EXHIBIT 2.1AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

Agreement and Plan of Merger

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MOLECULAR DEVICES CORP | ASTROS ACQUISITION SUB I, INC., | ASTROS ACQUISITION SUB II, LLC, | AXON INSTRUMENTS, INC.

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Title: EXHIBIT 2.1AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
Governing Law: California Date: 3/22/2004
Industry: Scientific and Technical Instr. Law Firm: Cooley Godward llp; Latham & Watkins LLP Sector: Technology

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Exhibit 2.1

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AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

among:

MOLECULAR DEVICES CORPORATION

a Delaware corporation;

ASTROS ACQUISITION SUB I, INC.,

a California corporation;

ASTROS ACQUISITION SUB II, LLC,

a California limited liability company; and

AXON INSTRUMENTS, INC.

a California corporation.

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Dated as of March 20, 2004

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Section 1. Description Of Transaction ................................................... 1

1.1 Mergers .......................................................................... 1

1.2 Effect of the Mergers ............................................................ 2

1.3 Closing; Effective Times ......................................................... 2

1.4 Articles of Organization and Operating Agreement; Directors and Officers ......... 2

1.5 Conversion of Shares ............................................................. 3

1.6 Stock Options .................................................................... 4

1.7 Closing of the Company's Transfer Books .......................................... 5

1.8 Exchange of Certificates ......................................................... 5

1.9 Dissenting Shares ................................................................ 7

1.10 Tax Consequences ................................................................. 7

1.11 Further Action ................................................................... 7

Section 2. Representations And Warranties Of The Company ................................ 7

2.1 Due Organization; Subsidiaries; Etc .............................................. 7

2.2 Articles of Incorporation and Bylaws ............................................. 8

2.3 Capitalization, Etc .............................................................. 8

2.4 Financial Statements ............................................................. 10

2.5 ASIC; ASX ........................................................................ 10

2.6 Absence of Changes ............................................................... 11

2.7 Title to Assets .................................................................. 13

2.8 Reserved ......................................................................... 13

2.9 Receivables; Customers ........................................................... 13

2.10 Property; Leasehold .............................................................. 13

2.11 Intellectual Property ............................................................ 13

2.12 Contracts ........................................................................ 16

2.13 Products; Performance of Services ................................................ 19

2.14 Liabilities ...................................................................... 19

2.15 Compliance with Legal Requirements ............................................... 19

2.16 Certain Business Practices ....................................................... 20

2.17 Governmental Authorizations ...................................................... 20

2.18 Tax Matters ...................................................................... 20

2.19 Employee and Labor Matters; Benefit Plans ........................................ 21

2.20 Environmental Matters ............................................................ 26

2.21 Insurance ........................................................................ 27

2.22 Reserved ......................................................................... 27

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2.23 Legal Proceedings; Orders ........................................................ 27

2.24 Authority; Inapplicability of Anti-takeover Statutes; Binding Nature of Agreement 27

2.25 Non-Contravention; Consents ...................................................... 28

2.26 No Discussions ................................................................... 28

2.27 Financial Advisor ................................................................ 29

2.28 Fairness Opinion ................................................................. 29

2.29 Required Vote .................................................................... 29

2.30 Full Disclosure .................................................................. 29

Section 3. Representations And Warranties Of Parent And Merger Subs ..................... 30

3.1 Organization, Standing and Power ................................................. 30

3.2 SEC Filings; Financial Statements ................................................ 31

3.3 Capitalization, Etc .............................................................. 31

3.4 Authority; Binding Nature of Agreement ........................................... 32

3.5 Non-Contravention; Consents ...................................................... 32

3.6 Vote Required .................................................................... 33

3.7 Valid Issuance ................................................................... 33

3.8 Joint Proxy Statement/Prospectus and Registration Statement; Australian Prospectus 33

3.9 Commitment Letter ................................................................ 33

3.10 Financial Advisor ................................................................ 34

3.11 Fairness Opinion ................................................................. 34

3.12 Legal Proceedings; Orders ........................................................ 34

3.13 Insurance ........................................................................ 34

3.14 Compliance with Legal Requirements ............................................... 34

3.15 Absence of Changes ............................................................... 35

Section 4. Certain Covenants Of The Company ............................................. 35

4.1 Access and Investigation ......................................................... 35

4.2 Operation of the Company's Business .............................................. 35

4.3 Notification ..................................................................... 37

4.4 No Solicitation .................................................................. 38

4.5 Operation of Parent's Business ................................................... 39

Section 5. Additional Covenants of the Parties .......................................... 40

5.1 Registration Statement; Joint Proxy Statement/Prospectus ......................... 40

5.2 Company Shareholders' Meeting .................................................... 40

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5.3 Parent Stockholders' Meeting ..................................................... 41

5.4 Regulatory Approvals ............................................................. 41

5.5 Additional Agreements ............................................................ 42

5.6 Disclosure ....................................................................... 42

5.7 Resignation of Officers and Directors ............................................ 43

5.8 Termination of Employee Plans .................................................... 43

5.9 FIRPTA Matters ................................................................... 43

5.10 Termination of Agreements ........................................................ 43

5.11 Employment Matters ............................................................... 43

5.12 Tax Matters ...................................................................... 44

5.13 Commercially Reasonable Efforts .................................................. 44

5.14 Indemnification of Officers and Directors ........................................ 44

5.15 Letter of the Company's Accountants .............................................. 45

5.16 Listing .......................................................................... 45

5.17 Australian Prospectus ............................................................ 45

Section 6. Conditions Precedent To Obligations Of Parent And Merger Subs ................ 46

6.1 Accuracy of Representations ...................................................... 46

6.2 Performance of Covenants ......................................................... 46

6.3 Effectiveness of Registration Statement .......................................... 46

6.4 Stockholder Approval ............................................................. 46

6.5 Shareholder Approval ............................................................. 46

6.6 Reserved ......................................................................... 46

6.7 Agreements and Documents ......................................................... 46

6.8 HSR Act .......................................................................... 47

6.9 Listing .......................................................................... 47

6.10 No Restraints .................................................................... 47

6.11 No Governmental Litigation ....................................................... 47

6.12 No Other Litigation .............................................................. 47

6.13 Termination of Employee Plans .................................................... 47

Section 7. Conditions Precedent To Obligation Of The Company ............................ 48

7.1 Accuracy of Representations ...................................................... 48

7.2 Performance of Covenants ......................................................... 48

7.3 Effectiveness of Registration Statement .......................................... 48

7.4 Stockholder Approval ............................................................. 48

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7.5 Shareholder Approval ............................................................. 48

7.6 Certificate ...................................................................... 48

7.7 HSR Act .......................................................................... 48

7.8 Listing .......................................................................... 48

7.9 No Restraints .................................................................... 48

7.10 No Governmental Litigation ....................................................... 49

7.11 No Other Litigation .............................................................. 49

Section 8. Termination .................................................................. 49

8.1 Termination ...................................................................... 49

8.2 Termination Procedures ........................................................... 50

8.3 Effect of Termination ............................................................ 51

8.4 Expenses; Fees ................................................................... 51

Section 9. Miscellaneous Provisions ..................................................... 51

9.1 Amendment ........................................................................ 51

9.2 Waiver ........................................................................... 51

9.3 Entire Agreement; Counterparts ................................................... 52

9.4 Applicable Law; Jurisdiction ..................................................... 52

9.5 Company Disclosure Letter ........................................................ 52

9.6 Attorneys' Fees .................................................................. 52

9.7 Assignability .................................................................... 52

9.8 Notices .......................................................................... 52

9.9 Cooperation ...................................................................... 53

9.10 Construction ..................................................................... 53

9.11 Non-Survival of Representations and Warranties ................................... 54

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AGREEMENT AND PLAN

OF MERGER AND REORGANIZATION

THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this "AGREEMENT") is

made and entered into as of March 20, 2004, by and among: MOLECULAR DEVICES

CORPORATION, a Delaware corporation ("PARENT"); ASTROS ACQUISITION SUB I, INC.,

a California corporation and a wholly owned subsidiary of Parent ("MERGER SUB

I"); ASTROS ACQUISITION SUB II, LLC, a California limited liability company and

a wholly owned subsidiary of Parent ("MERGER SUB II," and together with Merger

Sub I, "MERGER SUBS"); and AXON INSTRUMENTS, INC., a California corporation (the

"COMPANY"). Certain capitalized terms used in this Agreement are defined in

Exhibit A.

RECITALS

A. Parent, Merger Subs and the Company intend to effect (1) a merger of

Merger Sub I with and into the Company in accordance with this Agreement and the

California General Corporation Law (the "CGCL") ("MERGER I") and (2) immediately

following the effectiveness of Merger I, a merger of the Company with and into

Merger Sub II in accordance with this Agreement and the CGCL and the

Beverly-Killea Limited Liability Company Act (the "LLC ACT") ("MERGER II," and

together with Merger I, the "MERGERS"). Upon consummation of the Mergers, the

Company will cease to exist.

B. Parent, Merger Subs and the Company intend that Merger I and Merger II

shall be treated as an integrated transaction and that the Mergers shall qualify

as a tax-free reorganization within the meaning of Section 368(a) of the

Internal Revenue Code of 1986, as amended (the "CODE").

C. For financial accounting purposes, it is intended that the Mergers be

accounted for as a "purchase."

D. The respective boards of directors of Parent, Merger Sub I and Merger

Sub II have approved this Agreement and the Mergers and the board of directors

of the Company has approved this Agreement and Merger I.

E. Contemporaneously with the execution and delivery of this Agreement,

certain holders of voting capital stock of the Company are executing and

delivering to Parent a voting agreement (a "VOTING AGREEMENT") of even date

herewith.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as

follows:

SECTION 1. DESCRIPTION OF TRANSACTION

1.1 MERGERS. Upon the terms and subject to the conditions set forth

in this Agreement and in accordance with the CGCL, at the Effective Time of

Merger I, Merger Sub I shall be merged with and into the Company, and the

separate existence of Merger Sub I shall cease. The Company shall continue as

the surviving corporation in Merger I ("SURVIVING ENTITY I"). Immediately

following the Effective Time of Merger I, upon the terms and subject to the

conditions set forth in this Agreement and in accordance with the CGCL and the

LLC Act, the Company will be merged with and into Merger Sub II, and the

separate existence of the Company shall cease. Merger Sub II shall continue

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as the surviving entity in Merger II (the "SURVIVING ENTITY") and shall succeed

to and assume all the rights and obligations of the Company in accordance with

the CGCL and the LLC Act.

1.2 EFFECT OF THE MERGERS. The Mergers shall have the effects set

forth in this Agreement and in the applicable provisions of the CGCL and the LLC

Act.

1.3 CLOSING; EFFECTIVE TIMES. Subject to the satisfaction or waiver

(as permitted by this Agreement and applicable Legal Requirements) of the

conditions set forth in Sections 6 and 7 (other than those conditions that by

their nature must be satisfied or waived at the Closing), the consummation of

the transactions contemplated by this Agreement (the "CLOSING") shall take place

at the offices of Cooley Godward llp, located at 3175 Hanover Street, Palo Alto,

California, at 10:00 a.m. on a date to be designated by Parent (the "CLOSING

DATE"), which shall be no later than the third business day after the

satisfaction or waiver of each of the conditions set forth in Sections 6 and 7,

unless another time or date is agreed to in writing by the parties hereto.

Contemporaneously with or as promptly as practicable after the Closing, the

parties shall cause to be filed a properly executed agreement of merger

("AGREEMENT OF MERGER") for Merger I conforming to the requirements of the CGCL

with the Secretary of State of the State of California. Immediately following

the Effective Time of Merger I, the parties shall cause to be filed a properly

executed Agreement of Merger for Merger II conforming to the requirements of the

CGCL and the LLC Act with the Secretary of State of the State of California.

Each Merger shall become effective at the time such Agreement of Merger is filed

with the Secretary of State of the State of California or at such other time as

the parties may agree and specify in the respective Agreement of Merger.

1.4 ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT; DIRECTORS AND

OFFICERS.

(A) Unless otherwise determined by Parent prior to the Effective

Time of Merger I:

(I) the Articles of Incorporation of Surviving Entity I

immediately after the Effective Time of Merger I shall be the Articles of

Incorporation of Merger Sub I immediately prior to the Effective Time of Merger

(II) the bylaws of Surviving Entity I immediately after the

Effective Time of Merger I shall be the bylaws of Merger Sub I immediately prior

to the Effective Time of Merger I; and

(III) the directors and officers of Surviving Entity I

immediately after the Effective Time of Merger I shall be the respective

individuals who are directors and officers of Merger Sub I immediately prior to

the Effective Time of Merger I.

(B) Unless otherwise determined by Parent prior to the Effective

Time of Merger II:

(I) the Articles of Organization of the Surviving Entity

immediately after the Effective Time of Merger II shall be in a form approved by

Parent;

(II) the Operating Agreement of the Surviving Entity

immediately after the Effective Time of Merger II shall be in a form approved by

Parent; and

(III) the directors and officers of the Surviving Entity

immediately after the Effective Time of Merger II shall be the respective

individuals who are directors and officers of Merger Sub II immediately prior to

the Effective Time of Merger II.

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1.5 CONVERSION OF SHARES.

(A) Subject to the other subsections of this Section 1.5 and

Section 1.9, at the Effective Time of Merger I, by virtue of Merger I and

without any further action on the part of Parent, Merger Subs, the Company or

any shareholder of the Company:

(I) any shares of common stock, no par value per share,

of the Company ("COMPANY COMMON STOCK") then held by the Company or any of the

Company's Subsidiaries (or held in the Company's treasury) ("EXCLUDED SHARES")

shall be canceled and retired and shall cease to exist at the Effective Time of

Merger I, and no consideration shall be delivered in exchange therefor;

(II) each share of Company Common Stock then held by

Parent, Merger Subs or any other Subsidiary of Parent shall be canceled and

retired and shall cease to exist at the Effective Time of Merger I, and no

consideration shall be delivered in exchange therefor;

(III) each share of common stock, $.001 par value per

share, of Merger Sub I then outstanding shall be converted into one share of

common stock of Surviving Entity I; and

(IV) except as provided in clauses 1.5(a)(i) and

1.5(a)(ii) above and subject to Section 1.9, each share of Company Common Stock

then issued and outstanding shall be converted into the right to receive (A)

$0.1359 in cash (the "CASH CONVERSION RATIO") and (B) 0.007340 of a share of

Parent Common Stock (the "STOCK EXCHANGE RATIO").

(B) If, between the date of this Agreement and the Effective

Time of Merger I, the outstanding shares of Company Common Stock or Parent

Common Stock are changed into a different number or class of shares by reason of

any stock split, division or subdivision of shares, stock dividend, reverse

stock split, consolidation of shares, reclassification, recapitalization or

other similar transaction, then the Merger Consideration shall be appropriately

adjusted to preserve the economic benefits that the Company and Parent are

reasonably expected on the date of this Agreement to receive as a result of the

consummation of Merger I and the other transactions contemplated by this

Agreement.

immediately prior to the Effective Time of Merger I are unvested or are subject

to a repurchase option, risk of forfeiture or other condition under any

applicable restricted stock purchase agreement or other agreement with the

Company or under which the Company has any rights, then the shares of Parent

Common Stock issued, and the cash paid, in exchange for such shares of Company

Common Stock will also be unvested and subject to the same repurchase option,

risk of forfeiture or other condition, and the certificates representing such

shares of Parent Common Stock may accordingly be marked with appropriate

legends. Surviving Entity I and the Surviving Entity shall take all action that

may be necessary to ensure that, from and after the Effective Time of Merger I,

Parent is entitled to exercise any such repurchase option or other right set

forth in any such restricted stock purchase agreement or other agreement.

(D) No fractional shares of Parent Common Stock shall be

issued in connection with Merger I (including pursuant to Section 1.6(a)), and

no certificates or scrip for any such fractional shares shall be issued. Any

holder of Company Common Stock who would otherwise be entitled to receive a

fraction of a share of Parent Common Stock (after aggregating all fractional

shares of Parent Common Stock issuable to such holder) shall, in lieu of such

fraction of a share and, upon surrender of such holder's Company Stock

Certificate(s) be paid in cash the dollar amount (rounded to the nearest whole

cent), without interest, determined by multiplying such fraction by $18.52.

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(E) Neither Parent, Surviving Entity I nor the Surviving

Entity shall be liable to any holder or former holder of Company Common Stock

for any shares of Parent Common Stock (or dividends or distributions with

respect thereto), or for any cash amounts, required to be delivered to any

public official pursuant to any applicable abandoned property, escheat or

similar law.

(F) By virtue of Merger II and without any further action on

the part of Parent, Merger Sub II or Surviving Entity I, (i) each membership

interest of Merger Sub II then outstanding shall remain outstanding and each

certificate therefor shall continue to evidence one membership interest of the

Surviving Entity and (ii) each share of common stock of Surviving Entity I then

outstanding shall remain outstanding and each certificate therefor shall be

converted into one membership interest of the Surviving Entity.

1.6 STOCK OPTIONS.

(A) At the Effective Time of Merger I, by virtue of Merger I

and in accordance with the prospectuses dated April 1, 2000 and January 28, 2000

lodged with ASIC by the Company (the "PROSPECTUSES"), and without any action on

the part of the parties hereto, each stock option that is then outstanding under

the Prospectuses, whether vested or unvested (an "ENTITLEMENT OPTION"), shall be

cancelled and converted into the right to receive that number of shares of

Parent Common Stock equal to the product of the number of shares that were

issuable upon exercise of such Entitlement Option immediately prior to the

Effective Time multiplied by 0.003280 and cash equal to the product of the

number of shares that were issuable upon exercise of such Entitlement Option

immediately prior to the Effective Time multiplied by $0.06074.

(B) At the Effective Time of Merger I, by virtue of Merger I

and in accordance with the Company's 2001 Equity Incentive Plan and the

Company's 1993 Stock Plan, as amended (such plans collectively referred to as

the "COMPANY STOCK PLANS"), and without any action on the part of the parties

hereto, each stock option that is then outstanding under the Company Stock

Plans, whether vested or unvested (a "COMPANY OPTION"), shall be assumed by

Parent in accordance with the terms (as in effect as of the date of this

Agreement) of the Company Stock Plans, the stock option agreement by which such

Company Option is evidenced (including any amendments thereto) and this

Agreement and converted into an option to purchase Parent Common Stock in

accordance with this Section 1.6(b) (each, an "ASSUMED COMPANY OPTION"). Each

Assumed Company Option so converted shall continue to have, and be subject to,

the same terms and conditions (including vesting schedule) as set forth in the

applicable Company Stock Plan and any agreements thereunder immediately prior to

the Effective Time, except that, as of the Effective Time, (i) each Assumed

Company Option shall be exercisable (or shall become exercisable in accordance

with its terms) for that number of whole shares of Parent Common Stock equal to

the product of the number of shares that were issuable upon exercise of such

Company Option, whether or not excercisable, immediately prior to the Effective

Time multiplied by 0.01468 (the "ASSUMED OPTION EXCHANGE RATIO"), rounded down

to the nearest whole number of shares of Parent Common Stock, (ii) the per share

exercise price for the shares of Parent Common Stock issuable upon exercise of

such Assumed Company Option so converted shall be equal to the quotient

determined by dividing the exercise price per share of Company Common Stock at

which such Assumed Company Option was exercisable immediately prior to the

Effective Time by the Assumed Option Exchange Ratio, rounded up to the nearest

whole cent, (iii) any reference in the agreement evidencing the Assumed Company

Option to the Company shall be deemed a reference to Parent and (iv) any

reference in the agreement evidencing the Assumed Company Option to Company

Common Stock shall be deemed a reference to Parent Common Stock. For purposes of

the foregoing, and consistent with Section 1.5(a)(iv), the parties agree that

the value of Parent Common Stock in determining the Assumed Option Exchange

Ratio shall be the average of the closing prices of Parent Common Stock as

reported on The

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Nasdaq Stock Market for the 10 trading days up to and including the trading day

that is two trading days prior to the execution of this Agreement.

practicable, and in no event later than 15 days after the date on which Merger I

becomes effective, a registration statement on Form S-8 relating to the Parent

Common Stock subject to the Assumed Company Options. Parent shall use

commercially reasonable efforts to maintain the effectiveness of such

registration statement (and maintain the current status of the prospectus

contained in such registration statement) for so long as the Assumed Company

Options remain outstanding. As soon as practicable after the Effective Time of

Merger I, Parent shall deliver to each holder of an Assumed Company Option an

appropriate notice setting forth such holder's rights with respect to such

Assumed Company Option and indicating that such Assumed Company Option shall

continue in effect on the same terms and conditions as were in effect

immediately prior to the Effective Time of Merger I (subject to the adjustments

required pursuant to this Section 1.6).

(D) The Company shall take all commercially reasonable actions

that may be necessary (under the Prospectuses, the plans pursuant to which

Company Options are outstanding and otherwise) to effectuate the provisions of

this Section 1.6. The parties intend that the assumption of Company Options

provided for under this Section 1.6 shall comply with the provisions of Section

424(a) of the Code, and this Section 1.6 shall be interpreted consistent with

such intent.

1.7 CLOSING OF THE COMPANY'S TRANSFER BOOKS. At the Effective Time

of Merger I: (a) all shares of Company Common Stock outstanding immediately

prior to the Effective Time of Merger I shall automatically be canceled and

retired and shall cease to exist, and all holders of certificates representing

shares of Company Common Stock that were outstanding immediately prior to the

Effective Time of Merger I shall cease to have any rights as shareholders of the

Company; and (b) the stock transfer books of the Company shall be closed with

respect to all shares of Company Common Stock outstanding immediately prior to

the Effective Time of Merger I. No further transfer of any such shares of

Company Common Stock shall be made on such stock transfer books after the

Effective Time of Merger I. If, after the Effective Time of Merger I, a valid

certificate previously representing any shares of Company Common Stock (a

"COMPANY STOCK CERTIFICATE") is presented to Surviving Entity I, the Surviving

Entity or Parent, such Company Stock Certificate shall be canceled and shall be

exchanged as provided in Section 1.8.

1.8 EXCHANGE OF CERTIFICATES.

(A) On or prior to the Closing Date, Parent shall select a reputable

bank or trust company reasonably acceptable to the Company to act as exchange

agent in Merger I (the "EXCHANGE AGENT"). As soon as practicable after the

Effective Time of Merger I, Parent shall deposit with the Exchange Agent (i)

certificates representing the Stock Consideration up to the number of shares

necessary to satisfy the obligation to pay Stock Consideration to the holders of

outstanding shares of Company Common Stock and Entitlement Options as of the

Effective Time, (ii) the Cash Consideration up to the amount necessary to

satisfy the obligation to pay Cash Consideration to the holders of outstanding

shares of Company Common Stock and Entitlement Options as of the Effective Time

and (iii) cash sufficient to make payments in lieu of fractional shares in

accordance with Section 1.5(d). The shares of Parent Common Stock and cash

amounts so deposited with the Exchange Agent, together with any dividends or

distributions received by the Exchange Agent with respect to such shares, are

referred to collectively as the "EXCHANGE FUND."

(B) As soon as reasonably practicable after the Effective Time of

Merger I, the Exchange Agent will mail to the record holders of Company Stock

Certificates (i) a letter of transmittal in

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customary form and containing such provisions as Parent may reasonably specify

(including a provision confirming that delivery of Company Stock Certificates

shall be effected, and risk of loss and title to Company Stock Certificates

shall pass, only upon delivery of such Company Stock Certificates to the

Exchange Agent) and (ii) instructions for use in effecting the surrender of

Company Stock Certificates in exchange for the Merger Consideration. Upon

surrender of a Company Stock Certificate to the Exchange Agent for exchange,

together with a duly executed letter of transmittal and such other documents as

may be reasonably required by the Exchange Agent or Parent (1) the holder of

such Company Stock Certificate shall be entitled to receive in exchange therefor

(A) a certificate representing the number of whole shares of Parent Common Stock

that such holder has the right to receive pursuant to the provisions of Section

1.5 (and cash in lieu of any fractional share of Parent Common Stock) and (B) an

amount in cash that such holder has the right to receive pursuant to the

provisions of Section 1.5 and (2) the Company Stock Certificate so surrendered

shall be canceled. Until surrendered as contemplated by this Section 1.8(b),

each Company Stock Certificate shall be deemed, from and after the Effective

Time of Merger I, to represent only the right to receive the Merger

Consideration (and cash in lieu of any fractional share of Parent Common Stock)

as contemplated by Section 1. If any Company Stock Certificate shall have been

lost, stolen or destroyed, Parent may, in its discretion and as a condition to

the issuance of any certificate representing Parent Common Stock, require the

owner of such lost, stolen or destroyed Company Stock Certificate to provide an

appropriate affidavit and to deliver a bond (in such sum as Parent may

reasonably direct) as indemnity against any claim that may be made against the

Exchange Agent, Parent, Surviving Entity I or the Surviving Entity with respect

to such Company Stock Certificate. In the event of a transfer of ownership of

Company Common Stock that is not registered in the transfer books of the

Company, a certificate representing the proper number of shares of Parent Common

Stock may be issued to and an amount in cash may be delivered pursuant to

Section 1.5 to a person other than the person in whose name the Company Stock

Certificate so surrendered is registered, if such Company Stock Certificate

shall be properly endorsed or otherwise be in proper form for transfer and the

person requesting such payment shall pay any transfer or other taxes required by

reason of the issuance of shares of Parent Common Stock to a person other than

the registered holder of such Company Stock Certificate or establish to the

satisfaction of Parent that such tax has been paid or is not applicable.

respect to Parent Common Stock with a record date after the Effective Time of

Merger I shall be paid to the holder of any unsurrendered Company Stock

Certificate with respect to the shares of Parent Common Stock that such holder

has the right to receive in Merger I until such holder surrenders such Company

Stock Certificate in accordance with this Section 1.8 (at which time such holder

shall be entitled, subject to the effect of applicable escheat or similar laws,

to receive all such dividends and distributions, without interest).

(D) Any portion of the Exchange Fund that remains undistributed to

holders of Company Stock Certificates as of the date one year after the

Effective Time of Merger I shall be delivered to Parent upon demand, and any

holders of Company Stock Certificates who have not theretofore surrendered their

Company Stock Certificates in accordance with this Section 1.8 shall thereafter

look only to Parent for satisfaction of their claims for Parent Common Stock,

cash in lieu of fractional shares of Parent Common Stock, their portion of the

Cash Consideration and any dividends or distributions with respect to Parent

Common Stock.

(E) Each of the Exchange Agent, Parent and the Surviving Entity

shall be entitled to deduct and withhold from any consideration payable or

otherwise deliverable pursuant to this Agreement to any holder or former holder

of Company Common Stock such amounts as may be required to be deducted or

withheld therefrom under the Code or any provision of state, local or foreign

tax law or under any other applicable Legal Requirement. To the extent such

amounts are so deducted or withheld, such amounts shall be treated for all

purposes under this Agreement as having been paid to the Person to whom such

amounts would otherwise have been paid.

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1.9 DISSENTING SHARES.

(A) Notwithstanding anything to the contrary contained in this

Agreement, to the extent that the provisions of Chapter 13 of the California

Corporations Code are applicable to Merger I, any shares of Company Common Stock

that, as of the Effective Time of Merger I, are or may become "dissenting

shares" within the meaning of Section 1300(b) of the CGCL shall not be converted

into or represent the right to receive a portion of the Merger Consideration,

and the holder or holders of such shares shall be entitled only to such rights

as may be granted to such holder or holders in Chapter 13 of the CGCL; provided,

however, that if the status of any such shares as "dissenting shares" shall not

be perfected, or if any such shares shall lose their status as "dissenting

shares", then, as of the later of the Effective Time of Merger I or the time of

the failure to perfect such status or the loss of such status, such shares shall

automatically be converted into and shall represent only the right to receive

(upon the surrender of the certificate or certificates representing such shares)

the Merger Consideration in accordance with Section 1.5.

(B) The Company shall give Parent (i) prompt notice of any

written demand received by the Company prior to the Effective Time of Merger I

to require the Company to purchase shares of Company Common Stock pursuant to

Chapter 13 of the CGCL and of any other demand, notice or instrument delivered

to the Company prior to the Effective Time of Merger I pursuant to the CGCL and

(ii) the opportunity to participate in all negotiations and proceedings with

respect to any such demand, notice or instrument. The Company shall not make any

payment or settlement offer prior to the Effective Time of Merger I with respect

to any such demand unless Parent shall have consented in writing to such payment

or settlement offer, except as required by applicable Legal Requirements.

1.10 TAX CONSEQUENCES. For federal income Tax purposes, the Mergers

are intended to constitute a reorganization within the meaning of Section 368 of

the Code. The parties to this Agreement hereby adopt this Agreement as a "plan

of reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of

the United States Treasury Regulations.

1.11 FURTHER ACTION. If, at any time after the Effective Time of

Merger I, any further action is determined by Parent to be necessary or

desirable to carry out the purposes of this Agreement or to vest the Surviving

Entity with full right, title and possession of and to all rights and property

of Merger Subs and the Company, the officers and directors of the Surviving

Entity and Parent shall be fully authorized (in the name of each Merger Sub, in

the name of the Company and otherwise) to take such action.

SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to Parent and Merger Subs as follows,

except as set forth in the Company Disclosure Letter:

2.1 DUE ORGANIZATION; SUBSIDIARIES; ETC.

(A) The Company has no Subsidiaries, except for the Entities

identified in Part 2.1(a) of the Company Disclosure Letter, and neither the

Company nor the other Entity identified in Part 2.1(a) of the Company Disclosure

Letter owns any capital stock of, or any equity interest of any nature in, any

other Entity. (The Company and its Subsidiaries are referred to collectively in

this Agreement as the "ACQUIRED CORPORATIONS.") None of the Acquired

Corporations has agreed or is obligated to make, or is bound by any Contract

under which it may become obligated to make, any future investment in or capital

contribution to any other Entity. None of the Acquired Corporations has, at any

<PAGE>

time, been a general partner of, or has otherwise been liable for any of the

debts or other obligations of, any general partnership, limited partnership or

other Entity.

(B) Each of the Acquired Corporations is a corporation duly

organized, validly existing and in good standing under the laws of the

jurisdiction of its incorporation and has all necessary power and authority: (i)

to conduct its business in the manner in which its business is currently being

conducted; (ii) to own and use its assets in the manner in which its assets are

currently owned and used; and (iii) to perform its obligations under all

Contracts by which it is bound.

business as a foreign corporation, and is in good standing, under the laws of

all jurisdictions where the nature of its business requires such qualification,

except where the failure to be so qualified would not be material to such

Acquired Corporation.

(D) Except as set forth in Part 2.1(d) of the Company

Disclosure Letter, the Company has not conducted any business under or otherwise

used, for any purpose or in any jurisdiction, any fictitious name, assumed name,

trade name or other name.

(E) Part 2.1(e) of the Company Disclosure Letter accurately

sets forth (i) the names of the members of each of the Acquired Corporations'

board of directors, (ii) the names of the members of each committee of each of

the Acquired Corporations' board of directors and (iii) the names and titles of

each of the Acquired Corporations' officers.

2.2 ARTICLES OF INCORPORATION AND BYLAWS. The Company has delivered

or made available to Parent accurate and complete copies of (a) the articles of

incorporation (or other charter or organizational document), (b) the bylaws (or

other charter or organizational document), (c) the stock records, minutes and

other records of the meetings and other proceedings of the shareholders, the

board of directors and all committees of the board of directors and (d) other

charter and organizational documents of each of the Acquired Corporations,

including all amendments thereto. There have been no formal meetings or other

proceedings of the shareholders, the board of directors, or any committee of the

board of directors of any of the Acquired Corporations that are not fully

reflected in such minutes or other records. There has not been any violation of

any of the provisions of any of the Acquired Corporations' articles of

incorporation or bylaws (or other charter or organizational document), and none

of the Acquired Corporations has taken any action that is inconsistent with any

resolution adopted by the shareholders, the board of directors or any committee

of the board of directors of such Acquired Corporation. The books of account,

stock records, minute books and other records of each of the Acquired

Corporations are accurate, up-to-date and complete in all material respects and

have been maintained in accordance with prudent business practices.

2.3 CAPITALIZATION, ETC.

(A) The authorized capital stock of the Company consists of

800,000,000 shares of Company Common Stock, of which 482,298,242 shares have

been issued and are outstanding as of March 18, 2004. The Company does not hold

any shares of its capital stock in its treasury, except for the repurchase of

Common Stock from employees or consultants upon termination of their employment

or consulting relationship with the Company. All of the outstanding shares of

Company Common Stock have been duly authorized and validly issued, and are fully

paid and nonassessable. There are no shares of Company Common Stock held by the

other Acquired Corporation. Except as set forth in Part 2.3(a)(i) of the Company

Disclosure Letter: (i) none of the outstanding shares of Company Common Stock is

entitled or subject to any preemptive right, right of first offer or any similar

right created by the Company or imposed under applicable law with respect to

capital stock of the Company; (ii) none of the outstanding shares of Company

Common Stock is subject to any right of first refusal in favor of the

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Company; and (iii) there is no Acquired Corporation Contract relating to the

voting or registration of, or restricting any Person from purchasing, selling,

pledging or otherwise disposing of (or granting any option or similar right with

respect to), any shares of Company Common Stock. None of the Acquired

Corporations is under any obligation, or is bound by any Contract pursuant to

which it may become obligated, to repurchase, redeem or otherwise acquire any

outstanding shares of Company Common Stock.

(B) As of the date hereof: (i) 50,394,237 shares of Company

Common Stock are subject to issuance pursuant to outstanding options to purchase

shares of Company Common Stock; (ii) 15,312,000 shares of Company Common Stock

are reserved for future issuance pursuant to the Company's 2001 Equity Incentive

Plan; and (iii) 31,587,572 shares of Company Common Stock are reserved for

future issuance pursuant to the Company's 1993 Stock Plan, as amended. Part

2.3(b) of the Company Disclosure Letter sets forth the following information

with respect to each Company Option outstanding as of the date of this

Agreement: (i) the particular plan pursuant to which such Company Option was

granted; (ii) the name of the optionee; (iii) the number of shares of Company

Common Stock subject to such Company Option; (iv) the exercise price of such

Company Option; (v) the date on which such Company Option was granted; and (vi)

the applicable vesting schedules (which applicable vesting schedule may be

provided by means of a general description of the vesting schedules applicable

to outstanding Company Options), and the extent to which such Company Option is

vested and exercisable as of the date of this Agreement. The Company has

delivered or made available to Parent accurate and complete copies of all stock

option plans pursuant to which the Company has ever granted stock options and

the forms of all stock option agreements evidencing such options.

Disclosure Letter, there is no: (i) outstanding subscription, option, call,

warrant or right (whether or not currently exercisable) to acquire any shares of

the capital stock or other securities of the Company; (ii) outstanding security,

instrument or obligation that is or may become convertible into or exchangeable

for any shares of the capital stock or other securities of the Company; (iii)

stockholder rights plan (or similar plan commonly referred to as a "poison

pill") or Contract under which the Company is or may become obligated to sell or

otherwise issue any shares of its capital stock or any other securities of the

Company; or (iv) to the Knowledge of the Company, any condition or circumstance

that may give rise to or provide a basis for the assertion of a claim by any

Person to the effect that such Person is entitled to acquire or receive any

shares of capital stock or other securities of the Company.

(D) All outstanding shares of Company Common Stock, all

outstanding Company Options and all outstanding shares of capital stock of each

Subsidiary of the Company have been issued and granted in compliance with (i)

all applicable securities laws and other applicable Legal Requirement and (ii)

all requirements set forth in applicable Contracts.

(E) All of the issued and outstanding shares of capital stock

of each Subsidiary identified in Part 2.1(a) of the Company Disclosure Letter

have been duly authorized, are validly issued, fully paid and nonassessable, and

are owned beneficially and of record by the Company, free and clear of any

Encumbrances, and there are no outstanding subscriptions, options, calls,

contracts, voting trusts, proxies or other commitments, understandings,

restrictions, arrangements, rights or warrants with respect to any such

Subsidiary's capital stock, including any right obligating any such Subsidiary

to issue, deliver or sell additional shares of its capital stock.

(F) Except as set forth in Part 2.3(f) of the Company

Disclosure Letter, none of the Acquired Corporations has ever repurchased,

redeemed or otherwise reacquired any shares of capital stock or other securities

of the Company. All securities so reacquired by the Company were reacquired in

compliance with (i) the applicable provisions of the CGCL and all other

applicable Legal

<PAGE>

Requirements and (ii) all requirements set forth in applicable restricted stock

purchase agreements and other applicable Contracts.

2.4 FINANCIAL STATEMENTS.

(A) The Company has delivered or made available to Parent the

following financial statements and notes (collectively, the "COMPANY FINANCIAL

STATEMENTS"):

(I) The audited consolidated balance sheets of the

Company and its Subsidiaries as of December 31, 2003, December 31, 2002 and

December 31, 2001 and the related audited income statements, statements of

shareholders' equity and statements of cash flows of the Company and its

Subsidiaries for the years then ended, together with the notes thereto and the

unqualified report and opinion of Ernst & Young LLP relating thereto; and

(II) The unaudited consolidated balance sheet of the

Company and its Subsidiaries as of February 29, 2004 (the "UNAUDITED INTERIM

BALANCE SHEET") and the related unaudited consolidated statement of operations

and statement of cash flows of the Company and its Subsidiaries for the two

months then ended.

(B) The Company Financial Statements are accurate and complete

in all material respects and present fairly the financial position of the

Acquired Corporations as of the respective dates thereof and the results of

operations and (in the case of the financial statements referred to in Section

2.4(a)(i)) cash flows of the Acquired Corporations for the period covered

thereby. The Company Financial Statements have been prepared in accordance with

generally accepted accounting principles applied on a consistent basis

throughout the periods covered (except as indicated in the notes thereto and

that the financial statements referred to in Section 2.4(a)(ii) do not contain

footnotes and are subject to normal and recurring year-end audit adjustments,

which will not, individually or in the aggregate, be material in magnitude.) The

Company Financial Statements have been prepared from and are in accordance with

the accounting records of the Acquired Corporations. The Company has also

delivered to Parent copies of all letters from the Company's auditors to the

Company's board of directors or the audit committee thereof during the

thirty-six (36) months preceding the execution of this Agreement, together with

copies of all responses thereto.

that are effective to ensure that all material information concerning the

Acquired Corporations is made known on a timely basis to the individuals

responsible for the preparation of the Company's documents lodged with ASIC (as

defined in Section 2.5) and other public disclosure documents. Part 2.4(c) of

the Company Disclosure Letter lists, and the Company has made available to

Parent, copies of the documentation creating or governing, all securitization

transactions and "off-balance sheet arrangements" (as defined in Item 303(c) of

Regulation S-K under the Exchange Act) effected by any of the Acquired

Corporations since January 1, 2001. The Company's auditor, since the date of

enactment of the Sarbanes-Oxley Act, has at all times since such date been

"independent" with respect to the Company within the meaning of Regulation S-X

under the Exchange Act.

(D) Part 2.4(d) of the Company Disclosure Letter summarizes

all non-audit services performed by the Company's auditor for the Acquired

Corporations since January 1, 2001.

2.5 ASIC; ASX.

(A) The Company has delivered or made available to Parent

accurate and complete copies (excluding copies of exhibits) of each document

lodged by the Company with the ASIC between January 1, 2001 and the date of this

Agreement (the "COMPANY ASIC DOCUMENTS"). Since

10.

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January 1, 2001, all documents required to have been lodged by the Company with

ASIC have been so lodged. As of the time it was lodged with ASIC: (i) each of

the Company ASIC Documents complied in all material respects with all applicable

Legal Requirements; and (ii) none of the Company ASIC Documents contained any

untrue statement of a material fact or omitted to state a material fact required

to be stated therein or necessary in order to make the statements therein, in

the light of the circumstances under which they were made, not misleading.

(B) The Company has complied in all material respects with all

of its disclosure requirements under any Legal Requirements (including the

listing rules) promulgated by ASX since January 1, 2001, and there is no

material information or circumstance that the Company is obliged to notify ASX

about pursuant to ASX Listing Rule 3.1 other than information lawfully permitted

to be withheld from such notification pursuant to an exemption from ASX Listing

Rule 3.1 or ASX Listing Rule 3.1A.

2.6 ABSENCE OF CHANGES. Except as set forth in Part 2.6 of the

Company Disclosure Letter, since December 31, 2003:

(A) there has not been any Material Adverse Effect on the

Acquired Corporations, and no event has occurred that would reasonably be

expected to result in any Material Adverse Effect on the Acquired Corporations;

(B) there has not been any material loss, damage or

destruction to any of the assets of any of the Acquired Corporations (whether or

not covered by insurance);

accrued, set aside or paid any dividend or made any other distribution with

respect of any shares of capital stock or (ii) repurchased, redeemed or

otherwise reacquired any shares of capital stock or other securities other than

capital stock acquired from employees or consultants upon the termination of

their employment or consulting relationship with such Acquired Corporation after

the date hereof;

(D) none of the Acquired Corporations has sold, issued or

granted, or authorized the issuance of, (i) any capital stock or other security

(except for Company Common Stock issued upon the valid exercise of outstanding

Company Options in accordance with the terms of the option agreement pursuant to

which such Company Options are outstanding, (ii) any option, warrant or right to

acquire any capital stock or any other security (except for Company Options

described in Part 2.3(b) of the Company Disclosure Letter) or (iii) any

instrument convertible into or exchangeable for any capital stock or other

security of any of the Acquired Corporations;

(E) the Company has not amended or waived any of its rights

under, or permitted the acceleration of vesting under, (i) any provision of any

of the Company's stock option plans, (ii) any provision of any agreement

evidencing any outstanding Company Option or (iii) any restricted stock purchase

agreement;

(F) there has been no amendment to the articles of

incorporation, bylaws or other charter or organizational documents of any of the

Acquired Corporations, and none of the Acquired Corporations has effected or

been a party to any merger, consolidation, amalgamation, share exchange,

business combination, recapitalization, reclassification of shares, stock split,

division or subdivision of shares, reverse stock split, consolidation of shares

or similar transaction;

(G) none of the Acquired Corporations has formed any

Subsidiary or acquired any equity interest or other interest in any other

Entity;

11.

<PAGE>

(H) none of the Acquired Corporations has made any capital

expenditure outside of the ordinary course of business and consistent with past

practices;

(I) except in the ordinary course of business and consistent

with past practices, none of the Acquired Corporations has (i) entered into or

permitted any of the assets owned or used by it to become bound by any Material

Contract (as defined in Section 2.12(a)) or (ii) amended or terminated, or

waived, in a manner adverse to any Acquired Corporation, any material right or

remedy under, any Material Contract;

(J) except for product sales in the ordinary course of

business and consistent with past practices, none of the Acquired Corporations

has (i) acquired, leased or licensed any material right or other material asset

from any other Person, (ii) sold or otherwise disposed of, or leased or

licensed, any material right or other material asset to any other Person or

(iii) waived or relinquished any material right;

(K) none of the Acquired Corporations has made any pledge of

any of its material assets or otherwise permitted any of its material assets to

become subject to any material Encumbrance, except for liens for current taxes

which are not yet due and payable;

(L) none of the Acquired Corporations has (i) lent money to

any Person, except for advances to employees for business expenses, in each

case, in the ordinary course of business and consistent with past practices or

(ii) incurred or guaranteed any indebtedness for borrowed money;

(M) none of the Acquired Corporations has (i) established or

adopted any Employee Plan (as defined in Section 2.19(a)) or (ii) caused or

permitted any Employee Plan to be amended in any material respect;

(N) none of the Acquired Corporations has paid any bonus or

made any profit-sharing or similar payment to, or increased the amount of the

wages, salary, commissions, fringe benefits or other compensation or

remuneration payable to, any of its directors, officers or employees, except

pursuant to existing bonus plans and other Employee Plans referred to in Part

2.16(a) of the Company Disclosure Letter and for normal bonuses or increases in

wages, salaries and commissions to employees in accordance with the Company's

customary review process or otherwise consistent with past practice;

(O) none of the Acquired Corporations has changed any of its

methods of accounting or accounting practices in any respect, except as required

by generally accepted accounting principles;

(P) none of the Acquired Corporations has made any material

Tax election;

(Q) none of the Acquired Corporations has settled any material

Legal Proceeding;

(R) none of the Acquired Corporations has entered into any

transaction or taken any other action that has had, or would reasonably be

expected to have, a Material Adverse Effect on the Acquired Corporations;

(S) none of the Acquired Corporations has entered into any

material transaction or taken any other material action outside the ordinary

course of business or inconsistent with past practices except as set forth in

the Company Disclosure Letter; and

12.

<PAGE>

(T) none of the Acquired Corporations has agreed or committed

to take any of the actions referred to in the foregoing subsections of this

Section 2.6.

2.7 TITLE TO ASSETS. The Acquired Corporations own, and have good,

valid and marketable title to, all tangible personal property purported to be

owned by them, including: (a) all tangible personal property reflected on the

Unaudited Interim Balance Sheet (except for inventory sold or otherwise disposed

of in the ordinary course of business since the date of the Unaudited Interim

Balance Sheet); and (b) all other material assets reflected in the books and

records of the Acquired Corporations as being owned by the Acquired

Corporations. Except as set forth in Part 2.7 of the Company Disclosure Letter,

all of said items of tangible personal property are owned by the Acquired

Corporations free and clear of any material Encumbrances, except for (1) any

lien for current taxes not yet due and payable and (2) liens described in Part

2.7 of the Company Disclosure Letter.

2.8 RESERVED.

2.9 RECEIVABLES; CUSTOMERS. All existing accounts receivable of the

Acquired Corporations (including those accounts receivable reflected on the

Unaudited Interim Balance Sheet that have not yet been collected and those

accounts receivable that have arisen since February 29, 2004 and have not yet

been collected) represent valid obligations of customers of the Acquired

Corporations arising from bona fide transactions entered into in the ordinary

course of business. Since December 31, 2003, none of the Acquired Corporations

has written off as uncollectible, or established any extraordinary reserve with

respect to, any account receivable or other indebtedness. Part 2.9(a) of the

Company Disclosure Letter contains an accurate and complete list as of the date

of this Agreement of all loans and advances made by any of the Acquired

Corporations to any employee, director, consultant or independent contract,

other than routine travel advances and other expenses made to employees in the

ordinary course of business. Part 2.9(b) of the Company Disclosure Letter

accurately identifies, and provides a breakdown of the revenues received from,

the top 10 customers of the Company in terms of gross revenue generated in

fiscal year 2001, fiscal year 2002 and fiscal year 2003. The Company has not

received any notice or other communication (in writing or otherwise) indicating

that any customer is likely to cease dealing with the Company.

2.10 PROPERTY; LEASEHOLD. All material items of equipment and other

tangible assets owned by, used by or leased to the Acquired Corporations are

adequate for the uses to which they are being put, are in good and safe

condition and repair (ordinary wear and tear excepted) and are adequate for the

conduct of the business of the Acquired Corporations in the manner in which such

business is currently being conducted. None of the Acquired Corporations own any

real property or any interest in real property, except for the leaseholds

created under the real property leases identified in Part 2.10 of the Company

Disclosure Letter.

2.11 INTELLECTUAL PROPERTY.

(A) Part 2.11(a) of the Company Disclosure Letter accurately

identifies (i) each item of Registered IP in which any Acquired Corporation has

an ownership interest of any nature (whether exclusively, jointly with another

Person, or otherwise); (ii) the jurisdiction in which such item of Registered IP

has been registered or filed and the applicable registration or serial number;

(iii) any other Person that has an ownership interest in such item of Registered

IP and the nature of such ownership interest; and (iv) each material common law

trademark or service mark used by an Acquired Corporation that is not Registered

IP. The Company has delivered to Parent (or otherwise made available in a data

room to which Parent's Representatives have had access) complete and accurate

copies of all applications, material correspondence, and other material

documents related to each such item of Registered IP.

13.

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(B) Part 2.11(b) of the Company Disclosure Letter (i) accurately

identifies each Contract under which Intellectual Property Rights or

Intellectual Property is licensed to any Acquired Corporation (other than any

commercially available third-party software that (A) is licensed to the Acquired

Corporations solely in executable or object code form pursuant to a

non-exclusive, internal use software license, and (B) is not incorporated into,

or used directly in the development, manufacturing, testing, distribution, or

support of, any Acquired Corporations Product); and (ii) specifies whether the

rights licensed to the Acquired Corporations are exclusive or non-exclusive. The

Company has delivered or made available to Parent an accurate and complete copy

of each Contract identified, or required to be identified, in Part 2.11(b) of

the Company Disclosure Letter.

identifies each Contract pursuant to which any Person has been granted any

license under, or otherwise has received or acquired any right (whether or not

currently exercisable) or interest in (i) any Intellectual Property Rights in

any Acquired Corporation Products, (ii) any Acquired Corporation IP that is

Registered IP or (iii) any other Acquired Corporation IP that is material to the

business of any Acquired Corporation. For each of the Contracts required to be

identified as set forth above, Part 2.11(c) of the Company Disclosure Letter

identifies whether the rights granted are exclusive or nonexclusive. The Company

has delivered or made available to Parent an accurate and complete copy of each

Contract identified, or required to be identified, in Part 2.11(c) of the

Company Disclosure Letter. No Acquired Corporation is bound by, and no Acquired

Corporation IP is subject to, any Contract containing any covenant or other

provision that in any way limits or restricts the ability of any Acquired

Corporation to use, exploit, assert, or enforce any Acquired Corporation IP, or

compete or engage in any kind of business, anywhere in the world.

(D) The Company has delivered or made available to Parent a complete

and accurate copy of (i) all Contracts to which an Acquired Corporation is a

party or of which an Acquired Corporation is aware (other than those identified

in Part 2.11(c) of the Company Disclosure Letter) pursuant to which any Person

has a currently enforceable or exercisable right to sublicense or otherwise

transfer rights in any material Acquired Corporation IP to any other Person;

(ii) each joint marketing, joint development, strategic alliance, and similar

Contract to which any Acquired Corporation is a party and which is currently in

effect; and (iii) each distribution, reseller, sales representative, or other

similar Contract for any Acquired Corporation Product that is currently in

effect. Part 2.11(d) of the Company Disclosure Letter accurately identifies each

Contract described in clauses (i), (ii) and (iii) above.

(E) The Acquired Corporations exclusively own all right, title, and

interest to and in the Acquired Corporation IP (other than any Acquired

Corporation IP that is jointly owned with another Person, as identified in Part

2.11(a) of the Company Disclosure Letter, and Intellectual Property Rights

licensed to the Acquired Corporations, as identified in Part 2.11(b) of the

Company Disclosure Letter) free and clear of any Encumbrances (other than

licenses granted pursuant to the Contracts listed in Part 2.11(c) of the Company

Disclosure Letter). Without limiting the generality of the foregoing:

(I) All documents and instruments necessary to vest or perfect

the rights of the Acquired Corporations in the Acquired Corporation IP that is

Registered IP have been validly executed, delivered and filed in a timely manner

with the appropriate Governmental Body.

(II) Each Person who is or was an employee or contractor of

any Acquired Corporation and who is or was involved in any material respect in

the creation or development of any Acquired Corporation Product has signed a

valid, enforceable agreement containing an assignment of all Intellectual

Property Rights in such Acquired Corporations Product to one or more of the

Acquired Corporations and confidentiality provisions protecting the Acquired

Corporation IP (other than Acquired Corporation IP that is generally available

to the public through no fault of the employee or contractor). No current or

former shareholder, officer, director or employee of any Acquired Corporation

has any claim,

14.

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right (whether or not currently exercisable) or interest to or in any Acquired

Corporation IP. To the Company's Knowledge, no employee of any Acquired

Corporation is in breach of any Contract with any former employer or other

Person concerning Intellectual Property Rights or confidentiality.

(III) To the Company's Knowledge, no funding, facilities or

personnel of any Governmental Body or of any college, university or other

educational institution were used, directly or indirectly, to develop or create,

in whole or in part, any Acquired Corporation IP, except for such Acquired

Corporation IP that was in-licensed by a college, university or other

educational institution.

(IV) Each of the Acquired Corporations has taken reasonable

steps to maintain the confidentiality of and otherwise protect and enforce the

Acquired Corporations' rights in all proprietary information that the Acquired

Corporations hold, or purport to hold, as a trade secret.

(V) To the Knowledge of the Company, no Acquired Corporation

is or ever was a member or promoter of, or a contributor to, any industry

standards body or similar organization that could require or obligate any

Acquired Corporation to grant or offer to any other Person any license or right

to any Acquired Corporation IP.

(VI) The Acquired Corporations own or otherwise have, and

immediately after the Effective Time of Merger II, the Surviving Entity will

have, all Intellectual Property Rights needed to conduct their respective

businesses as currently conducted by the Acquired Corporations.

(F) All Registered IP is valid, subsisting and enforceable. Without

limiting the generality of the foregoing:

(I) Each item of Registered IP is and at all times has been in

compliance with all applicable Legal Requirements and all filings, payments and

other actions required to be made or taken to maintain such item of Registered

IP in full force and effect have been made or taken by the applicable deadline.

(II) No interference, opposition, reissue, reexamination or

other Legal Proceeding is pending or, to the Company's Knowledge, threatened, in

which the scope, validity, or enforceability of any Registered IP is being, has

been, or could reasonably be expected to be contested or challenged. To the

Company's Knowledge, there is no basis for any non-frivolous claim that any

Registered IP is invalid or unenforceable.

(G) To the Company's Knowledge, since January 1, 2001 no Person has

infringed, misappropriated or otherwise violated, and no Person is currently

infringing, misappropriating or otherwise violating, any Acquired Corporation

IP. The Company has provided or made available to Parent a complete and accurate

copy of each letter or other written or electronic communication or

correspondence that has been sent or otherwise delivered since January 1, 2001

by or to any Acquired Corporation or any representative of any Acquired

Corporation regarding any actual, alleged, or suspected infringement or

misappropriation of any Acquired Corporation IP. Part 2.11(g) of the Company

Disclosure Letter provides an accurate brief description of the current status

of the matter referred to in each such letter, communication or correspondence.

(H) Neither the execution, delivery or performance of this Agreement

(or any of the ancillary agreements entered into, or required to be entered

into, in connection with the transactions contemplated by this Agreement) nor

the consummation of any of the transactions contemplated by this Agreement will,

with or without notice or lapse of time, result in, or give any other Person the

right or option to cause or declare, (i) a loss of, or Encumbrance on, any

Acquired Corporation IP; (ii) a breach of

15.

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any license agreement listed or required to be listed in Part 2.11(b), Part

2.11(c) or Part 2.11(d) of the Company Disclosure Letter; (iii) the release,

disclosure, or delivery of any Acquired Corporation IP by or to any escrow agent

or other Person; or (iv) the grant, assignment, or transfer to any other Person

of any license or other right or interest under, to, or in any Acquired

Corporation IP.

(I) To the Company's Knowledge, no Acquired Corporation and no

Acquired Corporation Product has ever infringed (directly, contributorily, by

inducement, or otherwise), misappropriated, or otherwise violated any

Intellectual Property Right of any other Person. No claim of infringement or

misappropriation or similar claim or Proceeding is pending or, to the Company's

knowledge, threatened against any Acquired Corporation or against any other

Person who may be entitled to be indemnified, defended, held harmless, or

reimbursed by any Acquired Corporation with respect to such claim or Proceeding.

Except as set forth in Part 2.11(i) of the Company Disclosure Letter, since

January 1, 2001, no Acquired Corporation has received any notice or other

communication (in writing or otherwise) relating to any actual, alleged, or

suspected infringement, misappropriation, or violation of any Intellectual

Property Rights of another Person.

(J) Each Acquired Corporation Product sold or otherwise available to

the public is marked with or contains an accurate listing of all issued patents

that claim such Products for its use.

(K) No Acquired Corporation Software contains any "back door," "drop

dead device," "time bomb," "Trojan horse," "virus," or "worm" (as such terms are

commonly understood in the software industry) or any other code designed or

intended to have, or capable of performing, any of the following functions: (i)

disrupting, disabling, harming, or otherwise impeding in any manner the

operation of, or providing unauthorized access to, a computer system or network

or other device on which such code is stored or installed; or (ii) damaging or

destroying any data or file without the user's consent.

(L) Except as set forth in Part 2.11(l) of the Company Disclosure

Letter, no source code for any Acquired Corporation Software has been delivered,

licensed, or made available to any escrow agent or other third party. No

Acquired Corporation has any duty or obligation (whether present, contingent, or

otherwise) to deliver, license, or make available the source code for any

Acquired Corporation Software to any escrow agent or other third party. No event

has occurred, and no circumstance or condition exists, that (with or without

notice or lapse of time) will, or could reasonably be expected to, result in the

delivery, license or disclosure of the source code for any Acquired Corporation

Software to any third party.

(M) No Acquired Corporation Software (including any component

thereof) is subject to any "copyleft" or other obligation or condition

(including any obligation or condition under any "open source" license such as

the GNU Public License, Lesser GNU Public License, or Mozilla Public License)

that by its terms (i) requires, or conditions the use or distribution of such

Acquired Corporation Software on, the disclosure, licensing, or distribution of

any source code for any portion of such Acquired Corporation Software, or (ii)

otherwise imposes any limitation, restriction, or condition on the right or

ability of any Acquired Corporation to use or distribute any Acquired

Corporations Product.

2.12 CONTRACTS.

(A) Except as set forth in Part 2.12 of the Company Disclosure

Letter none of the Acquired Corporations is bound by any Contract:

(I) relating to the employment of, or the performance of

services by, any employee or consultant (other than any offer letter provided to

any employee of any of the Acquired Corporations which provides for "at will"

employment); any Contract pursuant to which any of the

16.

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Acquired Corporations is or may become obligated to make any severance,

termination or similar payment to any current or former employee or director;

and any Contract pursuant to which any of the Acquired Corporations is or may

become obligated to make any bonus or similar payment (other than payments with

respect of salary) in excess of $125,000 to any current or former employee or

director;

(II) with the exception of standard purchase orders that

contain warranties with a term of less than twelve months, (A) with any customer

of any of the Acquired Corporations; or (B) with respect to the distribution or

marketing of any product of any of the Acquired Corporations;

(III) creating or involving any material agency

relationship, distribution arrangement or franchise relationship;

(IV) creating or relating to any partnership or joint

venture or any sharing of revenues, profits, losses, costs or Liabilities;

(V) relating to the grant of rights to manufacture,

produce, assemble, license, market or sell the Company's products or services to

any other person or otherwise affecting the Company's exclusive right to

develop, manufacture, assemble, distribute, market or sell its products or

services;

(VI) of the type to be required under Section 2.11 to be

identified on the Company Disclosure Letter;

(VII) which provides for indemnification of any officer,

director, employee or agent (other than the articles of incorporation or other

similar charter document or the bylaws of the Acquired Corporations delivered or

made available to Parent);

(VIII) imposing any restriction on the right or ability

of any Acquired Corporation: (A) to compete with any other Person, (B) to

acquire any product or other asset or any services from any other Person, (C) to

solicit, hire or retain any Person as an employee, consultant or independent

contractor, (D) to develop, sell, supply, distribute, offer, support or service

any product or any technology or other asset to or for any other Person, (E) to

perform services for any other Person or (F) to transact business or deal in any

other manner with any other Person;

(IX) (A) relating to the acquisition, issuance, voting,

registration, sale or transfer of any securities, other than pursuant to Company

Options, (B) providing any Person with any preemptive right, right of

participation, right of maintenance or any similar right with respect to any

securities or (C) providing any of the Acquired Corporations with any right of

first refusal with respect to, or right to purchase or otherwise acquire, any

securities;

(X) incorporating or relating to any guaranty, any

warranty or any indemnity or similar obligation, except for standard purchase

orders entered into in the ordinary course of business;

(XI) relating to any currency hedging;

(XII) imposing any confidentiality obligation on any of

the Acquired Corporations, except for routine confidentiality or nondisclosure

agreements entered into by any Acquired Corporation in the ordinary course of

business that do not otherwise constitute Material Contracts under this Section

2.12(a));

17.

<PAGE>

(XIII) to which any Governmental Body is a party, and

any other Contract directly or indirectly benefiting any Governmental Body

(including any subcontract or other Contract between any Acquired Corporation

and any contractor or subcontractor to any Governmental Body), except for

standard purchase orders entered into in the ordinary course of business for the

license, maintenance or service of products;

(XIV) with obligations in excess of $125,000 that has a

term of more than 90 days and that may not be terminated by an Acquired

Corporation (without penalty) within 90 days after the delivery of a termination

notice by such Acquired Corporation;

(XV) requiring that any of the Acquired Corporations

give any notice or provide any information to any Person prior to considering or

accepting any Acquisition Proposal or similar proposal, or prior to entering

into any discussions, agreement, arrangement or understanding relating to any

Acquisition Transaction or similar transaction;

(XVI) that contemplates or involves the payment or

delivery of cash or other consideration in an amount or having a value in excess

of $125,000 in the aggregate, or contemplates or involves the performance of

services by any of the Acquired Corporations having a value in excess of

$125,000 in the aggregate;

(XVII) that would reasonably be expected to have a

material effect on (A) the business, condition, capitalization, assets,

liabilities, operations or financial performance of any of the Acquired

Corporations or (B) the ability of the Company to perform any of its obligations

under, or to consummate any of the transactions contemplated by this Agreement;

and

(XVIII) (not otherwise identified in clauses "(i)"

through "(xvii)" of this sentence), if a breach of such Contract would

reasonably be expected to have a Material Adverse Effect on the Acquired

Corporations.

(Contracts in the respective categories described in clauses "(i)" through

"(xviii)" above are referred to in this Agreement as "MATERIAL CONTRACTS.")

(B) The Company has delivered or made available to Parent and

to Cooley Godward llp an accurate and complete copy of each Acquired Corporation

Contract that constitutes a Material Contract.

force and effect, and is enforceable in accordance with its terms, subject to

(i) laws of general application relating to bankruptcy, insolvency and the

relief of debtors and (ii) applicable rules of law governing specific

performance, injunctive relief and other equitable remedies.

(D) (i) None of the Acquired Corporations has violated or

breached in any material respect, or committed any material default under, any

Acquired Corporation Contract; and, to the Knowledge of the Company, no other

Person has violated or breached, or committed any default under, any Acquired

Corporation Contract; (ii) to the Knowledge of the Company, no event has

occurred, and no circumstance or condition exists, that (with or without notice

or lapse of time) will, or could reasonably be expected to, (A) result in a

violation or breach of any of the provisions of any Acquired Corporation

Contract, (B) give any Person the right to declare a default or exercise any

remedy under any Acquired Corporation Contract, (C) give any Person the right to

receive or require a rebate, chargeback or penalty under any Acquired

Corporation Contract, (D) give any Person the right to accelerate the maturity

or performance of any Acquired Corporation Contract or (E) give any Person the

right to cancel, terminate or modify in any material respect any Acquired

Corporation Contract; and (iii) since January 1, 2002,

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<PAGE>

none of the Acquired Corporations has received any written notice or other

communication regarding any actual or alleged violation or breach of, or default

under, any Acquired Corporation Contract.

(E) None of the Acquired Corporations has waived any of its

material rights under any Material Contract.

(F) No Person is renegotiating, or has a right pursuant to the

terms of any Material Contract to renegotiate, any amount paid or payable to any

of the Acquired Corporations under any Material Contract or any other material

term or provision of any Material Contract.

(G) The Material Contracts collectively constitute all of the

Contracts necessary to enable each of the Acquired Corporations to conduct their

respective businesses in the manner in which such businesses are currently being

conducted in all material respects.

2.13 PRODUCTS; PERFORMANCE OF SERVICES.

(A) Except as set forth in Part 2.13(a) of the Company

Disclosure Letter, since January 1, 2003, each Acquired Corporation Product has

conformed and complied in all material respects with the terms and requirements

of any applicable warranty or other Contract and with all applicable Legal

Requirements.

(B) Except as set forth in Part 2.13(b) of the Company

Disclosure Letter, since January 1, 2003, all services that have been performed

by the Acquired Corporations were performed properly and in substantial

conformity with the terms and requirements of all applicable Contracts and with

all applicable Legal Requirements.

Disclosure Letter, since January 1, 2003, no customer or other Person has

asserted or, to the Knowledge of the Company, threatened to assert any material

claim against any of the Acquired Corporations (i) under or based upon any

warranty provided by or on behalf of any of the Acquired Corporations, (ii)

under or based upon any other warranty relating to any Acquired Corporation

Product or (iii) based upon any services performed by any of the Acquired

Corporations.

2.14 LIABILITIES. None of the Acquired Corporations has any

Liabilities of any nature, except for: (a) Liabilities identified as such in the

"liabilities" column of the Unaudited Interim Balance Sheet; (b) normal and

recurring current Liabilities that have been incurred by the Acquired

Corporations since December 31, 2003 in the ordinary course of business

consistent with past practices; (c) Liabilities described in Part 2.14 of the

Company Disclosure Letter; and (d) Liabilities for performance of obligations of

the Acquired Corporations under Acquired Corporation Contracts that have been

delivered or made available to Parent, to the extent such Liabilities are

readily ascertainable (in nature, scope and amount) from the copies of such

Acquired Corporation Contracts provided or made available to Parent prior to the

date of this Agreement.

2.15 COMPLIANCE WITH LEGAL REQUIREMENTS. Except as set forth in Part

2.15 of the Company Disclosure Letter, each of the Acquired Corporations is, and

has at all times since January 1, 2002 been, in compliance in all material

respects with all applicable Legal Requirements. To the Knowledge of the

Company, no event has occurred or circumstance exists that (with or without

notice or lapse of time) (i) may constitute or result in a violation by any

Acquired Corporation of, or a failure on the part of any Acquired Corporation to

comply with, any material applicable Legal Requirement or (ii) may give rise to

any obligation on the part of any Acquired Corporation to undertake, or to bear

all or any portion of the cost of, any remedial action of any nature. Except as

set forth in Part 2.15 of the Company Disclosure Letter, since January 1, 2002,

none of the Acquired Corporations has received any written

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<PAGE>

notice or other communication from any Governmental Body regarding any actual or

possible material violation of, or failure to materially comply with, any

material applicable Legal Requirement. None of the Acquired Corporations is or

has been required to register any equity security or file reports with the

Securities and Exchange Commission pursuant to the Securities Exchange Act of

1934, as amended, and the rules and regulations thereunder.

2.16 CERTAIN BUSINESS PRACTICES. None of the Acquired Corporations,

nor any director, officer, agent or employee of any of the Acquired Corporations

has (i) used any funds for unlawful contributions, gifts, entertainment or other

unlawful expenses relating to political activity or (ii) made any unlawful

payment to foreign or domestic government officials or employees or to foreign

or domestic political parties or campaigns or violated any provision of the

Foreign Corrupt Practices Act of 1977, as amended.

2.17 GOVERNMENTAL AUTHORIZATIONS. The Acquired Corporations have all

Governmental Authorizations necessary to enable each of the Acquired

Corporations to conduct its business in the manner in which its business is

currently being conducted, and all such Governmental Authorizations are valid

and in full force and effect, except where such failure has not had, and would

not, individually or in the aggregate, be reasonably expected to have a Material

Adverse Effect on the Acquired Corporations. Each Acquired Corporation is, and

at all times since January 1, 2002 has been, in compliance in all material

respects with the terms and requirements of such Governmental Authorizations.

Since January 1, 2002, none of the Acquired Corporations has received any notice

or other communication from any Governmental Body regarding (a) any actual or

possible violation of or failure to comply with any material term or requirement

of any Governmental Authorization or (b) any actual or possible revocation,

withdrawal, suspension, cancellation, termination or modification of any

material Governmental Authorization.

2.18 TAX MATTERS. Except as set forth in Part 2.18 of the Company

Disclosure Letter:

(A) Each Acquired Corporation has duly and timely filed with

the appropriate Tax authorities or other applicable Governmental Body all Tax

Returns that it is required to file (taking into account extensions) (the

"ACQUIRED CORPORATION RETURNS"). All Acquired Corporation Returns are complete

and accurate in all material respects. All material Taxes of the Acquired

Corporations that are due and payable have been paid or are being contested in

good faith and adequate reserves for such contested Taxes are reflected on the

Unaudited Interim Balance Sheet. The Acquired Corporations have each withheld

and remitted all material Taxes required to be withheld and remitted in

connection with any amount paid or owing to any employee, independent

contractor, creditor, stockholder or other third party.

(B) The unpaid Taxes of the Acquired Corporations did not, as

of February 29, 2004, exceed by a material amount the reserve for Tax liability

(excluding any reserve for deferred Taxes established to reflect timing

differences between book and Tax income) set forth on the face of the Unaudited

Interim Balance Sheet. Since February 29, 2004, none of the Acquired

Corporations has incurred any Liability for any Tax other than in the ordinary

course of its business.

audited by any Governmental Body. No extension or waiver of the limitation

period applicable to any of the Acquired Corporation Returns has been granted

(by any Acquired Corporation or any other Person) that has not expired, and no

such extension or waiver has been requested from any Acquired Corporation, other

than extensions or waivers that are no longer in effect.

(D) No claim or Legal Proceeding is pending or has been

threatened against or with respect to any Acquired Corporation with respect to

any Tax. There are no unsatisfied Liabilities

20.

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for Taxes (including Liabilities for interest, additions to tax and penalties

thereon and related expenses) with respect to any notice of deficiency or

similar document received by any Acquired Corporation with respect to any Tax

(other than Liabilities for Taxes asserted under any such notice of deficiency

or similar document which are being contested in good faith by the Acquired

Corporations and with respect to which adequate reserves for payment have been

established on the Unaudited Interim Balance Sheet). There are no liens for

Taxes upon any of the assets of any of the Acquired Corporations except liens

for current Taxes not yet due and payable. None of the Acquired Corporations has

entered into or become bound by any agreement or consent pursuant to former

Section 341(f) of the Code (or any comparable provision of state or foreign Tax

laws). None of the Acquired Corporations has been, and none of the Acquired

Corporations will be, required to include any adjustment in taxable income for

any tax period (or portion thereof) (i) pursuant to Section 481 of the Code (or

any comparable provision under state or foreign Tax laws) as a result of

transactions or events occurring, or accounting methods employed, prior to the

Closing, (ii) as a result of any "closing agreement" as described in Section

7121 (or corresponding or similar provisions of state, local or foreign income

Tax law), or (iii) as a result of intercompany transactions or any excess loss

accounts described in Treasury Regulations under Section 1502 (or corresponding

or similar provisions of state, local or foreign income Tax law).

(E) There is no agreement, plan, arrangement or other Contract

to which any of the Acquired Corporations is a party covering any employee or

independent contractor or former employee or independent contractor of any of

the Acquired Corporations that, considered individually or considered

collectively with any other such Contracts, will, or could reasonably be

expected to, give rise directly or indirectly to the payment by any Acquired

Corporation of any amount the deduction for which would be disallowed pursuant

to Section 280G or Section 162(m) of the Code (or any comparable provision under

state or foreign Tax laws). The Company has not entered into any Contract

pursuant to which it has agreed to reimburse or "gross-up" any individual with

respect to any excise tax under Section 4999 of the Code.

(F) Neither the Company nor any of its Subsidiaries has

distributed to its shareholders or security holders stock or securities of a

controlled corporation, nor has stock or securities of the Company or any of its

Subsidiaries been distributed, in a transaction to which Section 355 of the Code

applies (i) in the two years prior to the date of this Agreement or (ii) in a

distribution that could otherwise constitute part of a "plan" or "series of

related transactions" (within the meaning of Section 355(e) of the Code).

(G) None of the Acquired Corporations (i) has ever been a

member of an Affiliated Group filing a consolidated federal or state income Tax

returns (other than a group of which the Company was the common parent) or (ii)

has any Liability for Taxes of any Person (other than the Acquired Corporations)

under Treasury Regulation Section 1.1502-6 (or similar provision of state, local

or foreign Tax laws), as a transferee or successor, by contract or otherwise.

None of the Acquired Corporations is, or has ever been, a party to or bound by

any tax indemnity agreement, tax sharing agreement, tax allocation agreement or

similar Contract.

(H) The Company has delivered or made available to Parent

complete copies of all Acquired Corporation Returns for all taxable periods

ended on or after December 31, 1998.

2.19 EMPLOYEE AND LABOR MATTERS; BENEFIT PLANS.

(A) Part 2.19(a) of the Company Disclosure Letter identifies

each employment, consulting, salary, bonus, vacation, deferred compensation,

incentive compensation, stock purchase, stock option or other equity-based,

severance, termination, retention, change-in-control, death and disability

benefits, hospitalization, medical, life or other insurance, flexible benefits,

supplemental unemployment benefits, other welfare fringe benefits,

profit-sharing, pension or retirement plan, program

21.

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or agreement and each other employee benefit plan or arrangement, whether

written or unwritten, funded or unfunded, including each Foreign Plan and each

"employee benefit plan," within the meaning of Section 3(3) of ERISA, which is

sponsored, maintained, contributed to or required to be contributed to by any of

the Acquired Corporations for the benefit of any current or former employee,

consultant or director of any of the Acquired Corporations or with respect to

which any of the Acquired Corporations has or may reasonably be expected to have

any Liability (collectively, the "EMPLOYEE PLANS").

(B) With respect to each Employee Plan, the Company has

delivered or made available to Parent: (i) a complete copy of such Employee Plan

that is in writing (including all amendments thereto); (ii) a complete copy of

the annual report (Form Series 5500 and all schedules and financial statements

attached thereto), if any, required under ERISA or the Code, with respect to

such Employee Plan for the three (3) most recent plan years; (iii) a complete

copy of the most recent summary plan description, together with each summary of

material modifications, if required under ERISA, with respect to such Employee

Plan; (iv) if such Employee Plan is funded through a trust or any third party

funding vehicle, a complete copy of the trust or other funding agreement

(including all amendments thereto); (v) complete copies of all material

Contracts to which any Acquired Corporation or Employee Plan is a party relating

to such Employee Plan, including service provider agreements, insurance

contracts, minimum premium contracts, stop-loss agreements, investment

management agreements, subscription and participation agreements and

recordkeeping agreements; (vi) all material written disclosures provided to any

employee or employees relating to such Employee Plan and any Employee Plan that

any Acquired Corporation proposes to establish, in each case relating to any

amendments, terminations, establishments, increases or decreases in benefits,

acceleration of payments or vesting schedules or other events which could be

reasonably expected to result in any material liability to the Acquired

Corporations; (vii) all material correspondence, if any, to or from any

governmental agency, or from any Acquired Corporation to any governmental

agency, relating to such Employee Plan; (viii) where applicable to such Employee

Plan, such Employee Plan's standard forms and related notices required under the

Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA");

(ix) all insurance policies, if any, maintained by the Company pertaining to

fiduciary liability insurance covering the fiduciaries for each Employee Plan;

(x) all discrimination tests, if any, required under the Code for each Employee

Plan intended to be qualified under Section 401(a) of the Code for the three (3)

most recent plan years; (xi) the most recent determination letter (or opinion

letter, if applicable) received from the Internal Revenue Service with respect

to each Employee Plan intended to be qualified under Section 401(a) of the Code;

and (xii) all government and regulatory approvals received from any foreign

Governmental Body with respect to Foreign Plans.

required to be treated as a single employer with any other Person under Section

4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, except for

the Acquired Corporations.

(D) No Acquired Corporation has ever maintained, established,

sponsored, participated in or contributed to any: (i) Employee Plan subject to

Section 302 or Title IV of ERISA or Section 412 of the Code; (ii) "multiemployer

plan" within the meaning of Section 3(37) of ERISA; (iii) plan, intended to be

qualified under Section 401(a) of the Code that is subject to Section 413(c) of

the Code; or (iv) Employee Plan that is an "employee benefit plan" within the

meaning of Section 3(3) of ERISA and that holds any "employer security" within

the meaning of Section 407(d)(1) of ERISA.

(E) None of the Acquired Corporations has any obligation to

create any additional Employee Plan, or to modify or change any existing

Employee Plan in any material respect (other than to comply with the Code,

ERISA, or other applicable Legal Requirements, in each case as previously

disclosed to Parent in writing, or as required by this Agreement).

22.

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(F) No Employee Plan provides (except at no cost to the

Acquired Corporations), and none of the Acquired Corporations has any obligation

under any Employee Plan to provide, retiree life insurance, retiree health

benefits or other retiree employee welfare benefits to any Person for any

reason, except as may be required by COBRA or other applicable Legal

Requirements. To the knowledge of the Company, other than obligations made that

involve no future costs to any of the Acquired Corporations, no Acquired

Corporation has ever represented, promised or contracted (whether in oral or

written form) to any former or current employee, consultant or director (either

individually or as a group) or any other Person that any such employee,

consultant or director or other Person would be provided with retiree life

insurance, retiree health benefits or other retiree employee welfare benefits,

except to the extent required by COBRA or other applicable Legal Requirements.

(G) Part 2.19(g) of the Company Disclosure Letter lists all

"qualified beneficiaries" to whom the Acquired Corporations as of the date of

this Agreement are obligated top provide "continuation coverage" under any of

the provisions of COBRA or other applicable Legal Requirements.

(H) Each of the Employ

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