of each Person that is the registered owner of any Company Units and the number of Company Units so owned by such Person. The number of Company Units set forth as being so owned by such Person constitutes the entire interest of such Person in the issued and outstanding membership units or voting securities of Company as of the Agreement Date. All issued and outstanding Company Units are duly authorized, validly issued, fully paid and non-assessable and are free of any Encumbrances, preemptive rights, rights of first refusal or “put” or “call” rights created by statute, Company’s Articles of Organization, the Company Operating Agreement or any Contract to which Company is a party or by which Company is bound. All issued and outstanding Company Units were issued in material compliance with all Applicable Laws and all material requirements set forth in applicable Contracts. There are no outstanding Unvested Company Units. There is no distributions in respect of Company Units accrued and/or unpaid by Company. Company is not under any obligation to register under the Securities Act any Company Units or any other securities of Company, whether currently outstanding or that may subsequently be issued.

          (b) As of the Agreement Date, the Company has reserved an aggregate of 3,859,000 Company Units for issuance to employees, non-employee directors and consultants pursuant to Company Options, of which 1,693,500 Company Units are subject to outstanding and unexercised Company Options and 2,165,000 Company Units remain available for issuance thereunder. Schedule 3.4(b)-1 of the Company Disclosure Letter sets forth, as of the Agreement Date, a true, correct and complete list of all holders of outstanding Company Options, including the number of Company Units subject to each such option, the exercise or vesting schedule (and the terms of any acceleration thereof), and the exercise price per share. No Company Options qualify for special tax treatment under Section 421(a) of the Code. Schedule 3.4(b)-2 of the Company Disclosure Letter sets forth a true, correct and complete list (which schedule will be a subset of Schedule 3.4(b)-1 of the Company Disclosure Letter), as of the Agreement Date, of all holders of outstanding Company Options that are held by Persons that are not employees of Company or any of its Subsidiaries (including non-employee directors, consultants, advisory board members, vendors, service providers or other similar persons). All issued and outstanding Company Options and Company Warrants were issued in compliance with all Applicable Laws and all requirements set forth in applicable Contracts. All Unvested Company Options to be assumed by Acquirer pursuant to Section 2.2(c) were granted under, and in compliance with, Rule 701 promulgated under the Securities Act and any applicable guidance issued thereunder.

          (c) As of the Agreement Date, there are outstanding Company Warrants to purchase 17,857.14 Company Units. Schedule 3.4(c) of the Company Disclosure Letter sets forth, as of the Agreement Date, a true, correct and complete list of all holders of outstanding Company Warrants, including the number of Company Units covered by each such Company Warrant, the date of grant, the exercise or vesting schedule (and the terms of any acceleration thereof) and the exercise price per Company Unit. Other than as set forth on Schedules 3.4(a) , 3.4(b)-1 , 3.4(b)-2 and 3.4(c) of the Company Disclosure Letter, as of the Agreement Date, no Person has any right to acquire from Company or any Company Unitholder any Company Units or any options, warrants or other rights to purchase Company Units or other securities of Company.

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

          (e) Except for the Company Options described in Schedule 3.4(b)-1 and 3.4(b)-2 of the Company Disclosure Letter and the Company Warrants described in Schedule 3.4(c) of the Company Disclosure Letter, there are no options, warrants, calls, rights or Contracts of any character to which Company is a party or by which it is bound obligating Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any Company Units, options, warrants or other rights to purchase Company Units or other securities of Company, or any Company Voting Debt, or obligating Company to grant, extend, accelerate the vesting and/or repurchase rights of, change the price of, or otherwise amend or enter into any such option, warrant, call, right or Contract. There are no Contracts relating to voting, purchase or sale of any Company Units (i) between or among Company and any of its securityholders, other than written contracts granting Company the right to purchase unvested Company Units upon termination of employment or service, and (ii) to Company’s Knowledge, between or among any of Company’s securityholders. Except as set forth on Schedule 3.4(e) , neither the Company Option Plan nor any Contract of any character to which Company and/or its Subsidiaries is a party to or by which Company and/or its Subsidiaries is bound relating to any Company Options require or otherwise provide for any accelerated vesting of any Company Options in connection with the Merger or any other transaction contemplated by this Agreement or upon termination of employment or service with Company, Acquirer or any of their respective Subsidiaries, or any other event, before, upon or following the Merger or otherwise. A true and complete copy of the Company Option Plan, all agreements and instruments relating to or issued under the Company Option Plan (including executed copies of all Contracts relating to the Company Option and the Company Units purchased under such option) and each Company Warrant have been made available to Acquirer’s counsel, and such plans and Contracts have not been amended, modified or supplemented since being made available to Acquirer’s counsel, and there are no Contracts or understandings to amend, modify or supplement such plans or Contracts in any case from those made available to Acquirer’s counsel.

          (f) Company has good and marketable title to all of the issued and outstanding stock or other securities or equity interests of each of its Subsidiaries set forth on Schedule 3.4(f) of the Company Disclosure Letter, free and clear of any Encumbrance. All such issued and outstanding stock or other securities or equity interests have been duly authorized and validly issued, are fully paid and nonassessable, are not subject to any right of rescission, right of first refusal or preemptive right, and have been offered, issued, sold and delivered by the relevant Subsidiary of Company in compliance with all requirements of Applicable Laws and all requirements set forth in applicable Contracts. There are no stock appreciation rights, options, warrants, calls, rights, commitments, conversion privileges or preemptive or other rights or agreements outstanding to purchase or otherwise acquire any stock or other securities or equity interests of any Subsidiary of Company or any securities or debt convertible into or

exchangeable for such stock or other securities or equity interests or obligating such Subsidiary of Company to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or agreement.

     3.5 No Conflicts . Neither the execution and delivery of this Agreement or the Company Ancillary Agreements, nor the consummation of any of the transactions contemplated herein or therein, will (a) conflict with, result in any violation or default under (with or without notice or lapse of time, or both), give rise to a right of termination, cancellation or acceleration or any obligation or loss of any benefit under, or require any consent, approval or waiver from any Person pursuant to (i) any provision of Company’s Articles of Organization or the Company Operating Agreement or similar charter documents of any of Company’s Subsidiaries, each as currently in effect, (ii) any Applicable Law, or (iii) any Contract to which Company or any of its Subsidiaries is a party or by which Company or any of its Subsidiaries or any of their respective assets or properties are bound or affected, except, in the case of clauses (ii) and (iii), as would not be material to Company or (b) result in the creation of any Encumbrance, except for Permitted Encumbrances, on any of the material properties or assets of Company or any of its Subsidiaries or, to Company’s Knowledge, any of the Company Units.

     3.6 Litigation .

          (a) There is no action, suit, arbitration, mediation, proceeding, claim or, to Company’s Knowledge, investigation pending against Company or any of its Subsidiaries or any of their respective assets or properties (or to Company’s Knowledge against any director, officer, employee, agent or other similar representative of Company or any of its Subsidiaries in their capacity as such or relating to their employment, services or relationship with Company or any of its Subsidiaries) before any Governmental Authority or arbitrator, nor, to Company’s Knowledge, is any such action, suit, arbitration, mediation, proceeding, claim or investigation threatened, nor is there any reasonable basis for any such action, suit, arbitration, mediation, proceeding, claim or investigation.

          (b) There is no judgment, decree, injunction, rule or order against Company or any of its Subsidiaries or any of their respective assets or properties (or, to the Knowledge of Company and its Subsidiaries, against any director, officer, employee, agent or other similar representative of Company or any of its Subsidiaries in their capacity as such or relating to their employment, services or relationship with Company or any of its Subsidiaries).

          (c) To Company’s Knowledge, there is no reasonable basis for any Person to assert a claim against Company or any of its Subsidiaries based upon Company’s entering into this Agreement or any Company Ancillary Agreement or consummating the Merger or any of the transactions contemplated by this Agreement or any Company Ancillary Agreement.

          (d) Neither Company nor any of its Subsidiaries has any action, suit, arbitration, mediation, proceeding, claim or investigation pending against any other Person.

     3.7 Financial Statements .

          (a) Company made available to Acquirer its consolidated unaudited financial statements for the fiscal years ended December 31, 2006, and for the eight (8) month period ended August 31, 2007 (including, in each case, balance sheets, statements of operations and statements of cash flows and including consolidated unaudited financial statements for the eight (8) month period ended August 31, 2007) (collectively, the “ Financial Statements ”), which are included as Schedule 3.7(a) of the Company Disclosure Letter. Except as set forth on Schedule 3.7 of the Company Disclosure Letter, the Financial Statements (i) are derived from and are in accordance with the books and records of Company,

(ii) complied as to form in all material respects with applicable accounting requirements with respect thereto as of their respective dates, (iii) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and consistent with each other, (iv) fairly present the consolidated financial condition of Company and its Subsidiaries at the dates therein indicated and the consolidated results of operations and cash flows of Company and its Subsidiaries for the periods therein specified, and (v) are true, complete and correct in all material respects. Neither Company nor any of its Subsidiaries has any Liabilities other than (i) those set forth or adequately provided for in the Balance Sheet included in the Financial Statements as of August 31, 2007 (the “ Balance Sheet ”), (ii) those incurred in the conduct of Company’s business since August 31, 2007 (the “ Balance Sheet Date ”) in the ordinary course, consistent with past practice, which are of the type that ordinarily recur and, individually or in the aggregate, are not material in nature or amount and do not result from any breach of Contract, tort or violation of law, (iii) those Liabilities that are not required to be included in financial statements prepared in accordance with GAAP and (iv) those incurred by Company in connection with the execution of this Agreement. Except for Liabilities reflected in the Financial Statements, Company has no off balance sheet Liability of any nature to, or any financial interest in, any third party or entities, the purpose or effect of which is to defer, postpone, reduce or otherwise avoid or adjust the recording of expenses incurred by Company. All reserves that are set forth in or reflected in the Balance Sheet have been established in accordance with GAAP consistently applied and to the knowledge of the Company are adequate.

          (b) Company has established and maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions, receipts and expenditures of Company and its Subsidiaries are being executed and made only in accordance with appropriate authorizations of the Managing Member, (ii) transactions are recorded as necessary (A) to permit preparation of financial statements in conformity with GAAP and (B) to maintain accountability for assets, (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of Company and its Subsidiaries, (iv) the amount recorded for assets on the books and records of Company is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Neither Company, any of its Subsidiaries or Company’s independent auditors nor, to Company’s Knowledge, any current or former employee, consultant, director or manager of Company or any of its Subsidiaries has identified or been made aware of any fraud, whether or not material, that involves Company’s management or other current or former employees, consultants, directors or management of Company or any of its Subsidiaries who have a role in the preparation of financial statements or the internal accounting controls utilized by Company or its Subsidiaries, or any claim or allegation regarding any of the foregoing. Neither Company nor any of its Subsidiaries nor, to Company’s Knowledge, the Managing Member or any manager, officer, employee, auditor, accountant or representative of Company or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, in each case regarding deficient accounting or auditing practices, procedures, methodologies or methods of Company or any of its Subsidiaries or their respective internal accounting controls or any material inaccuracy in Company’s financial statements. No attorney representing Company or any of its Subsidiaries, whether or not employed by Company or any of its Subsidiaries, has reported to the Managing Member or to any manager or officer of Company evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by Company, its Subsidiaries or any of their respective officers, directors, managers, employees or agents. There are no significant deficiencies or material weaknesses in the design or operation of Company’s internal controls which could adversely affect Company’s ability to record, process, summarize and report financial data. At the Balance Sheet Date, there were no material loss contingencies (as such term is used in Statement of Financial Accounting Standards No. 5 (“ Statement No. 5 ”) issued by the Financial Accounting Standards Board in March 1975) that are not adequately provided for in the Balance Sheet as required by said Statement No. 5. There has

been no change in Company accounting policies since Company’s inception, except as described in the Financial Statements.

          (c) Schedule 3.7(c) of the Company Disclosure Letter sets forth the names and locations of all banks, trust companies, savings and loan associations and other financial institutions at which Company and its Subsidiaries maintain accounts of any nature and the names of all persons authorized to draw thereon or make withdrawals therefrom.

          (d) Schedule 3.7(d) of the Company Disclosure Letter accurately lists all indebtedness of Company and its Subsidiaries for money borrowed (“ Debt ”), including, for each item of Debt, the agreement governing the Debt and the interest rate, maturity date and any assets or properties securing such Debt. All Debt may be prepaid at the Closing without penalty under the terms of the Contracts governing such Debt.

     3.8 Intentionally Omitted .

     3.9 Taxes .

          (a) Company and each of its Subsidiaries have timely filed all returns, reports, declarations, claims for refund, estimates and information returns and statements or other documents relating to Taxes, including any schedule or attachment thereto and any amendment thereof (the “ Returns ”), required to be filed by Company or such Subsidiary under all Applicable Laws and regulations. All such Returns were true, complete and correct in all respects and were prepared in substantial compliance with all Applicable Laws. Company and each of its Subsidiaries have paid all Taxes due and owning (whether or not shown on any Return).

          (b) The unpaid Taxes of Company and its Subsidiaries (i) did not, as of the Balance Sheet Date, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Balance Sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company and its Subsidiaries in filing their Returns. Since the Balance Sheet Date, neither Company nor any of its Subsidiaries has incurred any Liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice. There are no Encumbrances, except for Permitted Encumbrances, for Taxes (other than Taxes not yet due and payable) upon any of the assets of Company or any of its Subsidiaries. Neither the Company nor any Subsidiary has or will have any Liability for unpaid Taxes for any period or portion of a period ending on or before the Closing Date, except for such Liabilities for Taxes that are included in calculating the Net Working Capital.

          (c) No deficiencies for any Tax have been threatened, claimed, proposed or assessed against Company or any of its Subsidiaries which have not been settled or paid. No Return of Company or any of its Subsidiaries has ever been audited by the Internal Revenue Service or any other Taxing agency or authority, no such audit is in progress and neither Company nor any of its Subsidiaries has been notified of any request for such an audit or other examination. No claim has ever been made by a Governmental Authority in a jurisdiction where Company or any of its Subsidiaries does not file Returns that Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction. No adjustment relating to any Returns filed by Company or any of its Subsidiaries has been proposed in writing by any Governmental Authority to Company or any of its Subsidiaries (or any representative thereof). There is not in effect any waiver by Company or any of its Subsidiaries of any statute of limitations with respect to any Taxes or agreement to any extension of time for filing any Return which

has not been filed, and Company has not consented to extend to a date later than the Agreement Date the period in which any Tax may be assessed or collected by any Governmental Authority. Company has made available to Acquirer correct and complete copies of all federal and state income tax Returns, examination reports and statements of deficiencies assessed against or agreed to by Company or any of its Subsidiaries.

          (d) Company is not a party to, and does not owe any amount under, any Tax-sharing or allocation agreement. Company has not been a member of an affiliated group filing a consolidated federal income Tax return (other than a group the common parent of which was Company) and has no Liability for the Taxes of any Person (other than Company and its Subsidiaries) as a transferee or successor, by contract or otherwise.

          (e) Company and each of its Subsidiaries have withheld and paid (and until Closing will withhold and pay) all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

          (f) Each of Company and its Subsidiaries has disclosed on its federal income tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any of its Subsidiaries has consummated, has participated in or is currently participating in any transaction which was or is a “Tax shelter” transaction as defined in Section 6662, 6011, 6111 or 6112 of the Code or the Regulations. None of Company or any of its Subsidiaries has entered into any reportable transaction as defined in Section 1.6011-4(b) of the Regulations.

          (g) Neither Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (iii) intercompany transaction; (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.

          (h) Neither Company nor any of its Subsidiaries is a party to or bound by any Tax allocation or sharing agreement.

          (i) Company has not made an election to be classified as an association taxable as a corporation for federal income tax purposes.

          (j) Company owns no United States real property interest as defined in Section 897(c) of the Code.

          (k) To Company’s Knowledge, no payment pursuant to any Employee Plans or other arrangement between Company or a Subsidiary and any “service provider” (as such term is defined in Section 409A of the Code and the United States Treasury Regulations and IRS guidance thereunder), including, without limitation, the grant, vesting or exercise of any equity option, would subject any Person to a tax pursuant to Section 409A of the Code, whether pursuant to the consummation of the Merger, any other transaction contemplated by this Agreement or otherwise.

          (l) All Company Options have been appropriately authorized by the Committee (as defined in the Company Option Plan), including approval of the option exercise price or the methodology

for determining the option exercise price and the substantive option terms. All Company Options (excluding the New Company Options granted to Mark Wachen, Lance Lovett, Scott Simonelli and Andrew Eisner) granted to employees in the United States that are potentially subject to Code Section 409A have a per unit exercise price that reflects the fair market value of the Company Class A Units as determined in good faith compliance with Section 409A of the Code and the regulations issued thereunder on the date that the option was granted. To Company’s Knowledge, as of the date of this Agreement no Company Options have been retroactively granted, or the exercise price of any Company Option determined retroactively.

          (m) No Company Unitholder is a foreign person within the meaning of Section 1445(f)(3) of the Code.

     3.10 Title to Assets and Properties; Condition of Equipment and Property . Company and its Subsidiaries have good and valid title to, or a valid leasehold interest in, all of the assets and properties used in the Company Business or shown on the Balance Sheet, free and clear of any Encumbrance except Permitted Encumbrances,. Such assets and properties are sufficient for the continued operation of the business of Company and its Subsidiaries as presently being conducted in all material respects. All machinery, vehicles, equipment and other tangible personal property owned or leased by Company or any of its Subsidiaries or used in the Company Business are (a) suitable for the uses to which they are currently employed, (b) in generally serviceable operating condition, (c) regularly and properly maintained, and (d) not obsolete, dangerous or in need of renewal or replacement, except for renewal or replacement in the ordinary course of business, consistent with past practice. All properties used in the operations of Company or any of its Subsidiaries are reflected on the Balance Sheet to the extent required under GAAP to be so reflected. All leases of real or personal property to which Company or any of its Subsidiaries is a party are fully effective and afford Company or such Subsidiary peaceful and undisturbed leasehold possession of the subject matter of the lease. Schedule 3.10-1 of the Company Disclosure Letter identifies each parcel of real property leased by Company or any Subsidiary. Company has heretofore made available to Acquirer’s counsel true, correct and complete copies of all leases, subleases and other agreements under which Company and/or any Subsidiary uses or occupies or has the right, subject to such leases, subleases and other agreements, to use or occupy, now or in the future, any real property or facility, including all modifications, amendments and supplements thereto. Neither Company nor any of its Subsidiaries owns any real property. Company and its Subsidiaries have adequate rights of ingress and egress into any real property used in the operation of the Company Business. Schedule 3.10-2 of the Company Disclosure Letter sets forth a complete and accurate list of all personal property owned or leased by Company or any of its Subsidiaries with an individual value of $10,000 or greater.

     3.11 Absence of Certain Changes . Since June 30, 2007, Company and each of its Subsidiaries has carried on its business in the ordinary course in accordance with the procedures and practices in effect on June 30, 2007, and since June 30, 2007 there has not been with respect to Company or any of its Subsidiaries:

          (a) any Material Adverse Change;

          (b) any Liability incurred other than in the ordinary course of business, consistent with past practice, or any borrowing of monies in excess of $50,000 in the aggregate;

          (c) any making of any loan, advance or capital contribution to, or investment in, any Person other than travel loans or advances made in the ordinary course of business, consistent with past practice;

          (d) any Contract with respect to any acquisition, sale or transfer of any asset of Company or any of its Subsidiaries (other than the sale or nonexclusive license of Company Products to its customers in the ordinary course of business consistent with past practice) involving obligations (contingent or otherwise) of or payments to it in excess of $20,000 individually or $50,000 in the aggregate;

          (e) any material damage, destruction or loss, whether or not covered by insurance, affecting its assets, properties or business;

          (f) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the Company Units, any Company Unit split, Company Unit dividend or combination or recapitalization of the Company Units or any direct or indirect redemption, purchase or other acquisition by it of Company Units;

          (g) any entry into, amendment of, or relinquishment, termination or nonrenewal by it of any Contract or other right or obligation other than in the ordinary course of business, consistent with past practice, involving obligations (contingent or otherwise) of or payments to it in excess of $20,000 individually or $50,000 in the aggregate;

          (h) any Liability incurred by it to any of its directors, managers, officers or Company Unitholders, other than in the ordinary course of business consistent with past practice;

          (i) any sale, disposition, transfer or license to any Person of any rights to Company IP Rights other than in the ordinary course of business consistent with past practice or any acquisition or license from any Person of any Intellectual Property other than in the ordinary course of business consistent with past practice, or any sale, disposition, transfer or providing of any copy of any Company Source Code to any Person;

          (j) any deferral of the payment of any accounts payable other than in the ordinary course of business, consistent with past practice, or in an amount which is not material, or any discount, accommodation or other concession made other than in the ordinary course of business, consistent with past practice, in order to accelerate or induce the collection of any receivable;

          (k) any material change in the manner in which it extends discounts, credits or warranties to its customers or otherwise deals with its customers;

          (l) any labor dispute or claim of unfair labor practices;

          (m) any change with respect to its executive officers or management employees (collectively, the “ Management Employees ”);

          (n) any termination of employment of any of its employees;

          (o) any increase in severance compensation payable, or to become payable, to any of its directors, managers, officers or employees;

          (p) any increase in or modification of 10% or more of any benefits payable, or to become payable, compensation, any bonus, pension, insurance or other employee benefit plan, payment or arrangement (including the granting of options, awards or appreciation rights with respect to its membership units, other than the New Company Options) made to, for or with any of its directors, managers, officers, employees, consultants or independent contractors;

          (q) any modification or change to the right to exercise or convert, or to the exercise or purchase prices of, any Company Units or other securities, or any acceleration or other modification of (i) the vesting of or right to exercise any option, warrant or other right to purchase Company Units or other securities or (ii) the vesting or release of any Company Units or other securities from any repurchase options or rights of refusal held by it or any other party or any other restrictions;

          (r) any amendment or change to Company’s Articles of Organization or the Company Operating Agreement or other equivalent organizational or governing documents of Company or any Subsidiary; or

          (s) any entry into any Contract by Company or any Subsidiary to do any of the things described in the preceding clauses (a) through (r).

     3.12 Contracts . Except for this Agreement and the Contracts specifically identified in the specific subsections of Schedule 3.12 of the Company Disclosure Letter, neither Company nor any of its Subsidiaries is a party or subject to any of the following (whether oral or in writing):

          (a) any distribution, original equipment manufacturing, reseller, marketing, sales representative or similar Contract under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for any product, service or technology owned, marketed, licensed or provided by it;

          (b) any Contract for the purchase, sale, license, provision or manufacture of products, materials, supplies, equipment or services, including online marketing, media purchase and optimization Contracts, requiring payment to or from it in an amount in excess of $25,000 per annum which may not be canceled without penalty upon notice of 60 days or less;

          (c) any Contract in which it has granted or received most favored customer pricing provisions, exclusive sales, distribution, marketing, manufacturing or on-line distribution rights, rights of refusal, rights of first negotiation or similar rights or any Contract otherwise limiting the right of Company or any of its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts, subassemblies or services, with respect to any product, service, technology or Intellectual Property rights that is now or hereafter owned by it, provided to it or provided by it;

          (d) any Contract providing for the development of any software, content (including textual content and visual or graphics content), technology or Intellectual Property rights, independently or jointly, by or for (or for the benefit or use of) it;

          (e) any Contract under which it is a licensor of Intellectual Property rights or a provider of services or under which it is a licensee of Intellectual Property rights of any other Person or any Contract under which it agrees to encumber, not assert, transfer or sell rights in or with respect to any Intellectual Property or to provide source code to any third party;

          (f) any Contract to license or authorize any third party to manufacture or reproduce any of its products, services, technology or Intellectual Property;

          (g) any joint venture or partnership Contract, any Contract relating to a limited liability company or any other Contract which has involved, or is reasonably expected to involve, a sharing of revenues, profits, cash flows, expenses or losses by it with any other party;

          (h) any Contract for or relating to the employment or hiring for services of any of its directors, managers, officers, employees, consultants or independent contractors or any other type of Contract with any of its directors, managers, officers, employees, consultants or independent contractors requiring annual payments by it of $100,000 or more which is not terminable by it upon notice of 30 days or less without cost or other Liability to it, including any Contract requiring it to make a payment to any director, officer, employee, consultant or independent contractor on account of the Merger, any transaction contemplated by this Agreement or any Contract that is entered into in connection with this Agreement;

          (i) any Contract or trust deed encumbering any of its assets or properties, any promissory note, any credit line, credit facility, loan agreement or other Contract for the borrowing of money pursuant to which it may borrow or loan funds, any security agreement encumbering any of its assets or properties, any security agreement encumbering any asset or property of a third party for its benefit, any guarantee by it of any obligation or indebtedness of another party or any guarantee of any of its obligations or indebtedness, and any Contract for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board, in all instances excluding use of credit cards by Company employees in the ordinary course with respect to the business or affairs of Company;

          (j) any Contract containing indemnification, warranty or similar provisions with respect to products or services or any Contract containing any support, maintenance or service obligation or cost on the part of Company or any of its Subsidiaries (other than under its unmodified forms of standard customer or distributor agreement, the forms of which have been made available to Acquirer’s counsel);

          (k) any Contract under which it is lessee of or holds or operates any items of tangible personal property or real property owned by any third party and under which payments to such third party exceed $20,000 per annum, and any Contract for the sale, purchase or disposition of any real property;

          (l) any Contract for the sale, licensing or leasing by or to it of any assets, properties, products, services or rights having a value in excess of $25,000 per annum or which is otherwise material to the Company Business;

          (m) any Company IP Rights Agreement (as defined in Section 3.14(g) ) that (i) involves or involved a payment to or from it of $20,000 or more per annum, (ii) grants any exclusive rights, including any exclusivity with respect to any product, service, market, industry, field of use or geographic territory, (iii) requires the ongoing payment of any royalties or periodic fees or payments by it, or (iv) is material to the Company Business, its Intellectual Property rights or technology or any of its current or proposed products or services;

          (n) any application hosting, application management, application usage, website hosting, website linking, consent or data sharing, data feed, information exchange, advertising, fee sharing, lead or customer referral, commerce, co-branding, framing, service, order or transaction processing or similar Contract relating to any aspect or element of any of the Company Websites (as defined in Section 3.15(a) ) or any other website or use of the public internet, or the extranet or intranet of any Person;

          (o) any Contract or plan (including any Company Unit option, Company Unit purchase and/or Company Unit bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any Company Units or any other securities of Company or any of its Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any Company Units, other securities or options, warrants or other rights therefor, except for those Contracts disclosed on Schedule 3.4(b)-1 or Schedule 3.4(c) of the Company Disclosure Letter;

          (p) any Contract under which it provides any services to any third party, including any consulting Contract, professional Contract or software implementation, deployment or development services Contract;

          (q) any Contract with any labor union or any collective bargaining agreement or similar Contract with its employees;

          (r) any Contract pursuant to which it has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise;

          (s) any other Contract to which it is a party or by which it or any of its assets or properties are bound (i) that is material to the Company Business or to its operations, assets, properties, operating results or financial condition or (ii) that involves a future financial commitment by it in excess of $50,000 per annum; or

          (t) any Contract between Company and any Governmental Authority or any Governmental Permit (as defined in Section 3.16 ).

          All Contracts required by subsections (a) through (u) of this Section 3.12 to be listed on Schedule 3.12 of the Company Disclosure Letter (collectively, “ Material Agreements ”) are valid and in full force and effect. A true and complete copy of each Material Agreement and all amendments and schedules thereto has been delivered to Acquirer’s counsel. No statement of work or contract order will be deemed to be disclosed on Schedule 3.12 of the Company Disclosure Letter unless such statement of work or contract order, as applicable, is specifically listed and identified by number on Schedule 3.12 of the Company Disclosure Letter.

     3.13 No Default; No Restrictions .

          (a) Company and its Subsidiaries are not, nor to Company’s Knowledge is any other party, in material breach or default under any Material Agreement. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, (i) result in a violation or breach by Company of any provision of any Material Agreement or (ii) to Company’s Knowledge, give any third party (A) the right to declare a default or exercise any remedy under any Material Agreement, (B) the right to a material rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Agreement, (C) the right to accelerate the maturity or performance of any obligation of Company or any of its Subsidiaries under any Material Agreement, or (D) the right to cancel, terminate or modify any Material Agreement. Neither Company nor any of its Subsidiaries has received any notice or other communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Agreement. Neither Company nor any of its Subsidiaries has any material Liability for renegotiation of government Contracts or subcontracts.

          (b) Neither Company nor any of its Subsidiaries is a party to, and no asset or property of Company or any of its Subsidiaries is bound or affected by, any judgment, injunction, order, decree or Contract that restricts or prohibits, or purports to restrict or prohibit, Company or any of its Subsidiaries or, following the Effective Time, the Surviving Company, from freely engaging in the Company Business or from competing anywhere in the world (including any judgments, injunctions, orders, decrees or Contracts restricting the geographic area in which Company or any of its Subsidiaries may sell, license, market, distribute or support any products or technology or provide services or restricting the markets, customers or industries that Company or any of its Subsidiaries may address in operating the Company

Business or restricting the prices which Company or any of its Subsidiaries may charge for their respective products, technology or services) or that includes any grants by Company or any of its Subsidiaries of exclusive rights or licenses.

     3.14 Intellectual Property .

          (a) Company and its Subsidiaries (i) own and have independently developed or acquired all Company Owned IP Rights and (ii) have the valid right or license to Company In-Licensed IP Rights.

          (b) Neither Company nor any of its Subsidiaries has transferred ownership of any Intellectual Property that is or was Company-Owned IP Rights, to any third party, or knowingly permitted Company’s rights in any material copyrighted work that is or was Company-Owned IP Rights to enter the public domain or, with respect to any Intellectual Property for which Company or its Subsidiaries has submitted an application or obtained a registration, to lapse (other than through the expiration of registered Intellectual Property at the end of its maximum statutory term).

          (c) Company and its Subsidiaries own and have good and exclusive title to each item of Company-Owned IP Rights free and clear of any Encumbrances (other than non-exclusive object code licenses of software by Company or any of its Subsidiaries in the ordinary course of its business consistent with past practice on its standard unmodified form of customer agreement (a true, correct and complete copy of which has been made available to Acquirer’s counsel) (“ Standard Form Agreements ”)). The right, license and interest of Company or any of its Subsidiaries of Company in and to all third-party Intellectual Property rights licensed by Company or any of its Subsidiaries from a third party are free and clear of all Encumbrances (excluding restrictions contained in the applicable license agreements with such third parties and Standard Form Agreements).

          (d) Neither the execution and delivery or effectiveness of this Agreement nor the performance of Company’s obligations under this Agreement will cause the forfeiture or termination of, or give rise to a right of forfeiture or termination of, any Company-Owned IP Right or impair the right of Company or any of its Subsidiaries to use, possess, sell or license any Company-Owned IP Right or portion thereof. Schedule 3.14(d) of the Company Disclosure Letter lists all Company Products by name and version number.

          (e) Schedule 3.14(e) of the Company Disclosure Letter lists all Company Registered Intellectual Property, including the jurisdictions in which each such item of Intellectual Property has been issued or registered or in which any application for such issuance and registration has been filed or in which any other filing or recordation has been made. Schedule 3.14(e) of the Company Disclosure Letter sets forth a list of all actions that are required to be taken by Company or any of its Subsidiaries within 120 days of the Agreement Date with respect to any of the Company Registered Intellectual Property in order to avoid prejudice to, or impairment or abandonment of, such Company Registered Intellectual Property. Each item of Company Registered Intellectual Property is valid and subsisting or, in the case of applications, applied for.

          (f) Schedule 3.14(f) of the Company Disclosure Letter lists (i) all Contracts as to which Company or any of its Subsidiaries is a party and pursuant to which any Person is authorized to use any Company Owned IP Rights and Company IP Rights that are licensed by the Company from any third parties (“ Company In-Licensed IP Rights ”) and (ii) other than “shrink wrap” and similar generally available commercial end-user licenses to software that is not incorporated into, integrated or bundled with, or used by Company or any of its Subsidiaries in the development, manufacture, compilation or provision of any of the Company Products that have an acquisition cost of $5,000 or less, all Contracts to

which Company or any of its Subsidiaries is a party and pursuant to which Company or any of its Subsidiaries acquired or is authorized to use any third-party Intellectual Property rights.

          (g) Neither Company nor any of its Subsidiaries is or will be, as a result of the execution and delivery or effectiveness of this Agreement or the performance of Company’s obligations under this Agreement, in breach of any Contract governing any Company Owned IP Rights or Company In-Licensed IP Rights (the “ Company IP Rights Agreements ”) and the consummation of the transactions contemplated by this Agreement will not result in the modification, cancellation, termination, suspension of, or acceleration of any payments with respect to the Company IP Rights Agreements, or give any non-Company party to any Company IP Rights Agreement the right to do any of the foregoing. There are no royalties, honoraria, fees or other payments payable by Company or any of its Subsidiaries to any Person (other than salaries payable to employees, consultants and independent contractors not contingent on or related to use of their work product and fees payable with respect to prosecution or maintenance of any Company Registered Intellectual Property) as a result of the ownership, use, possession, license-in, license-out, sale, marketing, advertising or disposition of any Company-Owned IP Rights by Company or any of its Subsidiaries.

          (h) To Company’s Knowledge, there is no unauthorized use, unauthorized disclosure, infringement or misappropriation of any Company-Owned IP Rights by any third party, including any employee or former employee of Company or any of its Subsidiaries. Neither Company nor any of its Subsidiaries has brought any action, suit or proceeding for infringement or misappropriation of any Intellectual Property or breach of any Company IP Rights Agreement.

          (i) Neither Company nor any of its Subsidiaries has been sued in any suit, action or proceeding (or received any written or, to Company’s Knowledge, oral notice which involves a claim of infringement or misappropriation of any Intellectual Property right of any third party or which contests the validity, ownership or right of Company or any of its Subsidiaries to exercise any Intellectual Property right. Neither Company nor any of its Subsidiaries has received any written communication that involves an offer to license or grant any other rights or immunities under any third-party Intellectual Property right.

          (j) The operation of the Company Business by Company or any of its Subsidiaries, including (i) the design, development, manufacturing, reproduction, marketing, licensing, sale, offer for sale, importation, distribution, provision and/or use of any Company Product and (ii) the use by Company or any of its Subsidiaries of any product, device or process used in the Company Business, does not infringe or misappropriate and has not infringed or misappropriated the Intellectual Property of any third party and does not constitute unfair competition or unfair trade practices in a