{"id":43036,"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-bitstream-inc-monotype-imaging.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-bitstream-inc-monotype-imaging","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-bitstream-inc-monotype-imaging.html","title":{"rendered":"Agreement and Plan of Merger – Bitstream Inc., Monotype Imaging Holdings, Inc., and Birch Acquisition Corporation"},"content":{"rendered":"

AGREEMENT AND PLAN OF MERGER <\/strong><\/p>\n

dated as of<\/p>\n

November 10, 2011<\/p>\n

among<\/p>\n

BITSTREAM INC., <\/strong><\/p>\n

MONOTYPE IMAGING HOLDINGS INC., <\/strong><\/p>\n

and<\/p>\n

BIRCH ACQUISITION CORPORATION <\/strong><\/p>\n

\n

TABLE OF CONTENTS <\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Page<\/strong><\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 1 DEFINITIONS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 1.01.<\/p>\n<\/td>\n

<\/td>\n\n

Definitions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 1.02.<\/p>\n<\/td>\n

<\/td>\n\n

Other Definitional and Interpretative Provisions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

11<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 2 THE MERGER<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

12<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.01.<\/p>\n<\/td>\n

<\/td>\n\n

The Closing<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

12<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.02.<\/p>\n<\/td>\n

<\/td>\n\n

The Merger<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

12<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.03.<\/p>\n<\/td>\n

<\/td>\n\n

Conversion of Shares; Calculation of Merger Consideration<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

13<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.04.<\/p>\n<\/td>\n

<\/td>\n\n

Surrender and Payment<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

14<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.05.<\/p>\n<\/td>\n

<\/td>\n\n

Dissenting Shares<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

15<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.06.<\/p>\n<\/td>\n

<\/td>\n\n

Company Stock Options and Restricted Stock Awards<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

16<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.07.<\/p>\n<\/td>\n

<\/td>\n\n

Adjustments<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

18<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.08.<\/p>\n<\/td>\n

<\/td>\n\n

Withholding Rights<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

18<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 2.09.<\/p>\n<\/td>\n

<\/td>\n\n

Lost Certificates<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

18<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 3 THE SURVIVING CORPORATION<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

18<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 3.01.<\/p>\n<\/td>\n

<\/td>\n\n

Certificate of Incorporation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

18<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 3.02.<\/p>\n<\/td>\n

<\/td>\n\n

Bylaws<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

18<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 3.03.<\/p>\n<\/td>\n

<\/td>\n\n

Directors and Officers<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

18<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

19<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.01.<\/p>\n<\/td>\n

<\/td>\n\n

Corporate Existence and Power<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

19<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.02.<\/p>\n<\/td>\n

<\/td>\n\n

Corporate Authorization<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

19<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.03.<\/p>\n<\/td>\n

<\/td>\n\n

Governmental Authorization<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

20<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.04.<\/p>\n<\/td>\n

<\/td>\n\n

Non-contravention<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

20<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.05.<\/p>\n<\/td>\n

<\/td>\n\n

Capitalization<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

21<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.06.<\/p>\n<\/td>\n

<\/td>\n\n

Subsidiaries<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

22<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.07.<\/p>\n<\/td>\n

<\/td>\n\n

SEC Filings and the Sarbanes-Oxley Act<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

23<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.08.<\/p>\n<\/td>\n

<\/td>\n\n

Financial Statements; Internal Controls<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

24<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.09.<\/p>\n<\/td>\n

<\/td>\n\n

Disclosure Documents<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

26<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.10.<\/p>\n<\/td>\n

<\/td>\n\n

Absence of Certain Changes<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

26<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.11.<\/p>\n<\/td>\n

<\/td>\n\n

No Undisclosed Material Liabilities<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

26<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.12.<\/p>\n<\/td>\n

<\/td>\n\n

Litigation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

27<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.13.<\/p>\n<\/td>\n

<\/td>\n\n

Compliance with Applicable Law<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

27<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.14.<\/p>\n<\/td>\n

<\/td>\n\n

Material Contracts<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

28<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.15.<\/p>\n<\/td>\n

<\/td>\n\n

Taxes<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

31<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.16.<\/p>\n<\/td>\n

<\/td>\n\n

Employee Benefit Plans<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

34<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.17.<\/p>\n<\/td>\n

<\/td>\n\n

Labor and Employment Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

36<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.18.<\/p>\n<\/td>\n

<\/td>\n\n

Insurance Policies<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

37<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.19.<\/p>\n<\/td>\n

<\/td>\n\n

Environmental Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

37<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

i<\/p>\n

\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.20.<\/p>\n<\/td>\n

<\/td>\n\n

Intellectual Property and Information Technology<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

38<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.21.<\/p>\n<\/td>\n

<\/td>\n\n

Properties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

41<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.22.<\/p>\n<\/td>\n

<\/td>\n\n

Interested Party Transactions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

42<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.23.<\/p>\n<\/td>\n

<\/td>\n\n

Compliance with the U.S. Foreign Corrupt Practices Act and Other Applicable
\nAnti-Corruption Laws<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

42<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.24.<\/p>\n<\/td>\n

<\/td>\n\n

Customers, Suppliers<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

43<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.25.<\/p>\n<\/td>\n

<\/td>\n\n

Finders153 Fees<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

43<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.26.<\/p>\n<\/td>\n

<\/td>\n\n

Opinion of Financial Advisor<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

43<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.27.<\/p>\n<\/td>\n

<\/td>\n\n

Antitakeover Statute; Rights Plan<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

43<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 4.28.<\/p>\n<\/td>\n

<\/td>\n\n

No Other Representations or Warranties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

44<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PARENT<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

44<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.01.<\/p>\n<\/td>\n

<\/td>\n\n

Corporate Existence and Power<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

44<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.02.<\/p>\n<\/td>\n

<\/td>\n\n

Corporate Authorization<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

44<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.03.<\/p>\n<\/td>\n

<\/td>\n\n

Governmental Authorization<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

44<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.04.<\/p>\n<\/td>\n

<\/td>\n\n

Non-contravention<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

45<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.05.<\/p>\n<\/td>\n

<\/td>\n\n

Disclosure Documents<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

45<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.06.<\/p>\n<\/td>\n

<\/td>\n\n

Litigation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

45<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.07.<\/p>\n<\/td>\n

<\/td>\n\n

Financing<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

45<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.08.<\/p>\n<\/td>\n

<\/td>\n\n

Finders153 Fees<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

45<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.09.<\/p>\n<\/td>\n

<\/td>\n\n

Ownership of Company Common Stock<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 5.10.<\/p>\n<\/td>\n

<\/td>\n\n

No Other Representations or Warranties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 6 COVENANTS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.01.<\/p>\n<\/td>\n

<\/td>\n\n

Conduct of the Company<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.02.<\/p>\n<\/td>\n

<\/td>\n\n

Stockholder Meeting; Board Recommendation; Proxy Materials; Spin-Off<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

50<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.03.<\/p>\n<\/td>\n

<\/td>\n\n

No Solicitation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

51<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.04.<\/p>\n<\/td>\n

<\/td>\n\n

Access to Information<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

54<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.05.<\/p>\n<\/td>\n

<\/td>\n\n

Notice of Certain Events<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

54<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.06.<\/p>\n<\/td>\n

<\/td>\n\n

Employee Benefits Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

55<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.07.<\/p>\n<\/td>\n

<\/td>\n\n

401(k) Plans<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

56<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.08.<\/p>\n<\/td>\n

<\/td>\n\n

State Takeover Laws<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

56<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.09.<\/p>\n<\/td>\n

<\/td>\n\n

Obligations of Merger Subsidiary<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

56<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.10.<\/p>\n<\/td>\n

<\/td>\n\n

Voting of Shares<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

56<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.11.<\/p>\n<\/td>\n

<\/td>\n\n

Director and Officer Liability<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

56<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.12.<\/p>\n<\/td>\n

<\/td>\n\n

Reasonable Best Efforts<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

57<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.13.<\/p>\n<\/td>\n

<\/td>\n\n

Certain Filings<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

59<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.14.<\/p>\n<\/td>\n

<\/td>\n\n

Public Announcements<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

59<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.15.<\/p>\n<\/td>\n

<\/td>\n\n

Further Assurances<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

60<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.16.<\/p>\n<\/td>\n

<\/td>\n\n

Confidentiality<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

60<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.17.<\/p>\n<\/td>\n

<\/td>\n\n

Section 16 Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

60<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.18.<\/p>\n<\/td>\n

<\/td>\n\n

Certain Consents<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

60<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 6.19.<\/p>\n<\/td>\n

<\/td>\n\n

Tax Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

60<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

ii<\/p>\n

\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 7 CONDITIONS TO THE MERGER<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

61<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 7.01.<\/p>\n<\/td>\n

<\/td>\n\n

Conditions to the Obligations of Each Party<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

61<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 7.02.<\/p>\n<\/td>\n

<\/td>\n\n

Conditions to the Obligations of Parent and Merger Subsidiary<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

62<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 7.03.<\/p>\n<\/td>\n

<\/td>\n\n

Conditions to the Obligations of the Company<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

63<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 8 TERMINATION<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

63<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 8.01.<\/p>\n<\/td>\n

<\/td>\n\n

Termination<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

63<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 8.02.<\/p>\n<\/td>\n

<\/td>\n\n

Effect of Termination<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

66<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE 9 MISCELLANEOUS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

66<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.01.<\/p>\n<\/td>\n

<\/td>\n\n

Notices<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

66<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.02.<\/p>\n<\/td>\n

<\/td>\n\n

Survival of Representations and Warranties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

67<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.03.<\/p>\n<\/td>\n

<\/td>\n\n

Amendments and Waivers<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

67<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.04.<\/p>\n<\/td>\n

<\/td>\n\n

Expenses<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

67<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.05.<\/p>\n<\/td>\n

<\/td>\n\n

Binding Effect; No Third Party Beneficiaries; No Assignment<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

69<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.06.<\/p>\n<\/td>\n

<\/td>\n\n

Governing Law<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

69<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.07.<\/p>\n<\/td>\n

<\/td>\n\n

Jurisdiction<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

69<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.08.<\/p>\n<\/td>\n

<\/td>\n\n

Waiver of Jury Trial<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

70<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.09.<\/p>\n<\/td>\n

<\/td>\n\n

Counterparts; Effectiveness<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

70<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.10.<\/p>\n<\/td>\n

<\/td>\n\n

Entire Agreement<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

70<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.11.<\/p>\n<\/td>\n

<\/td>\n\n

Severability<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

70<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.12.<\/p>\n<\/td>\n

<\/td>\n\n

Specific Performance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

70<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.13.<\/p>\n<\/td>\n

<\/td>\n\n

Disclosure Schedules<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

71<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Section 9.14.<\/p>\n<\/td>\n

<\/td>\n\n

Rules of Construction<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

71<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Exhibit A : Form of Voting Agreements<\/p>\n

iii<\/p>\n

\n

INDEX OF SCHEDULES<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.01<\/p>\n<\/td>\n

<\/td>\n\n

Knowledge of the Company<\/p>\n<\/td>\n<\/tr>\n

\n

4.04<\/p>\n<\/td>\n

<\/td>\n\n

Non-contravention<\/p>\n<\/td>\n<\/tr>\n

\n

4.05(b)<\/p>\n<\/td>\n

<\/td>\n\n

Capitalization<\/p>\n<\/td>\n<\/tr>\n

\n

4.06(a)<\/p>\n<\/td>\n

<\/td>\n\n

Subsidiaries<\/p>\n<\/td>\n<\/tr>\n

\n

4.06(c)<\/p>\n<\/td>\n

<\/td>\n\n

Capitalization of Subsidiaries<\/p>\n<\/td>\n<\/tr>\n

\n

4.12(a)<\/p>\n<\/td>\n

<\/td>\n\n

Proceedings<\/p>\n<\/td>\n<\/tr>\n

\n

4.12(b)<\/p>\n<\/td>\n

<\/td>\n\n

Orders<\/p>\n<\/td>\n<\/tr>\n

\n

4.12(c)<\/p>\n<\/td>\n

<\/td>\n\n

Claims<\/p>\n<\/td>\n<\/tr>\n

\n

4.14(a)<\/p>\n<\/td>\n

<\/td>\n\n

Material Contracts<\/p>\n<\/td>\n<\/tr>\n

\n

4.16(a)<\/p>\n<\/td>\n

<\/td>\n\n

Employee Benefit Plans<\/p>\n<\/td>\n<\/tr>\n

\n

4.16(e)<\/p>\n<\/td>\n

<\/td>\n\n

Change in Control Payments; Acceleration of Vesting<\/p>\n<\/td>\n<\/tr>\n

\n

4.18<\/p>\n<\/td>\n

<\/td>\n\n

Insurance<\/p>\n<\/td>\n<\/tr>\n

\n

4.20(a)<\/p>\n<\/td>\n

<\/td>\n\n

Company Products<\/p>\n<\/td>\n<\/tr>\n

\n

4.20(e)<\/p>\n<\/td>\n

<\/td>\n\n

Company Registered IP<\/p>\n<\/td>\n<\/tr>\n

\n

4.20(h)<\/p>\n<\/td>\n

<\/td>\n\n

Third-Party Intellectual Property<\/p>\n<\/td>\n<\/tr>\n

\n

4.20(i)<\/p>\n<\/td>\n

<\/td>\n\n

Third-Party Software<\/p>\n<\/td>\n<\/tr>\n

\n

4.20(l)<\/p>\n<\/td>\n

<\/td>\n\n

Exclusive Rights to Intellectual Property<\/p>\n<\/td>\n<\/tr>\n

\n

4.20(m)<\/p>\n<\/td>\n

<\/td>\n\n

Funding, Facilities or Personnel of any Governmental Entity<\/p>\n<\/td>\n<\/tr>\n

\n

4.21(b)<\/p>\n<\/td>\n

<\/td>\n\n

Owned and Leased Real Property<\/p>\n<\/td>\n<\/tr>\n

\n

6.01<\/p>\n<\/td>\n

<\/td>\n\n

Conduct of the Company<\/p>\n<\/td>\n<\/tr>\n

\n

6.01(h)<\/p>\n<\/td>\n

<\/td>\n\n

Employee Agreements<\/p>\n<\/td>\n<\/tr>\n

\n

6.06<\/p>\n<\/td>\n

<\/td>\n\n

Employee Benefits Matters<\/p>\n<\/td>\n<\/tr>\n

\n

7.01(c)<\/p>\n<\/td>\n

<\/td>\n\n

Foreign Competition Laws<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

iv<\/p>\n

\n

AGREEMENT AND PLAN OF MERGER <\/strong><\/p>\n

AGREEMENT AND PLAN OF MERGER (this “Agreement<\/strong>“) dated as of
\nNovember 10, 2011, among Bitstream Inc., a Delaware corporation (the
\n“Company<\/strong>“), Monotype Imaging Holdings Inc., a Delaware
\ncorporation (“Parent<\/strong>“), and Birch Acquisition Corporation, a
\nDelaware corporation and a wholly-owned subsidiary of Parent (“Merger
\nSubsidiary<\/strong>“).<\/p>\n

WHEREAS, the Boards of Directors of each of the Company, Parent and Merger
\nSubsidiary have approved this Agreement and deem it advisable and in the best
\ninterests of their respective stockholders to consummate the merger of Merger
\nSubsidiary with and into the Company (the “Merger<\/strong>“) and the
\nother transactions contemplated hereby, on the terms and conditions set forth
\nherein;<\/p>\n

WHEREAS, it is a condition to the Merger that the Company, at or prior to the
\nEffective Time, distribute to its stockholders all of the shares of common stock
\nof Marlborough Software Development Holdings Inc. (the “Spin-Off
\nSubsidiary<\/strong>“), a Delaware corporation and a direct wholly-owned
\nsubsidiary of the Company that exclusively owns, controls and operates the Bolt
\nBusiness and the Pageflex Business (the “Distribution<\/strong>” and
\ntogether with the related transactions, actions, agreements and undertakings in
\nconnection therewith, in each case required pursuant to the Spin-Off Agreements,
\nthe “Spin-Off<\/strong>“); and<\/p>\n

WHEREAS, concurrently with the execution and delivery of this Agreement, and
\nas a condition and inducement to Parent153s and Merger Subsidiary153s willingness to
\nenter into this Agreement, certain stockholders of the Company are entering into
\nVoting Agreements in the form attached as Exhibit A<\/u> hereto (the
\n“Voting Agreements<\/strong>“) pursuant to which those stockholders,
\namong other things, will agree to vote all voting securities in the Company
\nbeneficially owned by them in favor of the approval and adoption of this
\nAgreement and the Merger.<\/p>\n

NOW, THEREFORE, in consideration of the foregoing and the respective
\nrepresentations, warranties, covenants and agreements set forth below, the
\nparties hereto agree as follows:<\/p>\n

ARTICLE 1 <\/strong><\/p>\n

DEFINITIONS <\/strong><\/p>\n

Section 1.01. Definitions.<\/em><\/p>\n

(a) As used herein, the following terms have the following meanings:<\/p>\n

“Acquisition Proposal<\/strong>” means any offer, proposal, inquiry or
\nindication of interest from any Third Party relating to any transaction or
\nseries of related transactions involving (i) any acquisition or purchase by any
\nThird Party, directly or indirectly, of 20% or more of any class of outstanding
\nvoting or equity securities of the Company or any of the Limited Company
\nSubsidiaries, or any tender offer (including a self-tender) or exchange offer
\nthat, if consummated, would result in any Third Party beneficially owning 20% or
\nmore of any class of outstanding voting or equity securities of the Company or
\nany of the Limited Company Subsidiaries, (ii) any<\/p>\n

\n

merger, amalgamation, consolidation, share exchange, business combination,
\njoint venture or other similar transaction involving the Company or any of the
\nLimited Company Subsidiaries, the business of which constitutes 20% or more of
\nthe net revenues, net income or assets of the Company and of any of the Limited
\nCompany Subsidiaries, taken as a whole, (iii) any sale, lease, exchange,
\ntransfer, license (other than licenses in the ordinary course of business),
\nacquisition or disposition of 20% or more of the assets of the Company and the
\nLimited Company Subsidiaries (measured by the lesser of book or fair market
\nvalue thereof), taken as a whole, or (iv) any liquidation, dissolution,
\nrecapitalization, extraordinary dividend or other significant corporate
\nreorganization of the Company or any of the Limited Company Subsidiaries, the
\nbusiness of which constitutes 20% or more of the net revenues, net income or
\nassets of the Company and the Limited Company Subsidiaries, taken as a whole (in
\neach case, other than the Merger).<\/p>\n

“Affiliate<\/strong>” means, with respect to any Person, any other
\nPerson directly or indirectly controlling, controlled by, or under common
\ncontrol with such Person. As used in this definition, the term “control”
\n(including the terms “controlling,” “controlled by” and “under common control
\nwith”) means possession, directly or indirectly, of the power to direct or cause
\nthe direction of the management or policies of a Person, whether through the
\nownership of voting securities, by contract or otherwise.<\/p>\n

“Aggregate Merger Consideration<\/strong>” shall mean the amount
\ncalculated in accordance with the following formula: (i) $50,000,000 plus (ii)
\nthe Net Asset Value plus (iii) the aggregate exercise price of all Company
\nCompensatory Awards outstanding (and not exercised) as of immediately prior to
\nthe Effective Time. If the Net Asset Value is a negative amount, then the
\nforegoing calculation shall result in a reduction of the $50,000,000 amount.\n<\/p>\n

“Antitrust Laws<\/strong>” means applicable federal, state, local or
\nforeign antitrust, competition, premerger notification or trade regulation laws,
\nregulations or Orders.<\/p>\n

“Applicable Law<\/strong>” means, with respect to any Person, any
\ninternational, national, federal, state or local law (statutory, common or
\notherwise), constitution, treaty, convention, ordinance, code, rule, regulation
\nor other similar requirement enacted, adopted, promulgated or applied by a
\nGovernmental Authority that is binding upon or applicable to such Person, as
\namended unless expressly specified otherwise.<\/p>\n

“Bolt Business<\/strong>” means the mobile web browsing technologies
\nbusiness of the Company and its Subsidiaries.<\/p>\n

“Business Day<\/strong>” means a day, other than Saturday, Sunday or
\nother day on which commercial banks in New York, New York are authorized or
\nrequired by Applicable Law to close.<\/p>\n

“Closing Date<\/strong>” means the date of Closing.<\/p>\n

“Code<\/strong>” means the Internal Revenue Code of 1986, as amended.\n<\/p>\n

“Company Balance Sheet<\/strong>” means the consolidated balance sheet
\nof the Company and its Subsidiaries as of December 31, 2010 and the footnotes
\nthereto set forth in the Company153s annual report on Form 10-K for the fiscal
\nyear ended December 31, 2010.<\/p>\n

2<\/p>\n

\n

“Company Balance Sheet Date<\/strong>” means December 31, 2010.<\/p>\n

“Company Board<\/strong>” means the Board of Directors of the Company.
\nFor purposes of this Agreement, unless otherwise specifically provided for
\nherein, any determination or action by the Company Board shall be a
\ndetermination or action approved by the greater of (i) a majority of the entire
\nnumber of directors or (ii) the number of directors required to approve such
\naction at a meeting duly called and held at which all members of the Company
\nBoard were present and voting.<\/p>\n

“Company IP<\/strong>” means any and all Intellectual Property that
\nhas been used, is used or is held for use in the business of the Company or any
\nof its Subsidiaries as previously conducted, currently conducted or as currently
\nproposed to be conducted.<\/p>\n

“Company Material Adverse Effect<\/strong>” means (i) a material
\nadverse effect on the business, financial condition or results of operations of
\nthe Company and the Limited Company Subsidiaries, taken as a whole, or (ii) an
\neffect that would prevent, materially delay or materially impair the Company153s
\nability to consummate the Merger, excluding in the case of clauses (i) and (ii)
\nabove, any such material adverse effect resulting from or arising out of: (A)
\ngeneral economic or political conditions (including acts of terrorism or war) or
\nconditions in the securities, credit or financial markets in general that do not
\nmaterially disproportionately affect the Company and the Limited Company
\nSubsidiaries, taken as a whole, as compared to other companies participating in
\nthe industries in which the Company and the Limited Company Subsidiaries
\noperate, (B) general conditions in the industries in which the Company and the
\nLimited Company Subsidiaries operate that do not materially disproportionately
\naffect the Company and the Limited Company Subsidiaries, taken as a whole, as
\ncompared to other companies participating in the industries in which the Company
\nand the Limited Company Subsidiaries operate, (C) any changes (after the date
\nhereof) in GAAP or Applicable Law, (D) any failure by the Company to meet
\ninternal or published projections, forecasts or revenue or earnings predictions
\nfor any period (provided that the underlying causes of such failure may be
\nconsidered in determining whether there is a Company Material Adverse Effect),
\n(E) any change in the market price or trading volume of the Company Common Stock
\n(provided that the underlying causes of such change in market price or trading
\nvolume may be considered in determining whether there is a Company Material
\nAdverse Effect), (F) the effects of any public announcement of this Agreement or
\nthe Spin-Off Agreements or the pendency of the transactions contemplated hereby
\nor thereby, including the loss of any customer, employee, partner or supplier as
\na result of such public announcement or pendency, or (G) the taking of any
\nspecific action at the written request or with the written consent of Parent or
\nas expressly required by this Agreement.<\/p>\n

“Company Net Operating Losses<\/strong>” means the Company153s net
\noperating losses, the use of which is not subject to any limitations under
\nSections 269, 382, 383, 384 or 1502 of the Code, or any similar provision of
\nstate, local or foreign law, determined based on an interim closing of the books
\nas of the end of the day on the Closing Date; for this purpose, any income or
\ngain recognized by the Company or any of its Subsidiaries (whether or not
\nreflected on any Tax Return) in connection with the Spin-Off shall be included
\nin the short period ending at the end of the day on the Closing Date.<\/p>\n

3<\/p>\n

\n

“Company Products<\/strong>” means each product (including any
\nsoftware product) or service developed, manufactured, sold, licensed, leased or
\ndelivered by the Company or any of its Subsidiaries.<\/p>\n

“Company Registered IP<\/strong>” means all of the Registered IP owned
\nby, under obligation of assignment to, or filed in the name of, the Company or
\nany of its Subsidiaries.<\/p>\n

“Company Restricted Stock Award<\/strong>” means each award with
\nrespect to a share of restricted Company Common Stock outstanding under any
\nCompany Stock Plan that is, at the time of determination, subject to forfeiture
\nor repurchase by the Company.<\/p>\n

“Company Stock Option<\/strong>” means each option to purchase Company
\nCommon Stock outstanding under any Company Stock Plan or otherwise.<\/p>\n

“Company Stock Plan<\/strong>” means any stock option, stock incentive
\nor other equity compensation plan or agreement sponsored or maintained by the
\nCompany or any Subsidiary or Affiliate of the Company.<\/p>\n

“Contract<\/strong>” means any legally binding written or oral
\ncontract, agreement, note, bond, indenture, mortgage, guarantee, option, lease
\n(or sublease), license, sales or purchase order, warranty, commitment, or other
\ninstrument, obligation, arrangement or understanding of any kind.<\/p>\n

“Controlled Group Liability<\/strong>” means any and all liabilities
\n(i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under
\nSections 412 and 4971 of the Code, (iv) as a result of a failure to comply with
\nthe continuation coverage requirements of Section 601 et seq. of ERISA and
\nSection 4980B of the Code, and (v) under corresponding or similar provisions of
\nforeign laws or regulations, other than such liabilities that arise solely out
\nof, or relate solely to, the Company Employee Plans.<\/p>\n

“Delaware Law<\/strong>” means the General Corporation Law of the
\nState of Delaware.<\/p>\n

“Distribution Date<\/strong>” means the date of the Distribution.<\/p>\n

“Environmental Law<\/strong>” means any Applicable Law or any
\nagreement with any Governmental Authority or other Person, relating to human
\nhealth and safety, the environment or any Hazardous Substance.<\/p>\n

“Environmental Permits<\/strong>” means, with respect to any Person,
\nall Governmental Authorizations relating to or required by Environmental Law and
\naffecting, or relating in any way to, the business of such Person or any of its
\nSubsidiaries.<\/p>\n

“Equity Interest<\/strong>” means any share, capital stock,
\npartnership, member or similar interest in any entity, and any option, warrant,
\nright or security convertible, exchangeable or exercisable therefor.<\/p>\n

“ERISA<\/strong>” means the Employee Retirement Income Security Act of
\n1974, as amended.<\/p>\n

4<\/p>\n

\n

“ERISA Affiliate<\/strong>” of any entity means any other entity that,
\ntogether with such entity, would be treated as a single employer within the
\nmeaning of Section 414(b), (c) or (m) of the Code or Section 4001(b)(1) of
\nERISA.<\/p>\n

“Exchange Act<\/strong>” means the Securities Exchange Act of 1934, as
\namended, and the rules and regulations promulgated thereunder.<\/p>\n

“Executive Officer<\/strong>” shall have the meaning set forth in Rule
\n3b-7 of the Exchange Act.<\/p>\n

“Fully Diluted Company Shares<\/strong>” means, as of immediately
\nprior to the Effective Time, the sum of (i) all outstanding shares of Company
\nCommon Stock plus (ii) all shares of Company Common Stock subject to outstanding
\nCompany Compensatory Awards.<\/p>\n

“GAAP<\/strong>” means generally accepted accounting principles in the
\nUnited States, as in effect on the date hereof.<\/p>\n

“Governmental Authority<\/strong>” means (i) any government or any
\nstate, department, local authority or other political subdivision thereof, or
\n(ii) any governmental or quasi-governmental body, agency, authority (including
\nany central bank, Taxing Authority or transgovernmental or supranational entity
\nor authority), minister or instrumentality (including any court or tribunal)
\nexercising executive, legislative, judicial, regulatory or administrative
\nfunctions of or pertaining to government.<\/p>\n

“Governmental Authorizations<\/strong>” means, with respect to any
\nPerson, all licenses, permits, certificates, waivers, consents, franchises
\n(including similar authorizations or permits), exemptions, variances,
\nexpirations and terminations of any waiting period requirements and other
\nauthorizations and approvals issued to such Person by or obtained by such Person
\nfrom any Governmental Authority, or of which such Person has the benefit under
\nany Applicable Law.<\/p>\n

“Hazardous Substance<\/strong>” means any pollutant, contaminant,
\nwaste or chemical or any toxic, radioactive, ignitable, corrosive, reactive or
\notherwise hazardous substance, waste or material, or any substance, waste or
\nmaterial having any constituent elements displaying any of the foregoing
\ncharacteristics, including any substance, waste or material regulated under any
\nEnvironmental Law.<\/p>\n

“Indebtedness<\/strong>” means, collectively, any (i) indebtedness for
\nborrowed money, (ii) indebtedness evidenced by any bond, debenture, note,
\nmortgage, indenture or other debt instrument or debt security, (iii) amounts
\nowing as deferred purchase price for the purchase of any property, or (iv)
\nguarantees with respect to any indebtedness or obligation of a type described in
\nclauses (i) through (iii) above of any other Person.<\/p>\n

“Intellectual Property<\/strong>” means any or all of the following
\nand all rights in, arising out of, or associated therewith: (i) all United
\nStates, international and foreign patents and applications therefor and all
\nreissues, divisions, divisionals, renewals, extensions, provisionals,
\ncontinuations and continuations-in-part thereof, and all patents, applications,
\ndocuments and filings claiming priority to or serving as a basis for priority
\nthereof; (ii) all inventions (whether or not patentable), invention disclosures,
\nimprovements, trade secrets, proprietary information, know how, computer
\nsoftware programs (in both source code and object code form), business methods,\n<\/p>\n

5<\/p>\n

\n

technical data and customer lists, tangible or intangible proprietary
\ninformation, and all documentation relating to any of the foregoing; (iii) all
\ncopyrights, copyrights registrations and applications therefor, and all other
\nrights corresponding thereto throughout the world; (iv) all industrial designs
\nand any registrations and applications therefor throughout the world; (v) all
\ntrade names, logos, common law trademarks and service marks, trademark and
\nservice mark registrations and applications therefor throughout the world; (vi)
\nall databases and all rights therein throughout the world; (vii) all moral and
\neconomic rights of authors and inventors, however denominated, throughout the
\nworld; (viii) all Web addresses, sites and domain names and internet protocol
\naddresses; and (ix) any similar or equivalent rights to any of the foregoing
\nanywhere in the world.<\/p>\n

“International Plan<\/strong>” means any Company Employee Plan that is
\nentered into, maintained, administered or contributed to by the Company or any
\nof its Affiliates, and covers any employee or former employee of the Company or
\nany of its Subsidiaries who is or was employed by the Company or any of its
\nSubsidiaries outside the United States.<\/p>\n

“IT Assets<\/strong>” means all hardware, software (in both object and
\nsource code form), firmware, networks and connecting media and related
\ntechnology infrastructure used by the Company or any of its Subsidiaries in
\nsupport of their respective business operations and not offered for sale to
\ntheir customers.<\/p>\n

“Knowledge of the Company<\/strong>” means knowledge, after reasonable
\ninquiry, of each of the individuals identified in Section 1.01<\/u> of the
\nCompany Disclosure Schedule.<\/p>\n

“Lease<\/strong>” means that certain Office Lease Agreement by and
\nbetween Normandy Nickerson Road, LLC and the Company, dated June 22, 2009.<\/p>\n

“Lien<\/strong>” means, with respect to any property or asset, any
\nmortgage, lien, pledge, charge, security interest, encumbrance, claim,
\ninfringement, right of first refusal, preemptive right, community property right
\nor other adverse claim of any kind in respect of such property or asset. For
\npurposes of this Agreement, a Person shall be deemed to own subject to a Lien
\nany property or asset that it has acquired or holds subject to the interest of a
\nvendor or lessor under any conditional sale agreement, capital lease or other
\ntitle retention agreement relating to such property or asset.<\/p>\n

“Limited Company Subsidiaries<\/strong>” means all Subsidiaries of the
\nCompany other than the Spin-Off Subsidiary or any wholly-owned Subsidiary of the
\nSpin-Off Subsidiary.<\/p>\n

“made available<\/strong>” shall mean that such information or
\ndocumentation was either (i) provided directly to Parent or Parent153s outside
\ncounsel, or (ii) included in the Bitstream Inc. “Project Garamond” data site
\npowered by IntraLinks, Inc. to which Parent and Parent153s counsel were provided
\naccess by the Company, in each case, on or before 11:59 pm (Eastern Time) on
\nNovember 9, 2011.<\/p>\n

“Merger Consideration<\/strong>” shall mean the Aggregate Merger
\nConsideration divided by the Fully Diluted Company Shares.<\/p>\n

“Nasdaq<\/strong>” means the Nasdaq Capital Market.<\/p>\n

6<\/p>\n

\n

“Net Asset Value<\/strong>” means (i) the Company153s total current
\nassets (consisting of all such current assets required to be set forth on a
\nbalance sheet prepared in accordance with GAAP but excluding current Tax assets)
\nplus (ii) the value of net property and equipment to the extent not included in
\n(i) above minus (iii) total liabilities (consisting of all such liabilities
\nrequired to be set forth on a balance sheet prepared in accordance with GAAP,
\nincluding accrued payroll and withholding Taxes, accrued employer portion of
\npayroll Taxes (including with respect to any payments to be made to employees or
\nconsultants of the Company in connection with the Closing), and other Tax
\nliabilities). For purposes of the foregoing calculation, total liabilities shall
\ninclude, without limitation, all liabilities associated with (i) the treatment
\nof the Lease as contemplated by Section 6.18(a)<\/u> hereof, (ii) the
\ntermination of all Company employees who will not become employees of Parent,
\nthe Surviving Corporation or the Subsidiaries of the Surviving Corporation after
\nthe Effective Time, (iii) the Merger and all other transactions contemplated
\nhereby and (iv) the Spin-Off, including any Spin-Off Taxes determined at the
\ntime the Company153s Merger Consideration Calculations are computed under
\nSection 2.03<\/u>. Notwithstanding the foregoing, total liabilities shall
\nexclude all liabilities that are assumed exclusively by the Spin-Off Subsidiary
\nin connection with the Spin-Off with no residual liability to the Company but,
\nfor the avoidance of doubt, not excluding the Spin-Off Taxes.<\/p>\n

“Order<\/strong>” means, with respect to any Person, any order,
\ninjunction, judgment, decree, ruling or other similar requirement enacted,
\nadopted, promulgated or applied by a Governmental Authority or arbitrator that
\nis binding upon or applicable to such Person or its property.<\/p>\n

“Other Company Representations<\/strong>” shall mean the
\nrepresentations and warranties of the Company contained in Article 4<\/u>,
\nother than the Specified Company Representations.<\/p>\n

“Pageflex Business<\/strong>” means the personalized marketing
\ncommunications and variable publishing technology business of the Company and
\nits Subsidiaries.<\/p>\n

“PBGC<\/strong>” means the Pension Benefit Guaranty Corporation.<\/p>\n

“Permitted Liens<\/strong>” means (i) Liens disclosed on the Company
\nBalance Sheet, (ii) Liens for Taxes that are (A) not yet due and payable as of
\nthe Closing Date or (B) being contested in good faith (and for which adequate
\naccruals or reserves have been established on the Company Balance Sheet), and
\n(iii) statutory Liens of landlords and Liens of carriers, warehousemen,
\nmechanics, materialmen and other Liens imposed by Law that, in the aggregate, do
\nnot materially impair the value or the present or intended use and operation of
\nthe assets to which they relate.<\/p>\n

“Person<\/strong>” means an individual, corporation, partnership,
\nlimited liability company, association, trust or other entity or organization,
\nincluding a government or political subdivision or an agency or instrumentality
\nthereof.<\/p>\n

“Proceeding<\/strong>” means any suit, claim, action, litigation,
\narbitration, proceeding (including any civil, criminal, administrative,
\ninvestigative or appellate proceeding), hearing, audit, examination or
\ninvestigation commenced, brought, conducted or heard by or before, or otherwise
\ninvolving, any court or other Governmental Authority or any arbitrator or
\narbitration panel.<\/p>\n

7<\/p>\n

\n

“Registered IP<\/strong>” means all United States, international and
\nforeign: (i) patents and patent applications (including provisional applications
\nand design patents and applications) and all reissues, divisions, divisionals,
\nrenewals, extensions, counterparts, continuations and continuations-in-part
\nthereof, and all patents, applications, documents and filings claiming priority
\nthereto or serving as a basis for priority thereof; (ii) registered trademarks,
\nservice marks, applications to register trademarks, applications to register
\nservice marks, intent-to-use applications, or other registrations or
\napplications related to trademarks; (iii) registered copyrights and applications
\nfor copyright registration; (iv) domain name registrations and Internet number
\nassignments; and (v) any other Company IP that is the subject of an application,
\ncertificate, filing, registration or other document issued, filed with, or
\nrecorded by any Governmental Authority.<\/p>\n

“Representatives<\/strong>” means, with respect to any Person, the
\ndirectors, officers, employees, financial advisors, attorneys, accountants,
\nconsultants, agents and other authorized representatives of such Person, acting
\nin such capacity.<\/p>\n

“Sarbanes-Oxley Act<\/strong>” means the Sarbanes-Oxley Act of 2002,
\nand the rules and regulations promulgated thereunder.<\/p>\n

“SEC<\/strong>” means the Securities and Exchange Commission.<\/p>\n

“Securities Act<\/strong>” means the Securities Act of 1933, as
\namended, and the rules and regulations promulgated thereunder.<\/p>\n

“Short 2012 Taxable Year<\/strong>” means the short taxable year of
\nthe Company commencing on January 1, 2012 and ending at the end of the Closing
\nDate.<\/p>\n

“Specified Company Representations<\/strong>” shall mean the
\nrepresentations and warranties of the Company contained in (i) the first three
\nsentences of Section 4.01<\/u>, and (ii) Sections 4.02<\/u>,
\n4.04(i)<\/u>, 4.05<\/u>, 4.25<\/u>, 4.26<\/u> and 4.27<\/u>.<\/p>\n

“Spin-Off Agreements<\/strong>” means (i) the Distribution Agreement,
\nthe Contribution Agreement, the Intellectual Property Assignment and License
\nAgreements, and the Tax Indemnity Agreement, each between the Company and the
\nSpin-Off Subsidiary and dated as of the date hereof, (ii) the Transition
\nServices Agreement, and (iii) the other agreements relating to the Spin-Off, in
\neach case, in the form as provided by the Company to Parent prior to the date
\nhereof.<\/p>\n

“Spin-Off Taxes<\/strong>” means any and all Tax liability of the
\nCompany arising out of or relating to the Spin-Off determined by taking into
\naccount Company Net Operating Losses, business credit carryforwards, foreign tax
\ncredits, and deductions for success based fees relating to this Agreement
\npursuant to Revenue Procedure 2011-79, 2011-18 I.R.B. 746, in each case, to the
\nextent allowable under Applicable Law, and by computing the Tax liability of the
\nCompany for the Short 2012 Taxable Year with and without the occurrence of the
\nSpin-Off.<\/p>\n

“Subsidiary<\/strong>” means, with respect to any Person, any entity
\nof which securities or other ownership interests having ordinary voting power to
\nelect a majority of the board of directors or<\/p>\n

8<\/p>\n

\n

other persons performing similar functions are at any time directly or
\nindirectly owned by such Person.<\/p>\n

“Superior Proposal<\/strong>” means any bona fide, unsolicited,
\nwritten Acquisition Proposal which did not result from or arise out of a breach
\nof Section 6.03<\/u> of this Agreement, made by a Third Party, which, if
\nconsummated, would result in such Third Party (or in the case of a direct merger
\nbetween such Third Party or any Subsidiary of such Third Party and the Company,
\nthe stockholders of such Third Party) owning, directly or indirectly, all of the
\noutstanding shares of Company Common Stock, or all or substantially all of the
\nconsolidated assets of the Company and its Subsidiaries, and which Acquisition
\nProposal the Company Board determines in good faith, after considering the
\nadvice of its outside legal counsel and a financial advisor of nationally
\nrecognized reputation, and after taking into account such factors as the Company
\nBoard considers to be appropriate in the exercise of its fiduciary duties (which
\nfactors shall include any termination or break-up fees, expense reimbursement
\nprovisions and conditions to consummation), and any financial, legal,
\nregulatory, and other aspects of such Acquisition Proposal (including how the
\nAcquisition Proposal values the entire Company, inclusive of the Pageflex
\nBusiness and the Bolt Business, and the financing terms and the ability of such
\nThird Party to finance such Acquisition Proposal), (i) is more favorable to the
\nCompany153s stockholders (other than Parent and its Affiliates) from a financial
\npoint of view than as provided hereunder (including any changes to the terms of
\nthis Agreement proposed by Parent in response to such Superior Proposal pursuant
\nto and in accordance with Section 6.03<\/u> or otherwise), (ii) (x) is not
\nsubject to any financing condition or (y) if financing is required, such
\nfinancing is then fully committed to the Third Party, (iii) is reasonably
\ncapable of being completed on the terms proposed without unreasonable delay and
\n(iv) includes termination rights of the Third Party on terms no less favorable
\nto the Company than the terms set forth in this Agreement, all from a Third
\nParty capable of performing such terms.<\/p>\n

“Third Party<\/strong>” means any Person or “group” (as defined under
\nSection 13(d) of the Exchange Act) of Persons, other than Parent or any of its
\nAffiliates or Representatives.<\/p>\n

“Third Party Software<\/strong>” means any software (including object
\ncode, binary code, source code, libraries, routines, subroutines or other code,
\nand including commercial, open-source and freeware software) and any
\ndocumentation or other material related to such software, and any derivative of
\nany of the foregoing, that is (i) not solely owned by the Company and (ii)
\nincorporated in, distributed with, or required, necessary or depended upon for
\nthe development, use or commercialization of, any Company Product. Third Party
\nSoftware includes (A) software that is provided to Company153s end-users in any
\nmanner, whether for free or for a fee, whether distributed or hosted, and
\nwhether embedded or incorporated in or bundled with any Company Product or on a
\nstandalone basis, (B) software that is used for development, maintenance and\/or
\nsupport of any Company Product, including development tools such as compilers,
\nconverters, debuggers or parsers, tracking and database tools such as project
\nmanagement software, source code control and bug tracking software, and software
\nused for internal testing purposes, (C) software that is used to generate code
\nor other software that is described in clauses (A) or (B), and (D) software that
\nis used for the Company153s internal business purposes, including accounting
\nsoftware, human resources software, customer relationship management software
\nand similar software.<\/p>\n

9<\/p>\n

\n

“Transition Services Agreement<\/strong>” means that certain
\nTransition Services Agreement, dated as of the date hereof, by and between
\nParent and the Spin-Off Subsidiary.<\/p>\n

“Treasury Regulations<\/strong>” means the regulations promulgated
\nunder the Code by the United States Department of Treasury.<\/p>\n

(b) Each of the following terms is defined in the Section set forth opposite
\nsuch term:<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Term<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Section<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

Acquisition Agreement<\/p>\n<\/td>\n

<\/td>\n\n

6.03(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Adverse Recommendation Change<\/p>\n<\/td>\n

<\/td>\n\n

6.03(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Agreement<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Antitrust Counsel Only Material<\/p>\n<\/td>\n

<\/td>\n\n

6.12(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Board Recommendation<\/p>\n<\/td>\n

<\/td>\n\n

6.02(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Certificate of Merger<\/p>\n<\/td>\n

<\/td>\n\n

2.02(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Certificates<\/p>\n<\/td>\n

<\/td>\n\n

2.04(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Closing<\/p>\n<\/td>\n

<\/td>\n\n

2.01<\/p>\n<\/td>\n<\/tr>\n

\n

Company<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Company Common Stock<\/p>\n<\/td>\n

<\/td>\n\n

4.05(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Compensatory Award<\/p>\n<\/td>\n

<\/td>\n\n

2.06(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Disclosure Schedule<\/p>\n<\/td>\n

<\/td>\n\n

Article 4<\/p>\n<\/td>\n<\/tr>\n

\n

Company Employee Plan<\/p>\n<\/td>\n

<\/td>\n\n

4.16(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company153s Merger Consideration Calculations<\/p>\n<\/td>\n

<\/td>\n\n

2.03(e)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Parties<\/p>\n<\/td>\n

<\/td>\n\n

9.04(g)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Preferred Stock<\/p>\n<\/td>\n

<\/td>\n\n

4.05(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Return<\/p>\n<\/td>\n

<\/td>\n\n

4.15(m)<\/p>\n<\/td>\n<\/tr>\n

\n

Company SEC Documents<\/p>\n<\/td>\n

<\/td>\n\n

4.07(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Securities<\/p>\n<\/td>\n

<\/td>\n\n

4.05(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Subsidiary Securities<\/p>\n<\/td>\n

<\/td>\n\n

4.06(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Company 401(k) Plan<\/p>\n<\/td>\n

<\/td>\n\n

6.07<\/p>\n<\/td>\n<\/tr>\n

\n

Company153s Tax Calculations<\/p>\n<\/td>\n

<\/td>\n\n

6.19(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Compensatory Award Amount<\/p>\n<\/td>\n

<\/td>\n\n

2.06(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Confidentiality Agreement<\/p>\n<\/td>\n

<\/td>\n\n

6.16<\/p>\n<\/td>\n<\/tr>\n

\n

Dissenting Shares<\/p>\n<\/td>\n

<\/td>\n\n

2.05<\/p>\n<\/td>\n<\/tr>\n

\n

Distribution<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Effective Time<\/p>\n<\/td>\n

<\/td>\n\n

2.02(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Employee Plan<\/p>\n<\/td>\n

<\/td>\n\n

4.16(a)<\/p>\n<\/td>\n<\/tr>\n

\n

End Date<\/p>\n<\/td>\n

<\/td>\n\n

8.01(b)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

Exchange Agent<\/p>\n<\/td>\n

<\/td>\n\n

2.04(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Filed Company SEC Documents<\/p>\n<\/td>\n

<\/td>\n\n

Article 4<\/p>\n<\/td>\n<\/tr>\n

\n

Firm<\/p>\n<\/td>\n

<\/td>\n\n

2.03(f)<\/p>\n<\/td>\n<\/tr>\n

\n

Foreign Competition Laws<\/p>\n<\/td>\n

<\/td>\n\n

4.03<\/p>\n<\/td>\n<\/tr>\n

\n

Form S-1<\/p>\n<\/td>\n

<\/td>\n\n

4.09<\/p>\n<\/td>\n<\/tr>\n

\n

Governmental Antitrust Authority<\/p>\n<\/td>\n

<\/td>\n\n

6.12(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Indemnified Parties<\/p>\n<\/td>\n

<\/td>\n\n

6.11(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Insurance Policies<\/p>\n<\/td>\n

<\/td>\n\n

4.18<\/p>\n<\/td>\n<\/tr>\n

\n

Lease Agreement<\/p>\n<\/td>\n

<\/td>\n\n

4.21(b)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

10<\/p>\n

\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Term<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Section<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

Lease Consent<\/p>\n<\/td>\n

<\/td>\n\n

6.18(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Leased Real Property<\/p>\n<\/td>\n

<\/td>\n\n

4.21(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Major Customers<\/p>\n<\/td>\n

<\/td>\n\n

4.14(a)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

Major Suppliers<\/p>\n<\/td>\n

<\/td>\n\n

4.14(a)(iii)<\/p>\n<\/td>\n<\/tr>\n

\n

Material Contract<\/p>\n<\/td>\n

<\/td>\n\n

4.14(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Merger<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Merger Subsidiary<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Necessary IP<\/p>\n<\/td>\n

<\/td>\n\n

4.20(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Notice Period<\/p>\n<\/td>\n

<\/td>\n\n

6.03(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Owned Real Property<\/p>\n<\/td>\n

<\/td>\n\n

4.21(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Parent<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Parent Expenses<\/p>\n<\/td>\n

<\/td>\n\n

9.04(f)<\/p>\n<\/td>\n<\/tr>\n

\n

Parent153s Objection<\/p>\n<\/td>\n

<\/td>\n\n

2.03(e)<\/p>\n<\/td>\n<\/tr>\n

\n

Parent153s Tax Objection<\/p>\n<\/td>\n

<\/td>\n\n

6.19(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Payment Fund<\/p>\n<\/td>\n

<\/td>\n\n

2.04(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Per Share Spin-Off Subsidiary Common Stock<\/p>\n<\/td>\n

<\/td>\n\n

2.06(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Proxy Statement<\/p>\n<\/td>\n

<\/td>\n\n

4.09<\/p>\n<\/td>\n<\/tr>\n

\n

Spin-Off<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Spin-Off Failure Termination Fee<\/p>\n<\/td>\n

<\/td>\n\n

9.04(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Spin-Off Option<\/p>\n<\/td>\n

<\/td>\n\n

2.06(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Spin-Off Subsidiary<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Stockholder Approval<\/p>\n<\/td>\n

<\/td>\n\n

4.02(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Stockholder Meeting<\/p>\n<\/td>\n

<\/td>\n\n

6.02(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Surviving Corporation<\/p>\n<\/td>\n

<\/td>\n\n

2.02(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Surviving Corporation Employees<\/p>\n<\/td>\n

<\/td>\n\n

6.06<\/p>\n<\/td>\n<\/tr>\n

\n

Tax<\/p>\n<\/td>\n

<\/td>\n\n

4.15(n)<\/p>\n<\/td>\n<\/tr>\n

\n

Tax Asset<\/p>\n<\/td>\n

<\/td>\n\n

4.15(p)<\/p>\n<\/td>\n<\/tr>\n

\n

Tax Return<\/p>\n<\/td>\n

<\/td>\n\n

4.15(q)<\/p>\n<\/td>\n<\/tr>\n

\n

Taxing Authority<\/p>\n<\/td>\n

<\/td>\n\n

4.15(o)<\/p>\n<\/td>\n<\/tr>\n

\n

Termination Fee<\/p>\n<\/td>\n

<\/td>\n\n

9.04(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Uncertificated Shares<\/p>\n<\/td>\n

<\/td>\n\n

2.04(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Voting Agreements<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

WARN Act<\/p>\n<\/td>\n

<\/td>\n\n

4.17(b)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Section 1.02. Other Definitional and Interpretative Provisions.<\/em> The
\nwords “hereof,” “herein” and “hereunder” and words of like import used in this
\nAgreement shall refer to this Agreement as a whole and not to any particular
\nprovision of this Agreement. The captions herein are included for convenience of
\nreference only and shall be ignored in the construction or interpretation
\nhereof. References to Articles, Sections, Exhibits and Schedules are to
\nArticles, Sections, Exhibits and Schedules of this Agreement unless otherwise
\nspecified. All Exhibits and Schedules annexed hereto or referred to herein are
\nhereby incorporated in and made a part of this Agreement as if set forth in full
\nherein. Any capitalized terms used in any Exhibit or Schedule but not otherwise
\ndefined therein shall have the meaning as defined in this Agreement. Any
\nsingular term in this Agreement shall be deemed to include the plural, and any
\nplural term the singular. Whenever the words “include,” “includes” or
\n“including” are used in this Agreement,<\/p>\n

11<\/p>\n

\n

they shall be deemed to be followed by the words “without limitation,”
\nwhether or not they are in fact followed by those words or words of like import.
\n“Writing,” “written” and comparable terms refer to printing, typing and other
\nmeans of reproducing words (including electronic media) in a visible form.
\nReferences to any agreement or contract are to that agreement or contract as
\namended, modified or supplemented from time to time in accordance with the terms
\nhereof and thereof; provided that with respect to any agreement or contract
\nlisted on any schedules hereto, all such amendments, modifications or
\nsupplements must also be listed in the appropriate schedule. References to any
\nPerson include the successors and permitted assigns of that Person. References
\nto any statute are to that statute, as amended from time to time, and to the
\nrules and regulations promulgated thereunder. References to “$” and “dollars”
\nare to the currency of the United States. References from or through any date
\nshall mean, unless otherwise specified, from and including or through and
\nincluding, respectively.<\/p>\n

ARTICLE 2 <\/strong><\/p>\n

THE MERGER <\/strong><\/p>\n

Section 2.01. The Closing.<\/em> Upon the terms and subject to the
\nconditions set forth herein, the closing of the Merger (the
\n“Closing<\/strong>“) will take place at 10:00 a.m., Boston time, as soon
\nas practicable (and, in any event, within three (3) Business Days) after
\nsatisfaction or, to the extent permitted hereunder, waiver of all conditions to
\nthe Merger set forth in Article 7<\/u> (other than those conditions that by
\ntheir nature are to be satisfied at the Closing, but subject to the satisfaction
\nor waiver (to the extent permitted hereunder) of such conditions), unless this
\nAgreement has been terminated pursuant to its terms or unless another time or
\ndate is agreed to in writing by the parties hereto; provided that in no event
\nshall the Closing occur before January 5, 2012. The Closing shall be held at the
\noffices of Goodwin Procter LLP, Exchange Place, Boston, MA 02109, unless another
\nplace is agreed to in writing by the parties hereto.<\/p>\n

Section 2.02. The Merger.<\/em><\/p>\n

(a) Upon the terms and subject to the conditions set forth herein, at the
\nClosing, the Company shall file with the Delaware Secretary of State a
\ncertificate of merger (the “Certificate of Merger<\/strong>“) in
\nconnection with the Merger in such form as is required by, and executed and
\nacknowledged in accordance with, Delaware Law.<\/p>\n

(b) The Merger shall become effective on such date and at such time (the
\n“Effective Time<\/strong>“) as the Certificate of Merger has been duly
\nfiled with the Delaware Secretary of State (or at such later time as may be
\nagreed by the parties that is specified in the Certificate of Merger).<\/p>\n

(c) At the Effective Time, Merger Subsidiary shall be merged with and into
\nthe Company in accordance with Delaware Law, whereupon the separate existence of
\nMerger Subsidiary shall cease, and the Company shall be the surviving
\ncorporation (the “Surviving Corporation<\/strong>“). From and after the
\nEffective Time, the Surviving Corporation shall possess all the rights, powers,
\nprivileges and franchises and be subject to all of the obligations, liabilities,
\nrestrictions and disabilities of the Company and Merger Subsidiary, all as
\nprovided under Delaware Law.<\/p>\n

12<\/p>\n

\n

Section 2.03. Conversion of Shares; Calculation of Merger
\nConsideration.<\/em> At the Effective Time, by virtue of the Merger and without
\nany action on the part of the holders thereof:<\/p>\n

(a) except as otherwise provided in Section 2.03(b)<\/u>, Section
\n2.03(c)<\/u>, Section 2.05<\/u> or Section 2.06(a)<\/u>, each share of
\nCompany Common Stock outstanding immediately prior to the Effective Time shall
\nbe converted into the right to receive the Merger Consideration in cash, without
\ninterest;<\/p>\n

(b) each share of Company Common Stock held by the Company as treasury stock
\nor owned by Parent or Merger Subsidiary immediately prior to the Effective Time
\nshall be canceled, and no payment shall be made with respect thereto;<\/p>\n

(c) each share of Company Common Stock held by any Subsidiary of either the
\nCompany or Parent (other than Merger Subsidiary) immediately prior to the
\nEffective Time shall be converted into such number of shares of common stock,
\npar value $0.01 per share, of the Surviving Corporation such that each such
\nSubsidiary owns the same percentage of the Surviving Corporation immediately
\nfollowing the Effective Time as such Subsidiary owned in the Company immediately
\nprior to the Effective Time; and<\/p>\n

(d) each share of common stock of Merger Subsidiary outstanding immediately
\nprior to the Effective Time shall be converted into and become one share of
\ncommon stock, par value $0.01 per share, of the Surviving Corporation with the
\nsame rights, powers and privileges as the shares so converted and, together with
\nthe shares described in Section 2.03(c)<\/u>, shall constitute the only
\noutstanding shares of capital stock of the Surviving Corporation.<\/p>\n

(e) At least twenty (20) Business Days prior to the Closing Date, the Company
\nshall prepare in good faith and deliver to Parent the Company153s calculation of
\nthe Merger Consideration as of the last day of the immediately preceding month
\n(the “Company153s Merger Consideration Calculations<\/strong>“). The
\nCompany shall permit Parent and its Representatives at all reasonable times and
\nupon reasonable notice to review the Company153s working papers relating to the
\nCompany153s Merger Consideration Calculation as well as all of the Company153s
\naccounting books and records relating to such calculation, and the Company shall
\nmake reasonably available its Representatives responsible for the preparation of
\nthe Company153s Merger Consideration Calculations in order to respond to the
\nreasonable inquiries of Parent. Within ten (10) Business Days after Parent153s
\nreceipt of the Company153s Merger Consideration Calculations, Parent may object,
\nin good faith, to the Company153s Merger Consideration Calculations by giving
\nwritten notice to the Company setting forth the basis for Parent153s dispute
\nregarding some or all of the calculations set forth in the Company153s Merger
\nConsideration Calculations (the “Parent153s Objection<\/strong>“). If
\nParent does not object to all or any portion of the Company153s Merger
\nConsideration Calculations within such 10-Business Day period, then Parent shall
\nbe deemed to have conclusively agreed with and shall be bound by the Company153s
\nMerger Consideration Calculations.<\/p>\n

(f) If Parent sends the Parent153s Objection on a timely basis, then Parent and
\nthe Company shall confer in good faith in an attempt to resolve the differences.
\nIf, after five (5) Business Days, Parent and the Company cannot agree, then the
\nparties shall attempt to agree upon a mutually satisfactory nationally
\nrecognized audit firm (the “Firm<\/strong>“) for the determination<\/p>\n

13<\/p>\n

\n

described below; provided, however<\/em>, that if the parties cannot agree
\non a mutually satisfactory nationally recognized auditing firm, then each of
\nParent and the Company shall select a nationally recognized auditing firm and
\nthe two firms so selected shall select the Firm.<\/p>\n

(g) The Firm shall review the Company153s Merger Consideration Calculations and
\nthe Parent153s Objection (as well as any other information requested by the Firm)
\nand make a final written determination of the Merger Consideration, which
\ndetermination shall be conclusive and binding on Parent and the Company.
\nNotwithstanding the foregoing, in no event shall the Firm determine that the
\nMerger Consideration is less than the amount set forth in the Parent153s Objection
\nor greater than the Merger Consideration set forth in the Company153s Merger
\nConsideration Calculations. The determination of the Merger Consideration by the
\nFirm shall be made as promptly as possible but not later than ten (10) Business
\nDays after the Firm153s engagement (unless otherwise agreed to in writing by the
\nFirm, Parent and the Company). The Firm shall act as an expert and not an
\narbiter. The fees and expenses of the Firm will be equitably allocated by the
\nFirm based on the relative accuracy of the parties153 positions relative to the
\nfinal determination of the Merger Consideration by the Firm.<\/p>\n

Section 2.04. Surrender and Payment.<\/em><\/p>\n

(a) Prior to the Effective Time, Parent shall appoint (and pay the fees and
\nexpenses of) a bank or trust company reasonably acceptable to the Company (the
\n“Exchange Agent<\/strong>“) for the purpose of exchanging for the Merger
\nConsideration (i) certificates representing shares of Company Common Stock (the
\n“Certificates<\/strong>“), and (ii) uncertificated shares of Company
\nCommon Stock (the “Uncertificated Shares<\/strong>“). At or prior to the
\nEffective Time, Parent shall deposit or cause to be deposited with the Exchange
\nAgent cash sufficient to pay the aggregate Merger Consideration to be paid in
\nrespect of the Certificates and the Uncertificated Shares (the “Payment
\nFund<\/strong>“). Promptly after the Effective Time, Parent shall cause the
\nExchange Agent to send to each record holder of shares of Company Common Stock
\nat the Effective Time a letter of transmittal and instructions (which shall
\nspecify that the delivery shall be effected, and risk of loss and title shall
\npass, only upon proper delivery of the Certificates or transfer of the
\nUncertificated Shares to the Exchange Agent) for use in effecting the surrender
\nof such holder153s Certificates or Uncertificated Shares in exchange for the
\nMerger Consideration to be received by such holder pursuant to this Agreement.
\nThe Payment Fund, once deposited with the Exchange Agent, shall, pending its
\ndisbursement to such holders, be held in trust for the benefit of such holders
\nand shall not be used for any other purposes; provided, however<\/em>, that
\nParent may direct the Exchange Agent to invest such cash for the benefit of
\nParent in (i) short-term direct obligations of the United States of America,
\n(ii) short-term obligations for which the full faith and credit of the United
\nStates of America is pledged to provide for the payment of principal and
\ninterest, or (iii) money market funds investing solely in a combination of the
\nforegoing.<\/p>\n

(b) Each holder of shares of Company Common Stock that have been converted
\ninto the right to receive the Merger Consideration shall be entitled to receive
\nthe Merger Consideration in respect of the Company Common Stock represented by a
\nCertificate or Uncertificated Share, upon (i) surrender to the Exchange Agent of
\na Certificate, together with a duly completed and validly executed letter of
\ntransmittal and such other documents as may reasonably be requested by the
\nExchange Agent, or (ii) receipt of an “agent153s message” by the Exchange Agent
\n(or such other evidence, if any, of transfer as the Exchange Agent may
\nreasonably request) in the case of<\/p>\n

14<\/p>\n

\n

a book-entry transfer of Uncertificated Shares. Until so surrendered or
\ntransferred, as the case may be, each such Certificate or Uncertificated Share
\nshall represent after the Effective Time for all purposes only the right to
\nreceive such Merger Consideration. No interest shall be paid or accrued on the
\ncash payable upon the surrender or transfer of such Certificate or
\nUncertificated Share.<\/p>\n

(c) If any portion of the Merger Consideration is to be paid to a Person
\nother than the Person in whose name the surrendered Certificate or the
\ntransferred Uncertificated Share is registered, it shall be a condition to such
\npayment that (i) either such Certificate shall be properly endorsed or shall
\notherwise be in proper form for transfer or such Uncertificated Share shall be
\nproperly transferred and (ii) the Person requesting such payment shall pay to
\nthe Exchange Agent any transfer or other Tax required as a result of such
\npayment to a Person other than the registered holder of such Certificate or
\nUncertificated Share or establish to the satisfaction of the Exchange Agent that
\nsuch Tax has been paid or is not payable.<\/p>\n

(d) All Merger Consideration paid upon the surrender of Certificates or
\ntransfer of Uncertificated Shares in accordance with the terms hereof shall be
\ndeemed to have been paid in full satisfaction of all rights pertaining to the
\nshares of Company Common Stock formerly represented by such Certificate or
\nUncertificated Shares and from and after the Effective Time, there shall be no
\nfurther registration of transfers of shares of Company Common Stock on the stock
\ntransfer books of the Surviving Corporation. If, after the Effective Time,
\nCertificates or Uncertificated Shares are presented to the Surviving
\nCorporation, they shall be canceled and exchanged for the Merger Consideration
\nprovided for, and in accordance with the procedures set forth, in this
\nArticle 2<\/u>.<\/p>\n

(e) Any portion of the Payment Fund that remains unclaimed by the holders of
\nshares of Company Common Stock six (6) months after the Effective Time shall be
\nreturned to Parent, upon demand, and any such holder who has not exchanged
\nshares of Company Common Stock for the Merger Consideration in accordance with
\nthis Section 2.04<\/u> prior to that time shall thereafter look only to Parent
\nfor payment of the Merger Consideration. Notwithstanding the foregoing, Parent
\nshall not be liable to any holder of shares of Company Common Stock for any
\namounts paid to a public official pursuant to applicable abandoned property,
\nescheat or similar laws. Any amounts remaining unclaimed by holders of shares of
\nCompany Common Stock two (2) years after the Effective Time (or such earlier
\ndate, immediately prior to such time when the amounts would otherwise escheat to
\nor become property of any Governmental Authority) shall become, to the extent
\npermitted by Applicable Law, the property of Parent free and clear of any claims
\nor interest of any Person previously entitled thereto.<\/p>\n

(f) Any portion of the Merger Consideration made available to the Exchange
\nAgent pursuant to Section 2.05<\/u> in respect of any Dissenting Shares shall
\nbe returned to Parent, upon demand.<\/p>\n

Section 2.05. Dissenting Shares<\/em>. Notwithstanding Section
\n2.03<\/u>, shares of Company Common Stock issued and outstanding immediately
\nprior to the Effective Time (other than shares of Company Common Stock canceled
\nin accordance with Section 2.03(b)<\/u>) and held by a holder who has not
\nvoted in favor of adoption of this Agreement or consented thereto in writing and
\nwho has properly exercised appraisal rights of such shares in accordance with
\nSection 262 of<\/p>\n

15<\/p>\n

\n

Delaware Law (such shares being referred to collectively as the
\n“Dissenting Shares<\/strong>” until such time as such holder fails to
\nperfect, withdraws or otherwise loses such holder153s appraisal rights under
\nDelaware Law with respect to such shares) shall not be converted into a right to
\nreceive the Merger Consideration but instead shall be entitled to payment of the
\nappraised value of such shares in accordance with Section 262 of Delaware Law;
\nprovided that if, after the Effective Time, such holder fails to perfect,
\nwithdraws or loses such holder153s right to appraisal, pursuant to Section 262 of
\nDelaware Law or if a court of competent jurisdiction shall determine that such
\nholder is not entitled to the relief provided by Section 262 of Delaware Law,
\nsuch shares of Company Common Stock shall be treated as if they had been
\nconverted as of the Effective Time into the right to receive the Merger
\nConsideration in accordance with Section 2.03(a)<\/u>, without interest
\nthereon, upon surrender of such Certificate formerly representing such share or
\ntransfer of such Uncertificated Share, as the case may be. The Company shall
\nprovide Parent prompt written notice of any demands received by the Company for
\nappraisal of shares of Company Common Stock, any withdrawal of any such demand
\nand any other demand, notice or instrument delivered to the Company prior to the
\nEffective Time pursuant to Delaware Law that relate to such demand, and Parent
\nshall have the opportunity and right to participate in all negotiations and
\nproceedings with respect to such demands. Except with the prior written consent
\nof Parent, the Company shall not make any payment with respect to, or offer to
\nsettle or settle, any such demands.<\/p>\n

Section 2.06. Company Stock Options and Restricted Stock Awards.<\/em>\n<\/p>\n

(a) In connection with the Spin-Off, but in any event prior to the Effective
\nTime, the Company shall cause the Spin-Off Subsidiary to issue to each holder of
\nan unexercised Company Stock Option (whether or not vested) an option to
\npurchase shares of common stock of the Spin-Off Subsidiary (a “Spin-Off
\nOption<\/strong>“) for each unexercised Company Stock Option held by such holder
\nas of such date. The number of shares of common stock of the Spin-Off Subsidiary
\nunderlying a Spin-Off Option shall be identical to the number of shares of
\nCompany Common Stock underlying each such unexercised Company Stock Option. The
\nexercise price of a Spin-Off Option shall be determined by multiplying the
\nexercise price of each such unexercised Company Stock Option by a fraction, the
\nnumerator of which is the appraised value of the Spin-Off Subsidiary divided by
\nthe Fully Diluted Company Shares (the “Per Share Spin-Off Subsidiary
\nCommon Stock<\/strong>“) and the denominator of which shall be the sum of the
\nMerger Consideration and the Per Share Spin-Off Subsidiary Common Stock.
\nSimultaneously with the issuance of the Spin-Off Options, the Company shall
\nadjust the exercise price of (but not the number of shares of Company Common
\nStock underlying) each unexercised Company Stock Option by multiplying the
\nexercise price of such Company Stock Option immediately prior to such adjustment
\nby a fraction, the numerator of which is the Merger Consideration, and the
\ndenominator of which is the sum of the Merger Consideration and the Per Share
\nSpin-Off Subsidiary Common Stock. The exercise price of each unexercised Company
\nStock Option, as so adjusted, shall thereafter be the exercise price of each
\nunexercised Company Stock Option for all purposes of this Agreement. For the
\navoidance of doubt, the Spin-Off Options shall not be considered Company
\nCompensatory Awards, and no person shall receive or be eligible to receive the
\nCompensatory Award Amount (or any portion thereof) in respect of any Spin-Off
\nOption or any other equity-based award denominated in shares of common stock of
\nthe Spin-Off Subsidiary.<\/p>\n

16<\/p>\n

\n

(b) At the Effective Time by virtue of the Merger and without any action on
\nthe part of the holders thereof, each Company Stock Option, Company Restricted
\nStock Award, and other equity-based award denominated in shares of Company
\nCommon Stock (each such award, a “Company Compensatory Award<\/strong>“)
\nthat is outstanding immediately prior to the Effective Time, whether or not then
\nvested or exercisable, shall immediately prior to the Effective Time (after
\ngiving effect to the adjustments to such Company Compensatory Awards described
\nin Section 2.06(a)<\/u>) become fully vested in accordance with their terms,
\nbe cancelled and extinguished and shall automatically be converted into the
\nright to receive an amount in cash equal to the product obtained by multiplying
\n(x) the aggregate number of shares of Company Common Stock that were issuable
\nupon exercise or settlement of such Company Compensatory Award immediately prior
\nto the Effective Time (after giving effect to any accelerated vesting provisions
\ntherein or in the applicable Company Stock Plan) and (y) the Merger
\nConsideration, less any per share exercise price of such Company Compensatory
\nAward, as adjusted pursuant to Section 2.06(a)<\/u> (the
\n“Compensatory Award Amount<\/strong>“). At the Effective Time, Parent
\nshall pay the aggregate Compensatory Award Amount payable by the Surviving
\nCorporation with respect to all Company Compensatory Awards to the account or
\naccounts designated by the Company by wire transfer of immediately available
\nUnited States funds. Promptly after the Effective Time (but in no event later
\nthan the fifth Business Day thereafter), the Surviving Corporation shall pay the
\nholders of Company Compensatory Awards the cash payments specified in this
\nSection 2.06(b)<\/u>. No interest shall be paid or accrue on such cash
\npayments. To the extent the Surviving Corporation or Parent is required to
\ndeduct and withhold from the consideration otherwise payable pursuant to this
\nAgreement to any holder of Company Compensatory Awards with respect to the
\nmaking of such payment under the Code, or any provision of any other tax Law,
\nthe amounts so withheld and paid over to the appropriate taxing authority by the
\nSurviving Corporation or Parent shall be treated for all purposes of this
\nAgreement as having been paid to the holder of Company Compensatory Awards in
\nrespect of which such deduction and withholding was made by the Surviving
\nCorporation or Parent. The Surviving Corporation and\/or the Spin-Off Subsidiary
\nshall use commercially reasonable best efforts to require each holder of a
\nCompany Compensatory Award, as a condition to the receipt of the Compensatory
\nAward Amount and, if applicable, the Spin-Off Option, to acknowledge that
\nreceipt of the Compensatory Award Amount and, if applicable, the Spin-Off Option
\nreceived in accordance with Section 2.06(a)<\/u>, is in full satisfaction of
\nsuch holder153s rights with respect to such Company Compensatory Award.<\/p>\n

(c) Subject to Parent153s compliance with the provisions of this Section
\n2.06<\/u>, the parties agree that, following the Effective Time, no holder of a
\nCompany Compensatory Award or any participant in any Company Stock Plan, or
\nother Company Employee Plan or employee benefit arrangement of the Company or
\nunder any employment agreement shall have any right hereunder to acquire any
\nEquity Interest (including any “phantom” stock or stock appreciation rights) in
\nthe Company, any of its Subsidiaries or the Surviving Corporation.<\/p>\n

(d) As soon as reasonably practicable following the date of this Agreement
\nand in any event prior to the Effective Time, the Company Board (or, if
\nappropriate, any committee of the Company Board administering the Company Stock
\nPlans) shall adopt such resolutions and take such other actions that are
\nnecessary to effect the issuance of the Spin-Off Options, adjust the exercise
\nprices of the Company Stock Options, and to cancel, extinguish and convert the
\nCompany Compensatory Awards pursuant to this Section 2.06<\/u>.<\/p>\n

17<\/p>\n

\n

Section 2.07. Adjustments<\/em>. If, during the period between the date of
\nthis Agreement and the Effective Time, any change in the outstanding shares of
\ncapital stock of the Company shall occur, including by reason of any
\nreclassification, recapitalization, stock split (including reverse stock split)
\nor combination, exchange or readjustment of shares, or any stock dividend (other
\nthan pursuant to the Spin-Off), the Merger Consideration and any other amounts
\npayable pursuant to this Agreement shall be appropriately adjusted.<\/p>\n

Section 2.08. Withholding Rights<\/em>. Each of Parent, Merger Subsidiary,
\nthe Surviving Corporation and the Exchange Agent shall be entitled to deduct and
\nwithhold from the consideration otherwise payable to any Person pursuant to this
\nAgreement, including pursuant to Section 2.04(a)<\/u> and Section
\n2.06<\/u>, such amounts as it is required to deduct and withhold with respect to
\nthe making of such payment under any provision of any applicable Tax law. To the
\nextent that amounts are so deducted and withheld by Parent, Merger Subsidiary,
\nthe Surviving Corporation or the Exchange Agent, as the case may be, such
\namounts shall be treated for all purposes of this Agreement as having been paid
\nto the Person in respect of which Parent, Merger Subsidiary, the Surviving
\nCorporation or the Exchange Agent, as the case may be, made such deduction and
\nwithholding.<\/p>\n

Section 2.09. Lost Certificates<\/em>. If any Certificate shall have been
\nlost, stolen or destroyed, upon the making of an affidavit of that fact by the
\nPerson claiming such Certificate to be lost, stolen or destroyed and, if
\nrequired by Parent, the posting by such Person of a bond, in such reasonable
\namount as Parent may direct, as indemnity against any claim that may be made
\nagainst it with respect to such Certificate, the Exchange Agent will issue, in
\nexchange for such lost, stolen or destroyed Certificate, the Merger
\nConsideration to be paid in respect of the shares of Company Common Stock
\nformerly represented by such Certificate, as contemplated under this Article
\n2<\/u>.<\/p>\n

ARTICLE 3 <\/strong><\/p>\n

THE SURVIVING CORPORATION <\/strong><\/p>\n

Section 3.01. Certificate of Incorporation<\/em>. The certificate of
\nincorporation of the Company shall be amended at the Effective Time to read in
\nits entirety as the certificate of incorporation of Merger Subsidiary in effect
\nimmediately prior to the Effective Time and, as so amended, shall be the
\ncertificate of incorporation of the Surviving Corporation until amended in
\naccordance with Applicable Law.<\/p>\n

Section 3.02. Bylaws<\/em>. The bylaws of the Company shall be amended at
\nthe Effective Time to read in their entirety as the bylaws of Merger Subsidiary
\nin effect immediately prior to the Effective Time and, as so amended, shall be
\nthe bylaws of the Surviving Corporation until amended in accordance with
\nApplicable Law.<\/p>\n

Section 3.03. Directors and Officers<\/em>. From and after the Effective
\nTime, until successors are duly elected or appointed and qualified in accordance
\nwith Applicable Law, (i) the directors of Merger Subsidiary immediately prior to
\nthe Effective Time shall be the directors of the Surviving Corporation and (ii)
\nthe officers of the Merger Subsidiary immediately prior to the Effective Time
\nshall be the officers of the Surviving Corporation.<\/p>\n

18<\/p>\n

\n

ARTICLE 4 <\/strong><\/p>\n

REPRESENTATIONS AND WARRANTIES OF THE COMPANY
\n<\/strong><\/p>\n

Except (i) as set forth in the Disclosure Schedule delivered by the Company
\nto Parent and Merger Subsidiary prior to or simultaneously with the execution of
\nthis Agreement (the “Company Disclosure Schedule<\/strong>“), which
\nidentifies the items of disclosure by reference to a particular Section or
\nsubsection of this Agreement and (ii) as set forth in publicly available Company
\nSEC Documents filed with the SEC prior to the date of this Agreement (other than
\nany disclosure in such Company SEC Documents (A) that is set forth under the
\ncaptions “Risk Factors,” “Forward-Looking Statements” or “Quantitative and
\nQualitative Disclosures about Market Risk”, (B) that is otherwise predictive,
\ncautionary or forward-looking in nature or (C) any exhibits or other documents
\nappended or attached thereto) (the “Filed Company SEC
\nDocuments<\/strong>“) (it being understood that any matter disclosed in such
\nFiled Company SEC Documents shall be deemed to be disclosed with respect to any
\nsection of this Article 4<\/u> to which the matter relates only if the nature
\nand content of the applicable disclosure in such Filed Company SEC Documents is
\nsuch that its relevance to a representation or warranty contained in this
\nArticle 4<\/u> is reasonably apparent on the face of such disclosure), the
\nCompany hereby represents and warrants to Parent and Merger Subsidiary as
\nfollows:<\/p>\n

Section 4.01. Corporate Existence and Power<\/em>. The Company is a
\ncorporation duly incorporated, validly existing and in good standing under the
\nlaws of the State of Delaware and has all corporate powers required to carry on
\nits business as now conducted. The Company is duly qualified to do business as a
\nforeign corporation and is in good standing in each jurisdiction where such
\nqualification is necessary, except for those jurisdictions where failure to be
\nso qualified has not had or would not reasonably be expected to have,
\nindividually or in the aggregate, a Company Material Adverse Effect. The Company
\nhas heretofore made available to Parent complete and correct copies of the
\ncertificate of incorporation and bylaws of the Company as currently in effect.
\nThe Company has heretofore made available to Parent complete and correct copies
\nof the minutes (or, in the case of draft minutes, the most recent drafts
\nthereof) of all meetings of the stockholders of the Company, the Company Board
\nand each committee of the Company Board and the Boards of Directors (and each
\ncommittee thereof) of each of the Company153s Subsidiaries held since January 1,
\n2009; provided that, with respect to meetings for which draft or final minutes
\nare not yet available, the Company has provided to Parent a materially complete
\nand correct summary thereof; provided, further<\/em>, however<\/em>, that
\nthe Company shall not be obligated to make available the portion of any minutes
\nof meetings related to (i) other bidders in connection with any potential sale
\nof the Company or any of its material assets or otherwise related to
\ndeliberations by the Company Board with respect to the consideration of
\nstrategic alternatives or (ii) the Pageflex Business or the Bolt Business.<\/p>\n

Section 4.02. Corporate Authorization.<\/em><\/p>\n

(a) The Company has all requisite corporate power and authority to enter into
\nthis Agreement and, subject to the Stockholder Approval, to consummate the
\nMerger and the other transactions contemplated hereby. The execution, delivery
\nand performance by the Company of this Agreement and the consummation by the
\nCompany of the Merger and the other transactions contemplated hereby, except for
\nobtaining the Stockholder Approval, have been duly authorized by all necessary
\ncorporate action on the part of the Company. The affirmative vote of the<\/p>\n

19<\/p>\n

\n

holders of a majority of the outstanding shares of Company Common Stock
\nvoting to approve and adopt this Agreement and the Merger (the
\n“Stockholder Approval<\/strong>“) is the only vote of the holders of any
\nof the Company153s capital stock necessary in connection with the consummation of
\nthe Merger and the other transactions contemplated by this Agreement. This
\nAgreement constitutes a valid and binding agreement of the Company enforceable
\nagainst the Company in accordance with its terms, except as such enforceability
\nmay be limited by bankruptcy, insolvency, moratorium and other similar
\nApplicable Law affecting creditors153 rights generally and by general principles
\nof equity.<\/p>\n

(b) At a meeting duly called and held, prior to the execution of this
\nAgreement, at which all directors of the Company were present and voting in
\nfavor, the Company Board duly adopted resolutions (i) declaring that this
\nAgreement, the Merger and the other transactions contemplated hereby are fair
\nto, advisable and in the best interests of the Company153s stockholders, (ii)
\napproving this Agreement, the Merger and the other transactions contemplated
\nhereby, (iii) taking all actions necessary so that the restrictions on business
\ncombinations and stockholder vote requirements contained in Section 203 of the
\nDelaware Law will not apply with respect to or as a result of the Merger, this
\nAgreement, the Voting Agreements and the transactions contemplated hereby and
\nthereby, (iv) directing that the adoption of this Agreement, the Merger and the
\nother transactions contemplated hereby be submitted to a vote of the
\nstockholders of the Company at the Stockholder Meeting, and (v) making the Board
\nRecommendation.<\/p>\n

(c) The Company has all requisite corporate power and authority to perform
\nits obligations under the Spin-Off Agreements and to consummate the Spin-Off and
\nthe other transactions contemplated thereby. Prior to the execution of the
\nSpin-Off Agreements and the consummation by the Company of the Spin-Off and the
\nother transactions contemplated thereby, the Spin-Off will have been duly and
\nvalidly authorized by all necessary corporate action. True and complete copies
\nof the form of each of the Spin-Off Agreements have been provided to Parent
\nprior to the date of this Agreement.<\/p>\n

Section 4.03. Governmental Authorization<\/em>. The execution, delivery
\nand performance by the Company of this Agreement and the consummation by the
\nCompany of the transactions contemplated hereby require no action by or in
\nrespect of, or filing with, any Governmental Authority, other than (i) the
\nfiling of the Certificate of Merger with the Delaware Secretary of State and
\nappropriate documents with the relevant authorities of other states in which the
\nCompany is qualified to do business, (ii) compliance with any applicable
\nrequirements of any Applicable Law regulating antitrust or merger control
\nmatters existing in foreign jurisdictions (the “Foreign Competition
\nLaws<\/strong>“) or otherwise, (iii) compliance with any applicable requirements
\nof the Securities Act, the Exchange Act, any other applicable U.S. state or
\nfederal or foreign securities laws, or Nasdaq, and (iv) any actions or filings
\nthe absence of which has not had or would not reasonably be expected to have,
\nindividually or in the aggregate, a Company Material Adverse Effect.<\/p>\n

Section 4.04. Non-contravention<\/em>. The execution, delivery and
\nperformance by the Company of this Agreement and the Spin-Off Agreements and the
\nconsummation by the Company of the Merger, the Spin-Off and the other
\ntransactions contemplated hereby and thereby do not and will not (with or
\nwithout notice or lapse of time, or both): (i) contravene,<\/p>\n

20<\/p>\n

\n

conflict with, or result in any violation or breach of any provision of the
\ncertificate of incorporation or bylaws of the Company, (ii) assuming compliance
\nwith the matters referred to in Section 4.03<\/u> and that the Stockholder
\nApproval is obtained, contravene, conflict with or result in a violation or
\nbreach of any provision of any Applicable Law or Order, (iii) require any
\nconsent or approval under, violate, conflict with, result in any breach of or
\nany loss of any benefit under, or constitute a change of control or default
\nunder, or result in termination or give to others any right of termination,
\nvesting, amendment, acceleration or cancellation of any Material Contract to
\nwhich the Company or any of the Limited Company Subsidiaries is a party, or by
\nwhich they or any of their respective properties or assets may be bound or
\naffected or any Governmental Authorization affecting, or relating in any way to,
\nthe property, assets or business of the Company or any such Subsidiaries, or
\n(iv) result in the creation or imposition of any Lien (other than Permitted
\nLiens) on any asset of the Company or any of the Limited Company Subsidiaries,
\nwith such exceptions, in the case of each of clauses (ii), (iii) and (iv), as
\nhas not had or would not reasonably be expected to have, individually or in the
\naggregate, a Company Material Adverse Effect, provided that in determining
\nwhether a Company Material Adverse Effect would result, any adverse effect
\notherwise excluded by clauses (A) through (F) of the definition of Company
\nMaterial Adverse Effect shall be taken into account.<\/p>\n

Section 4.05. Capitalization<\/em>.<\/p>\n

(a) The authorized capital stock of the Company consists of (i) 30,000,000
\nshares of Class A common stock and 500,000 shares of Class B common stock of the
\nCompany, par value $0.01 per share (collectively, the “Company Common
\nStock<\/strong>“), and (ii) 6,000,000 shares of preferred stock, par value $0.01
\nper share (the “Company Preferred Stock<\/strong>“). The rights and
\nprivileges of the Company Common Stock and the Company Preferred Stock are as
\nset forth in the Company153s certificate of incorporation. At the close of
\nbusiness on November 9, 2011, 10,665,025 shares of Company Common Stock were
\nissued and outstanding (of which 169,980 were Company Restricted Stock Awards
\nand all of which were Class A common stock of the Company), zero shares of
\nCompany Common Stock were held by the Company as treasury shares, and zero
\nshares of Company Preferred Stock were issued and outstanding; no warrants to
\npurchase shares of Company Common Stock were issued and outstanding; and Company
\nStock Options to purchase an aggregate of 740,651 shares of Company Common Stock
\nwere issued and outstanding (of which Company Stock Options to purchase an
\naggregate of 618,660 shares of Company Common Stock were exercisable), with a
\nweighted average exercise price of $4.957. All outstanding shares of capital
\nstock of the Company have been, and all shares that may be issued pursuant to
\nany Company Stock Plan will be, when issued in accordance with the respective
\nterms thereof, duly authorized and validly issued and are (or, in the case of
\nshares that have not yet been issued, will be) fully paid, nonassessable and
\nfree of preemptive rights.<\/p>\n

(b) Section 4.05(b)<\/u> of the Company Disclosure Schedule sets forth, as
\nof the close of business on November 9, 2011, a complete and correct list of (i)
\nall outstanding Company Compensatory Awards, including with respect to each such
\naward, the number of shares subject to such award, the name of the holder, the
\ngrant date, as to stock options, the exercise or purchase price per share, the
\nvesting schedule (including the extent to which it will become accelerated as a
\nresult of the Merger) and expiration date of each such award, and the form of
\naward agreement pursuant to which such award was granted, and (ii) all
\noutstanding Company Restricted Stock Awards, including with respect to each
\nCompany Restricted Stock Award, the<\/p>\n

21<\/p>\n

\n

name of the holder, the grant date and vesting schedule (including the extent
\nto which it will become accelerated as a result of the Merger), whether an 83(b)
\nelection was timely made under the Code with respect to such Company Restricted
\nStock Award, and the form of Company Restricted Stock Award grant agreement
\npursuant to which such award was granted. The Company Stock Plans set forth on
\nSection 4.05(b)<\/u> of the Company Disclosure Schedule are the only plans or
\nprograms the Company or any of its Subsidiaries has maintained under which stock
\noptions, restricted stock, restricted stock units, stock appreciation rights or
\nother compensatory equity-based awards have been or may be granted.<\/p>\n

(c) Except (A) as set forth in this Section 4.05<\/u> and for changes since
\nNovember 9, 2011 resulting from (x) the exercise or vesting of Company
\nCompensatory Awards outstanding on such date and (y) issuances permitted
\npursuant to Section 6.01<\/u> and (B) for shares of the Spin-Off Subsidiary to
\nbe distributed in connection with the Spin-Off and in accordance with the
\nSpin-Off Agreements, there are no outstanding (i) shares of capital stock or
\nvoting securities of the Company, (ii) securities of the Company convertible
\ninto or exchangeable for shares of capital stock or voting securities of the
\nCompany, (iii) options, warrants or other rights or arrangements to acquire from
\nthe Company, or other obligations or commitments of the Company to issue, any
\ncapital stock or other voting securities or ownership interests in, or any
\nsecurities convertible into or exchangeable for capital stock or other voting
\nsecurities or ownership interests in, the Company, or (iv) restricted shares,
\nstock appreciation rights, performance shares, contingent value rights,
\n“phantom” stock or similar securities or rights that are derivative of, or
\nprovide economic benefits based, directly or indirectly, on the value or price
\nof, any capital stock of, or other voting securities or ownership interests in,
\nthe Company (the items in clauses (i)-(iv) being referred to collectively as the
\n“Company Securities<\/strong>“), (v) voting trusts, proxies or other
\nsimilar agreements or understandings to which Company or any of its Subsidiaries
\nis a party or by which the Company or any of its Subsidiaries is bound with
\nrespect to the voting of any shares of capital stock of Company or any of its
\nSubsidiaries, in each case, other than the Voting Agreements, (vi) contractual
\nobligations or commitments of any character restricting the transfer of, or
\nrequiring the registration for sale of, any shares of capital stock of Company
\nor any of its Subsidiaries, or (vii) obligations or commitments of any character
\nof the Company or any of its Subsidiaries to repurchase, redeem or otherwise
\nacquire any of the Company Securities. All Company Stock Options and Company
\nRestricted Stock Awards may, by their terms, be treated in accordance with
\nSection 2.06<\/u>. No Subsidiary of the Company owns any Company Securities.\n<\/p>\n

Section 4.06. Subsidiaries.<\/em><\/p>\n

(a) Section 4.06(a)<\/u> of the Company Disclosure Schedule sets forth a
\ncomplete and correct list of each Subsidiary of the Company, its place and form
\nof organization and each jurisdiction in which it is authorized to conduct or
\nactually conducts business.<\/p>\n

(b) Each Subsidiary of the Company is a corporation or other business entity
\nduly incorporated or organized (as applicable), validly existing and in good
\nstanding under the laws of its jurisdiction of incorporation or organization and
\nhas all corporate or other organizational powers required to carry on its
\nbusiness as now conducted. Each such Subsidiary is duly qualified to do business
\nand is in good standing in each jurisdiction where such qualification is
\nnecessary, except for those jurisdictions where failure to be so qualified or in
\ngood standing<\/p>\n

22<\/p>\n

\n

would not reasonably be expected to have, individually or in the aggregate, a
\nCompany Material Adverse Effect.<\/p>\n

(c) Section 4.06(c)<\/u> of the Company Disclosure Schedule sets forth, for
\neach of the Limited Company Subsidiaries, as applicable: (i) its authorized
\ncapital stock, voting securities or ownership interests; (ii) the number and
\ntype of any capital stock, voting securities or ownership interests, and any
\noption, warrant, right or security (including debt securities) convertible,
\nexchangeable or exercisable therefor, outstanding; and (iii) the record owner(s)
\nthereof. All of the outstanding capital stock of, or other voting securities or
\nownership interests in, each such Subsidiary is owned by the Company, directly
\nor indirectly, free and clear of any Lien and free of any other limitation or
\nrestriction (including any restriction on the right to vote, sell or otherwise
\ndispose of such capital stock or other voting securities or ownership
\ninterests), other than Permitted Liens. There are no outstanding (x) securities
\nof the Company or any of the Limited Company Subsidiaries convertible into or
\nexchangeable for shares of capital stock or other voting securities or ownership
\ninterests in any of the Limited Company Subsidiaries, (y) options, warrants or
\nother rights or arrangements to acquire from the Company or any of the Limited
\nCompany Subsidiaries, or other obligations or commitments of the Company or any
\nof the Limited Company Subsidiaries to issue, any capital stock or other voting
\nsecurities or ownership interests in, or any securities convertible into or
\nexchangeable for any capital stock or other voting securities or ownership
\ninterests in, any of the Limited Company Subsidiaries, or (z) restricted shares,
\nstock appreciation rights, performance shares, contingent value rights,
\n“phantom” stock or similar securities or rights that are derivative of, or
\nprovide economic benefits based, directly or indirectly, on the value or price
\nof, any capital stock of, or other voting securities or ownership interests in,
\nany of the Limited Company Subsidiaries (the items set forth in Section
\n4.06(c)<\/u> of the Company Disclosure Schedule being referred to collectively as
\nthe “Company Subsidiary Securities<\/strong>“). There are no outstanding
\nobligations of the Company or any of its Subsidiaries to repurchase, redeem or
\notherwise acquire any of the Company Subsidiary Securities. All of the Company
\nSubsidiary Securities are duly authorized, validly issued, fully paid and
\nnonassessable.<\/p>\n

(d) Except for the Company Subsidiary Securities, neither the Company nor any
\nof its Subsidiaries directly or indirectly owns any capital stock of, or other
\nequity, ownership, profit, voting or similar interest in, or any interest
\nconvertible, exchangeable or exercisable for any equity, ownership, profit,
\nvoting or similar interest in, any Person.<\/p>\n

Section 4.07. SEC Filings and the Sarbanes-Oxley Act.<\/em><\/p>\n

(a) The Company has delivered, or otherwise made available through filings
\nwith the SEC, to Parent complete and correct copies of (i) the Company153s annual
\nreports on Form 10-K for its fiscal years ended December 31, 2010, 2009 and
\n2008, (ii) its proxy or information statements relating to meetings of the
\nstockholders of the Company since January 1, 2008, and (iii) all of its other
\nreports, statements, schedules and registration statements filed with the SEC
\nsince January 1, 2008 (the documents referred to in this Section 4.07(a)<\/u>
\nand Section 4.07(e)<\/u>, together with all information incorporated by
\nreference therein in accordance with applicable SEC regulations, are
\ncollectively referred to in this Agreement as the “Company SEC
\nDocuments<\/strong>“).<\/p>\n

23<\/p>\n

\n

(b) Since January 1, 2008, the Company has filed with or furnished to the SEC
\neach report, statement, schedule, form or other document or filing required by
\nApplicable Law to be filed or furnished by the Company at or prior to the time
\nso required. No Subsidiary of the Company is required to file or furnish any
\nreport, statement, schedule, form or other document with, or make any other
\nfiling with, or furnish any other material to, the SEC.<\/p>\n

(c) As of its filing date, each Company SEC Document complied, and each such
\nCompany SEC Document filed subsequent to the date hereof and prior to the
\nconsummation of the Merger will comply, as to form in all material respects with
\nthe applicable requirements of the Securities Act, the Exchange Act and the
\nSarbanes-Oxley Act, as the case may be.<\/p>\n

(d) As of its filing date (or, if amended or superseded by a filing prior to
\nthe date hereof, on the date of such filing), each Company SEC Document filed
\npursuant to the Exchange Act did not, and each such Company SEC Document filed
\nsubsequent to the date hereof and prior to the consummation of the Merger will
\nnot, contain any untrue statement of a material fact or omit to state any
\nmaterial fact necessary in order to make the statements made therein, in the
\nlight of the circumstances under which they were made, not misleading. Each
\nCompany SEC Document that is a registration statement, as amended or
\nsupplemented, if applicable, filed pursuant to the Securities Act, as of the
\ndate such registration statement or amendment became effective, did not, and
\neach such Company SEC Document filed subsequent to the date hereof and prior to
\nthe consummation of the Merger will not, contain any untrue statement of a
\nmaterial fact or omit to state any material fact required to be stated therein
\nor necessary to make the statements therein not misleading.<\/p>\n

(e) The Company has delivered, or otherwise made available through filings
\nwith the SEC, to Parent copies of all comment letters received by the Company
\nfrom the SEC since January 1, 2008 relating to the Company SEC Documents,
\ntogether with all written responses of the Company thereto. There are no
\noutstanding or unresolved comments in any such comment letters received by the
\nCompany from the SEC. To the Knowledge of the Company, none of the Company SEC
\nDocuments is the subject of any ongoing review by the SEC.<\/p>\n

(f) Each required form, report and document containing financial statements
\nthat has been filed with or submitted to the SEC by the Company since January 1,
\n2008 was accompanied by the certifications required to be filed or submitted by
\nthe Company153s principal executive officer and principal financial officer, as
\nrequired, pursuant to the Sarbanes-Oxley Act and, at the time of filing or
\nsubmission of each such certification, such certification was true and accurate
\nand complied as to form in all material respects with the Sarbanes-Oxley Act.
\nNone of the Company, any current executive officer of the Company or, to the
\nKnowledge of the Company, any former executive officer of the Company has
\nreceived written notice from any Governmental Authority challenging or
\nquestioning the accuracy, completeness, form or manner of filing of such
\ncertifications made with respect to the Company SEC Documents filed prior to the
\ndate of this Agreement.<\/p>\n

Section 4.08. Financial Statements; Internal Controls.<\/em><\/p>\n

(a) The audited consolidated financial statements and unaudited consolidated
\ninterim financial statements of the Company included in the Company SEC
\nDocuments (i) complied as<\/p>\n

24<\/p>\n

\n

to form, as of their respective filing dates with the SEC, in all material
\nrespects with the applicable accounting requirements and the published rules and
\nregulations of the SEC with respect thereto, (ii) were prepared in accordance
\nwith GAAP applied on a consistent basis during the periods involved (except, in
\nthe case of unaudited statements, for normal year-end audit adjustments and the
\nabsence of footnotes), and (iii) fairly presented (except as may be indicated in
\nthe notes thereto) in all material respects the consolidated financial position
\nof the Company and its consolidated Subsidiaries as of the dates thereof and
\ntheir consolidated results of operations and cash flows for the periods then
\nended (subject to normal year-end adjustments in the case of any unaudited
\ninterim financial statements).<\/p>\n

(b) The Company153s system of internal controls over financial reporting (as
\ndefined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) is reasonably
\nsufficient in all material respects to provide reasonable assurance (i) that
\ntransactions are recorded as necessary to permit preparation of financial
\nstatements in conformity with GAAP, (ii) that receipts and expenditures are
\nexecuted in accordance with the authorization of management, and (iii) that any
\nunauthorized use, acquisition or disposition of the Company153s assets that would
\nmaterially affect the Company153s financial statements would be detected or
\nprevented in a timely manner. There were no significant deficiencies or material
\nweaknesses identified in management153s assessment of internal controls as of and
\nfor the year-ended December 31, 2010 (nor has any such deficiency or weakness
\nbeen identified since such date).<\/p>\n

(c) The Company153s “disclosure controls and procedures” (as defined in Rules
\n13a-15(e) and 15d-15(e) under the Exchange Act) are reasonably designed to
\nensure that (i) all information (both financial and non-financial) required to
\nbe disclosed by the Company in the reports that it files or submits under the
\nExchange Act is recorded, processed, summarized and reported to the individuals
\nresponsible for preparing such reports within the time periods specified in the
\nrules and forms of the SEC, and (ii) all such information is accumulated and
\ncommunicated to the Company153s management as appropriate to allow timely
\ndecisions regarding required disclosure and to make the certifications of the
\nprincipal executive officer and principal financial officer of the Company
\nrequired under the Exchange Act with respect to such reports.<\/p>\n

(d) Since January 1, 2008, neither the principal executive officer nor the
\nprincipal financial officer of the Company has become aware of any fact,
\ncircumstance or change that is reasonably likely to result in a “significant
\ndeficiency” or a “material weakness” in the Company153s internal controls over
\nfinancial reporting.<\/p>\n

(e) The audit committee of the Company Board includes an Audit Committee
\nFinancial Expert, as defined by Item 407(d)(5)(ii) of Regulation S-K.<\/p>\n

(f) The Company has adopted a code of ethics, as defined by Item 406(b) of
\nRegulation S-K, for senior financial officers, applicable to its principal
\nfinancial officer, comptroller or principal accounting officer, or persons
\nperforming similar functions. The Company has promptly disclosed any change in
\nor waiver of the Company153s code of ethics with respect to any such persons, as
\nrequired by Section 406(b) of the Sarbanes-Oxley Act. To the Knowledge of the
\nCompany, there have been no violations of provisions of the Company153s code of
\nethics by any such persons.<\/p>\n

25<\/p>\n

\n

Section 4.09. Disclosure Documents<\/em>. The proxy or information
\nstatement of the Company to be filed with the SEC in connection with the Merger
\nand any amendments or supplements thereto (the “Proxy
\nStatement<\/strong>“) will, when filed, comply as to form in all material
\nrespects with the applicable requirements of the Exchange Act. The Form S-1
\nRegistration Statement of the Company to be filed with the SEC in connection
\nwith the Spin-Off and any amendments or supplements thereto (the “Form
\nS-1<\/strong>“) will, when filed, comply as to form in all material respects with
\nthe applicable requirements of the Securities Act. At the time the Proxy
\nStatement or any amendment or supplement thereto is first mailed to stockholders
\nof the Company, and at the time such stockholders vote on adoption of this
\nAgreement, the Proxy Statement, as supplemented or amended, if applicable, will
\nnot contain any untrue statement of a material fact or omit to state any
\nmaterial fact required to be stated therein or necessary in order to make the
\nstatements made therein, in the light of the circumstances under which they were
\nmade, not misleading. At the time of effectiveness of the Form S-1, it will not
\ncontain any untrue statement of a material fact or omit to state any material
\nfact required to be stated therein or necessary in order to make the statements
\ntherein, in light of the circumstances under which they were made, not
\nmisleading. The representations and warranties contained in this Section
\n4.09<\/u> will not apply to statements or omissions included in the Proxy
\nStatement or the Form S-1 based upon information furnished to the Company in
\nwriting by Parent specifically for use therein.<\/p>\n

Section 4.10. Absence of Certain Changes<\/em>. Since the Company Balance
\nSheet Date, (i) the business of the Company and each of its Subsidiaries has
\nbeen conducted in the ordinary course consistent with past practice, except for
\nactions taken pursuant to this Agreement in connection with the consummation of
\nthe Merger, (ii) there has not been any fact, event, change, development or set
\nof circumstances that has had or would reasonably be expected to have,
\nindividually or in the aggregate, a Company Material Adverse Effect, and (iii)
\nthere has not been any action or event, nor any authorization, commitment or
\nagreement by the Company or any of its Subsidiaries with respect to any action
\nor event, that if taken or if it occurred after the date hereof would be
\nprohibited by Section 6.01(b)<\/u>, (c)<\/u>, (d)<\/u>, (f)<\/u>,
\n(g)<\/u>, (i)<\/u>, (k)<\/u>, (l)<\/u>, and (n)<\/u>.<\/p>\n

Section 4.11. No Undisclosed Material Liabilities<\/em>. There are no
\nliabilities or obligations of the Company or any of its Subsidiaries of any kind
\nwhatsoever, whether accrued, contingent, absolute, determined, determinable or
\notherwise, and there is no existing condition, situation or set of circumstances
\nthat would reasonably be expected to result in such a liability or obligation,
\nother than:<\/p>\n

(a) liabilities or obligations disclosed, provided for or reserved against in
\nthe most recent financial statements of the Company included in the most recent
\nAnnual Report on Form 10-K filed with the SEC prior to the date of this
\nAgreement or disclosed in the notes thereto;<\/p>\n

(b) liabilities or obligations incurred in the ordinary course of business
\nsince the Company Balance Sheet Date in amounts consistent with past practice
\nthat would not reasonably be expected to have, individually or in the aggregate,
\na Company Material Adverse Effect;<\/p>\n

(c) liabilities or obligations incurred directly as a result of this
\nAgreement; and<\/p>\n

26<\/p>\n

\n

(d) liabilities or obligations that are not, or would not reasonably be
\nexpected to be, material to the Company or its Subsidiaries.<\/p>\n

Section 4.12. Litigation.<\/em><\/p>\n

(a) Except as set forth in Section 4.12(a)<\/u> of the Company Disclosure
\nSchedule, there is no Proceeding pending against or, to the Knowledge of the
\nCompany, threatened against or affecting the Company or any of its Subsidiaries
\nor any of their respective businesses or assets or any of the directors or
\nemployees of the Company or any of its Subsidiaries or, to the Knowledge of the
\nCompany, any of its stockholders (in each case insofar as any such matters
\nrelate to their activities with the Company or any of its Subsidiaries) that (i)
\nhas had or would reasonably be expected to have, individually or in the
\naggregate, a Company Material Adverse Effect or (ii) challenges the validity or
\nseeks to prevent, materially impair or materially delay consummation of the
\nMerger or any other transaction contemplated by this Agreement.<\/p>\n

(b) Except as set forth in Section 4.12(b)<\/u> of the Company Disclosure
\nSchedule, neither the Company nor any of its Subsidiaries is subject to any
\nOrder that (i) prohibits or restricts the Company or any of its Subsidiaries
\nfrom engaging in or otherwise conducting its business as presently or proposed
\nto be conducted or (ii) has had, or would reasonably be expected to have,
\nindividually or in the aggregate, a Company Material Adverse Effect.<\/p>\n

(c) Section 4.12(c)<\/u> of the Company Disclosure Schedule includes a
\ncomplete and accurate summary of each claim, Proceeding or Order pending or, to
\nthe Knowledge of the Company, threatened against the Company that could
\nreasonably be expected to result in a liability to the Company or any of its
\nSubsidiaries in excess of $50,000.<\/p>\n

Section 4.13. Compliance with Applicable Law.<\/em><\/p>\n

(a) The Company and each of its Subsidiaries is and, since January 1, 2009
\nhas been, in compliance in all material respects with all Applicable Laws and
\nOrders and, to the Knowledge of the Company, no condition or state of facts
\nexists that is reasonably likely to give rise to a violation of, or a liability
\nor default under any Applicable Law or Order. Neither the Company nor any of its
\nSubsidiaries has received any written notice since December 31, 2008 (i) of any
\nadministrative, civil or criminal investigation or audit by any Governmental
\nAuthority relating to the Company or any of its Subsidiaries or (ii) from any
\nGovernmental Authority alleging that the Company or any of its Subsidiaries are
\nnot in compliance with any Applicable Law or Order in any material respect.<\/p>\n

(b) Each of the Company and its Subsidiaries has in effect all material
\nGovernmental Authorizations necessary for it to own, lease or otherwise hold and
\noperate its properties and assets and to carry on its businesses and operations
\nas now conducted. There have occurred no material defaults (with or without
\nnotice or lapse of time or both) under, material violations of, or events giving
\nrise to any right of termination, material amendment or cancellation of, any
\nsuch Governmental Authorizations.<\/p>\n

27<\/p>\n

\n

Section 4.14. Material Contracts <\/em><\/p>\n

(a) Section 4.14(a)<\/u> of the Company Disclosure Schedule contains a
\ncomplete and correct list of each of the following Contracts to which the
\nCompany or any of its Subsidiaries is a party or which bind or affect their
\nrespective properties or assets as of the date hereof, other than any such
\nContract that relates to the Pageflex Business or the Bolt Business and does not
\nrelate to any other business of the Company or the Limited Company Subsidiaries:\n<\/p>\n

(i) Contract between the Company or any of the Limited Company Subsidiaries
\nand any of the 20 largest end user licensees or other customers of the Company
\nand the Limited Company Subsidiaries (determined on the basis of aggregate
\nrevenues recognized by the Company and its Subsidiaries over the four (4)
\nconsecutive fiscal quarter periods ended June 30, 2011) (“Major
\nCustomers<\/strong>“);<\/p>\n

(ii) except for the Contracts disclosed in clause (i) above, each Contract
\nthat involves performance of services or delivery of goods, products or
\ndevelopmental, consulting or other services commitments to the Company or any of
\nthe Limited Company Subsidiaries, providing for either (i) recurring annual
\npayments to the Company after the date hereof of $10,000 or more or (ii)
\naggregate payments or potential aggregate payments to the Company after the date
\nhereof of $25,000 or more;<\/p>\n

(iii) Contract between the Company or any of the Limited Company Subsidiaries
\nand any of (A) the 20 largest licensors of Intellectual Property (determined on
\nthe basis of aggregate payments recognized by the Company and the Limited
\nCompany Subsidiaries over the four (4) consecutive fiscal quarter period ended
\nJune 30, 2011), other than non-exclusive licenses for non-customized
\noff-the-shelf software that is generally available on standard terms, (B) the 20
\nlargest suppliers (other than a licensor), including any supplier of
\nmanufacturing, outsourcing or development services (determined on the basis of
\naggregate payments recognized by the Company and the Limited Company
\nSubsidiaries over the four (4) consecutive fiscal quarter period ended June 30,
\n2011) (“Major Suppliers<\/strong>“), and (C) the 20 largest distributors
\nor resellers (including as an OEM or value-added reseller) of any of the Company
\nProducts or services provided by the Company or the Limited Company Subsidiaries
\n(determined on the basis of aggregate sales of Company Products made through
\nsuch distributors or resellers over the four (4) consecutive fiscal quarter
\nperiod ended June 30, 2011);<\/p>\n

(iv) except for the Contracts disclosed in clause (iii) above, each Contract
\nthat involves performance of services or delivery of goods, materials, supplies
\nor equipment or developmental, consulting or other services commitments by the
\nCompany or any of the Limited Company Subsidiaries, or the payment therefor by
\nthe Company or any of the Limited Company Subsidiaries, providing for either (A)
\nrecurring annual payments by the Company or any of the Limited Company
\nSubsidiaries after the date hereof of $10,000 or more or (B) aggregate payments
\nor potential aggregate payments by the Company or any of the Limited Company
\nSubsidiaries after the date hereof of $25,000 or more;<\/p>\n

28<\/p>\n

\n

(v) Contract that contains any provisions restricting the Company or any of
\nthe Limited Company Subsidiaries or their successors from competing or engaging
\nin any activity or line of business or with any Person or in any area or
\npursuant to which any benefit or right is required to be given or lost as a
\nresult of so competing or engaging, or which would have any such effect after
\nthe Closing Date;<\/p>\n

(vi) Contract that (A) grants any exclusive rights to any third party,
\nincluding any exclusive license or supply or distribution agreement or other
\nexclusive rights, (B) grants any rights of first refusal, rights of first
\nnegotiation or similar rights with respect to any product, service or Company
\nIP, (C) contains any provision that requires the purchase of all or a specified
\nportion of the Company153s or any of the Limited Company Subsidiaries153
\nrequirements from any third party, or any other similar provision, or (D) grants
\n“most favored nation” or similar rights;<\/p>\n

(vii) lease or sublease (whether of real or personal property) to which the
\nCompany or any of the Limited Company Subsidiaries is party as either lessor or
\nlessee, providing for either (i) annual payments after the date hereof of
\n$10,000 or more or (ii) aggregate payments after the date hereof of $25,000 or
\nmore;<\/p>\n

(viii) Contract pursuant to which the Company or any of the Limited Company
\nSubsidiaries has agreed or is required to provide any Third Party with access to
\nsource code, or that requires that source code to be put in escrow;<\/p>\n

(ix) Contract pursuant to which the Company or any of the Limited Company
\nSubsidiaries has or has been granted any license to Intellectual Property, other
\nthan nonexclusive licenses granted in the ordinary course of business of the
\nCompany and such Subsidiaries consistent with past practice;<\/p>\n

(x) Contract relating to indebtedness for borrowed money or the deferred
\npurchase price of property (in either case, whether incurred, assumed,
\nguaranteed or secured by any asset), except any such agreement with an aggregate
\noutstanding principal amount not exceeding $10,000 and which may be prepaid on
\nnot more than thirty (30) days153 notice without the payment of any penalty;<\/p>\n

(xi) Contract pursuant to which the Company or any of the Limited Company
\nSubsidiaries is a party that creates or grants a material Lien (including Liens
\nupon properties acquired under conditional sales, capital leases or other title
\nretention or security devices), other than Permitted Liens;<\/p>\n

(xii) Contract under which the Company or any of the Limited Company
\nSubsidiaries has, directly or indirectly, made any loan, capital contribution
\nto, or other investment in, any Person (other than the Company or any of the
\nLimited Company Subsidiaries and other than (i) extensions of credit in the
\nordinary course of business consistent with past practice, or (ii) investments
\nin marketable securities in the ordinary course of business);<\/p>\n

(xiii) Contract under which the Company or any of the Limited Company
\nSubsidiaries has any obligations which have not been satisfied or performed
\n(other than<\/p>\n

29<\/p>\n

\n

confidentiality obligations) relating to the acquisition or disposition of
\nall or any portion of any business (whether by merger, sale of stock, sale of
\nassets or otherwise) for consideration in excess of $10,000;<\/p>\n

(xiv) any Contract (i) (A) between the Company or any of the Limited Company
\nSubsidiaries and any Governmental Authority, or (B) between the Company or any
\nof the Limited Company Subsidiaries, as a subcontractor, and any prime
\ncontractor to any Governmental Authority, or (ii) financed by any Governmental
\nAuthority and subject to the rules and regulations of any Governmental Authority
\nconcerning procurement;<\/p>\n

(xv) partnership, joint venture or other similar Contract or arrangement
\nmaterial to the Company and the Limited Company Subsidiaries, taken as a whole;\n<\/p>\n

(xvi) Contract for the development for the benefit of the Company or any of
\nthe Limited Company Subsidiaries by any party other than the Company or such
\nSubsidiaries, of Intellectual Property that is material to the Company and such
\nSubsidiaries, taken as a whole;<\/p>\n

(xvii) employee collective bargaining agreement or other Contract with any
\nlabor union and each employment Contract (other than for employment at-will or
\nsimilar arrangements) that is not terminable by the Company without notice and
\nwithout cost to the Company;<\/p>\n

(xviii) Contract entered into in the last three (3) years in connection with
\nthe settlement or other resolution of any Proceeding that has any continuing
\nmaterial obligations, liabilities or restrictions or involved payment of more
\nthan $10,000;<\/p>\n

(xix) Contract providing for indemnification of any Person with respect to
\nmaterial liabilities relating to any current or former business of the Company,
\nany of the Limited Company Subsidiaries or any predecessor Person other than
\nindemnification obligations of the Company or any of the Limited Company
\nSubsidiaries pursuant to the provisions of a Contract entered into by the
\nCompany or any of the Limited Company Subsidiaries in the ordinary course of
\nbusiness consistent with past practice or that would not reasonably be expected
\nto have a Company Material Adverse Effect;<\/p>\n

(xx) Contract containing (i) any provisions having the effect of providing
\nthat the consummation of the Merger, the Spin-Off or the other transactions
\ncontemplated by this Agreement or compliance by the Company with the provisions
\nof this Agreement or the Spin-Off Agreements will conflict with, result in any
\nviolation or breach of, or constitute a default (with or without notice or lapse
\nof time or both) under, such Contract (if such Contract is material to the
\nCompany and the Limited Company Subsidiaries, taken as a whole), or give rise
\nunder such Contract to any right of, or result in, a termination, right of first
\nrefusal, amendment, revocation, cancellation or acceleration, or a loss of a
\nbenefit or the creation of any Lien upon any of the properties or assets of the
\nCompany, any of the Limited Company Subsidiaries, Parent or any of Parent153s
\nSubsidiaries, or to any increased, guaranteed, accelerated or additional rights
\nor<\/p>\n

30<\/p>\n

\n

entitlements of any person, except to the extent that such termination,
\namendment, revocation, cancellation, acceleration, loss, Lien or entitlements
\nare not material to the Company and the Limited Company Subsidiaries, taken as a
\nwhole, or are required by Applicable Law, (ii) any restriction on the ability of
\nany of the Company and the Limited Company Subsidiaries to assign all or any
\nportion of its rights, interests or obligations thereunder (if such Contract is
\nmaterial to the Company and the Limited Company Subsidiaries, taken as a whole),
\nunless such restriction expressly excludes any assignment to Parent and any of
\nthe Limited Company Subsidiaries that holds assets substantially equivalent to
\nthe assigning entity in connection with or following the consummation of the
\nMerger and the other transactions contemplated by this Agreement or (iii) any
\nstandstill or similar provision purporting to limit the authority of any party
\nto such agreement to acquire any Equity Interest in the Company or any other
\nPerson; or<\/p>\n

(xxi) except for the Contracts disclosed above, each Contract required to be
\nfiled by the Company pursuant to Item 601 of Regulation S-K under the Securities
\nAct, or that is otherwise material to the Company and the Limited Company
\nSubsidiaries, taken as whole.<\/p>\n

(b) Each Contract disclosed in Section 4.14(a))<\/u> of the Company
\nDisclosure Schedule, required to be disclosed pursuant to this Section
\n4.14<\/u> or which would have been required to be so disclosed if it had existed
\non the date of this Agreement (each, a “Material Contract<\/strong>“)
\n(unless it has terminated or expired (in each case according to its terms)) is
\nin full force and effect and is a legal, valid and binding agreement of the
\nCompany or its Subsidiary, as the case may be, and, to the Knowledge of the
\nCompany, of each other party thereto, enforceable against the Company or such
\nSubsidiary, as the case may be, and, to the Knowledge of the Company, against
\nthe other party or parties thereto, in each case, in accordance with its terms
\nexcept as such enforceability may be limited by bankruptcy, insolvency,
\nmoratorium and other similar Applicable Law affecting creditors153 rights
\ngenerally and by general principles of equity. Neither the Company nor any of
\nits Subsidiaries has received any written notice to terminate, in whole or part,
\nmaterially amend or not renew any executory obligation of a counterparty to a
\nMaterial Contract that has not terminated or expired (in each case according to
\nits terms) prior to the date of this Agreement (nor, to the Knowledge of the
\nCompany, has there been anything that a reasonable person would consider an
\nindication that any such notice of termination will be served on or after the
\ndate of this Agreement on the Company by any counterparty to a Material
\nContract). None of the Company, any of its Subsidiaries or, to the Knowledge of
\nthe Company, any other party thereto is in default or breach in any material
\nrespect under the terms of any Material Contract, and, to the Knowledge of the
\nCompany, no event or circumstance has occurred that, with notice or lapse of
\ntime or both, would constitute any event of default thereunder.<\/p>\n

(c) Complete, correct and unredacted copies of each Material Contract, as
\namended and supplemented, have been made available by the Company to Parent, or
\notherwise made available as an exhibit to the Company SEC Documents, by the
\nCompany to Parent.<\/p>\n

Section 4.15. Taxes.<\/em><\/p>\n

(a) (i) All income, franchise and other material Company Returns required by
\nApplicable Law to be filed with any Taxing Authority have been filed when due
\n(taking into<\/p>\n

31<\/p>\n

\n

account extensions) in accordance with all Applicable Laws or, if filed late,
\nwere filed before the date hereof and sufficient amounts for interest penalties
\nor other additions to Taxes were paid to the applicable Taxing Authority in
\nconnection with any such late filing, (ii) all Company Returns that have been
\nfiled were true and complete in all material respects, (iii) the Company and
\neach of its Subsidiaries have paid (or have had paid on their behalf) all
\nmaterial Taxes due and owing (whether or not shown on any Tax Return), (iv) all
\nTaxes that the Company or any of its Subsidiaries is or was required to withhold
\nor collect in connection with any amounts paid or owing to any employee,
\nindependent contractor, creditor, stockholder or other Person have been duly
\nwithheld or collected and have been timely paid, to the extent required, to the
\nproper Taxing Authority, and (v) since the Company Balance Sheet Date, other
\nthan with respect to the Spin-Off, neither the Company nor any of its
\nSubsidiaries has incurred any liability for Taxes outside the ordinary course of
\nbusiness or otherwise inconsistent with past custom and past practice;<\/p>\n

(b) (i) The federal and material state income and franchise Company Returns
\nthrough the taxable year ended December 31, 2009 have been examined and closed
\nor are Company Returns with respect to which the applicable period for
\nassessment under Applicable Law, after giving effect to extensions or waivers,
\nhas expired; and (ii) neither the Company nor any of its Subsidiaries has
\ngranted any currently effective extension or waiver of the statute of
\nlimitations period applicable to any federal or material state income or
\nfranchise Company Return, which period (after giving effect to such extension or
\nwaiver) has not yet expired;<\/p>\n

(c) (i) No deficiencies for Taxes with respect to the Company or any of its
\nSubsidiaries have been claimed, proposed or assessed in each case in writing by
\nany Taxing Authority, except for deficiencies that have been paid or otherwise
\nresolved, (ii) there is no claim, audit, action, suit, proceeding or
\ninvestigation pending or threatened in each case in writing against or with
\nrespect to the Company or any of its Subsidiaries in respect of any material Tax
\nor material Tax Asset; and (iii) no claim has been made in writing by a Taxing
\nAuthority in a jurisdiction where the Company or any of its Subsidiaries does
\nnot file income or franchise Tax Returns that it is or may be subject to
\ntaxation by that jurisdiction;<\/p>\n

(d) There are no Liens for Taxes on any assets of the Company or any of its
\nSubsidiaries, other than Permitted Liens;<\/p>\n

(e) During the three-year period ending on the date hereof, neither the
\nCompany nor any of its Subsidiaries was a “distributing corporation” or a
\n“controlled corporation” in a transaction intended to be governed by Section 355
\nof the Code;<\/p>\n

(f) Neither the Company nor any of its Subsidiaries has participated in any
\n“reportable transaction” within the meaning of Treasury Regulations Section
\n1.6011-4;<\/p>\n

(g) (i) Neither the Company nor any of its Subsidiaries is or has been a
\nmember of an affiliated group of corporations within the meaning of Section 1504
\nof the Code or any group that has filed a combined, consolidated or unitary Tax
\nReturn (in each case other than the group of which the Company is or was the
\ncommon parent); and (ii) neither the Company nor any of its Subsidiaries has any
\nliability for the Taxes of any Person (other than the Company or its
\nSubsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar
\nprovision of state, local or foreign law), as a transferee or successor, by
\ncontract or otherwise;<\/p>\n

32<\/p>\n

\n

(h) There are no Tax sharing agreements or similar arrangements (including
\nTax indemnity arrangements) with respect to or involving the Company or any of
\nits Subsidiaries;<\/p>\n

(i) Neither the Company nor any of its Subsidiaries will be required to
\ninclude any item of income, or exclude any item of deduction from, taxable
\nincome for any taxable period ending after the Closing Date as a result of any
\n(i) change in method of accounting for a taxable period ending on or prior to
\nthe Closing Date, (ii) closing agreement (as described in Section 7121 of the
\nCode or any corresponding or similar provision of state, local or foreign Tax
\nlaw) executed on or prior to the Closing Date, (iii) installment sale or open
\ntransaction disposition made on or prior to the Closing Date, (iv) prepaid
\namounts received on or prior to the Closing Date, (v) intercompany transaction
\nor excess loss account described in Treasury Regulations under Section 1502 of
\nthe Code (or any corresponding or similar provision of state, local or foreign
\nincome Tax law), or (vi) election under Section 108(i) of the Code.<\/p>\n

(j) The unpaid Taxes of the Company and its Subsidiaries (i) did not, as of
\nthe Company Balance Sheet Date, exceed the reserve for Tax liability (rather
\nthan any reserve for deferred Taxes established to reflect timing differences
\nbetween book and Tax income) set forth on the face of the Company Balance Sheet
\n(rather than in any notes thereto) and (ii) do not exceed that reserve as
\nadjusted for the passage of time through the Closing Date in accordance with the
\npast custom and practice of the Company and its Subsidiaries in filing their Tax
\nReturns (excluding Taxes resulting from the Spin-Off and reserves with respect
\nthereto).<\/p>\n

(k) Since January 1, 2009, neither the Company nor any of its Subsidiaries
\nhas received any private letter ruling from the Internal Revenue Service (or any
\ncomparable ruling from any other taxing authority).<\/p>\n

(l) On the Distribution Date, the Company will have Company Net Operating
\nLosses in excess of $14,000,000. The Company has provided to Parent correct and
\ncomplete copies of all written analyses prepared by, for or on behalf of the
\nCompany in respect of (i) the application of Section 382 of the Code to the net
\noperating loss carryforwards of the Company, (ii) the value attributed to the
\nSpin-Off Subsidiary and (iii) the amount of gain resulting from the Spin-Off.\n<\/p>\n

(m) “Company Return<\/strong>” means any Tax Return of, with respect
\nto, or that includes the Company or any of its Subsidiaries;<\/p>\n

(n) “Tax<\/strong>” means any tax, governmental fee or other like
\nassessment or charge of any kind whatsoever (including withholding on amounts
\npaid to or by any Person), together with any interest, penalty, addition to tax
\nor additional amount with respect thereto, whether disputed or not;<\/p>\n

(o) “Taxing Authority<\/strong>” means any Governmental Authority
\nresponsible for the imposition of any Tax or any Governmental Authority charged
\nwith the collection of, or which is otherwise empowered to collect, such Tax;\n<\/p>\n

(p) “Tax Asset<\/strong>” means any net operating loss, net capital
\nloss, investment tax credit, foreign tax credit, charitable deduction or any
\nother credit or tax attribute that could be carried forward or back to reduce
\nTaxes); and<\/p>\n

33<\/p>\n

\n

(q) “Tax Return<\/strong>” means any report, return, document,
\ndeclaration or other information filed or required to be filed with or supplied
\nto a Taxing Authority, including information returns, any document with respect
\nto or accompanying payments of estimated Taxes, or with respect to or
\naccompanying requests for the extension of time in which to file any such
\nreport, return, document, declaration or other information.<\/p>\n

Section 4.16. Employee Benefit Plans<\/em>.<\/p>\n

(a) Section 4.16<\/u> of the Company Disclosure Schedule contains a correct
\nand complete list identifying each Company Employee Plan. “Company
\nEmployee Plan<\/strong>” means each “employee benefit plan,” as defined in
\nSection 3(3) of ERISA, each employment, individual consulting, severance or
\nsimilar contract, plan, arrangement or policy and each other plan or arrangement
\n(written or oral) providing for compensation, bonuses, profit-sharing, stock
\noption or other stock-related rights or other forms of incentive or deferred
\ncompensation, vacation benefits, insurance (including any self-insured
\narrangements), health or medical benefits, employee assistance program,
\ndisability or sick leave benefits, workers153 compensation, supplemental
\nunemployment benefits, severance benefits and post-employment or retirement
\nbenefits (including compensation, pension, health, medical or life insurance
\nbenefits) (each, an “Employee Plan<\/strong>“) which is maintained,
\nadministered or contributed to by the Company or any ERISA Affiliate of the
\nCompany and covers any current or former employee, consultant or director of the
\nCompany or any of its Subsidiaries. Copies of each such Company Employee Plan
\n(and, if applicable, related trust or funding agreements or insurance policies)
\nand all amendments thereto have been furnished or made available to Parent
\ntogether with (i) the most recent annual report, tax return and Internal Revenue
\nService Form 5500, if any, prepared in connection with such Company Employee
\nPlan, (ii) the most recent Internal Revenue Service determination or opinion
\nletter (if applicable) relating to such Company Employee Plan, and (iii) the
\nmost recent summary plan description (or other description provided to
\nemployees) and all modifications thereto relating to such Company Employee Plan.\n<\/p>\n

(b) Neither the Company nor any ERISA Affiliate of the Company nor any
\npredecessor thereof sponsors, maintains or contributes or is obligated to
\ncontribute to, or has in the past sponsored, maintained or contributed or has
\nbeen obligated to contribute to, any Employee Plan subject to Title IV of ERISA,
\nany non-U.S. defined benefit plan, any multiemployer plan within the meaning of
\nSection 4001(a)(3) or 3(37) of ERISA, or any plan maintained by more than one
\nemployer as described in Section 413(c) of the Code.<\/p>\n

(c) Each Company Employee Plan which is intended to be qualified under
\nSection 401(a) of the Code has received a favorable determination or opinion
\nletter and its related trust has been determined to be exempt from taxation
\nunder Section 501(a) of the Code, or has pending or has time remaining in which
\nto file, an application for such determination from the Internal Revenue
\nService, and the Company is not aware of any reason why any such determination
\nor opinion letter should be revoked or not be issued. Each Company Employee Plan
\nhas been operated and maintained in material compliance with its terms and with
\nthe requirements prescribed by any and all statutes, orders, rules and
\nregulations, including ERISA and the Code, which are applicable to such Employee
\nPlan. To the Knowledge of the Company, no events have occurred with respect to
\nany Company Employee Plan that could result in a<\/p>\n

34<\/p>\n

\n

material payment or assessment by or against the Company of any excise taxes
\nunder Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the
\nCode.<\/p>\n

(d) To the Knowledge of the Company, no Company Employee Plan is under audit
\nor is subject of an investigation by the Internal Revenue Service, the U.S.
\nDepartment of Labor, the SEC, the PBGC or any other Governmental Entity.<\/p>\n

(e) Except as set forth on Section 4.16(e)<\/u> of the Company Disclosure
\nSchedule, the consummation of the transactions contemplated by this Agreement
\nwill not (either alone or together with any other event) (i) entitle any current
\nor former employee, director or independent contractor of the Company or any of
\nits Subsidiaries to severance pay or benefits; (ii) accelerate the time of
\npayment or vesting of any compensation or Company Compensation Award, except to
\nthe extent provided in Section 2.06<\/u>; (iii) trigger any funding (through a
\ngrantor trust or otherwise) of compensation or benefits under any Company
\nEmployee Plan; or (iv) trigger any payment, increase the amount payable or
\ntrigger any other material obligation pursuant to any Company Employee Plan.\n<\/p>\n

(f) There is no Company Employee Plan or other contract, plan or arrangement
\n(written or otherwise) covering any employee or former employee of the Company
\nor any of its Subsidiaries that, individually or collectively, could give rise
\nto the payment of any amount that would not be deductible pursuant to the terms
\nof Sections 280G or 162(m) of the Code.<\/p>\n

(g) Neither the Company nor any of its Subsidiaries has any liability in
\nrespect of post-retirement health, medical or life insurance benefits for
\nretired, former or current employees or directors of the Company or its
\nSubsidiaries except as required to comply with Section 4980B of the Code or any
\nsimilar state law provision.<\/p>\n

(h) There is no material action, suit, investigation, audit or proceeding
\npending against or involving or, to the Knowledge of the Company, threatened
\nagainst or involving any Employee Plan before any arbitrator or any Governmental
\nAuthority.<\/p>\n

(i) Each Company Employee Plan which is in any part a “non-qualified deferred
\ncompensation plan” (as such term is defined in Section 409A(d)(1) of the Code)
\nhas, at all times, been operated, administered and maintained in operational and
\ndocumentary compliance with the requirements of Section 409A of the Code and
\napplicable guidance issued thereunder; in all cases so that the additional tax
\ndescribed in Section 409A(a)(1)(B) of the Code will not be assessed against the
\nindividuals participating in any such non-qualified deferred compensation plan
\nwith respect to benefits due or accruing thereunder. Each Company Stock Option
\nis exempt from the additional tax and interest described in Section
\n409A(a)(1)(B) of the Code and the per share exercise price of each Company Stock
\nOption is no less than the fair market value of the underlying Company Common
\nStock on the date of grant of such Company Stock Option (and as of each later
\nmodification thereof within the meaning of Section 409A of the Code) determined
\nin a manner consistent with Section 409A of the Code. Each Company Stock Option
\ncharacterized by the Company as an “incentive stock option” within the meaning
\nof Section 422 of the Code complies with all of the applicable requirements of
\nSection 422 of the Code.<\/p>\n

35<\/p>\n

\n

(j) Each International Plan has been maintained in substantial compliance
\nwith its terms and with the requirements prescribed by any and all applicable
\nstatutes, orders, rules and regulations (including any special provisions
\nrelating to qualified plans where such International Plan was intended so to
\nqualify) and has been maintained in good standing with applicable regulatory
\nauthorities. There has been no material amendment to, written interpretation of
\nor announcement (whether or not written) by the Company or any of its
\nSubsidiaries relating to, or change in employee participation or coverage under,
\nany International Plan that would increase materially the expense of maintaining
\nsuch International Plan above the level of expense incurred in respect thereof
\nfor the most recent fiscal year ended prior to the date hereof. According to the
\nactuarial assumptions and valuations most recently used for the purpose of
\nfunding each International Plan (or, if the same has no assumptions and
\nvaluations or is unfunded, according to actuarial assumptions and valuations in
\nuse by the PBGC on the date hereof), as of the Effective Time, the total amount
\nor value of the funds available under such International Plan to pay benefits
\naccrued thereunder or segregated in respect of such accrued benefits, together
\nwith any reserve or accrual with respect thereto, exceeds the present value of
\nall benefits (actual or contingent) accrued as of such date of all participants
\nand past participants therein in respect of which Parent, the Company or any of
\ntheir Subsidiaries has or would have after the Effective Time any obligation.
\nFrom and after the Effective Time, Parent and its Affiliates will get the full
\nbenefit of any such funds, accruals or reserves.<\/p>\n

(k) To the Knowledge of the Company, there does not now exist, nor do any
\ncircumstances exist that would reasonably be expected to result in, any
\nControlled Group Liability that would be a material liability of the Company or
\nany of its Subsidiaries following the Effective Time.<\/p>\n

(l) Each Company Employee Plan may be amended, terminated, or otherwise
\nmodified by the Company to the greatest extent permitted by Applicable Law,
\nincluding the elimination of any and all future benefit accruals thereunder and
\nno employee communications or provision of any Company Employee Plan has failed
\nto effectively reserve the right of the Company or the ERISA Affiliate to so
\namend, terminate or otherwise modify such Company Employee Plan. As of the date
\nhereof, neither the Company nor any of its ERISA Affiliates has announced its
\nintention to modify or terminate any Company Employee Plan or adopt any
\narrangement or program which, once established, would come within the definition
\nof a Company Employee Plan.<\/p>\n

Section 4.17. Labor and Employment Matters<\/em>.<\/p>\n

(a) Neither the Company nor any of its Subsidiaries is a party to, bound by
\nor subject to, or is currently negotiating in connection with entering into, any
\ncollective bargaining agreement or understanding with a labor union or
\norganization. None of the employees of the Company or any of its Subsidiaries is
\nrepresented by any union with respect to his or her employment by the Company or
\nsuch Subsidiary. There is no (i) material unfair labor practice, material labor
\ndispute (other than routine individual grievances) or material labor arbitration
\nproceeding pending or, to the Knowledge of the Company, threatened against the
\nCompany or any of its Subsidiaries relating to their businesses, (ii) activity
\nor proceeding by a labor union or representative thereof to the Knowledge of the
\nCompany to organize any employees of the Company or any of its Subsidiaries, or
\n(iii) lockouts, strikes, slowdowns, work stoppages or<\/p>\n

36<\/p>\n

\n

threats thereof by or with respect to such employees, and during the last
\nthree (3) years there has not been any such action.<\/p>\n

(b) Since January 1, 2008, (i) there has been no “mass layoff” or “plant
\nclosing” as defined by the Worker Adjustment and Retraining Notification Act of
\n1998 (the “WARN Act<\/strong>“) in respect of the Company or any of its
\nSubsidiaries and (ii) neither the Company nor any of its Subsidiaries has been
\naffected by any transactions or engaged in layoffs or employment terminations
\nsufficient in number to trigger application of any state, local, or foreign law
\nor regulation which is similar to the WARN Act.<\/p>\n

(c) The Company is in compliance in all material respects with all Applicable
\nLaws respecting employment, discrimination in employment, terms and conditions
\nof employment, worker classification (including the proper classification of
\nworkers as independent contractors and consultants), wages, hours and
\noccupational safety and health and employment practices, including the
\nImmigration Reform and Control Act.<\/p>\n

Section 4.18. Insurance Policies<\/em>. Section 4.18<\/u> of the Company
\nDisclosure Schedule lists all material insurance policies and fidelity bonds
\ncovering the assets, business, equipment, properties, operations, employees,
\nofficers or directors of the Company and its Subsidiaries (collectively, the
\n“Insurance Policies<\/strong>“) and the coverage limitations and
\ndeductibles applicable to each such policy. All of the Insurance Policies or
\nrenewals thereof are in full force and effect. There is no material claim by the
\nCompany or any of its Subsidiaries pending under any of such policies or bonds
\nas to which the Company has been notified that coverage has been questioned,
\ndenied or disputed by the underwriters of such policies or bonds. All premiums
\ndue and payable under all such policies and bonds have been paid when due, and
\nthe Company and its Subsidiaries are otherwise in material compliance with the
\nterms of such policies and bonds (or other policies and bonds providing
\nsubstantially similar insurance coverage). To the Knowledge of the Company,
\nthere is no threatened termination of, or material premium increase (other than
\nwith respect to customary annual premium increases) with respect to, any
\nInsurance Policy. Section 4.18<\/u> of the Company Disclosure Schedule
\nidentifies each material insurance claim made by the Company or any of its
\nSubsidiaries between the Company Balance Sheet Date and the date of this
\nAgreement. To the Knowledge of the Company, no event has occurred, and no
\ncondition or circumstance exists, that would reasonably be expected to give rise
\nto or serve as a basis for any material insurance claim not listed on
\nSection 4.18<\/u> of the Company Disclosure Schedule.<\/p>\n

Section 4.19. Environmental Matters<\/em>.<\/p>\n

(a) Except for matters that, individually or in the aggregate, have not had
\nand would not reasonably be expected to have a Company Material Adverse Effect,
\nno notice, demand, request for information, citation, summons or order has been
\nreceived, no complaint has been filed, no penalty has been assessed, and no
\nProceeding is pending and, to the Knowledge of the Company, is threatened by any
\nGovernmental Authority or other Person relating to or arising out of any failure
\nof the Company or any of its Subsidiaries to comply with any Environmental Law.\n<\/p>\n

(b) The Company and its Subsidiaries are and have been in compliance in all
\nmaterial respects with all Environmental Laws and all Environmental Permits of
\nthe Company.<\/p>\n

37<\/p>\n

\n

(c) To the Knowledge of the Company, there has been no release by the Company
\nor any of its Subsidiaries, or for which the Company or any of its Subsidiaries
\nwould reasonably be expected to be liable by Contract or by operation of Law, of
\nany Hazardous Substance at, under, from or to any facility or real property
\ncurrently or formerly owned, leased or operated by the Company or any of its
\nSubsidiaries.<\/p>\n

(d) There are no liabilities or obligations of the Company or any of its
\nSubsidiaries of any kind whatsoever, whether accrued, contingent, absolute,
\ndetermined, determinable or otherwise arising under or relating to any
\nEnvironmental Law or any Hazardous Substance and, to the Knowledge of the
\nCompany, there is no condition, situation or set of circumstances that could
\nreasonably be expected to result in or be the basis for any such liability or
\nobligation.<\/p>\n

(e) For purposes of this Section 4.19<\/u>, the terms
\n“Company<\/strong>” and “Subsidiaries<\/strong>” shall include any
\nentity that is, in whole or in part, a predecessor of the Company or any of its
\nSubsidiaries.<\/p>\n

Section 4.20. Intellectual Property and Information Technology<\/em>.<\/p>\n

(a) Section 4.20(a)<\/u> of the Company Disclosure Schedule contains a true
\nand complete list, as of the date of this Agreement, of all Company Products.\n<\/p>\n

(b) The Company and its Subsidiaries own or otherwise hold all rights in all
\nCompany IP necessary for the conduct of the business of the Company and its
\nSubsidiaries as currently conducted or as currently proposed to be conducted
\n(the “Necessary IP<\/strong>“), free and clear of any Liens, other than
\nPermitted Liens. The consummation of the transactions contemplated by this
\nAgreement will not (i) alter, restrict, encumber, impair or extinguish any
\nrights in any Necessary IP, or (ii) result in the creation of any Lien with
\nrespect to any of the Company IP, other than Permitted Liens.<\/p>\n

(c) In the five (5) years immediately prior to the date of this Agreement,
\nthere have been, and there are currently, no legal disputes or claims pending
\nor, to the Knowledge of the Company, threatened (i) alleging infringement,
\nmisappropriation or any other violation of any Intellectual Property rights of
\nany Person by the Company or any of its Subsidiaries or by any Company Products,
\nor (ii) challenging the scope, ownership, validity, or enforceability of any
\nCompany IP owned by the Company or any of its Subsidiaries or of the Company and
\nits Subsidiaries153 rights under the Company IP. None of the Company or its
\nSubsidiaries has infringed, misappropriated or otherwise violated any
\nIntellectual Property rights of any Person.<\/p>\n

(d) (i) No Person, other than the Company and its Subsidiaries, possesses any
\ncurrent or contingent rights to license, sell or otherwise distribute the
\nCompany Products or other products or services utilizing Company IP that is
\nowned by the Company or any of its Subsidiaries, and (ii) there are no
\nrestrictions binding on the Company or any Subsidiary respecting the disclosure,
\nuse, license, transfer or other disposition of any Company IP or Company
\nProducts.<\/p>\n

(e) Section 4.20(e)(i)<\/u> of the Company Disclosure Schedule contains a
\ntrue and complete list, as of the date of this Agreement, of all Company
\nRegistered IP. The Company and its Subsidiaries have taken all actions
\nreasonably necessary to maintain and protect the Company Registered IP,
\nincluding payment of applicable maintenance fees, filing of applicable
\nstatements<\/p>\n

38<\/p>\n

\n

of use, timely response to office actions and disclosure of any required
\ninformation, and all assignments (and licenses where required) of the Registered
\nIP have been duly recorded with the appropriate governmental authorities.
\nSection 4.20(e)(ii)<\/u> of the Company Disclosure Schedule includes a true
\nand complete list as of the date of this Agreement of all material actions that
\nmust be taken within one hundred eighty (180) days of the date hereof with
\nrespect to any of the Company Registered IP. The Company and each of its
\nSubsidiaries have complied with all applicable notice and marking requirements
\nfor the Company Registered IP. None of the Company Registered IP has been
\nadjudged invalid or unenforceable in whole or part and, to the Knowledge of the
\nCompany, none of the Company Registered IP is invalid or unenforceable.<\/p>\n

(f) The Company and its Subsidiaries have taken reasonable steps to protect
\ntheir rights in the Company IP and to protect any confidential information
\nprovided to them by any other Person under obligation of confidentiality.
\nWithout limitation of the foregoing, the Company and its Subsidiaries have not
\nmade any of their trade secrets or other confidential or proprietary information
\nthat they intended to maintain as confidential (including source code with
\nrespect to Company Products) available to any other Person except pursuant to
\nwritten agreements requiring such Person to maintain the confidentiality of such
\ninformation or materials.<\/p>\n

(g) The Company and its Subsidiaries have obtained from all parties
\n(including Employees and current or former consultants and subcontractors) who
\nhave created any portion of, or otherwise who would have any rights in or to,
\nany Company IP, valid and enforceable written assignments of any such work,
\ninvention, improvement or other rights to the Company and its Subsidiaries and
\nhave delivered true and complete copies of such assignments to Parent. No
\nEmployee, consultant or former consultant of the Company or any of its
\nSubsidiaries has ever excluded any Intellectual Property from any written
\nassignment executed by any such Person in connection with work performed for or
\non behalf of the Company or any of its Subsidiaries. All amounts payable by the
\nCompany or any of its Subsidiaries to consultants and former consultants have
\nbeen paid in full.<\/p>\n

(h) Section 4.20(h)<\/u> of the Company Disclosure Schedule contains a
\ncomplete and accurate list of (i) all third-party Intellectual Property (other
\nthan Third Party Software) sold with, incorporated into, distributed in
\nconnection with or used in the development of any Company Product (including any
\nCompany Product currently under development) and (ii) all other third-party
\nIntellectual Property (other than Third Party Software) used or held for use for
\nany purpose by the Company or any of its Subsidiaries that is material to the
\nbusiness of the Company and its Subsidiaries taken as a whole.<\/p>\n

(i) Section 4.20(i)<\/u> of the Company Disclosure Schedule contains a
\ncomplete and accurate list of all Third Party Software, except shrinkwrap
\nlicenses for commercial off the shelf software having a payment obligation of
\nless than $10,000 per year, setting forth for each such item (i) the name and
\nversion of such item, (ii) the name of the owner and\/or licensor of such item,
\n(iii) all licenses and other agreements pursuant to which the Company or any of
\nits Subsidiaries holds rights to such item, (iv) the Company Product(s),
\nincluding version numbers, to which such item relates, if any, (v) whether such
\nitem is used internally by or on behalf of the Company or any of its
\nSubsidiaries, (vi) whether such item is distributed by or on behalf of the
\nCompany or any of its Subsidiaries (whether on a standalone basis or as an
\nembedded or bundled component) and, if so, whether such item is distributed in
\nsource, binary or other form, (vii)<\/p>\n

39<\/p>\n

\n

whether such item is hosted, offered as a service or made available in a
\nservice bureau or in any similar manner by or on behalf of the Company or any of
\nits Subsidiaries (whether on a standalone basis or as an embedded or bundled
\ncomponent), (viii) whether the license permits the Company or any of its
\nSubsidiaries to host, offer as a service or make available in a service bureau
\nor in any similar manner such item (whether on a standalone basis or as an
\nembedded or bundled component), (ix) whether such item has been modified by or
\non behalf of the Company or any of its Subsidiaries, (x) whether such item is
\nused by or on behalf of the Company or any of its Subsidiaries to generate code
\nor other material, and if so, a description (consistent with the disclosure
\nrequirements under clauses (v) through (ix) above) of the use, modification,
\nhosting and\/or distribution of such generated code or other material; (xi) a
\nsummary of anticipated future payments in respect of such item, including
\nlicense fees, renewal fees, maintenance fees, support fees and royalties; (xii)
\nwhether such item is used, held for use or required (or generates code or other
\nmaterial that is used, held for use or required) to satisfy any obligation under
\nany Support Agreement; and (xiii) any rights by a third party to audit or review
\nany financial, license or royalty information, if any, with respect thereto, any
\npast exercise of those rights, and any notice received of intent to conduct any
\nsuch audit. For purposes of this Section 4.20(i)<\/u>, Company Product
\nincludes any Company Product under development. Except as set forth on
\nSection 4.20(i)<\/u> of the Company Disclosure Schedule, neither the Company
\nnor any Subsidiary has incorporated, or has plans to incorporate, into any
\nCompany Product or otherwise accessed, used, modified or distributed any Third
\nParty Software (including, but not limited to, any Third Party Software taken
\nsubject to the terms of a license recognized as an “open source license” by the
\nOpen Source Initiative), in whole or in part, in a manner that may (A) require
\nany Company IP to be licensed, sold, disclosed, distributed, hosted or otherwise
\nmade available, including in source code form and\/or for the purpose of making
\nderivative works, for any reason, (B) grant, or require the Company or any of
\nits Subsidiaries to grant, the right to decompile, disassemble, reverse engineer
\nor otherwise derive the source code or underlying structure of any Company IP,
\nor (C) limit in any manner the ability to charge license fees or otherwise seek
\ncompensation in connection with marketing, licensing or distribution of any
\nCompany IP. All information set forth on Section 4.20(i)<\/u> of the Company
\nDisclosure Schedule is true and complete.<\/p>\n

(j) The Company Products do not contain any computer code designed to
\ndisrupt, disable, harm, distort or otherwise impede in any manner the legitimate
\noperation of such software by or for the Company or its authorized users, or any
\nother associated software, firmware, hardware, computer system or network
\n(including without limitation what are sometimes referred to as “viruses,”
\n“worms,” “time bombs” and\/or “back doors”).<\/p>\n

(k) Neither the Company nor any of its Subsidiaries has (i) transferred
\nownership of, or granted any exclusive license with respect to, any Company IP
\nowned or purported to be owned by the Company or any of its Subsidiaries to any
\nother Person or (ii) granted any customer the right to use any Company Product
\nor portion thereof on anything other than a non-exclusive basis or for anything
\nother than such customer153s internal business purposes.<\/p>\n

(l) Except as set forth on Section 4.20(l)<\/u> of the Company Disclosure
\nSchedule, none of the Company153s or any of its Subsidiaries153 agreements
\n(including any agreement for the performance of professional services by or on
\nthe behalf of the Company or any of its Subsidiaries) confers upon any Person
\nother than the Company any ownership right, exclusive<\/p>\n

40<\/p>\n

\n

license or other exclusive right with respect to any Intellectual Property
\ndeveloped or delivered in connection with such agreement.<\/p>\n

(m) Except as set forth in Section 4.20(m)<\/u> of the Company Disclosure
\nSchedule, no funding, facilities or personnel of any educational institution or
\nGovernmental Entity were used, directly or indirectly, to develop or create, in
\nwhole or in part, any Company IP owned or purported to be owned by the Company
\nor any Subsidiary, including any portion of a Company Product. Neither the
\nCompany nor any Subsidiary is or has ever been a member or promoter of, or a
\ncontributor to, any industry standards body or similar organization that could
\ncompel the Company or such Subsidiary to grant or offer to any third party any
\nlicense or right to such Company IP. Section 4.20(m)<\/u> of the Company
\nDisclosure Schedule sets forth a complete and accurate list of (i) any and all
\ngrants and similar funding received by the Company or any of its Subsidiaries
\n(including their respective predecessors), including the name of the granting
\nauthority and the status and material terms thereof and (ii) any standards
\nbodies or similar organizations of which the Company or any of its Subsidiaries
\n(or any of their predecessors) has ever been a member, promoter or contributor.\n<\/p>\n

(n) The IT Assets operate and perform in all material respects in a manner
\nthat permits the Company and each of its Subsidiaries to conduct their
\nrespective businesses as currently conducted and, to the Knowledge of the
\nCompany, no person has gained unauthorized access to any IT Asset. The Company
\nand each of its Subsidiaries has implemented reasonable backup and disaster
\nrecovery technology processes.<\/p>\n

(o) The representations and warranties in this Section 4.20<\/u> do not
\nrelate to, refer to or include any Company Products, Intellectual Property, IT
\nAssets or Third Party Software, for each of the foregoing solely to the extent
\nthat those items are exclusively assets of the Bolt Business or the Pageflex
\nBusiness and do not relate to any other business of the Company or the Limited
\nCompany Subsidiaries.<\/p>\n

Section 4.21. Properties.<\/em><\/p>\n

(a) (i) The Company and each of the Limited Company Subsidiaries has good
\ntitle to, or in the case of leased property and leased tangible assets, valid
\nleasehold interests in, all of its material real properties and material
\ntangible assets and (ii) all such assets and real properties, other than assets
\nand real properties in which the Company or any of the Limited Company
\nSubsidiaries has leasehold interests, are free and clear of all Liens, except
\nfor Permitted Liens.<\/p>\n

(b) Section 4.21(b)<\/u> of the Company Disclosure Schedule sets forth a
\ncomplete and correct list of all real property and interests in real property
\ncurrently owned by the Company or any of the Limited Company Subsidiaries (each,
\nan “Owned Real Property<\/strong>“). Section 4.21(b)<\/u> of the
\nCompany Disclosure Schedule sets forth (i) a true and complete list of all real
\nproperty leased, subleased or otherwise occupied by the Company or any of the
\nLimited Company Subsidiaries in respect of which the Company or any of the
\nLimited Company Subsidiaries has annual rental obligations of $10,000 or more
\n(each, a “Leased Real Property<\/strong>“), (ii) the address for each
\nLeased Real Property, (iii) current rent amounts payable by the Company or the
\nLimited Company Subsidiaries related to such Leased Real Property and (iv) a
\ndescription of the applicable lease, sublease or other agreement therefore and
\nany and all amendments,<\/p>\n

41<\/p>\n

\n

modifications, side letters relating thereto. All of the leases, subleases
\nand other agreements (each, a “Lease Agreement<\/strong>“) of the Leased
\nReal Property are valid, binding and in full force and effect without penalty,
\nacceleration, termination, repurchase right or other adverse consequence on
\naccount of the execution, delivery or performance of this Agreement by the
\nCompany nor the consummation by the Company of the transactions contemplated
\nhereby or the Spin-Off Agreements. No Lease Agreement is subject to any Lien
\nother than Permitted Liens, including any mortgage, pledge, lien, encumbrance,
\nsublease, assignment, license or other agreement granting to any third party any
\ninterest in such Lease Agreement or any right to the use or occupancy of any
\nLeased Real Property. The Company and each of the Limited Company Subsidiaries
\nhas performed all material obligations required to be performed by it to date
\nunder each Lease Agreement, and there are no outstanding defaults or
\ncircumstances which, upon the giving of notice or passage of time or both, would
\nconstitute a default or breach by any party under any Lease Agreement.<\/p>\n

(c) With respect to each Leased Real Property, neither the Company nor any of
\nthe Limited Company Subsidiaries has subleased, licensed or otherwise granted
\nanyone a right to use or occupy such Leased Real Property or any portion
\nthereof. The Company and each of the Limited Company Subsidiaries enjoy peaceful
\nand undisturbed possession of the Owned Real Property and the Leased Real
\nProperty.<\/p>\n

Section 4.22. Interested Party Transactions.<\/em> (i) Neither the Company
\nnor any of its Subsidiaries is a party to any transaction or agreement with any
\nAffiliate, stockholder that beneficially owns 5% or more of the Company Common
\nStock, or director or Executive Officer of the Company or, to the Knowledge of
\nthe Company, any Affiliate of any such owner, Executive Officer or director, and
\n(ii) no event has occurred since January 1, 2008 that would be required to be
\nreported by the Company pursuant to Item 404 of Regulation S-K promulgated by
\nthe SEC.<\/p>\n

Section 4.23. Compliance with the U.S. Foreign Corrupt Practices Act and
\nOther Applicable Anti-Corruption Laws.<\/em><\/p>\n

(a) Since January 1, 2009, the Company and its Subsidiaries have complied in
\nall material respects with the U.S. Foreign Corrupt Practices Act of 1977 and
\nother applicable anti-corruption laws.<\/p>\n

(b) Neither the Company nor any of its Subsidiaries nor, to the Knowledge of
\nthe Company, any director, officer, agent, employee or representative of the
\nCompany or any of its Subsidiaries at the direction of or on behalf of the
\nCompany or any of its Subsidiaries corruptly or otherwise illegally offered or
\ngave anything of value to: (i) any official, employee or representative of a
\nGovernmental Authority, any political party or official thereof, or any
\ncandidate for political office; or (ii) any other Person, in any such case while
\nknowing, or having reason to know, that all or a portion of such money or thing
\nof value may be offered, given or promised, directly or indirectly, to any
\nofficial, employee or representative of a Governmental Authority, any political
\nparty or official thereof, or candidate for political office for the purpose of
\nthe following: (x) influencing any action or decision of such Person, in his or
\nher official capacity, including a decision to fail to perform his or her
\nofficial function; (y) inducing such Person to use his or her influence with any
\nGovernmental Authority to affect or influence any act<\/p>\n

42<\/p>\n

\n

or decision of such Governmental Authority to assist in obtaining or
\nretaining business or to secure an improper business advantage; or (z) where
\nsuch payment would constitute a bribe, kickback or illegal or improper payment
\nto assist the Company or any of its Subsidiaries in obtaining or retaining
\nbusiness for, or with, or directing business to, any Person or in securing any
\nimproper advantage.<\/p>\n

(c) There have been no false or fictitious entries made in the books or
\nrecords of the Company or any of its Subsidiaries relating to any illegal
\npayment or secret or unrecorded fund and neither the Company nor any of its
\nSubsidiaries has established or maintained a secret or unrecorded fund.<\/p>\n

Section 4.24. Customers, Suppliers.<\/em><\/p>\n

(a) Between the Balance Sheet Date and the date of this Agreement, there has
\nnot been (i) any material adverse change in the business relationship of the
\nCompany or its Subsidiaries with any Major Customer, or (ii) any change in any
\nmaterial term (including credit terms) of the sales agreements or related
\narrangements with any Major Customer. During the three (3) years preceding the
\ndate hereof, neither the Company nor any of its Subsidiaries has received any
\nwritten customer complaint concerning its products and services, nor has it had
\nany such products returned by a purchaser thereof, other than complaints seeking
\nrepair or replacement made in the ordinary course of business that, individually
\nor in the aggregate, would not reasonably be expected to have a Company Material
\nAdverse Effect.<\/p>\n

(b) Between the Balance Sheet Date and the date of this Agreement, there has
\nnot been (i) any material adverse change in the business relationship of the
\nCompany or its Subsidiaries with any Major Supplier, or (ii) any change in any
\nmaterial term (including credit terms) of the supply agreements or related
\narrangements with any Major Supplier.<\/p>\n

Section 4.25. Finders153 Fees. <\/em>Except for Rothschild, a copy of whose
\nengagement agreement (and all indemnification and other agreements related to
\nsuch engagement) has been made available to Parent, there is no investment
\nbanker, broker, finder or other intermediary that has been retained by or is
\nauthorized to act on behalf of the Company or any of its Subsidiaries, or any of
\ntheir respective officers or directors in their capacity as officers or
\ndirectors, who might be entitled to any banking, broker153s, finder153s or similar
\nfee or commission in connection with the Merger and the other transactions
\ncontemplated by this Agreement.<\/p>\n

Section 4.26. Opinion of Financial Advisor.<\/em> The Company Board has
\nreceived from the Company153s financial advisor, Rothschild, an opinion, dated as
\nof the date of this Agreement, to the effect that, as of such date and based
\nupon and subject to the matters and limitations set forth therein, the Merger
\nConsideration to be received in the Merger by the holders of Company Common
\nStock is fair, from a financial point of view, to such holders. A signed copy of
\nsuch opinion has been delivered to Parent as of the date hereof for information
\npurposes only.<\/p>\n

Section 4.27. Antitakeover Statute; Rights Plan.<\/em> The Company and the
\nCompany Board has taken all action necessary to exempt the Merger, this
\nAgreement, the Voting Agreements and the other transactions contemplated hereby
\nor thereby from the restrictions on business combinations and voting
\nrequirements contained in Section 203 of Delaware Law. No other<\/p>\n

43<\/p>\n

\n

“control share acquisition,” “fair price,” “moratorium” or other antitakeover
\nApplicable Law applies to the Merger, this Agreement, the Voting Agreements or
\nany of the other transactions contemplated hereby or thereby. The Company has no
\nrights plan, “poison-pill” or other comparable agreement or arrangement designed
\nto have the effect of delaying, deferring or discouraging any Person from
\nacquiring control of the Company.<\/p>\n

Section 4.28. No Other Representations or Warranties.<\/em> Except for the
\nrepresentations and warranties contained in this Article 4<\/u>, each of
\nParent and Merger Subsidiary acknowledges that neither the Company nor any other
\nPerson on behalf of the Company makes any other express or implied
\nrepresentation or warranty with respect to the Company or any of its
\nSubsidiaries or any information provided to Parent or Merger Subsidiary with
\nrespect to the Company or any of its Subsidiaries, in each case, in connection
\nwith the transactions contemplated hereby.<\/p>\n

ARTICLE 5 <\/strong><\/p>\n

REPRESENTATIONS AND WARRANTIES OF PARENT <\/strong>\n<\/p>\n

Parent represents and warrants to the Company that:<\/p>\n

Section 5.01. Corporate Existence and Power.<\/em> Each of Parent and
\nMerger Subsidiary is a corporation duly incorporated, validly existing and in
\ngood standing under the laws of the State of Delaware and has all corporate
\npowers required to carry on its business as now conducted. Since the date of its
\nincorporation, Merger Subsidiary (including any transferee or assignee of Merger
\nSubsidiary pursuant to Section 9.05(b) prior to the Closing) has not engaged in
\nany activities other than in connection with or as contemplated by this
\nAgreement.<\/p>\n

Section 5.02. Corporate Authorization.<\/em> Each of Parent and Merger
\nSubsidiary has all requisite corporate power and authority to enter into this
\nAgreement and to consummate the transactions contemplated hereby. The execution
\nand delivery by Parent and Merger Subsidiary of this Agreement and the
\nconsummation by Parent and Merger Subsidiary of the transactions contemplated
\nhereby have been duly authorized by all necessary corporate action on the part
\nof Parent and Merger Subsidiary. This Agreement constitutes a valid and binding
\nagreement of each of Parent and Merger Subsidiary, enforceable against each such
\nPerson in accordance with its terms, except as such enforceability may be
\nlimited by bankruptcy, insolvency, moratorium and other similar Applicable Law
\naffecting creditors153 rights generally and by general principles of equity.<\/p>\n

Section 5.03. Governmental Authorization.<\/em> The execution, delivery
\nand performance by Parent and Merger Subsidiary of this Agreement and the
\nconsummation by Parent and Merger Subsidiary of the transactions contemplated
\nhereby require no action by or in respect of, or filing with, any Governmental
\nAuthority, other than (i) the filing of the Certificate of Merger with the
\nDelaware Secretary of State and appropriate documents with the relevant
\nauthorities of other states in which Parent is qualified to do business, (ii)
\ncompliance with any applicable requirements of the Foreign Competition Laws,
\n(iii) compliance with any applicable requirements of the Securities Act, the
\nExchange Act and any other U.S. state or federal securities laws, and (iv) any
\nactions or filings the absence of which would not reasonably be<\/p>\n

44<\/p>\n

\n

expected to prevent, materially delay or materially impair Parent153s ability
\nto consummate the Merger and the other transactions contemplated by this
\nAgreement.<\/p>\n

Section 5.04. Non-contravention.<\/em> The execution, delivery and
\nperformance by Parent and Merger Subsidiary of this Agreement and the
\nconsummation by Parent and Merger Subsidiary of the transactions contemplated
\nhereby do not and will not (with or without notice or lapse of time, or both)
\n(i) contravene, conflict with, or result in any violation or breach of any
\nprovision of the certificate of incorporation or bylaws of Parent or the
\ncertificate of incorporation and bylaws of Merger Subsidiary, (ii) assuming
\ncompliance with the matters referred to in Section 5.03<\/u>, contravene,
\nconflict with or result in a violation or breach of any provision of any
\nApplicable Law or Order, or (iii) require any consent or approval under,
\nviolate, conflict with, result in any breach of or any loss of any benefit
\nunder, or constitute a change of control or default under, or result in
\ntermination or give to others any right of termination, vesting, amendment,
\nacceleration or cancellation of any Contract to which Parent, Merger Subsidiary
\nor any other Subsidiary of Parent is a party, or by which they or any of their
\nrespective properties or assets may be bound or affected, with such exceptions,
\nin the case of each of clauses (ii) and (iii) above, as would not reasonably be
\nexpected to prevent, materially delay or materially impair the ability of Parent
\nand Merger Subsidiary to consummate the transactions contemplated by this
\nAgreement.<\/p>\n

Section 5.05. Disclosure Documents.<\/em> None of the information provided
\nby Parent specifically for inclusion in the Proxy Statement or any amendment or
\nsupplement thereto, at the time the Proxy Statement or any amendment or
\nsupplement thereto is first mailed to stockholders of the Company and at the
\ntime of the Stockholder Meeting, will contain any untrue statement of a material
\nfact or omit to state any material fact necessary in order to make the
\nstatements made therein, in the light of the circumstances under which they were
\nmade, not misleading.<\/p>\n

Section 5.06. Litigation.<\/em> As of the date hereof, there is no
\nProceeding pending against or, to the knowledge of Parent, threatened against or
\naffecting, Parent or any of its Subsidiaries that would reasonably be expected
\nto prevent, materially delay or materially impair Parent153s or Merger
\nSubsidiary153s ability to consummate the transactions contemplated by this
\nAgreement. Neither Parent nor any of its Subsidiaries is subject to any Order
\nthat would, individually or in the aggregate, reasonably be expected to prevent,
\nmaterially delay or materially impair Parent153s or Merger Subsidiary153s ability to
\nconsummate the transactions contemplated by this Agreement.<\/p>\n

Section 5.07. Financing.<\/em> Parent and Merger Subsidiary will have on
\nthe Closing Date sufficient funds available to them in cash or under existing
\ncredit lines to finance the payment of the Merger Consideration as contemplated
\nby this Agreement and to otherwise perform their obligations hereunder.<\/p>\n

Section 5.08. Finders153 Fees.<\/em> There is no investment banker, broker,
\nfinder or other intermediary that has been retained by or is authorized to act
\non behalf of Parent or Merger Subsidiary or any of their Subsidiaries or any of
\ntheir respective officers or directors in their capacity as officers or
\ndirectors, who might be entitled to any banking, broker153s, finder153s or similar
\nfee or commission in connection with the Merger and the other transactions
\ncontemplated by this Agreement.<\/p>\n

45<\/p>\n

\n

Section 5.09. Ownership of Company Common Stock.<\/em> Except as
\ncontemplated by this Agreement or the Voting Agreements, (i) neither Parent nor
\nMerger Subsidiary beneficially owns (within the meaning of Section 13(d) of the
\nExchange Act and the rules and regulations promulgated thereunder) or will prior
\nto the Effective Time beneficially own, any shares of Company Common Stock, and
\n(ii) neither Parent nor Merger Subsidiary is a party, or will prior to the
\nClosing Date become a party, to any Contract, arrangement or understanding for
\nthe purpose of acquiring, holding, voting or disposing of any shares of Company
\nCommon Stock.<\/p>\n

Section 5.10. No Other Representations or Warranties.<\/em> Except for the
\nrepresentations and warranties contained in this Article 5<\/u>, the Company
\nacknowledges that neither Parent or Merger Subsidiary nor any other Person on
\nbehalf of Parent or Merger Subsidiary makes any other express or implied
\nrepresentation or warranty with respect to Parent or Merger Subsidiary or any of
\ntheir Subsidiaries or any information provided to the Company with respect to
\nParent or Merger Subsidiary or any of their Subsidiaries, in each case, in
\nconnection with the transactions contemplated hereby.<\/p>\n

ARTICLE 6 <\/strong><\/p>\n

COVENANTS <\/strong><\/p>\n

Section 6.01. Conduct of the Company.<\/em> Except (i) as expressly
\npermitted or contemplated by this Agreement or the Spin-Off Agreements
\n(including matters relating to the consummation of the Spin-Off), (ii) as set
\nforth on Section 6.01<\/u> of the Company Disclosure Schedule, (iii) as
\nrequired by Applicable Law or (iv) to the extent that Parent shall otherwise
\nconsent in writing, from the date of this Agreement until the earlier of the
\nEffective Time or the termination of this Agreement in accordance with its
\nterms, the Company shall, and shall cause each of its Subsidiaries to, conduct
\nits business in the ordinary course, consistent with past practice, and use its
\ncommercially reasonable efforts to (a) preserve intact its Intellectual
\nProperty, business organization and material assets, (b) keep available the
\nservices of its directors, officers and employees, (c) maintain in effect all of
\nits Governmental Authorizations and (d) maintain satisfactory relationships with
\ncustomers, lenders, suppliers, licensors, licensees, distributors and others
\nhaving business relationships with the Company, provided, that, notwithstanding
\nthe foregoing, the provisions of this Section 6.01<\/u> shall not apply to the
\nSpin-Off Subsidiary, any Subsidiary of the Spin-Off Subsidiary, the Pageflex
\nBusiness or the Bolt Business to the extent that any actions or omissions
\nspecified in this Section 6.01<\/u> are required in order for the Company to
\ncomply with its obligations under the Spin-Off Agreements. Without limiting the
\ngenerality of the foregoing, except (A) as expressly permitted or contemplated
\nby this Agreement or the Spin-Off Agreements (including matters relating to the
\nconsummation of the Spin-Off), (B) as set forth on Section 6.01<\/u> of the
\nCompany Disclosure Schedule, or (C) as required by Applicable Law, from the date
\nof this Agreement until the earlier of the Effective Time or the termination of
\nthis Agreement in accordance with its terms, the Company shall not, nor shall it
\npermit any of its Subsidiaries to, do any of the following without the prior
\nwritten consent of Parent:<\/p>\n

(a) amend the Company153s certificate of incorporation, bylaws or other
\ncomparable charter or organizational documents of the Company153s Subsidiaries
\n(whether by merger, consolidation or otherwise);<\/p>\n

46<\/p>\n

\n

(b) (i) declare, set aside or pay any dividends on, or make any other
\ndistributions (whether in cash, stock, property or otherwise) in respect of, or
\nenter into any agreement (other than the Voting Agreements) with respect to the
\nvoting of, any capital stock of the Company or any of its Subsidiaries, other
\nthan dividends and distributions by a direct or indirect wholly-owned Subsidiary
\nof the Company to its parent (except distributions resulting from the vesting or
\nexercise of Company Compensatory Awards), (ii) split, combine or reclassify any
\ncapital stock of the Company or any of its Subsidiaries, (iii) except as
\notherwise provided in Section 6.01(c)<\/u> below, issue or authorize the
\nissuance of any other securities in respect of, in lieu of or in substitution
\nfor, shares of capital stock of the Company or any of its Subsidiaries, (iv)
\npurchase, redeem or otherwise acquire any Company Securities or Company
\nSubsidiary Securities, except for acquisitions of Company Common Stock by the
\nCompany in satisfaction by holders of Company Compensatory Awards of the
\napplicable exercise price and\/or withholding taxes, or (v) take any action that
\nwould result in any amendment, modification or change of any term of any
\nIndebtedness of the Company or any of its Subsidiaries;<\/p>\n

(c) (i) issue, deliver, sell, grant, pledge, transfer, subject to any Lien or
\notherwise encumber or dispose of any Company Securities or Company Subsidiary
\nSecurities, other than the issuance of (x) Company Stock Options and Company
\nRestricted Stock Awards covering an aggregate of up to 90,500 shares of Company
\nCommon Stock in accordance with the terms of the applicable Company Stock Plan
\nand form of grant agreement, each in the form previously made available to
\nParent, and (y) shares of Company Common Stock upon the exercise of Company
\nStock Options that are outstanding on the date of this Agreement (in accordance
\nwith the applicable equity award153s terms as in effect on the date of this
\nAgreement) or upon the exercise of Company Stock Options that are issued
\nsubsequent to the date of this Agreement to the extent expressly permitted
\nherein (in accordance with the applicable equity award153s terms as in effect on
\nthe date of grant), or (ii) amend any term of any Company Security or any
\nCompany Subsidiary Security (in each case, whether by merger, consolidation or
\notherwise);<\/p>\n

(d) adopt a plan or agreement of, or resolutions providing for or
\nauthorizing, complete or partial liquidation, dissolution, merger,
\nconsolidation, restructuring, recapitalization or other reorganization, each
\nwith respect to the Company or any of its Subsidiaries;<\/p>\n

(e) make any capital expenditures or incur any obligations or liabilities in
\nrespect thereof in excess of $50,000 in the aggregate in any fiscal quarter;\n<\/p>\n

(f) acquire (i) any business, assets or capital stock of any Person or
\ndivision thereof, whether in whole or in part (and whether by purchase of stock,
\npurchase of assets, merger, consolidation, or otherwise), or (ii) any other
\nmaterial assets (other than assets acquired in the ordinary course of business
\nconsistent with past practice);<\/p>\n

(g) sell, lease, license, pledge, transfer, subject to any Lien or otherwise
\ndispose of any of its Intellectual Property, material assets or material
\nproperties except (i) pursuant to existing Contracts or commitments, (ii) sales
\nof inventory or used equipment in the ordinary course of business consistent
\nwith past practice, (iii) Permitted Liens or (iv) pursuant to and in accordance
\nwith the Spin-Off Agreements;<\/p>\n

47<\/p>\n

\n

(h) except as required by Applicable Law or agreements, plans or arrangements
\nexisting on the date hereof and set forth in Section 6.01(h)<\/u> of the
\nCompany Disclosure Schedule, (i) hire any new employee to whom a written offer
\nof employment has not previously been offered and accepted prior to the date of
\nthis Agreement or, after the date of this Agreement, extend any new offers of
\nemployment with the Company or any of its Subsidiaries to any individual, (ii)
\ngrant to any current or former director, officer, employee or consultant of the
\nCompany or any of its Subsidiaries any (A) increase in compensation, (B) bonus
\nor (C) benefits in addition to those pursuant to arrangements in effect on the
\ndate hereof, (iii) grant to any current or former director, officer, employee or
\nconsultant of the Company or any of its Subsidiaries any severance or
\ntermination pay or benefits or any increase in severance, change of control or
\ntermination pay or benefits, (iv) establish, adopt, enter into or amend any
\nCompany Employee Plan or collective bargaining agreement, in each case except as
\nrequired by Applicable Law, (v) take any action to amend or waive any
\nperformance or vesting criteria or accelerate any rights or benefits or take any
\naction to fund or in any other way secure the payment of compensation or
\nbenefits under any Company Employee Plan except to the extent required pursuant
\nto the terms thereof, this Agreement or Applicable Law, or (vi) make any Person
\na beneficiary of any retention or severance plan, agreement or other arrangement
\nunder which such Person is not as of the date of this Agreement a beneficiary
\nwhich would entitle such Person to vesting, acceleration or any other right as a
\nconsequence of consummation of the transactions contemplated by this Agreement
\nand\/or termination of employment;<\/p>\n

(i) (A) write-down any of its material assets, including any capitalized
\ninventory or Company IP, or (B) make any change in any method of financial
\naccounting principles, method or practices, in each case except for any such
\nchange required by GAAP or Applicable Law, including Regulation S-X under the
\nExchange Act (in each case following consultation with the Company153s independent
\nauditor);<\/p>\n

(j) (A) repurchase, prepay or incur any Indebtedness, including by way of a
\nguarantee or an issuance or sale of debt securities, or issue or sell options,
\nwarrants, calls or other rights to acquire any debt securities of the Company or
\nany of its Subsidiaries, enter into any “keep well” or other Contract to
\nmaintain any financial statement or similar condition of another person or enter
\ninto any arrangement having the economic effect of any of the foregoing (other
\nthan (i) in connection with the financing of ordinary course trade payables
\nconsistent with past practice or (ii) accounts payable in the ordinary course of
\nbusiness consistent with past practice), or (B) make any loans, advances or
\ncapital contributions to, or investments in, any other Person (other than (i) to
\nthe Company or any of its Subsidiaries or (ii) accounts receivable and
\nextensions of credit in the ordinary course of business, and advances in
\nexpenses to employees, in each case in the ordinary course of business
\nconsistent with past practice);<\/p>\n

(k) agree to any exclusivity, non-competition, most favored nation, or
\nsimilar provision or covenant restricting the Company or any of its Subsidiaries
\nfrom competing in any line of business or with any Person or in any area or
\nengaging in any activity or business (including with respect to the development,
\nmanufacture, marketing or distribution of their respective products or
\nservices), or pursuant to which any benefit or right would be required to be
\ngiven or lost as a result of so competing or engaging, or which would have any
\nsuch effect on Parent or any of its Subsidiaries after the consummation of the
\nMerger or the Closing Date;<\/p>\n

48<\/p>\n

\n

(l) enter into any Contract, or relinquish, terminate or modify any Contract
\n(including any of the Spin-Off Agreements) or other right, in any individual
\ncase with an annual value in excess of $10,000 or with a value over the life of
\nthe Contract in excess of $25,000, other than (i) entering into software license
\nagreements where the Company or any of its Subsidiaries is the licensor in the
\nordinary course of business consistent with past practice, (ii) entering into
\nservice or maintenance contracts in the ordinary course of business consistent
\nwith past practice pursuant to which the Company or any of its Subsidiaries is
\nproviding services to customers, (iii) entering into non-exclusive distribution,
\nmarketing, reselling or consulting agreements in the ordinary course of business
\nconsistent with past practice that provide for distribution of a Company Product
\nby a third party, or (iv) entering into non-exclusive OEM agreements in the
\nordinary course of business consistent with past practice that are terminable
\nwithout penalty within twelve months; notwithstanding anything in this Agreement
\nto the contrary, in no event shall the Company or any of its Subsidiaries engage
\nin methods of distribution of Company Products that have not been engaged in by
\nthe Company in the ordinary course of business consistent with past practice;\n<\/p>\n

(m) (i) make or change any material Tax election, (ii) change any method of
\nTax accounting, (iii) file any amended Tax Return with respect to any material
\nTax or file any claim for Tax refunds, (iv) enter into any settlement or
\ncompromise of any material Tax liability, (v) enter into any closing agreement
\nrelating to any material Tax, or (vi) surrender any right to claim a material
\nTax refund;<\/p>\n

(n) (i) institute, pay, discharge, compromise, settle or satisfy (or agree to
\ndo any of the preceding with respect to) any claims, liabilities or obligations
\n(whether absolute, accrued, asserted or unasserted, contingent or otherwise), in
\nexcess of $10,000 in any individual case, other than (x) as required by their
\nterms as in effect on the date of this Agreement, (y) claims, liabilities or
\nobligations reserved against on the Company Balance Sheet (for amounts not in
\nexcess of such reserves), or (z) incurred since the date of such financial
\nstatements in the ordinary course of business consistent with past practice,
\nprovided<\/em> that, in the case of each of (x), (y) or (z), the payment,
\ndischarge, settlement or satisfaction of such claim, liability or obligation
\ndoes not include any material obligation (other than the payment of money) to be
\nperformed by the Company or any of its Subsidiaries following the Closing Date,
\n(ii) waive, relinquish, release, grant, transfer or assign any right with a
\nvalue of more than $10,000 in any individual case except in the ordinary course
\nof business consistent with past practice, or (iii) waive any material benefits
\nof, or agree to modify in any adverse respect, or fail to enforce, or consent to
\nany matter with respect to which its consent is required under, any
\nconfidentiality, standstill or similar Contract to which the Company or any of
\nits Subsidiaries is a party;<\/p>\n

(o) engage in (i) any trade loading practices or any other promotional sales
\nor discount activity with any customers or distributors with any intent of
\naccelerating to prior fiscal quarters (including the current fiscal quarter)
\nsales to the trade or otherwise that would otherwise be expected (based on past
\npractice) to occur in subsequent fiscal quarters, (ii) any practice which would
\nhave the effect of accelerating to prior fiscal quarters (including the current
\nfiscal quarter) collections of receivables that would otherwise be expected
\n(based on past practice) to be made in subsequent fiscal quarters, (iii) any
\npractice which would have the effect of postponing to subsequent fiscal quarters
\npayments by the Company or any of its Subsidiaries that would otherwise be
\nexpected (based on past practice) to be made in prior fiscal quarters (including
\nthe<\/p>\n

49<\/p>\n

\n

current fiscal quarter) or (iv) any other promotional sales or discount
\nactivity, in each case in clauses (i) through (iv) in a manner outside the
\nordinary course of business consistent with past practices; or<\/p>\n

(p) authorize, commit or agree to take any of the foregoing actions.<\/p>\n

Section 6.02. Stockholder Meeting; Board Recommendation; Proxy Materials;
\nSpin-Off.<\/em><\/p>\n

(a) The Company shall establish a record date for, duly call, give notice of,
\nconvene and hold a meeting of its stockholders (the “Stockholder
\nMeeting<\/strong>“) as promptly as reasonably practicable after the date hereof
\nor the date the SEC indicates that it has no further comments on the Proxy
\nStatement, for the purpose of voting on the matters requiring Stockholder
\nApproval; provided<\/em>, that (i) if the Company is unable to obtain a
\nquorum of its stockholders at such time, the Company may adjourn or postpone the
\ndate of the Stockholder Meeting by no more than five (5) Business Days and the
\nCompany shall use its reasonable best efforts during such five (5) Business Day
\nperiod to obtain such a quorum as soon as practicable, and (ii) the Company may
\ndelay, adjourn or postpone the Stockholder Meeting to the extent (and only to
\nthe extent) the Company reasonably determines that such delay, adjournment or
\npostponement is required to comply with any comments made by the SEC with
\nrespect to the Proxy Statement. Unless the Company Board shall have effected an
\nAdverse Recommendation Change in accordance with Section 6.03<\/u>, the
\nCompany Board shall make the Board Recommendation and use its reasonable best
\nefforts to obtain the Stockholder Approval, and the Company shall otherwise
\ncomply with all Applicable Laws applicable to the Stockholder Meeting. Without
\nlimiting the generality of the foregoing, unless this Agreement is terminated in
\naccordance with Section 8.01<\/u>, the Company shall establish a record date
\nfor, call, give notice of, convene and hold the Stockholder Meeting and the
\nmatters constituting the Stockholder Approval shall be submitted to the
\nCompany153s stockholders at the Stockholder Meeting whether or not (A) an Adverse
\nRecommendation Change shall have occurred or (B) any Acquisition Proposal or
\nSuperior Proposal shall have been publicly proposed or announced or otherwise
\nsubmitted to the Company or any of its Representatives. Unless this Agreement is
\nterminated in accordance with Section 8.01<\/u>, the Company agrees that it
\nshall not submit to the vote of the stockholders of the Company any Acquisition
\nProposal (whether or not a Superior Proposal) prior to the vote of the Company153s
\nstockholders with respect to the Merger at the Stockholder Meeting. The notice
\nof such Stockholder Meeting shall state that a resolution to approve and adopt
\nthis Agreement and the Merger will be considered at the Stockholder Meeting, and
\nno other matters shall be considered or voted upon at the Stockholder Meeting
\nwithout Parent153s prior written consent.<\/p>\n

(b) Except to the extent expressly permitted by Section 6.03(d)<\/u>: (i)
\nthe Company Board shall unanimously recommend that the Company153s stockholders
\nvote in favor of the adoption and approval of this Agreement and approval of the
\nMerger (the “Board Recommendation<\/strong>“) at the Stockholder Meeting,
\nand (ii) the Proxy Statement shall include the Board Recommendation.<\/p>\n

(c) As promptly as practicable after the date hereof, the Company shall
\nprepare and file with the SEC the Proxy Statement (but in no event later than
\nthirty (30) calendar days after the date of this Agreement) and as soon as
\npracticable thereafter use its reasonable best efforts to mail to its
\nstockholders the Proxy Statement (but in no event later than five (5) Business
\nDays following clearance of the Proxy Statement by the SEC) and all other proxy
\nmaterials for the<\/p>\n

50<\/p>\n

\n

Stockholder Meeting, and if necessary in order to comply with Applicable Law,
\nafter the Proxy Statement shall have been so mailed, promptly circulate amended,
\nsupplemental or supplemented proxy material, and, if required in connection
\ntherewith, re-solicit proxies. Parent and Merger Subsidiary shall cooperate with
\nthe Company in connection with the preparation and filing of the Proxy Statement
\nand the resolution of any comments thereto from the SEC, including furnishing
\nthe Company upon request all information as the Company may reasonably request
\nin connection with the preparation and filing with the SEC of the Proxy
\nStatement and any supplement or amendment thereto. Parent and its counsel shall
\nbe given a reasonable opportunity to review and comment on the Proxy Statement
\nbefore such document (or any amendment or supplement thereto) is filed with the
\nSEC, and the Company shall include in such document any comments reasonably
\nproposed by Parent and its counsel. The Company shall (i) as promptly as
\npracticable after receipt thereof, provide Parent and its counsel with copies of
\nany written comments, and advise Parent and its counsel of any oral comments,
\nwith respect to the Proxy Statement (or any amendment or supplement thereto)
\nreceived from the SEC or its staff, (ii) provide Parent and its counsel a
\nreasonable opportunity to review the Company153s proposed response to such
\ncomments, (iii) include in the Company153s written response to such comments any
\ncomments reasonably proposed by Parent and its counsel, and (iv) provide Parent
\nand its counsel a reasonable opportunity to participate in any discussions or
\nmeetings with the SEC.<\/p>\n

(d) Unless Parent otherwise consents in writing, the Company shall execute
\nthe Spin-Off Agreements in the form and substance delivered to Parent on or
\nbefore the date of this Agreement, shall consummate the Spin-Off in accordance
\nwith the terms of the Spin-Off Agreements as so delivered to Parent, and shall
\nuse its reasonable best efforts to complete the Spin-Off as promptly as
\npracticable.<\/p>\n

Section 6.03. No Solicitation.<\/em><\/p>\n

(a) From the date of this Agreement until the earlier of the Effective Time
\nand the termination of this Agreement in accordance with its terms, neither the
\nCompany nor any of its Subsidiaries shall, nor shall the Company or any of its
\nSubsidiaries authorize or permit any of its or their Representatives to, and the
\nCompany shall instruct, and cause each applicable Subsidiary, if any, to
\ninstruct, each such Representative not to, directly or indirectly, solicit,
\ninitiate or knowingly facilitate or knowingly encourage the submission of any
\nAcquisition Proposal or the making of any inquiry, offer or proposal that could
\nreasonably be expected to lead to any Acquisition Proposal, or, subject to
\nSection 6.03(b)<\/u>, (i) conduct or engage in any discussions or negotiations
\nwith, disclose any non-public information relating to the Company or any of its
\nSubsidiaries to, afford access to the business, properties, assets, books or
\nrecords of the Company or any of its Subsidiaries to or otherwise cooperate in
\nany way, or knowingly assist, participate in, knowingly facilitate or knowingly
\nencourage any effort by, any Third Party that is seeking to make, or has made,
\nany Acquisition Proposal, (ii) (A) amend or grant any waiver or release under
\nany standstill or similar agreement with respect to any class of equity
\nsecurities of the Company or any of its Subsidiaries or (B) approve any
\ntransaction under, or any Third Party becoming an “interested stockholder”
\nunder, Section 203 of Delaware Law, (iii) enter into any agreement in principle,
\nletter of intent, term sheet, acquisition agreement, merger agreement, option
\nagreement, joint venture agreement, partnership agreement or other Contract
\nrelating to any Acquisition Proposal or enter into any agreement or agreement in
\nprinciple requiring the<\/p>\n

51<\/p>\n

\n

Company to abandon, terminate or fail to consummate the transactions
\ncontemplated hereby or breach its obligations hereunder (an
\n“Acquisition Agreement<\/strong>“), or (iv) resolve, propose or agree to
\ndo any of the foregoing. Without limiting the foregoing, it is understood that
\nany violation of the foregoing restrictions by any Subsidiary of the Company or
\nRepresentatives of the Company or any of its Subsidiaries shall be deemed to be
\na breach of this Section 6.03 <\/u>by the Company. The Company shall, and
\nshall cause its Subsidiaries and its and their respective Representatives to
\ncease immediately and cause to be terminated, and shall not authorize or
\nknowingly permit any of its or their Representatives to continue, any and all
\nexisting activities, discussions or negotiations, if any, with any Third Party
\nconducted prior to the date hereof with respect to any Acquisition Proposal and
\nshall use its reasonable best efforts to cause any such Third Party (or its
\nagents or advisors) in possession of non-public information in respect of the
\nCompany or any of its Subsidiaries that was furnished by or on behalf of the
\nCompany and its Subsidiaries to return or destroy (and confirm destruction of)
\nall such information.<\/p>\n

(b) Notwithstanding the foregoing provisions of Section 6.03(a)<\/u>, prior
\nto the Stockholder Approval, the Company Board, directly or indirectly through
\nany Representative, may (i) engage in negotiations or discussions with any Third
\nParty that has made (and not withdrawn) a bona fide unsolicited Acquisition
\nProposal in writing after the date of this Agreement, that did not result from
\nor arise out of a breach of this Section 6.03<\/u>, and that the Company Board
\nbelieves in good faith, after consultation with its outside legal counsel and
\nfinancial advisor of nationally recognized reputation, constitutes or would
\nreasonably be expected to result in a Superior Proposal, and (ii) thereafter
\nfurnish to such Third Party non-public information relating to the Company or
\nany of its Subsidiaries pursuant to an executed confidentiality agreement with
\nterms no less favorable to the Company than those contained in the
\nConfidentiality Agreement (including with regard to any standstill provisions
\nthereof) and containing additional provisions that expressly permit the Company
\nto comply with the terms of this Section 6.03<\/u> (a copy of which
\nconfidentiality agreement shall be promptly and in any event with 24 hours
\nprovided for informational purposes only to Parent), but in each case under the
\npreceding clauses (i) and (ii), only if the Company Board determines in good
\nfaith, after consultation with outside legal counsel to the Company Board, that
\nthe failure to take such action would be a breach of its fiduciary duties under
\nApplicable Law.<\/p>\n

(c) The Company Board shall not take any of the actions referred to in
\nclauses (i) or (ii) of Section 6.03(b)<\/u>, unless the Company shall have
\nnotified Parent in writing at least two (2) Business Days before taking such
\naction that it intends to take such action. The Company shall notify Parent
\npromptly (but in no event later than 24 hours) after it obtains knowledge of the
\nreceipt by the Company (or any of its Representatives) of any Acquisition
\nProposal, any inquiry, offer or proposal that would reasonably be expected to
\nlead to an Acquisition Proposal, or any request for non-public information
\nrelating to the Company or any of its Subsidiaries or for access to the
\nbusiness, properties, assets, books or records of the Company or any of its
\nSubsidiaries by any Third Party. In such notice, the Company shall identify the
\nThird Party making, and the material terms and conditions of, any such
\nAcquisition Proposal, indication, offer, proposal or request. The Company shall
\nkeep Parent reasonably informed, on a prompt basis, of the status and material
\nterms of any such Acquisition Proposal, indication or request, including any
\nmaterial amendments or proposed amendments as to price and other material terms
\nthereof. The Company shall provide Parent with at least 48 hours prior notice of
\nany meeting of the Company Board at which the Company Board is reasonably
\nexpected to consider any<\/p>\n

52<\/p>\n

\n

Acquisition Proposal. The Company shall promptly provide Parent with any
\nnon-public information concerning the Company153s business, present or future
\nperformance, financial condition or results of operations, provided to any Third
\nParty that was not previously provided to Parent.<\/p>\n

(d) Neither the Company Board nor any committee thereof shall (i) fail to
\nmake, withdraw, amend or modify, or publicly propose to withhold, withdraw,
\namend or modify, in a manner adverse to Parent or Merger Subsidiary, the Board
\nRecommendation, (ii) approve, endorse, adopt or recommend, or publicly propose
\nto approve, endorse, adopt or recommend, any Acquisition Proposal or Superior
\nProposal, (iii) fail to recommend against acceptance of any tender offer or
\nexchange offer for the Company Common Stock within ten (10) Business Days after
\nthe commencement of such offer, (iv) make any public statement inconsistent with
\nthe Board Recommendation or (v) resolve or agree to take any of the foregoing
\nactions (any of the foregoing, an “Adverse Recommendation
\nChange<\/strong>“). Notwithstanding anything in this Agreement to the contrary,
\nat any time prior to the Stockholder Approval, the Company Board, following
\nreceipt of and on account of an Acquisition Proposal that the Company Board is
\nprepared to determine constitutes a Superior Proposal, may make an Adverse
\nRecommendation Change and shall, in connection therewith, terminate this
\nAgreement pursuant to Section 8.01(d)(i)<\/u>, but only if the Company Board
\ndetermines in good faith, after consultation with outside legal counsel to the
\nCompany Board, that the failure to take such action would be a breach of its
\nfiduciary duties under Applicable Law; provided, however<\/em>, that the
\nCompany Board shall not take such action unless (i) the Company provides Parent,
\nin writing, with at least five (5) Business Days prior notice (the
\n“Notice Period<\/strong>“) of its intention to take such action with
\nrespect to a Superior Proposal, (ii) the Company attaches to such notice the
\nmost current version of the proposed agreement or a detailed summary of all
\nmaterial terms of any such Superior Proposal (which version or summary shall be
\nupdated on a reasonably prompt basis if the material terms of such Superior
\nProposal change in any respect) and the identity of the Third Party making the
\nSuperior Proposal, (iii) the Company shall, and shall cause its financial and
\nlegal advisors to, during the Notice Period, negotiate with Parent in good faith
\nto make such adjustments in the terms and conditions of this Agreement so that
\nsuch Acquisition Proposal ceases to constitute a Superior Proposal, if Parent,
\nin its discretion, proposes to make such adjustments; it being agreed that in
\nthe event that, after commencement of the Notice Period, there is any material
\nrevision to the terms of such Superior Proposal, including any revision in
\nprice, the Notice Period shall be extended, if applicable, to ensure that at
\nleast three (3) Business Days remain in the Notice Period subsequent to the time
\nthe Company notifies Parent of any such material revision (it being understood
\nthat there may be multiple extensions); and (iv) Parent does not make, within
\nthe Notice Period, an offer that is determined by the Company Board in good
\nfaith, after consulting with its outside counsel and financial advisor of
\nnationally recognized reputation, to be at least as favorable to the
\nstockholders of the Company as such Superior Proposal.<\/p>\n

(e) Nothing contained in this Section 6.03<\/u> shall prevent the Company
\nBoard from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act
\nwith regard to an Acquisition Proposal; provided <\/em>that any such
\ndisclosure (other than a “stop, look and listen” communication or similar
\ncommunication of the type contemplated by Section 14d-9(f) under the Exchange
\nAct) shall be deemed to be a Adverse Recommendation Change unless the<\/p>\n

53<\/p>\n

\n

Company Board expressly publicly reaffirms its Board Recommendation (x) in
\nsuch communication or (y) within two (2) Business Days after requested to do so
\nby Parent.<\/p>\n

Section 6.04. Access to Information<\/em>. From the date hereof until the
\nearlier of the Effective Time and the termination of this Agreement in
\naccordance with its terms, the Company shall, upon reasonable notice, (i) give
\nto Parent and its Representatives reasonable access to the offices, properties,
\nbooks, records, Contracts, Governmental Authorizations, documents, directors,
\nofficers and employees of the Company and its Subsidiaries, (ii) furnish to
\nParent and its Representatives such financial, Tax and operating data and other
\ninformation as such Persons may reasonably request (including the work papers of
\nPricewaterhouseCoopers LLP upon receipt of any required consent from
\nPricewaterhouseCoopers LLP), and (iii) instruct its Representatives to cooperate
\nwith Parent and its Representatives in its investigation; provided<\/em>,
\nhowever<\/em>, that (A) the Company may restrict the foregoing access to the
\nextent that any Applicable Law requires the Company to restrict or prohibit
\naccess to any such properties or information, or (B) Parent and Merger
\nSubsidiary and their respective Representatives shall not have access to such
\ninformation the disclosure of which would, based on the advice of legal counsel,
\nresult in the loss of attorney-client privilege with respect to such
\ninformation. Any investigation pursuant to this Section 6.04<\/u> shall be
\nconducted in such manner as not to interfere unreasonably with the conduct of
\nthe business of the Company and its Subsidiaries. All information obtained
\npursuant to this Section 6.04<\/u> shall continue to be governed by the
\nConfidentiality Agreement.<\/p>\n

Section 6.05. Notice of Certain Events.<\/em><\/p>\n

(a) In connection with the continuing operation of the business of the
\nCompany and its Subsidiaries between the date of this Agreement and the
\nEffective Time, subject to Applicable Law, the executive officers of the Company
\nshall consult in good faith on a regular basis with Parent to report material
\n(individually or in the aggregate) operational developments, the status of
\nrelationships with customers, resellers, partners, suppliers, licensors,
\nlicensees, distributors and others having material business relationships with
\nthe Company, the status of ongoing operations and other matters reasonably
\nrequested by Parent pursuant to procedures reasonably requested by Parent;
\nprovided that no such consultation shall affect the representations, warranties,
\ncovenants, agreements or obligations of the parties (or remedies with respect
\nthereto) or the conditions to the obligations of the parties under this
\nAgreement.<\/p>\n

(b) From the date hereof until the earlier of the Effective Time or the
\ntermination of this Agreement in accordance with its terms, the Company shall
\npromptly notify Parent of:<\/p>\n

(i) any notice or other communication from any Person alleging that the
\nconsent of such Person is or may be required in connection with the transactions
\ncontemplated by this Agreement;<\/p>\n

(ii) any notice or other communication from any Governmental Authority in
\nconnection with the transactions contemplated by this Agreement;<\/p>\n

(iii) any Proceeding commenced or, to the Knowledge of the Company,
\nthreatened against, relating to or involving or otherwise affecting the Company
\nor any of its Subsidiaries, as the case may be, that, if pending on the date of
\nthis Agreement, would<\/p>\n

54<\/p>\n

\n

have been required to have been disclosed pursuant to Sections 4.12<\/u>,
\n4.13<\/u>, 4.15<\/u>, or 4.16<\/u>, as the case may be, or that relates to
\nthe consummation of the transactions contemplated by this Agreement or any
\nProceeding involving stockholder litigation or claims against the Company, any
\nof its Subsidiaries or their respective officers, directors or employees
\nrelating to this Agreement, the Merger, the Spin-Off or the transactions
\ncontemplated hereby;<\/p>\n

(iv) any notice or other communication from any Major Customer or Major
\nSupplier that such Major Customer or Major Supplier is terminating its
\nrelationship with the Company or any of its Subsidiaries as a result of the
\ntransactions contemplated by this Agreement; and<\/p>\n

(v) any inaccuracy of any representation or warranty or breach of covenant or
\nagreement contained in this Agreement at any time during the term hereof that
\ncould reasonably be expected to cause the conditions set forth in Section
\n7.02<\/u> not to be satisfied.<\/p>\n

Except as permitted by Section 6.01(n)<\/u>, no settlement in connection
\nwith any Proceeding referred to in clause (iii) above shall be agreed to without
\nParent153s prior written consent.<\/p>\n

Section 6.06. Employee Benefits Matters<\/em>. In connection with the
\nSpin-Off, but in any event prior to the Effective Time, the Company shall assign
\nto the Spin-Off Subsidiary, without recourse, and the Spin-Off Subsidiary shall
\nassume, all of the Company153s rights and obligations as sponsor of each of the
\nCompany Employee Plans set forth in Section 6.06<\/u> of the Company
\nDisclosure Schedule, and each such Company Employee Plan shall be amended to
\nprovide that, effective as of the Effective Time, no employee or former employee
\nof the Company (except for an employee whose employment is transferred to the
\nSpin-Off Subsidiary or one of its Subsidiaries in connection with the Spin-Off),
\nand no dependent or beneficiary of any such employee (collectively, the
\n“Surviving Corporation Employees<\/strong>“), shall have any rights with
\nrespect to any such Company Employee Plan, except for the rights of a terminated
\nemployee, or as otherwise provided in this Section 6.06<\/u> or in Section
\n6.07<\/u>. After the Effective Time, Parent or the Surviving Corporation shall
\nprovide the Surviving Corporation Employees with employee benefits that are
\nsubstantially comparable in the aggregate to those employee benefits provided to
\nsimilarly situated employees of Parent or the Surviving Corporation (as
\napplicable). The Surviving Corporation or Parent shall provide that all
\nSurviving Corporation Employees shall receive credit in all employee benefit
\nplans sponsored by Parent in which they are eligible to participate (including
\nany 401(k) plan) for their service with the Company for all purposes of
\neligibility for and vesting of benefits, but not for purposes of benefit
\naccrual. For purposes of the continuation coverage requirements of Section 601
\net seq. of ERISA and Section 4980B of the Code, it is agreed that a group health
\nplan sponsored by Parent, or a member of its controlled group, shall be
\nresponsible for providing continuation coverage for all M&A qualified
\nbeneficiaries, as defined by Treas. Reg. \u00a754.4980B-9, with respect to the
\nMerger, except for employees of the Spin-Off Subsidiary, or its Subsidiaries,
\nimmediately following the Spin-Off. The Spin-Off Subsidiary and the Company may
\nenter into a separate agreement consistent with the provisions of this
\nSection 6.06<\/u> and Section 6.07<\/u>, providing in more detail for the
\nmatters described herein. Nothing herein or in Section 6.07<\/u>, expressed or
\nimplied shall confer upon any<\/p>\n

55<\/p>\n

\n

employee any rights or remedies, including any right to employment, or
\ncontinued employment for any specified period, of any nature or kind whatsoever
\nunder or by reason of this Agreement.<\/p>\n

Section 6.07. 401(k) Plans<\/em>. Immediately following transfer of the
\nsponsorship of the Bitstream Investment Plan and Trust (the “Company
\n401(k) Plan<\/strong>“) to the Spin-Off Subsidiary as provided in Section
\n6.06<\/u>, the Company 401(k) Plan shall be amended to provide that, effective as
\nof the Effective Time, all Surviving Corporation Employees who participated in
\nthe Company 401(k) Plan shall be fully vested in their accounts, shall be
\ntreated as having incurred a termination of employment, and shall be entitled to
\nreceive a distribution of their account balance in a lump sum. Each Surviving
\nCorporation Employee may elect to roll over his distribution from the Company
\n401(k) Plan to a defined contribution plan sponsored by Parent or a member of
\nits controlled group in a direct rollover in accordance with Code Section
\n401(a)(31), and to the extent any such Surviving Corporation Employee has an
\noutstanding loan from the Company 401(k) Plan, the distribution to such
\nSurviving Corporation Employee shall include the promissory note evidencing such
\nloan, and such promissory note may be included in such direct rollover.<\/p>\n

Section 6.08. State Takeover Laws<\/em>. If any “control share
\nacquisition,” “fair price,” “moratorium” or other anti-takeover Applicable Law
\nbecomes or is deemed to be applicable to the Company, Parent, Merger Subsidiary,
\nthe Merger, the Voting Agreements or any other transaction contemplated by this
\nAgreement, then each of the Company, Parent, Merger Subsidiary, and their
\nrespective Board of Directors shall grant such approvals and take such actions
\nas are necessary so that the transactions contemplated hereby may be consummated
\nas promptly as practicable on the terms contemplated hereby and otherwise act to
\nrender such anti-takeover Applicable Law inapplicable to the foregoing.<\/p>\n

Section 6.09. Obligations of Merger Subsidiary<\/em>. Parent shall cause
\nMerger Subsidiary to perform its obligations under this Agreement and to
\nconsummate the Merger on the terms and conditions set forth in this Agreement.\n<\/p>\n

Section 6.10. Voting of Shares<\/em>. Parent shall vote any shares of
\nCompany Common Stock beneficially owned by it or any of its Subsidiaries in
\nfavor of adoption of this Agreement at the Stockholder Meeting, and will vote or
\ncause to be voted the shares of Merger Subsidiary held by it or any of its
\nSubsidiaries, as the case may be, in favor of adoption of this Agreement.<\/p>\n

Section 6.11. Director and Officer Liability.<\/em><\/p>\n

(a) Prior to the Effective Time, Parent shall purchase an officer153s and
\ndirector153s liability insurance tail policy, which policy shall provide each
\nPerson currently covered by the Company153s directors153 and officers153 liability
\ninsurance policy with coverage for an aggregate period of six (6) years with at
\nleast the same coverage and amounts and containing terms and conditions that are
\nnot materially less advantageous in the aggregate to the directors and officers
\nof the Company and the Limited Company Subsidiaries with respect to claims
\narising from facts or events that occurred at or before the Effective Time,
\nincluding, in respect of the transactions contemplated by this Agreement and the
\nSpin-Off Agreements; provided, however<\/em>, that Parent shall not be
\nobligated to make an aggregate premium payment for such insurance to the extent
\nsuch aggregate premium exceeds 200% of the annual premium paid as of the date
\nhereof by the<\/p>\n

56<\/p>\n

\n

Company for such insurance (such 200% amount, the “Base
\nPremium<\/strong>“); and provided further<\/em> that, if the aggregate premium
\nfor such insurance shall exceed the Base Premium, then Parent shall provide or
\ncause to be provided a policy for the applicable individuals with the best
\ncoverage as shall then be available at an aggregate premium equal to the Base
\nPremium. The Surviving Corporation shall maintain such policies in full force
\nand effect for their full term, and continue to honor the obligations
\nthereunder.<\/p>\n

(b) From and after the Effective Time through the sixth anniversary of the
\nEffective Time, the Surviving Corporation will, and Parent will cause the
\nSurviving Corporation and its Subsidiaries to, fulfill and honor in all respects
\nthe obligations of the Company and the Limited Company Subsidiaries pursuant to:
\n(i) each indemnification agreement in effect between the Company or any of the
\nLimited Company Subsidiaries, on the one hand, and any person who is now, or has
\nbeen at any time prior to the date hereof, or who becomes prior to the Effective
\nTime, a director or officer of the Company or any of the Limited Company
\nSubsidiaries, on the other hand (the “Indemnified Parties<\/strong>“);
\nand (ii) any indemnification provision, advancement of expenses provision and
\nany exculpation provision set forth in the certificate of incorporation or
\nbylaws of the Company or any of the Limited Company Subsidiaries as in effect on
\nthe date of this Agreement; provided<\/em> that such obligations shall be
\nsubject to any limitation imposed from time to time under Applicable Law.<\/p>\n

(c) The obligations of Parent and the Surviving Corporation under this
\nSection 6.11<\/u> shall survive the consummation of the Merger and shall not
\nbe terminated or modified thereafter in such a manner as to adversely affect any
\nPerson to whom this Section 6.11<\/u> applies without the consent of such
\naffected Person (it being expressly agreed that the Persons to whom this
\nSection 6.11<\/u> applies shall be third party beneficiaries of this
\nSection 6.11<\/u>, each of whom may enforce the provisions of this Section
\n6.11<\/u>).<\/p>\n

(d) If Parent, the Surviving Corporation or any of its successors or assigns
\n(i) consolidates with or merges into any other Person and shall not be the
\ncontinuing or surviving corporation or entity of such consolidation or merger or
\n(ii) transfers or conveys all or substantially all of its properties and assets
\nto any Person, then, and in each such case, to the extent necessary, proper
\nprovision shall be made so that the successors and assigns of Parent or the
\nSurviving Corporation, as the case may be, shall assume the obligations set
\nforth in this Section 6.11<\/u>.<\/p>\n

Section 6.12. Reasonable Best Efforts.<\/em><\/p>\n

(a) Subject to the terms and conditions of this Agreement, the Company,
\nParent and Merger Subsidiary shall use their reasonable best efforts to take, or
\ncause to be taken, all actions and to do, or cause to be done, and to assist and
\ncooperate with the other parties in doing, all things necessary, proper or
\nadvisable under Applicable Law or otherwise to consummate the transactions
\ncontemplated by this Agreement, including (i) the obtaining of all necessary
\nactions or nonactions, waivers, consents and approvals from Governmental
\nAuthorities and the making of all necessary registrations and filings (including
\nfilings with Governmental Authorities, if any) and the taking of all reasonable
\nsteps as may be necessary to obtain an approval or waiver from, or to avoid an
\naction or proceeding by, any Governmental Authorities, (ii) the delivery of
\nrequired notices to, and the obtaining of required consents or waivers from,
\nthird parties, and (iii)<\/p>\n

57<\/p>\n

\n

the execution and delivery of any additional instruments necessary to
\nconsummate the Merger and to fully carry out the purposes of this Agreement.\n<\/p>\n

(b) In furtherance and not in limitation of the undertakings pursuant to this
\nSection 6.12<\/u>, each of Parent, Merger Subsidiary and the Company shall (i)
\nprovide or cause to be provided as promptly as practicable to Governmental
\nAuthorities with regulatory jurisdiction over enforcement of any Antitrust Laws
\n(each such Governmental Authority, a “Governmental Antitrust
\nAuthority<\/strong>“) information and documents requested by any Governmental
\nAntitrust Authority or necessary, proper or advisable to permit consummation of
\nthe transactions contemplated by this Agreement, including preparing and filing
\nany notification and report form and related material required under any
\nAntitrust Laws as promptly as practicable following the date of this Agreement
\n(but in no event more than fifteen (15) Business Days from the date hereof
\nexcept by mutual consent confirmed in writing) and thereafter to respond as
\npromptly as practicable to any request for additional information or documentary
\nmaterial and any additional consents and filings under any Antitrust Laws; and
\n(ii) use their reasonable best efforts to take such actions as are necessary or
\nadvisable to obtain prompt approval of consummation of the transactions
\ncontemplated by this Agreement by any Governmental Authority.<\/p>\n

(c) Notwithstanding anything to the contrary herein, nothing in this
\nAgreement shall require Parent or any of its Subsidiaries to, nor shall the
\nCompany or any of its Subsidiaries without the prior written consent of Parent
\nagree or proffer to, divest, hold separate, or enter into any license or similar
\nagreement with respect to, or agree to restrict the ownership or operation of,
\nor agree to conduct or operate in a specified manner, any portion of the
\nbusiness or assets of Parent, the Company or any of their respective
\nSubsidiaries. Notwithstanding anything to the contrary herein, in no event shall
\nParent or any of its Subsidiaries be obligated to litigate or participate in the
\nlitigation of any Proceeding, whether judicial or administrative, brought by any
\nGovernmental Authority or appeal any Order (i) challenging or seeking to make
\nillegal, delay materially or otherwise directly or indirectly restrain or
\nprohibit the consummation of the Merger or the other transactions contemplated
\nby this Agreement or seeking to obtain from Parent or any of its Subsidiaries
\nany damages in connection therewith, or (ii) seeking to prohibit or limit in any
\nrespect, or place any conditions on, the ownership or operation by the Company,
\nParent or any of their respective Affiliates of all or any portion of the
\nbusiness, assets or any product of the Company or any of its Subsidiaries or
\nParent or any of its Subsidiaries or to require any such Person to dispose of,
\nlicense (whether pursuant to an exclusive or nonexclusive license) or enter into
\na consent decree or hold separate all or any portion of the business, assets or
\nany product of the Company or any of its Subsidiaries or Parent or any of its
\nSubsidiaries, in each case as a result of or in connection with the Merger or
\nany of the other transactions contemplated by this Agreement. Without limiting
\nthe generality of the foregoing, the Company shall give Parent the opportunity
\nto participate in the defense of any Proceeding against the Company and\/or its
\ndirectors relating to the transactions contemplated by this Agreement and will
\nobtain the prior written consent of Parent prior to settling or satisfying any
\nsuch Proceeding.<\/p>\n

(d) Subject to Applicable Law relating to the exchange of information, the
\nCompany and Parent and their respective counsel shall (i) have the right to
\nreview in advance, and to the extent practicable each shall consult the other
\non, any filing made with, or written materials to be submitted to, any
\nGovernmental Authority in connection with the transactions contemplated by this
\nAgreement, (ii) promptly inform each other of any communication (or other
\ncorrespondence<\/p>\n

58<\/p>\n

\n

or memoranda) received from, or given to, any Governmental Antitrust
\nAuthority and (iii) promptly furnish each other with copies of all
\ncorrespondence, filings and written communications between them or their
\nSubsidiaries or Affiliates, on the one hand, and any Governmental Authority or
\nits respective staff, on the other hand, with respect to the transactions
\ncontemplated by this Agreement. The Company and Parent shall, to the extent
\npracticable, provide the other party and its counsel with advance notice of and
\nthe opportunity to participate in any discussion, telephone call or meeting with
\nany Governmental Authority in respect of any filing, investigation or other
\ninquiry in connection with the transactions contemplated by this Agreement and
\nto participate in the preparation for such discussion, telephone call or
\nmeeting. Neither Parent nor the Company shall commit to or agree with any
\nGovernmental Authority to stay, toll or extend any applicable waiting period
\nunder applicable Foreign Competition Laws, without the prior written consent of
\nthe other. The Company and Parent may, as each deems advisable and necessary,
\nreasonably designate any competitively sensitive material provided to the other
\nunder this Section 6.12<\/u> as “Antitrust Counsel Only
\nMaterial<\/strong>“. Notwithstanding anything to the contrary in this Section
\n6.12<\/u>, materials provided to the other party or its counsel may be redacted
\nto remove references concerning the valuation of the Company and its
\nSubsidiaries.<\/p>\n

(e) Each of Parent and Merger Subsidiary agrees that, between the date of
\nthis Agreement and the Closing Date, each of Parent and Merger Subsidiary shall
\nnot, and shall ensure that none of its Subsidiaries or other Affiliates shall,
\ntake any action or propose, announce an intention or agree, in writing or
\notherwise, to take any action that would reasonably be expected to materially
\ndelay or prevent the consummation of the transactions contemplated hereby.<\/p>\n

Section 6.13. Certain Filings<\/em>. The Company and Parent shall
\ncooperate with one another (i) in determining whether any action by or in
\nrespect of, or filing with, any Governmental Authority is required, or any
\nactions, consents, approvals or waivers are required to be obtained from parties
\nto any material contracts, in connection with the consummation of the
\ntransactions contemplated by this Agreement and (ii) in taking such reasonable
\nactions or making any such filings, furnishing information required in
\nconnection therewith or with the Proxy Statement and seeking to timely obtain
\nany such actions, consents, approvals or waivers.<\/p>\n

Section 6.14. Public Announcements<\/em>. Parent and the Company shall
\nconsult with each other before issuing any press release or making any other
\npublic statement, or scheduling a press conference or conference call with
\ninvestors or analysts, with respect to this Agreement or the transactions
\ncontemplated hereby and shall not issue any such press release or make any such
\nother public statement without the consent of the other party, which shall not
\nbe unreasonably withheld or delayed, except as such release or announcement may
\nbe required by Applicable Law or any listing agreement with or rule of any
\nnational securities exchange or association upon which the securities of the
\nCompany or Parent, as applicable, are listed, in which case the party required
\nto make the release or announcement shall consult with the other party about,
\nand allow the other party reasonable time (taking into account the
\ncircumstances) to comment on, such release or announcement in advance of such
\nissuance, and the party will consider such comments in good faith.<\/p>\n

59<\/p>\n

\n

Section 6.15. Further Assurances<\/em>. At and after the Effective Time,
\nthe officers and directors of the Surviving Corporation shall be authorized to
\nexecute and deliver, in the name and on behalf of the Company or Merger
\nSubsidiary, any deeds, bills of sale, assignments or assurances and to take and
\ndo, in the name and on behalf of the Company or Merger Subsidiary, any other
\nactions and things to vest, perfect or confirm of record or otherwise in the
\nSurviving Corporation any and all right, title and interest in, to and under any
\nof the rights, properties or assets of the Company acquired or to be acquired by
\nthe Surviving Corporation as a result of, or in connection with, the Merger.\n<\/p>\n

Section 6.16. Confidentiality<\/em>. Parent and the Company hereby
\nacknowledge and agree to continue to be bound by the Confidentiality Agreement
\ndated as of March 18, 2011 by and between Parent and the Company (the
\n“Confidentiality Agreement<\/strong>“).<\/p>\n

Section 6.17. Section 16 Matters<\/em>. Prior to the Effective Time, the
\nCompany may approve, in accordance with the procedures set forth in Rule 16b-3
\npromulgated under the Exchange Act and in accordance with the Interpretative
\nLetter dated January 12, 1999 issued by the SEC relating to Rule 16b-3, any
\ndispositions of equity securities of the Company (including derivative
\nsecurities with respect to equity securities of the Company) resulting from the
\ntransactions contemplated by this Agreement by each officer or director of the
\nCompany who is subject to Section 16 of the Exchange Act with respect to equity
\nsecurities of the Company.<\/p>\n

Section 6.18. Certain Consents<\/em>.<\/p>\n

(a) Prior to the Effective Time, the Company shall obtain any and all
\nagreements, amendments, waivers, consents or other documents necessary, in
\nParent153s sole discretion, in order to (i) amend, modify, assign or terminate the
\nLease, such that neither the Company nor any Limited Company Subsidiary is a
\nparty thereto, and (ii) permanently release and discharge the Company and each
\nLimited Company Subsidiary from any and all liabilities, obligations or other
\nLiens whatsoever, arising out of or relating to the Lease (collective, the
\n“Lease Consent<\/strong>“). For the avoidance of doubt, any and all
\nexpenses, liabilities or other obligations arising out of or relating to the
\nLease and the matters contemplated by this Section 6.18(a)<\/u> shall be
\nincluded in the calculation of total liabilities for the purposes of the
\ndetermination of Net Asset Value and shall, notwithstanding anything herein to
\nthe contrary, serve to reduce the Merger Consideration on a dollar for dollar
\nbasis.<\/p>\n

(b) The Company shall keep Parent reasonably informed, on a prompt basis, of
\nthe status and terms of any negotiations or discussions relating to, and any
\nagreement, amendment, assignment, waiver, consent, Contract or other document to
\nbe executed in connection with, the Lease Consent and the Lease. The Company
\nshall cooperate in good faith with Parent in connection with all matters
\nrelating to, and arising out of, the Lease Consent and the Lease.<\/p>\n

Section 6.19. Tax Matters<\/em>.<\/p>\n

(a) As promptly as practicable following the Distribution Date, but in no
\nevent earlier than the close of business on the first complete trading day that
\nthe shares of the Spin-Off Subsidiary are traded on any stock exchange or
\nquotation system (including over-the-counter trading), the Company shall prepare
\nin good faith and deliver to Parent the Company153s<\/p>\n

60<\/p>\n

\n

calculation of the Spin-Off Taxes as of such date (the “Company153s Tax
\nCalculations<\/strong>“). The Company shall permit Parent and its Representatives
\nat all reasonable times and upon reasonable notice to review the Company153s
\nworking papers relating to the Company153s Tax Calculation, as well as all of the
\nCompany153s accounting books and records relating to such calculation, and the
\nCompany shall make reasonably available its Representatives responsible for the
\npreparation of such calculations in order to respond to the reasonable inquiries
\nof Parent. Within three (3) Business Days after Parent153s receipt of the
\nCompany153s Tax Calculations (unless earlier waived in writing by Parent), Parent
\nmay object, in good faith, to such calculations by giving written notice to the
\nCompany setting forth the basis for Parent153s dispute regarding some or all of
\nsuch calculations (the “Parent153s Tax Objection<\/strong>“). If Parent
\ndoes not object to all or any portion of the Company153s Tax Calculations within
\nsuch three–<\/strong>Business Day period (or earlier waives such
\nobjection right in writing), then Parent shall be deemed to have conclusively
\nagreed with and shall be bound by the Company153s Tax Calculations.<\/p>\n

(b) If Parent sends the Parent153s Tax Objection on a timely basis, then Parent
\nand the Company shall confer in good faith in an attempt to resolve the
\ndifferences. If, after three (3) Business Days, Parent and the Company cannot
\nagree, then the Firm shall review the Company153s Tax Calculations and the
\nParent153s Tax Objection (as well as any other information requested by the Firm)
\nand make a final written determination of the Spin-Off Taxes, which
\ndetermination shall be conclusive and binding on Parent and the Company.
\nNotwithstanding the foregoing, in no event shall the Firm determine that the
\nSpin-Off Taxes are more than the amount set forth in the Parent153s Tax Objection
\nor less than the Spin-Off Taxes set forth in the Company153s Tax Calculations. The
\ndetermination of the Spin-Off Taxes by the Firm shall be made as promptly as
\npossible but not later than five (5) Business Days after the Firm153s engagement
\n(unless otherwise agreed to by the Firm, Parent and the Company). The Firm shall
\nact as an expert and not an arbiter. The fees and expenses of the Firm will be
\nequitably allocated by the Firm based on the relative accuracy of the parties153
\npositions relative to the final determination of the Spin-Off Taxes by the Firm.
\nFor the avoidance of doubt, the determination of the Spin-Off Taxes in
\naccordance with this Section 6.19<\/u> shall not affect, modify, amend or
\nchange in any way (i) the calculation of the Spin-Off Taxes for purposes of
\ndetermining Net Asset Value or the Merger Consideration pursuant to Section
\n2.03<\/u> or (ii) the obligations of the parties under the Tax Indemnity
\nAgreement.<\/p>\n

ARTICLE 7 <\/strong><\/p>\n

CONDITIONS TO THE MERGER <\/strong><\/p>\n

Section 7.01. Conditions to the Obligations of Each Party<\/em>. The
\nobligation of each party hereto to consummate the Merger is subject to the
\nsatisfaction, at or prior to the Closing, of the following conditions:<\/p>\n

(a) the Stockholder Approval shall have been obtained;<\/p>\n

(b) no Governmental Authority having jurisdiction over any party hereto shall
\nhave issued any Order or other action that is in effect (whether temporary,
\npreliminary or permanent) restraining, enjoining or otherwise prohibiting the
\nconsummation of the Merger and no<\/p>\n

61<\/p>\n

\n

Applicable Law shall have been adopted that makes consummation of the Merger
\nillegal or otherwise prohibited;<\/p>\n

(c) the applicable waiting period (and any extension thereof, subject to
\nSection 6.12(d)<\/u>) applicable to the Merger under any Foreign Competition
\nLaw set forth in Section 7.01(c)<\/u> of the Company Disclosure Schedule shall
\nhave expired or been terminated and any affirmative approval of a Governmental
\nAuthority required under any Foreign Competition Law set forth in Section
\n7.01(c)<\/u> of the Company Disclosure Schedule shall have been obtained;<\/p>\n

(d) the amount of the Merger Consideration shall be final and binding on
\nParent, Merger Subsidiary and the Company in accordance with Section 2.03<\/u>
\nhereof; and<\/p>\n

(e) the amount of the Spin-Off Taxes, determined in accordance with
\nSection 6.19<\/u>, (i) shall be final and binding on Parent, Merger Subsidiary
\nand the Company, and (ii) shall not exceed the sum of (i) $1.0 million and (ii)
\nthe amount of any reduction in Net Asset Value for Spin-Off Taxes.<\/p>\n

Section 7.02. Conditions to the Obligations of Parent and Merger
\nSubsidiary<\/em>. The obligation of Parent and Merger Subsidiary to consummate
\nthe Merger is subject to the satisfaction, at or prior to Closing, of the
\nfollowing conditions:<\/p>\n

(a) (i) each of the Specified Company Representations shall be true and
\ncorrect in all material respects when made and as of the Closing Date as if made
\nat and as of such time (other than any Specified Company Representation that is
\nmade only as of a specified date, which need only to be true in all material
\nrespects as of such specified date), (ii) the Other Company Representations,
\ndisregarding any materiality or Company Material Adverse Effect qualifications
\ncontained therein, shall be true and correct when made and as of the Closing
\nDate as if made at and as of such time (other than any Other Company
\nRepresentations that are made only as of a specified date, which need only to be
\ntrue as of such specified date); provided<\/em> that the Other Company
\nRepresentations as modified in clause (ii) shall be deemed true at any time
\nunless the individual or aggregate impact of the failure to be so true of the
\nOther Company Representations would have or reasonably be expected to have a
\nCompany Material Adverse Effect, and (iii) Parent shall have received a
\ncertificate signed on behalf of the Company by a senior executive officer of the
\nCompany to the foregoing effect. Solely for the purposes of clause (i) above, if
\none or more inaccuracies in the representations and warranties set forth in
\nSection 4.05<\/u> or Section 4.25<\/u> would cause the aggregate amount
\nrequired to be paid by Parent or Merger Subsidiary to effectuate the Merger,
\nindirectly acquire all of the outstanding Equity Interests in the Company
\nSubsidiaries, consummate the transactions contemplated hereby (including without
\nlimitation the Merger) to be consummated on the Closing Date and pay all fees
\nand expenses in connection therewith, whether pursuant to Article 2<\/u> or
\notherwise, to increase by $100,000 or more, such inaccuracy or inaccuracies will
\nbe considered material for purposes of clause (i) of this Section
\n7.02(a)<\/u>;<\/p>\n

(b) the Company shall have performed in all material respects its obligations
\nunder the Agreement, and Parent shall have received a certificate signed on
\nbehalf of the Company by a senior executive officer of the Company to the
\nforegoing effect;<\/p>\n

62<\/p>\n

\n

(c) Parent shall have received the Lease Consent, which shall not have been
\nwithdrawn or suspended;<\/p>\n

(d) the Company shall have completed the Spin-Off;<\/p>\n

(e) since the date of this Agreement there shall not have been any effect,
\nchange, event or occurrence that has had or would reasonably be expected to have
\na Company Material Adverse Effect; and<\/p>\n

(f) (i) the Company shall have delivered a properly executed statement in a
\nform reasonably acceptable to Parent that the Company Securities do not
\nconstitute “United States real property interests” under Section 897(c) of the
\nCode for purposes of satisfying Parent153s obligations under Treasury Regulations
\nSection 1.1445-2(c)(3), and (ii) simultaneously with delivery of the statement
\ndescribed in clause (i), a form of notice to the Internal Revenue Service in
\naccordance with the requirements of Treasury Regulations Section 1.897-2(h)(2)
\nin a form reasonably acceptable to Parent along with written authorization for
\nParent to deliver such notice form to the Internal Revenue Service on behalf of
\nthe Company upon the Closing.<\/p>\n

Section 7.03. Conditions to the Obligations of the Company<\/em>. The
\nobligation of the Company to consummate the Merger is subject to the
\nsatisfaction, at or prior to Closing, of the following conditions:<\/p>\n

(a) The representations and warranties of Parent and Merger Subsidiary set
\nforth in this Agreement shall be true and correct in all respects (disregarding
\nany materiality qualifications contained therein) when made and as of the
\nClosing Date as if made on and as of the Closing Date (other than any such
\nrepresentation and warranty that is made only as of a specified date, which need
\nonly to be true in all material respects as of such specified date), except
\nwhere the failure of such representations and warranties to be so true and
\ncorrect would not reasonably be expected, individually or in the aggregate, to
\nmaterially delay or materially impair the ability of Parent or Merger Subsidiary
\nto consummate the Merger, and the Company shall have received a certificate
\nsigned on behalf of Parent by a senior executive officer of Parent to the
\nforegoing effect; and<\/p>\n

(b) Parent and Merger Subsidiary shall have performed in all material
\nrespects their respective obligations under the Agreement, and the Company shall
\nhave received a certificate signed on behalf of Parent by a senior executive
\nofficer of Parent to the foregoing effect.<\/p>\n

ARTICLE 8 <\/strong><\/p>\n

TERMINATION <\/strong><\/p>\n

Section 8.01. Termination<\/em>. This Agreement may be terminated and the
\nMerger may be abandoned at any time prior to the Closing (notwithstanding any
\napproval of this Agreement by the stockholders of the Company):<\/p>\n

(a) by mutual written agreement of the Company and Parent;<\/p>\n

(b) by either the Company or Parent, if:<\/p>\n

63<\/p>\n

\n

(i) the Merger has not been consummated on or before May 15, 2012 (subject to
\npossible extension as provided below, the “End Date<\/strong>“),
\nprovided,<\/em> that if the condition to the completion of the Merger set
\nforth in Section 7.02(d)<\/u> shall not have been satisfied by the End Date,
\nbut all other conditions set forth in Article 7<\/u> would be satisfied (or
\nare capable of being satisfied or have been waived), other than the condition
\nset forth in Section 7.01(d)<\/u>, if the Closing Date were to occur on such
\ndate, then Parent or the Company shall be entitled to extend the End Date to
\nJune 30, 2012; provided<\/em>, further <\/em>that if the condition to the
\ncompletion of the Merger set forth in Section 7.01(c)<\/u> shall not have been
\nsatisfied by the End Date (as it may be extended as set forth below), but all
\nother conditions set forth in Article 7<\/u> would be satisfied (or are
\ncapable of being satisfied or have been waived) if the Closing Date were to
\noccur on such date, then Parent shall be entitled to extend the End Date by a
\nthree (3) month period by written notice to the Company (the End Date may be so
\nextended not more than twice at the election of Parent), it being understood
\nthat in no event shall the End Date be extended to a date that is later than the
\ntwelve (12) month anniversary of this Agreement; provided, further<\/em>,
\nthat the right to terminate this Agreement under this Section 8.01(b)(i)<\/u>
\nshall not be available to any party whose material breach of any provision of
\nthis Agreement results in the failure of the Merger to be consummated by the End
\nDate;<\/p>\n

(ii) any Governmental Authority of competent jurisdiction shall have issued
\nan order, decree, injunction or ruling or taken any other action permanently
\nenjoining, permanently restraining or otherwise prohibiting the consummation of
\nthe Merger and such order, decree, ruling or other action shall have become
\nfinal and nonappealable, or if there shall be adopted any Applicable Law that
\nmakes consummation of the Merger illegal or otherwise prohibited;<\/p>\n

(iii) the Stockholder Approval has not been obtained by reason of the failure
\nto obtain the required vote upon a final vote taken at the Stockholder Meeting
\n(or any permitted adjournment or postponement thereof); or<\/p>\n

(iv) the amount of the Spin-Off Taxes, determined in accordance with
\nSection 6.19<\/u>, is greater than the sum of (a) $1.0 million and (b) the
\namount of any reduction in Net Asset Value for Spin-Off Taxes;<\/p>\n

(c) by Parent:<\/p>\n

(i) if (A) the Company shall have failed to include the Board Recommendation
\nin the Proxy Statement or shall have effected an Adverse Recommendation Change;
\n(B) the Company Board shall have failed to publicly reaffirm its recommendation
\nof this Agreement in the absence of a publicly announced Acquisition Proposal
\nwithin five (5) Business Days after Parent so requests in writing; (C) the
\nCompany shall have entered into, or publicly announced its intention to enter
\ninto, an Acquisition Agreement (other than a confidentiality agreement
\ncontemplated by Section 6.03(b)<\/u>); (D) the Company shall have breached in
\nany material respect the provisions of Section 6.03<\/u>, and such violation
\nor breach has resulted in the receipt by the Company of an Acquisition Proposal;
\nor (E) the Company Board shall have resolved to do any of the foregoing;<\/p>\n

64<\/p>\n

\n

(ii) in the event (A) of a material breach of any covenant or agreement on
\nthe part of the Company set forth in this Agreement or (B) that any
\nrepresentation or warranty of the Company set forth in this Agreement shall have
\nbeen inaccurate when made or shall have become inaccurate, in either case such
\nthat the conditions to the Merger set forth in Section 7.02(a)<\/u> or
\nSection 7.02(b)<\/u>, respectively, would not be satisfied as of the time of
\nsuch breach or as of the time such representation and warranty became
\ninaccurate; provided, however<\/em>, that notwithstanding the foregoing, in
\nthe event that such breach by the Company or such inaccuracies in the
\nrepresentations and warranties of the Company are curable by the Company through
\nthe exercise of commercially reasonable efforts prior to the End Date and within
\nthirty (30) days, then Parent shall not be permitted to terminate this Agreement
\npursuant to this Section 8.01(c)(ii)<\/u> until the earlier to occur of (1)
\nthe expiration of a thirty (30) calendar day period after delivery of written
\nnotice from Parent to the Company of such breach or inaccuracy, as applicable,
\nor (2) the ceasing by the Company to exercise commercially reasonable efforts to
\ncure such breach or inaccuracy, provided<\/em> that the Company continues to
\nexercise commercially reasonable efforts to cure such breach or inaccuracy (it
\nbeing understood that Parent may not terminate this Agreement pursuant to this
\nSection 8.01(c)(ii)<\/u> if such breach or inaccuracy by the Company is cured
\nwithin such thirty (30) calendar day period); or<\/p>\n

(iii) the Company has failed to effect the Spin-Off by the End Date; or<\/p>\n

(d) by the Company:<\/p>\n

(i) if prior to the Stockholder Approval, the Company Board authorizes the
\nCompany, in compliance with the terms of this Agreement, including Section
\n6.03(d)<\/u>, to enter into an Acquisition Agreement (other than a
\nconfidentiality agreement contemplated by Section 6.03(b)<\/u>) in respect of
\na Superior Proposal with a Third Party; provided <\/em>that the Company shall
\nhave paid any amounts due pursuant to Section 9.04<\/u> in accordance with the
\nterms, and at the times, specified therein; and provided further <\/em>that
\nin the event of such termination, the Company substantially concurrently enters
\ninto such Acquisition Agreement; or<\/p>\n

(ii) in the event (A) of a material breach of any covenant or agreement on
\nthe part of Parent or Merger Subsidiary set forth in this Agreement or (B) that
\nany of the representations and warranties of Parent and Merger Subsidiary set
\nforth in this Agreement shall have been inaccurate when made or shall have
\nbecome inaccurate, in either case such that the conditions to the Merger set
\nforth in Section 7.03(a)<\/u> and Section 7.03(b)<\/u>, respectively, would
\nnot be satisfied as of the time of such breach or as of the time such
\nrepresentation and warranty became inaccurate; provided<\/em>,
\nhowever<\/em>, that notwithstanding the foregoing, in the event that such
\nbreach by Parent or Merger Subsidiary or such inaccuracies in the
\nrepresentations and warranties of Parent or Merger Subsidiary are curable by
\nParent or Merger Subsidiary through the exercise of commercially reasonable
\nefforts prior to the End Date and within thirty (30) days, then the Company
\nshall not be permitted to terminate this Agreement pursuant to this Section
\n8.01(d)(ii)<\/u> until the earlier to occur of (1) the expiration of a thirty
\n(30) calendar day period after delivery of written notice from the Company to
\nParent of such breach or<\/p>\n

65<\/p>\n

\n

inaccuracy, as applicable, or (2) Parent or Merger Subsidiary ceasing to
\nexercise commercially reasonable efforts to cure such breach or inaccuracy,
\nprovided<\/em> that Parent or Merger Subsidiary continues to exercise
\ncommercially reasonable efforts to cure such breach or inaccuracy (it being
\nunderstood that the Company may not terminate this Agreement pursuant to this
\nSection 8.01(d)(ii)<\/u> if such breach or inaccuracy by Parent or Merger
\nSubsidiary is cured within such thirty (30) calendar day period).<\/p>\n

The party desiring to terminate this Agreement pursuant to this Section
\n8.01<\/u> (other than pursuant to Section 8.01(a)<\/u>) shall deliver written
\nnotice of such termination to each other party hereto specifying with
\nparticularity the reason for such termination.<\/p>\n

Section 8.02. Effect of Termination<\/em>. If this Agreement is validly
\nterminated pursuant to Section 8.01<\/u>, this Agreement shall become void and
\nof no effect without liability of any party (or any stockholder, director,
\nofficer, employee, agent, consultant or representative of such party) to each
\nother party hereto; provided<\/em> that no such termination shall relieve any
\nparty hereto of any liability for damages resulting from any willful and
\nmaterial breach of this Agreement. The provisions of this Section 8.02<\/u>
\nand Section 6.16<\/u> and Article 9<\/u> shall survive any termination
\nhereof pursuant to Section 8.01<\/u>.<\/p>\n

ARTICLE 9 <\/strong><\/p>\n

MISCELLANEOUS <\/strong><\/p>\n

Section 9.01. Notices<\/em>. Any notices or other communications required
\nor permitted under, or otherwise given in connection with, this Agreement shall
\nbe in writing and shall be deemed to have been duly given (i) when delivered or
\nsent if delivered in person or sent by facsimile transmission (provided
\nconfirmation of facsimile transmission is obtained), (ii) on the fifth Business
\nDay after dispatch by registered or certified mail, (iii) on the next Business
\nDay if transmitted by national overnight courier or (iv) on the date delivered
\nif sent by email (provided confirmation of email receipt is obtained), in each
\ncase as follows:<\/p>\n

if to Parent, to:<\/p>\n

Monotype Imaging Holdings Inc.<\/p>\n

500 Unicorn Park Drive<\/p>\n

Woburn, Massachusetts<\/p>\n

Attention: Chief Executive Officer<\/p>\n

Facsimile No.: (781) 970-6001<\/p>\n

with a copy to:<\/p>\n

Goodwin Procter LLP<\/p>\n

Exchange Place<\/p>\n

53 State Street<\/p>\n

Boston, MA 02109<\/p>\n

Attention: John Mutkoski<\/p>\n

66<\/p>\n

\n

James Matarese<\/p>\n

Facsimile No.: (617) 523-1231<\/p>\n

if to the Company, to:<\/p>\n

Bitstream Inc.<\/p>\n

500 Nickerson Road<\/p>\n

Marlborough, Massachusetts 01752<\/p>\n

Attention: Chief Executive Officer<\/p>\n

Facsimile No.: (617) 868-0784<\/p>\n

with a copy to:<\/p>\n

Seyfarth Shaw LLP<\/p>\n

World Trade Center East<\/p>\n

Two Seaport Lane<\/p>\n

Boston, MA 02210-2028<\/p>\n

Attention: Gregory L. White<\/p>\n

Blake Hornick<\/p>\n

Facsimile No.: (617) 790-6730<\/p>\n

Section 9.02. Survival of Representations and Warranties<\/em>. The
\nrepresentations and warranties contained herein and in any certificate or other
\nwriting delivered pursuant hereto shall not survive the Effective Time. This
\nSection 9.02<\/u> does not limit any covenant of the parties to this
\nAgreement, which by its terms, contemplates performance after the Effective
\nTime.<\/p>\n

Section 9.03. Amendments and Waivers<\/em>.<\/p>\n

(a) Any provision of this Agreement may be amended or waived prior to the
\nEffective Time if, but only if, such amendment or waiver is in writing and is
\nsigned, in the case of an amendment, by each party to this Agreement or, in the
\ncase of a waiver, by each party against whom the waiver is to be effective;
\nprovided<\/em> that without the further approval of the Company153s
\nstockholders, no such amendment or waiver shall be made or given after the
\nStockholder Approval that requires the approval of the stockholders of the
\nCompany under Delaware Law unless the required further approval is obtained.\n<\/p>\n

(b) No failure or delay by any party in exercising any right, power or
\nprivilege hereunder shall operate as a waiver thereof nor shall any single or
\npartial exercise thereof preclude any other or further exercise thereof or the
\nexercise of any other right, power or privilege. The rights and remedies herein
\nprovided shall be cumulative and not exclusive of any rights or remedies
\nprovided by Applicable Law.<\/p>\n

Section 9.04. Expenses<\/em>.<\/p>\n

(a) Except as otherwise provided herein, all costs and expenses incurred in
\nconnection with this Agreement shall be paid by the party incurring such cost or
\nexpense; provided<\/em> that the<\/p>\n

67<\/p>\n

\n

Company and Parent shall share equally all filing fees payable pursuant to
\nany Foreign Competition Law.<\/p>\n

(b) If this Agreement is terminated pursuant to Section 8.01(c)(i)<\/u>,
\nthen the Company shall pay to Parent (by wire transfer of immediately available
\nfunds), within two (2) Business Days after such termination, a fee in an amount
\nequal to $2,000,000 (the “Termination Fee<\/strong>“).<\/p>\n

(c) If this Agreement is terminated pursuant to Section 8.01(d)(i)<\/u>,
\nthen the Company shall pay to Parent (by wire transfer of immediately available
\nfunds), at or prior to such termination, the Termination Fee.<\/p>\n

(d) If this Agreement is validly terminated by Parent or the Company and,
\nimmediately prior to such termination, all conditions to the Merger set forth in
\nArticle 7<\/u> have been satisfied (or are capable of being satisfied or have
\nbeen waived), other than the condition set forth in Section 7.01(e)<\/u> or
\nSection 7.02(d)<\/u>, then the Company shall pay to Parent (by wire transfer
\nof immediately available funds), within two (2) Business Days after such
\ntermination, a fee in an amount equal to $1,000,000 (the “Spin-Off
\nFailure Termination Fee<\/strong>“); provided<\/em> that the amount of any
\npayment to Parent pursuant to this Section 9.04(d)<\/u> shall be credited
\nagainst any obligation of the Company to pay the Termination Fee pursuant to
\nSection 9.04(e)<\/u>.<\/p>\n

(e) If this Agreement is terminated pursuant to Section 8.01(b)(i)<\/u>,
\nSection 8.01(b)(iii)<\/u>, Section 8.01(c)(ii)<\/u> or Section
\n8.01(c)(iii)<\/u> and (i) prior to such termination (in the case of termination
\npursuant to Section 8.01(b)(i)<\/u>, Section 8.01(c)(ii)<\/u> or Section
\n8.01(c)(iii)<\/u>) or the Stockholder Meeting (in the case of termination
\npursuant to Section 8.01(b)(iii)<\/u>), an Acquisition Proposal shall have
\nbeen publicly announced and not publicly withdrawn, and (ii) within twelve (12)
\nmonths following the date of such termination the Company shall have (A) entered
\ninto a definitive agreement with respect to, (B) recommended to its stockholders
\nor (C) consummated, a transaction contemplated by such Acquisition Proposal,
\nthen the Company shall pay to Parent (by wire transfer of immediately available
\nfunds), within two (2) Business Days after entering into such definitive
\nagreement, making such recommendation or consummating such transaction, the
\nTermination Fee.<\/p>\n

(f) In the event that this Agreement is terminated pursuant to Section
\n8.01(b)(iii)<\/u>, the Company shall as promptly as possible (but in any event
\nwithin three (3) Business Days) following receipt of an invoice therefor pay all
\nof Parent153s documented reasonable out-of-pocket fees and expenses (including
\nreasonable legal and other third party advisors fees and expenses) actually
\nincurred by Parent and Merger Subsidiary on or prior to the termination of this
\nAgreement in connection with the transactions contemplated by this Agreement
\n(the “Parent Expenses<\/strong>“) as directed by Parent in writing;
\nprovided<\/em> that the amount of any payment of the Parent Expenses pursuant
\nto this Section 9.04(f)<\/u> shall be credited against any obligation of the
\nCompany to pay the Termination Fee pursuant to Section 9.04(e)<\/u>.<\/p>\n

(g) The Company acknowledges that the agreements contained in this
\nSection 9.04<\/u> are an integral part of the transactions contemplated by
\nthis Agreement, and that without these agreements, Parent and Merger Subsidiary
\nwould not enter into this Agreement. Accordingly, if the Company fails to pay
\nany amount due to Parent pursuant to this Section 9.04<\/u>, when due, the
\nCompany shall pay the costs and expenses (including legal fees and expenses) in
\nconnection with<\/p>\n

68<\/p>\n

\n

any action taken to collect payment (including the prosecution of any lawsuit
\nor other legal action), together with interest on the unpaid amount at the
\npublicly announced prime rate of Citibank, N.A. in New York City from the date
\nsuch amount was first payable to the date it is paid. The parties agree that if
\nthe Company is or becomes obligated to pay a Termination Fee, the Spin-Off
\nFailure Termination Fee and\/or Parent Expenses pursuant to Section
\n9.04(b)<\/u>, Section 9.04(c)<\/u>, Section 9.04(d)<\/u> or Section
\n9.04(e)<\/u>, the right to receive such fees and\/or the Parent Expenses shall be
\nthe sole and exclusive remedy of Parent and its Affiliates against the Company
\nand any of its former, current or future directors, officers, stockholders,
\nAffiliates, employees or agents (collectively, together with the Company, the
\n“Company Parties<\/strong>“) for any loss or damage suffered as a result
\nof the failure of the Merger to be consummated or for a breach or failure to
\nperform hereunder or otherwise in connection with this Agreement, and upon
\npayment of such amounts, none of the Company Parties shall have any further
\nliability or obligation arising out of or relating to this Agreement or the
\nMerger and in no event shall Parent or its Affiliates seek, or be entitled to,
\nany equitable remedies of any kind whatsoever, including specific performance.\n<\/p>\n

Section 9.05. Binding Effect; No Third Party Beneficiaries; No
\nAssignment<\/em>.<\/p>\n

(a) The provisions of this Agreement shall be binding upon and, except as
\nprovided in Section 6.11<\/u> (which shall be to the benefit of the parties
\nreferred to in such section), shall inure only to the benefit of the parties
\nhereto and their respective successors and assigns. Except as provided in
\nSection 6.11<\/u>, no provision of this Agreement is intended to confer any
\nrights, benefits, remedies, obligations or liabilities hereunder upon any Person
\nother than the parties hereto, and nothing in this Agreement, express or
\nimplied, is intended or shall be construed to create any third party
\nbeneficiaries.<\/p>\n

(b) No party may assign, delegate or otherwise transfer any of its rights or
\nobligations under this Agreement (whether by operation of law or otherwise)
\nwithout the consent of each other party hereto, except that Parent or Merger
\nSubsidiary may transfer or assign its rights and obligations under this
\nAgreement, in whole or from time to time in part, to one or more of their
\nAffiliates at any time; provided<\/em> that such transfer or assignment shall
\nnot relieve Parent or Merger Subsidiary of any of its obligations hereunder. Any
\nassignment in violation of the foregoing shall be null and void.<\/p>\n

Section 9.06. Governing Law<\/em>. This Agreement shall be governed by and
\nconstrued in accordance with the laws of the State of Delaware, without regard
\nto the conflicts of law rules of such State.<\/p>\n

Section 9.07. Jurisdiction<\/em>. The parties hereto agree that any
\nProceeding seeking to enforce any provision of, or based on any matter arising
\nout of or in connection with, this Agreement or the transactions contemplated
\nhereby shall be brought in the Court of Chancery of the State of Delaware in and
\nfor New Castle County, Delaware. Each Party hereby irrevocably submits to the
\nexclusive jurisdiction of such court in respect of any legal action, suit or
\nproceeding arising out of or relating to this Agreement or the transactions
\ncontemplated hereby, and hereby waives, and agrees not to assert, as a defense
\nin any such action, suit or proceeding, any claim that it is not subject
\npersonally to the jurisdiction of such court, that the action, suit or
\nproceeding is brought in an inconvenient forum, that the venue of the action,
\nsuit or proceeding<\/p>\n

69<\/p>\n

\n

is improper or that this Agreement or the transactions contemplated hereby
\nmay not be enforced in or by such courts. Each party agrees that notice or the
\nservice of process in any action, suit or proceeding arising out of or relating
\nto this Agreement or the transactions contemplated hereby shall be properly
\nserved or delivered if delivered in the manner contemplated by Section
\n9.01<\/u> or in any other manner permitted by law.<\/p>\n

Section 9.08. Waiver of Jury Trial<\/em>. EACH OF THE PARTIES HERETO
\nHEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
\nPROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
\nCONTEMPLATED HEREBY.<\/p>\n

Section 9.09. Counterparts; Effectiveness<\/em>. This Agreement may be
\nsigned in any number of counterparts, each of which shall be an original, with
\nthe same effect as if the signatures thereto and hereto were upon the same
\ninstrument. This Agreement shall become effective when each party hereto shall
\nhave received a counterpart hereof signed by all of the other parties hereto.
\nUntil and unless each party has received a counterpart hereof signed by each
\nother party hereto, this Agreement shall have no effect and no party shall have
\nany right or obligation hereunder (whether by virtue of any other oral or
\nwritten agreement or other communication). Signatures to this Agreement
\ntransmitted by facsimile transmission, by electronic mail in PDF form, or by any
\nother electronic means designed to preserve the original graphic and pictorial
\nappearance of a document, will be deemed to have the same effect as physical
\ndelivery of the paper document bearing the original signatures.<\/p>\n

Section 9.10. Entire Agreement.<\/em> This Agreement, together with the
\nConfidentiality Agreement, constitutes the entire agreement between the parties
\nwith respect to the subject matter of this Agreement and supersedes all prior
\nagreements and understandings, both oral and written, between the parties with
\nrespect to their subject matter.<\/p>\n

Section 9.11. Severability<\/em>. If any term, provision, covenant or
\nrestriction of this Agreement is held by a court of competent jurisdiction or
\nother Governmental Authority to be invalid, void or unenforceable, the remainder
\nof the terms, provisions, covenants and restrictions of this Agreement shall
\nremain in full force and effect and shall in no way be affected, impaired or
\ninvalidated so long as the economic or legal substance of the transactions
\ncontemplated hereby is not affected in any manner materially adverse to any
\nparty. Upon such a determination, the parties agree to modify this Agreement so
\nas to effect the original intent of the parties as closely as possible in an
\nacceptable manner, in order that the transactions contemplated hereby be
\nconsummated as originally contemplated to the fullest extent possible.<\/p>\n

Section 9.12. Specific Performance<\/em>. Subject to Section
\n9.04(g)<\/u>, the parties agree that irreparable damage would occur if any
\nprovision of this Agreement were not performed in accordance with the terms
\nhereof, and that in the event of any breach or threatened breach by Parent or
\nMerger Subsidiary, on the one hand, or the Company, on the other hand, of any
\ncovenant or obligation of such party contained in this Agreement, the other
\nparty shall be entitled to seek, in addition to any monetary remedy or damages:
\n(a) a decree or order of specific performance to enforce the observance and
\nperformance of such covenant or obligation; and (b) an injunction restraining
\nsuch breach or threatened breach.<\/p>\n

70<\/p>\n

\n

Section 9.13. Disclosure Schedules<\/em>. Any reference in a particular
\nsection of the Company Disclosure Schedule shall only be deemed to be an
\nexception to (or, as applicable, a disclosure for purposes of) (a) the
\nrepresentations and warranties (or covenants, as applicable) of the Company that
\nare contained in the corresponding Section of this Agreement and (b) any other
\nrepresentations and warranties (or covenants, as applicable) of the Company that
\nare contained in this Agreement, but only if the relevance of that reference as
\nan exception to (or a disclosure for purposes of) would be reasonably apparent
\nfrom such item.<\/p>\n

Section 9.14. Rules of Construction<\/em>. Each of the parties hereto
\nacknowledges that it has been represented by counsel of its choice throughout
\nall negotiations that have preceded the execution of this Agreement, and that it
\nhas executed the same with the advice of said independent counsel. Each party
\nand its counsel cooperated and participated in the drafting and preparation of
\nthis Agreement and the documents referred to herein, and any and all drafts
\nrelating thereto exchanged among the parties shall be deemed the work product of
\nall of the parties and may not be construed against any party by reason of its
\ndrafting or preparation. Accordingly, any rule of law or any legal decision that
\nwould require interpretation of any ambiguities in this Agreement against any
\nparty that drafted or prepared it is of no application and is hereby expressly
\nwaived by each of the parties hereto, and any controversy over interpretations
\nof this Agreement shall be decided without regards to events of drafting or
\npreparation.<\/p>\n

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]<\/p>\n

71<\/p>\n

\n

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
\nexecuted by their respective authorized officers as of the day and year first
\nabove written.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

BITSTREAM INC.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ James P. Dore<\/p>\n<\/td>\n<\/tr>\n

\n

Name:<\/p>\n<\/td>\n

<\/td>\n\n

James P. Dore<\/p>\n<\/td>\n<\/tr>\n

\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

MONOTYPE IMAGING HOLDINGS INC.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Douglas J. Shaw<\/p>\n<\/td>\n<\/tr>\n

\n

Name:<\/p>\n<\/td>\n

<\/td>\n\n

Douglas J. Shaw<\/p>\n<\/td>\n<\/tr>\n

\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

President and Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

BIRCH ACQUISITION CORPORATION<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Douglas J. Shaw<\/p>\n<\/td>\n<\/tr>\n

\n

Name:<\/p>\n<\/td>\n

<\/td>\n\n

Douglas J. Shaw<\/p>\n<\/td>\n<\/tr>\n

\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[Signature page to Agreement and Plan of Merger] <\/em>\n<\/p>\n

\n

Exhibit A <\/strong><\/p>\n

Form of Voting Agreements<\/p>\n

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