FIRST AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER by and among NEAH POWER SYSTEMS, INC., NEAH POWER ACQUISITION CORP., SOLCOOL ONE, LLC, AND MARK WALSH

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NEAH POWER SYSTEMS, INC. | NEAH POWER ACQUISITION CORP | SolCool One, LLC

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Title: FIRST AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER by and among NEAH POWER SYSTEMS, INC., NEAH POWER ACQUISITION CORP., SOLCOOL ONE, LLC, AND MARK WALSH
Governing Law: Washington Date: 7/28/2009
Industry: Electronic Instr. and Controls Law Firm: Seyfarth Shaw Sector: Technology

Exhibit 10.1

FIRST AMENDED AND RESTATED

AGREEMENT AND PLAN OF MERGER

by and among

NEAH POWER SYSTEMS, INC.,

NEAH POWER ACQUISITION CORP.,

SOLCOOL ONE, LLC, AND

MARK WALSH

Dated as of July 27, 2009

TABLE OF CONTENTS

			Page

ARTICLE I	THE MERGER		1

Section 1.1		The Merger	1

Section 1.2		Effect of the Merger; Closing	1

Section 1.3		Articles of Incorporation	2

Section 1.4		Bylaws	2

Section 1.5		Board of Directors and Officers	2

Section 1.6		Conversion of Membership Interests	2

Section 1.7		Surrender of Membership Interests; Transfer Books.	2

Section 1.8		The Financing	3

ARTICLE II	REPRESENTATIONS AND WARRANTIES OF COMPANY AND MEMBERS		3

Section 2.1		Organization, Qualification and Corporation Power	3

Section 2.2		Membership Interests; Subsidiaries.	4

Section 2.3		Ownership of Membership Interests.	4

Section 2.4		Authority Relative to this Agreement	5

Section 2.5		No Conflict; Required Filings and Consents.	5

Section 2.6		Financial Statements; Debt.	6

Section 2.7		Absence of Certain Changes	6

Section 2.8		Tax Matters.	8

Section 2.9		Title to Properties	9

Section 2.10		Environmental Matters.	9

Section 2.11		Intellectual Property.	10

Section 2.12		Material Agreements.	11

Section 2.13		Insurance.	13

Section 2.14		Litigation.	14

Section 2.15		Employees.	14

Section 2.16		Employee Benefits.	15

Section 2.17		Permits	16

Section 2.18		Broker’s Fees	16

Section 2.19		Books and Records.	16

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TABLE OF CONTENTS

(continued)

			Page

Section 2.20		Banking Relationships and Investments	16

Section 2.21		Disclosure	17

Section 2.22		Investment Representations of Members	17

ARTICLE III	REPRESENTATIONS AND WARRANTIES OF BUYER AND BUYER SUB		18

Section 3.1		Organization, Qualification and Corporation Power	18

Section 3.2		Authority Relative to this Agreement	18

Section 3.3		No Conflict; Required Filings and Consents.	19

Section 3.4		Broker’s Fees	19

Section 3.5		Section 3.25 Disclosure	19

ARTICLE IV	CONDITIONS OF MERGER		24

Section 4.1		Conditions to Obligations of Buyer and Buyer Sub to Effect the Merger	24

Section 4.2		Conditions to Obligations of the Company and the Members to Effect the Merger	25

ARTICLE V	FURTHER ASSURANCES AND COVENANTS		25

Section 5.1		Non-Competition and Other Covenants.	26

Section 5.2		Escrow of Common Stock Shares	26

Section 5.3		Adjustment for Dilutive Issuances	26

Section 5.4		Spin-off of the Company	27

ARTICLE VI	SURVIVAL AND INDEMNIFICATION		27

Section 6.1		Survival of Representations	27

Section 6.2		Indemnification of Buyer and Buyer Sub	27

Section 6.3		Indemnification of Members and Company	28

Section 6.4		Limitations on Indemnity Obligations.	29

Section 6.5		Escrow	29

ARTICLE VII	COVENANTS OF THE COMPANY PRIOR TO CLOSING		29

Section 7.1		Access and Investigation	29

Section 7.2		Operation of the Business of Seller	30

Section 7.3		Negative Covenant	31

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TABLE OF CONTENTS

(continued)

			Page

Section 7.4		Notification	31

Section 7.5		No Negotiation	31

Section 7.6		Best Efforts	32

Section 7.7		Payment of Liabilities	32

ARTICLE VIII	GENERAL AND MISCELLANEOUS PROVISIONS		32

Section 8.1		Notices	32

Section 8.2		Expenses	33

Section 8.3		Amendment	33

Section 8.4		Entire Agreement	33

Section 8.5		Public Announcements	33

Section 8.6		No Third-Party Beneficiaries	33

Section 8.7		Assignment	33

Section 8.8		Severability	34

Section 8.9		Governing Law	34

Section 8.10		Consent to Jurisdiction	34

Section 8.11		Headings; Interpretation	34

Section 8.12		Construction	34

Section 8.13		Counterparts	34

Section 8.14		Confidentiality	35

Section 8.15		Termination	35

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FIRST AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER

THIS FIRST AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of July 27, 2009 (the “ Closing Date ” ) , is made by and among Neah Power Systems, Inc., a Nevada corporation (“ Buyer ”), Neah Power Acquisition Corp., a Nevada corporation, a direct and wholly owned subsidiary of Buyer (“ Buyer Sub ”), SolCool One, LLC, a California limited liability company (the “ Company ”), and Mark Walsh (“ Walsh ”), Manager and founder of the Company, and a resident of the State of California.

WHEREAS , the Board of Directors of Buyer, Buyer Sub and the Company have determined that it is in the best interests of their respective companies and their stockholders to amend and restate the Agreement and Plan of Merger dated November 26, 2008 among the parties hereto pursuant to which the Company will, subject to the terms and conditions set forth herein, merge with and into the Buyer Sub, with the Buyer Sub being the surviving entity (the “ Merger ”) ; and

WHEREAS , the parties desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe certain conditions to the Merger.

NOW, THEREFORE , in consideration of the premises and the mutual covenants, warranties and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

The Merger

Section 1.1 The Merger . Subject to the terms and conditions of this Agreement, in accordance with the General Corporation Law of the State of Nevada (the “ Nevada Law ”) and the Beverly-Killea Limited Liability Company Act of the State of California (the “ California Law ”), upon the execution of this Agreement and concurrent with the filing of the Articles of Merger (the “ Articles of Merger ”) with the Secretary of State of the State of Nevada and the Certificate of Merger (the “ Certificate of Merger ”) with the Secretary of State of the State of California (in accordance with the relevant provisions of Nevada Law and California Law, respectively), the Company shall merge with and into the Buyer Sub. The separate corporate existence of the Company will cease upon the filing of the Articles of Merger and the Certificate of Merger (the “ Effective Time ”), and the Buyer Sub will continue as the surviving corporation (hereinafter sometimes referred to as the “ Surviving Corporation ”) in the Merger. The Buyer Sub, as the surviving corporation after the Merger, will be governed by the laws of the State of Nevada.

For purposes of this Agreement, the actions taken in connection with the execution of this Agreement and the filing of the Articles of Merger and the Certificate of Merger shall be known as the “ Closing .”

Section 1.2 Effect of the Merger; Closing . At and after the Effective Time, the Merger shall have the effects set forth in this Agreement and the applicable provisions of California Law and Nevada Law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all the property, rights, privileges, powers and franchises of the Company and Buyer Sub will vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Buyer Sub (including any personal guarantees of the Members executed in the ordinary course of business prior to Closing and identified on Schedule 1.2) will become the debts, liabilities and duties of the Surviving Corporation.

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Section 1.3 Articles of Incorporation . At the Effective Time, the Articles of Incorporation of the Buyer Sub, as in effect immediately prior to the Effective Time and set forth on Exhibit A , shall be the Articles of Incorporation of the Surviving Corporation, provided , however , that Article I of the Articles of Incorporation of the Surviving Corporation will be amended to reflect that the name of the Surviving Corporation will be “SolCool, One, Inc.”

Section 1.4 Bylaws . At the Effective Time, the bylaws of Buyer Sub, as in effect immediately prior to the Effective Time and set forth on Exhibit B , shall be the Bylaws of the Surviving Corporation, provided , however , that the bylaws of the Surviving Corporation will be amended to reflect that the name of the Surviving Corporation will be “SolCool, One, Inc.”

Section 1.5 Board of Directors and Officers . The directors and corporate officers of Buyer Sub immediately prior to the Effective Time, shall be the directors and corporate officers of the Surviving Corporation.

Section 1.6 Conversion of Membership Interests . At the Closing, by virtue of the Merger and without any action on the part of the holder of any membership interests of the Company, the Buyer shall issue to the Company the aggregate sum of $500,000 in the form of common stock, par value $.001 per share (“ Common Stock ”), or 4,166,166 shares of Common Stock, at a price of $.12 per share (the “ Common Stock Consideration ” or the “ Merger Consideration ”). The Common Stock shall vest as follows: 50% upon execution and the remaining 50% 24 months from date of this Agreement; provided , however , that such vesting shall be subject to Mark Walsh remaining an employee of the Company and using his best efforts to achieve the Company’s business plan.

Section 1.7 Surrender of Membership Interests; Transfer Books .

(a) At the Closing, the Members will surrender Members’ Certificate(s) to Buyer. Until so surrendered, such Certificates will represent solely the right to receive the Merger Consideration relating thereto.

(b) At the Effective Time, the transfer books of the Company will be closed and there will not be any further registration of transfers of any membership interests or options thereafter on the records of the Company. If, at or after the Effective Time, Certificates are presented to the Surviving Corporation for transfer, they will be canceled and exchanged for Merger Consideration as provided in Section 1.6.

For purposes of this Agreement, the term “ Person ” shall mean any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Entity or other entity.

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Section 1.8 The Financing . The Buyer shall provide to the Surviving Corporation a minimum of $100,000 to fund only operations and shipments. This funding will be made within fourteen (14) days from the Closing Date.

ARTICLE II I

Representations and Warranties of Company and Members

Except as set forth in the Company Disclosure Letter which is attached to and incorporated into this Agreement for all purposes (the “ Company Disclosure Letter ”), the Company and Walsh, jointly and severally, represent and warrant to the Buyer as of the Closing Date as follows:

Section 2.1 Organization, Qualification and Corporation Power . The Company (a) is a limited liability company duly formed, validly existing and in good standing under the Laws of California and has the requisite power and authority to own, operate or lease its properties and to carry on its business as is now being conducted and proposed to be conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined below) on the Company, and (b) is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary, other than in such jurisdictions where the failure so to qualify or to be in good standing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company has furnished to Buyer true, correct and complete copies of its Articles of Organization, Operating Agreement and bylaws.

For purposes of this Agreement, the term “ Material Adverse Effect ” when used in connection with an entity means any change, event, circumstance or effect whether or not such change, event, circumstance or effect is caused by or arises in connection with a breach of a representation, warranty, covenant or agreement of such entity in this Agreement that is or is reasonably likely to be materially adverse to the business, assets (including intangible assets), capitalization, financial condition, operations or results of operations, employees or prospects of such entity taken as a whole with its subsidiaries, except to the extent that any such change, event, circumstance or effect is caused by results from (i) changes in general economic conditions, (ii) changes affecting the industry generally in which such entity operates (provided that such changes do not affect such entity in a substantially disproportionate manner) or (iii) changes in the trading prices for such entity’s capital stock.

For purposes of this agreement, the term “ Law ” shall mean any applicable foreign, federal, state or local law, statute, code, ordinance, regulation, rule, principle of common law or other legally enforceable obligation imposed by a court or other Governmental Entity (as defined in Section 2.5 below) in the applicable jurisdiction.

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Section 2.2 Membership Interests; Subsidiaries .

(a) The membership interest ownership of the Company (the “ Membership Interests ”) is set forth on Schedule 2.2 (collectively, the “ Members ”). The Members hold good and valid title to such Membership Interests, free and clear of all liens, agreements, voting trusts, proxies and other arrangements or restrictions of any kind whatsoever (other than normal restrictions on transfer under applicable federal and state securities laws). All issued and outstanding Membership Interests have been duly authorized and were validly issued, are fully paid and nonassessable, are not subject to any right of rescission, are not subject to preemptive rights by statute, the Articles of Organization, Operating Agreement or bylaws of the Company, or any agreement or document to which the Company is a party or by which it is bound and have been offered, issued, sold and delivered by the Company in compliance with all registration or qualification requirements (or applicable exemptions therefrom) of applicable federal and state securities laws. The Company is not under any obligation to register under the Securities Act of 1933, as amended (the “ Securities Act ”) or the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), any of its presently outstanding Membership Interests or any securities that may be subsequently issued. There is no liability for dividends or distribution of profits accrued but unpaid with respect to the Company’s outstanding Membership Interests.

(b) There are no existing (i) options, warrants, calls, preemptive rights (except for the claim by Michael Kinsey for 10% of any payments made by GreenCore Air, Inc. .in the cases styled SolCool One, LLC v. GreenCore Air, Inc. , No. CIVRS 802866 (Cal. Super. Ct., San Bernardino County) and GreenCore Air, Inc. , Chapter 7, Case No. 08-1262 (Bankr. D. Del.), subscriptions or other rights, convertible securities, agreements or commitments of any character obligating the Company to issue, transfer or sell any membership interests or other equity interest in, the Company or securities convertible into or exchangeable for such membership interests or equity interests, (ii) contractual obligations of the Company to repurchase, redeem or otherwise acquire any membership interests of the Company or (iii) voting trusts or similar agreements to which the Company is a party with respect to the voting of the membership interests of the Company.

(c) The Company does not have any direct or indirect Subsidiaries or any interest, direct or indirect, in any corporation, partnership, joint venture or other business entity.

For purposes of this Agreement, the term “ Subsidiary ” of a Person means any corporation or other legal entity of which such Person (either alone or through or together with any other Subsidiary) owns, directly or indirectly, more than 50% of the membership interests or other equity interests the holders of which are generally entitled to vote for the election of the board of managers or other governing body of such corporation or other legal entity.

Section 2.3 Ownership of Membership Interests .

(a) The Members are the record and beneficial owner of, and have good and valid title to, all of the Membership Interests, which Membership Interests (i) are free and clear of all liens, mortgages, encumbrances, pledges, claims, options, charges, easements, restrictions, covenants, conditions of record, encroachments, security interests and claims of every kind and character (each, a “ Lien ”) and (ii) are free of any other restriction (including any restriction on the right to vote, sell or otherwise dispose of such membership interests or other ownership interests). Except for those Members’ Certificates surrendered in accordance with 0 there are no other Members’ Certificates issued or outstanding.

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(b) There are no outstanding existing (i) options, warrants, calls, preemptive rights, subscriptions or other rights, convertible securities, agreements or commitments of any character to which such Members are a party obligating the Members to issue, transfer or sell any Membership Interests or other equity interest in the Company or securities convertible into or exchangeable for such membership interests or equity interests or (ii) voting trusts, members’ agreements or similar agreements to which such Members are a party with respect to the voting of the Membership Interests owned by such Members.

Section 2.4 Authority Relative to this Agreement . The Company has the necessary power and authority to enter into this Agreement and, subject to the filing of the Articles of Merger and the Certificate of Merger, to carry out its obligations hereunder. The Members have the necessary competency, power and authority to enter into this Agreement and carry out the obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and the Members and, subject to the filing of the Articles of Merger and the Certificate of Merger, no other corporate proceeding is necessary for the execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder and the consummation by the Company of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and the Members and, assuming the due authorization, execution and delivery of this Agreement by Buyer and Buyer Sub, constitutes a legal, valid and binding obligation of the Company and the Members, enforceable against them in accordance with its terms, except that (a) the enforceability hereof may be subject to applicable bankruptcy, insolvency or other similar Laws, now or hereinafter in effect, affecting creditors’ rights generally, and (b) the general principles of equity (regardless of whether enforceability is considered at a proceeding at Law or in equity).

Section 2.5 No Conflict; Required Filings and Consents .

(a) The execution and delivery of this Agreement by the Company and the Members does not, and the consummation by the Company and the Members of the transactions contemplated hereby will not, (i) conflict with or violate any Law, court order, judgment or decree applicable to the Company, its Subsidiaries or the Members or by which any of their property is bound, (ii) violate or conflict with the Articles of Organization, Operating Agreement or Bylaws (or comparable organizational documents) of the Company or its Subsidiaries, or (iii) result in any breach of or constitute a default (or an event which with notice or lapse of time of both would become a default) under, or give to others any rights of termination or cancellation of, or result in the creation of a Lien on any of the properties or assets of the Company or its Subsidiaries pursuant to, any contract, instrument, Permit or license to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or any of their property is bound, except in the case of clauses (i) and (iii) for conflicts, violations, breaches or defaults which, individually or in the aggregate, would not have or result in a Material Adverse Effect on the Company.

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(b) Except for the filing of the Articles of Merger and the Certificate of Merger and applicable requirements, if any, under “takeover” or “blue sky” Laws of various states, neither the Company nor any of its Subsidiaries is required to submit any notice, report or other filing with any federal, state or local or foreign government, political subdivision thereof, any court, administrative, regulatory or other governmental agency, commission or authority or any non-governmental United States or foreign self-regulatory agency, commission or authority or any arbitral tribunal (each, a “ Governmental Entity ”) in connection with the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby the failure of which to submit would, individually or in the aggregate, have or result in a Material Adverse Effect on the Company. No waiver, consent, approval or authorization of any Governmental Entity or any third party is required to be obtained or made by the Company or its Subsidiaries in connection with its execution, delivery or performance of this Agreement the failure of which to obtain or make, individually or in the aggregate, would have or result in a Material Adverse Effect on the Company.

Section 2.6 Financial Statements; Debt .

(a) Attached as Section 2.6(a) of the Company Disclosure Letter are (i) the Company’s unaudited balance sheet, and statement of cash flows and income statement for the year ending December 31, 2008 and (ii) the Company’s unaudited balance sheet (the “ Company Balance Sheet ”), statement of cash flows and income statement each dated as of June 30, 2009 (the “ Balance Sheet Date ”) (all such financial statements being collectively referred to herein as the “ Company Financial Statements ”). The Company Financial Statements (a) are in accordance with the books and records of the Company and (b) fairly present the financial condition of the Company at the date therein indicated and the results of operation for the period therein specified.

(b) The Company has no material debt, liability or obligation of any nature, whether accrued, absolute, contingent or otherwise, and whether due or to become due, that is not reflected or reserved against in the Company Financial Statements in the ordinary course of its business, consistent with past practice and that are material in amount either individually or collectively.

Section 2.7 Absence of Certain Changes . Since the Balance Sheet Date, there has not been with respect to the Company or any Subsidiary:

(a) any change in the financial condition, properties, assets, liabilities, business or operations thereof which change by itself or in conjunction with all other such changes, whether or not arising in the ordinary course of business, has had or will have a material adverse effect thereon;

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(b) any material loss of customers. Set forth on Section 2.7(b) of the Company Disclosure Letter is a true, correct and complete list of all customers lost in the preceding twelve (12) months, including the billing address and phone number for the respective customer;

(d) any contingent liability incurred thereby as guarantor or otherwise with respect to the obligations of others;

(e) any mortgage, encumbrance or lien placed on any of the properties thereof;

(f) any material obligation or liability incurred thereby other than obligations and liabilities incurred in the ordinary course of business;

(g) any purchase or sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the properties or assets thereof other than in the ordinary course of business;

(h) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the properties, assets or business thereof;

(i) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the membership interests thereof, any split, combination or recapitalization of the membership interests thereof or any direct or indirect redemption, purchase or other acquisition of the membership interests thereof;

(j) any labor dispute or claim of unfair labor practices, any change in the compensation payable or to become payable to any of its officers, employees or agents, or any bonus payment or arrangement made to or with any of such officers, employees or agents;

(k) any change with respect to the management, supervisory or other key personnel thereof;

(l) any payment or discharge of a material lien or liability thereof which lien was not either shown on the Company Balance Sheet or incurred in the ordinary course of business thereafter; or

(m) any obligation or liability incurred thereby to any of its officers, managers or members or any loans or advances made thereby to any of its officers, managers or members except normal compensation and expense allowances payable to officers.

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Section 2.8 Tax Matters .

(a) The Company and its Subsidiaries have timely filed all Tax Returns that they were required to file, and all such Tax Returns were correct and complete in all material respects. All Tax liabilities of the Company and its Subsidiaries for all taxable periods or portions thereof ending on or prior to the Effective Time have been, or will be prior to the Effective Time, timely paid or are adequately reserved for in the Company Financial Statements, other than such Tax liabilities as are being contested in good faith by the Company or its Subsidiaries. There are no ongoing federal, state, local or foreign audits or examination of any Tax Return of the Company or its Subsidiaries. Neither the Company nor its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time, nor has any such waiver or extension been required with respect to a Tax assessment or deficiency. No claim has ever been made by an authority in a jurisdiction where the Company and its Subsidiaries do not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no Liens on any of the assets of the Company or its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax.

(b) The Company and its Subsidiaries have withheld or collected and paid or deposited in accordance with law all Taxes required to have been withheld or collected and paid or deposited by the Company or its Subsidiaries in connection with amounts paid or owing to any employee, independent contractor, creditor, members, or other third party.

(c) There is no dispute or claim concerning any Tax liability of the Company or its Subsidiaries either (i) claimed or raised by any authority in writing or (ii) as to which the Company has Knowledge.

(d) For purposes of this Agreement:

(i) “ Knowledge ” or words of similar import means all information that is actually known, following reasonable investigation, and in the case of the Company by the individuals set forth on Section 2.15 of the Company Disclosure Letter.

(ii) “ Taxes ” means all taxes, charges, fees, levies or other similar assessments or liabilities, including income, gross receipts, ad valorem, premium, value-added, excise, real property, personal property, sales, use, transfer, withholding, employment, payroll and franchise taxes imposed by a Governmental Entity, and any interest, fines, penalties, assessments or additions to tax resulting from, attributable to or incurred in connection with any tax or any contest or dispute thereof, and any amounts of Taxes of a third Person that a Person or any Subsidiary of such Person is liable to pay by law or otherwise; and

(iii) “ Tax Returns ” means all reports, returns, declarations, statements or other information supplied or required to be supplied to a taxing authority in connection with Taxes including any schedules, attachments or amendments thereto.

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Section 2.9 Title to Properties . The Company has good and marketable title to all of its assets as shown on the Company Balance Sheet, free and clear of all liens, charges, restrictions or encumbrances (other than for Taxes not yet due and payable). All machinery and equipment included in such properties is in good condition and repair, normal wear and tear excepted, and all leases of real or personal property to which Company or any its Subsidiaries is a party are fully effective and afford Company or its Subsidiaries peaceful and undisturbed possession of the subject matter of the lease. Neither Company nor any of its Subsidiaries is in violation of any zoning, building, safety or environmental ordinance, regulation or requirement or other law or regulation applicable to the operation of owned or leased properties (the violation of which would have a material adverse effect on its business), or has received any notice of violation with which it has not complied.

Section 2.10 Environmental Matters .

(a) During the period that the Company has leased or owned its properties or owned or operated any facilities, there have been no disposals, releases or threatened releases of Hazardous Materials (as defined below) on, from or under such properties or facilities. The Company has no Knowledge of any presence, disposals, releases or threatened releases of Hazardous Materials on, from or under any of such properties or facilities, which may have occurred prior to the Company having taken possession of any of such properties or facilities. For the purposes of this Agreement, the terms “ disposal ,” “ release ,” and “ threatened release ” shall have the definitions assigned thereto by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended (“ CERCLA ”). For the purposes of this Agreement “ Hazardous Materials ” shall mean any hazardous or toxic substance, material or waste which is or becomes prior to the Closing regulated under, or defined as a “hazardous substance,” “pollutant,” “contaminant,” “toxic chemical,” “hazardous materials,” “toxic substance” or “hazardous chemical” under (1) CERCLA; (2) any similar federal, state or local law; or (3) regulations promulgated under any of the above laws or statutes.

(b) None of the properties or facilities of the Company is in violation of any federal, state or local law, ordinance, regulation or order relating to industrial hygiene or to the environmental conditions on, under or about such properties or facilities, including, but not limited to, soil and ground water condition. During the time that the Company has owned or leased its properties and facilities, to the Company’s Knowledge, no third party, has used, generated, manufactured or stored on, under or about such properties or facilities or transported to or from such properties or facilities any Hazardous Materials.

(c) During the time that the Company has owned or leased its properties and facilities, there has been no litigation brought or threatened against the Company by, or any settlement reached by the Company with, any party or parties alleging the presence, disposal, release or threatened release of any Hazardous Materials on, from or under any of such properties or facilities.

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Section 2.11 Intellectual Property .

(a) The term “ Intellectual Property ” means any (i) patents, (ii) trademarks, service marks, trade names, brand names, trade dress, slogans, logos and internet domain names, (iii) inventions, discoveries, ideas, processes, formulae, designs, models, industrial designs, know-how, proprietary information, trade secrets, and confidential information (including customer lists, training materials and related matters, research and marketing and sales plans), whether or not patented or patentable, (iv) copyrights, writings and other copyrightable works and works in progress, databases and software, (v) all other intellectual property rights and foreign equivalent or counterpart rights and forms of protection of a similar or analogous nature or having similar effect in any jurisdiction throughout the world, (vi) all registrations and applications for registration of any of the foregoing, (vii) all common law trademarks and service marks used by the Company or its Subsidiaries and (viii) any renewals, extensions, continuations, divisionals, reexaminations or reissues or equivalent or counterpart of any of the foregoing in any jurisdiction throughout the world. The term “ Company IP ” means any Intellectual Property used or held for use by the Company or its Subsidiaries, in the conduct of their businesses as currently conducted and currently proposed to be conducted.

(b) Section 2.11(b) of the Company Disclosure Letter sets forth a true, correct and complete list (including, the owner, title, registration or application number and country of registration or application, as applicable) of all of the following Company IP: (i) registered trademarks, (ii) applications for trademark registration, (iii) domain names, (iv) patents, (v) applications for patents, (vi) registered copyrights (vii) applications for copyright registration and (viii) licenses of all Intellectual Property (other than off-the-shelf business productivity software that is the subject of a shrink wrap or click wrap software license agreement (“ Desktop Software ”)) to or from the Company. The Company has delivered or made available to Buyer prior to the execution of this Agreement true, complete and correct copies of all licenses of Company IP both to and from the Company and its Subsidiaries, except Desktop Software.

(c) The Company IP set forth on Section 2.11(b) of the Company Disclosure Letter constitutes all of the Intellectual Property used by and necessary for the Company and its Subsidiaries to operate their respective business as currently conducted and currently proposed to be conducted. The Company or its Subsidiaries owns all legal and beneficial right, title and interests in the Company IP, and the Company or its Subsidiaries has the valid, sole and exclusive right to use, assign, transfer and license all such Company IP for the life thereof for any purpose, free from (i) any Liens, and (ii) any requirement of any past, present or future royalty payments, license fees, charges or other payments, or conditions or restrictions whatsoever.

(d) All patent, trademark, service mark, copyright, patent and domain name registrations or applications set forth on Section 2.11(b) of the Company Disclosure Letter are in full force and effect and have not been abandoned, dedicated, disclaimed or allowed to lapse for non-payment of fees or taxes or for any other reason.

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(e) None of the Company IP owned by the Company or its Subsidiaries has been declared or adjudicated invalid, null or void, unpatentable or unregistrable in any judicial or administrative proceeding. To the Knowledge of the Company, none of the Company IP used (but not owned) by the Company or its Subsidiaries has been declared or adjudicated invalid, null or void, unpatentable or unregistrable in any judicial or administrative proceeding.

(f) Neither the Company nor its Subsidiaries has received any written notices of, or has Knowledge of, any infringement or misappropriation by or of, or conflict with, any third party with respect to the Company IP or Intellectual Property owned by any third party. Neither the Company nor its Subsidiaries has infringed, misappropriated or otherwise violated or conflicted with any Intellectual Property of any third party. The operation of the Company and its Subsidiaries does not, as currently conducted and currently proposed to be conducted, infringe, misappropriate or otherwise violate or conflict with the Intellectual Property of any third party.

(g) The transactions contemplated by this Agreement will not affect the right, title and interest of the Company or its Subsidiaries in and to the Company IP, and each of the Company and its Subsidiaries has taken all necessary action to maintain and protect the Company IP set forth on Section 2.11(b) of the Company Disclosure Letter and, until the Effective Time, will continue to maintain and protect such Company IP so as to not materially adversely affect the validity or enforceability of such Company IP.

(h) To the Knowledge of the Company, no officer, employee or manager or the Company or its Subsidiaries is obligated under any contract (including any license, covenant or commitment of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would conflict or interfere with the performance of such person’s duties as an officer, employee or manager of the Company or its Subsidiaries, the use of such person’s best efforts to promote the interests of the Company and its Subsidiaries or the Company’s or its Subsidiary’s business as conducted or as currently proposed to be conducted by the Company and its Subsidiaries. No prior employer of any current or former employee of the Company or its Subsidiaries has any right, title or interest in the Company IP and to the Knowledge of the Company, no person or entity has any right, title or interest in any Company IP. It is not and will not be with respect to the business as currently proposed to be conducted necessary for the Company or its Subsidiaries to use any inventions of any of its employees made prior to their employment by the Company or its Subsidiaries.

Section 2.12 Material Agreements .

(a) Section 2.12 of the Company Disclosure Letter sets forth a true, correct and complete list of the following agreements (whether written or oral and including all amendments thereto) to which the Company or its Subsidiaries is a party or a beneficiary or by which the Company or its Subsidiaries or any of their respective assets are bound (collectively, the “ Material Agreements ”):

(i) any real estate leases;.

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(ii) any other agreement for the provision of services by the Company or its Subsidiaries that have accounted for revenues of more than $5,000.00 per annum during any month since the Balance Sheet Date;

(iii) any agreement creating, evidencing, securing, assuming, guaranteeing or otherwise relating to any debt for which the Company or its Subsidiaries is liable or under which it has imposed (or may impose) a Lien on any of the assets, tangible or intangible, of the Company or its Subsidiaries;

(iv) any capital or operating leases or conditional sales agreements relating to personal property of the Company or its Subsidiaries;

(v) any supply or manufacturing agreements or arrangements pursuant to which the Company or its Subsidiaries is entitled or obligated to acquire any assets from a third party with a fair market value in excess of $5,000;

(vi) any insurance policies;

(vii) any employment, consulting, noncompetition, or separation agreements or arrangements;

(viii) any agreement with or for the benefit of any Members, officer, manager or employee of the Company, or any Affiliate of the Company, or any Person controlled by such individual or family member thereof;

(ix) any license to which the Company or its Subsidiaries is a party;

(x) any agreement in which the Company or its Subsidiaries has granted rights to license, sublicense or copy, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;

(xi) any written arrangement establishing a partnership or joint venture;

(xii) a list of all parties to any written arrangement concerning confidentiality, non-disclosure or noncompetition;

(xiii) any written arrangement under which the consequences of a default or termination could have a Material Adverse Effect on the Company; and

(xiv) any other agreement or arrangement pursuant to which the Company or its Subsidiaries could be required to make or entitled to receive aggregate payments in excess of $5,000.00 or entered into outside of the ordinary course of business.

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For purposes of this Agreement, “ Affiliate ” means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, any Person.

(b) The Company has delivered to or made available to Buyer a true, correct and complete copy of each Material Agreement and a written summary of each oral Material Agreement. With respect to each Material Agreement:

(i) each Material Agreement is legal, valid, binding and enforceable and in full force and effect with respect to the Company or its Subsidiaries and, to the Knowledge of the Company, the written arrangement is legal, valid, binding and is enforceable and in full force and effect with respect to each other party thereto (in each case except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditor’s rights generally, and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought);

(ii) each Material Agreement will continue to be legal, valid, binding and enforceable and in full force and effect against the Company, and to the Knowledge of the Company against each other party thereto, immediately following the Closing in accordance with the terms thereof (in each case except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditor’s rights generally, and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought) as in effect prior to the Closing; and

(iii) neither the Company nor its Subsidiaries is in breach or default, and, to the Knowledge of the Company, no other party thereto is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration, under the written arrangement.

Section 2.13 Insurance .

(a) Section 2.13 of the Company Disclosure Letter sets forth a true, correct and complete list of each insurance policy (including fire, theft, casualty, general liability, director and officer, workers compensation, business interruption, environmental, product liability and automobile insurance policies and bond and surety arrangements) to which the Company is a party, a named insured, or otherwise the beneficiary of coverage at any time within the past year. Section 2.13 of the Company Disclosure Letter sets forth a true, correct and complete list of each person or entity required to be listed as an additional insured under each such policy. Each such policy is in full force and effect and by its terms and with the payment of the requisite premiums thereon will continue to be in full force and effect following the Closing.

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(b) The Company is not in breach or default, and does not anticipate being

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