PREFERRED STOCK PURCHASE AGREEMENT BETWEEN HOMESTORE, INC. AND ELEVATION PARTNERS, L.P.

Exhibit 10.1

PREFERRED STOCK PURCHASE AGREEMENT

BETWEEN

HOMESTORE, INC.

AND

ELEVATION PARTNERS, L.P.

Dated as of November 6, 2005

Table of Contents

Index of Exhibits

Table of Defined Terms

PREFERRED STOCK PURCHASE AGREEMENT

          THIS PREFERRED STOCK PURCHASE AGREEMENT (this “ Agreement ”), dated as of November 6, 2005, by and among Homestore, Inc., a Delaware corporation (the “ Company ”), Elevation Partners, L.P., a Delaware partnership (“ Elevation ”), and such Affiliates (as defined below) as Elevation shall designate in accordance with Section 8.4 hereof (together with Elevation, the “ Purchasers ”).

RECITALS

          WHEREAS, the Company has authorized the sale and issuance of shares of a series of its preferred stock to be designated as Series B Convertible Participating Preferred Stock (the “ Series B Preferred Stock ”), the terms of which are set forth in the form of Certificate of Designation attached hereto as Exhibit A (the “ Certificate of Designation ”), at a purchase price of $1,000 per share;

          WHEREAS, the Purchasers desire to purchase the Purchased Shares (as defined below) on the terms and conditions set forth herein; and

          WHEREAS, the Company desires to issue and sell the Purchased Shares to the Purchasers on the terms and conditions set forth herein.

          NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the parties hereto agree as follows:

ARTICLE I

AGREEMENT TO SELL AND PURCHASE

          SECTION 1.1.   Authorization of Shares . The Company has authorized (i) the initial sale and issuance to the Purchasers of 100,000 shares (the “ Purchased Shares ”) of Series B Preferred Stock, (ii) the issuance of up to 19,034 shares of Series B Preferred Stock (the “ Preferred Dividend Shares ,” and together with the Purchased Shares, the “ Subject Shares ”) for the payment of in-kind dividends as provided for in the Certificate of Designation and (iii) the issuance of up to 28,341,424 shares of its Common Stock (as defined below) (the “ Conversion Shares ”) that may be issued upon the conversion of the Subject Shares as provided for in the Certificate of Designation.

          SECTION 1.2.   Sale and Purchase . Subject to the terms and conditions hereof, the Company hereby agrees to issue and sell to the Purchasers, and the Purchasers, on a joint and several basis, agree to purchase from the

Company, the Purchased Shares at a price of $1,000 per share for an aggregate purchase price of $100,000,000 (the “ Aggregate Purchase Price ”).

ARTICLE II

CLOSING, DELIVERY AND PAYMENT

          SECTION 2.1.   Closing . (a) The closing of the sale and purchase of the Purchased Shares under this Agreement (the “ Closing ”) shall take place on the business day immediately following satisfaction or waiver of the conditions set forth in Article VI at the offices of Latham & Watkins LLP, 633 W. Fifth Street, Los Angeles, California 90071, or at such other time or place as the Company and the Purchasers may mutually agree (such date, the “ Closing Date ”).

          (b)   Not less than two business days prior to the Closing, the Purchasers shall advise the Company in writing (the “ Allocation Notice ”) of the names in which to register the Purchased Shares to be purchased at the Closing and the amount of Purchased Shares to be purchased by each Purchaser (which principal amount for each Purchaser, when added together with all other Purchasers, shall equal the Aggregate Purchase Price).

          SECTION 2.2.   Certificate of Designation . Prior to the Closing, the Company shall file with the Secretary of State of the State of Delaware the Certificate of Designation to be effective in accordance with applicable law at or prior to the Closing.

          SECTION 2.3.   Delivery . At the Closing, subject to the terms and conditions hereof, the Company will deliver to the Purchasers stock certificates representing the Purchased Shares to be purchased at such Closing in the names and amounts set forth in the Allocation Notice, free and clear of any Encumbrances (as defined below), excluding Encumbrances imposed by the Stockholders Agreement, and the Purchasers will make payment to the Company of the Aggregate Purchase Price by wire transfer of immediately available funds to an account that the Company shall designate at least two business days prior to the Closing Date.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

          Except as set forth in the section of the disclosure schedules provided to the Purchasers (each, a “ Schedule ”) that corresponds to the section number set forth below and except as expressly contemplated by this Agreement, including the

exhibits hereto, the Company hereby represents and warrants to the Purchasers as of the date hereof and as of the Closing Date, except for such representations and warranties which address matters only as of a particular date, as follows:

          SECTION 3.1.   Organization, Good Standing and Qualification . Each of the Company and its Subsidiaries (as defined below) is a corporation or other entity duly organized, validly existing and in good standing under the laws of the jurisdiction of incorporation or formation, as the case may be, and has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as currently conducted. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Stockholders Agreement in the form of Exhibit B attached hereto (the “ Stockholders Agreement ”), to execute and file the Certificate of Designation, to issue the Subject Shares and the Conversion Shares, to consummate the other transactions contemplated hereby and thereby and by the Certificate of Designation and to perform its obligations hereunder and thereunder and under the Certificate of Designation. Each of the Company and its Subsidiaries is duly qualified and is authorized to do business and is in good standing as a foreign corporation or other entity in all jurisdictions in which the character or location of its activities and of the properties owned or operated by it makes such qualification necessary, except for such failures as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. The Company has provided to the Purchasers a complete and correct copy of the Restated Certificate (as defined below) and the Bylaws (as defined below) as currently in effect.

          SECTION 3.2.   Subsidiaries . (a) As used herein, “ Subsidiary ” means, with respect to a party, any corporation, partnership, trust, limited liability company or other entity in which such party (or another Subsidiary of such party) holds stock or other ownership interests representing (A) more that 50% of the voting power of all outstanding stock or ownership interests of such entity, (B) the right to receive more than 50% of the net assets of such entity available for distribution to the holders of outstanding stock or ownership interests upon a liquidation or dissolution of such entity or (C) a general or managing partnership interest or similar position in such entity. Exhibit 21.01 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2004 accurately sets forth each significant subsidiary (as defined in Rule 1-02 of Regulation S-X under the Exchange Act) (a “ Significant Subsidiary ”) of the Company, including its name, place of incorporation or formation, and if not wholly-owned directly or indirectly by the Company, the record ownership as of the date of this Agreement of all capital stock or other equity interests issued thereby. All shares of capital stock or other equity interests of any Subsidiary directly or indirectly owned by the Company have been duly authorized and validly issued, are fully paid and nonassessable and are directly or indirectly owned by the Company free and clear of any Encumbrance and have not been issued in violation of, nor subject to, any preemptive, subscription or other similar rights. All of the Subsidiaries of the Company are consolidated for accounting purposes. “ Encumbrance ” means any security interest, pledge, mortgage, lien (statutory or other), charge, option to purchase, lease or otherwise acquire any interest or any claim, restriction, covenant, title defect, hypothecation,

assignment, deposit arrangement or other encumbrance of any kind or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement), excluding Encumbrances imposed by securities laws.

          (b)   Except for the Subsidiaries, the Company does not own any capital stock, membership interests, security or other interest in any other Person (as defined in Section 8.1), which represents more than 5% of the issued and outstanding equity or ownership interests of such Person, and neither the Company nor any of its Subsidiaries has any written or oral understanding or agreement to make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.

          SECTION 3.3.   Capitalization; Voting Rights . (a) As of November 3, 2005, the capitalization of the Company consisted of the following:

     (i)   500,000,000 shares of Common Stock, par value $0.001 per share (the “ Common Stock ”), of which (A) only 148,259,999 shares were issued and outstanding and (B) only 42,997,554 shares were reserved for future issuance, 40,317,966 of which are issuable to employees pursuant to outstanding stock options under the Stock Option Plans (as defined below), one (1) of which is issuable pursuant to the conversion of the Series A Preferred Stock (as defined herein), and 280,000 of which are issuable upon exercise of warrants to purchase Common Stock.

     (ii)   10,000,000 shares of preferred stock, par value $0.001 per share (the “ Preferred Stock ”), of which (A) only one (1) share was designated as Series A Preferred Stock (the “ Series A Preferred Stock ”), (B) only one (1) share of Series A Preferred Stock was issued and outstanding and (C) no shares were reserved for future issuance;

          Since November 3, 2005, (i) (A) no shares of Common Stock have been issued except for issuances under any Stock Option Plan or upon exercise of the warrants to purchase in the aggregate 280,000 shares of Common Stock and (B) no options to purchase Common Stock have been granted other than pursuant to Stock Option Plans and (ii) (A) no shares of Preferred Stock have been issued (other than the Purchased Shares contemplated hereby) and (B) no options to purchase Preferred Stock have been granted.

          (b)   All issued and outstanding shares of the Company’s capital stock (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable, and (iii) were not issued in violation of, or subject to, any preemptive, subscription or other similar rights of any other Person.

          (c)   The Company has delivered to the Purchasers a copy of (i) the Company’s stock option plans as set forth on Schedule 3.3(c)(i) and (ii) each option agreement pursuant to

which stock options have been granted outside of the plans described in the clause (i) (together with the stock option plans described in clause (i) the “ Stock Option Plans ”) that, in each case, were not filed with the SEC Reports. Other than the 40,317,966 shares of Common Stock which are reserved for future issuance to employees pursuant to outstanding stock options under the Stock Options Plans, the stock options previously issued pursuant to the Stock Option Plans, one (1) share of Series A Preferred Stock and except as may be granted pursuant to this Agreement, and warrants to purchase 280,000 shares of Common Stock, there are no outstanding subscriptions, options, calls, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements, or agreements of any kind for the purchase or acquisition from the Company or any of its Subsidiaries of any of their securities, nor has the Company taken or agreed to take any action to issue or grant the same. Except as set forth in this Section 3.3 or set forth in the Restated Certificate: (i) there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any securities of the Company or any voting or equity securities or interests of any of its Subsidiaries, and (ii) there is no outstanding voting trust, proxy, stockholder or other agreements or understandings to which the Company or any of its Subsidiaries or, to the knowledge of the Company, any of its or their stockholders is a party or is bound with respect to the voting, transfer or registration rights of the capital stock or other voting securities of the Company or any of its Subsidiaries. The consummation of the transactions contemplated by this Agreement, the terms of the Subject Shares and the Stockholders Agreement will not trigger the anti-dilution provisions or other price adjustment mechanisms of any outstanding subscriptions, options, calls, warrants, commitments, contracts, preemptive rights, rights of first refusal, demands, conversion rights or other agreements or arrangements under which the Company or any of its Subsidiaries is or may be obligated to issue or acquire shares of any of its capital stock that have not been properly waived.

          (d)   (i) Upon the filing of the Certificate of Designation, the Purchased Shares will be duly authorized and (ii) Preferred Dividend Shares and the Conversion Shares into which the Subject Shares may be convertible have been duly authorized and validly reserved for issuance. When the Subject Shares and Conversion Shares are issued and paid for in accordance with the provisions of this Agreement and the Certificate of Designation, all such shares (A) will be duly authorized, validly issued, fully paid and nonassessable, and (B) will be delivered to the Purchasers (or their permitted transferees) free and clear of all Encumbrances, excluding Encumbrances imposed by the Stockholders Agreement.

          SECTION 3.4.   Authorization; Binding Obligations; No Conflicts .

          (a)   All corporate action on the part of the Company, its officers, directors and stockholders necessary for the execution and delivery of this Agreement and the Stockholders Agreement, the execution and filing of the Certificate of Designation, the issuance of the Purchased Shares, the reservation for issuance of the Preferred Dividend Shares and the Conversion Shares, the consummation of the other transactions contemplated hereby and thereby and by the Certificate of Designation and the performance of all obligations of the Company hereunder and thereunder and under the Certificate of Designation as of the Closing has been taken or will be taken prior to the Closing. This Agreement has been, and the Stockholders

Agreement will be at Closing, duly executed and delivered by the Company, and the Certificate of Designation will be at Closing, duly executed and filed by the Company.

          (b)   This Agreement and the Stockholders Agreement (assuming due execution and delivery by the Purchasers) will be legal, valid and binding obligations of the Company enforceable against it in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.

          (c)   The execution, delivery and performance of this Agreement and the Stockholders Agreement, the issuance of the Subject Shares and the Conversion Shares and the consummation of the other transactions contemplated hereby and thereby and by the Certificate of Designation will not result in (A) (i) any violation, or be in conflict with or constitute a default (with or without notice or lapse of time or both) under the Restated Certificate or Bylaws (as defined below) or the organizational documents of any of the Company’s Subsidiaries, (ii) any violation, or be in conflict with or constitute a default (with or without notice or lapse of time or both) under, any term or provision of, or any right of termination, cancellation or acceleration arising under any Contract (as defined below) or cause any liabilities or additional fees to be due thereunder or (iii) any violation under any Order or Law applicable to the Company or any of its Subsidiaries, their business or operations or any of their assets or properties or (B) the imposition of any Encumbrance on the business or material properties or assets of the Company or any of its Subsidiaries, except in the case of clause (A)(ii), (A)(iii) and (B) for such violations, conflicts, defaults, terminations, cancellations, acceleration or encumbrances that would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. None of the execution and delivery of this Agreement and the Stockholders Agreement, the issuance of the Subject Shares and the Conversion Shares and the consummation of the other transactions contemplated hereby and thereby and by the Certificate of Designation or the performance of the obligations of the Company hereunder and thereunder or under the Certificate of Designation will result in the suspension, revocation, impairment, forfeiture or nonrenewal of any Permit (as defined below) applicable to the Company or any of its Subsidiaries, their businesses or operations or any of their assets or properties, except for such suspensions, revocations, impairments, forfeitures or renewals that would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. “ Permits ” means all licenses, permits, orders, consents, approvals, registrations, authorizations, qualifications and filings with and under all federal, state, local or foreign laws and governmental authorities and all industry or other non-governmental self-regulatory organizations.

          SECTION 3.5.   SEC Reports; Financial Statements.

          (a)   The Company has filed with the U.S. Securities and Exchange Commission (the “ SEC ”) all forms, reports, schedules, proxy statements (collectively, and in each case including all exhibits and schedules thereto and documents incorporated by reference therein and including all registration statements and prospectuses filed with the SEC, the “ SEC Reports ”) required to be filed by the Company with the SEC since March 26, 2003. As of its date of filing, each SEC Report complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”),

or the Securities Act of 1933, as amended (the “ Securities Act ”), and the rules and regulations promulgated thereunder and none of such SEC Reports (including any and all financial statements included therein) contained when filed (except to the extent revised or superseded by a subsequent filing with the SEC that is publicly available prior to the date hereof) any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading.

          (b)   Each of the consolidated financial statements (including the notes thereto) included in the SEC Reports complied (i) as to form required by published rules and regulations of the SEC related thereto as of its date of filing with the SEC, (ii) in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (iii) has been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or otherwise permitted by the SEC on Form 10-Q or any successor form under the Exchange Act) and (iv) presents fairly in all material respects the consolidated financial position of Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended, subject (in the case of unaudited financial statements) to normal year-end adjustments and any other adjustments described therein or in the notes or schedules thereto or the absence of footnotes.

          (c)   The unaudited balance sheet and the related unaudited statement of income for the period ended on June 30, 2005, copies of which have been furnished to the Purchasers, (i) present fairly in all material respects the financial condition of the Company as of such date and the results of operations for the 6-month period then ended and (ii) were prepared on a basis consistent with the Company’s past practice, subject to normal year-end adjustments and the absence of footnotes.

          (d)   The Company and its Subsidiaries have designed and maintain a system of internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Company (A) has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure, and (B) has disclosed, based on its most recent evaluation of such disclosure controls and procedures prior to the date hereof, to the Company’s auditors and the audit committee of the Company’s Board of Directors (the “ Board ”) (x) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company has

made available to the Purchasers a summary of any such disclosure made by management to the Company’s auditors and audit committee since January 1, 2004.

          SECTION 3.6.   Undisclosed Liabilities . Except for liabilities included or reserved for in the unaudited consolidated balance sheet of the Company as of June 30, 2005 or disclosed in the notes thereto included in its Quarterly Report on Form 10-Q (the “ 10-Q ”) for the quarter ended June 30, 2005 (the “ Balance Sheet ”), as filed with the SEC, neither the Company nor any of its Subsidiaries had, and since such date none of them has incurred, liabilities, including contingent liabilities, or any other obligations whatsoever that are or could be material (individually or in the aggregate) to the Company and its Subsidiaries of a nature required to be disclosed on a consolidated balance sheet or in the related notes thereto, taken as a whole, except current liabilities incurred in the ordinary course of business subsequent to June 30, 2005 and except for such liabilities that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

          SECTION 3.7.   Contracts.

          (a)   Except as set forth in the SEC Reports filed on and after March 11, 2005 and prior to the date hereof (the “ Recently Filed SEC Reports ”), set forth on Schedule 3.7(a) is a list of:

     (i)   all material agreements of the Company or any of its subsidiaries governing any partnership, joint venture and/or joint strategic initiative arrangements;

     (ii)   all documents relating to all mergers, consolidations, recapitalizations, reorganizations or similar transactions involving, or any acquisitions or dispositions material to the Company and its Subsidiaries, taken as a whole by, the Company or any of its Subsidiaries that (A) are currently contemplated by the Company or any of its Significant Subsidiaries or (B) provide any ongoing material liabilities of the Company or any of its Subsidiaries for payment of money, retention of liabilities, assets sold, indemnification or otherwise;

     (iii)   contracts with Affiliates (including 5% or greater holders of stock, directors, officers, or familial relatives of such directors or officers, and other entities controlled by any of them) not otherwise disclosed above.

     (iv)   all “material contracts” within the meaning of Item 601 of Regulation S-K of the SEC; and

     (v)   all contracts restricting the payment of dividends upon, or the redemption or conversion of, the Subject Shares or the Conversion Shares.

(clauses (i) through (v) collectively, the “ Material Contracts ,” and together with any lease, binding commitment, option, insurance policy, benefit plan or other contract, agreement, instrument or obligation (whether oral or written) to

which the Company or any of its Subsidiaries may be bound, the “ Contracts ”).

          (b)   Neither the Company nor any of its Subsidiaries is, or to the knowledge of the Company is alleged to be (nor, to the Company’s knowledge, is any other party to any Material Contract) in material default under, or in material breach or material violation of, any Material Contract, and no event has occurred which, with the giving of notice or passage of time or both, would constitute a material default by the Company or any other party under any Material Contract. Other than Material Contracts which have terminated or expired in accordance with their terms, each of the Material Contracts is in full force and effect and is a legal, valid and binding obligation of the Company and, to the knowledge of the Company, the other parties thereto enforceable against the Company and, to the knowledge of the Company, such other parties in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).

          SECTION 3.8.   Affiliate Transactions . Other than the Contracts set forth in Section 3.7(a)(iii) or in the Recently Filed SEC Reports, there are no transactions between the Company or any of its Subsidiaries, on the one hand, and any (i) officer or director of the Company or any of its Subsidiaries, (ii) to the knowledge of the Company, record or beneficial owner of five percent or more of the voting securities of the Company or (iii) affiliate or family member of any such officer or director or, to the knowledge of the Company, record or beneficial owner, on the other hand, except employee benefit plans, executive compensation or director compensation, indemnification agreements and similar transactions. Neither the Company nor any of its Subsidiaries is a guarantor or indemnitor of any indebtedness of any of the persons set forth in the foregoing clause (i) or, to the knowledge of the Company, clauses (ii) through (iii).

          SECTION 3.9.   No Adverse Changes . Except as set forth in the Recently Filed SEC Reports, since June 30, 2005, no event, change, condition or circumstance occurring has had, or would reasonably be expected to result in, individually or in the aggregate, a material adverse effect on the business, operations, properties, assets, liabilities, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, or on the ability of the Company to perform its obligations under this Agreement or the Stockholders Agreement and to consummate the transactions contemplated hereby and thereby, except for any such effect, change, condition or circumstance caused by or resulting from (i) an event, change, condition or circumstance affecting the e-commerce and residential real estate industries in which the Company or its Subsidiaries operate generally (except to the extent that such event, change, condition or circumstance has a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to similarly situated participants in such industry), (ii) changes in the price or trading volume of the Common Stock on The NASDAQ National Market, or the failure of the Company to achieve revenue or earnings predictions published by securities analysts or to provide guidance consistent with such predictions, in each case, in and of themselves (it being understood that the event,

change, condition or circumstance giving rise to such change or failure, including the failure to achieve revenue or earnings predictions or other guidance that the Company has provided to the Purchasers (but not in and of itself), may be deemed to constitute and shall be taken into account in determining whether there has been a Material Adverse Effect), (iii) a change in economic (including financial, banking and/or securities markets), regulatory or political conditions generally, including without limitation changes in interest rates and changes in demand for residential real estate (except to the extent that such change has a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to similarly situated participants in the industry in which they operate), and (iv) the announcement or performance of the transactions contemplated by this Agreement or the use of proceeds thereof (any such effect, change, condition or circumstance, a “ Material Adverse Effect ”).

          SECTION 3.10.   Title and Sufficiency of Properties and Assets; Liens, Condition, Etc. The Company and each of its Subsidiaries have good and marketable title to their respective owned properties and assets, and good title to their respective leasehold estates in leased properties and assets, in each case subject to no Encumbrance, other than Encumbrances that would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect. The properties and assets owned and leased by the Company and its Subsidiaries are sufficient to carry on their businesses as they are now being conducted, except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect

          SECTION 3.11.   Intellectual Property . Except as would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect: (i) the Company and its Subsidiaries own or have the right to use all the Intellectual Property necessary to conduct their businesses as currently conducted, free of all Encumbrances other than, with respect to non-owned Company IP, as set forth in the license or other agreement for such non-owned Company IP; (ii) all of the owned Company IP is valid, enforceable and unexpired, has not been abandoned, and to the Company’s knowledge, does not infringe, impair, misappropriate, dilute, violate or make unauthorized use of (“ Infringe ”) the rights of any third party, and is not being Infringed by any third party; (iii) no Order or claim, action, suit, case, arbitration, litigation, or any proceeding by or before any governmental authority (an “ Action ”) is outstanding or pending, or to the Company’s knowledge, threatened, that would cancel, limit or challenge the ownership, use, value, validity or enforceability of any (x) owned Company IP or (y) to the Company’s knowledge, the Company’s use of any licensed Company IP, and the Company knows of no valid basis for the same; (iv) the Company and its Subsidiaries take reasonable steps to protect and maintain the Company IP, including without limitation any confidential Company IP; (v) to the Company’s knowledge, the Company and its Subsidiaries take all reasonable actions to protect the confidentiality, integrity and security of its software, databases, systems, networks and Internet sites and all information stored or contained therein or transmitted thereby (“ Software ”) from any unauthorized use, access, interruption or modification by third parties; and (vi) all of the licenses, consents, royalty and other agreements concerning Intellectual Property to which the

Company or any of its Subsidiaries is a party are, to the Company’s knowledge, valid and enforceable. For purposes of this Agreement, the term “ Intellectual Property ” means all U.S. and foreign intellectual property, including without limitation all (i) patents, inventions, discoveries, processes, designs, developments, technology, and related improvements, and know-how, whether or not patented or patentable; (ii) copyrights and works of authorship in any media, including computer hardware, Software (excluding commercially available, off the shelf software), applications, systems, networks, databases and compilations, documentation, advertising, marketing and promotional materials, textual works, graphics, photographs, drawings and Internet site content; (iii) trademarks, service marks, trade names, brand names, corporate names, domain names, logos, trade dress and other source indicators; (iv) trade secrets, drawings, blueprints and similar all non-public, confidential or proprietary information; and (v) all registrations, applications and recordings related thereto. For purposes of this Agreement, the term “ Company IP ” means all Intellectual Property owned, held or used by the Company or any of its Subsidiaries.

          SECTION 3.12.   Compliance with Law; Permits .

          (a)   Neither the Company nor any of its Subsidiaries (i) is in material violation or default of the Company’s Restated Certificate of Incorporation (the “ Restated Certificate ”) or its Bylaws (the “ Bylaws ”), or the organizational documents of any of its Subsidiaries, (ii) is in violation or default of any judicial or administrative judgment, decision, decree, order, settlement, injunction, writ, stipulation, determination, award or Permit (each, an “ Order ”) or any U.S. or foreign statute, law (including, without limitation, common law), code, ordinance, rule or regulation (including the Sarbanes-Oxley Act of 2002) (each, a “ Law ”), except for such violations and defaults that would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect or (iii) has received, since January 1, 2004, any notice of, and to the knowledge of the Company, no investigation or review is in process or threatened by any governmental authority with respect to, any material violation or alleged violation of any Order or Law.

          (b)   Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (i) the Company and its Subsidiaries hold all Permits necessary for the lawful conduct of their respective businesses as they are presently being conducted, (ii) all Permits are in full force and effect, (iii) the Company and its Subsidiaries are in compliance with the terms of the Permits, (iv) there are no pending or, to the knowledge of the Company, threatened, modifications, amendments, cancellations, suspensions, limitations, nonrenewals or revocations of any Permit, and (v) there has occurred no event which (whether with notice or lapse of