{"id":43000,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-akamai-technologies-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-akamai-technologies-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-akamai-technologies-inc-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Akamai Technologies Inc. and Network24 Communications Inc."},"content":{"rendered":"<pre>\n                          AGREEMENT AND PLAN OF MERGER\n\n                                  BY AND AMONG\n\n                           AKAMAI TECHNOLOGIES, INC.,\n\n                            ALOHA MERGER CORPORATION,\n\n                                       AND\n\n                         NETWORK24 COMMUNICATIONS, INC.\n\n\n                          DATED AS OF JANUARY 14, 2000\n\n\n   2\n\n\n\n\n                                TABLE OF CONTENTS\n\n                                                                           Page\n                                                                           ----\n\nARTICLE 1 TRANSACTIONS AND TERMS OF MERGER                                    1\n\n1.1        Merger.............................................................1\n1.2        Time and Place of Closing..........................................2\n1.3        Effective Time.....................................................2\n\nARTICLE 2 TERMS OF MERGER                                                     2\n\n2.1        Articles of Incorporation..........................................2\n2.2        Bylaws.............................................................2\n2.3        Directors and Officers.............................................3\n\nARTICLE 3 MANNER OF CONVERTING SHARES                                         3\n\n3.1        Conversion of Shares...............................................3\n3.2        Anti-Dilution Provisions...........................................4\n3.3        Shares Held by Company or Parent...................................4\n3.4        Dissenting Stockholders............................................4\n3.5        Fractional Shares..................................................5\n3.6        Conversion of Stock Options and Warrants; Restricted Stock.........5\n\nARTICLE 4 EXCHANGE OF SHARES                                                  6\n\n4.1        Exchange Procedures................................................6\n4.2        Rights of Former Company Stockholders..............................8\n4.3        Escrow Agreement...................................................8\n4.4        Restricted Stock; Legending of Certificates........................9\n\nARTICLE 5 REPRESENTATIONS AND WARRANTIES OF Company                           9\n\n5.1        Organization, Standing, and Power..................................9\n5.2        Authority of Company; No Breach By Agreement......................10\n5.3        Capital Stock.....................................................11\n5.4        Company Subsidiaries..............................................11\n5.5        Financial Statements..............................................11\n5.6        Absence of Undisclosed Liabilities................................12\n5.7        Absence of Certain Changes or Events..............................12\n5.8        Tax Matters.......................................................12\n5.9        Assets............................................................13\n5.10       Intellectual Property.............................................14\n5.11       Environmental Matters.............................................16\n5.12       Compliance with Laws..............................................16\n5.13       Labor Matters.....................................................17\n5.14       Employee Benefit Plans............................................17\n5.15       Material Contracts................................................19\n5.16       Legal Proceedings.................................................20\n5.17       Reports...........................................................20\n5.18       Statements True and Correct.......................................21\n5.19       Tax and Regulatory Matters........................................21\n\n\n\n                                      -i-\n   3\n\n5.20       State Takeover Laws...............................................21\n5.21       Charter Provisions................................................21\n5.22       Investment Intention..............................................21\n5.23       Board Recommendation..............................................22\n\nARTICLE 6 REPRESENTATIONS AND WARRANTIES OF PARENT                           22\n\n6.1        Organization, Standing, and Power.................................22\n6.2        Authority; No Breach By Agreement.................................22\n6.3        Capital Stock.....................................................23\n6.4        SEC Filings; Financial Statements.................................23\n6.5        Absence of Certain Changes or Events..............................24\n6.6        Tax Matters.......................................................24\n6.7        Compliance with Laws..............................................25\n6.8        Legal Proceedings.................................................25\n6.9        Reports...........................................................25\n6.10       Statements True and Correct.......................................26\n6.11       Authority of Sub..................................................26\n6.12       Accounting, Tax and Regulatory Matters............................26\n\nARTICLE 7 CONDUCT OF BUSINESS PENDING CONSUMMATION                           27\n\n7.1        Affirmative Covenants of Company..................................27\n7.2        Negative Covenants of Company.....................................27\n7.3        Adverse Changes in Condition......................................29\n\nARTICLE 8 ADDITIONAL AGREEMENTS                                              29\n\n8.1        Stockholder Approval..............................................29\n8.2        Exchange Listing..................................................29\n8.3        Regulatory Filings; Required Consents.............................29\n8.4        Filings with State Offices........................................30\n8.5        Agreement as to Efforts to Consummate.............................30\n8.6        Investigation and Confidentiality.................................31\n8.7        Press Releases....................................................31\n8.8        Certain Actions...................................................31\n8.9        Accounting and Tax Treatment......................................32\n8.10       State Takeover Laws...............................................32\n8.11       Charter Provisions................................................32\n8.12       Employee Benefits and Contracts...................................32\n8.13       Indemnification...................................................33\n8.14       Registration Rights...............................................34\n8.15       Treatment of HP Warrants..........................................34\n\nARTICLE 9 CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE                  34\n\n9.1        Conditions to Obligations of Each Party...........................34\n9.2        Conditions to Obligations of Parent...............................36\n9.3        Conditions to Obligations of Company..............................37\n\nARTICLE 10 TERMINATION                                                       38\n\n10.1       Termination.......................................................38\n\n\n\n                                      -ii-\n   4\n\n10.2          Effect of Termination..........................................39\n\nARTICLE 11 MISCELLANEOUS                                                     39\n\n11.1          Definitions....................................................39\n11.2          Expenses.......................................................48\n11.3          Brokers and Finders............................................48\n11.4          Entire Agreement...............................................48\n11.5          Amendments.....................................................48\n11.6          Waivers........................................................49\n11.7          Assignment.....................................................49\n11.8          Notices........................................................49\n11.9          Governing Law..................................................50\n11.10         Counterparts...................................................50\n11.11         Captions; Articles and Sections................................50\n11.12         Interpretations................................................51\n11.13         Enforcement of Agreement.......................................51\n11.14         Severability...................................................52\n\n\n\n\n\n                                      -iii-\n   5\n\n\n\n\n                                LIST OF EXHIBITS\n\n\nEXHIBIT NUMBER    DESCRIPTION\n--------------    -----------\n\n      1.          Form of Stockholders' Voting Agreement\n\n      2.          Agreement of Merger\n\n      3.          Form of Stockholder Representation Agreement\n\n      4.          Form of Escrow Agreement\n\n      5.          Declaration of Registration Rights\n\n      6.          Matters as to Which Rosenblum Parish &amp; Isaacs, A Law \n                  Corporation Will Opine\n\n      7.          Form of Agreement with Certain Employees\n\n      8.          Form of Agreement with Daniel J. Fraisl\n\n      9.          Form of Claims Letter\n\n      10.         Matters as to Which Alston &amp; Bird LLP Will Opine\n\n\n\n\n\n\n                                      -iv-\n   6\n\n                          AGREEMENT AND PLAN OF MERGER\n\n\n           THIS AGREEMENT AND PLAN OF MERGER (this \"AGREEMENT\") is made and\nentered into as of January 14, 2000, by and among AKAMAI TECHNOLOGIES, INC.\n(\"PARENT\"), a Delaware corporation; ALOHA MERGER CORPORATION (\"SUB\"), a\nCalifornia corporation; and NETWORK24 COMMUNICATIONS, INC. (\"COMPANY\"), a\nCalifornia corporation.\n\n\n                                    PREAMBLE\n\n           The respective Boards of Directors of Company, Sub and Parent are of\nthe opinion that the transactions described herein are in the best interests of\nthe parties to this Agreement and their respective stockholders. This Agreement\nprovides for the acquisition of Company by Parent pursuant to the merger of\nCompany with and into Sub. At the effective time of such merger, the outstanding\nshares of the capital stock of Company shall be converted into the right to\nreceive shares of the common stock of Parent (except as provided herein). As a\nresult, stockholders of Company shall become stockholders of Parent and Sub\nshall continue to conduct it's business and operations of Company as a\nwholly owned subsidiary of Parent. The transactions described in this Agreement\nare subject to the approval of the stockholders of Company and the satisfaction\nof certain other conditions described in this Agreement. It is the intention of\nthe parties to this Agreement that the Merger for federal income tax purposes\nshall qualify as a \"reorganization\" within the meaning of Section 368(a) of the\nInternal Revenue Code and that this Agreement shall constitute a \"plan of\nreorganization\" for the purposes of the Internal Revenue Code.\n\n           Concurrently with the execution and delivery of this Agreement and as\na condition and inducement to Parent's willingness to enter into this Agreement,\neach of the directors of Company and each of the holders of 5% or more of the\noutstanding shares of Company Capital Stock has executed and delivered to Parent\nan agreement in substantially the form of Exhibit 1 (the \"VOTING AGREEMENTS\"),\npursuant to which they have agreed, among other things, to vote the shares of\nCompany Capital Stock over which such Persons have voting power to approve and\nadopt this Agreement.\n\n           Certain terms used in this Agreement are defined in Section 11.1 of\nthis Agreement.\n\n           NOW, THEREFORE, in consideration of the above and the mutual\nwarranties, representations, covenants, and agreements set forth herein, the\nparties agree as follows:\n\n                                   ARTICLE 1\n                        TRANSACTIONS AND TERMS OF MERGER \n\n           1.1        MERGER \n\n           Subject to the terms and conditions of this Agreement, the Agreement\nof Merger attached hereto as Exhibit 2 (the \"PLAN OF MERGER\") and the applicable\nprovisions of the California \n\n\n\n\n\n   7\n\nCorporations Code, at the Effective Time, Company shall be merged with and into\nSub (the \"MERGER\"). Sub shall be the Surviving Corporation resulting from the\nMerger, shall remain a wholly owned Subsidiary of Parent and shall continue to\nbe governed by the Laws of the State of California. The Merger shall be\nconsummated pursuant to the terms of this Agreement and the Plan of Merger,\nwhich has been approved and adopted by the respective Boards of Directors of\nCompany, Sub and Parent and by Parent, as the sole stockholder of Sub.\n\n           1.2        TIME AND PLACE OF CLOSING \n\n           The closing of the transactions contemplated hereby (the \"Closing\")\nwill take place at 9:00 A.M. on the date that the Effective Time occurs (or the\nimmediately preceding day if the Effective Time is earlier than 9:00 A.M.), or\nat such other time as the Parties, acting through their authorized officers, may\nmutually agree. The Closing shall be held at such location as may be mutually\nagreed upon by the Parties.\n\n           1.3        EFFECTIVE TIME \n\n           The Merger and other transactions contemplated by this Agreement and\nthe Plan of Merger shall become effective on the date and at the time the Plan\nof Merger, together with the required officers' certificates, with the Secretary\nof State of the State of California, in accordance with the relevant provisions\nof the California Corporations Code, shall become effective with the Secretary\nof State of the State of California (the \"EFFECTIVE TIME\"). Subject to the terms\nand conditions hereof, unless otherwise mutually agreed upon in writing by the\nauthorized officers of each Party, the Parties shall use their reasonable\nefforts to cause the Effective Time to occur on the first business day following\nthe last to occur of (i) the effective date (including expiration of any\napplicable waiting period) of the last required Consent of any Regulatory\nAuthority having authority over and approving or exempting the Merger, and (ii)\nthe date on which the stockholders of Company approve this Agreement to the\nextent such approval is required by applicable Law; or such later date within 30\ndays thereof as may be specified by Parent.\n\n                                    ARTICLE 2\n                                 TERMS OF MERGER\n\n           2.1        ARTICLES OF INCORPORATION \n\n           The Articles of Incorporation of Sub in effect immediately prior to\nthe Effective Time shall be the Articles of Incorporation of the Surviving\nCorporation until duly amended or repealed; provided, that the Articles of\nIncorporation of the Surviving Corporation shall be amended to provide that the\nname of the Surviving Corporation shall be \"Network24 Communications, Inc.\"\n\n           2.2        BYLAWS \n\n           The Bylaws of Sub in effect immediately prior to the Effective Time\nshall be the Bylaws of the Surviving Corporation until duly amended or repealed.\n\n\n\n                                      -2-\n   8\n\n           2.3       DIRECTORS AND OFFICERS \n\n           The directors of Sub in office immediately prior to the Effective\nTime, together with such additional persons as may thereafter be elected, shall\nserve as the directors of the Surviving Corporation from and after the Effective\nTime in accordance with the Bylaws of the Surviving Corporation. The officers of\nCompany in office immediately prior to the Effective Time, together with such\nadditional persons as may thereafter be elected, shall serve as the officers of\nthe Surviving Corporation from and after the Effective Time in accordance with\nthe Bylaws of the Surviving Corporation.\n\n\n                                    ARTICLE 3\n                           MANNER OF CONVERTING SHARES\n\n           3.1       CONVERSION OF SHARES \n\n           Subject to the provisions of this ARTICLE 3, at the Effective Time,\nby virtue of the Merger and without any action on the part of Parent, Company,\nSub or the stockholders of any of the foregoing, the shares of the constituent\ncorporations shall be converted as follows:\n\n                     (a)       Each share of capital stock of Parent issued and\n           outstanding immediately prior to the Effective Time shall remain\n           issued and outstanding from and after the Effective Time.\n\n                     (b)       Each share of Sub Common Stock issued and\n           outstanding immediately prior to the Effective Time shall remain\n           issued and outstanding from and after the Effective Time. Each stock\n           certificate of Sub evidencing ownership of any shares of Sub Common\n           Stock shall continue to evidence ownership of such shares of common\n           stock of the Surviving Corporation.\n\n                     (c)       Each share of Company Common Stock (excluding\n           shares held by Company or any Parent Entity and shares held by\n           stockholders who perfect, and not withdrawn or otherwise forfeited at\n           or prior to the Effective Time, their statutory dissenters' rights as\n           provided in Section 3.4) issued and outstanding immediately prior to\n           the Effective Time shall cease to be outstanding and shall be\n           converted into and exchanged for (i) the right to receive 0.033752 of\n           a share of Parent Common Stock (the \"Common Firm Exchange Ratio\") and\n           (ii) (subject to the provisions of Section 4.3) the contingent right\n           to receive 0.003750 of a share of Parent Common Stock (the \"Escrow\n           Exchange Ratio\"). The sum of the Firm Exchange Ratio and the Escrow\n           Exchange Ratio (0.037502 of a share of Parent Common Stock) is\n           referred to herein as the \"Common Exchange Ratio\".\n\n                     (d)       Each share of Company Series A Stock (excluding\n           shares held by Company or any Parent Entity and shares held by\n           stockholders who perfect, and not withdrawn or otherwise forfeited at\n           or prior to the Effective Time, their statutory dissenters' rights as\n           provided in Section 3.4) issued and outstanding immediately prior to\n           the Effective Time shall cease to be outstanding and shall be\n           converted into and exchanged for (i) the right to receive a number of\n           shares of Parent Common Stock equal \n\n\n\n                                      -3-\n   9\n\n           to the number of shares of Company Common Stock into which such share\n           of Company Series A Stock was convertible immediately prior to the\n           Effective Time, pursuant to Company's articles of incorporation as in\n           effect immediately prior to the Effective Time, multiplied by\n           0.024376 (the \"Preferred Firm Exchange Ratio\"), (ii) (subject to the\n           provisions of Section 4.3) the contingent right to receive a number\n           of shares of Parent Common Stock equal to the number of shares of\n           Company Common Stock into which such share of Company Series A Stock\n           was convertible immediately prior to the Effective Time, pursuant to\n           Company's articles of incorporation as in effect immediately prior to\n           the Effective Time, multiplied by the Escrow Exchange Ratio, and\n           (iii) the right to receive a cash payment from Parent in the amount\n           of $2.156345 (the \"Preferred Cash Payment\"). For purposes of this\n           Agreement, the \"Firm Shares\" shall mean the aggregate number of\n           shares of Parent Common Stock issuable pursuant to Sections 3.1(c)(i)\n           and 3.1(d)(i) and \"Escrow Shares\" shall mean the aggregate number of\n           shares of Parent Common Stock issuable pursuant to Sections\n           3.1(c)(ii) and 3.1(d)(ii).\n\n           3.2       ANTI-DILUTION PROVISIONS \n\n           In the event Parent changes the number of shares of Parent Common\nStock issued and outstanding prior to the Effective Time as a result of a stock\nsplit, stock dividend, or similar recapitalization with respect to such stock\nand the record date therefor (in the case of a stock dividend) or the effective\ndate thereof (in the case of a stock split or similar recapitalization for which\na record date is not established) shall be prior to the Effective Time, the\nCommon Firm Exchange Ratio, the Preferred Firm Exchange Ratio and the Escrow\nExchange Ratio shall be proportionately adjusted.\n\n           3.3       SHARES HELD BY COMPANY OR PARENT \n\n           Each of the shares of Company Capital Stock held by Company or by any\nParent Entity shall be canceled and retired at the Effective Time and no\nconsideration shall be issued in exchange therefor.\n\n           3.4       DISSENTING STOCKHOLDERS \n\n           Any holder of shares of Company Capital Stock who perfects, and has\nnot withdrawn or otherwise forfeited at or prior to the Effective Time, such\nholder's dissenters' rights in accordance with and as contemplated by the\nCalifornia Corporations Code (a \"DISSENTING STOCKHOLDER\") shall be entitled to\nreceive the value of such shares in cash as determined pursuant to such\nprovision of Law; provided, that no such payment shall be made to any Dissenting\nStockholder unless and until such Dissenting Stockholder has complied with the\napplicable provisions of the California Corporations Code and surrendered to\nCompany the certificate or certificates representing the shares of Company\nCapital Stock for which payment is being made. In the event that after the\nEffective Time a Dissenting Stockholder of Company fails to perfect, or\neffectively withdraws or loses, his right to appraisal and of payment for his\nshares of Company Capital Stock, Parent shall issue and deliver the\nconsideration to which such holder of shares of Company Capital Stock is\nentitled under this ARTICLE 3 (without interest) upon surrender by such holder\nof the certificate or certificates representing shares of Company Capital Stock\nheld by such holder.\n\n\n\n                                      -4-\n   10\n\n           3.5       FRACTIONAL SHARES \n\n           Notwithstanding any other provision of this Agreement, each holder of\nshares of Company Capital Stock exchanged pursuant to the Merger who would\notherwise have been entitled to receive a fraction of a Firm Share (after taking\ninto account all certificates delivered by such holder) shall receive, in lieu\nthereof, cash (without interest) in an amount equal to such fractional part of a\nFirm Share multiplied by the last sale price of Parent Common Stock on the\nNasdaq National Market (as reported by The Wall Street Journal or, if not\nreported thereby, any other authoritative source selected by Parent) on the last\ntrading day preceding the Effective Time. No such holder will be entitled to\ndividends, voting rights, or any other rights as a stockholder in respect of any\nfractional shares.\n\n           3.6       CONVERSION OF STOCK OPTIONS AND WARRANTS; RESTRICTED STOCK.\n\n                     (a)       At the Effective Time, each option, warrant or\nother Equity Right to purchase shares of Company Capital Stock (\"Company Equity\nRights\") granted by Company under the Company Stock Plan or otherwise, which are\noutstanding at the Effective Time, whether or not exercisable, shall be\nconverted into and become rights with respect to Parent Common Stock, and Parent\nshall assume each Company Equity Right, in accordance with the terms of the\nCompany Stock Plan and stock option agreement or other agreement or instrument\nby which it is evidenced, except that from and after the Effective Time, (i)\nParent and its Compensation Committee shall be substituted for Company and the\nCommittee of Company's Board of Directors (including, if applicable, the entire\nBoard of Directors of Company) administering the Company Stock Plan, (ii) each\nCompany Equity Right assumed by Parent may be exercised solely for shares of\nParent Common Stock (or cash, if so provided under the terms of such Company\nEquity Right), (iii) the maximum number of shares of Parent Common Stock subject\nto such Company Equity Right shall be equal to the number of shares (rounded\ndown to the nearest whole share) of Company Common Stock subject to such Company\nEquity Right immediately prior to the Effective Time multiplied by the Common\nExchange Ratio, and (iv) the per share exercise price under each such Company\nEquity Right shall be adjusted by dividing the per share exercise price under\neach such Company Equity Right by the Common Exchange Ratio and rounding up to\nthe nearest cent. Notwithstanding the provisions of clause (iii) of the\npreceding sentence, Parent shall not be obligated to issue any fraction of a\nshare of Parent Common Stock upon exercise of Company Equity Rights and any\nfraction of a share of Parent Common Stock that otherwise would be subject to a\nconverted Company Equity Right shall represent the right to receive a cash\npayment upon exercise of such converted Company Equity Right equal to the\nproduct of such fraction and the difference between the market value of one\nshare of Parent Common Stock at the time of exercise of such Option and the per\nshare exercise price of such Option. The market value of one share of Parent\nCommon Stock at the time of exercise of an Option shall be the last sale price\nof such common stock on the Nasdaq National Market (as reported by The Wall\nStreet Journal or, if not reported thereby, any other authoritative source\nselected by Parent) on the last trading day preceding the date of exercise. In\naddition, notwithstanding the provisions of clauses (iii) and (iv) of the first\nsentence of this Section 3.6, each Company Equity Right which is an \"incentive\nstock option\" shall be adjusted as required by Section 424 of the Internal\nRevenue Code, and the regulations promulgated thereunder, so as not to\nconstitute a modification, extension or renewal of the option, within the\nmeaning of Section 424(h) of the Internal Revenue Code.\n\n\n\n                                      -5-\n   11\n\n                     (b)       As soon as practicable after the Effective Time,\nParent shall deliver to the participants in each Company Stock Plan an\nappropriate notice setting forth such participant's rights pursuant thereto and\nthe grants subject to such Company Stock Plan shall continue in effect on the\nsame terms and conditions (subject to the adjustments required by Section 3.6(a)\nafter giving effect to the Merger), and Parent shall comply with the terms of\neach Company Stock Plan to ensure, to the extent required by, and subject to the\nprovisions of, such Company Stock Plan, that Company Equity Rights which\nqualified as incentive stock options prior to the Effective Time continue to\nqualify as incentive stock options after the Effective Time. At or prior to the\nEffective Time, Parent shall take all corporate action necessary to reserve for\nissuance sufficient shares of Parent Common Stock for delivery upon exercise of\nCompany Equity Rights assumed by it in accordance with this Section 3.6. As soon\nas practicable after the Effective Time, Parent shall file one or more\nregistration statements on Form S-8 (or any successor or other appropriate\nforms), with respect to the shares of Parent Common Stock subject to such\nCompany Equity Rights granted under the Company Stock Plan and shall use its\nreasonable efforts to maintain the effectiveness of such registration statement\n(and maintain the current status of the prospectus or prospectuses contained\ntherein) for so long as such options remain outstanding.\n\n                     (c)       All contractual restrictions or limitations on\ntransfer with respect to Company Common Stock awarded under the Company Stock\nPlan or any other plan, program, Contract or arrangement of Company, to the\nextent that such restrictions or limitations shall not have already lapsed\n(whether as a result of the Merger or otherwise), and except as otherwise\nexpressly provided in such plan, program, Contract or arrangement, shall remain\nin full force and effect with respect to shares of Parent Common Stock into\nwhich such restricted stock is converted pursuant to Section 3.1.\n\n                     (d)       Each of Company and Parent agrees to take all\nnecessary steps to effectuate the provisions of this Section 3.6, including\nusing its reasonable efforts to obtain from each holder of a Company Equity\nRight any Consent or Contract that may be deemed necessary or advisable in order\nto effect the transactions contemplated by this Section 3.6, including an\nagreement not to exercise after the Effective Time Company Equity Rights granted\nunder the Company Stock Plan until Parent has filed a registration statement on\nForm S-8 in accordance with this Section. Anything in this Agreement to the\ncontrary notwithstanding, Parent shall have the right, in its sole discretion,\nnot to deliver the consideration provided in this Section 3.6 to a former holder\nof a Company Equity Right who has not delivered such Consent or Contract.\n\n\n                                    ARTICLE 4\n                               EXCHANGE OF SHARES\n\n           4.1       EXCHANGE PROCEDURES \n\n                     (a)       Promptly after the Effective Time, Parent shall\nmake available to Parent's transfer agent or another exchange agent selected by\nParent (the \"Exchange Agent\") for exchange in accordance with this Section 4.1\nthe Firm Shares and cash in an amount sufficient to permit payment of cash in\nlieu of fractional shares pursuant to Section 3.5. Promptly after the Effective\nTime, Parent and Company shall cause the Exchange Agent to mail to each holder\nof \n\n\n\n                                      -6-\n   12\n\nrecord of a certificate or certificates which represented shares of Company\nCapital Stock immediately prior to the Effective Time (the \"Certificates\")\nappropriate transmittal materials and instructions (which shall specify that\ndelivery shall be effected, and risk of loss and title to such Certificates\nshall pass, only upon proper delivery of such Certificates to the Exchange\nAgent), which shall include or be accompanied by the Stockholder Representation\nAgreement. The Certificate or Certificates so delivered shall be duly endorsed\nas the Exchange Agent may require. In the event of a transfer of ownership of\nshares of Company Capital Stock represented by Certificates that are not\nregistered in the transfer records of Company, the consideration provided in\nSection 3.1 may be issued to a transferee if the Certificates representing such\nshares are delivered to the Exchange Agent, accompanied by all documents\nrequired to evidence such transfer and by evidence satisfactory to the Exchange\nAgent that any applicable stock transfer taxes have been paid. If any\nCertificate shall have been lost, stolen, mislaid or destroyed, upon receipt of\n(i) an affidavit of that fact from the holder claiming such Certificate to be\nlost, mislaid, stolen or destroyed, (ii) such bond, security or indemnity as\nParent and the Exchange Agent may reasonably require and (iii) any other\ndocuments necessary to evidence and effect the bona fide exchange thereof, the\nExchange Agent shall issue to such holder the consideration into which the\nshares represented by such lost, stolen, mislaid or destroyed Certificate shall\nhave been converted. The Exchange Agent may establish such other reasonable and\ncustomary rules and procedures in connection with its duties as it may deem\nappropriate.\n\n                     (b)       After the Effective Time, each holder of shares\nof Company Capital Stock (other than shares to be canceled pursuant to Section\n3.3 or as to which statutory dissenters' rights have been perfected as provided\nin Section 3.4) issued and outstanding at the Effective Time shall deliver to\nthe Exchange Agent the Certificate or Certificates representing such shares and\nthe Shareholder Representation Agreement in the form attached hereto as Exhibit\n3 (or such other form as shall be reasonably satisfactory to Parent) and shall\npromptly upon surrender thereof receive in exchange therefor the consideration\nprovided in Section 3.1, together with all undelivered dividends or\ndistributions in respect of such shares (without interest thereon) pursuant to\nSection 4.2. To the extent required by Section 3.5, each holder of shares of\nCompany Capital Stock issued and outstanding at the Effective Time also shall\nreceive, upon surrender of the Certificate or Certificates, cash in lieu of any\nfractional share of Parent Common Stock to which such holder may be otherwise\nentitled (without interest). Parent shall not be obligated to deliver the\nconsideration to which any former holder of Company Capital Stock is entitled as\na result of the Merger until such holder surrenders such holder's Certificate or\nCertificates (or substitute documentation as provided in this Section 4.1) for\nexchange as provided in this Section 4.1 and delivers the Stockholder\nRepresentation Agreement, which Company acknowledges and agrees is a condition\nto effecting the issuance of Parent Common Stock as a private placement pursuant\nto Section 4(2) of the Securities Act and that Parent will be relying upon the\nrepresentations made by each stockholder of Company in the applicable\nStockholder Representation Agreement in connection with the issuance of Parent\nCommon Stock to such stockholder.\n\n                     (c)       Each of Parent, the Surviving Corporation and the\nExchange Agent shall be entitled to deduct and withhold from the consideration\notherwise payable pursuant to this Agreement to any holder of shares of Company\nCapital Stock such amounts, if any, as it is required to deduct and withhold\nwith respect to the making of such payment under the Internal Revenue Code or\nany provision of state, local or foreign Tax Law. To the extent that any \n\n\n\n                                      -7-\n   13\n\namounts are so withheld by Parent, the Surviving Corporation or the Exchange\nAgent, as the case may be, such withheld amounts shall be treated for all\npurposes of this Agreement as having been paid to the holder of the shares of\nCompany Capital Stock in respect of which such deduction and withholding was\nmade by Parent, the Surviving Corporation or the Exchange Agent, as the case may\nbe.\n\n                     (d)       Any other provision of this Agreement\nnotwithstanding, neither Parent, the Surviving Corporation nor the Exchange\nAgent shall be liable to a holder of Company Capital Stock for any amounts paid\nor property delivered in good faith to a public official pursuant to any\napplicable abandoned property, escheat or similar Law.\n\n           4.2       RIGHTS OF FORMER COMPANY STOCKHOLDERS \n\n                     (a)       At the Effective Time, the stock transfer books\nof Company shall be closed as to holders of Company Capital Stock immediately\nprior to the Effective Time and no transfer of Company Capital Stock by any such\nholder shall thereafter be made or recognized. Until surrendered for exchange in\naccordance with the provisions of Section 4.1, each Certificate theretofore\nrepresenting shares of Company Capital Stock (other than shares to be canceled\npursuant to Sections 3.3 and 3.4) shall from and after the Effective Time\nrepresent for all purposes only the right to receive the consideration provided\nin Sections 3.1 and 3.5 in exchange therefor.\n\n                     (b)       Whenever a dividend or other distribution is\ndeclared by Parent on the Parent Common Stock, the record date for which is at\nor after the Effective Time, the declaration shall include dividends or other\ndistributions on all shares of Parent Common Stock issuable pursuant to this\nAgreement, but no dividend or other distribution payable to the holders of\nrecord of Parent Common Stock as of any time subsequent to the Effective Time\nshall be delivered to the holder of any Certificate until such holder surrenders\nsuch Certificate for exchange as provided in Section 4.1. However, upon\nsurrender of such Certificate, both the Parent Common Stock certificate\n(together with all such undelivered dividends or other distributions without\ninterest) and any undelivered dividends and cash payments payable hereunder\n(without interest) shall be delivered and paid with respect to each share\nrepresented by such Certificate.\n\n           4.3       ESCROW AGREEMENT \n\n           In connection with the Closing, Parent, the Escrow Agent and the\nStockholders' Representative shall have executed and delivered to the other an\nescrow agreement (the \"ESCROW AGREEMENT\"), which shall be in substantially the\nform of Exhibit 4 (with such reasonable and customary modifications as the\nEscrow Agent may require). The Escrow Shares to be issued pursuant to Sections\n3.1(c)(ii) and 3.1(d)(ii) shall be issued to, and registered in the name of, the\nEscrow Agent as nominee for the holders of Certificates cancelled pursuant to\nSection 4.1 and shall held by the Escrow Agent pursuant to the terms of the\nEscrow Agreement and distributed in accordance with terms thereof. The\nrepresentations, warranties and agreements of Company contained in this\nAgreement and in any certificate delivered pursuant to this Agreement shall\nsurvive the Closing in accordance with the terms of the Escrow Agreement\nnotwithstanding any investigation conducted with respect thereto or any\nknowledge acquired as to the accuracy or inaccuracy of any such representation\nor warranty.\n\n\n\n                                      -8-\n   14\n\n           4.4       RESTRICTED STOCK; LEGENDING OF CERTIFICATES \n\n           The shares of Parent Common Stock to be issued in connection with\nthis Agreement will be issued in a transaction exempt from registration under\nthe Securities Act by reason of Section 4(2) thereof or Regulation D promulgated\nthereunder, and Parent is relying on the representations of Company and the\nstockholders of the Company with respect to such exemption. Stop transfer\ninstructions with respect to the shares of Parent Common Stock received by each\nstockholder of Company pursuant to the Merger will be given to Parent's transfer\nagent and there will be placed on the certificates for such shares, or shares\nissued in substitution thereof, a legend stating in substance:\n\n        \"The securities represented hereby have not been registered under the\n        Securities Act of 1933, as amended, and may not be offered, sold,\n        transferred or otherwise disposed of unless registered with the\n        Securities and Exchange Commission of the United States and the\n        securities regulatory authorities of applicable states or unless an\n        exemption from such registration is available.\"\n\nThe foregoing legend will also be placed on any certificate representing\nsecurities issued subsequent to the original issuance of the Parent Common Stock\npursuant to the Merger as a result of any transfer of such shares or any stock\ndividend, stock split, or other recapitalization as long as the Parent Common\nStock issued pursuant to the Merger has not been transferred in such manner to\njustify the removal of the legend therefrom.\n\n\n                                    ARTICLE 5\n                   REPRESENTATIONS AND WARRANTIES OF COMPANY \n                   -----------------------------------------\n\n           Company hereby represents and warrants to Parent as follows, except\nas disclosed in the Company Disclosure Memorandum:\n\n           5.1       ORGANIZATION, STANDING, AND POWER \n\n           Company is a corporation duly organized, validly existing, and in\ngood standing under the Laws of the State of California, and has the corporate\npower and authority to carry on its business as now conducted and to own, lease\nand operate its material Assets. Company is duly qualified or licensed to\ntransact business as a foreign corporation in good standing in the States of the\nUnited States and foreign jurisdictions where the character of its Assets or the\nnature or conduct of its business requires it to be so qualified or licensed,\nexcept for such jurisdictions in which the failure to be so qualified or\nlicensed is not reasonably likely to have, individually or in the aggregate, a\nCompany Material Adverse Effect. The minute book and other organizational\ndocuments for Company have been made available to Parent for its review and are\ntrue and complete in all material respects as in effect as of the date of this\nAgreement and accurately reflect in all material respects all amendments thereto\nand all proceedings of the Board of Directors and stockholders thereof.\n\n\n\n                                      -9-\n   15\n\n           5.2       AUTHORITY OF COMPANY; NO BREACH BY AGREEMENT \n\n                     (a)       Company has the corporate power and authority\nnecessary to execute, deliver, and perform its obligations under this Agreement\nand to consummate the transactions contemplated hereby. The execution, delivery,\nand performance of this Agreement and the consummation of the transactions\ncontemplated herein, including the Merger, have been duly and validly authorized\nby all necessary corporate action in respect thereof on the part of Company,\nsubject to the approval of this Agreement and the Plan of Merger by the holders\nof a majority of the votes entitled to be cast by the holders of the outstanding\nshares of Company Capital Stock, voting as a single class, by the holders of a\nmajority of the votes entitled to be cast by the holders of the outstanding\nshares of Company Common Stock, voting as a separate class, and by the holders\nof a majority of the votes entitled to be cast by the holders of the outstanding\nshares of Company Series A Stock, voting as a separate class, which are the only\nstockholder votes required for approval of this Agreement and consummation of\nthe Merger by Company. Subject to such requisite stockholder approval, this\nAgreement represents a legal, valid, and binding obligation of Company,\nenforceable against Company in accordance with its terms (except in all cases as\nsuch enforceability may be limited by applicable bankruptcy, insolvency,\nreorganization, receivership, conservatorship, moratorium, or similar Laws\naffecting the enforcement of creditors' rights generally and except that the\navailability of the equitable remedy of specific performance or injunctive\nrelief is subject to the discretion of the court before which any proceeding may\nbe brought).\n\n                     (b)       Neither the execution and delivery of this\nAgreement by Company, nor the consummation by Company of the transactions\ncontemplated hereby, nor compliance by Company with any of the provisions\nhereof, will (i) subject to receipt of requisite stockholder approvals, conflict\nwith or result in a breach of any provision of Company's Articles of\nIncorporation or Bylaws or the certificate or articles of incorporation or\nbylaws of any Company Subsidiary or any resolution adopted by the board of\ndirectors or the stockholders of Company, or (ii) constitute or result in a\nDefault under, or require any Consent pursuant to, or result in the creation of\nany Lien on any Asset of Company under, any Contract or Permit of Company, where\nsuch Default or Lien, or any failure to obtain such Consent, is reasonably\nlikely to have, individually or in the aggregate, a Company Material Adverse\nEffect, or, (iii) subject to receipt of the requisite Consents referred to in\nSection 9.1(b), constitute or result in a Default under, or require any Consent\npursuant to, any Law or Order applicable to Company or any of its material\nAssets.\n\n                     (c)       Other than (i) the approval of this Agreement and\nthe Plan of Merger by the requisite votes of the holders of Company Capital\nStock, (ii) the filing of the Plan of Merger, together with the required\nofficers' certificates, with the Secretary of State of the State of California,\nin accordance with the relevant provisions of the California Corporations Code,\nand (iii) such filings, authorizations or approvals as may be set forth in\nSection 5.2(c) of the Company Disclosure Memorandum, no notice to, filing with,\nor Consent of, any Person is necessary for the consummation by Company of the\nMerger and the other transactions contemplated in this Agreement.\n\n                     (d)       Prior to execution of this Agreement, (i) the\nAmended and Restated Shareholders Agreement, dated as of August 16, 1999, among\nCompany and the holders of \n\n\n\n                                      -10-\n   16\n\nCompany Capital Stock named therein (the \"Company Shareholders Agreement\"), has\nbeen amended to provide that the provisions of Section 4.2 of the Shareholders\nAgreement shall not apply to the Merger or any of the other transactions\ncontemplated by this Agreement and that the Shareholders Agreement shall be\nterminated automatically effective as of the Effective Time, (ii) the\nRegistration Rights Agreement, dated as of August 16, 1999, among Company and\nthe holders of Company Capital Stock named therein (the \"Company Registration\nRights Agreement\" ), has been amended to provide that the Company Registration\nRights Agreement shall be terminated automatically effective as of the Effective\nTime, and (iii) the Series A Preferred Stock Purchase Agreement, dated as of\nAugust 16, 1999, among Company and the holders of Company Capital Stock named\ntherein (the \"Purchase Agreement\" ), has been amended to provide that the\nPurchase Agreement shall be terminated automatically effective as of the\nEffective Time.\n\n           5.3       CAPITAL STOCK\n\n                     (a)       The authorized capital stock of Company consists\nof (i) 100,000,000 shares of Company Common Stock, of which 12,191,574 shares\nare issued and outstanding as of the date of this Agreement, and (ii) 20,000,000\nshares of Company Preferred Stock, of which 5,793,925 shares of Company Series A\nStock are issued and outstanding. All of the issued and outstanding shares of\nCompany Capital Stock are duly and validly issued and outstanding and are fully\npaid and nonassessable under the California Corporations Code. None of the\noutstanding shares of Company Capital Stock has been issued in violation of any\npreemptive rights of the current or past stockholders of Company.\n\n                     (b)       Except as set forth in Section 5.3(a) or as\ndisclosed in Section 5.3 of the Company Disclosure Memorandum, there are no\nshares of capital stock or other equity securities of Company outstanding and no\noutstanding Equity Rights relating to the capital stock or equity securities of\nCompany.\n\n                     (c)       The duration, vesting schedule, exercisability\nand other terms of each Company Equity Right assumed by Parent pursuant to\nSection 3.6 immediately after the Effective Time shall be the same as the\ncorresponding terms in effect immediately prior to the Effective Time and the\nvesting of stock options under the Company Stock Plan shall not be accelerated\nas a result of the Merger. Since the date of issuance of the Company Series A\nStock, there have been no events which, under the terms of the Company Series A\nStock, have caused or will cause any reduction in the conversion price or\nincrease in the conversion ratio of the Company Series A Stock.\n\n           5.4       COMPANY SUBSIDIARIES \n\n           Company has no Subsidiaries.\n\n           5.5       FINANCIAL STATEMENTS\n\n           Each of the Company Financial Statements was prepared on a consistent\nbasis throughout the periods involved, and fairly presented in all material\nrespects the financial position of Company as at the respective dates and the\nresults of operations and cash flows for the periods indicated. Copies of all\nCompany Financial Statements are attached to Section 5.5 of the \n\n\n\n                                      -11-\n   17\n\nCompany Disclosure Memorandum, which also sets forth all changes in accounting\nmethods (for financial accounting purposes) at any time made, agreed to,\nrequested or required with respect to Company.\n\n           5.6       ABSENCE OF UNDISCLOSED LIABILITIES \n\n           Company has no Liabilities that are reasonably likely to have,\nindividually or in the aggregate, a Company Material Adverse Effect, except\nLiabilities which are accrued or reserved against in the balance sheets of\nCompany as of December 31, 1998 and September 30, 1999, included in the Company\nFinancial Statements delivered prior to the date of this Agreement. Company has\nnot incurred or paid any Liability since December 31, 1998, except for such\nLiabilities incurred or paid (i) in the ordinary course of business consistent\nwith past business practice and which are not reasonably likely to have,\nindividually or in the aggregate, a Company Material Adverse Effect or (ii) in\nconnection with the transactions contemplated by this Agreement. Company is not\ndirectly or indirectly liable, by guarantee, indemnity, or otherwise, upon or\nwith respect to, or obligated, by discount or repurchase agreement or in any\nother way, to provide funds in respect to, or obligated to guarantee or assume\nany Liability of any Person for any amount in excess of $25,000.\n\n           5.7       ABSENCE OF CERTAIN CHANGES OR EVENTS \n\n           Since November 30, 1999, (i) there have been no events, changes, or\noccurrences (whether or not covered by insurance) which have had, or are\nreasonably likely to have, individually or in the aggregate, a Company Material\nAdverse Effect, and (ii) Company has not taken any action, or failed to take any\naction, prior to the date of this Agreement, which action or failure, if taken\nafter the date of this Agreement, would represent or result in a material breach\nor violation of any of the covenants and agreements of Company provided in\nARTICLE 7.\n\n           5.8       TAX MATTERS \n\n                     (a)       All Tax Returns required to be filed by or on\nbehalf of Company have been timely filed or requests for extensions have been\ntimely filed, granted, and have not expired for periods ended on or before\nDecember 31, 1998, and on or before the date of the most recent fiscal year end\nimmediately preceding the Effective Time, except to the extent that all such\nfailures to file, taken together, are not reasonably likely to have a Company\nMaterial Adverse Effect, and all Tax Returns filed are complete and accurate in\nall material respects to the Knowledge of Company. All Taxes shown on filed Tax\nReturns have been paid. As of the date of this Agreement,there is no audit\nexamination, deficiency, or refund Litigation with respect to any Taxes that is\nreasonably likely to result in a determination that would have, individually or\nin the aggregate, a Company Material Adverse Effect, except as reserved against\nin the Company Financial Statements delivered prior to the date of this\nAgreement. Company's federal income Tax Returns have never been audited by the\nIRS or any other Tax authority. There are no Liens with respect to Taxes upon\nany of the Assets of Company, except for any such Liens which are not reasonably\nlikely to have a Company Material Adverse Effect.\n\n                     (b)       None of the Company Entities has executed an\nextension or waiver of any statute of limitations on the assessment or\ncollection of any Tax due (excluding such statutes that \n\n\n\n                                      -12-\n   18\n\nrelate to years currently under examination by the Internal Revenue Service or\nother applicable taxing authorities) that is currently in effect.\n\n                     (c)       The provision for any Taxes due or to become due\nfor any of the Company Entities for the period or periods through and including\nthe date of the respective Company Financial Statements that has been made and\nis reflected on such Company Financial Statements is sufficient to cover all\nsuch Taxes.\n\n                     (d)       Deferred Taxes of Company have been provided for\nin accordance with GAAP.\n\n                     (e)       Company is not a party to any Tax allocation or\nsharing agreement and Company has never been a member of an affiliated group\nfiling a consolidated federal income Tax Return (other than a group the common\nparent of which was Company) or has any Liability for Taxes of any Person under\nTreasury Regulation Section 1.1502-6 (or any similar provision of state, local\nor foreign Law) as a transferee or successor or by Contract or otherwise.\n\n                     (f)       Company is in compliance with, and its records\ncontain all information and documents (including properly completed IRS Forms\nW-9) necessary to comply with, all applicable information reporting and Tax\nwithholding requirements under federal, state, and local Tax Laws, and such\nrecords identify with specificity all accounts subject to backup withholding\nunder Section 3406 of the Internal Revenue Code, except for such instances of\nnoncompliance and such omissions as are not reasonably likely to have,\nindividually or in the aggregate, a Company Material Adverse Effect.\n\n                     (g)       Company has not made any payments, is not\nobligated to make any payments, and is not a party to any Contract that could\nobligate it to make any payments that would be disallowed as a deduction under\nSection 280G or 162(m) of the Internal Revenue Code.\n\n                     (h)       There has not been an ownership change, as\ndefined in Internal Revenue Code Section 382(g), of the Company Entities that\noccurred during or after any Taxable Period in which the Company Entities\nincurred a net operating loss that carries over to any Taxable Period ending\nafter December 31, 1998.\n\n                     (i)       Company does not have and has not had in any\nforeign country a permanent establishment, as defined in any applicable Tax\ntreaty or convention between the United States and such foreign country.\n\n           5.9       ASSETS \n\n                     (a)       Except as reserved against in the Company\nFinancial Statements delivered prior to the date of this Agreement, Company has\ngood and marketable title, free and clear of all Liens, to all of its Assets,\nexcept for any such Liens or other defects of title which are not reasonably\nlikely to have a Company Material Adverse Effect. All tangible properties used\nin the business of Company are in good condition, reasonable wear and tear\nexcepted, and are usable in the ordinary course of business consistent with\nCompany's past practices.\n\n\n\n                                      -13-\n   19\n\n                     (b)       All items of inventory of the Company Entities\nreflected on the most recent balance sheet included in the Company Financial\nStatements delivered prior to the date of this Agreement and prior to the\nEffective Time consisted and will consist, as applicable, of items of a quality\nand quantity usable and saleable in the ordinary course of business and conform\nto generally accepted standards in the industry in which the Company Entities\nare a part.\n\n                     (c)       The accounts receivable of Company as set forth\non the most recent balance sheet included in the Company Financial Statements\ndelivered prior to the date of this Agreement or arising since the date thereof\nare valid and genuine; have arisen solely out of bona fide sales and deliveries\nof goods, performance of services and other business transactions in the\nordinary course of business consistent with past practice; are not subject to\nvalid defenses, set-offs or counterclaims; and are collectible within 90 days\nafter billing at the full recorded amount thereof less, in the case of accounts\nreceivable appearing on the most recent balance sheet included in the Company\nFinancial Statements delivered prior to the date of this Agreement, the recorded\nallowance for collection losses on such balance sheet.\n\n                     (d)       All Assets which are material to Company's\nbusiness, held under leases or subleases by Company, are held under valid\nContracts enforceable in accordance with their respective terms (except as\nenforceability may be limited by applicable bankruptcy, insolvency,\nreorganization, moratorium, or other Laws affecting the enforcement of\ncreditors' rights generally and except that the availability of the equitable\nremedy of specific performance or injunctive relief is subject to the discretion\nof the court before which any proceedings may be brought), and each such\nContract is in full force and effect.\n\n                     (e)       The Company Entities currently maintain insurance\nsimilar in amounts, scope, and coverage to that maintained by similar\norganizations. None of the Company Entities has received notice from any\ninsurance carrier that (i) any policy of insurance will be canceled or that\ncoverage thereunder will be reduced or eliminated, or (ii) premium costs with\nrespect to such policies of insurance will be substantially increased. There are\npresently no claims for amounts exceeding in any individual case $5,000 pending\nunder such policies of insurance and no notices of claims in excess of such\namounts have been given by Company under such policies.\n\n                     (f)       The Assets of Company include all Assets required\nto operate the business of Company as presently conducted.\n\n           5.10      INTELLECTUAL PROPERTY \n\n                     (a)       Section 5.10(a) of the Company Disclosure\nMemorandum sets forth separately all patents and patent applications (domestic\nand foreign), trademark registrations and trademark applications (domestic and\nforeign) and all copyright registrations (x) of which Company is the owner,\nidentifying the subject matter and any related registration, (y) that Company\nuses pursuant to license or other authorization of any Person, listing the\nsubject matter, any ancillary registration and the source of authorization and\n(z) that Company owns jointly with any other Person. Company has made available\nto Parent correct and complete copies of all such patents, franchises,\nregistrations, applications, licenses, agreements and authorizations (as amended\nto date) and all other written documentation evidencing ownership and\nprosecution (if applicable) of each such item. Section 5.10(a) of the Company\nDisclosure Memorandum also \n\n\n\n                                      -14-\n   20\n\nidentifies all owned or licensed software that is integral to the delivery by\nCompany of the products and services it offers.\n\n                     (b)       Company owns or has the right to use pursuant to\nlicense, sublicense, agreement or permission all Intellectual Property that is\nused or proposed to be used in the business of Company as currently conducted or\nas proposed to be conducted by Company (\"Company Intellectual Property\"). Except\nfor license fees paid in respect of \"shrink-wrap\" software, Company pays no\nroyalty to any Person with respect to any Company Intellectual Property. Each\nitem of Company Intellectual Property owned or used by Company immediately prior\nto the Effective Time will be owned or available for use on identical terms and\nconditions immediately subsequent to the Effective Time.\n\n                     (c)       Section 5.10(c) of the Company Disclosure\nMemorandum also identifies each trade name or unregistered trademark used by\nCompany in connection with its business.\n\n                     (d)       Company has not infringed upon or misappropriated\nany Intellectual Property of any Person, and Company has not received any\nunresolved charge, complaint, claim, demand or notice alleging any such\ninfringement from any Person or misappropriation (including any claim that\nCompany must obtain an independent license from any Person or refrain from using\nany Intellectual Property rights of any Person). To the Knowledge of Company, no\nother Person has infringed upon or misappropriated any Intellectual Property\nrights of Company.\n\n                     (e)       The software owned or purported to be owned by\nCompany was either (i) developed by employees of Company within the scope of\ntheir employment, (ii) developed by independent contractors or consultants who\nhave assigned their rights to Company pursuant to written agreements, or (iii)\notherwise acquired by Company from another Person.\n\n                     (f)       All employees and independent contractors and\nconsultants of Company have executed and delivered to Company, agreements\nregarding the protection of Company's proprietary information and the assignment\nto Company of any Company Intellectual Property arising from services performed\nfor Company by such persons.\n\n                     (g)       Company has obtained or entered into appropriate\nwritten agreements with its employees and with third parties in connection with\nthe disclosure to or use or appropriation by, employees and third parties, of\ntrade secret or proprietary information owned by Company and not otherwise\nprotected by a patent, a patent application, copyright, trademark, or other\nregistration or legal scheme (\"Confidential Information\"). Company has not\nfurnished the source code of any of its software products to any Person,\ndeposited any such source code in escrow or otherwise provided access to such\nsource code to any Person.\n\n                     (h)       No officer, director or employee of Company is\nparty to any Contract with any Person other than Company which requires such\nofficer, director or employee to assign any interest in any Intellectual\nProperty to any Person other than Company or to keep confidential any trade\nsecrets, proprietary data, customer information, or other business information\nof any Person other than Company. No officer, director or employee of Company is\nparty to any Contract which restricts or prohibits such officer, director or\nemployee from engaging in activities competitive with any Person, including\nCompany.\n\n\n\n                                      -15-\n   21\n\n                     (i)       Company has taken reasonable steps with the\nintent of ensuring that its products (including existing products and technology\nand products and technology currently under development) are, when used in\naccordance with associated documentation on a specified platform or platforms,\ncapable of accurately processing, providing, and receiving date data from, into,\nand between the twentieth and twenty-first centuries, including the years 1999\nand 2000, and, making leap year calculations, provided that all other\nnon-Company products (e.g., hardware, software and firmware) used in or in\ncombination with such products, properly exchange data with Company's products.\n\n           5.11      ENVIRONMENTAL MATTERS \n\n                     (a)       To the Knowledge of Company, Company and its\nOperating Properties are, and have been, in compliance with all Environmental\nLaws, except for violations which are not reasonably likely to have,\nindividually or in the aggregate, a Company Material Adverse Effect.\n\n                     (b)       To the Knowledge of Company,there is no\nLitigation pending or threatened before any court, governmental agency, or\nauthority or other forum in which Company or any of its Operating Properties (or\nCompany in respect of such Operating Property) has been or, with respect to\nthreatened Litigation, may be named as a defendant (i) for alleged noncompliance\n(including by any predecessor) with any Environmental Law or (ii) relating to\nthe release, discharge, spillage, or disposal into the environment of any\nHazardous Material, whether or not occurring at, on, under, adjacent to, or\naffecting (or potentially affecting) a site owned, leased, or operated by\nCompany or any of its Operating Properties, except for such Litigation pending\nor threatened that is not reasonably likely to have, individually or in the\naggregate, a Company Material Adverse Effect, nor is there any reasonable basis\nfor any Litigation of a type described in this sentence, except such as is not\nreasonably likely to have, individually or in the aggregate, a Company Material\nAdverse Effect.\n\n                     (c)       During the period of (i) Company's ownership or\noperation of any of their respective current properties, or (ii) Company's\nholding of a security interest in a Operating Property, to the Knowledge of\nCompany, there have been no releases, discharges, spillages, or disposals of\nHazardous Material in, on, under, adjacent to, or affecting (or potentially\naffecting) such properties, except such as are not reasonably likely to have,\nindividually or in the aggregate, a Company Material Adverse Effect. Prior to\nthe period of (i) Company's ownership or operation of any of their respective\ncurrent properties, or (ii) Company's holding of a security interest in a\nOperating Property, to the Knowledge of Company,there were no releases,\ndischarges, spillages, or disposals of Hazardous Material in, on, under, or\naffecting any such property or Operating Property, except such as are not\nreasonably likely to have, individually or in the aggregate, a Company Material\nAdverse Effect.\n\n           5.12      COMPLIANCE WITH LAWS \n\n           Company has in effect all Permits necessary for it to own, lease, or\noperate its material Assets and to carry on its business as now conducted,\nexcept for those Permits the absence of which are not reasonably likely to have,\nindividually or in the aggregate, a Company Material Adverse Effect, and there\nhas occurred no Default under any such Permit, other than Defaults \n\n\n\n                                      -16-\n   22\n\nwhich are not reasonably likely to have, individually or in the aggregate, a\nCompany Material Adverse Effect. Company:\n\n                     (a)       is not in Default under any of the provisions of\n           its Articles of Incorporation or Bylaws (or other governing\n           instruments);\n\n                     (b)       is not in Default under any Laws, Orders, or\n           Permits applicable to its business or employees conducting its\n           business, except for Defaults which are not reasonably likely to\n           have, individually or in the aggregate, a Company Material Adverse\n           Effect; or\n\n                     (c)       since January 1, 1995, has not received any\n           notification or communication from any agency or department of\n           federal, state, or local government or any Regulatory Authority or\n           the staff thereof (i) asserting that Company is not in compliance\n           with any of the Laws or Orders which such governmental authority or\n           Regulatory Authority enforces, where such noncompliance is reasonably\n           likely to have, individually or in the aggregate, a Company Material\n           Adverse Effect, (ii) threatening to revoke any Permits, the\n           revocation of which is reasonably likely to have, individually or in\n           the aggregate, a Company Material Adverse Effect, or (iii) requiring\n           Company to enter into or consent to the issuance of a cease and\n           desist order, formal agreement, directive, commitment, or memorandum\n           of understanding, or to adopt any Board resolution or similar\n           undertaking.\n\n           Copies of all material reports, correspondence, notices and other\ndocuments relating to any inspection, audit, monitoring or other form of review\nor enforcement action by a Regulatory Authority have been made available to\nParent.\n\n           5.13      LABOR MATTERS \n\n           Company is not the subject of any Litigation asserting that it has\ncommitted an unfair labor practice (within the meaning of the National Labor\nRelations Act or comparable state law) or seeking to compel it to bargain with\nany labor organization as to wages or conditions of employment, nor is Company\nparty to any collective bargaining agreement, nor is there any strike or other\nlabor dispute involving Company, pending or threatened, or to the Knowledge of\nCompany, is there any activity involving Company's employees seeking to certify\na collective bargaining unit or engaging in any other organization activity.\nSection 5.13 of the Company Disclosure Memorandum sets forth an accurate and\ncomplete list of all current directors, officers and employees of Company,\nshowing each such person's name, positions, and annual rate of remuneration, and\nbonus arrangements and fringe benefits, not otherwise required to be identified\nin Section 5.14(a) of the Company Disclosure Memorandum, for the current fiscal\nyear.\n\n           5.14      EMPLOYEE BENEFIT PLANS.\n\n                     (a)       Company has disclosed in Section 5.14(a) of the\nCompany Disclosure Memorandum, and has delivered or made available to Parent\nprior to the execution of this Agreement copies in each case of, all pension,\nretirement, profit-sharing, deferred compensation, stock option, employee stock\nownership, severance pay, vacation, bonus, or other incentive plan, all other\nwritten employee programs, arrangements, or agreements, all medical, vision,\ndental, or \n\n\n\n                                      -17-\n   23\n\nother health plans, all life insurance plans, and all other employee benefit\nplans or fringe benefit plans, including \"employee benefit plans\" as that term\nis defined in Section 3(3) of ERISA, currently adopted, maintained by, sponsored\nin whole or in part by, or contributed to by Company or ERISA Affiliate thereof\nfor the benefit of employees, retirees, dependents, spouses, directors,\nindependent contractors, or other beneficiaries and under which employees,\nretirees, dependents, spouses, directors, independent contractors, or other\nbeneficiaries are eligible to participate (collectively, the \"Company Benefit\nPlans\"). Any of the Company Benefit Plans which is an \"employee pension benefit\nplan,\" as that term is defined in Section 3(2) of ERISA, is referred to herein\nas a \"Company ERISA Plan.\" No Company ERISA Plan is also a \"defined benefit\nplan\" (as defined in Section 414(j) of the Internal Revenue Code). No Company\nPension Plan is or has been a multiemployer plan within the meaning of Section\n3(37) of ERISA.\n\n                     (b)       All Company Benefit Plans are in compliance with\nthe applicable terms of ERISA, the Internal Revenue Code, and any other\napplicable Laws the breach or violation of which are reasonably likely to have,\nindividually or in the aggregate, a Company Material Adverse Effect. Each\nCompany ERISA Plan which is intended to be qualified under Section 401(a) of the\nInternal Revenue Code has received a favorable determination letter from the\nInternal Revenue Service, and Company is not aware of any circumstances likely\nto result in revocation of any such favorable determination letter. To the\nKnowledge of Company, Company has not engaged in a transaction with respect to\nany Company Benefit Plan that, assuming the taxable period of such transaction\nexpired as of the date hereof, would subject Company to a Tax imposed by either\nSection 4975 of the Internal Revenue Code or Section 502(i) of ERISA in amounts\nwhich are reasonably likely to have, individually or in the aggregate, a Company\nMaterial Adverse Effect.\n\n                     (c)       There is no \"single-employer plan,\" within the\nmeaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by\nCompany, or any single-employer plan of any entity which is considered one\nemployer with Company under Section 4001 of ERISA or Section 414 of the Internal\nRevenue Code or Section 302 of ERISA (whether or not waived) (an \"ERISA\nAffiliate\"). Company has not provided, and is not required to provide, security\nto any single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29)\nof the Internal Revenue Code.\n\n                     (d)       Company has no Liability for retiree health and\nlife benefits under any of the Company Benefit Plans and there are no\nrestrictions on the rights of Company to amend or terminate any such retiree\nhealth or benefit Plan without incurring any Liability thereunder, which\nLiability is reasonably likely to have a Company Material Adverse Effect.\n\n                     (e)       Company is not a party to any oral or written (i)\nContract with any stockholders, director, executive officer or other key\nemployee of Company (A) the benefits of which are contingent, or the terms of\nwhich are materially altered, upon the occurrence of a transaction involving\nCompany of the nature of any of the transactions contemplated by this Agreement,\n(B) providing any term of employment or compensation guarantee or (C) providing\nseverance benefits or other benefits after the termination of employment of such\ndirector, executive officer or key employee; (ii) Contract under which any\nPerson may receive payments from Company that may be subject to the tax imposed\nby Section 4999 of the Internal Revenue Code or included in the determination of\nsuch Person's \"parachute payment\" under Section 280G \n\n\n\n                                      -18-\n   24\n\nof the Internal Revenue Code; and (iii) Contract binding Company, including any\nstock option plan, stock appreciation right plan, restricted stock plan, stock\npurchase plan or severance benefit plan, any of the benefits of which will be\nincreased, or the vesting of the benefits of which will be accelerated, by the\noccurrence of any of the transactions contemplated by this Agreement or the\nvalue of any of the benefits of which will be calculated on the basis of any of\nthe transactions contemplated by this Agreement.\n\n                     (f)       The actuarial present values of all accrued\ndeferred compensation entitlements (including entitlements under any executive\ncompensation, supplemental retirement, or employment agreement) of employees and\nformer employees of Company and their respective beneficiaries, other than\nentitlements accrued pursuant to funded retirement plans subject to the\nprovisions of Section 412 of the Internal Revenue Code or Section 302 of ERISA,\nhave been fully reflected on the most recent Company Financial Statements\ndelivered prior to execution of this Agreement to the extent required by and in\naccordance with GAAP.\n\n                     (g)       Each Company Benefit Plan is amendable and\nterminable unilaterally by Company at any time without Liability to Company as a\nresult thereof and no Company Benefit Plan, plan documentation or agreement,\nsummary plan description or other written communication distributed generally to\nemployees by its terms prohibits Company from amending or terminating any such\nCompany Benefit Plan.\n\n           5.15      MATERIAL CONTRACTS \n\n                     (a)       Section 5.15(a) of the Company Disclosure\nMemorandum identifies each of the following Contracts to which Company, or any\nof its Assets, businesses, or operations, is a party, or is bound or affected\nby, or receives benefits under: (i) any employment, severance, termination,\nconsulting, or retirement Contract providing for aggregate payments to any\nPerson in any calendar year in excess of $50,000, (ii) any Contract for the\nborrowing of money (other than Contracts evidencing trade payables arising in\nthe ordinary course of business), any currency exchange, commodities or other\nhedging arrangement, or any leasing transaction of the type required to be\ncapitalized in accordance with GAAP, or for the guarantee, support,\nindemnification, assumption or endorsement of, or any similar commitment with\nrespect to, the Liabilities of any other Person, (iii) any Contract which\nprohibits or restricts Company from engaging in any business activities in any\ngeographic area, line of business or otherwise in competition with any other\nPerson other than Company, (iv) any Contract with any Person with whom Company\ndoes not deal at arm's length within the meaning of the Internal Revenue Code,\n(v) any Contract involving Intellectual Property (other than Contracts entered\ninto in the ordinary course with customers and \"shrink-wrap\" software licenses),\n(vi) any Contract relating to the provision of data processing, network\ncommunication, or other technical services to or by Company (other than\nContracts entered into in the ordinary course with customers), (vii) any\nContract relating to the purchase or sale of any goods or services (other than\nContracts entered into in the ordinary course of business and involving payments\nunder any individual Contract not in excess of $100,000), and (ix) any other\nContract that expires or may be renewed at the option of any Person other than\nCompany so as to expire more than one year after the date of this Agreement\n(together with all Contracts referred to in Sections 5.9 and 5.14(a), the\n\"Company Contracts\").\n\n\n\n                                      -19-\n   25\n\n                     (b)       With respect to each Company Contract: (i) the\nContract is in full force and effect; (ii) Company is not in Default thereunder,\nother than Defaults which are not reasonably likely to have, individually or in\nthe aggregate, a Company Material Adverse Effect; (iii) Company has not\nrepudiated or waived any material provision of any such Contract; and (iv) no\nother party to any such Contract is, to the Knowledge of Company, in Default in\nany respect, other than Defaults which are not reasonably likely to have,\nindividually or in the aggregate, a Company Material Adverse Effect, or has\nrepudiated or waived any material provision thereunder. All of the indebtedness\nof Company for money borrowed is prepayable at any time by Company without\npenalty or premium.\n\n                     (c)       No customer which individually accounted for more\nthan 5% of Company's consolidated gross revenues during the 12-month period\npreceding the date of this Agreement, and no supplier of Company has canceled or\notherwise terminated, or made any written threat to Company to cancel or\notherwise terminate, its relationship with Company, or has decreased materially\nits services or supplies to Company in the case of any such supplier, or its\nusage of the services or products of Company in the case of such customer, and\nto the Knowledge of Company, no such supplier or customer intends to cancel or\notherwise terminate its relationship with Company or to decrease materially its\nservices or supplies to Company or its usage of the services or products of\nCompany, as the case may be.\n\n           5.16      LEGAL PROCEEDINGS \n\n           There is no Litigation instituted or pending, or, to the Knowledge of\nCompany, threatened (or unasserted but considered probable of assertion and\nwhich if asserted would have at least a reasonable probability of an unfavorable\noutcome) against Company, or against any director, employee or employee benefit\nplan of Company, or against any Asset, interest, or right of any of them, that\nis reasonably likely to have, individually or in the aggregate, a Company\nMaterial Adverse Effect, nor are there any Orders of any Regulatory Authorities,\nother governmental authorities, or arbitrators outstanding against Company, that\nare reasonably likely to have, individually or in the aggregate, a Company\nMaterial Adverse Effect. Company is not involved in or, to the Knowledge of\nCompany, reasonably anticipates any dispute with any of its current or former\nemployees, agents, brokers, distributors, vendors, customers, business\nconsultants, representatives or independent contractors (or any current or\nformer employees of any of the foregoing Persons). Section 5.16 of the Company\nDisclosure Memorandum contains a summary of all Litigation as of the date of\nthis Agreement to which Company is a party and which names Company as a\ndefendant or cross-defendant or for which Company has any potential Liability.\n\n           5.17      REPORTS \n\n           Since the date of organization, Company has timely filed all reports\nand statements, together with any amendments required to be made with respect\nthereto, that it was required to file with Regulatory Authorities (except, in\nthe case of state securities authorities, failures to file which are not\nreasonably likely to have, individually or in the aggregate, a Company Material\nAdverse Effect). As of their respective dates, each of such reports and\ndocuments, including the financial statements, exhibits, and schedules thereto,\ncomplied in all material respects with all applicable Laws. As of its respective\ndate, each such report and document did not, in all material \n\n\n\n                                      -20-\n   26\n\nrespects, contain any untrue statement of a material fact or omit to state a\nmaterial fact required to be stated therein or necessary to make the statements\nmade therein, in light of the circumstances under which they were made, not\nmisleading.\n\n           5.18      STATEMENTS TRUE AND CORRECT \n\n           No statement, certificate, instrument, or other writing furnished or\nto be furnished by Company to Parent pursuant to this Agreement or any other\ndocument, agreement, or instrument referred to herein contains or will contain\nany untrue statement of material fact or will omit to state a material fact\nnecessary to make the statements therein, in light of the circumstances under\nwhich they were made, not misleading. All copies of Contracts delivered to\nParent and its Representatives by or on behalf of Company that are unsigned by\none or more parties thereto (i) have been signed by all parties thereto in the\nform supplied to Parent and (ii) are true and correct copies of such Contracts\nand include all amendments, supplements and modifications thereto or waivers\ncurrently in effect thereunder. All documents that Company or any Affiliate\nthereof is responsible for filing with any Regulatory Authority in connection\nwith the transactions contemplated hereby will comply as to form in all material\nrespects with the provisions of applicable Law.\n\n           5.19      TAX AND REGULATORY MATTERS \n\n           Neither Company nor any Affiliate thereof has taken or agreed to take\nany action or has any Knowledge of any fact or circumstance that is reasonably\nlikely to (i) prevent the Merger from qualifying as a reorganization within the\nmeaning of Section 368(a) of the Internal Revenue Code, or (ii) materially\nimpede or delay receipt of any Consents of Regulatory Authorities referred to in\nSection 9.1(b) or result in the imposition of a condition or restriction of the\ntype referred to in the last sentence of such Section 9.1(b).\n\n           5.20      STATE TAKEOVER LAWS \n\n           Company has taken all necessary action to exempt the transactions\ncontemplated by this Agreement from, or if necessary to challenge the validity\nor applicability of, any applicable \"moratorium,\" \"fair price,\" \"business\ncombination,\" \"control share,\" or other anti-takeover Laws (collectively,\n\"Takeover Laws\").\n\n           5.21      CHARTER PROVISIONS \n\n           Company has taken all action so that the entering into of this\nAgreement and the consummation of the Merger and the other transactions\ncontemplated by this Agreement do not and will not result in the grant of any\nrights to any Person under the Articles of Incorporation, Bylaws or other\ngoverning instruments of Company or restrict or impair the ability of Parent or\nany of its Subsidiaries to vote, or otherwise to exercise the rights of a\nstockholder with respect to, shares of Company that may be directly or\nindirectly acquired or controlled by them.\n\n           5.22      INVESTMENT INTENTION \n\n           To the Knowledge of Company, each holder of Company Capital Stock is\nacquiring the shares of Parent Common Stock to be issued pursuant to this\nAgreement for investment only, for \n\n\n\n                                      -21-\n   27\n\nsuch stockholder's own account and not as a nominee or agent, and not with the\nview to, or for resale in connection with, any distribution thereof.\n\n           5.23      BOARD RECOMMENDATION \n\n           The Board of Directors of Company, at a meeting duly called and held,\nhas by unanimous vote of those directors present (who constituted all but one of\nthe directors then in office) (i) determined that this Agreement, the Plan of\nMerger and the transactions contemplated hereby and thereby, including the\nMerger, and the Voting Agreements and the transactions contemplated thereby,\ntaken together, are fair to and in the best interests of the holders of Company\nCapital Stock and (ii) resolved to recommend that the holders of the shares of\nCompany Capital Stock approve this Agreement and the Plan of Merger.\n\n\n                                    ARTICLE 6\n                    REPRESENTATIONS AND WARRANTIES OF PARENT\n                    ----------------------------------------\n\n           Parent hereby represents and warrants to Company as follows, except\nas disclosed in the Parent Disclosure Memorandum:\n\n           6.1       ORGANIZATION, STANDING, AND POWER \n\n           Parent is a corporation duly organized, validly existing, and in good\nstanding under the Laws of the State of Delaware, and has the corporate power\nand authority to carry on its business as now conducted and to own, lease and\noperate its material Assets. Parent is duly qualified or licensed to transact\nbusiness as a foreign corporation in good standing in the States of the United\nStates and foreign jurisdictions where the character of its Assets or the nature\nor conduct of its business requires it to be so qualified or licensed, except\nfor such jurisdictions in which the failure to be so qualified or licensed is\nnot reasonably likely to have, individually or in the aggregate, a Parent\nMaterial Adverse Effect.\n\n           6.2       AUTHORITY; NO BREACH BY AGREEMENT.\n\n                     (a)       Parent has the corporate power and authority\nnecessary to execute, deliver and perform its obligations under this Agreement\nand to consummate the transactions contemplated hereby. The execution, delivery\nand performance of this Agreement and the consummation of the transactions\ncontemplated herein, including the Merger, have been duly and validly authorized\nby all necessary corporate action in respect thereof on the part of Parent. This\nAgreement represents a legal, valid, and binding obligation of Parent,\nenforceable against Parent in accordance with its terms (except in all cases as\nsuch enforceability may be limited by applicable bankruptcy, insolvency,\nreorganization, receivership, conservatorship, moratorium, or similar Laws\naffecting the enforcement of creditors' rights generally and except that the\navailability of the equitable remedy of specific performance or injunctive\nrelief is subject to the discretion of the court before which any proceeding may\nbe brought).\n\n                     (b)       Neither the execution and delivery of this\nAgreement by Parent, nor the consummation by Parent of the transactions\ncontemplated hereby, nor compliance by Parent with any of the provisions hereof,\nwill (i) conflict with or result in a breach of any provision of \n\n\n\n                                      -22-\n   28\n\nParent's Certificate of Incorporation or Bylaws, or (ii) constitute or result in\na Default under, or require any Consent pursuant to, or result in the creation\nof any Lien on any Asset of any Parent Entity under, any Contract or Permit of\nany Parent Entity, where such Default or Lien, or any failure to obtain such\nConsent, is reasonably likely to have, individually or in the aggregate, a\nParent Material Adverse Effect, or, (iii) subject to receipt of the requisite\nConsents referred to in Section 9.1(b), constitute or result in a Default under,\nor require any Consent pursuant to, any Law or Order applicable to any Parent\nEntity or any of their respective material Assets.\n\n                     (c)       Other than such Consents, filings, or\nnotifications which, if not obtained or made, are not reasonably likely to have,\nindividually or in the aggregate, a Parent Material Adverse Effect, no notice\nto, filing with, or Consent of, any public body or authority is necessary for\nthe consummation by Parent of the Merger and the other transactions contemplated\nin this Agreement.\n\n           6.3       CAPITAL STOCK \n\n           The authorized capital stock of Parent consists of (i) 300,000,000\nshares of Parent Common Stock, of which 92,756,594 shares are issued and\noutstanding as of the date of this Agreement, and (ii) 5,000,000 shares of\nParent Preferred Stock, none of which are issued and outstanding. All of the\nissued and outstanding shares of Parent Capital Stock are, and all of the shares\nof Parent Common Stock to be issued in exchange for shares of Company Capital\nStock upon consummation of the Merger, when issued in accordance with the terms\nof this Agreement, will be, duly and validly issued and outstanding and fully\npaid and nonassessable under the DGCL. None of the outstanding shares of Parent\nCapital Stock has been, and none of the shares of Parent Common Stock to be\nissued in exchange for shares of Company Capital Stock upon consummation of the\nMerger will be, issued in violation of any preemptive rights of the current or\npast stockholders of Parent.\n\n           6.4       SEC FILINGS; FINANCIAL STATEMENTS.\n\n                     (a)       Parent has timely filed and made available to\nCompany all SEC Documents required to be filed by Parent (the \"Parent SEC\nReports\"). The Parent SEC Reports (i) at the time filed, complied in all\nmaterial respects with the applicable requirements of the Securities Laws and\nother applicable Laws and (ii) did not, at the time they were filed (or, if\namended or superseded by a filing prior to the date of this Agreement, then on\nthe date of such filing) contain any untrue statement of a material fact or omit\nto state a material fact required to be stated in such Parent SEC Reports or\nnecessary in order to make the statements in such Parent SEC Reports, in light\nof the circumstances under which they were made, not misleading.\n\n                     (b)       Each of the Parent Financial Statements\n(including, in each case, any related notes) contained in the Parent SEC\nReports, including any Parent SEC Reports filed after the date of this Agreement\nuntil the Effective Time, complied as to form in all material respects with the\napplicable published rules and regulations of the SEC with respect thereto, was\nprepared in accordance with GAAP applied on a consistent basis throughout the\nperiods involved (except as may be indicated in the notes to such financial\nstatements or, in the case of unaudited interim statements, as permitted by Form\n10-Q of the SEC), and fairly presented in all material respects the consolidated\nfinancial position of Parent and its Subsidiaries as at the respective dates and\nthe \n\n\n\n                                      -23-\n   29\n\nconsolidated results of operations and cash flows for the periods indicated,\nexcept that the unaudited interim financial statements were or are subject to\nnormal and recurring year-end adjustments which were not or are not expected to\nbe material in amount or effect.\n\n           6.5       ABSENCE OF CERTAIN CHANGES OR EVENTS \n\n           Since September 30, 1999, except as disclosed in the Parent SEC\nReports filed prior to the date of this Agreement, there have been no events,\nchanges or occurrences (whether or not covered by insurance) which have had, or\nare reasonably likely to have, individually or in the aggregate, a Parent\nMaterial Adverse Effect.\n\n           6.6       TAX MATTERS.\n\n                     (a)       All Tax Returns required to be filed by or on\nbehalf of any of the Parent Entities have been timely filed or requests for\nextensions have been timely filed, granted, and have not expired for periods\nended on or before December 31, 1998, and on or before the date of the most\nrecent fiscal year end immediately preceding the Effective Time, except to the\nextent that all such failures to file, taken together, are not reasonably likely\nto have a Parent Material Adverse Effect, and all Tax Returns filed are complete\nand accurate in all material respects to the Knowledge of Parent. All Taxes\nshown on filed Tax Returns have been paid. As of the date of this\nAgreement,there is no audit examination, deficiency, or refund Litigation with\nrespect to any Taxes that is reasonably likely to result in a determination that\nwould have, individually or in the aggregate, a Parent Material Adverse Effect,\nexcept as reserved against in the Parent Financial Statements delivered prior to\nthe date of this Agreement. All Taxes and other Liabilities due with respect to\ncompleted and settled examinations or concluded Litigation have been paid.\n\n                     (b)       None of the Parent Entities has executed an\nextension or waiver of any statute of limitations on the assessment or\ncollection of any Tax due (excluding such statutes that relate to years\ncurrently under examination by the Internal Revenue Service or other applicable\ntaxing authorities) that is currently in effect.\n\n                     (c)       The provision for any Taxes due or to become due\nfor any of the Parent Entities for the period or periods through and including\nthe date of the respective Parent Financial Statements that has been made and is\nreflected on such Parent Financial Statements is sufficient to cover all such\nTaxes.\n\n                     (d)       Deferred Taxes of the Parent Entities have been\nprovided for in accordance with GAAP.\n\n                     (e)       None of the Parent Entities is a party to any Tax\nallocation or sharing agreement and none of the Parent Entities has been a\nmember of an affiliated group filing a consolidated federal income Tax Return\n(other than a group the common parent of which was Parent) has any Liability for\nTaxes of any Person (other than Parent and its Subsidiaries) under Treasury\nRegulation Section 1.1502-6 (or any similar provision of state, local or foreign\nLaw) as a transferee or successor or by Contract or otherwise.\n\n\n                                      -24-\n   30\n\n           6.7       COMPLIANCE WITH LAWS \n\n           Each Parent Entity has in effect all Permits necessary for it to own,\nlease or operate its material Assets and to carry on its business as now\nconducted, except for those Permits the absence of which are not reasonably\nlikely to have, individually or in the aggregate, a Parent Material Adverse\nEffect, and there has occurred no Default under any such Permit, other than\nDefaults which are not reasonably likely to have, individually or in the\naggregate, a Parent Material Adverse Effect. None of the Parent Entities:\n\n                     (a)       is in Default under its Certificate of\n           Incorporation or Bylaws (or other governing instruments); or\n\n                     (b)       is in Default under any Laws, Orders or Permits\n           applicable to its business or employees conducting its business,\n           except for Defaults which are not reasonably likely to have,\n           individually or in the aggregate, a Parent Material Adverse Effect;\n           or\n\n                     (c)       since January 1, 1995, has received any\n           notification or communication from any agency or department of\n           federal, state, or local government or any Regulatory Authority or\n           the staff thereof (i) asserting that any Parent Entity is not in\n           compliance with any of the Laws or Orders which such governmental\n           authority or Regulatory Authority enforces, where such noncompliance\n           is reasonably likely to have, individually or in the aggregate, a\n           Parent Material Adverse Effect, (ii) threatening to revoke any\n           Permits, the revocation of which is reasonably likely to have,\n           individually or in the aggregate, a Parent Material Adverse Effect,\n           or (iii) requiring any Parent Entity to enter into or consent to the\n           issuance of a cease and desist order, formal agreement, directive,\n           commitment or memorandum of understanding, or to adopt any Board\n           resolution or similar undertaking, which restricts materially the\n           conduct of its business.\n\n           6.8       LEGAL PROCEEDINGS \n\n           There is no Litigation instituted or pending, or, to the Knowledge of\nParent, threatened (or unasserted but considered probable of assertion and which\nif asserted would have at least a reasonable probability of an unfavorable\noutcome) against any Parent Entity, or against any director, employee or\nemployee benefit plan of any Parent Entity, or against any Asset, interest, or\nright of any of them, that is reasonably likely to have, individually or in the\naggregate, a Parent Material Adverse Effect, nor are there any Orders of any\nRegulatory Authorities, other governmental authorities, or arbitrators\noutstanding against any Parent Entity, that are reasonably likely to have,\nindividually or in the aggregate, a Parent Material Adverse Effect.\n\n           6.9       REPORTS \n\n           Since the date of organization, each Parent Entity has filed all\nreports and statements, together with any amendments required to be made with\nrespect thereto, that it was required to file with Regulatory Authorities\n(except, in the case of state securities authorities, failures to file which are\nnot reasonably likely to have, individually or in the aggregate, a Parent\nMaterial Adverse Effect). As of their respective dates, each of such reports and\ndocuments, including the financial statements, exhibits, and schedules thereto,\ncomplied in all material respects with all applicable Laws. As of its respective\ndate, each such report and document did not, in all material \n\n\n\n                                      -25-\n   31\n\n           respects, contain any untrue statement of a material fact or omit to\n           state a material fact required to be stated therein or necessary to\n           make the statements made therein, in light of the circumstances under\n           which they were made, not misleading.\n\n           6.10      STATEMENTS TRUE AND CORRECT \n\n           No statement, certificate, instrument or other writing furnished or\nto be furnished by any Parent Entity or any Affiliate thereof to Company\npursuant to this Agreement contains or will contain any untrue statement of\nmaterial fact or will omit to state a material fact necessary to make the\nstatements therein, in light of the circumstances under which they were made,\nnot misleading. All documents that any Parent Entity or any Affiliate thereof is\nresponsible for filing with any Regulatory Authority in connection with the\ntransactions contemplated hereby will comply as to form in all material respects\nwith the provisions of applicable Law.\n\n           6.11      AUTHORITY OF SUB \n\n           Sub is a corporation duly organized, validly existing and in good\nstanding under the Laws of the State of California as a wholly owned Subsidiary\nof Parent. The authorized capital stock of Sub shall consist of 1,000 shares of\nSub Common Stock, all of which is validly issued and outstanding, fully paid and\nnonassessable and is owned by Parent free and clear of any Lien. Sub has the\ncorporate power and authority necessary to execute, deliver and perform its\nobligations under this Agreement and to consummate the transactions contemplated\nhereby. The execution, delivery and performance of this Agreement and the\nconsummation of the transactions contemplated herein, including the Merger, have\nbeen duly and validly authorized by all necessary corporate action in respect\nthereof on the part of Sub. This Agreement represents a legal, valid, and\nbinding obligation of Sub, enforceable against Sub in accordance with its terms\n(except in all cases as such enforceability may be limited by applicable\nbankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting\nthe enforcement of creditors' rights generally and except that the availability\nof the equitable remedy of specific performance or injunctive relief is subject\nto the discretion of the court before which any proceeding may be brought).\nParent, as the sole stockholder of Sub, has voted prior to the Effective Time\nthe shares of Sub Common Stock in favor of adoption approval of this Agreement,\nas and to the extent required by applicable Law.\n\n           6.12      ACCOUNTING, TAX AND REGULATORY MATTERS \n\n           No Parent Entity or any Affiliate thereof has taken or agreed to take\nany action or has any Knowledge of any fact or circumstance that is reasonably\nlikely to (i) prevent the Merger from qualifying as a reorganization within the\nmeaning of Section 368(a) of the Internal Revenue Code, or (ii) materially\nimpede or delay receipt of any Consents of Regulatory Authorities referred to in\nSection 9.1(b) or result in the imposition of a condition or restriction of the\ntype referred to in the last sentence of such Section 9.1(b).\n\n\n\n                                      -26-\n   32\n\n                                    ARTICLE 7\n                    CONDUCT OF BUSINESS PENDING CONSUMMATION\n                    ----------------------------------------\n\n           7.1       AFFIRMATIVE COVENANTS OF COMPANY \n\n           From the date of this Agreement until the earlier of the Effective\nTime or the termination of this Agreement, unless the prior written consent of\nParent shall have been obtained, and except as otherwise expressly contemplated\nherein, Company shall and shall cause each of its Subsidiaries to (a) operate\nits business only in the usual, regular, and ordinary course, (b) preserve\nintact its business organization and Assets and maintain its rights and\nfranchises, and (c) take no action which would (i) materially adversely affect\nthe ability of any Party to obtain any Consents required for the transactions\ncontemplated hereby without imposition of a condition or restriction of the type\nreferred to in the last sentences of Section 9.1(b) or 9.1(c), or (ii)\nmaterially adversely affect the ability of any Party to perform its covenants\nand agreements under this Agreement.\n\n           7.2       NEGATIVE COVENANTS OF COMPANY \n\n           From the date of this Agreement until the earlier of the Effective\nTime or the termination of this Agreement, unless the prior written consent of\nParent shall have been obtained, and except as otherwise expressly contemplated\nherein, Company covenants and agrees that it will not do or agree or commit to\ndo any of the following:\n\n                     (a)       amend the Articles of Incorporation, Bylaws or\n           other governing instruments of Company, or\n\n                     (b)       except for short-term borrowings with a maturity\n           of one year or less in the ordinary course of business consistent\n           with past practices, incur any indebtedness for borrowed money,\n           assume, guarantee, endorse or otherwise as an accommodation become\n           responsible for the obligations of any other Person, or impose, or\n           suffer the imposition, on any Asset of Company of any Lien or permit\n           any such Lien to exist (other than in connection with Liens in effect\n           as of the date hereof that are disclosed in the Company Disclosure\n           Memorandum); or\n\n                     (c)       repurchase, redeem, or otherwise acquire or\n           exchange (other than exchanges in the ordinary course under employee\n           benefit plans), directly or indirectly, any shares, or any securities\n           convertible into any shares, of the capital stock of Company, or\n           declare or pay any dividend or make any other distribution in respect\n           of Company Capital Stock; or\n\n                     (d)       except for this Agreement, or pursuant to the\n           exercise of Company Equity Rights outstanding as of the date hereof\n           and pursuant to the terms thereof in existence on the date hereof, or\n           as disclosed in Section 7.2(d) of the Company Disclosure Memorandum,\n           issue, sell, pledge, encumber, authorize the issuance of, enter into\n           any Contract to issue, sell, pledge, encumber, or authorize the\n           issuance of, or otherwise permit to become outstanding, any\n           additional shares of Company Capital Stock or any other Equity Right;\n           or\n\n\n\n                                      -27-\n   33\n\n                     (e)       adjust, split, combine or reclassify any capital\n           stock of Company or issue or authorize the issuance of any other\n           securities in respect of or in substitution for shares of Company\n           Capital Stock, or sell, lease, mortgage or otherwise dispose of or\n           otherwise encumber any Asset having a book value in excess of $10,000\n           other than in the ordinary course of business for reasonable and\n           adequate consideration, or transfer or license to any Person other\n           than Company or otherwise extend, amend or modify in any material\n           respect any rights to material Intellectual Property other than in\n           the ordinary course of business (including changing any domain names\n           or failing to renew existing domain name registrations on a timely\n           basis), or enter into grants to future Intellectual Property rights,\n           other than as may be required by applicable Law; or\n\n                     (f)       purchase any securities or make any material\n           investment, either by purchase of stock or securities, contributions\n           to capital, Asset transfers, or purchase of any Assets, in any Person\n           other than a wholly owned Company Subsidiary, or otherwise acquire\n           direct or indirect control over any Person; or\n\n                     (g)       grant any increase in compensation or benefits to\n           the employees or officers of Company, except in accordance with past\n           practice disclosed in Section 7.2(g) of the Company Disclosure\n           Memorandum or as required by Law; pay any severance or termination\n           pay or any bonus other than pursuant to written policies or written\n           Contracts in effect on the date of this Agreement and disclosed in\n           Section 7.2(g) of the Company Disclosure Memorandum; enter into or\n           amend any severance agreements with officers of Company; grant any\n           increase in fees or other increases in compensation or other benefits\n           to directors of Company except in accordance with past practice\n           disclosed in Section 7.2(g) of the Company Disclosure Memorandum; or\n           waive any stock repurchase rights, accelerate, amend or change the\n           period of exercisability of any Company Equity Rights or restricted\n           stock, or reprice Company Equity Rights granted under any Company\n           Stock Plan or authorize cash payments in exchange for any Company\n           Equity Rights; or\n\n                     (h)       enter into or amend any employment Contract\n           between Company and any Person (except for any such amendment as is\n           required by Law) that Company does not have the unconditional right\n           to terminate without Liability (other than Liability for services\n           already rendered), at any time on or after the Effective Time; or\n\n                     (i)       adopt any new employee benefit plan or terminate\n           or withdraw from, or make any material change in or to, any existing\n           employee benefit plans of Company other than any such change that is\n           required by Law or that, in the opinion of counsel, is necessary or\n           advisable to maintain the tax qualified status of any such plan, or\n           make any distributions from such employee benefit plans, except as\n           required by Law, the terms of such plans or consistent with past\n           practice; or\n\n                     (j)       make any significant change in any Tax or\n           accounting methods or systems of internal accounting controls, except\n           as may be appropriate to conform to changes in Tax Laws or GAAP as\n           concurred to by Parent's independent auditors; or\n\n\n\n                                      -28-\n   34\n\n                     (k)       commence any Litigation other than in accordance\n           with past practice, or settle any Litigation involving any Liability\n           of Company for money damages or restrictions upon the operations of\n           Company; or\n\n                     (l)       except in the ordinary course of business, enter\n           into, modify, amend or terminate any material Contract or waive,\n           release, compromise or assign any material rights or claims.\n\n           7.3       ADVERSE CHANGES IN CONDITION \n\n           Each Party agrees to give written notice promptly to the other Party\nupon becoming aware of the occurrence or impending occurrence of any event or\ncircumstance relating to it or any of its Subsidiaries which (i) is reasonably\nlikely to have, individually or in the aggregate, a Company Material Adverse\nEffect or a Parent Material Adverse Effect, as applicable, or (ii) would cause\nor constitute a material breach of any of its representations, warranties, or\ncovenants contained herein, and to use its reasonable efforts to prevent or\npromptly to remedy the same.\n\n\n                                    ARTICLE 8\n                              ADDITIONAL AGREEMENTS\n                              ---------------------\n\n           8.1       STOCKHOLDER APPROVAL \n\n           Company shall solicit written consents in lieu of a Stockholders'\nMeeting as soon as reasonably practicable for the purpose of obtaining approval\nof this Agreement and such other related matters as it deems appropriate. In\nconnection with such solicitation, (i) the Board of Directors of Company shall\nrecommend to its stockholders the approval of the matters submitted for\napproval, (ii) the Board of Directors and officers of Company shall use their\nreasonable best efforts to obtain such stockholders' approval, and (iii) Company\nshall use its reasonable best efforts to deliver or cause to be delivered to\nParent, concurrently with or as soon as practicable after the execution of this\nAgreement (and in each case prior to the Effective Time), from each holder of\nCompany Capital Stock an executed Stockholder Representation Agreement. Parent\nand Company shall make all necessary filings with respect to the Merger under\nthe Securities Laws.\n\n           8.2       EXCHANGE LISTING \n\n           Parent shall use its reasonable efforts to list, prior to the\nEffective Time, on the Nasdaq National Market the shares of Parent Common Stock\nto be issued to the holders of Company Capital Stock pursuant to the Merger, and\nParent shall give all notices and make all filings with the Nasdaq National\nMarket required in connection with the transactions contemplated herein.\n\n           8.3       REGULATORY FILINGS; REQUIRED CONSENTS\n\n           The Parties hereto shall cooperate with each other and use their\nreasonable efforts to promptly prepare and file all necessary documentation, to\neffect all applications, notices, petitions and filings, and to obtain as\npromptly as practicable all Consents of all Regulatory \n\n\n\n                                      -29-\n   35\n\nAuthorities and other Persons which are necessary or advisable to consummate the\ntransactions contemplated by this Agreement (including the Merger). Each Party\nshall have the right to review in advance, and to the extent practicable each\nwill consult the other on, in each case subject to applicable Laws relating to\nthe exchange of information, all the information relating to the other Party\nwhich appears in any filing made with, or written materials submitted to, any\nRegulatory Authority or other Person in connection with the transactions\ncontemplated by this Agreement and will promptly notify each other of any\ncommunication with any Regulatory Authority or other Person and provide the\nother Party with an opportunity to participate in any meetings with a Regulatory\nAuthority or other Person relating thereto; provided, that nothing contained\nherein shall be deemed to provide either Party with a right to review any\ninformation provided to any Regulatory Authority on a confidential basis in\nconnection with the transactions contemplated hereby. In exercising the\nforegoing right, each of the Parties hereto shall act reasonably and as promptly\nas practicable. The Parties agree that they will consult with each other with\nrespect to the obtaining of all Consents of all Regulatory Authorities and other\nPersons necessary or advisable to consummate the transactions contemplated by\nthis Agreement and each Party will keep the other apprised of the status of\nmatters relating to contemplation of the transactions contemplated herein. To\nthe extent permitted by Law, the Parties shall deliver to each other copies of\nall filings, correspondence and orders to and from all Regulatory Authorities in\nconnection with the transactions contemplated hereby. Each Party also shall\npromptly advise the other upon receiving any communication from any Regulatory\nAuthority whose Consent is required for consummation of the transactions\ncontemplated by this Agreement which causes such Party to believe that there is\na reasonable likelihood that any requisite Consent will not be obtained or that\nthe receipt of any such Consent will be materially delayed.\n\n`          8.4       FILINGS WITH STATE OFFICES \n\n           Upon the terms and subject to the conditions of this Agreement,\nCompany and Sub shall file with the Secretary of State of the State of\nCalifornia in connection with the Closing the Plan of Merger, together with the\nrequired officers' certificates, in accordance with the relevant provisions of\nthe California Corporations Code.\n\n           8.5       AGREEMENT AS TO EFFORTS TO CONSUMMATE \n\n           Subject to the terms and conditions of this Agreement, each Party\nagrees to use, and to cause its Subsidiaries to use, its reasonable efforts to\ntake, or cause to be taken, all actions, and to do, or cause to be done, all\nthings necessary, proper, or advisable under applicable Laws to consummate and\nmake effective, as soon as reasonably practicable after the date of this\nAgreement, the transactions contemplated by this Agreement, including using its\nreasonable efforts to lift or rescind any Order adversely affecting its ability\nto consummate the transactions contemplated herein and to cause to be satisfied\nthe conditions referred to in ARTICLE 9; provided, that nothing herein shall\npreclude either Party from exercising its rights under this Agreement. Each\nParty shall use its reasonable efforts to obtain all Consents necessary or\ndesirable for the consummation of the transactions contemplated by this\nAgreement.\n\n\n\n                                      -30-\n   36\n\n           8.6       INVESTIGATION AND CONFIDENTIALITY.\n\n                     (a)       Prior to the Effective Time and subject to\napplicable Laws relating to the exchange of information, each Party shall keep\nthe other Party advised of all material developments relevant to its business\nand to consummation of the Merger and shall permit the other Party to make or\ncause to be made such investigation of its business and properties and of its\nfinancial and legal conditions as the other Party reasonably requests, provided\nthat such investigation shall be reasonably related to the transactions\ncontemplated hereby and shall not interfere unnecessarily with normal\noperations. No investigation by a Party shall affect the representations and\nwarranties of the other Party.\n\n                     (b)       In addition to the Parties' respective\nobligations under the Confidentiality Agreement, which is hereby reaffirmed and\nadopted, and incorporated by reference herein, each Party shall, and shall cause\nits advisers and agents to, maintain the confidentiality of all confidential\ninformation furnished to it by the other Party concerning its and its\nSubsidiaries' businesses, operations, and financial positions and shall not use\nsuch information for any purpose except in furtherance of the transactions\ncontemplated by this Agreement. If this Agreement is terminated prior to the\nEffective Time, each Party shall promptly return or certify the destruction of\nall documents and copies thereof, and all work papers containing confidential\ninformation received from the other Party.\n\n                     (c)       Company shall use its reasonable efforts to\nexercise its rights, and shall not waive any rights, under confidentiality\nagreements entered into with Persons who were considering an Acquisition\nProposal with respect to Company to preserve the confidentiality of the\ninformation relating to Company provided to such Persons and their Affiliates\nand Representatives.\n\n                     (d)       Each Party agrees to give the other Party notice\nas soon as practicable after any determination by it of any fact or occurrence\nrelating to the other Party which it has discovered through the course of its\ninvestigation and which represents, or is reasonably likely to represent, either\na material breach of any representation, warranty, covenant or agreement of the\nother Party or which has had or is reasonably likely to have a Company Material\nAdverse Effect or a Parent Material Adverse Effect, as applicable.\n\n           8.7       PRESS RELEASES \n\n           Prior to the Effective Time, Company and Parent shall consult with\neach other as to the form and substance of any press release or other public\ndisclosure materially related to this Agreement or any other transaction\ncontemplated hereby; provided, that nothing in this Section 8.7 shall be deemed\nto prohibit any Party from making any disclosure which its counsel deems\nnecessary or advisable in order to satisfy such Party's disclosure obligations\nimposed by Law.\n\n           8.8       CERTAIN ACTIONS \n\n           Except with respect to this Agreement and the transactions\ncontemplated hereby, neither Company nor any Affiliate thereof nor any\nRepresentatives thereof shall directly or indirectly solicit any Acquisition\nProposal by any Person. Neither Company nor any Affiliate or \n\n\n\n                                      -31-\n   37\n\nRepresentative thereof shall furnish any non-public information that it is not\nlegally obligated to furnish, negotiate with respect to, or enter into any\nContract with respect to, any Acquisition Proposal, but Company may communicate\ninformation about such an Acquisition Proposal to its stockholders if and to the\nextent that it is required to do so in order to comply with its legal\nobligations as advised by outside counsel. Company shall promptly advise Parent\nfollowing the receipt of any Acquisition Proposal and the details thereof, and\nadvise Parent of any developments with respect to such Acquisition Proposal\npromptly upon the occurrence thereof. Company shall (i) immediately cease and\ncause to be terminated any existing activities, discussions or negotiations with\nany Persons conducted heretofore with respect to any of the foregoing, and (ii)\ndirect and use its reasonable efforts to cause all of its Affiliates and\nRepresentatives not to engage in any of the foregoing.\n\n           8.9       TAX TREATMENT \n\n           Each of the Parties undertakes and agrees to use its reasonable\nefforts to cause the Merger, and to take no action which would cause the Merger\nnot, to qualify for treatment as a \"reorganization\" within the meaning of\nSection 368(a) of the Internal Revenue Code for federal income tax purposes.\n\n           8.10      STATE TAKEOVER LAWS \n\n           Company shall take all necessary steps to exempt the transactions\ncontemplated by this Agreement from, or if necessary to challenge the validity\nor applicability of, any applicable Takeover Law.\n\n           8.11      CHARTER PROVISIONS \n\n           Company shall take all necessary action to ensure that the entering\ninto of this Agreement and the consummation of the Merger and the other\ntransactions contemplated hereby do not and will not result in the grant of any\nrights to any Person under the Articles of Incorporation, Bylaws or other\ngoverning instruments of Company or restrict or impair the ability of Parent or\nany of its Subsidiaries to vote, or otherwise to exercise the rights of a\nstockholder with respect to, shares of Company that may be directly or\nindirectly acquired or controlled by them.\n\n           8.12      EMPLOYEE BENEFITS AND CONTRACTS \n\n           Following the Effective Time, Parent shall provide generally to\nofficers and employees of Company employee benefits under employee benefit and\nwelfare plans (other than stock option or other plans involving the potential\nissuance of Parent Common Stock), on terms and conditions which when taken as a\nwhole are substantially similar to those currently provided by the Parent\nEntities to their similarly situated officers and employees. For purposes of\nparticipation, vesting and (except in the case of Parent retirement plans)\nbenefit accrual under Parent's employee benefit plans, the service of the\nemployees of the Company Entities prior to the Effective Time shall be treated\nas service with a Parent Entity participating in such employee benefit plans.\nParent also shall cause the Surviving Corporation and its Subsidiaries to honor\nin accordance with their terms all employment, severance, consulting and other\ncompensation Contracts disclosed in Section 8.12 of the Company Disclosure\nMemorandum to Parent between Company and any current or former director,\nofficer, or employee thereof, and all provisions for \n\n\n\n                                      -32-\n   38\n\nvested benefits or other vested amounts earned or accrued through the Effective\nTime under the Company Benefit Plans (other than Company Equity Rights).\n\n           8.13      INDEMNIFICATION.\n\n                     (a)       Parent shall not cause or allow the Surviving\nCorporation to modify, and shall cause the Surviving Corporation to honor, any\nrights to indemnification or exculpation from Liabilities arising out of actions\nor omissions arising out of any Person's service or services as a director or\nofficer of Company or, at Company's request, of another corporation,\npartnership, joint venture, trust or other enterprise occurring at or prior to\nthe Effective Time (including the transactions contemplated by this Agreement)\nnow existing in favor of such Persons as provided in Company's articles of\nincorporation or bylaws, as in effect on the date of this Agreement.\n\n                     (b)       Any Person wishing to claim indemnification under\nparagraph (a) of this Section 8.13 (each, an \"Indemnified Party\"), upon learning\nof any such Liability or Litigation, shall promptly notify the Surviving\nCorporation thereof. In the event of any such Litigation (whether arising before\nor after the Effective Time), except as otherwise provided in any\nindemnification Contract between Company and the Indemnified Party, (i) the\nSurviving Corporation shall have the right to assume the defense thereof and the\nSurviving Corporation shall not be liable to such Indemnified Parties for any\nlegal expenses of other counsel or any other expenses subsequently incurred by\nsuch Indemnified Parties in connection with the defense thereof, except that if\nthe Surviving Corporation elects not to assume such defense or counsel for the\nIndemnified Parties advises that there are substantive issues which raise\nconflicts of interest between the Surviving Corporation and the Indemnified\nParties, the Indemnified Parties may retain counsel satisfactory to them, and\nthe Surviving Corporation shall pay all reasonable fees and expenses of such\ncounsel for the Indemnified Parties promptly as statements therefor are\nreceived; provided, that the Surviving Corporation shall be obligated pursuant\nto this paragraph (b) to pay for only one firm of counsel for all Indemnified\nParties in any jurisdiction, (ii) the Indemnified Parties will cooperate in the\ndefense of any such Litigation, and (iii) the Surviving Corporation shall not be\nliable for any settlement effected without its prior written consent; and\nprovided further that the Surviving Corporation shall have no obligation\nhereunder to any Indemnified Party when and if a court of competent jurisdiction\nshall determine, and such determination shall have become final, that the\nindemnification of such Indemnified Party in the manner contemplated hereby is\nprohibited by applicable Law.\n\n                     (c)       If the Surviving Corporation or any successors or\nassigns shall consolidate with or merge into any other Person and shall not be\nthe continuing or surviving Person of such consolidation or merger or shall\ntransfer all or substantially all of its assets to any Person, then and in each\ncase, proper provision shall be made so that the successors and assigns of the\nSurviving Corporation shall assume the obligations set forth in this Section\n8.13.\n\n                     (d)       Company shall use its reasonable best efforts to\ncause each of the directors and officers of Company and each other Person who is\nparty to an indemnification agreement with Company to execute and deliver to\nParent the letters contemplated by Section 9.2(h).\n\n\n\n                                      -33-\n   39\n\n           8.14      REGISTRATION RIGHTS\n\n           At the Closing, Parent shall execute and deliver a declaration of\nregistration rights (\"DECLARATION OF REGISTRATION RIGHTS\") in substantially the\nform attached hereto as Exhibit 5. As soon as practicable after the Closing,\nParent shall use its reasonable efforts to obtain all required approvals\npursuant to the Fourth Amended and Restated Registration Rights Agreement dated\nas of September 20, 1999, among Parent and certain holders of Parent Capital\nStock identified therein (the \"PARENT REGISTRATION RIGHTS AGREEMENT\"), to amend\nthe Parent Registration Rights Agreement to provide that, with respect to the\nshares of Parent Common Stock issued in the Merger, the former holders of\nCompany Capital Stock shall be entitled to registration rights under Sections 3\nand 4 of the Parent Registration Rights Agreement on a pro rata basis with\nholders of Restricted Stock (as defined in the Parent Registration Rights\nAgreement), and such amendment shall supersede the Declaration of Registration\nRights.\n\n           8.15      TREATMENT OF HP WARRANTS\n\n                     (a)       Pursuant to a Warrant to Purchase Common Stock,\ndated December 23, 1999 (the \"HP Warrant\"), between Company and Hewlett-Packard\nCompany (\"HP\"), HP may exercise rights to purchase up to 1,136,605 shares of\nCompany Common Stock (the \"Base Warrant Shares\") and up to an additional 436,272\nshares of Company Common Stock (the \"Contingent Warrant Shares\") if Company's\nrevenues for the calendar years 2000 and 2001 include specified amounts of \"HP\nRevenue\" (as defined in the Warrant) (the \"Revenue Requirements\"). Prior to the\nClosing, Company shall take all such action as Parent or its counsel shall\ndirect to irrevocably waive the Revenue Requirements so as to permit exercise of\nthe HP Warrant with respect to the Contingent Warrant Shares on the same basis\nthe HP Warrant may be exercised with respect to the Base Warrant Shares.\n\n                     (b)       Prior to Closing, Company may undertake to\nnegotiate with HP the terms on which Company will waive the Revenue\nRestrictions, including possible modifications to the Strategic Supply, Services\nand Promotion Agreement, dated as of December 23, 1999 (the \"Strategic\nAgreement\"), between Company and HP,and possible reduction in the number of\nContingent Warrant Shares. Company shall keep Parent fully apprised of the\nstatus of all such negotiations and Parent shall have the right to participate\nin such negotiations. Company shall not agree to any modifications to the\nStrategic Agreement without the prior written consent of Parent.\n\n\n                                    ARTICLE 9\n                CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE\n                -------------------------------------------------\n\n           9.1       CONDITIONS TO OBLIGATIONS OF EACH PARTY \n\n           The respective obligations of each Party to perform this Agreement\nand consummate the Merger and the other transactions contemplated hereby are\nsubject to the satisfaction of the following conditions, unless waived by both\nParties pursuant to Section 11.6:\n\n                     (a)       STOCKHOLDER APPROVAL. The stockholders of Company\n           shall have approved this Agreement and the Plan of Merger, and the\n           consummation of the \n\n\n\n                                      -34-\n   40\n\n           transactions contemplated hereby and thereby, including the Merger,\n           as and to the extent required by Law or by the provisions of any\n           governing instruments.\n\n                     (b)       REGULATORY APPROVALS. All Consents of, filings\n           and registrations with, and notifications to, all Regulatory\n           Authorities required for consummation of the Merger shall have been\n           obtained or made and shall be in full force and effect and all\n           waiting periods required by Law shall have expired. No Consent\n           obtained from any Regulatory Authority which is necessary to\n           consummate the transactions contemplated hereby shall be conditioned\n           or restricted in a manner (including requirements relating to the\n           raising of additional capital or the disposition of Assets) which in\n           the reasonable judgment of the Board of Directors of Parent would so\n           materially adversely impact the economic or business benefits of the\n           transactions contemplated by this Agreement that, had such condition\n           or requirement been known, Parent would not, in its reasonable\n           judgment, have entered into this Agreement.\n\n                     (c)       CONSENTS AND APPROVALS. Company shall have\n           obtained the Consents identified in Section 5.2(c) of the Company\n           Disclosure Memorandum and any and all other Consents required for\n           consummation of the Merger (other than those referred to in Section\n           (b)) or for the preventing of any Default under any Contract or\n           Permit of such Party which, if not obtained or made, is reasonably\n           likely to have, individually or in the aggregate, a Company Material\n           Adverse Effect or a Parent Material Adverse Effect. No Consent so\n           obtained which is necessary to consummate the transactions\n           contemplated hereby shall be conditioned or restricted in a manner\n           which in the reasonable judgment of the Board of Directors of Parent\n           would so materially adversely impact the economic or business\n           benefits of the transactions contemplated by this Agreement that, had\n           such condition or requirement been known, Parent would not, in its\n           reasonable judgment, have entered into this Agreement.\n\n                     (d)       LEGAL PROCEEDINGS. No court or governmental or\n           regulatory authority of competent jurisdiction shall have enacted,\n           issued, promulgated, enforced or entered any Law or Order (whether\n           temporary, preliminary or permanent) or taken any other action which\n           prohibits, restricts or makes illegal consummation of the\n           transactions contemplated by this Agreement.\n\n                     (e)       EXCHANGE LISTING. To the extent required by\n           Nasdaq National Market rules, the shares of Parent Common Stock\n           issuable pursuant to the Merger shall have been approved for listing\n           on the Nasdaq National Market.\n\n                     (f)       TAX MATTERS. Each Party shall have received a\n           written opinion of counsel from Alston &amp; Bird LLP, in form reasonably\n           satisfactory to such Parties (the \"Tax Opinion\"), to the effect that\n           (i) the Merger will constitute a reorganization within the meaning of\n           Section 368(a) of the Internal Revenue Code, (ii) the exchange in the\n           Merger of Company Capital Stock for Parent Common Stock will not give\n           rise to gain or loss to the stockholders of Company with respect to\n           such exchange (except to the extent of any cash received), and (iii)\n           none of Company, Sub or Parent will recognize gain or loss as a\n           consequence of the Merger (except for amounts resulting from any\n           required change in accounting methods). In rendering such Tax\n           Opinion, such counsel shall be entitled to \n\n\n\n                                      -35-\n   41\n\n           rely upon representations of officers of Company and Parent\n           reasonably satisfactory in form and substance to such counsel.\n\n           9.2       CONDITIONS TO OBLIGATIONS OF PARENT \n\n           The obligations of Parent to perform this Agreement and consummate\nthe Merger and the other transactions contemplated hereby are subject to the\nsatisfaction of the following conditions, unless waived by Parent pursuant to\nSection 11.6(a):\n\n                     (a)       REPRESENTATIONS AND WARRANTIES. For purposes of\n           this Section 9.2(a), the accuracy of the representations and\n           warranties of Company set forth in this Agreement shall be assessed\n           as of the date of this Agreement and as of the Effective Time with\n           the same effect as though all such representations and warranties had\n           been made on and as of the Effective Time (provided that\n           representations and warranties which are confined to a specified date\n           shall speak only as of such date). The representations and warranties\n           set forth in Section 5.3 shall be true and correct (except for\n           inaccuracies which are de minimus in amount). The representations and\n           warranties set forth in Sections 5.19, 5.20, 5.21 and 5.22 shall be\n           true and correct in all material respects. There shall not exist\n           inaccuracies in the representations and warranties of Company set\n           forth in this Agreement (including the representations and warranties\n           set forth in Sections 5.3, 5.19, 5.20, 5.21 and 5.22) such that the\n           aggregate effect of such inaccuracies has, or is reasonably likely to\n           have, a Company Material Adverse Effect; provided that, for purposes\n           of this sentence only, those representations and warranties which are\n           qualified by references to \"material\" or \"Material Adverse Effect\" or\n           to the \"Knowledge\" of any Person shall be deemed not to include such\n           qualifications.\n\n                     (b)       PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and\n           all of the agreements and covenants of Company to be performed and\n           complied with pursuant to this Agreement and the other agreements\n           contemplated hereby prior to the Effective Time shall have been duly\n           performed and complied with in all material respects.\n\n                     (c)       CERTIFICATES. Company shall have delivered to\n           Parent (i) a certificate, dated as of the Effective Time and signed\n           on its behalf by its chief executive officer and its chief financial\n           officer, to the effect that the conditions set forth in Section 9.1\n           as relates to Company and in Section 9.2(a) and 9.2(b) have been\n           satisfied, and (ii) certified copies of resolutions duly adopted by\n           Company's Board of Directors and stockholders evidencing the taking\n           of all corporate action necessary to authorize the execution,\n           delivery and performance of this Agreement, and the consummation of\n           the transactions contemplated hereby, all in such reasonable detail\n           as Parent and its counsel shall request.\n\n                     (d)       OPINION OF COUNSEL. Parent shall have received an\n           opinion of Rosenblum Parish &amp; Isaacs, A Law Corporation, counsel to\n           Company, dated as of the Closing, in form reasonably satisfactory to\n           Parent, as to the matters set forth in Exhibit 6.\n\n                     (e)       ESCROW AGREEMENT. Each of Parent, the Escrow\n           Agent and the Stockholder Representative shall have executed and\n           delivered the Escrow Agreement.\n\n\n\n                                      -36-\n   42\n\n                     (f)       NONSOLICITATION AGREEMENTS. Each of the persons\n           identified by Parent prior to Closing shall have executed and\n           delivered to Parent an agreement in substantially the form of Exhibit\n           7. Daniel J. Fraisl shall have executed and delivered to Parent an\n           agreement in substantially the form of Exhibit 8.\n\n                     (g)       TERMINATION OF CERTAIN AGREEMENTS. Parent shall\n           have received evidence reasonably satisfactory to it that (i) the\n           Company Shareholders Agreement has been amended to provide that the\n           provisions of Section 4.2 of the Company Shareholders Agreement shall\n           not apply to the Merger or any of the other transactions contemplated\n           by this Agreement and that the Shareholders Agreement shall be\n           terminated automatically effective as of the Effective Time, (ii) the\n           Company Registration Rights Agreement has been amended to provide\n           that it shall be terminated automatically effective as of the\n           Effective Time, and (iii) the Purchase Agreement has been amended to\n           provide that it shall be terminated automatically effective as of the\n           Effective Time.\n\n                     (h)       CLAIMS LETTERS. Each of the directors and\n           officers of Company and each other Person who is party to an\n           indemnification agreement with Company shall have executed and\n           delivered to Parent letters in substantially the form of Exhibit\n           91010.\n\n           9.3       CONDITIONS TO OBLIGATIONS OF COMPANY \n\n           The obligations of Company to perform this Agreement and consummate\nthe Merger and the other transactions contemplated hereby are subject to the\nsatisfaction of the following conditions, unless waived by Company pursuant to\nSection 11.6(b):\n\n                     (a)       REPRESENTATIONS AND WARRANTIES. For purposes of\n           this Section 9.3(a), the accuracy of the representations and\n           warranties of Parent set forth in this Agreement shall be assessed as\n           of the date of this Agreement and as of the Effective Time with the\n           same effect as though all such representations and warranties had\n           been made on and as of the Effective Time (provided that\n           representations and warranties which are confined to a specified date\n           shall speak only as of such date). The representations and warranties\n           set forth in Section 6.3 shall be true and correct (except for\n           inaccuracies which are de minimus in amount). The representations and\n           warranties of Parent set forth in Section 6.12 shall be true and\n           correct in all material respects. There shall not exist inaccuracies\n           in the representations and warranties of Parent set forth in this\n           Agreement (including the representations and warranties set forth in\n           Sections 6.3 and 6.12) such that the aggregate effect of such\n           inaccuracies has, or is reasonably likely to have, a Parent Material\n           Adverse Effect; provided that, for purposes of this sentence only,\n           those representations and warranties which are qualified by\n           references to \"material\" or \"Material Adverse Effect\" or to the\n           \"Knowledge\" of any Person shall be deemed not to include such\n           qualifications.\n\n                     (b)       PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and\n           all of the agreements and covenants of Parent to be performed and\n           complied with pursuant to this Agreement and the other agreements\n           contemplated hereby prior to the Effective Time shall have been duly\n           performed and complied with in all material respects.\n\n\n\n                                      -37-\n   43\n\n                     (c)       CERTIFICATES. Parent shall have delivered to\n           Company (i) a certificate, dated as of the Effective Time and signed\n           on its behalf by its chief executive officer and its chief financial\n           officer, to the effect that the conditions set forth in Section 9.1\n           as relates to Parent and in Section 9.3(a) and 9.3(b) have been\n           satisfied, and (ii) certified copies of resolutions duly adopted by\n           Parent's Board of Directors and Sub's Board of Directors and sole\n           stockholder evidencing the taking of all corporate action necessary\n           to authorize the execution, delivery and performance of this\n           Agreement, and the consummation of the transactions contemplated\n           hereby, all in such reasonable detail as Company and its counsel\n           shall request.\n\n                     (d)       OPINION OF COUNSEL. Company shall have received\n           an opinion of Alston &amp; Bird LLP, counsel to Parent, dated as of the\n           Closing, in form reasonably satisfactory to Company, as to the\n           matters set forth in Exhibit 10.\n\n\n                                   ARTICLE 10\n                                   TERMINATION\n                                   -----------\n           10.1      TERMINATION \n\n           Notwithstanding any other provision of this Agreement, and\nnotwithstanding the approval of this Agreement by the stockholders of Company,\nthis Agreement may be terminated and the Merger abandoned at any time prior to\nthe Effective Time:\n\n                     (a)       By mutual consent of Parent and Company; or\n\n                     (b)       By either Party (provided that the terminating\n           Party is not then in material breach of any representation, warranty,\n           covenant, or other agreement contained in this Agreement) in the\n           event of a material breach by the other Party of any representation\n           or warranty contained in this Agreement which cannot be or has not\n           been cured within 30 days after the giving of written notice to the\n           breaching Party of such breach and which breach is reasonably likely,\n           in the opinion of the non-breaching Party, to have, individually or\n           in the aggregate, a Company Material Adverse Effect or a Parent\n           Material Adverse Effect, as applicable, on the breaching Party; or\n\n                     (c)       By either Party (provided that the terminating\n           Party is not then in material breach of any representation, warranty,\n           covenant, or other agreement contained in this Agreement) in the\n           event of a material breach by the other Party of any covenant or\n           agreement contained in this Agreement which cannot be or has not been\n           cured within 30 days after the giving of written notice to the\n           breaching Party of such breach; or\n\n                     (d)       By either Party (provided that the terminating\n           Party is not then in material breach of any representation, warranty,\n           covenant, or other agreement contained in this Agreement) in the\n           event (i) any Consent of any Regulatory Authority required for\n           consummation of the Merger and the other transactions contemplated\n           hereby shall have been denied by final nonappealable action of such\n           authority or if any action taken by such authority is not appealed\n           within the time limit for appeal, or (ii) the stockholders of Company\n           fail to vote their approval of the matters relating to this Agreement\n           and the \n\n\n\n                                      -38-\n   44\n\n           transactions contemplated hereby at a Stockholders' Meeting where\n           such matters were presented to such stockholders for approval and\n           voted upon or consented to in writing; or\n\n                     (e)       By either Party in the event that the Merger\n           shall not have been consummated by March 1, 2000, if the failure to\n           consummate the transactions contemplated hereby on or before such\n           date is not caused by any breach of this Agreement by the Party\n           electing to terminate pursuant to this Section 10.1(e); or\n\n                     (f)       By either Party (provided that the terminating\n           Party is not then in material breach of any representation, warranty,\n           covenant, or other agreement contained in this Agreement) in the\n           event that any of the conditions precedent to the obligations of such\n           Party to consummate the Merger cannot be satisfied or fulfilled by\n           the date specified in Section 10.1(e).\n\n           10.2      EFFECT OF TERMINATION \n\n           In the event of the termination and abandonment of this Agreement\npursuant to Section 10.1, this Agreement shall become void and have no effect,\nexcept that (i) the provisions of this Section 10.2 and ARTICLE 11 and Section\n8.6(b) shall survive any such termination and abandonment, and (ii) a\ntermination pursuant to Sections 10.1(b), 10.1(c) or 10.1(f) shall not relieve\nthe breaching Party from Liability for an uncured willful breach of a\nrepresentation, warranty, covenant, or agreement giving rise to such\ntermination.\n\n\n                                   ARTICLE 11\n                                  MISCELLANEOUS\n                                  -------------\n\n           11.1      DEFINITIONS.\n\n                     (a)       Except as otherwise provided herein, the\ncapitalized terms set forth below shall have the following meanings:\n\n                     \"ACQUISITION PROPOSAL\" with respect to a Party shall mean\n           any tender offer or exchange offer or any proposal for a merger,\n           acquisition of all of the stock or assets of, or other business\n           combination involving the acquisition of such Party or any of its\n           Subsidiaries or the acquisition of a substantial equity interest in,\n           or a substantial portion of the assets of, such Party or any of its\n           Subsidiaries.\n\n                     \"AFFILIATE\" of a Person shall mean: (i) any other Person\n           directly, or indirectly through one or more intermediaries,\n           controlling, controlled by or under common control with such Person;\n           (ii) any officer, director, partner, employer, or direct or indirect\n           beneficial owner of any 10% or greater equity or voting interest of\n           such Person; or (iii) any other Person for which a Person described\n           in clause (ii) acts in any such capacity.\n\n                     \"AGREEMENT\" shall mean this Agreement and Plan of Merger,\n           including the Exhibits delivered pursuant hereto and incorporated\n           herein by reference.\n\n\n\n                                      -39-\n   45\n\n                     \"ASSETS\" of a Person shall mean all of the assets,\n           properties, businesses and rights of such Person of every kind,\n           nature, character and description, whether real, personal or mixed,\n           tangible or intangible, accrued or contingent, or otherwise relating\n           to or utilized in such Person's business, directly or indirectly, in\n           whole or in part, whether or not carried on the books and records of\n           such Person, and whether or not owned in the name of such Person or\n           any Affiliate of such Person and wherever located.\n\n                     \"CLOSING DATE\" shall mean the date on which the Closing \n           occurs.\n\n                     \"COMPANY CAPITAL STOCK\" shall mean, collectively, the\n           Company Common Stock, the Company Preferred Stock and any other class\n           or series of capital stock of Company.\n\n                     \"COMPANY COMMON STOCK\" shall mean the $.01 par value common\n           stock of Company.\n\n                     \"COMPANY DISCLOSURE MEMORANDUM\" shall mean the written\n           information entitled \"Network24 Communications, Inc. Disclosure\n           Memorandum\" delivered prior to the date of this Agreement to Parent\n           describing in reasonable detail the matters contained therein and,\n           with respect to each disclosure made therein, specifically\n           referencing each Section of this Agreement under which such\n           disclosure is being made. Information disclosed with respect to one\n           Section shall not be deemed to be disclosed for purposes of any other\n           Section not specifically referenced with respect thereto.\n\n                     \"COMPANY ENTITIES\" shall mean, collectively, Company and \n           all Company Subsidiaries.\n\n                     \"COMPANY FINANCIAL STATEMENTS\" shall mean (i) the\n           consolidated statements of condition balance sheets (including\n           related notes and schedules, if any) of Company as of December 31,\n           1998, and as of September 30, 1999, and the related statements of\n           income, changes in stockholders' equity, and cash flows (including\n           related notes and schedules, if any) for the nine months ended\n           September 30, 1999, and for each of the three fiscal years ended\n           December 31, 1998, and (ii) the consolidated statements of condition\n           balance sheets of Company (including related notes and schedules, if\n           any) and related statements of income operations, changes in\n           stockholders' equity, and cash flows (including related notes and\n           schedules, if any) with respect to periods ended subsequent to\n           September 30, 1999.\n\n                     \"COMPANY MATERIAL ADVERSE EFFECT\" shall mean an event,\n           change or occurrence which, individually or together with any other\n           event, change or occurrence, has a material adverse impact on (i) the\n           financial position, business, or results of operations of Company and\n           its Subsidiaries, taken as a whole, or (ii) the ability of Company to\n           perform its obligations under this Agreement or to consummate the\n           Merger or the other transactions contemplated by this Agreement,\n           provided that \"Company Material Adverse Effect\" shall not be deemed\n           to include the impact of (a) general industry, economic or stock\n           market conditions or changes in GAAP, or (b) actions and omissions of\n           Company taken with the \n\n\n\n                                      -40-\n   46\n\n           prior informed written Consent of Parent in contemplation of the\n           transactions contemplated hereby.\n\n                     \"COMPANY PREFERRED STOCK\" shall mean the $.01 par value \n           preferred stock of Company, including the Company Series A Stock.\n\n                     \"COMPANY SERIES A STOCK\" shall mean the $.01 par value\n           Series A Preferred Stock of Company.\n\n                      \"COMPANY STOCK PLAN\" shall mean the 1997 Stock Option \n           Plan.\n\n                     \"COMPANY SUBSIDIARIES\" shall mean the Subsidiaries of\n           Company, which shall include the Company Subsidiaries described in\n           Section 5.4 and any corporation or other organization acquired as a\n           Subsidiary of Company in the future and held as a Subsidiary by\n           Company at the Effective Time.\n\n                     \"CONFIDENTIALITY AGREEMENT\" shall mean that certain\n           Confidential Disclosure Agreement, dated October 29, 1999, between\n           Company and Parent.\n\n                     \"CONSENT\" shall mean any consent, approval, authorization,\n           clearance, exemption, waiver, or similar affirmation by any Person\n           pursuant to any Contract, Law, Order, or Permit.\n\n                     \"CONTRACT\" shall mean any written or oral agreement,\n           arrangement, authorization, commitment, contract, indenture,\n           instrument, lease, obligation, plan, practice, restriction,\n           understanding, or undertaking of any kind or character, or other\n           document to which any Person is a party or that is binding on any\n           Person or its capital stock, Assets or business.\n\n                     \"DEFAULT\" shall mean (i) any breach or violation of,\n           default under, contravention of, or conflict with, any Contract, Law,\n           Order, or Permit, (ii) any occurrence of any event that with the\n           passage of time or the giving of notice or both would constitute a\n           breach or violation of, default under, contravention of, or conflict\n           with, any Contract, Law, Order, or Permit, or (iii) any occurrence of\n           any event that with or without the passage of time or the giving of\n           notice would give rise to a right of any Person to exercise any\n           remedy or obtain any relief under, terminate or revoke, suspend,\n           cancel, or modify or change the current terms of, or renegotiate, or\n           to accelerate the maturity or performance of, or to increase or\n           impose any Liability under, any Contract, Law, Order, or Permit,\n           where, in any such event, such Default is reasonably likely to have,\n           individually or in the aggregate, a Company Material Adverse Effect\n           or a Parent Material Adverse Effect, as applicable.\n\n                     \"DGCL\" shall mean the General Corporation Law of the State \n           of Delaware.\n\n                     \"ENVIRONMENTAL LAWS\" shall mean all Laws relating to\n           pollution or protection of human health or the environment (including\n           ambient air, surface water, ground water, land surface, or subsurface\n           strata) and which are administered, interpreted, or enforced by the\n           United States Environmental Protection Agency and state and local\n           agencies with jurisdiction over, and including common law in respect\n           of, pollution or protection of the \n\n\n\n                                      -41-\n   47\n\n           environment, including the Comprehensive Environmental Response\n           Compensation and Liability Act, as amended, 42 U.S.C. 9601 et seq.\n           (\"CERCLA\"), the Resource Conservation and Recovery Act, as amended,\n           42 U.S.C. 6901 et seq. (\"RCRA\"), and other Laws relating to\n           emissions, discharges, releases, or threatened releases of any\n           Hazardous Material, or otherwise relating to the manufacture,\n           processing, distribution, use, treatment, storage, disposal,\n           transport, or handling of any Hazardous Material.\n\n                     \"EQUITY RIGHTS\" shall mean all arrangements, calls,\n           commitments, Contracts, options, rights to subscribe to, scrip,\n           understandings, warrants, or other binding obligations of any\n           character whatsoever relating to, or securities or rights convertible\n           into or exchangeable for, shares of the capital stock of a Person or\n           by which a Person is or may be bound to issue additional shares of\n           its capital stock or other Equity Right.\n\n                     \"ERISA\" shall mean the Employee Retirement Income Security\n           Act of 1974, as amended.\n\n                     \"ESCROW AGENT\" shall mean the escrow agent under the Escrow\n           Agreement.\n\n                     \"EXCHANGE ACT\" shall mean the Securities Exchange Act of \n           1934, as amended.\n\n                     \"EXHIBITS\" 1 through 10, inclusive, shall mean the Exhibits\n           so marked, copies of which are attached to this Agreement. Such\n           Exhibits are hereby incorporated by reference herein and made a part\n           hereof, and may be referred to in this Agreement and any other\n           related instrument or document without being attached hereto.\n\n                     \"GAAP\" shall mean generally accepted accounting principles,\n           consistently applied during the periods involved.\n\n                     \"HAZARDOUS MATERIAL\" shall mean (i) any hazardous\n           substance, hazardous material, hazardous waste, regulated substance,\n           or toxic substance (as those terms are defined by any applicable\n           Environmental Laws) and (ii) any chemicals, pollutants, contaminants,\n           petroleum, petroleum products, or oil (and specifically shall include\n           asbestos requiring abatement, removal, or encapsulation pursuant to\n           the requirements of governmental authorities and any polychlorinated\n           biphenyls).\n\n                     \"INTELLECTUAL PROPERTY\" shall mean the following items: (a)\n           inventions (whether patentable or unpatentable and whether or not\n           reduced to practice), all improvements thereto and all patents,\n           patent applications and patent disclosures, together with all\n           reissuances, continuations, continuations-in-part, revisions,\n           extensions and reexaminations thereof, (b) trademarks, service marks,\n           trade dress, domain names, maskworks, logos, trade names and\n           corporate names, including all goodwill associated therewith and all\n           applications, registrations and renewals in connection therewith, (c)\n           copyrightable works, copyrights and all applications, registrations\n           and renewals in connection therewith, (d) trade secrets and\n           confidential business information (including ideas, research and\n           development, know-how, formulas, compositions, manufacturing and\n           production processes and techniques, technical data, designs,\n           drawings, specifications, customer and supplier lists, pricing and\n           cost information and business and marketing plans and proposals), (e)\n           computer software, together with all translations, adaptations,\n\n\n\n                                      -42-\n   48\n\n           derivations and combinations thereof (including data and related\n           documentation), (f) all other proprietary rights, and (g) all copies\n           and tangible embodiments thereof (in whatever form or medium).\n\n                     \"INTERNAL REVENUE CODE\" shall mean the Internal Revenue\n           Code of 1986, as amended, and the rules and regulations promulgated\n           thereunder.\n\n                     \"KNOWLEDGE\" as used with respect to a Person (including\n           references to such Person being aware of a particular matter) shall\n           mean those facts that are known or should reasonably have been known\n           after due inquiry by the directors and executive officers of such\n           Person and employees of such Person charged with senior\n           administrative or operational responsibility for matters as to which\n           knowledge is ascribed.\n\n                     \"LAW\" shall mean any code, law (including common law),\n           ordinance, regulation, reporting or licensing requirement, rule, or\n           statute applicable to a Person or its Assets, Liabilities, or\n           business, including those promulgated, interpreted or enforced by any\n           Regulatory Authority.\n\n                     \"LIABILITY\" shall mean any direct or indirect, primary or\n           secondary, liability, indebtedness, obligation, penalty, cost or\n           expense (including costs of investigation, collection and defense),\n           claim, deficiency, guaranty or endorsement of or by any Person (other\n           than endorsements of notes, bills, checks, and drafts presented for\n           collection or deposit in the ordinary course of business) of any\n           type, whether accrued, absolute or contingent, liquidated or\n           unliquidated, matured or unmatured, or otherwise.\n\n                     \"LIEN\" shall mean any conditional sale agreement, default\n           of title, easement, encroachment, encumbrance, hypothecation,\n           infringement, lien, mortgage, pledge, reservation, restriction,\n           security interest, title retention or other security arrangement, or\n           any adverse right or interest, charge, or claim of any nature\n           whatsoever of, on, or with respect to any property or property\n           interest, other than (i) Liens for current property Taxes not yet due\n           and payable, and (ii) Liens which do not materially impair the use of\n           or title to the Assets subject to such Lien.\n\n                     \"LITIGATION\" shall mean any action, arbitration, cause of\n           action, claim, complaint, criminal prosecution, governmental or other\n           examination or investigation, hearing, administrative or other\n           proceeding relating to or affecting a Party, its business, its Assets\n           (including Contracts related to it), or the transactions contemplated\n           by this Agreement.\n\n                     \"LOSSES\" shall mean any and all demands, claims, actions or\n           causes of action, assessments, losses, diminution in value, damages\n           (including special and consequential damages), liabilities, costs,\n           and expenses, including interest, penalties, cost of investigation\n           and defense, and reasonable attorneys' and other professional fees\n           and expenses.\n\n                     \"MATERIAL\" for purposes of this Agreement shall be\n           determined in light of the facts and circumstances of the matter in\n           question; provided that any specific monetary amount stated in this\n           Agreement shall determine materiality in that instance.\n\n\n\n                                      -43-\n   49\n\n                     \"NASDAQ NATIONAL MARKET\" shall mean the National Market \n           System of the Nasdaq Stock Market, Inc.\n\n                     \"OPERATING PROPERTY\" shall mean any property owned, leased,\n           or operated by the Party in question or by any of its Subsidiaries or\n           in which such Party or Subsidiary holds a security interest or other\n           interest (including an interest in a fiduciary capacity), and, where\n           required by the context, includes the owner or operator of such\n           property, but only with respect to such property.\n\n                     \"ORDER\" shall mean any administrative decision or award,\n           decree, injunction, judgment, order, quasi-judicial decision or\n           award, ruling, or writ of any federal, state, local or foreign or\n           other court, arbitrator, mediator, tribunal, administrative agency,\n           or Regulatory Authority.\n\n                     \"PARENT CAPITAL STOCK\" shall mean, collectively, the Parent\n           Common Stock, the Parent Preferred Stock and any other class or\n           series of capital stock of Parent.\n\n                     \"PARENT COMMON STOCK\" shall mean the $.01 par value common\n           stock of Parent.\n\n                     \"PARENT DISCLOSURE MEMORANDUM\" shall mean the written\n           information entitled \"Akamai Technologies, Inc. Disclosure\n           Memorandum\" delivered prior to the date of this Agreement to Company\n           describing in reasonable detail the matters contained therein and,\n           with respect to each disclosure made therein, specifically\n           referencing each Section of this Agreement under which such\n           disclosure is being made. Information disclosed with respect to one\n           Section shall not be deemed to be disclosed for purposes of any other\n           Section not specifically referenced with respect thereto.\n\n                     \"PARENT ENTITIES\" shall mean, collectively, Parent and all\n           Parent Subsidiaries.\n\n                     \"PARENT FINANCIAL STATEMENTS\" shall mean (i) the\n           consolidated statements of condition balance sheets (including\n           related notes and schedules, if any) of Parent as of September 30,\n           1999, and as of December 31, 1998, and the related statements of\n           income operations, changes in stockholders' equity, and cash flows\n           (including related notes and schedules, if any) for the nine months\n           ended September 30, 1999, and for the fiscal year ended December 31,\n           1998, as filed by Parent in SEC Documents, and (ii) the consolidated\n           statements of condition balance sheets of Parent (including related\n           notes and schedules, if any) and related statements of income\n           operations, changes in stockholders' equity, and cash flows\n           (including related notes and schedules, if any) included in SEC\n           Documents filed with respect to periods ended subsequent to September\n           30, 1999.\n\n                     \"PARENT MATERIAL ADVERSE EFFECT\" shall mean an event,\n           change or occurrence which, individually or together with any other\n           event, change or occurrence, has a material adverse impact on (i) the\n           financial position, business, or results of operations of Parent and\n           its Subsidiaries, taken as a whole, or (ii) the ability of Parent to\n           perform its obligations under this Agreement or to consummate the\n           Merger or the other transactions contemplated by this Agreement,\n           provided that \"Parent Material Adverse Effect\" shall not be deemed to\n           include the impact of (a) general industry, economic or stock market\n           conditions or changes in GAAP, (b) demonstrably shown to have been\n           proximately \n\n\n\n\n                                      -44-\n   50\n\n           caused by the public announcement of, and the response or reaction of\n           customers, vendors, licensors, investors or employees of Parent to,\n           this Agreement or any of the transactions contemplated by this\n           Agreement, (c) failure of Parent to meet the revenue or earnings\n           predictions of equity analysts (as reflected in the First Call\n           consensus estimate), or any other published revenue or earnings\n           predictions or expectations, for any period ending on or after the\n           date of this Agreement, (d) changes in the market price or trading\n           volume of Parent Common Stock, or (e) actions and omissions of any\n           Parent Entity taken with the prior informed written Consent of\n           Company in contemplation of the transactions contemplated hereby.\n\n                     \"PARENT PREFERRED STOCK\" shall mean the $.01 par value\n           preferred stock of Parent.\n\n                     \"PARENT SUBSIDIARIES\" shall mean the Subsidiaries of \n           Parent.\n\n                     \"PARTY\" shall mean either Company or Parent, and \"PARTIES\"\n           shall mean both Company and Parent.\n\n                     \"PERMIT\" shall mean any federal, state, local, and foreign\n           governmental approval, authorization, certificate, easement, filing,\n           franchise, license, notice, permit, or right to which any Person is a\n           party or that is or may be binding upon or inure to the benefit of\n           any Person or its securities, Assets, or business.\n\n                     \"PERSON\" shall mean a natural person or any legal,\n           commercial or governmental entity, such as, but not limited to, a\n           corporation, general partnership, joint venture, limited partnership,\n           limited liability company, trust, business association, group acting\n           in concert, or any person acting in a representative capacity.\n\n                     \"REGULATORY AUTHORITIES\" shall mean, collectively, the\n           Securities and Exchange Commission (\"SEC\"), the Federal Trade\n           Commission, the United States Department of Justice, and all other\n           federal, state, county, local or other governmental or regulatory\n           agencies, authorities (including self-regulatory authorities),\n           instrumentalities, commissions, boards or bodies having jurisdiction\n           over the Parties and their respective Subsidiaries.\n\n                     \"REPRESENTATIVE\" shall mean any investment banker,\n           financial advisor, attorney, accountant, consultant, or other\n           representative engaged by a Person.\n\n                     \"SEC DOCUMENTS\" shall mean all forms, proxy statements,\n           registration statements, reports, schedules, and other documents\n           filed, or required to be filed, by a Party or any of its Subsidiaries\n           with any Regulatory Authority pursuant to the Securities Laws.\n\n                     \"SECURITIES ACT\" shall mean the Securities Act of 1933, as\n           amended.\n\n                     \"SECURITIES LAWS\" shall mean the Securities Act, the\n           Exchange Act, the Investment Company Act of 1940, as amended, the\n           Investment Advisors Act of 1940, as \n\n\n\n                                      -45-\n   51\n\n           amended, the Trust Indenture Act of 1939, as amended, and the rules\n           and regulations of any Regulatory Authority promulgated thereunder.\n\n                     \"STOCKHOLDER REPRESENTATIVE\" shall mean Daniel J. Fraisl\n           (or any other Person designated by Daniel J. Fraisl to serve as the\n           Stockholder Representative under the terms of the Escrow Agreement).\n\n                     \"STOCKHOLDERS' MEETING\" shall mean the meeting of the\n           stockholders of Company to be held pursuant to Section 8.1, including\n           any adjournment or adjournments thereof.\n\n                     \"SUB COMMON STOCK\" shall mean the $.01 par value common\n           stock of Sub.\n\n                     \"SUBSIDIARIES\" shall mean all those corporations,\n           associations, or other business entities of which the entity in\n           question either (i) owns or controls 50% or more of the outstanding\n           equity securities either directly or through an unbroken chain of\n           entities as to each of which 50% or more of the outstanding equity\n           securities is owned directly or indirectly by its parent (provided,\n           there shall not be included any such entity the equity securities of\n           which are owned or controlled in a fiduciary capacity), (ii) in the\n           case of partnerships, serves as a general partner, (iii) in the case\n           of a limited liability company, serves as a managing member, or (iv)\n           otherwise has the ability to elect a majority of the directors,\n           trustees or managing members thereof.\n\n                     \"SURVIVING CORPORATION\" shall mean Sub as the surviving\n           corporation resulting from the Merger.\n\n                     \"TAX RETURN\" shall mean any report, return, information\n           return, or other information required to be supplied to a taxing\n           authority in connection with Taxes, including any return of an\n           affiliated or combined or unitary group that includes a Party or its\n           Subsidiaries.\n\n                     \"TAX\" or \"TAXES\" shall mean any federal, state, county,\n           local, or foreign taxes, charges, fees, levies, imposts, duties, or\n           other assessments, including income, gross receipts, excise,\n           employment, sales, use, transfer, license, payroll, franchise,\n           severance, stamp, occupation, windfall profits, environmental,\n           federal highway use, commercial rent, customs duties, capital stock,\n           paid-up capital, profits, withholding, Social Security, single\n           business and unemployment, disability, real property, personal\n           property, registration, ad valorem, value added, alternative or\n           add-on minimum, estimated, or other tax or governmental fee of any\n           kind whatsoever, imposes or required to be withheld by the United\n           States or any state, county, local or foreign government or\n           subdivision or agency thereof, including any interest, penalties, and\n           additions imposed thereon or with respect thereto.\n\n                     (b)       The terms set forth below shall have the meanings\nascribed thereto on the referenced pages:\n\n           Agreement..........................................................1\n           Base Warrant Shares...............................................34\n\n\n\n\n                                      -46-\n   52\n\n           Certificates.......................................................7\n           Closing............................................................2\n           Common Exchange Ratio..............................................3\n           Common Firm Exchange Ratio.........................................3\n           Company............................................................1\n           Company Benefit Plans.............................................18\n           Company Contracts.................................................19\n           Company Equity Rights..............................................5\n           Company ERISA Plan................................................18\n           Company Intellectual Property.....................................15\n           Company Registration Rights Agreement.............................11\n           Company Shareholders Agreement....................................11\n           Confidential Information..........................................15\n           Contingent Warrant Shares.........................................34\n           Declaration of Registration Rights................................34\n           Dissenting Stockholder.............................................4\n           Effective Time.....................................................2\n           ERISA Affiliate...................................................18\n           Escrow Agreement...................................................8\n           Escrow Exchange Ratio..............................................3\n           Escrow Shares......................................................4\n           Exchange Agent.....................................................6\n           Firm Shares........................................................4\n           HP................................................................34\n           HP Revenue........................................................34\n           HP Warrant........................................................34\n           Indemnified Party.................................................33\n           Merger.............................................................2\n           Parent.............................................................1\n           Parent Registration Rights Agreement..............................34\n           Parent SEC Reports................................................23\n           Plan of Merger.....................................................1\n           Purchase Agreement................................................11\n           Revenue Requirements..............................................34\n           SEC...............................................................45\n           Strategic Agreement...............................................34\n           Sub................................................................1\n           Takeover Laws.....................................................21\n           Tax Opinion.......................................................35\n           Voting Agreements..................................................1\n\n                     (c)       Any singular term in this Agreement shall be\ndeemed to include the plural, and any plural term the singular. Whenever the\nwords \"include,\" \"includes\" or \"including\" are used in this Agreement, they\nshall be deemed followed by the words \"without limitation.\"\n\n\n\n                                      -47-\n   53\n\n           11.2      EXPENSES.\n\n                     (a)       Except as otherwise provided in this Section\n11.2, each of the Parties shall bear and pay all direct costs and expenses\nincurred by it or on its behalf in connection with the transactions contemplated\nhereunder, including filing, registration and application fees, printing fees,\nand fees and expenses of its own financial or other consultants, investment\nbankers, accountants, and counsel. For planning purposes, Company shall, within\n30 days from the date hereof, provide Parent with its estimated budget of\ntransaction-related expenses reasonably anticipated to be payable by Company in\nconnection with this transaction, including the fees and expenses of counsel,\naccountants, investment bankers and other professionals. Company shall promptly\nnotify Parent if or when it determines that it will expect to exceed its budget.\nPromptly after the execution of this Agreement, Company shall ask all of its\nattorneys and other professionals to render current and correct invoices for all\nunbilled time and disbursements. Company shall accrue and\/or pay all of such\namounts promptly thereafter.\n\n                     (b)       Nothing contained in this Section 11.2 shall\nconstitute or shall be deemed to constitute liquidated damages for any breach by\na Party of the terms of this Agreement or otherwise limit the rights of the\nnonbreaching Party.\n\n           11.3      BROKERS AND FINDERS \n\n           Except for Donaldson Lufkin &amp; Jenrette Securities Corporation as to\nParent, each of the Parties represents and warrants that neither it nor any of\nits officers, directors, employees, or Affiliates has employed any broker or\nfinder or incurred any Liability for any financial advisory fees, investment\nbankers' fees, brokerage fees, commissions, or finders' fees in connection with\nthis Agreement or the transactions contemplated hereby. In the event of a claim\nby any broker or finder based upon his or its representing or being retained by\nor allegedly representing or being retained by Company or any Affiliate or by\nParent, each of Company and Parent, as the case may be, agrees to indemnify and\nhold the other Party harmless of and from any Liability in respect of any such\nclaim.\n\n           11.4      ENTIRE AGREEMENT \n\n           Except as otherwise expressly provided herein, this Agreement\n(including the documents and instruments referred to herein) constitutes the\nentire agreement between the Parties with respect to the transactions\ncontemplated hereunder and supersedes all prior arrangements or understandings\nwith respect thereto, written or oral (except, as to Section 8.6(b), for the\nConfidentiality Agreement). Nothing in this Agreement expressed or implied, is\nintended to confer upon any Person, other than the Parties or their respective\nsuccessors, any rights, remedies, obligations, or liabilities under or by reason\nof this Agreement, other than as provided in Sections 8.13 and 8.14.\n\n           11.5      AMENDMENTS \n\n           To the extent permitted by Law, this Agreement may be amended by a\nsubsequent writing signed by each of the Parties upon the approval of each of\nthe Parties, whether before or after stockholder approval of this Agreement has\nbeen obtained; provided, that after any such approval by the holders of Company\nCapital Stock, there shall be made no amendment that \n\n\n\n                                      -48-\n   54\n\nreduces or modified in any material respect the consideration to be received by\nholders of Company Capital Stock pursuant to the California Corporations Code\nrequires further approval by such stockholders without the further approval of\nsuch stockholders.\n\n           11.6      WAIVERS.\n\n                     (a)       Prior to or at the Effective Time, Parent, acting\nthrough its Board of Directors, chief executive officer or other authorized\nofficer, shall have the right to waive any Default in the performance of any\nterm of this Agreement by Company, to waive or extend the time for the\ncompliance or fulfillment by Company of any and all of its obligations under\nthis Agreement, and to waive any or all of the conditions precedent to the\nobligations of Parent under this Agreement, except any condition which, if not\nsatisfied, would result in the violation of any Law. No such waiver shall be\neffective unless in writing signed by a duly authorized officer of Parent.\n\n                     (b)       Prior to or at the Effective Time, Company,\nacting through its Board of Directors, chief executive officer or other\nauthorized officer, shall have the right to waive any Default in the performance\nof any term of this Agreement by Parent, to waive or extend the time for the\ncompliance or fulfillment by Parent of any and all of its obligations under this\nAgreement, and to waive any or all of the conditions precedent to the\nobligations of Company under this Agreement, except any condition which, if not\nsatisfied, would result in the violation of any Law. No such waiver shall be\neffective unless in writing signed by a duly authorized officer of Company.\n\n                     (c)       The failure of any Party at any time or times to\nrequire performance of any provision hereof shall in no manner affect the right\nof such Party at a later time to enforce the same or any other provision of this\nAgreement. No waiver of any condition or of the breach of any term contained in\nthis Agreement in one or more instances shall be deemed to be or construed as a\nfurther or continuing waiver of such condition or breach or a waiver of any\nother condition or of the breach of any other term of this Agreement.\n\n           11.7      ASSIGNMENT \n\n           Except as expressly contemplated hereby, neither this Agreement nor\nany of the rights, interests or obligations hereunder shall be assigned by any\nParty hereto (whether by operation of Law or otherwise) without the prior\nwritten consent of the other Party. Subject to the preceding sentence, this\nAgreement will be binding upon, inure to the benefit of and be enforceable by\nthe Parties and their respective successors and assigns.\n\n           11.8      NOTICES \n\n           All notices or other communications which are required or permitted\nhereunder shall be in writing and sufficient if delivered by hand, by facsimile\ntransmission, by registered or certified mail, postage pre-paid, or by courier\nor overnight carrier, to the persons at the addresses set forth below (or at\nsuch other address as may be provided hereunder), and shall be deemed to have\nbeen delivered as of the date so delivered:\n\n\n\n                                      -49-\n   55\n\n           Company:              Network24 Communications, Inc.\n                                 10051 Pasadena Avenue\n                                 Cupertino, California 95014\n                                 Telecopy Number: (408) 873-3702\n\n                                 Attention: Daniel J. Fraisl\n\n           Copy to Counsel:      Rosenblum Parish &amp; Isaacs, A Law Corporation\n                                 160 West Santa Clara Street\n                                 San Jose, California 95113\n                                 Telecopy Number: (408) 280-2801\n\n                                 Attention: Barry Lee Katzman\n\n           Parent:               Akamai Technologies, Inc.\n                                 201 Broadway\n                                 Cambridge, Massachusetts 02139\n                                 Telecopy Number:  (617) 250-3694\n\n                                 Attention: General Counsel\n\n           Copy to Counsel:      Alston &amp; Bird LLP\n                                 North Building, 11th Floor\n                                 601 Pennsylvania Avenue, N.W.\n                                 Washington, D.C. 20004\n                                 Telecopy Number: (202) 756-3333\n\n                                 Attention: David E. Brown, Jr.\n\n           11.9      GOVERNING LAW \n\n           This Agreement shall be governed by and construed in accordance with\nthe Laws of the State of Delaware, without regard to any applicable conflicts of\nLaws.\n\n           11.10     COUNTERPARTS \n\n           This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed to be an original, but all of which together shall\nconstitute one and the same instrument.\n\n           11.11     CAPTIONS; ARTICLES AND SECTIONS \n\n           The captions contained in this Agreement are for reference purposes\nonly and are not part of this Agreement. Unless otherwise indicated, all\nreferences to particular Articles or Sections shall mean and refer to the\nreferenced Articles and Sections of this Agreement.\n\n\n\n                                      -50-\n   56\n\n           11.12     INTERPRETATIONS \n\n           Neither this Agreement nor any uncertainty or ambiguity herein shall\nbe construed or resolved against any Party, whether under any rule of\nconstruction or otherwise. No Party shall be considered the draftsman. The\nparties acknowledge and agree that this Agreement has been reviewed, negotiated,\nand accepted by all parties and their counsel and shall be construed and\ninterpreted according to the ordinary meaning of the words used so as fairly to\naccomplish the purposes and intentions of all Parties.\n\n           11.13     ENFORCEMENT OF AGREEMENT \n\n           The Parties hereto agree that irreparable damage would occur in the\nevent that any of the provisions of this Agreement was not performed in\naccordance with its specific terms or was otherwise breached. It is accordingly\nagreed that the Parties shall be entitled to an injunction or injunctions to\nprevent breaches of this Agreement and to enforce specifically the terms and\nprovisions hereof in any court of the United States or any state having\njurisdiction, this being in addition to any other remedy to which they are\nentitled at law or in equity. Except as otherwise provided herein, any and all\nremedies herein expressly conferred upon a Party will be deemed cumulative with\nand not exclusive of any other remedy conferred hereby, or by Law or equity upon\nsuch Party, and the exercise by a Party of any one remedy will not preclude the\nexercise of any other remedy.\n\n\n\n                                      -51-\n   57\n\n           11.14      SEVERABILITY \n\n           Any term or provision of this Agreement which is invalid or\nunenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective\nto the extent of such invalidity or unenforceability without rendering invalid\nor unenforceable the remaining terms and provisions of this Agreement or\naffecting the validity or enforceability of any of the terms or provisions of\nthis Agreement in any other jurisdiction. If any provision of this Agreement is\nso broad as to be unenforceable, the provision shall be interpreted to be only\nso broad as is enforceable.\n\n           IN WITNESS WHEREOF, each of the Parties has caused this Agreement to\nbe executed on its behalf by its duly authorized officers as of the day and year\nfirst above written.\n\n                                            AKAMAI TECHNOLOGIES, INC.\n\n                                            By: \/s\/ Paul Sagan\n                                                --------------------------------\n                                                President\n\n\n                                            ALOHA MERGER CORPORATION\n\n\n                                            By: \/s\/ Robert O. Ball III\n                                                --------------------------------\n                                                President\n\n\n                                            NETWORK24 COMMUNICATIONS, INC.\n\n\n                                            By: \/s\/ Daniel J. Fraisl\n                                                --------------------------------\n                                                President\n\n\n\n\n                                      -52-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6606],"corporate_contracts_industries":[],"corporate_contracts_types":[9622,9626],"class_list":["post-43000","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-akamai-technologies-inc","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43000","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43000"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43000"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43000"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43000"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}