{"id":43138,"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-united-newventures-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-united-newventures-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-united-newventures-inc-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; United NewVentures Inc. and MyPoints.com Inc."},"content":{"rendered":"<pre>\n                          AGREEMENT AND PLAN OF MERGER\n\n\n\n                           Dated as of June 1, 2001\n\n\n\n                                     Among\n\n\n\n                           UNITED NEWVENTURES, INC.\n\n\n\n                             UNV ACQUISITION CORP.\n\n\n\n                                      and\n\n\n\n                              MYPOINTS.COM, INC.\n\n\n\n=======================================================================\n\n \n                               TABLE OF CONTENTS\n\n \n                                                             Page\n                                                             ----\n\nARTICLE I             DEFINITIONS...........................  1\n                                                                                                                   \n         SECTION 1.01    Definitions........................  1\n                                                                                                                   \nARTICLE II            THE OFFER AND THE MERGER..............  9\n                                                                                                                   \n         SECTION 2.01    The Offer..........................  9 \n\n         SECTION 2.02    Company Actions.................... 11\n\n         SECTION 2.03    Board of Directors; Section 14(f).. 12\n                                                                                                     \n         SECTION 2.04    The Merger......................... 12\n                                                                                                                   \n         SECTION 2.05    Closing............................ 13\n                                                                                                                   \n         SECTION 2.06    Effective Time..................... 13\n                                                                                                                   \n         SECTION 2.07    Certificate of Incorporation and By-laws. 13\n                                                                                                                   \n         SECTION 2.08    Directors.......................... 13\n                                                                                                                   \n         SECTION 2.09    Officers........................... 13 \n\nARTICLE III           EFFECT ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF\n                      CERTIFICATES.......................... 14 \n\n         SECTION 3.01    Effect on Capital Stock............ 14\n                                                                                                                  \n         SECTION 3.02    Exchange of Certificates........... 15\n                                                                                                                  \n         SECTION 3.03    Adjustments........................ 17\n\nARTICLE IV            REPRESENTATIONS AND WARRANTIES OF THE COMPANY. 17 \n\n         SECTION 4.01    Organization, Standing and Power... 17\n                                                                                                                   \n         SECTION 4.02    Company Subsidiaries; Equity Interests. 17\n                                                                                                                   \n         SECTION 4.03    Capital Structure.................. 18\n                                                                                                                   \n         SECTION 4.04    Authorization; Validity of Agreement; Necessary Action.19\n                                                                                                                   \n         SECTION 4.05    No Conflicts; Consents............. 20\n                                                                                                                   \n         SECTION 4.06    SEC Documents; Financial Statements; Undisclosed Liabilities. 20\n                                                                                                                   \n         SECTION 4.07    Information Supplied............... 21\n                                                                                                                   \n         SECTION 4.08    Absence of Certain Changes or Events. 21\n                                                                                                                   \n         SECTION 4.09    Taxes.............................. 22\n                                                                                                                   \n         SECTION 4.10    Benefit Plans; ERISA Compliance; Excess Parachute Payments. 23 \n\n         SECTION 4.11    Litigation......................... 24\n                                                                                                                   \n         SECTION 4.12    Compliance with Applicable Laws.... 25\n                                                                                                                   \n         SECTION 4.13    Contracts; Debt Instruments........ 25 \n \n\n                                       i\n\n \n\n         SECTION 4.14    Company Rights Agreement.............................................................  26\n                                                                                                                  \n         SECTION 4.15    Intellectual Property................................................................  27\n                                                                                                                  \n         SECTION 4.16    Takeover Laws........................................................................  30\n                                                                                                                  \n         SECTION 4.17    Affiliate Transactions...............................................................  30\n                                                                                                                  \n         SECTION 4.18    Real Property........................................................................  30\n                                                                                                                  \n         SECTION 4.19    Insurance............................................................................  31\n                                                                                                                  \n         SECTION 4.20    Compensation.........................................................................  31 \n\n         SECTION 4.21    Privacy..............................................................................  32 \n                                                                                                                   \n         SECTION 4.22    Receivables..........................................................................  32 \n                                                                                                                   \n         SECTION 4.23    Copies of Certain Documents..........................................................  32 \n                                                                                                                   \n         SECTION 4.24    Underlying Documents.................................................................  32 \n                                                                                                                   \n         SECTION 4.25    Brokers; Fees and Expenses...........................................................  32  \n\nARTICLE V             REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB........................................  33\n\n         SECTION 5.01    Organization, Standing and Power.....................................................  33 \n                                                                                                                   \n         SECTION 5.02    Sub..................................................................................  33 \n                                                                                                                   \n         SECTION 5.03    Financing............................................................................  33 \n                                                                                                                   \n         SECTION 5.04    Ownership of Company Common Stock....................................................  33 \n                                                                                                                   \n         SECTION 5.05    Authorization; Validity of Agreement; Necessary Action...............................  33 \n                                                                                                                   \n         SECTION 5.06    No Conflicts; Consents...............................................................  34 \n                                                                                                                   \n         SECTION 5.07    Information Supplied.................................................................  34 \n                                                                                                                   \n         SECTION 5.08    Brokers..............................................................................  34 \n                                                                                                                   \n         SECTION 5.09    Litigation...........................................................................  35  \n\nARTICLE VI            COVENANTS RELATING TO CONDUCT OF BUSINESS...............................................  35\n\n         SECTION 6.01    Conduct of Business..................................................................  35\n                                                                                                                  \n         SECTION 6.02    No Solicitation......................................................................  38 \n \nARTICLE VII           ADDITIONAL AGREEMENTS...................................................................  40\n\n         SECTION 7.01    Preparation of Proxy Statement; Stockholders Meeting.................................  40 \n                                                                                                                   \n         SECTION 7.02    Access to Information; Confidentiality...............................................  41 \n                                                                                                                   \n         SECTION 7.03    Commercially Reasonable Efforts; Notification........................................  42 \n                                                                                                                   \n         SECTION 7.04    Company Employee Stock Options and Company Warrants..................................  43 \n                                                                                                                   \n         SECTION 7.05    Employee Stock Purchase Plan.........................................................  44 \n                                                                                                                   \n         SECTION 7.06    Indemnification; D&amp;O Insurance.......................................................  44  \n \n\n                                      ii\n\n \n \n         SECTION 7.07    Public Announcements..................................................................  45 \n                                                                                                                    \n         SECTION 7.08    Transfer Taxes........................................................................  45 \n                                                                                                                    \n         SECTION 7.09    Potential Litigation..................................................................  45 \n                                                                                                                    \n         SECTION 7.10    Other Actions by the Company and Parent...............................................  45  \n\nARTICLE VIII          CONDITIONS PRECEDENT.....................................................................  46 \n\n         SECTION 8.01    Conditions to Each Party's Obligation to Effect the Merger............................  46   \n\nARTICLE IX            TERMINATION, AMENDMENT AND WAIVER........................................................  46 \n\n         SECTION 9.01    Termination...........................................................................  46   \n                                                                                                                   \n         SECTION 9.02    Effect of Termination; Fees and Expenses..............................................  48\n                                                                                                                   \n         SECTION 9.03    Amendment.............................................................................  49\n                                                                                                                   \n         SECTION 9.04    Extension; Waiver.....................................................................  49\n                                                                                                                   \n         SECTION 9.05    Procedure for Termination, Amendment, Extension or Waiver.............................  49 \n\nARTICLE X             GENERAL PROVISIONS.......................................................................  50 \n\n         SECTION 10.01   Nonsurvival of Representations and Warranties.........................................  50   \n                                                                                                                   \n         SECTION 10.02   Notices...............................................................................  50\n                                                                                                                   \n         SECTION 10.03   Interpretation........................................................................  51\n                                                                                                                   \n         SECTION 10.04   Severability..........................................................................  51\n                                                                                                                   \n         SECTION 10.05   Counterparts..........................................................................  51\n                                                                                                                   \n         SECTION 10.06   Entire Agreement; No Third-Party Beneficiaries........................................  51\n                                                                                                                   \n         SECTION 10.07   Governing Law.........................................................................  52\n                                                                                                                   \n         SECTION 10.08   Assignment............................................................................  52\n                                                                                                                   \n         SECTION 10.09   Enforcement...........................................................................  52 \n \n\n                                     iii \n\n \n                         AGREEMENT AND PLAN OF MERGER\n                         ----------------------------\n\n     \n          AGREEMENT AND PLAN OF MERGER, dated as of June 1, 2001 (the\n\"Agreement\"), among United NewVentures, Inc., a Delaware corporation (\"Parent\"),\n ---------                                                             ------\nUNV Acquisition Corp., a Delaware corporation (\"Sub\") and a wholly owned\n                                                ---  \nsubsidiary of Parent, and MyPoints.com, Inc., a Delaware corporation (the\n\"Company\").\n -------\n\n          WHEREAS the respective Boards of Directors of Parent, Sub and the\nCompany have approved the acquisition of the Company by Parent on the terms and\nsubject to the conditions set forth in this Agreement;\n\n          WHEREAS, in furtherance of such acquisition, Parent proposes to cause\nSub to make a tender offer (as it may be amended from time to time as permitted\nunder this Agreement, the \"Offer\") to purchase all of the issued and outstanding\n                           -----\nshares of Company Common Stock (as defined herein) for U.S. $2.60 per share of\nCompany Common Stock (the \"Offer Price\"), net to the Seller in cash, upon the\n                           -----------\nterms and subject to the conditions set forth in this Agreement;\n\n          WHEREAS, the respective Boards of Directors of Sub and the Company\nhave approved the merger (the \"Merger\") of Sub into the Company on the terms and\n                               ------\nsubject to the conditions set forth in this Agreement, whereby each issued share\nof Company Common Stock not owned directly or indirectly by Parent or the\nCompany, will be converted into the right to receive an amount in cash equal to\nthe Offer Price; and\n\n          WHEREAS, simultaneously with the execution and delivery of this\nAgreement, Parent and the Principal Company Stockholders (as defined herein) are\nentering into Stock Option and Tender Agreements (as defined herein).\n\n          NOW, THEREFORE, in consideration of the representations, warranties,\ncovenants, agreements and conditions set forth herein, and intending to be\nlegally bound hereby, the parties hereto agree as follows:\n\n                                   ARTICLE I\n\n                                  Definitions\n\n     SECTION 1.01 Definitions. (a) As used in this Agreement, the following\nterms shall have the following meanings:\n\n     \"Affiliate\" means, for any Person, another Person that directly or\n      ---------\nindirectly, through one or more intermediaries, controls, is controlled by, or\nis under common control with, such first Person, where \"control\" means the\npossession, directly or indirectly, of the power to direct or cause the\ndirection of the management policies of a Person, whether through the ownership\nof voting securities, by contract, as trustee or executor, or otherwise.\n\n     \"Alternative Acquisition\" has the meaning set forth in Section 6.02(a).\n      -----------------------                               ---------------\n\n     \"Alternative Acquisition Proposal\" has the meaning set forth in Section\n      --------------------------------                               -------\n6.02(a).\n-------\n\n \n     \"Applicable Law\" means any statute, law (including common law), ordinance,\n      --------------           \nrule or regulation applicable to the Company or any Company Subsidiary or their\nrespective properties or assets.\n\n     \"Applicable Tax Law\" means any Applicable Law relating to Taxes, including,\n      ------------------\nwithout limitation, regulations and other official pronouncements of any\nGovernmental Entity or political subdivision of such jurisdiction charged with\ninterpreting such Applicable Law.\n\n     \"Certificate\" or \"Certificates\" mean the certificate or certificates that\n      -----------      ------------\nimmediately prior to the Effective Time represented outstanding shares of\nCompany Common Stock.\n\n     \"Certificate of Merger\" means a certificate of merger, or other appropriate\n      ---------------------    \ndocuments, to be filed with the Secretary of State of the State of Delaware to\neffect the Merger.\n\n     \"Closing\" means the closing of the Merger.\n      -------\n\n     \"Closing Date\" means the date on which the Closing occurs.\n      ------------\n\n     \"Code\" means the Internal Revenue Code of 1986, as amended.\n      ----\n\n     \"Company\" has the meaning set forth in the heading hereof.\n      -------\n\n     \"Company 1999 Stock Plan\" means the MyPoints.com, Inc. 1999 Stock Plan, as\n      -----------------------\namended and restated effective as of May 18, 2000, as further amended by the\nCompany Board on April 26, 2001 and May 23, 2001.\n\n     \"Company Board\" means the Board of Directors of the Company.\n      -------------\n\n     \"Company By-laws\" means the by-laws of the Company, as amended to the date\n      ---------------\nof this Agreement.\n\n     \"Company Capital Stock\" has the meaning set forth in Section 4.03.\n      ---------------------                               ------------\n\n     \"Company Charter\" means the certificate of incorporation of the Company, as\n      ---------------\namended to the date of this Agreement.\n\n     \"Company Common Stock\" means the common stock, $.001 par value per share,\n      --------------------\nof the Company, together with the associated Company Rights.\n\n     \"Company Disclosure Letter\" means the letter, dated as of the date of this\n      ------------------------- \nAgreement, delivered by the Company to Parent and Sub, which shall describe an\nexception to, or otherwise qualify or respond to, the representations and\nwarranties of the Company specifically identified in each section of the letter\nand, to the extent a disclosure by the Company is sufficient to reasonably\ninform Parent and Sub of information required to be disclosed in another section\nof the letter, such disclosure shall be deemed, for purposes of this Agreement,\nto have been made with respect to such other section of the disclosure letter.\n\n                                       2\n\n \n         \"Company Employee Stock Option\" means any option to purchase Company\n          -----------------------------\nCommon Stock granted under any Company Option Plan.\n\n         \"Company Intellectual Property Rights\" means Intellectual Property\n          ------------------------------------\nRights that are owned by, or exclusively licensed to, the Company and the\nCompany Subsidiaries.\n\n         \"Company Investment\" has the meaning set forth in Section 4.02(b).\n          ------------------                               ---------------\n\n         \"Company Leased Real Property\" has the meaning set forth in Section\n          ----------------------------                               -------\n4.18(a).\n-------\n\n         \"Company Material Adverse Effect\" means (a) a material adverse effect\n          -------------------------------\non the business, assets, results of operations or financial condition of the\nCompany and the Company Subsidiaries taken as a whole (except where any change,\nevent, effect or development results from (i) changes affecting the U.S. economy\ngenerally, (ii) changes affecting the member-driven Internet marketing services\nindustry in which the Company operates as a whole, and (iii) the announcement of\nthe existence and terms of this Agreement; provided, with respect to clauses\n                                           --------                  -------\n(a)(i) and (a)(ii) above, that such change, event, effect or development shall\n------     -------\ninclude a decline in the Company's stock price, increasing operating losses or\nthe failure to meet revenue earnings estimates to the extent such change, event,\neffect or development does not affect the Company to a greater extent than other\nparticipants in the member-driven Internet marketing services industry in the\nU.S. in which the Company operates generally), or (b) a material adverse effect\non the ability of the Company to perform its obligations under the Transaction\nAgreements to which it is a party or on the ability of the Company to consummate\nthe Offer, the Merger and the other Transactions.\n\n         \"Company Option Plans\" means the Company's 1999 Stock Plan, the\n          --------------------\nCompany's 1996 Stock Plan, the Company's 1999 Supplemental Stock Plan, the\nCybergold 1996 Stock Plan and the Cybergold 1999 Omnibus Equity Incentive Plan,\nadopted May 18, 1999.\n\n         \"Company Plans\" has the meaning set forth in Section 4.10(a).\n          -------------                               ---------------      \n     \n         \"Company Preferred Stock\" has the meaning set forth in Section 4.03.\n          -----------------------                               ------------ \n\n         \"Company Products\" has the meaning set forth in Section 4.15(b).\n          ----------------                               ---------------\n\n         \"Company Rights\" means the preferred share purchase rights issued\n          --------------\npursuant to the Company Rights Agreement.\n\n         \"Company Rights Agreement\" means the Preferred Stock Rights Agreement,\n          ------------------------\ndated as of December 13, 2000, as the same may be amended from time to time,\nbetween the Company and Wells Fargo Shareholder Services, as Rights Agent.\n\n         \"Company SAR\" means any stock appreciation right linked to the price of\n          -----------\nCompany Common Stock and granted under any Company Option Plan.\n\n         \"Company SEC Documents\" means all reports, schedules, forms, statements\n          ---------------------     \nand other documents filed or required to be filed by the Company with the SEC\nsince December 31, 1999.\n\n                                       3\n\n \n         \"Company Stockholder Approval\" has the meaning set forth in Section\n          ----------------------------                               -------\n4.04(c).\n-------\n\n         \"Company Stockholders Meeting\" means a meeting of the Company's\n          ----------------------------\nstockholders for the purpose of seeking Company Stockholder Approval.\n\n         \"Company Subsidiaries\" means all the Subsidiaries of the Company.\n          --------------------\n\n         \"Company Warrants\" means warrants to purchase Company Common Stock.\n          ----------------\n\n         \"Confidentiality Agreement\" means the confidentiality agreement, dated\n          -------------------------\nApril 4, 2001, between the Company and Parent.\n\n         \"Consent\" means any consent, approval, license, Permit, Order or\n          -------\nauthorization.\n\n         \"Contract\" means any Permit, indenture, note, bond, mortgage,\n          --------\nagreement, concession, franchise, instrument, undertaking, commitment,\nunderstanding or other arrangement (whether written or oral).\n\n         \"DGCL\" means the Delaware General Corporation Law, as amended from time\n          ----\nto time.\n\n         \"D&amp;O Insurance\" means directors' and officers' insurance.\n          ---\n\n         \"Dissenters' Shares\" means shares of Company Common Stock that are\n          ------------------\noutstanding immediately prior to the Effective Time and that are held by any\nPerson who is entitled to and properly demands payment of the fair value of such\nshares pursuant to, and who complies in all respects with, Section 262 of the\nDGCL.\n\n         \"Effective Time\" has the meaning set forth in Section 2.06.\n          --------------                               ------------\n\n         \"ERISA\" means the Employment Retirement Income Security Act of 1974, as\n          -----\namended.\n\n         \"ERISA Affiliate\" means, with respect to any Person, any corporation,\n          ---------------\ntrade or business which, together with such Person, is a member of a controlled\ngroup of corporations or a group of trades or businesses under common control\nwithin the meaning of section 414 of the Code.\n\n         \"ESPP\" has the meaning set forth in Section 7.05.\n          ----                               ------------\n\n         \"Exchange Act\" means the Securities Exchange Act of 1934, as amended.\n          ------------\n\n         \"Exchange Fund\" has the meaning set forth in Section 3.02(a).\n          -------------                               ---------------\n\n         \"Filed Company SEC Documents\" means all Company SEC Documents that were\n          ---------------------------\nfiled and publicly available prior to the date of this Agreement.\n\n         \"Financial Statements\" means the consolidated financial statements of\n          --------------------\nthe Company and its Subsidiaries included in each of the Company's Annual Report\non Form 10-K for the fiscal years ended December 31, 1998, December 31, 1999 and\nDecember 31, 2000, the Company's Quarterly Report on Form 10-Q for the quarter\nended March 31, 2001 and any consolidated \n\n                                       4\n\n \nfinancial statements of the Company filed with the SEC after the date hereof,\nincluding in each case the footnotes thereto.\n\n         \"Fully Diluted Shares\" has the meaning set forth in Exhibit A.\n          --------------------                               ---------\n\n         \"GAAP\" as to any Person means generally accepted United States\n          ----\naccounting principles, applied on a basis consistent with the basis on which the\nmost recent audited financial statements of such Person were prepared prior to\nthe date of this Agreement.\n\n         \"Governmental Entity\" means any:\n          -------------------\n\n         (i)   federal, state, local, municipal or foreign government;\n\n         (ii)  governmental or quasi-governmental authority of any nature\n               (including, without limitation, any governmental agency, branch,\n               department, official, instrumentality or entity and any court or\n               other tribunal);\n\n         (iii) multi-national organization or body; or\n\n         (iv)  body exercising, or entitled to exercise, any administrative,\n               executive, judicial, legislative, police, regulatory, or taxing\n               authority or power of any nature.\n\n         \"HSR Act\" means the Hart-Scott-Rodino Antitrust Improvements Act of\n          ---\n1976, as amended.\n\n         \"Indebtedness\" means, without duplication, (i) all obligations for\n          ------------\nborrowed money, or with respect to deposits or advances of any kind, (ii) all\nobligations evidenced by bonds, debentures, notes or other similar instruments,\n(iii) all obligations under conditional sale or other title retention agreements\nrelating to purchased property, (iv) all obligations issued or assumed as the\ndeferred purchase price of property or services (excluding obligations to\ncreditors for raw materials, inventory, services and supplies incurred in the\nordinary and usual course of business), (v) all capitalized lease obligations,\n(vi) all obligations under interest rate or currency hedging transactions\n(valued at the termination value thereof), (vii) all letters of credit and\n(viii) all guarantees and arrangements having the economic effect of a guarantee\nof any indebtedness of any other Person (other than a Company Subsidiary).\n\n         \"Indemnified Party\" has the meaning set forth in Section 7.06(a).\n          -----------------                               ---------------\n\n         \"Intellectual Property Rights\" means any or all of the following and\n          ----------------------------\nall worldwide common law and statutory rights in, arising out of, or associated\nwith: (i) patents and applications therefore and all reissues, divisions,\nrenewals, extensions, provisionals, continuations and continuations-in-part\nthereof (collectively referred to as \"Patents\"); (ii) inventions (whether\n                                      -------\npatentable or not), invention disclosures, improvements, trade secrets,\nproprietary information, know-how, technology, technical data and customer\nlists, and all documentation relating to any of the foregoing; (iii) copyrights,\ncopyrights registrations and applications therefore, and all other rights\ncorresponding thereto throughout the world; (iv) domain names, uniform resource\nlocators and other names and locators associated with the Internet; (v)\nindustrial designs and any registrations and applications therefore; (vi) trade\nnames, \n\n                                       5\n\n \nlogos, common law trademarks and service marks, trademark and service mark\nregistrations and applications therefore; (vii) all databases and data\ncollections and all rights therein; (viii) all moral and economic rights of\nauthors and inventors, however denominated, (ix) any similar or equivalent\nrights to any of the foregoing (as applicable), and (x) software (in source code\nand object code form) in all phases of development and all programming, user,\nsystem and other documentation relating to the same.\n\n         \"IRS\" means the Internal Revenue Service.\n          ---\n\n         \"Liens\" means pledges, liens, charges, mortgages, encumbrances and\n          -----\nsecurity interests of any kind or nature whatsoever.\n\n         \"Material Contracts\" means Contracts that are material to the business,\n          ------------------\nproperties, assets, financial condition or results of operations of the Company\nand the Company Subsidiaries taken as a whole and those which are set forth in\nSection 4.13(a) of the Company Disclosure Letter.\n---------------\n\n         \"Material Intellectual Property Rights\" means all Intellectual Property\n          -------------------------------------\nRights that are material to the business, properties, assets, financial\ncondition or results of operations of the Company and the Company Subsidiaries\ntaken as a whole.\n\n         \"Maximum Premium\" has the meaning set forth in Section 7.06(b).\n          ---------------                               ---------------\n\n         \"Merger\" has the meaning set forth in the recitals hereto.\n          ------\n\n         \"Merger Consideration\" means the U.S. dollar cash amount equal to the\n          --------------------\nprice per share of Company Common Stock paid pursuant to the Offer.\n\n         \"Minimum Tender Condition\" has the meaning set forth in Exhibit A.\n          ------------------------                               ---------\n\n         \"Offer\" has the meaning set forth in the recitals hereto.\n          -----\n\n         \"Offer Documents\" has the meaning set forth in Section 2.01(b).\n          ---------------                               ---------------\n\n         \"Offer Price\" has the meaning set forth in the recitals hereto.\n          -----------\n\n         \"Order\" means with respect to any Person, any award, decision,\n          -----\ninjunction, judgment, stipulation, order, ruling, subpoena, writ, decree,\nconsent decree, or verdict entered, issued, made, or rendered by any\nGovernmental Entity affecting such Person or any of its properties.\n\n         \"ordinary and usual course of business\" means an action taken by a\n          -------------------------------------     \nPerson that is consistent with the past practices of such Person and is taken in\nthe ordinary course of normal day-to-day operations of such Person.\n\n         \"Outside Date\" has the meaning set forth in Section 9.01(b)(i).\n          ------------                               ------------------\n\n         \"Parent\" has the meaning set forth in the heading hereof.\n          ------\n\n         \"Parent Board\" has the meaning set forth in Section 5.05.\n          ------------                               ------------\n\n                                       6\n\n \n         \"Parent Disclosure Letter\" means the letter, dated as of the date of\n          ------------------------\nthis Agreement, delivered by Parent to the Company.\n\n         \"Parent Material Adverse Effect\" means a material adverse effect on the\n          ------------------------------\nability of Parent or Sub to perform its obligations under the Transaction\nDocuments to which it is a party or on the ability of Parent or Sub to\nconsummate the Offer, the Merger and the other Transactions.\n\n         \"Paying Agent\" means the bank or trust company selected by Parent prior\n          ------------\nto the Effective Time to act as paying agent for the payment of the Merger\nConsideration.\n\n         \"Permit\" means all necessary licenses, franchises, permits, consents,\n          ------\napprovals, Orders, certificates, authorizations, declarations and filings\nrequired by all Governmental Entities for the conduct of the business and\noperations of the Company and each Company Subsidiary as now conducted.\n\n         \"Permitted Liens\" means (i) statutory Liens of carriers, warehousemen,\n          ---------------\nmechanics, repairmen, workmen and materialmen incurred in the ordinary and usual\ncourse of business for amounts not yet overdue or being contested in good faith,\n(ii) Liens for Taxes not yet due and payable or being contested in good faith in\nappropriate proceedings during which collection or enforcement is stayed and\n(iii) Liens that, in the aggregate, do not and will not materially interfere\nwith the ability of the Company and the Company Subsidiaries to conduct business\nas currently conducted.\n\n         \"Person\" means any individual, firm, corporation (including any\n          ------\nnon-profit corporation), general or limited partnership, limited liability\ncompany, trust, joint venture, estate, association, organization, labor union,\nor other entity or Governmental Entity.\n\n         \"Principal Company Stockholders\" means those stockholders of the\n          ------------------------------\nCompany identified in Part A of the Parent Disclosure Letter.\n                      ------\n\n         \"Proceedings\" means any action, arbitration, audit, hearing,\n          -----------\nproceeding, investigation, litigation or suit (whether civil, criminal,\nadministrative or investigative) commenced, brought, conducted or heard by or\nbefore, or otherwise involving, any Governmental Entity or arbitrator.\n\n         \"Proxy Statement\" means a proxy or information statement of the Company\n          ---------------\nrelating to the approval of this Agreement and the Merger by the Company's\nstockholders.\n\n         \"Receivables\" has the meaning set forth in Section 4.22.\n          -----------                               ------------ \n\n         \"Redemption Agreement\" means the Redemption Agreement, dated as of the\n          --------------------\ndate hereof, between the Company and United Air Lines, Inc., a Delaware\ncorporation.\n\n         \"Registered Intellectual Property Rights\" means all of the registered\n          ---------------------------------------\nIntellectual Property Rights owned by, or filed in the name of, the Company or\nany of the Company Subsidiaries.\n\n         \"Rights Plan Amendment\" has the meaning set forth in Section 4.14.\n          ---------------------                               ------------\n\n                                       7\n\n \n         \"Schedule 14D-9\" means the Solicitation\/Recommendation Statement on\n          --------------\nSchedule 14D-9 with respect to the Offer, as amended from time to time.\n\n         \"Schedule TO\" means the Tender Offer Statement on Schedule TO with\n          -----------\nrespect to the Offer, as amended from time to time.\n\n         \"SEC\" means the Securities and Exchange Commission.\n          ---\n\n         \"Securities Act\" means the Securities Act of 1933, as amended.\n          --------------               \n\n         \"Stock Option and Tender Agreements\" means the agreements entered into\n          ----------------------------------\nby Parent and the Principal Company Stockholders pursuant to which each of the\nPrincipal Company Stockholders has agreed to take specified actions in\nfurtherance of the Offer and the Merger.\n\n         \"Stock Transfer Taxes\" means any state, local, foreign or provincial\n          --------------------\nTax that is attributable to the transfer of Company Common Stock pursuant to\nthis Agreement.\n\n         \"Sub\" has the meaning set forth in the heading hereof.\n          ---\n     \n         \"Sub Board\" has the meaning set forth in Section 5.05.\n          ---------                               ------------     \n          \n         \"Subsidiary\" means, with respect to any Person, any corporation,\n          ----------\nassociation, general or limited partnership, limited liability company, trust,\njoint venture, organization or other entity of which more than 50% of the total\nvoting power of shares of capital stock or other interests (including\npartnership interests) entitled (without regard to the occurrence of any\ncontingency) to vote in the election of directors, managers or trustees thereof\nis at the time owned or controlled, directly or indirectly, by (i) such Person,\n(ii) such Person and one or more Subsidiaries of such Person or (iii) one or\nmore Subsidiaries of such Person.\n\n         \"Superior Company Proposal\" has the meaning set forth in Section\n          -------------------------                               -------    \n6.02(e).\n-------\n         \"Surviving Corporation\" has the meaning set forth in Section 2.04.\n          ---------------------                               ------------\n     \n         \"Takeover Statute\" has the meaning set forth in Section 4.16.\n          ----------------                               ------------\n\n         \"Tax\" or \"Taxes\" means: (i) any income, corporation, gross income,\n          ---      -----\ngross receipts, franchise, profits, gains, capital stock, capital duty,\nwithholding, social security (or similar), employment, unemployment, disability,\nreal property, personal property, wealth, welfare, stamp, excise, license,\nseverance, environmental (including taxes under Section 59A of the Code),\ncustoms duties, occupation, sales, use, transfer, registration, value added,\npayroll, premium, property, or windfall profits tax, estimated, ad valorem or\nexcise tax, alternative or add-on minimum tax or other tax of any kind\nwhatsoever (whether or not measured in whole or in part by net income and\nincluding any fee, assessment or other charge in the nature of or in lieu of any\ntax) imposed by any Tax Authority, including any interest, penalty, or addition\nthereto, whether disputed or not; and (ii) any liability for the payment of any\namount of the type described in clause (i) as a result of the Company or any\nCompany Subsidiary being a successor to or transferee of any other corporation\nat any time on or prior to the Closing Date, and any interest, penalties,\nadditions to tax (whether imposed by law, contractual agreement or otherwise)\nand any \n\n                                       8\n\n \nliability in respect of any tax as a result of being a member of any affiliated,\nconsolidated, combined, unitary or similar group.\n\n         \"Tax Authority\" means, with respect to any Tax, the Governmental Entity\n          -------------\nor political subdivision thereof that imposes such Tax, and the agency (if any)\ncharged with the collection of such Taxes for such entity or subdivision,\nincluding any Governmental Entity that imposes, or is charged with collecting,\nsocial security or similar charges or premiums.\n\n         \"Tax Period\" means, with respect to any Tax, the period for which the\n          ----------\nTax is reported as provided under any Applicable Tax Law.\n\n         \"Tax Return\" means all Federal, state, local, provincial and foreign\n          ----------\ntax returns, declarations, statements, reports, schedules, forms and information\nreturns and any amended tax return relating to Taxes.\n\n         \"Termination Fee\" has the meaning set forth in Section 9.02(b).\n          ---------------                               ---------------\n\n         \"Transactions\" means, collectively, the Offer, the Merger and the other\n          ------------\ntransactions contemplated by the Transaction Agreements.\n\n         \"Transaction Agreements\" means this Agreement, the Stock Option and\n          ----------------------\nTender Agreements and the Redemption Agreement.\n\n         \"Transfer Taxes\" means any state, local, foreign or provincial Tax that\n          --------------\nis attributable to the transfer of the beneficial ownership of the Company's or\nthe Company's Subsidiaries' real or personal property.\n\n         \"Valid Consents\" has the meaning set forth in Section 4.15(i).\n          --------------                               ---------------\n\n         \"Virus\" has the meaning set forth in Section 4.15(k).\n          -----                               ---------------\n\n         \"Voting Company Debt\" means any bonds, debentures, notes or other\n          -------------------\nindebtedness of the Company having the right to vote (or convertible into, or\nexchangeable for, securities having the right to vote) on any matters on which\nstockholders of the Company may vote.\n\n                                  ARTICLE II\n\n                           The Offer and the Merger\n\n         SECTION 2.01  The Offer.\n\n         (a)   (i) As promptly as practicable but in no event later than ten\nbusiness days after the date of this Agreement, Sub shall, and Parent shall\ncause Sub to, commence the Offer within the meaning of the applicable rules and\nregulations of the SEC. The initial expiration date of the Offer shall be the\ntwentieth business day from and after the date the Offer is commenced. The\nobligation of Sub to, and of Parent to cause Sub to, accept for payment, and pay\nfor, any shares of Company Common Stock tendered pursuant to the Offer shall be\nsubject to the conditions set forth in Exhibit A (any of which may be waived by\n                                       ---------\nSub in its sole discretion) and to the other \n\n                                       9\n\n \nconditions in this Agreement. Sub expressly reserves the right to modify the\nterms of the Offer, except that, without the prior written consent of the\nCompany (such consent to be authorized by the Company Board), Sub shall not (A)\nreduce the number of shares of Company Common Stock subject to the Offer, (B)\nreduce the consideration per share of Company Common Stock to be paid pursuant\nto the Offer below the Offer Price, (C) modify or add to the conditions set\nforth in Exhibit A in any manner adverse to the holders of Company Common Stock,\n         ---------\n(D) except as provided in Section 2.01 (ii), extend the Offer or (E) change the\n                          -----------------\nform of consideration payable in the Offer.\n\n     \n          (ii)   Notwithstanding the restriction in Section 2.01(a)(i)(D), Sub\n                                                    ---------------------   \nmay, without the consent of the Company, extend the Offer: (A) if at the\nscheduled expiration date of the Offer any of the conditions to Sub's obligation\nto purchase shares of Company Common Stock are not satisfied or waived, until\nsuch time as such conditions are satisfied or waived; (B) for any period\nrequired by any rule, regulation, interpretation or position of the SEC or the\nstaff thereof applicable to the Offer; and (C) in order to provide sufficient\ntime to respond to any matter hereafter arising and required to be disclosed to\nParent pursuant to Section 6.01(c)(ii) and which causes Parent or Sub to amend\n                   -------------------\nthe Offer Documents; provided that any extension pursuant to this clause (C)\n                     --------                                     ----------\nshall not exceed 20 business days. In addition, Sub may extend the Offer after\nthe acceptance of shares of Company Common Stock thereunder for a further period\nof time by means of a subsequent offering period under Rule 14d-11 promulgated\nunder the Exchange Act of not more than 20 business days to meet the objective\n(which is not a condition to the Offer) that there be validly tendered, in\naccordance with the terms of the Offer, prior to the expiration date of the\nOffer (as so extended) and not withdrawn a number of shares of Company Common\nStock, together with shares of Company Common Stock then owned by Parent and\nSub, which represents at least 90% of the Fully Diluted Shares.\n\n          (iii)  On The Terms And Subject To The Conditions Of The Offer And\nThis Agreement, Sub Shall Pay For All Shares Of Company Common Stock Validly\nTendered And Not Withdrawn Pursuant To The Offer As Soon As Practicable After\nThe Expiration Of The Offer And, With Respect To Any Extension Of The Offer, As\nSoon As Practicable After Shares Of Company Common Stock Are Validly Tendered.\nSub May, At Any Time, Transfer Or Assign To One Or More Subsidiaries Of Parent\nThe Right To Purchase All Or Any Portion Of The Shares Of Company Common Stock\nTendered Pursuant To The Offer, But Any Such Transfer Or Assignment Shall Not\nRelieve Sub Or Parent Of Their Respective Obligations Under The Offer Or\nPrejudice The Rights Of Tendering Stockholders To Receive Payment For Shares Of\nCompany Common Stock Validly Tendered And Accepted For Payment.\n\n     (b)  On The Date Of Commencement Of The Offer, Parent And Sub Shall File\nWith The Sec A Tender Offer Statement On Schedule To With Respect To The Offer,\nWhich Shall Contain An Offer To Purchase And A Related Letter Of Transmittal And\nSummary Advertisement (Such Schedule To And The Documents Included Therein\npursuant to which the Offer will be made, together with any supplements or\namendments thereto, the \"Offer Documents\"). The Offer Documents will comply as\n                         ---------------\nto form in all material respects with the applicable provisions of the Exchange\nAct and the rules and regulations promulgated thereunder. Parent shall deliver\ncopies of the proposed forms of the Offer Documents to the Company within a\nreasonable time prior to the commencement of the Offer for review and comment by\nthe Company and its counsel. Each of Parent, Sub and the Company shall promptly\ncorrect any information provided by it for use in \n\n                                      10\n\n \nthe Offer Documents if and to the extent that such information shall have become\nfalse or misleading in any material respect, and each of Parent and Sub shall\ntake all steps necessary to amend or supplement the Offer Documents and to cause\nthe Offer Documents, as so amended or supplemented, to be filed with the SEC and\nto be disseminated to the Company's stockholders, in each case as and to the\nextent required by applicable Federal securities laws. Parent and Sub shall\nprovide the Company and its counsel in writing with any comments Parent, Sub or\ntheir counsel may receive from the SEC or its staff with respect to the Offer\nDocuments promptly after the receipt of such comments.\n\n     SECTION 2.02 Company Actions.\n\n     (a)  The Company hereby approves of and consents to each of the\nTransactions and has provided Parent with a signed copy of the written opinion\nof Robertson Stephens, Inc. that the Offer Price to be received in the Offer and\nthe Merger Consideration to be received pursuant to the Merger is fair, from a\nfinancial point of view, to the holders of Company Common Stock. The Company has\nbeen authorized by Robertson Stephens, Inc. to include such fairness opinion (or\na reference thereto with the consent of Robertson Stephens, Inc.) in the\nSchedule 14D-9 referred to below and the Proxy Statement.\n\n     (b)  On the date the Offer Documents are filed with the SEC, the Company\nshall file with the SEC the Schedule 14D-9 containing the recommendations\ndescribed in Section 4.04(b) and shall mail the Schedule 14D-9 to the holders of\n             ---------------  \nCompany Common Stock. The Schedule 14D-9 will comply as to form in all material\nrespects with the applicable provisions of the Exchange Act and the rules and\nregulations promulgated thereunder. The Company shall deliver copies of the\nproposed form of the Schedule 14D-9 to Parent within a reasonable time prior to\nthe filing thereof with the SEC for review and comment by Parent and its\ncounsel. Each of the Company, Parent and Sub shall promptly correct any\ninformation provided by it for use in the Schedule 14D-9 if and to the extent\nthat such information shall have become false or misleading in any material\nrespect, and the Company shall take all steps necessary to amend or supplement\nthe Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented\nto be filed with the SEC and disseminated to the Company's stockholders, in each\ncase as and to the extent required by applicable Federal securities laws. The\nCompany shall provide Parent and its counsel in writing with any comments the\nCompany or its counsel may receive from the SEC or its staff with respect to the\nSchedule 14D-9 promptly after the receipt of such comments.\n\n     (c)  In connection with the Offer, the Company shall cause its transfer\nagent to furnish Sub promptly with mailing labels containing the names and\naddresses of the record holders of Company Common Stock as of a recent date and\nof those persons becoming record holders subsequent to such date, together with\ncopies of all lists of stockholders, security position listings, computer files\nand all other information in the Company's possession or control regarding the\nbeneficial owners of Company Common Stock, and shall furnish to Sub such\ninformation and assistance (including, without limitation, updated lists of\nstockholders, security position listings and computer files) as Parent may\nreasonably request in communicating the Offer to the Company's stockholders.\nSubject to the requirements of Applicable Law, and except for such steps as are\nnecessary to disseminate the Offer Documents and any other documents necessary\nto consummate the Transactions, Parent and Sub shall hold in confidence the\ninformation contained in any such labels, listings and files, shall use such\ninformation only in\n\n                                      11\n\n \nconnection with the Offer and the Merger and, if this Agreement shall be\nterminated, shall deliver to the Company or destroy all copies of such\ninformation then in their possession.\n\n     SECTION 2.03 Board of Directors; Section 14(f).\n\n     (a)  If requested by Parent, promptly after the acceptance for payment of\nthe shares of Company Common Stock to be purchased pursuant to the Offer, Sub\nshall be entitled to designate such number of directors on the Company Board\n(and on each committee of the Company Board and on each board of directors of\neach Company Subsidiary designated by Parent) as will give Sub representation on\nthe Company Board (or such committee or Company Subsidiary board of directors)\nequal to at least that number of directors, rounded up to the next whole number,\nwhich is the product of (a) the total number of directors on the Company Board\n(or such committee or Company Subsidiary board of directors) giving effect to\nthe directors appointed or elected pursuant to this sentence multiplied by (b)\nthe percentage that (i) such number of shares of Company Common Stock so\naccepted for payment and paid for by Sub plus the number of shares of Company\nCommon Stock otherwise owned by Sub or any other subsidiary of Parent bears to\n(ii) the number of shares of Company Common Stock then outstanding, and the\nCompany shall, at such time, cause Sub's designees to be so appointed or\nelected. The Company shall take all actions necessary to cause the persons\ndesignated by Parent to be directors on the Company Board (or a committee of the\nCompany Board or the board of directors of a Company Subsidiary designated by\nParent) pursuant to the preceding sentence to be so appointed or elected\n(whether, at the request of Parent, by means of increasing the size of the\nCompany Board (or such committee or Company Subsidiary board of directors) or\nseeking the resignation of directors and causing Parent's designees to be\nappointed or elected).\n\n     (b)  The Company's obligation to appoint designees of Parent and\/or Sub to\nthe Company Board shall be subject to Section 14(f) of the Exchange Act and Rule\n14f-1 promulgated thereunder. The Company shall promptly take all actions\nrequired pursuant to Section 14(f) and Rule l4f-1 in order to fulfill its\nobligations under this Section 2.03, and shall include in the Schedule 14D-9\n                       ------------\nsuch information with respect to the Company and its officers and directors as\nis required under Section 14(f) and Rule 14f-1. Parent and Sub will supply to\nthe Company any information with respect to any of them and their nominees,\nofficers, directors and Affiliates required by Section 14(f) and Rule 14f-1.\n\n     (c)  Following the election or appointment of Parent's and\/or Sub's\ndesignees pursuant to this Section 2.03 and prior to the Effective Time, any\n                           ------------   \namendment or termination of this Agreement, extension for the performance or\nwaiver of the obligations or other acts of Parent or Sub or waiver of the\nCompany's rights hereunder, will require the concurrence of a majority of the\nmembers of the Company Board who are members of the Company Board on the date of\nthis Agreement.\n\n     SECTION 2.04 The Merger. On the terms and subject to the conditions set\nforth in this Agreement, and in accordance with the DGCL, Sub shall be merged\nwith and into the Company at the Effective Time. At the Effective Time, the\nseparate corporate existence of Sub shall cease and the Company shall continue\nas the surviving corporation (the \"Surviving Corporation\"). At the election of\n                                   ---------------------\nParent, any direct or indirect Subsidiary or other Affiliate of Parent may be\n\n                                      12\n\n \nsubstituted for Sub as a constituent corporation in the Merger. In such event,\nthe parties shall execute an appropriate amendment to this Agreement in order to\nreflect the foregoing.\n\n     SECTION 2.05 Closing. The Closing shall take place at the offices of Mayer,\nBrown &amp; Platt, 190 South LaSalle Street, Chicago, Illinois 60603 at 10:00 a.m.\non the second business day following the satisfaction (or, to the extent\npermitted by Applicable Law, waiver by all parties) of the conditions set forth\nin Article VIII (or, to the extent permitted by law, waived by the parties\n   ------------  \nentitled to the benefits thereof), or at such other place, time and date as\nshall be agreed in writing between Parent and the Company.\n\n     SECTION 2.06 Effective Time. At the Closing, Parent and the Company will\ncause the Certificate of Merger to be executed and filed with the Secretary of\nState of the State of Delaware as provided in Section 251 or 253 of the DGCL.\nThe Merger shall become effective at the time when the Certificate of Merger has\nbeen duly filed with the Secretary of State of the State of Delaware or such\nother time as shall be agreed upon by the parties and set forth in the\nCertificate of Merger in accordance with the DGCL (the \"Effective Time\"). From\n                                                        --------------\nand after the Effective Time, the Merger shall have all the effects provided by\nSection 259 of the DGCL, including without limitation, the effect that the\nSurviving Corporation shall possess all of the assets, rights, privileges,\npowers and franchises and shall be subject to all of the liabilities,\nrestrictions, disabilities and duties of the Company and Sub, all as provided\nunder the DGCL.\n\n     SECTION 2.07 Certificate of Incorporation and By-laws.\n\n     (a)  The Company Charter, as in effect immediately prior to the Effective\nTime, shall be the Certificate of Incorporation of the Surviving Corporation\nuntil thereafter changed or amended as provided therein or by Applicable Law;\nprovided, however, that such Company Charter shall be amended to become\n--------  -------\nidentical to the Certificate of Incorporation of Sub as in effect immediately\nprior to the Effective Time except that Article I thereof shall be amended to\nchange the name of the Surviving Corporation to the name of the Company.\n\n     (b)  The by-laws of Sub as in effect immediately prior to the Effective\nTime shall be the by-laws of the Surviving Corporation until thereafter changed\nor amended as provided therein or by Applicable Law.\n\n     SECTION 2.08 Directors. The directors of Sub immediately prior to the\nEffective Time shall be the directors of the Surviving Corporation, until their\nsuccessors have been duly elected or appointed and qualified or until their\nearlier death, resignation or removal in accordance with the Surviving\nCorporation's certificate of incorporation and by-laws.\n\n     SECTION 2.09 Officers. The officers of the Company shall, from and after\nthe Effective Time, be the officers of the Surviving Corporation until their\nsuccessors have been duly elected or appointed and qualified or until their\nearlier death, resignation or removal in accordance with the Surviving\nCorporation's certificate of incorporation and by-laws.\n\n                                      13\n\n \n                                  ARTICLE III\n\n                      Effect on the Capital Stock of the\n              Constituent Corporations; Exchange of Certificates\n\n     SECTION 3.01 Effect on Capital Stock. At the Effective Time, by virtue of\nthe Merger and without any action on the part of the holder of any shares of\nCompany Common Stock or any shares of capital stock of Sub:\n\n     (a)  Capital Stock of Sub. Each issued and outstanding share of capital\nstock of Sub shall be converted into and become one fully paid and nonassessable\nshare of common stock, par value $0.01 per share, of the Surviving Corporation.\n\n     (b)  Cancellation of Treasury Stock and Parent-Owned Stock. Each share of\nCompany Common Stock that is owned by the Company, the Company Subsidiaries,\nParent or Sub shall no longer be outstanding and shall automatically be canceled\nand retired and shall cease to exist, and no consideration shall be delivered in\nexchange therefor.\n\n     (c)  Conversion of Company Common Stock, Company Employee Stock Options and\nCompany Warrants.\n\n          (i)    Subject to Sections 3.01(b), and 3.01(d), each issued and\n                            ----------------      ------- \n     outstanding share of Company Common Stock shall be converted into the\n     Merger Consideration.\n\n          (ii)   As of the Effective Time, all such shares of Company Common\n     Stock shall no longer be outstanding and shall automatically be canceled\n     and retired and shall cease to exist, and each holder of a certificate\n     representing any such shares of Company Common Stock shall cease to have\n     any rights with respect thereto, except the right to receive the Merger\n     Consideration upon surrender of such certificate in accordance with Section\n                                                                         -------\n     3.02, without interest.\n     ----\n\n          (iii)  Company Employee Stock Options and Company Warrants shall be\n     treated as set forth in Section 7.04.\n                             ------------\n\n     (d)  Dissenters' Rights. Notwithstanding anything in this Agreement to the\ncontrary, Dissenters' Shares shall not be converted into Merger Consideration as\nprovided in Section 3.01(c), but rather the holders of Dissenters' Shares shall\n            ---------------        \nbe entitled to payment of the fair value of such Dissenters' Shares in\naccordance with Section 262 of the DGCL; provided, however, that if any such\n                                         --------  -------    \nholder shall fail to perfect or otherwise shall waive, withdraw or lose the\nright to receive payment of fair value under Section 262 of the DGCL, then the\nright of such holder to be paid the fair value of such holder's Dissenters'\nShares shall cease and such Dissenters' Shares shall be treated as if they had\nbeen converted as of the Effective Time into Merger Consideration as provided in\nSection 3.01(c). The Company shall provide prompt notice to Parent of any\n---------------\ndemands received by the Company for appraisal of any shares of Company Common\nStock, attempted withdrawals of any such demands and any other documents\nreceived in connection with any assertion of rights to payment of fair value\nunder Section 262 of the DGCL, and Parent shall have the right to participate in\nand direct all negotiations and proceedings with respect to such demands. The\nCompany shall not, except with the prior written consent of Parent, make any\n\n                                      14\n\n \npayment with respect to, or settle or offer to settle, any such demands, or\nagree to do any of the foregoing.\n\n     SECTION 3.02 Exchange of Certificates.\n\n     (a)  Paying Agent. Prior to the Effective Time, Parent shall select a bank\nor trust company reasonably acceptable to the Company to act as the Paying Agent\nfor the payment of the Merger Consideration upon surrender of Certificates\nrepresenting Company Common Stock. The Surviving Corporation shall provide to\nthe Paying Agent on a timely basis, as and when needed after the Effective Time,\ncash necessary to pay for the shares of Company Common Stock converted into the\nright to receive the Merger Consideration pursuant to Section 3.01(c) (such cash\n                                                      ---------------  \nbeing hereinafter referred to as the \"Exchange Fund\").\n                                      -------------       \n\n     (b)  Exchange Procedure. As soon as reasonably practicable after the\nEffective Time, the Paying Agent shall mail to each holder of record of a\nCertificate or Certificates, (i) a letter of transmittal (which shall specify\nthat delivery shall be effected, and risk of loss and title to the Certificates\nshall pass, only upon delivery of the Certificates to the Paying Agent and shall\nbe in a form and have such other provisions as Parent may reasonably specify)\nand (ii) instructions for use in effecting the surrender of the Certificates in\nexchange for Merger Consideration. Upon surrender of a Certificate for\ncancellation to the Paying Agent or to such other agent or agents as may be\nappointed by Parent, together with such letter of transmittal, duly executed,\nand such other documents as may reasonably be required by the Paying Agent, the\nholder of such Certificate shall be entitled to receive in exchange therefor the\nMerger Consideration into which the shares of Company Common Stock theretofore\nrepresented by such Certificate shall have been converted pursuant to Section\n                                                                      -------\n3.01(c), and the Certificate so surrendered shall forthwith be canceled. In the\n-------\nevent of a transfer of ownership of Company Common Stock which is not registered\nin the transfer records of the Company, payment may be made to a Person other\nthan the Person in whose name the Certificate so surrendered is registered, if\nsuch Certificate shall be properly endorsed or otherwise be in proper form for\ntransfer and the Person requesting such payment shall (A) pay any transfer or\nother Taxes required by reason of the payment to a Person other than the\nregistered holder of such Certificate, or (B) establish to the satisfaction of\nthe Surviving Corporation that such Tax has been paid or is otherwise not\napplicable. Until surrendered as contemplated by this Section 3.02, each\n                                                      ------------      \nCertificate shall be deemed at any time after the Effective Time to represent\nonly the right to receive upon such surrender the Merger Consideration, without\ninterest, into which the shares of Company Common Stock theretofore represented\nby such Certificate shall have been converted pursuant to Section 3.01(c). No\n                                                          ---------------\ninterest shall be paid or shall accrue on any Merger Consideration payable upon\nthe surrender of any Certificate.\n\n     (c)  No Further Ownership Rights in Company Common Stock. The Merger\nConsideration paid in accordance with the terms of this Article III upon\n                                                        -----------\nconversion of any shares of Company Common Stock shall be deemed to have been\npaid in full satisfaction of all rights pertaining to such shares, and there\nshall be no further registration of transfers on the stock transfer books of the\nSurviving Corporation of shares of Company Common Stock that were outstanding\nimmediately prior to the Effective Time. If, after the Effective Time, any\ncertificates formerly representing shares of Company Common Stock are presented\nto the Surviving\n\n                                      15\n\n \nCorporation or the Paying Agent for any reason, they shall be canceled and\nexchanged as provided in this Article III.\n                              -----------\n\n     (d)  Termination of Exchange Fund. Any portion of the Exchange Fund that\nremains undistributed to the holders of Company Common Stock six months after\nthe Effective Time shall be delivered to the Surviving Corporation, and any\nholder of Company Common Stock who has not theretofore complied with this\nArticle III shall thereafter look only to the Surviving Corporation for payment\n-----------\nof its claim for Merger Consideration.\n\n     (e)  No Liability. None of Parent, Sub, the Company, the Surviving\nCorporation or the Paying Agent shall be liable to any Person in respect of any\ncash from the Exchange Fund delivered to a public official pursuant to any\napplicable abandoned property, escheat or similar Applicable Law. If any\nCertificate has not been surrendered prior to the date that is five years after\nthe Effective Time (or immediately prior to such earlier date on which Merger\nConsideration in respect of such Certificate would otherwise escheat to or\nbecome the property of any Governmental Entity), any such shares, cash,\ndividends or distributions in respect of such Certificate shall, to the extent\npermitted by Applicable Law, become the property of the Surviving Corporation,\nfree and clear of all claims or interest of any Person previously entitled\nthereto.\n\n     (f)  Investment of Exchange Fund. The Paying Agent shall invest any cash\nincluded in the Exchange Fund, as directed by Parent, on a daily basis. Any\ninterest and other income resulting from such investments shall be paid to\nParent.\n\n     (g)  Withholding Rights. The Surviving Corporation shall be entitled to\ndeduct and withhold from the consideration otherwise payable to any holder of\nCompany Common Stock pursuant to this Agreement such amounts as may be required\nto be deducted and withheld with respect to the making of such payment under the\nCode, or under any provision of applicable state, local or foreign tax law. To\nthe extent that amounts are so withheld and paid over to the appropriate Tax\nAuthority, the Surviving Corporation will be treated as though it withheld an\nappropriate amount of the type of consideration otherwise payable pursuant to\nthis Agreement to any holder of Company Common Stock, sold such consideration\nfor an amount of cash equal to the fair market value of such consideration at\nthe time of such deemed sale and paid such cash proceeds to the appropriate Tax\nAuthority.\n\n     (h)  Lost, Stolen or Destroyed Certificates. If any Certificate shall have\nbeen lost, stolen or destroyed, upon the making of an affidavit of that fact by\nthe Person claiming such Certificate to be lost, stolen or destroyed, the Paying\nAgent shall issue in exchange for such lost, stolen or destroyed Certificate the\nMerger Consideration deliverable in respect thereof as determined in accordance\nwith Section 3.01 hereof, provided that the Person to whom the Merger\n     ------------ \nConsideration is paid shall, as a condition precedent to the payment thereof,\nindemnify the Surviving Corporation in a manner satisfactory to it (including,\nwithout limitation, the posting by such Person of such bond and security as the\nSurviving Corporation may reasonably request) against any claim that may be made\nagainst the Surviving Corporation with respect to the Certificate claimed to\nhave been lost, stolen or destroyed.\n\n                                      16\n\n \n     SECTION 3.03 Adjustments. If, during the period between the date of this\nAgreement and the Effective Time, any change in the outstanding shares of\nCompany Capital Stock (other than by virtue of the issuance of Company Common\nStock under the ESPP in accordance with this Agreement, upon the exercise of\nCompany Employee Stock Options or Company Warrants outstanding on the date of\nthis Agreement and in accordance with their present terms) shall occur that is\nnot otherwise consented to by Parent in writing, including by reason of any\nreclassification, recapitalization, stock split or combination, exchange or\nreadjustment of shares, or stock dividend thereon, in any of these cases with a\nrecord date during such period, the cash payable pursuant to the Offer, the\nMerger Consideration and any other amounts payable pursuant to this Agreement\nshall be appropriately adjusted.\n\n                                  ARTICLE IV\n\n                 Representations and Warranties of the Company\n\n     Except as otherwise disclosed in the Company Disclosure Letter, the Company\nrepresents and warrants to Parent and Sub, as follows:\n\n     SECTION 4.01 Organization, Standing and Power. The Company and each of the\nCompany Subsidiaries is duly organized, validly existing and in good standing\nunder the laws of the jurisdiction in which it is organized and has full power\nand authority and possesses all Permits necessary to enable it to own, lease or\notherwise hold its properties and assets and to conduct its business as\npresently conducted, other than such Permits the lack of which, individually or\nin the aggregate, has not had and could not reasonably be expected to have a\nCompany Material Adverse Effect. The Company and each Company Subsidiary is duly\nqualified to do business in each jurisdiction where the nature of its business\nor its ownership of its properties make such qualification necessary or\nbeneficial, except in such jurisdictions where the failure to be so qualified,\nindividually or in the aggregate, has not had and could not reasonably be\nexpected to have a Company Material Adverse Effect. True and complete copies of\nthe Company Charter, the Company By-laws and the charter documents, by-laws,\norganizational documents and partnership, limited liability company and joint\nventure agreements (and in each case all amendments thereto) of each of the\nCompany Subsidiaries as in effect immediately prior to the date hereof have been\ndelivered to Parent. Neither the Company nor any of the Company Subsidiaries is\nin violation of any term of its respective certificate of incorporation or by-\nlaws (or other organizational documents).\n\n     SECTION 4.02 Company Subsidiaries; Equity Interests.\n\n     (a)  The Company owns directly or indirectly each of the outstanding shares\nof capital stock or a 100% ownership interest, as applicable, of each of the\nCompany Subsidiaries free and clear of all Liens. Each of the outstanding shares\nof capital stock of each of the Company Subsidiaries having corporate form is\nduly authorized, validly issued, fully paid and nonassessable. The following\ninformation for each Company Subsidiary is set forth in Section 4.02 of the\n                                                        ------------\nCompany Disclosure Letter: (i) its name and jurisdiction of incorporation or\norganization; (ii) its authorized capital stock or share capital; and (iii) the\nname of each stockholder or owner and the number of issued and outstanding\nshares of capital stock or share capital held by it or the type and amount of\nany ownership interest.\n\n                                      17\n\n \n     (b)  Except for its interests in the Company Subsidiaries, neither the\nCompany nor any Company Subsidiary (i) owns, has any right to, or, except as set\nforth in Section 4.02 of the Company Disclosure Letter, is, or during the last\n90 days has been involved in any material negotiations to, acquire, directly or\nindirectly, any capital stock, membership interest, partnership interest, joint\nventure interest or other equity interest in any Person, except through barter\ntransactions entered into in the ordinary and usual course of business and where\nthe amount of the transaction is less than $100,000 or (ii) has the ability to\ncontrol (whether through the ownership of voting securities or otherwise) any\nother Person (any of such interests under clause (i) or (ii) other than a\n                                          ----------    ----\nCompany Subsidiary, a \"Company Investment\"). No Company Investment is,\n                       ------------------\nindividually or when taken together with all other Company Investments, material\nto the business of the Company and the Company Subsidiaries taken as a whole.\n\n     SECTION 4.03 Capital Structure. The authorized capital stock of the Company\nconsists of 100,000,000 shares of Company Common Stock, 10,000,000 shares of\npreferred stock and 100,000 shares of Series A Participating Preferred Stock,\n$0.001 par value per share (\"Company Preferred Stock\" and collectively with the\n                             -----------------------  \nCompany Common Stock, \"Company Capital Stock\"). As of the date hereof, (i)\n                       ---------------------   \n40,757,079 shares of Company Common Stock and no shares of Company Preferred\nStock were issued and outstanding, (ii) 241,000 shares of Company Common Stock\nand no shares of Company Preferred Stock were held by the Company in its\ntreasury, (iii) 8,642,444 shares of Company Common Stock were subject to\noutstanding Company Employee Stock Options and the weighted average exercise\nprice of such options was $1.3285 per share, and (iv) 161,408 shares of Company\nCommon Stock were subject to outstanding Company Warrants and the weighted\naverage exercise price of such warrants was $2.06 per share and 182,451 shares\nof Company Common Stock reserved for issuance pursuant to the ESPP. Section 4.03\n                                                                    ------------\nof the Company Disclosure Letter sets forth a full list of all outstanding\nCompany Employee Stock Options and Company Warrants, including the name of the\nPerson to whom such options (or warrants) have been granted, the number of\nshares subject to each option (or warrant), the per share exercise price for\neach option (or warrant), the vesting schedule for each option (or warrant) and\nwhether such option (or warrant) automatically terminate in the event of a\nchange in control of the Company. Except as set forth above, and except for the\nESPP, as of the date hereof, no shares of capital stock or other voting\nsecurities of the Company were issued, reserved for issuance or outstanding. All\noutstanding shares of Company Capital Stock are, and all such shares that may be\nissued prior to the Effective Time will be when issued, duly authorized, validly\nissued, fully paid and nonassessable and not subject to or issued in violation\nof any purchase option, call option, right of first refusal, preemptive right,\nsubscription right or any similar right under any provision of the DGCL, the\nCompany Charter, the Company By-laws or any Contract to which the Company is a\nparty or otherwise bound. Except as set forth above, there are no Voting Company\nDebts, Company Warrants or Company SARs issued or outstanding and the only\nrights outstanding under any Company Option Plan are Company Employee Stock\nOptions. Except as set forth above or pursuant to the Company Rights Agreement,\nas of the date of this Agreement, there are no options, warrants, rights,\nconvertible or exchangeable securities, \"phantom\" stock rights, stock\nappreciation rights, stock-based performance units, commitments, contracts,\narrangements or undertakings of any kind to which the Company or any Company\nSubsidiary is a party or by which any of them is bound (A) obligating the\nCompany or any Company Subsidiary to issue, deliver or sell, or cause to be\nissued, delivered or sold, additional shares of capital stock or other equity\ninterests in, or any security convertible or exercisable for or exchangeable\ninto any capital stock of or other\n\n                                      18\n\n \nequity interest in, the Company or of any Company Subsidiary or any Voting\nCompany Debt, (B) obligating the Company or any Company Subsidiary to issue,\ngrant, extend or enter into any such option, warrant, call, right, security,\ncommitment, Contract, arrangement or undertaking or (C) that give any Person the\nright to receive any economic benefit or right similar to or derived from the\neconomic benefits and rights occurring to holders of Company Capital Stock.\nThere are not any (1) outstanding contractual obligations of the Company or any\nCompany Subsidiary to repurchase, redeem or otherwise acquire any shares of\ncapital stock of the Company or any Company Subsidiary, or (2) voting trusts or\nother agreements or understandings to which the Company or any of the Company\nSubsidiaries is a party with respect to the voting or transfer of capital stock\nof the Company or any of the Company Subsidiaries.\n\n     SECTION 4.04 Authorization; Validity of Agreement; Necessary Action.\n\n     (a)  The Company has full corporate power and authority to execute and\ndeliver each Transaction Agreement to which it is a party and each agreement,\ndocument and instrument to be executed and delivered by or on behalf of it\npursuant to, or in connection with or as contemplated by the Transaction\nAgreements and to consummate the Transactions. The execution, delivery and\nperformance by the Company of each Transaction Agreement to which it is a party\nand the consummation by the Company of the Transactions have been duly\nauthorized by all necessary corporate action on the part of the Company, and\nexcept for the Company Stockholder Approval in the case of the Merger, no other\ncorporate action on the part of the Company is necessary to authorize the\nconsummation of the Transactions. The Transaction Agreements to which the\nCompany is a party have been duly executed and delivered by the Company and\nconstitute (assuming the due authorization, execution and delivery by Parent and\nSub), valid and binding obligations of the Company enforceable against the\nCompany in accordance with their respective terms, except to the extent that\nenforceability may be limited by applicable bankruptcy, insolvency, moratorium\nor other similar laws affecting the enforcement of creditors' rights generally\nand subject to general principles of equity.\n\n     (b)  The Company Board, at a meeting duly called and held prior to\nexecution of any of the Transaction Agreements, duly and unanimously adopted\nresolutions (i) approving and declaring advisable this Agreement and the other\nTransaction Agreements, the Merger and the other Transactions, (ii) determining\nthat the terms of the Offer, the Merger and the other Transactions are fair to\nand in the best interests of the Company and its stockholders, (iii)\nrecommending that the holders of Company Common Stock accept the Offer and\ntender their shares of Company Common Stock pursuant to the Offer, (iv)\nrecommending that the Company's stockholders approve and adopt this Agreement\nand (v) adopting this Agreement and the other Transaction Agreements. Such\nresolutions are sufficient to render inapplicable to Parent and Sub, to this\nAgreement and the other Transaction Agreements to which the Company is a party,\nand to the Offer, the Merger and the other Transactions the provisions of\nSection 203 of the DGCL. The Company has been advised by each of its directors,\nexecutive officers, affiliates or Subsidiaries that each such Person intends to\ntender all shares of Company Common Stock owned by such Person pursuant to the\nOffer, except to the extent of any restrictions created by Section 16(b) of the\nExchange Act.\n\n     (c)  The only vote of holders of any class or series of Company Capital\nStock necessary to approve and adopt this Agreement and the Merger is the\napproval and adoption of\n\n                                      19\n\n \nthis Agreement by the holders of a majority of the outstanding shares of Company\nCommon Stock (the \"Company Stockholder Approval\"). No vote or approval of any\n                   ---------------------------- \nholder of Company Capital Stock is necessary to approve any Transaction\nAgreement other than this Agreement or to consummate the Offer or any\nTransaction other than the Merger.\n\n     SECTION 4.05 No Conflicts; Consents. Except as set forth in Section 4.05 of\n                                                                 ------------\nthe Company Disclosure Letter, the execution and delivery by the Company of each\nTransaction Agreement to which it is a party do not, and the consummation of the\nOffer, the Merger and the other Transactions and compliance with the terms\nhereof and thereof will not, conflict with, or result in any violation of or\ndefault (with or without notice or lapse of time, or both) under, or give rise\nto a right of termination, cancellation or acceleration of any obligation or to\na loss of a material benefit under, or to increased, additional, accelerated or\nguaranteed rights or entitlements of any Person under, or result in the creation\nof any Lien (other than Permitted Liens) upon any of the properties or assets of\nthe Company or any Company Subsidiary under, any provision of (i) the Company\nCharter, the Company By-laws or the comparable charter or organizational\ndocuments of any Company Subsidiary, (ii) any Contract to which the Company or\nany Company Subsidiary is a party or by which any of their respective properties\nor assets is bound or (iii) subject to the filings and other matters referred to\nin the following sentence, any provision of any Order or Applicable Law\napplicable to the Company or any Company Subsidiary or their respective\nproperties or assets, other than, in the cases of clause (ii) or (iii) above,\n                                                  -----------    ----- \nany such items that, individually or in the aggregate, have not had and could\nnot reasonably be expected to have a Company Material Adverse Effect. No Consent\nof, or registration, declaration or filing with, any Governmental Entity is\nrequired to be obtained or made by or with respect to the Company or any Company\nSubsidiary in connection with the execution, delivery and performance of any\nTransaction Agreement to which it is a party or the consummation of the\nTransactions, other than (A) compliance with and filings under the HSR Act, (B)\nthe filing with the SEC of (1) the Schedule 14D-9, (2) a Proxy Statement, if\nsuch approval is required by Applicable Law, and (3) such reports under Section\n13 of the Exchange Act as may be required in connection with this Agreement and\nthe other Transaction Agreements, the Offer, the Merger and the other\nTransactions, (C) the filing of the Certificate of Merger with the Secretary of\nState of the State of Delaware and appropriate documents with the relevant\nauthorities of the other jurisdictions in which the Company is qualified to do\nbusiness, (D) such filings as may be required in connection with the Taxes\ndescribed in Section 7.08, and (E) such other items as are set forth in Section\n             ------------                                               -------\n4.05 of the Company Disclosure Letter.\n----\n\n     SECTION 4.06 SEC Documents; Financial Statements; Undisclosed Liabilities.\n\n     (a)  The Company has timely filed with the SEC all Company SEC Documents.\nAs of its respective date, each Company SEC Document, including, without\nlimitation, any financial statements or schedules included therein, complied in\nall material respects with the requirements of the Securities Act and Exchange\nAct, as the case may be, and the rules and regulations of the SEC promulgated\nthereunder applicable to such Company SEC Documents, and did not contain any\nuntrue statement of a material fact or omit to state a material fact required to\nbe stated therein or necessary in order to make the statements therein, in light\nof the circumstances under which they were made, not misleading. Except to the\nextent that information contained in any Company SEC Document has been revised\nor superseded by a later filed Company SEC Document, none of the Company SEC\nDocuments contains any untrue statement of a material\n\n                                      20\n\n \nfact or omits to state any material fact required to be stated therein or\nnecessary in order to make the statements therein, in light of the circumstances\nunder which they were made, not misleading.\n\n     (b)  The Financial Statements comply as to form in all material respects\nwith applicable accounting requirements and the published rules and regulations\nof the SEC with respect thereto, have been prepared in accordance with GAAP\n(except, in the case of unaudited statements, as permitted by Form 10-Q of the\nSEC) applied on a consistent basis during the periods involved (except as may be\nindicated in the notes thereto) and fairly present the consolidated financial\nposition of the Company and its consolidated Subsidiaries as of the dates\nthereof and the consolidated results of their operations and cash flows for the\nperiods then ended (subject, in the case of unaudited statements, to normal \nyear-end audit adjustments).\n\n     (c)  The Company and the Company Subsidiaries have no material liabilities\nor obligations of any nature, whether accrued, absolute, contingent or\notherwise, and whether or not required to be disclosed on a balance sheet\nprepared in accordance with GAAP, except liabilities (i) stated or adequately\nreserved against in the Financial Statements of the Company included in the\nFiled Company SEC Documents or disclosed in Section 4.06(c) of the Company\n                                            ---------------\nDisclosure Letter, or (ii) incurred in the ordinary and usual course of business\nsince March 31, 2001, or (iii) provided for in footnotes to the Financial\nStatements.\n\n     SECTION 4.07 Information Supplied. None of the information supplied or to\nbe supplied by the Company for inclusion or incorporation by reference in (i)\nthe Offer Documents or the Schedule 14D-9 will, at the time such document is\nfiled with the SEC, at any time it is amended or supplemented or at the time it\nis first published, sent or given to the Company's stockholders, contain any\nuntrue statement of a material fact or omit to state any material fact required\nto be stated therein or necessary to make the statements therein not misleading,\nor (ii) the Proxy Statement will, at the date it is first mailed to the\nCompany's stockholders or at the time of the Company Stockholders Meeting,\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 are made, not\nmisleading. The Schedule 14D-9 and the Proxy Statement will comply as to form in\nall material respects with the requirements of the Exchange Act and the rules\nand regulations promulgated thereunder, except that no representation is made by\nthe Company with respect to statements made or incorporated by reference therein\nbased on information supplied by Parent or Sub for inclusion or incorporation by\nreference therein.\n\n     SECTION 4.08 Absence of Certain Changes or Events. Except as disclosed in\nthe Filed Company SEC Documents or in Section 4.08 of the Company Disclosure\n                                      ------------\nLetter, from the date of the most recent audited financial statements included\nin the Filed Company SEC Documents to the date of this Agreement, the Company\nhas conducted its business only in the ordinary and usual course of business,\nand during such period none of the Company or any Company Subsidiary has:\n\n          (i)  experienced or been affected by any event, change, effect or\n     development that, individually or in the aggregate, has had or could\n     reasonably be expected to have a Company Material Adverse Effect; or\n\n                                      21\n\n \n          (ii)   taken any action that would not be permitted to be taken after\n     the date hereof under Section 6.01.\n                           ------------\n\n     SECTION 4.09 Taxes.\n\n     (a)  All Tax Returns required to be filed or sent through the date hereof\nand which have not otherwise been validly extended, by or with respect to the\nCompany and the Company Subsidiaries, have been filed or sent and all Taxes\nrequired to be paid through the date hereof by the Company and the Company\nSubsidiaries, whether disputed or not and whether or not shown on any Tax\nReturn, have been paid, except Taxes which have not yet accrued or otherwise\nbecome due, for which adequate provision has been made in the pertinent\nfinancial statements referred to in Section 4.06 hereof. All such Tax Returns\n                                    ------------\nwere correct and complete in all material respects. The provisions for Taxes on\nthe Financial Statements and on the latest balance sheet included in the Company\nSEC Documents are sufficient as of their respective dates for the payment of all\naccrued and unpaid Taxes of any nature of the Company and the Company\nSubsidiaries, whether or not assessed or disputed. All Taxes and other\nassessments and levies which the Company or any of the Company Subsidiaries is\nrequired to withhold or collect have been withheld and collected and have been\npaid over to the proper Governmental Entities in connection with amounts paid or\nowing to any employee, independent contractor, creditor, stockholder, or other\nthird party. There is no pending dispute or claim concerning any Tax liability\nof the Company or any of the Company Subsidiaries either (A) claimed or raised\nby any Tax Authority or (B) as to which the Company has knowledge based upon\npersonal contact with any agent of or other Person acting on behalf of or for\nsuch Tax Authority. Except as provided in Section 4.09 of the Company Disclosure\n                                          ------------\nLetter, neither the Company nor any of the Company Subsidiaries has received\nnotice of any audit of any Tax Return filed by such Person. Except as provided\nin Section 4.09 of the Company Disclosure Letter, neither the Company nor any of\n   ------------  \nthe Company Subsidiaries has received notice of any claim made by any authority\nin a jurisdiction where the Company or such Company Subsidiary does not file Tax\nReturns that the Company or such Company Subsidiary is or may be subject to\ntaxation by that jurisdiction. There are no Liens recorded or asserted on any of\nthe assets or properties of the Company or any of the Company Subsidiaries that\narose in connection with any failure (or alleged failure) to pay any Tax.\n\n     (b)  The Company has made available to Parent correct and complete copies\nof all Tax Returns, examination reports, statements of deficiencies assessed\nagainst or agreed to by the Company or any of the Company Subsidiaries and all\nother communications relating thereto since December 31, 1998.\n\n     (c)  Except as set forth in Section 4.09 of the Company Disclosure Letter,\n                                 ------------\nneither the Company nor any of the Company Subsidiaries has waived any statute\nof limitations in respect of Taxes or agreed to any extension of time with\nrespect to a Tax assessment or deficiency, nor has any such waiver or agreement\nbeen requested by the IRS or any other Tax Authority; and neither the Company\nnor any of the Company Subsidiaries currently is the beneficiary of any\nextension of time within which to file any Tax Return.\n\n     (d)  Except as set forth in Section 4.09 of the Company Disclosure Letter:\n                                 ------------  \n(i) neither the Company nor any of the Company Subsidiaries has filed a consent\nunder Section 341(f) of \n\n                                      22\n\n \nthe Code concerning collapsible corporations or agreed to have Section 341(f)(2)\nof the Code apply; (ii) neither the Company nor any of the Company Subsidiaries\nhas made any payments, is obligated to make any payments, or is party to any\nagreement that under any circumstances could obligate it to make any payments\nthat will not be deductible under Section 280G or Section 162(m) of the Code;\n(iii) neither the Company nor any of the Company Subsidiaries has been a United\nStates real property holding corporation within the meaning of Section 897(c)(2)\nof the Code during the applicable period specified in Section 897(c)(1)(A)(ii)\nof the Code; (iv) neither the Company nor any of the Company Subsidiaries is a\nparty to any Tax allocation or sharing agreement; (v) neither the Company nor\nany of the Company Subsidiaries (A) has been a member of an affiliated group\nfiling a consolidated federal income Tax return (other than such a group of\nwhich the Company is the common parent) or (B) will be required to pay the Taxes\nof any other Person under Treasury Regulation ss.1.1502-6 (or any similar\nprovision of state, local, or foreign law), as a transferee or successor, by\ncontract, agreement or otherwise; and (vi) neither the Company nor any of the\nCompany Subsidiaries is or will be required to include in income any adjustment\npursuant to Section 481(a) of the Code by reason of a voluntary change in\naccounting method initiated by the Company or a Company Subsidiary (nor does the\nCompany have any knowledge that the Internal Revenue Service has proposed any\nsuch adjustment or change of accounting method). There are no requests for\nrulings or determinations in respect of any Tax or Tax matter pending between\nthe Company or any of the Company Subsidiaries and any Tax Authority.\n\n     SECTION 4.10 Benefit Plans; ERISA Compliance; Excess Parachute Payments.\n\n     (a)  Section 4.10 of the Company Disclosure Letter contains a true and\n          ------------\ncomplete list of each \"employee benefit plan\" (within the meaning of Section\n3(3) of ERISA), stock purchase, stock option, severance, employment, change-in-\ncontrol, fringe benefit, collective bargaining, unemployment compensation,\nbonus, incentive, deferred compensation and all other employee benefit plans,\nagreements, programs, policies or other arrangements, whether or not subject to\nERISA (including, without limitation, any funding mechanism therefor now in\neffect or required in the future as a result of any Transaction, including the\nOffer or the Merger or otherwise), whether formal or informal, oral or written,\nlegally binding or not, under which any employee or former employee of the\nCompany or the Company Subsidiaries or any of their respective ERISA Affiliates\nhas any present or future right to benefits or under which the Company or the\nCompany Subsidiaries or any of their respective ERISA Affiliates has any present\nor future liability. All such plans, agreements, programs, policies and\narrangements shall be collectively referred to as the \"Company Plans.\"\n                                                       -------------     \n\n     (b)  With respect to each Company Plan, the Company has delivered to Parent\na current, accurate and complete copy (or, to the extent no such copy exists, an\naccurate description) thereof and, to the extent applicable: (i) any related\ntrust agreement or other funding instrument; (ii) the most recent IRS\ndetermination or opinion letter, if applicable; (iii) any summary plan\ndescription and other written communications (or a description of any oral\ncommunications) by the Company, the Company Subsidiaries or any of their ERISA\nAffiliates concerning the extent or nature of the benefits provided under a\nCompany Plan; and (iv) for the three most recent years (A) the Form 5500 and\nattached schedules, (B) audited financial statements, (C) actuarial valuation\nreports and (D) attorney's response to an auditor's request for information.\n\n                                      23\n\n \n     (c)  (i) Each Company Plan has been established and complies and has been\nadministered in form and operation in accordance with its terms, and in\ncompliance with the applicable provisions of ERISA, the Code and other\napplicable laws, rules and regulations; (ii) each Company Plan which is intended\nto be qualified within the meaning of Code Section 401(a) is so qualified and\nhas received a favorable determination letter or, in the case of a prototype\nplan, opinion letter from the IRS as to its qualification under Section 401(a)\nof the Code and the tax-exempt status of any trust which forms a part of such\nplan under Section 501(a) of the Code, which favorable determination letter or,\nin the case of a prototype plan, opinion letter covers all amendments to the\nplan for which the remedial amendment period (within the meaning of Section\n401(b) of the Code and applicable regulations) has expired, and nothing has\noccurred, whether by action or failure to act, that could reasonably be expected\nto cause the loss of such qualification; (iii) no event has occurred and no\ncondition exists that would subject the Company or the Company Subsidiaries or\nany of their respective ERISA Affiliates, to any tax, fine, Lien, penalty or\nother liability imposed by ERISA, the Code or other applicable laws, rules and\nregulations; (iv) for each Company Plan with respect to which a Form 5500 has\nbeen filed, no material change has occurred with respect to the matters covered\nby the most recent Form since the date thereof; (v) no \"prohibited transaction\"\n(as such term is defined in ERISA Section 406 and Code Section 4975) has\noccurred with respect to any Company Plan; (vi) no Company Plan provides retiree\nwelfare benefits (and none of the Company or any Company Subsidiaries has any\nobligations to provide any retiree welfare benefits) except, in either case, to\nthe extent required by Section 4980B of the Code; and (vii) all awards, grants\nor bonuses made pursuant to any Company Plan have been, or will be, fully\ndeductible to the Company or the Company Subsidiaries notwithstanding the\nprovisions of Section 162(m) of the Code and the regulations promulgated\nthereunder.\n\n     (d)  With respect to any Company Plan (or the assets thereof), (i) no\nactions, suits or claims (other than routine claims for benefits in the ordinary\nand usual course of business) are pending or threatened in writing, (ii) no\nfacts or circumstances exist that could give rise to any such actions, suits or\nclaims and (iii) none of the assets of any Company Plan are invested in employer\nsecurities or employer real property.\n\n     (e)  Except as set forth in Section 4.10 of the Company Disclosure Letter,\n                                 ------------       \nno Company Plan exists that could result in the payment to any present or former\nemployee of the Company or the Company Subsidiaries or any of their respective\nERISA Affiliates of any money or other property or accelerate or provide any\nother rights or benefits to any present or former employee of the Company or any\nCompany Subsidiary or any of their respective ERISA Affiliates as a result of\nthe Transactions, including the Offer and the Merger. None of the payments\ncontemplated by the Company Plans would, individually or in the aggregate,\nconstitute excess parachute payments (as defined in Section 280G of the Code\n(without regard to subsection (b)(4) thereof)).\n\n     (f)  None of the Company Plans is subject to Title IV of ERISA and none of\nthe Company Plans is a multiemployer plan (as defined in Section 3(37) of\nERISA).\n\n     SECTION 4.11 Litigation. Except as set forth in Section 4.11 of the Company\n                                                     ------------  \nDisclosure Letter, there are (i) no continuing Orders, to which the Company or\nany Company Subsidiary is a party or by which any of their respective properties\nor assets are bound or to \n\n                                      24\n\n \nwhich any of their respective directors, officers, employees or agents, in such\ncapacities, is a party or by which any of their respective properties or assets\nare bound, and (ii) no Proceedings pending and for which service of process has\nbeen made against the Company or any Company Subsidiary or against any of their\nrespective directors, officers, employees or agents, in such capacities or, to\nthe knowledge of the Company, threatened or pending against the Company or any\nCompany Subsidiary, or against any of their respective directors, officers,\nemployees or agents, at law or in equity, or before or by any Governmental\nEntity. There are no Proceedings pending or, to the knowledge of the Company,\nthreatened against the Company or any Company Subsidiary which may call into\nquestion the validity or hinder the enforceability or performance of this\nAgreement or any of the Transaction Agreements, and, to the knowledge of the\nCompany, there has occurred no event, and there does not exist any condition or\nstate of facts, on the basis of which any such claim may be asserted.\n\n     SECTION 4.12 Compliance with Applicable Laws.\n\n     (a)  The business of the Company and each Company Subsidiary has been and\nis being conducted in compliance in all material respects with all Applicable\nLaws and Orders, including, without limitation, ERISA, all Applicable Laws and\nOrders relating to antitrust or trade regulation, employment practices and\nprocedures and the health and safety of employees. Except as set forth in\nSection 4.12(a) of the Company Disclosure Letter, none of the Company or the\n---------------\nCompany Subsidiaries has, since December 31, 1997, been subject to any Order\nwith respect to any of the foregoing or received any notice, demand letter,\ninquiry or formal complaint or claim with respect to any of the foregoing or the\nenforcement of any of the foregoing, nor has the Company or any Company\nSubsidiary been the subject of any criminal Proceedings or convicted of any\nfelony or misdemeanor.\n\n     (b)  The Company and the Company Subsidiaries employ the number of full-\ntime and part-time employees as are indicated in Section 4.12(b) of the Company\n                                                 ---------------      \nDisclosure Letter. Except as set forth in Section 4.12(b) of the Company\n                                          ---------------\nDisclosure Letter: (i) none of the Company or any of the Company Subsidiaries is\ndelinquent in payments to any of its employees for any wages, salaries,\ncommissions, fees, bonuses or other direct compensation for any services\nperformed for it to the date hereof or amounts required to be reimbursed to such\nemployees; (ii) there are no charges of employment discrimination, retaliation,\nor unfair labor practices or strikes, slowdowns, stoppages of work, or any other\nconcerted interference with normal operations existing, pending or, to the\nknowledge of the Company, threatened against or involving the Company or any of\nthe Company Subsidiaries; and (iii) there are no claims or charges relating to\nor alleging violations of any Applicable Laws and Orders, including, without\nlimitation, ERISA, all Applicable Laws and Orders relating to antitrust or trade\nregulation, employment practices and procedures and the health and safety of\nemployees, existing, pending or, to the knowledge of the Company, threatened\nagainst the Company or any of the Company Subsidiaries nor, to the knowledge of\nthe Company, has there occurred any event nor does there exist any condition on\nthe basis of which any such claim is reasonably likely to be asserted.\n\n     SECTION 4.13 Contracts; Debt Instruments.\n\n     (a)  Except as disclosed in Section 4.13(a) or 4.15(h) of the Company\n                                 ---------------    -------       \nDisclosure Letter, there are no Material Contracts relating to the business of\nthe Company. Neither the \n\n                                      25\n\n \nCompany nor any of the Company Subsidiaries is in violation of or in default\nunder (nor does there exist any condition which with the passage of time or the\ngiving of notice or both would cause such a violation of or default under) any\nMaterial Contract to which it is a party or by which it or any of its properties\nor assets is bound, except for violations or defaults that have not and could\nnot, individually or in the aggregate, reasonably be expected to result in a\nCompany Material Adverse Effect. Each Material Contract is in full force and\neffect, and is a legal, valid and binding obligation of the Company or a Company\nSubsidiary and, to the knowledge of the Company, each of the other parties\nthereto, enforceable in accordance with its terms, except as such enforceability\nmay be limited by bankruptcy, insolvency, reorganization, moratorium or other\nsimilar laws now or hereafter in effect relating to creditors' rights generally\nand general principles of equity (regardless of whether considered in a\nproceeding in equity or at law). No condition exists or event has occurred which\n(whether with or without notice or lapse of time or both) would constitute a\ndefault by the Company or a Company Subsidiary or, to the knowledge of the\nCompany, any other party thereto under any Material Contract or result (other\nthan due to consummation of the Offer or the Merger) in a right of termination\nof any Material Contract.\n\n     (b)  Set forth in Section 4.13(b) of the Company Disclosure Letter is (i) a\n                       ---------------\nlist of all loan or credit agreements, notes, bonds, mortgages, indentures and\nother agreements and instruments pursuant to which any Indebtedness of the\nCompany or the Company Subsidiaries in an aggregate principal amount in excess\nof $150,000 is outstanding or may be incurred, and (ii) the respective principal\namounts currently outstanding thereunder.\n\n     (c)  Except as disclosed in Section 4.13(c) of the Company Disclosure\n                                 ---------------  \nLetter, neither the Company nor any of the Company Subsidiaries has entered into\nany Contract and there is no commitment, judgment, injunction, Order or decree\nto which the Company or any Company Subsidiary is a party or subject to that has\nor could reasonably be expected to have the effect of prohibiting or impairing\nthe conduct of business by the Company or any Company Subsidiary or any Contract\nthat may be terminable as a result of Parent's status as a competitor of any\nparty to such Contract or arrangement. Except as disclosed in Section 4.13(c) of\n                                                              ---------------   \nthe Company Disclosure Letter, the Company and the Company Subsidiaries have not\nentered into any Contract under which the Company or any Company Subsidiary is\nrestricted from selling, licensing or otherwise distributing any of their\nrespective technology or products to, or providing services to, customers or\npotential customers or any class of customers, in any geographic area, during\nany period of time or in any segment of the market or line of business.\n\n     SECTION 4.14 Company Rights Agreement. The Company has taken all necessary\naction, including, without limitation, amending the Company Rights Agreement\nwith respect to all of the outstanding Company Rights, (a) to render the Company\nRights Agreement inapplicable to this Agreement, the Offer, the Merger and the\nother Transactions (including the execution of the Stock Option and Tender\nAgreements), (b) to ensure that in connection with the Merger, the Offer and the\nTransactions that (i) Parent and Sub, or either of them, are not deemed to be an\nAcquiring Person (as defined in the Company Rights Agreement) pursuant to the\nCompany Rights Agreement and (ii) no \"Share Acquisition Date,\" \"Section\n11(a)(ii) Trigger Date\" or \"Section 13 Event\" (as such terms are defined in the\nCompany Rights Agreement) occurs by reason of the execution and delivery of this\nAgreement or the consummation of the Offer, the Merger or other Transactions\n(including the execution of the Stock Option and Tender Agreements) and (c) so\nthat the Company will have no obligations under the Company Rights or \n\n                                      26\n\n \nthe Company Rights Agreement in connection with the Offer, the Merger or the\nTransactions and the holders of Company Common Stock and the associated Company\nRights will have no rights under the Company Rights or the Company Rights\nAgreement in connection with the Offer, the Merger or the Transactions\n(including the execution of the Stock Option and Tender Agreements) (the \"Rights\nPlan Amendment\"). The Company Rights Agreement, as so amended, has not been\nfurther amended or modified. Copies of all such amendments to the Company Rights\nAgreement have been and will be provided to Parent and its counsel for their\napproval prior to the adoption of any such amendments.\n\n     SECTION 4.15 Intellectual Property.\n\n     (a)  Section 4.15(a) of the Company Disclosure Letter is a complete and\n          ---------------\naccurate list of all Registered Intellectual Property Rights and specifies,\nwhere applicable, the jurisdictions in which each such item of Registered\nIntellectual Property Rights has been issued or registered.\n\n     (b)  Section 4.15(b) of the Company Disclosure Letter is a complete and\n          ---------------\naccurate list (by name and version number) of all current products or service\nofferings of the Company or any of the Company Subsidiaries. Such list set forth\nin Section 4.15(b) of the Company Disclosure Letter, together with any products\n   ---------------  \nor service offerings of the Company or any Company Subsidiary that have been\ndistributed or provided in the two year period preceding the date hereof or\nwhich are intended to be distributed in the future or are under development are\nreferred to herein as the \"Company Products\".\n                           ----------------\n\n     (c)  The Company and the Company Subsidiaries own, or are validly licensed\nor otherwise have the enforceable right to use, all Material Intellectual\nProperty Rights that are currently used in the conduct of the business of the\nCompany and the Company Subsidiaries. The Company has sole and exclusive rights\n(and is not contractually obligated to pay any compensation to any third party\nin respect thereof) to the use of all the Material Intellectual Property Rights\nor the material covered thereby in connection with the services or products in\nrespect of which the Material Intellectual Property Rights are being used.\nWithout limiting the foregoing: (i) the Company owns or has a license to use all\ntrade names, logos, common law and statutory trademarks and service marks used\nin connection with the operation or conduct of the business of the Company and\nthe Company Subsidiaries, including the sale, distribution or provision of any\nCompany Products by the Company or the Company Subsidiaries and (ii) the Company\nowns or has a license to use all copyrighted works that are Company Products and\nused in connection with the operation or conduct of the business of the Company\nand the Company Subsidiaries, including the sale, distribution or provision of\nany Company Products by the Company or the Company Subsidiaries.\n\n     (d)  No claims with respect to any Intellectual Property Rights owned or\nused by the Company and the Company Subsidiaries have been asserted or are\nthreatened in writing by any Person, and to the knowledge of the Company there\nis no basis for any Person to make any claim, (i) to the effect that the sale,\nlicensing or use of any of the Company Products as now manufactured, sold or\nlicensed or used or proposed for manufacture, use, sale or licensing by the\nCompany or any of the Company Subsidiaries infringes on any Intellectual\nProperty Rights of another Person, (ii) against the use by the Company or any of\nthe Company Subsidiaries of any Intellectual Property Rights of another Person,\n(iii) challenging the ownership by the Company \n\n                                      27\n\n \nor any of the Company Subsidiaries or the validity of any of Intellectual\nProperty Rights owned or used by the Company or any of the Company Subsidiaries,\nor (iv) to the effect that the Company or any Company Subsidiary is engaged in\nany unfair competition or trade practices under any jurisdiction, except claims\nwhich have not had and could not reasonably be expected to have, individually or\nin the aggregate, a Company Material Adverse Effect. To the Company's knowledge,\nthere is no material unauthorized use, infringement or misappropriation of any\nof the Intellectual Property Rights owned or used by the Company and the Company\nSubsidiaries by any third party, including, without limitation, any employee or\nformer employee of the Company or any of the Company Subsidiaries, which has had\nor could reasonably be expected to have, individually or in the aggregate, a\nCompany Material Adverse Effect. No Intellectual Property Rights owned or used\nby the Company and the Company Subsidiaries or Company Product is subject to any\nProceeding or outstanding Order restricting in any manner the use, licensing or\ntransfer thereof by the Company or any of the Company Subsidiaries or which may\naffect the validity, enforceability or use of such Intellectual Property Rights,\nexcept to the extent any such restriction has not had and could not reasonably\nbe expected to have, individually or in the aggregate, a Company Material\nAdverse Effect.\n\n     (e)  To the Company's knowledge and except as set forth in Section 4.15(e)\n                                                                --------------- \nof the Company Disclosure Letter, each material item of Registered Intellectual\nProperty Rights is valid and subsisting, all necessary registration, maintenance\nand renewal fees currently due in connection with such Registered Intellectual\nProperty Rights have been made and all necessary documents, recordations and\ncertificates in connection with such Registered Intellectual Property Rights\nhave been filed with the relevant patent, copyright, trademark or other\nGovernmental Entity, as the case may be, for the purposes of maintaining such\nRegistered Intellectual Property Rights in the ordinary and usual course of the\nCompany's or any Company Subsidiary's business.\n\n     (f)  Except as set forth in Section 4.15(f) of the Company Disclosure\n                                 ---------------  \nLetter, neither the Company nor any Company Subsidiary has knowingly permitted\nthe Company's rights in any Material Intellectual Property Rights to lapse or\nenter the public domain.\n\n     (g)  Section 4.15(g) of the Company Disclosure Letter lists all Material\n          ---------------\nContracts to which the Company or any Company Subsidiary is a party: (i) with\nrespect to Company Intellectual Property Rights licensed or transferred to any\nthird party (other than end-user licenses in the ordinary and usual course of\nbusiness); or (ii) pursuant to which a third party has licensed or transferred\nany Material Intellectual Property Rights to the Company or any Company\nSubsidiary (other than end-user licenses in the ordinary and usual course of\nbusiness). Except as set forth in Section 4.15(g) of the Company Disclosure\n                                  ---------------      \nLetter, all Material Contracts relating to either (i) the Company Intellectual\nProperty Rights or (ii) Intellectual Property Rights of a third party licensed\nto the Company or any Company Subsidiary, are in full force and effect. Except\nas set forth in Section 4.15(g) of the Company Disclosure Letter, the\n                ---------------    \nconsummation of the Offer, the Merger and the other Transactions and compliance\nwith the terms hereof and thereof will not, conflict with, or result in any\nviolation or default (with or without notice or lapse of time, or both) under,\nor give rise to a right of termination, cancellation or acceleration of any\nobligation or to a loss of a material benefit under, or to increased,\nadditional, accelerated or guaranteed rights or entitlements of any Person\nunder, or result in the creation of any Lien (other than Permitted Liens) upon\nany of the properties or assets of the Company or any Company \n\n                                      28\n\n \nSubsidiary under such Material Contracts. To the Company's knowledge, it and\neach of its Subsidiaries is in compliance with, and has not materially breached\nany term of any such Material Contracts and, to the knowledge of Company, all\nother parties to such Material Contracts are in compliance with, and have not\nmaterially breached any term of, such Material Contracts. Except with respect to\nthe nontransferable Contracts listed in Section 4.15(g) of the Company\n                                        ---------------\nDisclosure Letter, following the Closing Date, the Surviving Corporation will be\npermitted to exercise all of the Company's rights under such Contracts to the\nsame extent the Company and the Company Subsidiaries would have been able to had\nthe Transactions not occurred and without the payment of any additional amounts\nor consideration other than ongoing fees, royalties or payments that the Company\nwould otherwise be required to pay. Neither this Agreement nor the Transactions,\nincluding the assignment to Parent or Sub by operation of law or otherwise of\nany Contracts to which any Company Subsidiary is a party, will result in (i)\neither Parent's or the Sub's granting to any third party any right to or with\nrespect to any Material Intellectual Property Rights owned by, or licensed to,\neither of them, (ii) either Parent or Sub being bound by, or subject to, any \nnon-compete or other material restriction on the operation or scope of their\nrespective businesses, or (iii) either Parent or Sub being obligated to pay any\nroyalties or other material amounts to any third party in excess of those\notherwise payable by the Company or any of its Subsidiaries.\n\n     (h)  The Company and each of its Subsidiaries have taken reasonable steps\nunder the relevant circumstances to protect their respective rights in the\nconfidential information and trade secrets that they wish to protect or any\ntrade secrets or confidential information of third parties provided to the\nCompany or any of the Company Subsidiaries.\n\n     (i)  The Company and each Company Subsidiary have received Valid Consents\n(as defined below) from all Persons who have provided personal information,\nwhich are sufficient to give the Company or any Company Subsidiary the right to\nuse such personal information for the purposes of conducting the Company's or\nany Company Subsidiary's current activities, and the Company's or any Company\nSubsidiary's future activities to the extent such future activities are already\nplanned. For the purposes of this Section 4.15(i), \"Valid Consents\" shall mean\n                                  ---------------   -------------- \nconsents obtained from persons aged 18 and over, using only the Company's \"True-\nOpt-In\" or double opt-in method by which the persons providing personal\ninformation to the Company or any Company Subsidiary have both (a) indicated\ntheir consent by checking a box which signifies his or her desire to have his or\nher personal information registered with the site and used by the Company or any\nCompany Subsidiary, and (b) thereafter responded to a confirmatory e-mail\nmessage to signify his or her desire to have his or her personal information\nregistered with the site and used by the Company or any Company Subsidiary. To\nthe knowledge of the Company and each Company Subsidiary, the Company and its\nSubsidiaries have not used any personal information without or beyond the scope\nof a Valid Consent. The Company and each Company Subsidiary have placed all\npersonal information relating to Persons who have signified that they do not\ngrant or later revoke a Valid Consent in an unsubscribed archive file where such\ndata is stored but not used by the Company or any Company Subsidiary. The\nCompany and each Company Subsidiary have not collected and do not maintain any\npersonal information about persons outside the United States in violation of any\nApplicable Law.\n\n     (j)  Except as disclosed in Section 4.15(j) of the Company Disclosure\n                                 ---------------  \nLetter, all personnel, including, without limitation, employees, agents,\nconsultants and contractors, who \n\n                                      29\n\n \nhave contributed to or participated in any material respect in the conception\nand development of the Company's Intellectual Property have executed\nnondisclosure agreements in the form set forth in Section 4.15(j) of the Company\n                                                  ---------------     \nDisclosure Letter and either (i) have been a party to a \"work-for-hire\"\narrangement or agreements with the Company or a Company Subsidiary in accordance\nwith Applicable Law that has accorded the Company or any Company Subsidiary\nfull, effective, exclusive and original ownership of all tangible and intangible\nproperty thereby arising, or (ii) have executed appropriate instruments of\nassignment in favor of the Company or any Company Subsidiary as assignee that\nhave conveyed to the Company or any Company Subsidiary effective and exclusive\nownership of all tangible and intangible property thereby arising.\n\n     (k)  The Company and the Company Subsidiaries use commercially reasonable\nefforts to regularly scan its software programs and the Material Intellectual\nProperty with \"best-in-class\" virus detection software. As of the date hereof,\nto the Company's knowledge, the Company's software programs and other Material\nIntellectual Property Rights of the Company contain no Viruses. For the purposes\nof this Agreement, \"Virus\" means any computer code intentionally designed to\n                    -----     \ndisrupt, disable or harm in any manner the operation of any software or\nhardware. None of the foregoing contains any worm, bomb, backdoor, clock, timer\nor other disabling device code, design or routine which causes the software to\nbe erased, inoperable or otherwise incapable of being used, either automatically\nor upon command by any party.\n\n     SECTION 4.16 Takeover Laws. The Company's Board of Directors has taken all\naction necessary to ensure that Section 203 of the DGCL will not impose any\nadditional procedural, voting, approval, fairness or other restrictions on the\ntimely consummation of the Transactions or restrict, impair or delay the ability\nof Parent to engage in any transaction with the Company or to vote or otherwise\nexercise all rights as a stockholder of the Company. No other \"fair price,\"\n\"moratorium,\" \"control share acquisition\" or other anti-takeover statute or\nregulation of any Governmental Entity (together with Section 203 of the DGCL,\neach individually referred to as a \"Takeover Statute\") is applicable to the\n                                    ----------------    \nCompany or the Transactions.\n\n     SECTION 4.17 Affiliate Transactions. There are no loans, leases or other\nContracts between the Company or any of the Company Subsidiaries and any present\nor former stockholder, director or officer thereof or any member of such\nofficer's, director's or stockholder's family, or any Person controlled by such\nofficer, director or stockholder or his or her family, including, without\nlimitation, any transaction that would be disclosable pursuant to Item 404 of\nSEC Regulation S-K. No director or officer of the Company or any of the Company\nSubsidiaries nor any of their respective spouses or family members, owns\ndirectly or indirectly on an individual or joint basis any interest in, or\nserves as an officer or director or in another similar capacity of, any supplier\nor other independent contractor of the Company or any of the Company\nSubsidiaries, or any Person that has a Contract with the Company or any of the\nCompany Subsidiaries.\n\n     SECTION 4.18 Real Property. (a) Neither the Company nor any Company\nSubsidiary owns any real property. The Company and each Company Subsidiary has\nvalid leasehold interests in all real properties used or occupied by them,\nexcept for such as are no longer used or useful in the conduct of its businesses\nor as have been disposed of in the ordinary and usual course of business and\nexcept for encumbrances or impediments that, in the aggregate, do not \n\n                                      30\n\n \nand will not materially interfere with its ability to conduct its business as\ncurrently conducted. Neither the Company nor any Company Subsidiary has an\noption to purchase any real property. All of the real property leased by the\nCompany and each of the Company Subsidiaries is identified in Section 4.18(a) of\n                                                              ---------------   \nthe Company Disclosure Letter (herein referred to as the \"Company Leased Real\n                                                          -------------------  \nProperty\").\n--------\n\n     (b)  Status of Leases. All leases of the Company Leased Real Property are\nidentified in Section 4.18(b) of the Company Disclosure Letter, and true and\n              --------------- \ncomplete copies thereof have been delivered to Parent. Each of said leases has\nbeen duly authorized and executed by the Company or the Company Subsidiary party\nthereto, is in full force and effect and constitutes the legal, valid and\nbinding obligation of the Company or the Company Subsidiary party thereto, and\nis enforceable in accordance with its respective terms. The Company or the\nCompany Subsidiary party thereto has not received notice of any default under\nany of said leases, nor has any event occurred which, with notice or the passage\nof time, or both, would give rise to such a default. To the knowledge of the\nCompany, the other party to each of said leases is not in default under any of\nsaid leases and there is no event which, with notice or the passage of time, or\nboth, would give rise to such a default.\n\n     (c)  Condition of Real Property. Except as set forth in Section 4.18(c) of\n                                                             ---------------    \nthe Company Disclosure Letter, all premises constituting a part of the Company\nLeased Real Property are in good operating condition and repair, have been well\nmaintained and there are no material defects in the physical condition of any\nland, buildings or improvements constituting part of the Company Leased Real\nProperty.\n\n     SECTION 4.19 Insurance. No notice of cancellation or termination has been\nreceived by the Company or any Company Subsidiary with respect to any insurance\npolicy. The Company and each Company Subsidiary carry insurance in amounts and\ntypes of coverage which are adequate and customary in the industry and against\nrisks and losses which are usually insured against by Persons holding or\noperating similar properties and similar businesses. No claims have been\nasserted by the Company or any Company Subsidiary under any of the insurance\npolicies of the Company or any Company Subsidiary or relating to their\nproperties, assets or operations. Each such insurance policy shall continue to\nbe in full force and effect following consummation of the Transactions.\n\n     SECTION 4.20 Compensation. Section 4.20 of the Company Disclosure Letter\n                                ------------   \nconstitutes a full and complete list of each director, officer or employee of\nthe Company or any Company Subsidiary whose total compensation from the Company\nor the Company Subsidiaries on an annualized basis exceeds $100,000 specifying\ntheir names and job designations, the total compensation paid or payable, the\nbasis of such compensation, whether fixed or commission or a combination\nthereof, and their current rate of pay. Except as otherwise disclosed in Section\n                                                                         -------\n4.20 of the Company Disclosure Letter, since December 31, 2000 there has been no\n----\nmaterial change in compensation, by means of wages, salaries, bonuses,\ngratuities or otherwise, to any such director, officer or employee of the\nCompany or any Company Subsidiary or any change in compensation, either material\nin amount or other than in the ordinary and usual course of business, to any\nother director, officer or employee of the Company or any Company Subsidiary.\n\n                                      31\n\n \nSECTION 4.21 Privacy. The Company and each Company Subsidiary uses, and since\nDecember 31, 1999 has always used, commercially reasonable efforts to comply\nwith its then-current privacy policy, including, without limitation, those\nposted on Company's and each Company Subsidiary's web site(s). The Company and\neach Company Subsidiary has conducted their respective businesses and used\ncommercially reasonable efforts to maintain its data at all times in accordance\nwith (i) the standards promulgated by the Online Privacy Alliance, (ii) the\nstandards promulgated by the Direct Marketing Association, and (iii) all\nApplicable Laws, including, without limitation, those relating to the use of\ninformation collected from or about consumers. The Company and each Company\nSubsidiary are, and have always been, in compliance with their respective\ncustomers' privacy policies, when required to do so by Contract.\n\nSECTION 4.22 Receivables. Except for Receivables (as defined below) that are\nreserved for and properly reflected on the Financial Statements, all receivables\nof the Company and the Company Subsidiaries that are reflected on the most\nrecently filed Company SEC Documents as of the Closing Date (collectively, the\n\"Receivables\") represent or will represent valid obligations arising from\n -----------\ntransactions actually made or services actually performed in the ordinary and\nusual course of business. Subject to such reserves and offsets for offsetting\ncurrent liability balances for the same customer, each of the Receivables either\nhas been collected in full, or will be collected in full, without any discount,\nwithin 90 days after the day at which it first becomes due and payable in full.\nThere is no contest, claim or right of set-off, other than returns in the\nordinary and usual course of business, under any Contract with any obligor of\nany Receivables relating to the amount or validity of such Receivables.\n\nSECTION 4.23 Copies of Certain Documents. The Company has previously made\navailable to the Parent true and complete copies of: (i) all Contracts entered\ninto by the Company or any Company Subsidiary, if any, providing for any\nacquisition or disposition of any businesses or products of any Person or the\nCompany or any Company Subsidiary; and (ii) a complete list of all investments\nof the Company and the Company Subsidiaries, if any, in marketable or other\nsecurities (whether debt or equity) for investments made in the twelve months\nprior to the date hereof.\n\nSECTION 4.24 Underlying Documents. All documents listed or described in the\nCompany Disclosure Letter referred to in this Agreement have previously been\nfurnished or made available to Parent or its representatives.\n\nSECTION 4.25 Brokers; Fees and Expenses.\n\n     (a)  No broker, investment banker, financial advisor or other Person, other\nthan Robertson Stephens, Inc., the fees and expenses of which will be paid by\nthe Company, is entitled to any broker's, finder's, financial advisor's or other\nsimilar fee or commission in connection with the Offer, the Merger and or any\nother Transaction based upon arrangements made by or on behalf of the Company.\nThe amount of the fees of the Company's counsel, accountants and financial\nadvisors which are payable in connection with the Transactions and the estimated\namount of all other fees and expenses incurred and to be incurred by the Company\nin connection with the Offer, the Merger and the other Transactions are set\nforth and itemized in Section 4.25 of the Company Disclosure Letter. The Company\n                      ------------\nhas furnished to Parent a true and \n\n                                      32\n\n \ncomplete copy of all Contracts between the Company and Robertson Stephens, Inc.\nrelating to the Offer, the Merger and the other Transactions.\n\n                                   ARTICLE V\n\n                Representations and Warranties of Parent and Sub\n\n     Parent and Sub jointly and severally represent and warrant to the Company\nas follows:\n\n     SECTION 5.01 Organization, Standing and Power.\n\n     (a)  Each of Parent and Sub is duly organized, validly existing and in good\nstanding under the laws of the jurisdiction in which it is organized and has all\nrequisite corporate power and authority to conduct its businesses as presently\nconducted, other than such Permits the lack of which, individually or in the\naggregate, has not had and could not reasonably be expected to have a Parent\nMaterial Adverse Effect.\n\n     SECTION 5.02 Sub. Sub is a wholly owned Subsidiary of Parent and, since the\ndate of its incorporation, has not carried on any business or conducted any\noperations other than the execution of the Transaction Agreements to which it is\na party, the performance of its obligations hereunder and thereunder and matters\nancillary thereto.\n\n     SECTION 5.03 Financing. Parent has or has available to it, and will make\navailable to Sub, all funds necessary to consummate all the Transactions and pay\nthe related fees and expenses of Parent and Sub.\n\n     SECTION 5.04 Ownership of Company Common Stock. Except for the transactions\ncontemplated by the Stock Option and Tender Agreements, as of the date of this\nAgreement, neither Parent nor Sub beneficially owns any Company Common Stock.\n\n     SECTION 5.05 Authorization; Validity of Agreement; Necessary Action. Each\nof Parent and Sub has full corporate power and authority to execute and deliver\neach Transaction Agreement to which it is a party and each agreement, document\nand instrument to be executed and delivered by or on behalf of Parent and\/or\nSub, as the case may be, pursuant to or in connection with the Transaction\nAgreements and to consummate the Transactions. The Board of Directors of Sub\n(the \"Sub Board\") has adopted a resolution approving this Agreement. The\n      ---------\nexecution, delivery and performance by Parent and Sub of this Agreement and the\nTransaction Agreements to which either is a party and the consummation of the\nTransactions have been duly authorized by the Board of Directors of Parent (the\n\"Parent Board\") and the Sub Board and by Parent as the sole stockholder of Sub\n ------------\nand, except as set forth in the Section 5.05 of the Parent Disclosure Letter, no\n                                ------------\nother corporate action on the part of Parent or Sub or any other Person is\nnecessary to authorize the execution and delivery by Parent and Sub of this\nAgreement, any Transaction Agreement or the consummation of the Transactions.\nThis Agreement, assuming due and valid authorization, execution and delivery\nthereof by the Company, constitutes, and when executed and delivered by the\nParent and\/or Sub, as the case may be, each other Transaction Agreement will\nconstitute, legal, valid and binding obligations of each of Parent and Sub, as\nthe case may be, enforceable against each of them in accordance with its terms,\nexcept to the extent that enforceability may be limited by applicable\nbankruptcy, insolvency, moratorium \n\n                                      33\n\n \nor other similar laws affecting the enforcement of creditors' rights generally\nand subject to general principles of equity.\n\n     SECTION 5.06 No Conflicts; Consents. The execution and delivery by each of\nParent and Sub of each Transaction Agreement to which it is a party, do not, and\nthe consummation of the Offer, the Merger and the other Transactions and\ncompliance with the terms hereof and thereof will not, conflict with, or result\nin any violation of or default (with or without notice or lapse of time, or\nboth) under any provision of (i) the charter or organizational documents of\nParent or Sub, (ii) any material Contract to which Parent or Sub is a party or\nby which any of their respective properties or assets is bound or (iii) subject\nto the filings and other matters referred to in the following sentence, any\nOrder or Applicable Law applicable to Parent or Sub or their respective\nproperties or assets, other than, in the case of clauses (ii) and (iii) above,\n                                                 ------------     -----\nany such items that, individually or in the aggregate, have not had and could\nnot reasonably be expected to have a Parent Material Adverse Effect. No Consent\nof, or registration, declaration or filing with, any Governmental Entity is\nrequired to be obtained or made by or with respect to Parent or Sub in\nconnection with the execution, delivery and performance of any Transaction\nAgreement to which Parent or Sub is a party or the consummation of the\nTransactions, other than (A) compliance with and filings under the HSR Act, (B)\nthe filing with the SEC of (x) the Offer Documents and (y) such reports under\nSections 13 and 16 of the Exchange Act as may be required in connection with\nthis Agreement and the other Transaction Agreements, the Offer, the Merger and\nthe other Transactions, (C) the filing of the Certificate of Merger with the\nSecretary of State of the State of Delaware, (D) such filings as may be required\nin connection with the taxes described in Section 7.08 and (E) such other items\n                                          ------------\nas are set forth in Section 5.06 of the Parent Disclosure Letter.\n                    ------------       \n\n     SECTION 5.07 Information Supplied. None of the information supplied or to\nbe supplied in writing by Parent or Sub for inclusion or incorporation by\nreference in (i) Offer Documents or the Schedule 14D-9 will, at the time such\ndocument is filed with the SEC, at any time it is amended or supplemented or at\nthe time it is first published, sent or given to the Company's stockholders,\ncontain any untrue statement of a material fact or omit to state any material\nfact required to be stated therein or necessary to make the statements therein,\nin light of the circumstances under which they are made, not misleading, or (ii)\nthe Proxy Statement will, at the date it is first mailed to the Company's\nstockholders or at the time of the Company Stockholders Meeting, contain any\nuntrue statement of a material fact or omit to state any material fact required\nto be stated therein or necessary in order to make the statements therein, in\nlight of the circumstances under which they are made, not misleading. The Offer\nDocuments will comply as to form in all material respects with the requirements\nof the Exchange Act and the rules and regulations thereunder, except that no\nrepresentation is made by Parent or Sub with respect to statements made or\nincorporated by reference therein based on information supplied by the Company\nfor inclusion or incorporation by reference therein.\n\n     SECTION 5.08 Brokers. Neither Parent nor Sub has entered into any contract,\nagreement, arrangement or understanding with any Person which may result in the\nobligation of Parent or Sub to pay any finder's fees, brokerage or agent's\ncommission or other like payments in connection with the negotiations leading to\nthe Transaction Agreements or consummation of the Transactions. Parent is not\naware of any claim for payment of any finder's fees, brokerage or \n\n                                      34\n\n \nagent's commissions or other like payments against Parent or Sub in connection\nwith the negotiations leading to the Transaction Agreements or consummation of\nthe Transactions.\n\n     SECTION 5.09 Litigation. As of the date of this Agreement, there are no\nProceedings pending or, to the knowledge of Parent, threatened against Parent or\nSub which may call into question the validity or hinder the enforceability or\nperformance of this Agreement or any of the Transaction Agreements.\n\n                                  ARTICLE VI\n\n                   Covenants Relating to Conduct of Business\n\n     SECTION 6.01 Conduct of Business.\n\n     (a)  Conduct of Business by the Company. Except for matters (i) expressly\npermitted by the Transaction Agreements, (ii) specifically identified in Section\n                                                                         -------\n6.01 of the Company Disclosure Letter, or (iii) taken with Parent's prior\n----\nwritten consent, from the date of this Agreement to the Effective Time the\nCompany shall, and shall cause each Company Subsidiary to, conduct its\noperations in the ordinary and usual course of business and use its commercially\nreasonable efforts to preserve intact its current business organization, assets\nand properties and keep available the services of its present officers and\nemployees and maintain its existing relationships with customers, suppliers,\nvendors, licensors, licensees, distributors and agents and others having\nbusiness dealings with them. In addition, and without limiting the generality of\nthe foregoing, except for matters expressly permitted by this Agreement, from\nthe date of this Agreement to the Effective Time, the Company shall not, and\nshall not permit any Company Subsidiary to, do any of the following without the\nprior written consent of Parent:\n\n          (i)  (A) declare, set aside or pay any dividends on, or make any other\n     distributions in respect of, any of its capital stock, other than dividends\n     and distributions by a direct or indirect wholly owned subsidiary of the\n     Company to its parent, (B) split, combine or reclassify any of its capital\n     stock or issue or authorize the issuance of any other securities in respect\n     of, in lieu of or in substitution for shares of its capital stock, (C)\n     purchase, redeem or otherwise acquire any shares of capital stock of the\n     Company or any Company Subsidiary or any other securities thereof or any\n     rights, warrants or options to acquire any such shares or other securities\n     or (D) adopt a plan of complete or partial liquidation or resolutions\n     providing for or authorizing such liquidation or a dissolution, merger,\n     consolidation, restructuring, recapitalization or reorganization of the\n     Company or any of the Company Subsidiaries;\n\n          (ii) authorize for issuance, issue, deliver, sell or grant (A) any\n     shares of its capital stock, (B) any Voting Company Debt or other voting\n     securities, (C) any securities convertible into or exchangeable for, or any\n     options, warrants or rights to acquire, any such shares, voting securities\n     or convertible or exchangeable securities or (D) any \"phantom\" stock,\n     \"phantom\" stock rights, stock appreciation rights or stock-based\n     performance units, other than the issuance of Company Common Stock under\n     the ESPP in accordance with this Agreement or upon the exercise of Company\n     Employee Stock \n\n                                      35\n\n \n     Options or Company Warrants outstanding on the date of this Agreement and\n     in accordance with their present terms;\n\n          (iii)   amend its certificate of incorporation, by-laws or other\n     comparable charter or organizational documents;\n\n          (iv)    acquire or agree to acquire (A) by merging or consolidating\n     with, or by purchasing a substantial portion of the stock or assets of, or\n     by any other manner, any business or any Person or division thereof or (B)\n     any assets outside the ordinary and usual course of business;\n\n          (v)     (A) grant to any present or former employee, officer or\n     director of the Company or any Company Subsidiary any increase in\n     compensation or fringe benefits, except for increases in salary for current\n     non-officer employees in the ordinary and usual course of business, (B)\n     grant to any present or former employee, officer or director of the Company\n     or any Company Subsidiary any increase in severance or termination pay, (C)\n     other than entering into employment agreements with employees of the\n     Company approved in advance by Parent in the ordinary and usual course of\n     business, enter into or amend any employment, consulting, indemnification,\n     severance or termination agreement with any such present or former\n     employee, officer or director, (D) establish, adopt, enter into or amend in\n     any material respect any Company Plan, (E) except as permitted or required\n     under Section 7.04 or Section 7.05, take any action to accelerate any\n           ------------    ------------    \n     rights or benefits, or make any material determinations not in the ordinary\n     and usual course of business, under any Company Plan, (F) loan or advance\n     money or other property to any present or former employees, officers or\n     directors of the Company or (G) except as permitted or required under\n     Section 7.04 or Section 7.05, grant any new, or amend any existing, Company\n     ------------    ------------\n     Employee Stock Option or enter into any agreement under which any Company\n     Employee Stock Option would be required to be issued;\n\n          (vi)    make any change in accounting methods, principles or practices\n     affecting the reported consolidated assets, liabilities or results of\n     operations of the Company, except insofar as may have been required by a\n     change in GAAP;\n\n          (vii)   sell, lease, license or otherwise dispose of or permit to\n     become subject to any Lien, other than a Permitted Lien, any properties or\n     assets, tangible or intangible;\n\n          (viii)  (A) incur any Indebtedness or guarantee any Indebtedness of\n     another Person, issue or sell any debt securities or warrants or other\n     rights to acquire any debt securities of the Company or any Company\n     Subsidiary, guarantee any debt securities of another Person, enter into any\n     \"keep well,\" support or other agreement to maintain any financial statement\n     condition of another Person or enter into any arrangement having the\n     economic effect of any of the foregoing, except for short-term borrowings\n     incurred in the ordinary and usual course of business, or (B) make any\n     loans, advances or capital contributions to, or investments in, any other\n     Person, other than to or in the Company or any direct or indirect wholly\n     owned subsidiary of the Company or to customers of the Company or a Company\n     Subsidiary in the ordinary and usual course of business;\n\n                                      36\n\n \n          (ix)    make or agree to make any new capital expenditure or\n     expenditures that, individually, is in excess of $150,000 or, in the\n     aggregate, are in excess of $500,000;\n\n          (x)     make any Tax election or settle or compromise any Tax\n     liability or refund;\n\n          (xi)    (A) pay, discharge or satisfy any claims, liabilities or\nobligations (absolute, accrued, asserted or unasserted, contingent or\notherwise), other than the payment, discharge or satisfaction, in the ordinary\nand usual course of business or in accordance with their terms, of liabilities\nreflected or reserved against in the most recent consolidated financial\nstatements of the Company included in the Filed SEC Documents or incurred in the\nordinary and usual course of business, (B) cancel any material Indebtedness\n(individually or in the aggregate) or waive any claims or rights of substantial\nvalue or (C) waive the benefits of, or agree to modify in any manner, any\nconfidentiality, standstill or similar agreement to which the Company or any\nCompany Subsidiary is a party;\n\n          (xii)   (A) amend any Material Contract or Contract providing for\n     payments or otherwise involving amounts in excess of $150,000 or, except in\n     the ordinary and usual course of business, enter into any Material\n     Contract, (B) waive, release or assign any material right or claim, or (C)\n     license any Material Intellectual Property Right to or from any third\n     party;\n\n          (xiii)  initiate, compromise or settle any Proceeding;\n\n          (xiv)   close any facility or office; or\n\n          (xv)    authorize any of, or commit or agree to take any of, the\n                  foregoing actions.\n\n     (b)  Other Actions. The Company shall not, and shall not permit any Company\nSubsi diary to, take any action that would, or that could reasonably be expected\nto, result in (i) any of the representations and warranties of the Company set\nforth in any Transaction Agreement becoming untrue or (ii) any condition to the\nOffer set forth in Exhibit A or any condition to the Merger set forth in Article\n                   ---------                                             -------\nVIII not being satisfied.\n----\n\n     (c)  Advice of Changes.\n\n          (i)     The Company shall promptly advise Parent orally and in writing\n     of any change or event having, or which, insofar as can reasonably be\n     foreseen, would have, a Company Material Adverse Effect.\n\n          (ii)    After the date hereof, the Company shall have the continuing\n         obligation promptly to inform Parent in writing, and shall use its\n         reasonable best efforts to prevent, or promptly remedy (i) any matter\n         hereafter arising or discovered which would have been required to be\n         set forth or described in the Company Disclosure Letter or would have\n         been required to be taken as an exception to any representation or\n         warranty of the Company in order for the representations and warranties\n         of the Company to be true and correct at and as of the times such\n         representations and warranties are required to be true and correct in\n         accordance with this Agreement or (ii) the failure by it to comply with\n         or \n\n                                      37\n\n \n     satisfy in any material respect any covenant, condition or agreement to be\n     complied with or satisfied by it under any Transaction Agreement; provided,\n                                                                       --------\n     however, that no such notification supplied to Parent shall be deemed to\n     -------\n     amend or supplement the Company Disclosure Letter or to correct or cure any\n     breach of any representations, warranties, covenants, agreements or\n     conditions of the Company made under any Transaction Agreement.\n\n     SECTION 6.02  No Solicitation.\n\n     (a)  From the date of this Agreement until the earlier of the Effective\nTime or the termination of this Agreement, the Company and the Company\nSubsidiaries shall not (and the Company will not permit any of its or any of its\nCompany Subsidiaries' officers, directors or employees or any investment banker,\nfinancial advisor, attorney, accountant or other representative retained by it\nor any of its Subsidiaries to), directly or indirectly, (i) solicit, encourage,\nengage in discussions or negotiate with any Person (whether such discussions or\nnegotiations are initiated by the Company or otherwise) or take any other action\nintended or designed to facilitate any inquiry or effort of any Person (other\nthan Parent) relating to any possible acquisition of the Company (whether by way\nof merger, purchase of capital stock, purchase of assets or otherwise) or any\nmaterial portion of its capital stock or assets (with any such efforts by any\nsuch Person, including a firm proposal to make such an acquisition, to be\nreferred to as an \"Alternative Acquisition\"), (ii) provide information with\n                   -----------------------\nrespect to the Company to any Person, other than Parent, relating to a possible\nAlternative Acquisition by any Person, other than Parent, (iii) enter into an\nagreement with any Person, other than Parent, providing for a possible\nAlternative Acquisition, or (iv) make or authorize any statement, recommendation\nor solicitation in support of any possible Alternative Acquisition by any\nPerson, other than by Parent. Notwithstanding the foregoing, prior to the\nacceptance for payment of Company Common Stock pursuant to, and subject to the\nconditions of, the Offer, the Company Board (or any committee thereof) may, to\nthe extent required by the fiduciary obligations of the Company Board under\nDelaware law, as determined in good faith by the Company Board (or any committee\nthereof), in response to a proposal for an Alternative Acquisition (\"Alternative\n                                                                     -----------\nAcquisition Proposal\") that the Company Board (or any committee thereof)\n--------------------\ndetermines, in good faith after consultation with independent counsel and an\nindependent financial advisor, is or is reasonably likely to result in a\nSuperior Company Proposal (as defined in Section 6.02(e)), that was not\n                                         ----------------\nsolicited by the Company and that did not otherwise result from a breach of this\nSection 6.02(a) and subject to providing prior written notice of its decision to\n---------------\ntake such action to Parent, (x) furnish information with respect to the Company\nto the Person making such Alternative Acquisition Proposal and its\nrepresentatives pursuant to a confidentiality agreement with terms not\nmaterially more favorable to the Person making the Alternative Acquisition\nProposal than those applicable to Parent under the Confidentiality Agreement and\n(y) participate in discussions and negotiations with such Person and its\nrepresentatives to the extent required by the fiduciary duties of the Company\nBoard regarding such Alternative Acquisition Proposal. The Company shall, and\nshall cause its representatives to, cease immediately all discussions and\nnegotiations that may have occurred prior to the date of this Agreement\nregarding any proposal that constitutes, or may reasonably be expected to lead\nto, an Alternative Acquisition Proposal. For purposes of this Section 6.02 and\n                                                              -------------\nSection 9.02(b)(ii), the term \"Person\" shall include any \"group\" as defined in\n-------------------\nSection 13(a)(3) of the Exchange Act. Without limiting the foregoing, it is\n----------------\nunderstood that any violation of the restrictions set forth in this Section 6.02\n                                                                    ------------\nby any director, \n\n                                      38\n\n \nofficer or employee of the Company or any of its subsidiaries or any investment\nbanker, financial advisor, attorney, accountant or other representative of the\nCompany or any Company Subsidiary shall be deemed to be a breach of this Section\n                                                                         -------\n6.02 by the Company.\n----\n\n     (b)  Neither the Company Board nor any committee thereof shall (i) withdraw\nor modify, or propose to withdraw or modify, in a manner adverse to Parent or\nSub, the approval or recommendation by the Company Board or any such committee\nof this Agreement, the Offer or the Merger, (ii) approve or cause or permit the\nCompany to enter into any letter of intent, agreement in principle, definitive\nagreement or similar agreement constituting or relating to, or which is intended\nto or is reasonably likely to lead to any Alternative Acquisition Proposal,\n(iii) approve or recommend, or propose to approve or recommend, any Alternative\nAcquisition Proposal or (iv) agree or resolve to take actions set forth in\nclauses (i), (ii) or (iii) of this sentence. Notwithstanding the foregoing, if,\n-----------  ----    ----- \nduring the period prior to the acceptance for payment of the Company Common\nStock pursuant to the Offer, the Company Board receives a Superior Company\nProposal and the Company Board determines, in good faith after consultation with\nindependent counsel, that it is necessary to do so in order to comply with its\nfiduciary obligations under Delaware law, the Company Board may, during such\nperiod, in response to a Superior Company Proposal that was unsolicited and did\nnot otherwise result from a breach of Section 6.02(a), withdraw or modify its\n                                      ---------------\napproval or recommendation of the Offer, the Merger and this Agreement and, in\nconnection therewith, approve or recommend such Superior Company Proposal.\n\n     (c)  The Company promptly, and in any event within 24 hours, shall advise\nParent orally and in writing of any Alternative Acquisition Proposal or any\ninquiry with respect to or that could lead to any Alternative Acquisition\nProposal, the identity of the Person making any such Alternative Acquisition\nProposal or inquiry and the material terms of any such Alternative Acquisition\nProposal or inquiry. The Company shall (i) keep Parent reasonably informed of\nthe status, including any change to the details, of any such Alternative\nAcquisition Proposal or inquiry and (ii) provide to Parent as soon as\npracticable after receipt or delivery thereof with copies of all material\ncorrespondence and other written material sent or provided to the Company from\nany third party in connection with any Alternative Acquisition Proposal or sent\nor provided by the Company to any third party in connection with any Alternative\nAcquisition Proposal.\n\n     (d)  Nothing contained in this Section 6.02 shall prohibit the Company from\n                                    ------------\ntaking and disclosing to its stockholders a position contemplated by Rule\n14e-2(a) promulgated under the Exchange Act or from making any required\ndisclosure to the Company's stockholders if, in the good faith judgment of the\nCompany Board after consultation with independent counsel, failure so to\ndisclose could be inconsistent with its obligations under Applicable Law.\nNotwithstanding the foregoing, except as set forth in Section 6.02(b), in no\n                                                      ---------------\nevent shall the Company Board or any committee thereof withdraw or modify, or\npropose to withdraw or modify its position with respect to this Agreement, the\nOffer or the Merger or adopt, approve or recommend, or propose to adopt, approve\nor recommend any Alternative Acquisition Proposal.\n\n     (e)  For purposes of this Agreement, \"Superior Company Proposal\" means any\n                                           -------------------------\nproposal made by a third party to acquire all or substantially all the equity\nsecurities or assets of the Company, or other transaction for the acquisition of\nall or substantially all the equity securities or assets of the Company through\na tender or exchange offer, a merger, a \n\n                                      39\n\n \nconsolidation, a liquidation or dissolution, a recapitalization, a sale or a\njoint venture, (i) that is not subject to a financing contingency, (ii) that is\non terms which the Company Board determines in its good faith judgment (after\nconsultation with an independent financial adviser, with only customary\nqualifications, and independent legal counsel) to be superior for the holders of\nthe Company Common Stock, from a financial point of view, to the Offer and the\nMerger, taking into account all the terms and conditions of such proposal and\nthis Agreement (including any proposal made by Parent to amend the terms of this\nAgreement, the Offer and the Merger) taking into account the likelihood of\nconsummation in light of all financial, regulatory, legal and other aspects of\nsuch proposal (including, without limitation, any antitrust or competition law\napprovals or non-objections).\n\n     (f)  The Company and the Company Board shall not (i) redeem the Company\nRights under the Company Rights Agreement, or (ii) waive or amend any provision\nof the Company Rights Agreement, in any such case to permit or facilitate the\nconsummation of any Alternative Acquisition Proposal, unless this Agreement has\nbeen terminated in accordance with its terms.\n\n                                  ARTICLE VII\n\n                             Additional Agreements\n\n     SECTION 7.01 Preparation of Proxy Statement; Stockholders Meeting.\n\n     (a)  If the approval of this Agreement by the Company's stockholders is\nrequired by Applicable Law, the Company shall, as soon as practicable following\nthe expiration of the Offer, prepare in accordance with the rules and\nregulations of the SEC and file with the SEC the Proxy Statement in preliminary\nform, and each of the Company and Parent shall use its reasonable best efforts\nto respond as promptly as practicable to any comments of the SEC with respect\nthereto. The Company shall notify Parent promptly of the receipt of any comments\nfrom the SEC or its staff and of any request by the SEC or its staff for\namendments or supplements to the Proxy Statement or for additional information\nand shall supply Parent with copies of all correspondence between the Company or\nany of its representatives, on the one hand, and the SEC or its staff, on the\nother hand, with respect to the Proxy Statement. If at any time prior to receipt\nof Company Stockholder Approval there shall occur any event that should be set\nforth in an amendment or supplement to the Proxy Statement, the Company shall\npromptly prepare and mail to its stockholders such an amendment or supplement.\nThe Company shall not mail any Proxy Statement, or any amendment or supplement\nthereto, to which Parent reasonably objects. The Company shall use its\nreasonable best efforts to cause the Proxy Statement to be mailed to the\nCompany's stockholders as promptly as practicable after filing with the SEC.\n\n     (b)  If the approval of this Agreement by the Company's stockholders is\nrequired by Applicable Law, the Company shall, as soon as practicable following\nthe expiration of the Offer, duly call, give notice of, convene and hold the\nCompany Stockholders Meeting for the purpose of seeking Company Stockholder\nApproval. The Company shall, through the Company Board, recommend to its\nstockholders that they approve this Agreement and the Merger, except to the\nextent that the Company Board shall have withdrawn or modified its approval or\nrecommendation of this Agreement, the Offer or the Merger as permitted by\nSection 6.02(b). Notwithstanding the foregoing, if Sub or any other Subsidiary\n---------------\nof Parent shall acquire at least \n\n                                      40\n\n \n90% of the outstanding shares of Company Common Stock, the parties shall, at the\nrequest of Parent, take all necessary and appropriate action to cause the Merger\nto become effective as soon as practicable after the expiration of the Offer\nwithout a stockholders meeting in accordance with Section 253 of the DGCL.\n\n     (c)  Parent shall cause all shares of Company Common Stock purchased\npursuant to the Offer and all other shares of Company Common Stock owned by Sub\nor any other Subsidiary of Parent to be voted in favor of the approval of this\nAgreement and the Merger.\n\n     SECTION 7.02 Access to Information; Confidentiality.\n\n     (a)  The Company shall, and shall cause each of the Company Subsidiaries\nto, afford to Parent, and to Parent's officers, employees, accountants, counsel,\nfinancial advisers and other representatives, reasonable access during normal\nbusiness hours during the period prior to the Effective Time to all their\nrespective properties, books, Contracts, commitments, personnel and records and,\nduring such period, the Company shall, and shall cause each of the Company\nSubsidiaries to, furnish promptly to Parent (i) a copy of each report, schedule,\nregistration statement and other document filed by it during such period\npursuant to the requirements of Federal or state securities laws and (ii) all\nother information concerning its business, properties and personnel as Parent\nmay reasonably request. Without limiting the generality of the foregoing, the\nCompany shall, within two business days of request therefor, provide to Parent\nthe information described in Rule 14a-7(a)(2)(ii) under the Exchange Act and any\ninformation to which a holder of Company Common Stock would be entitled under\nSection 220 of the DGCL (assuming such holder met the requirements of such\nsection). All information exchanged pursuant to this Section 7.02 shall be\n                                                     ------------\nsubject to the Confidentiality Agreement and the Confidentiality Agreement shall\nremain in full force and effect in accordance with its terms.\n\n     (b)  Except as otherwise provided in the Confidentiality Agreement, prior\nto the Effective Time and after any termination of this Agreement, each party\nhereto will hold, and will use its best efforts to cause its officers,\ndirectors, employees, accountants, counsel, consultants, advisors and agents to\nhold, in confidence, unless compelled to disclose by judicial or administrative\nprocess or by other requirements of Applicable Law, all confidential documents\nand information concerning other parties hereto furnished to it or its\nAffiliates in connection with the Transactions, except to the extent that such\ninformation can be shown to have been (i) previously known on a nonconfidential\nbasis by such party, (ii) in the public domain through no fault of such party or\n(iii) later lawfully acquired by such party from sources other than other\nparties to this Agreement; provided that each party may disclose such\n                           --------\ninformation to its Parent and the Company shall be responsible for a breach of\nthis Section 7.02(b) by any of their respective officers, directors, employees,\naccountants, counsel, consultants, representatives, advisors and agents.\nofficers, directors, employees, accountants, counsel, consultants,\nrepresentatives, advisors and agents in connection with the Transactions so long\nas such party informs such Persons of the confidential nature of such\ninformation and directs them to treat it confidentially. Each party shall\nsatisfy its obligation to hold any such information in confidence if it\nexercises the same care with respect to such information as it would take to\npreserve the confidentiality of its own similar information. If this Agreement\nis terminated, each party will, and will use its best efforts to cause its\nofficers, directors, employees, accountants, counsel, consultants,\nrepresentatives, advisors and agents to, destroy or deliver to the other party,\nupon request, all documents and other materials, and all copies thereof, that it\nor its Affiliates obtained, or that were obtained on their behalf, from the\nother party in connection with this Agreement and that are subject to such\nconfidence. Each of\n\n                                      41\n\n \nParent and the Company shall be responsible for a breach of this Section 7.02(b)\n                                                                 ---------------\nby any of their respective officers, directors, employees, accountants, counsel,\nconsultants, representatives, advisors and agents.\n\n     SECTION 7.03      Commercially Reasonable Efforts; Notification.\n\n     (a)  Upon the terms and subject to the conditions set forth in this\nAgreement, each of the parties shall use their respective commercially\nreasonable efforts to take, or cause to be taken, all actions, and to do, or\ncause to be done, and to assist and cooperate with the other parties in doing,\nall things necessary, proper or advisable to consummate and make effective, in\nthe most expeditious manner practicable, the Offer, the Merger and the other\nTransactions, including (i) the obtaining of all necessary actions or\nnonactions, waivers, consents and approvals from Governmental Entities and the\nmaking of all necessary registrations and filings and the taking of all\nreasonable steps as may be necessary to obtain any necessary approval or waiver\nfrom, or to avoid an action or proceeding by, any Governmental Entity,\nincluding, without limitation, under the HSR Act, (ii) the obtaining of all\nnecessary consents, approvals or waivers from third parties, (iii) the defending\nof any lawsuits or other legal proceedings, whether judicial or administrative,\nchallenging this Agreement or any other Transaction Agreement or the\nconsummation of the Transactions, including seeking to have any stay or\ntemporary restraining order entered by any court or other Governmental Entity\nvacated or reversed and (iv) the execution and delivery of any additional\ninstruments necessary to consummate the Transactions and to fully carry out the\npurposes of the Transaction Agreements. In connection with and without limiting\nthe foregoing, the Company and the Company Board shall (A) take all commercially\nreasonable action necessary to ensure that no state takeover statute or similar\nstatute or regulation is or becomes applicable to any Transaction or this\nAgreement or any other Transaction Agreement, and (B) if any state takeover\nstatute or similar statute or regulation becomes applicable to this Agreement or\nany other Transaction Agreement, take all commercially reasonable action\nnecessary to ensure that the Offer, the Merger and the other Transactions may be\nconsummated as promptly as practicable on the terms contemplated by the\nTransaction Agreements and otherwise to minimize the effect of such statute or\nregulation on the Offer, the Merger and the other Transactions.\n\n     (b)  Notwithstanding anything to the contrary in this Agreement, (i) the\nCompany shall not, without Parent's prior written consent, commit to any\ndivestitures, licenses, hold separate arrangements or similar matters,\nincluding, without limitation, covenants affecting business operating practices\n(or allow its Subsidiaries to commit to any divestitures, licenses, hold\nseparate arrangements or similar matters), and the Company shall commit to, and\nshall use its reasonable best efforts to effect (and shall cause its\nSubsidiaries to commit to and use their reasonable best efforts to effect), any\nsuch divestitures, licenses, hold separate arrangements or similar matters as\nParent shall request, but solely if such divestitures, licenses, hold separate\narrangements or similar matters are contingent on consummation of the Offer and\n(ii) neither Parent nor any of its Subsidiaries shall be required to agree (with\nrespect to (A) Parent or its Subsidiaries or (B) the Company or its\nSubsidiaries) to any divestitures, licenses, hold separate arrangements or\nsimilar matters, including, without limitation, covenants affecting business\noperating practices.\n\n                                      42\n\n \n     (c)  The Company and Parent each shall keep the other apprised of the\nstatus of matters relating to completion of the transactions contemplated by the\nTransaction Agreements, including promptly furnishing the other with copies of\nnotice or other communications received by Parent or the Company, as the case\nmay be, or any of its Subsidiaries, from any Governmental Entity with respect to\nTransactions.\n\n     SECTION 7.04   Company Employee Stock Options and Company Warrants.\n\n     (a)  As soon as practicable following the date of this Agreement, the\nCompany Board (or, if appropriate, any committee administering the Company\nOption Plans) shall adopt, or shall cause to be adopted, such resolutions or\ntake, or cause to be taken, all such other actions as are required to adjust the\nterms of all outstanding Company Employee Stock Options heretofore granted under\nany Company Option Plan or otherwise, to provide that each Company Employee\nStock Option outstanding immediately prior to the Effective Time, to the extent\nthen vested and exercisable in accordance with its terms, shall be canceled as\nof the Effective Time in exchange for a cash payment by the Company to be made\non the date following the Effective Time (or as soon as practicable thereafter)\nof an amount equal to (i) the excess, if any, of (A) the price per share of\nCompany Common Stock to be paid pursuant to the Offer over (B) the exercise\nprice per share of Company Common Stock subject to such Company Employee Stock\nOption, multiplied by (ii) the number of shares of Company Common Stock for\nwhich such Company Employee Stock Option shall not theretofore have been\nexercised. Any Company Employee Stock Option for which the calculation in the\npreceding sentence results in an amount equal to zero or a negative amount shall\nbe canceled as of the Effective Time in exchange for a cash payment equal to\nzero.\n\n     (b)  As soon as practicable after the date of this Agreement, the Company\nBoard (or, if appropriate, the committee administering the Company 1999 Stock\nPlan) shall adopt, or shall cause to be adopted, such resolutions or take, or\ncause to be taken, all such other actions as are required to adjust the terms of\nall outstanding Company Employee Stock Options heretofore granted under the\nCompany 1999 Stock Plan to provide that such options which are held by\nindividuals who are employed by the Company as of the Effective Time will become\nfully vested as of the Effective Time to the extent that such Company Employee\nStock Options would have become vested in accordance with the provisions of\nSection 12(c) of the Company 1999 Stock Plan had the optionholder's employment\nwith the Company been Constructively Terminated (as defined in the Company 1999\nStock Plan) as of the Effective Time. Any Company Employee Stock Options which\nbecome vested pursuant to this paragraph (b) shall be canceled as of the\n                               -------------\nEffective Time in exchange for a cash payment by the Company in accordance with\nthe provisions of paragraph (a).\n                  -------------\n\n     (c)  Prior to the Effective Time, the Company Board (or, if appropriate,\nany committee administering the Company Option Plans) shall take all actions as\nare required to cause each Company Employee Stock Options which are not vested\nas of the Effective Time to be cancelled as of the Effective Time.\n\n     (d)  All amounts payable pursuant to this Section 7.04 shall be subject to\n                                               ------------   \nany required withholding of Taxes and shall be paid without interest. The\nCompany shall use its reasonable best efforts to obtain all consents of the\nholders of the Company Employee Stock Options as\n\n                                      43\n\n \nshall be necessary to effectuate the foregoing. Notwithstanding anything to the\ncontrary contained in this Agreement, payment shall, at Parent's request, be\nwithheld in respect of any Company Employee Stock Option until all necessary\nconsents are obtained.\n\n     (e)  The Company Board shall adopt, or shall cause to be adopted, such\nresolutions or take such other actions as are required so that the Company\nOption Plans shall terminate as of the Effective Time, and the provisions in any\nother Company Plan providing for the issuance, transfer or grant of any capital\nstock of the Company or any interest in respect of any capital stock of the\nCompany shall be deleted as of the Effective Time, and to ensure that following\nthe Effective Time no holder of a Company Employee Stock Option or any\nparticipant in any Company Option Plan or other Company Plan shall have any\nright thereunder to acquire any capital stock of the Company or the Surviving\nCorporation.\n\n     (f)  The Company shall as soon as practicable but in no event later than\nthe date the Offer is commenced, provide to each holder of Company Warrants in a\nform reasonably acceptable to Parent the notice contemplated by Section 8 of\neach such holders' respective warrant agreement. All Company Warrants not\nexercised prior to the Effective Time shall be terminated without consideration.\n\n     SECTION 7.05   Employee Stock Purchase Plan. The Company Board (or any\ncommittee thereof) shall take such action as may be necessary or desirable in\nthe reasonable judgment of Parent under the Company's 1999 Employee Stock\nPurchase Plan, as the same may be amended (the \"ESPP\"), to cause the ESPP to be\n                                                ----  \nterminated effective with the Exercise Date occurring on June 30, 2001 pursuant\nto Section 20 of the ESPP.\n\n     SECTION 7.06   Indemnification; D&amp;O Insurance.\n\n     (a)  Parent and Sub agree that all rights to indemnification for acts or\nomissions occurring prior to the Effective Time now existing in favor of the\ncurrent or former directors, officers or employees of the Company and the\nCompany Subsidiaries (each, an \"Indemnified Party\") as provided in their\n                                -----------------   \nrespective certificates of incorporation or by-laws or in any indemnification\nagreement between the Company and any Indemnified Party as in effect immediately\nprior to the date of this Agreement shall survive the Merger and shall continue\nin full force and effect in accordance with their terms for a period of not less\nthan six years from the Effective Time.\n\n     (b)  Parent shall cause to be maintained for a period of six years from the\nEffective Time the Company's current D&amp;O Insurance policy to the extent that it\nprovides coverage for events occurring prior to the Effective Time for all\npersons who are directors and officers of the Company on the date of this\nAgreement, so long as the annual premium therefor would not be in excess of 200%\nof the last annual premium paid prior to the date of this Agreement (such\namount, the \"Maximum Premium\"). Upon request by Parent, the Company shall use\n             ---------------   \nits reasonable best efforts to extend coverage under the Company's D&amp;O Insurance\nby obtaining a six-year \"tail\" policy (provided that the lump sum payment to\npurchase such coverage does not exceed three times the Maximum Premium) and such\n\"tail\" policy shall satisfy Parent's obligations under this Section 7.06(b).\n                                                            ---------------\nParent's obligations under this Section 7.06(b) shall also be satisfied if\n                                ---------------   \nParent's D&amp;O Insurance provides (or is amended to provide) substantially similar\n\n                                      44\n\n \ncoverage for events occurring prior to the Effective Time for persons who are\ndirectors and officers of the Company on the date of this Agreement. If the\nCompany's existing D&amp;O Insurance expires, is terminated or canceled during such\nsix-year period or a \"tail\" policy cannot be purchased on the terms set forth\nabove and Parent cannot or determines not to satisfy its obligations under this\nSection 7.06(b) pursuant to the preceding sentence, Parent shall use reasonable\n---------------\nbest efforts to cause to be obtained as much D&amp;O Insurance as can be obtained\nfor the remainder of such period for an annualized premium not in excess of the\nMaximum Premium, on terms and conditions no less advantageous than the existing\nD&amp;O Insurance. The Company represents to Parent that the last annual premium\npaid prior to the date of this Agreement is not greater than $639,045.\n\n     (c)  If the Surviving Corporation or any of its successors or assigns (i)\nconsolidates 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 Surviving\nCorporation assume the obligations set forth in this Section 7.06.\n                                                     ------------  \n\n     (d)  The provisions of this Section 7.06 are intended to be for the benefit\n                                 ------------\nof, and shall be enforceable by, each Indemnified Party and his or her heirs and\nrepresentatives.\n\n     SECTION 7.07   Public Announcements. Parent and Sub, on the one hand, and\nthe Company, on the other hand, shall consult with each other before issuing,\nand provide each other the opportunity to review and comment upon, any press\nrelease or other public statements with respect to the Offer, the Merger and the\nother Transactions and shall not issue any such press release or make any such\npublic statement prior to such consultation, except as may be required by\nApplicable Law, court process or by obligations pursuant to any listing\nagreement with any national securities exchange.\n\n     SECTION 7.08   Transfer Taxes. Either Sub or the Surviving Corporation\nshall pay all Transfer Taxes, if any, and any penalties or interest with respect\nto the Transfer Taxes, payable in connection with the consummation of the Offer\nor the Merger, and all Stock Transfer Taxes, if any, and any penalties or\ninterest with respect to any such Stock Transfer Taxes. The Company acknowledges\nthat the amount of the Transfer Taxes payable with respect to any shares of\nCompany Common Stock may be withheld by Sub from the amount to be paid pursuant\nto the Offer and the Merger with respect to such shares, unless the date on\nwhich the beneficial owner of such shares acquired beneficial ownership thereof\nis certified to Sub.\n\n     SECTION 7.09   Potential Litigation. The Company shall give Parent the\nopportunity to participate fully in the conduct of the defense or the settlement\nof any litigation against the Company and its directors relating to any\nTransaction. No settlement of any such litigation shall be agreed to without\nParent's prior written consent.\n\n     SECTION 7.10   Other Actions by the Company and Parent. If requested by\nParent prior to the Effective Time, the Company Board shall take all necessary\naction to terminate or redeem all of the outstanding Company Rights and to\nterminate the Company Rights Agreement, effective immediately prior to the\nEffective Time.\n\n                                      45\n\n \n                                 ARTICLE VIII\n\n                             Conditions Precedent\n\n     SECTION 8.01   Conditions to Each Party's Obligation to Effect the Merger.\nThe respective obligation of each party to effect the Merger is subject to the\nsatisfaction or waiver on or prior to the Closing Date of the following\nconditions:\n\n     (a)  Stockholder Approval. If required by Applicable Law, the Company shall\nhave obtained Company Stockholder Approval.\n\n     (b)  Antitrust. The waiting period (and any extension thereof) applicable\nto any of the Transactions under the HSR Act shall have been terminated or shall\nhave expired and any consents, approvals and filings under any foreign antitrust\nlaw, the absence of which would prohibit the consummation of Merger, shall have\nbeen obtained or made.\n\n     (c)  No Injunctions or Restraints. No temporary restraining order,\npreliminary or permanent injunction or other Order issued by any court of\ncompetent jurisdiction or other legal restraint or prohibition preventing or\nimposing any conditions or limitations on the consummation of any of the\nTransactions shall be in effect; provided, however, that each of the parties\n                                 --------  -------  \nshall have used its reasonable best efforts to prevent the entry of any such\ninjunction or other Order and to appeal as promptly as possible any such\ninjunction or other order that may be entered.\n\n     (d)  Acceptance of Shares. Sub shall have accepted shares of Company Common\nStock for payment pursuant to the Offer.\n\n                                  ARTICLE IX\n\n                       Termination, Amendment and Waiver\n\n     SECTION 9.01   Termination. This Agreement may be terminated at any time\nprior to the Effective Time, whether before or after Company Stockholder\nApproval:\n\n     (a)  by mutual written consent of Parent, Sub and the Company;\n\n     (b)  by either Parent or the Company:\n\n          (i)  if the Merger is not consummated on or before September 30, 2001\n     (the \"Outside Date\"), unless the failure to consummate the Merger is the\n           ------------     \n     result of a breach of this Agreement by the party seeking to terminate this\n     Agreement; provided, however, that this Agreement may not be terminated\n                --------  -------    \n     pursuant to this clause (i) if Sub has accepted shares of Company Common\n     Stock for payment pursuant to the Offer;\n\n          (ii) if any Governmental Entity issues an Order or takes any other\n     action permanently enjoining, restraining or otherwise prohibiting the\n     Merger and such Order or other action shall have become final and\n     nonappealable;\n\n                                      46\n\n \n          (iii)  (A) Sub shall have failed to commence the Offer within ten\n     business days following the date of this Agreement or (B) the Offer shall\n     have terminated or expired in accordance with its terms without Sub having\n     purchased any shares of Company Common Stock pursuant to the Offer;\n     provided, however, that the right to terminate this Agreement pursuant to\n     --------  -------\n     this clause (iii) shall not be available to any party whose failure to\n          ------------\n     fulfill any of its obligations under this Agreement or the failure of whose\n     representations and warranties to be true results in the failure of any\n     such condition; or\n\n          (iv)   if, upon a vote at a duly held stockholders meeting to obtain\n     Company Stockholder Approval, Company Stockholder Approval is not obtained.\n\n     (c)  by Parent, if the Company breaches or fails to perform in any material\nrespect any of its representations, warranties, covenants or agreements\ncontained in this Agreement, which breach or failure to perform (i) would give\nrise to the failure of a condition set forth in Exhibit A, and (ii) cannot be or\n                                                ---------  \nhas not been cured within 30 days after the giving of written notice to the\nCompany of such breach (provided that Parent is not then in material breach of\nany representation, warranty or covenant contained in this Agreement); provided,\n                                                                       --------\nhowever, that this Agreement may not be terminated pursuant to this clause (c)\n-------                                                             ----------  \nif Sub has accepted shares of Company Common Stock for payment pursuant to the\nOffer;\n\n     (d)  by Parent:\n\n          (i)    if the Company Board or any committee thereof withdraws or\n     modifies in a manner adverse to Parent its approval or recommendation of\n     the Offer, the Merger or this Agreement or fails to recommend to the\n     Company's stockholders that they accept the Offer or give Company\n     Stockholder Approval, or the Company Board or any committee thereof\n     resolves to take any of the foregoing actions; or\n\n          (ii)   if the Company Board fails to reaffirm publicly and\n     unconditionally its recommendation to the Company's stockholders that they\n     accept the Offer and give Company Stockholder Approval within 10 business\n     days of Parent's written request to do so (which request may be made at any\n     time following public disclosure of an Alternative Acquisition Proposal),\n     which public reaffirmation must also include the unconditional rejection of\n     such Alternative Acquisition Proposal;\n\n     (e)  by the Company prior to the acceptance of shares of Company Common\nStock for payment pursuant to the Offer if, prior to the consummation of the\nOffer, the Company Board shall have finally determined to approve, endorse or\nrecommend an Alternative Acquisition Proposal that constitutes a Superior\nCompany Proposal; provided, however, that the Company may not terminate this\n                  --------  -------\nAgreement pursuant to this Section 9.01(e) unless (i) the Company has complied\n                           --------------\nwith all of its obligations under Section 6.02 in accordance with the terms\n                                  ------------ \nthereof, (ii) at least five business days prior to terminating this Agreement\npursuant to this Section 9.01(e) the Company has provided Parent with written\n                 ---------------\nnotice advising Parent that the Company Board has received a Superior Company\nProposal that it intends to accept, specifying the material terms and conditions\nof such Superior Company Proposal, and identifying the Person making such\nSuperior Company Proposal, (iii) the Company has caused its financial and legal\nadvisors to negotiate in good faith with Parent with respect to any attempt or\nproposal by Parent to make\n\n                                      47\n\n \nsuch adjustments in the financial terms of this Agreement that are equal or\nsuperior to the financial terms of such Superior Company Proposal and the\nCompany and Parent have not agreed upon any such adjustment, and (iv) the\nCompany has paid to (or concurrently pays to) Parent the Termination Fee in\naccordance with this Section 9.01(e) and Section 9.02.; or\n                     ---------------     --------------            \n\n     (f)  by the Company, if Parent or Sub breaches or fails to perform in any\nmaterial respect any of its representations, warranties, covenants or agreements\ncontained in this Agreement, which breach or failure to perform (i) would give\nrise to the failure of a condition set forth in Article VIII and (ii) cannot be\n                                                ------------   \ncured or has not been cured within 30 days after the giving of written notice to\nParent of such breach (provided that Company is not then in material breach of\nany representation, warranty or covenant contained in this Agreement); provided,\n                                                                       --------\nhowever, that this Agreement may not be terminated pursuant to this clause (f)\n-------                                                             ----------\nif Sub has accepted shares of Company Common Stock pursuant to the Offer.\n                                                                      \n\n     SECTION 9.02   Effect of Termination; Fees and Expenses.\n\n     (a)  In the event of termination of this Agreement by either the Company or\nParent as provided in Section 9.01, this Agreement shall forthwith become void\n                      ------------   \nand have no effect, without any liability or obligation on the part of Parent,\nSub or the Company, other than the last sentence of Section 7.02(a), this\n                                                    ---------------\nSection 9.02 and Article X and except to the extent that such termination\n------------     ---------\nresults from the breach by a party of any representation, warranty or covenant\nset forth in this Agreement.\n\n     (b)  The Company shall pay to Parent a fee in an amount equal to $4,500,000\n(the \"Termination Fee\") if:\n      ---------------\n\n          (i)  Parent terminates this Agreement pursuant to Section 9.01(c) or\n                                                            ---------------\n     Section 9.01(d) or the Company terminates this Agreement pursuant to\n     ---------------\n     Section 9.01(e); or\n     ---------------\n\n\n          (ii) (A) after the date of this Agreement, any Person shall have made,\n      or proposed, communicated or disclosed in a manner which is or otherwise\n      becomes public prior to or during the pendency of the Offer (which shall\n      include being known by stockholders of the Company) an intention to make\n      an Alternative Acquisition Proposal, and such proposal shall not have been\n      withdrawn at least five business days prior to the scheduled expiration\n      date of the Offer;\n\n               (B)  this Agreement is terminated pursuant to Sections 9.01(b)(i)\n                                                             -------------------\n          or (b)(iii)(B); and\n             -----------  \n\n               (C)  within 12 months of such termination the Company enters into\n          a letter of intent or agreement in principle for an Alternative\n          Acquisition Proposal or a definitive agreement to consummate an\n          Alternative Acquisition Proposal, or the transactions contemplated by\n          an Alternative Acquisition Proposal are consummated.\n\n               (c)  Parent shall pay to the Company the Termination Fee if the\nCompany terminates this Agreement pursuant to Section 9.01(f).\n                                              ---------------\n\n                                      48\n\n \nExcept for any fee due because of a termination of this Agreement pursuant to\nSection 9.01(c) (but not including a breach of Section 6.02) or Section 9.01(f),\n---------------                                -------------    ---------------\nwhich shall be paid no later than one business day after the date of\ntermination, any fee due under this Section 9.02 shall be paid by wire transfer\n                                    ------------\nof same-day funds on the date of termination of this Agreement (except that in\nthe case of a payment pursuant to clause (ii) above such payment shall be made\n                                  ----------- \non the date of execution of such letter of intent, agreement in principle or\ndefinitive agreement or, if earlier, consummation of such transaction).\n\n     (d)  Except as provided below, all fees and expenses incurred in connection\nwith the Merger and the other Transactions shall be paid by the party incurring\nsuch fees or expenses, whether or not the Merger is consummated; provided,\n                                                                 --------     \nhowever, that Parent and the Company shall share equally the filing fees in\n-------\nconnection with the HSR Act and the filing fees in connection with the Offer\nDocuments.\n\n     (e)  If the Company or Parent shall become obligated to pay the Termination\nFee pursuant to Section 9.02 (it being understood that such obligation shall\n                ------------\narise only if this Agreement is validly terminated pursuant to Section 9.01),\n                                                               -------------  \nsuch Termination Fee shall constitute the exclusive remedy for any breach by the\nCompany or Parent of any of their respective representations, warranties or\ncovenants contained in this Agreement.\n\n     SECTION 9.03   Amendment. This Agreement may be amended by the parties at\nany time before or after receipt of Company Stockholder Approval; provided,\n                                                                  --------\nhowever, that after receipt of Company Stockholder Approval, there shall be made\n-------\nno amendment that by law requires further approval by such stockholders without\nthe further approval of such stockholders. This Agreement may not be amended\nexcept by an instrument in writing signed on behalf of each of the parties.\n\n     SECTION 9.04   Extension; Waiver. At any time prior to the Effective Time,\nthe parties may (i) extend the time for the performance of any of the\nobligations or other acts of the other parties, (ii) waive any inaccuracies in\nthe representations and warranties contained in this Agreement or in any\ndocument delivered pursuant to this Agreement or (iii) subject to the proviso of\nSection 9.03, waive compliance with any of the agreements or conditions\n------------\ncontained in this Agreement. Any agreement on the part of a party to any such\nextension or waiver shall be valid only if set forth in an instrument in writing\nsigned on behalf of such party. The failure of any party to this Agreement to\nassert any of its rights under this Agreement or otherwise shall not constitute\na waiver of such rights.\n\n     SECTION 9.05   Procedure for Termination, Amendment, Extension or Waiver. A\ntermination of this Agreement pursuant to Section 9.01, an amendment of this\n                                          ------------\nAgreement pursuant to Section 9.03 or an extension or waiver pursuant to Section\n                      ------------                                       -------\n9.04 shall, in order to be effective, be in writing and require in the case of\n----\nParent, Sub or the Company, action by its Board of Directors or the duly\nauthorized designee of its Board of Directors.\n\n                                      49\n\n \n                                   ARTICLE X\n\n                              General Provisions\n\n     SECTION 10.01 Nonsurvival of Representations and Warranties. None of the\nrepresentations and warranties in this Agreement shall survive the Effective\nTime. This Section 10.01 shall not limit any covenant or agreement contained in\n           -------------    \nany Transaction Agreement which by its terms contemplates performance after the\nEffective Time.\n\n     SECTION 10.02 Notices. All notices, requests, claims, demands and other\ncommunications under this Agreement shall be in writing and shall be deemed\ngiven upon receipt by the parties at the following addresses (or at such other\naddress for a party as shall be specified by like notice):\n\n     (a)  if to Parent or Sub, to\n\n                              United New Ventures              \n                              1200 East Algonquin Road         \n                              P.O. Box 66100                   \n                              Elk Grove Township, IL 60007      \n                              Tel: (847) 700-4000              \n                              Fax: (847) 700-4683              \n                              Attention: General Counsel       \n\n\n     with a copy to:\n\n                              Mayer, Brown &amp; Platt                  \n                              190 South LaSalle Street              \n                              Chicago, Illinois 60603-3441          \n                              Tel: (312) 782-0600                   \n                              Fax: (312) 701-7711                   \n                                                                    \n                              Attention: Elizabeth A. Raymond       \n                                         Marc F. Sperber\n\n\n                                      50\n\n \n     (b)  if to the Company, to\n\n                              MyPoints.com, Inc.                         \n                              1375 East Woodfield Road, Suite 300        \n                              Schaumburg, IL 60173                       \n                              Tel: (847) 969-8150                        \n                              Fax: (847) 969-8164                        \n                              Attention: General Counsel                  \n\n     with a copy to:\n\n                              Wilson Sonsini Goodrich &amp; Rosati      \n                              Professional Corporation              \n                              650 Page Mill Road                    \n                              Palo Alto, CA 94304                   \n                              Tel: (650) 493-9300                   \n                              Fax: (650) 493-6811                   \n                                                                    \n                              Attention:  Mario M. Rosati            \n\n     SECTION 10.03 Interpretation. When a reference is made in this Agreement to\na Section, such reference shall be to a Section of this Agreement unless\notherwise indicated. The table of contents and headings contained in this\nAgreement are for reference purposes only and shall not affect in any way the\nmeaning or interpretation of this Agreement. Whenever the words \"include\",\n\"includes\" or \"including\" are used in this Agreement, they shall be deemed to be\nfollowed by the words \"without limitation\".\n\n     SECTION 10.04 Severability. If any term or other provision of this\nAgreement is invalid, illegal or incapable of being enforced by any rule or law,\nor public policy, all other conditions and provisions of this Agreement shall\nnevertheless remain in full force and effect so long as the economic or legal\nsubstance of the transactions contemplated hereby is not affected in any manner\nmaterially adverse to any party. Upon such determination that any term or other\nprovision is invalid, illegal or incapable of being enforced, the parties hereto\nshall negotiate in good faith to modify this Agreement so as to effect the\noriginal intent of the parties as closely as possible in an acceptable manner to\nthe end that transactions contemplated hereby are fulfilled to the extent\npossible.\n\n     SECTION 10.05 Counterparts. This Agreement may be executed in one or more\ncounterparts, all of which shall be considered one and the same agreement and\nshall become effective when one or more counterparts have been signed by each of\nthe parties and delivered to the other parties. Delivery of an executed\ncounterpart of this Agreement by facsimile shall be effective to the fullest\nextent permitted by applicable law.\n\n     SECTION 10.06 Entire Agreement; No Third-Party Beneficiaries. The\nTransaction Agreements, the Company Disclosure Letter, the Parent Disclosure\nLetter and all exhibits and schedules hereto and the Confidentiality Agreement,\ntaken together, (i) constitute the entire agreement, and supersede all prior\nagreements and understandings, both written and oral, among \n\n                                      51\n\n \nthe parties with respect to the Transactions and (ii) from and after the\nEffective Time, Section 3.01(c)(i), Section 7.04, Section 7.05 and Section\n                ------------------  ------------  ------------     -------    \n9.02(c) are not intended to confer upon any Person other than the parties hereto\n-------\nany rights or remedies.\n\n     SECTION 10.07 Governing Law. This Agreement shall be governed by, and\nconstrued in accordance with, the laws of the State of Delaware, regardless of\nthe laws that might otherwise govern under applicable principles of conflicts of\nlaws thereof.\n\n     SECTION 10.08 Assignment. Neither this Agreement nor any of the rights,\ninterests or obligations under this Agreement shall be assigned, in whole or in\npart, by operation of law or otherwise by any of the parties without the prior\nwritten consent of the other parties, except that Sub may assign, in its sole\ndiscretion, any of or all its rights, interests and obligations under this\nAgreement to Parent or to any direct or indirect wholly owned subsidiary of\nParent, but no such assignment shall relieve Sub of any of its obligations under\nthis Agreement. Any purported assignment without such consent shall be void.\nSubject to the preceding sentences, this Agreement will be binding upon, inure\nto the benefit of, and be enforceable by, the parties and their respective\nsuccessors and assigns.\n\n     SECTION 10.09 Enforcement. The parties agree that irreparable damage would\noccur in the event that any of the provisions of any Transaction Agreement were\nnot performed in accordance with their specific terms or were otherwise\nbreached. It is accordingly agreed that the parties shall be entitled to an\ninjunction or injunctions to prevent breaches of any Transaction Agreement and\nto enforce specifically the terms and provisions of each Transaction Agreement\nin the courts of the State of Delaware and of the United States of America\nlocated in Wilmington, Delaware, this being in addition to any other remedy to\nwhich they are entitled at law or in equity. In addition, each of the parties\nhereto (a) consents to submit itself to the personal jurisdiction of the courts\nof the State of Delaware and of the United States of America located in\nWilmington, Delaware in the event any dispute arises out of any Transaction\nAgreement or any Transaction, (b) agrees that it will not attempt to deny or\ndefeat such personal jurisdiction by motion or other request for leave from any\nsuch court, (c) agrees that it will not bring any action relating to any\nTransaction Agreement or any Transaction in any court other than the courts of\nthe State of Delaware and of the United States of America located in Wilmington,\nDelaware and (d) waives any right to trial by jury with respect to any action\nrelated to or arising out of any Transaction Agreement or any Transaction.\n\n                                      52\n\n \n          IN WITNESS WHEREOF, Parent, Sub and the Company have duly executed\nthis Agreement, all as of the date first written above.\n\n                                            UNITED NEWVENTURES, INC.\n\n\n                                            By: \/s\/ Douglas A. Hacker\n                                                ------------------------------\n                                                Name:  Douglas A. Hacker\n                                                Title: President\n\n\n                                            UNV ACQUISITION CORP.\n\n\n                                            By: \/s\/ Douglas A. Hacker\n                                                ------------------------------\n                                                Name:  Douglas A. Hacker\n                                                Title: President\n\n\n                                            MYPOINTS.COM, INC.\n\n\n                                            By: \/s\/ John Fullmer\n                                                ------------------------------\n                                                Name:  John Fullmer\n                                                Title: CEO\n\n                                      53\n\n \n                                                                       EXHIBIT A\n\n\n                             Conditions of the Offer\n\n     Capitalized terms used but not otherwise defined herein shall have the\nmeanings set forth in the Agreement and Plan of Merger (the \"Agreement\") of\n                                                             ---------\nwhich this Exhibit A is a part. Notwithstanding any other term of the Offer or\nthis Agreement, Sub shall not be required to accept for payment or, subject to\nany applicable rules and regulations of the SEC, including Rule 14e-l(c) under\nthe Exchange Act (relating to Sub's obligation to pay for or return tendered\nshares of Company Common Stock promptly after the termination or withdrawal of\nthe Offer), to pay for any shares of Company Common Stock tendered pursuant to\nthe Offer unless (i) there shall have been validly tendered and not withdrawn\nprior to the expiration of the Offer that number of shares of Company Common\nStock which would represent at least a majority of the Fully Diluted Shares (the\n\"Minimum Tender Condition\") and (ii) the waiting period (and any extension\n ------------------------\nthereof) applicable to the purchase of shares of Company Common Stock pursuant\nto the Offer under the HSR Act shall have been terminated or shall have expired\nand any consents, approvals and filings under any foreign antitrust law, the\nabsence of which would prohibit the purchase of all shares of Company Common\nStock tendered pursuant to the Offer, shall have been obtained or made prior to\nthe acceptance of shares of Company Common Stock pursuant to the Offer. The term\n\"Fully Diluted Shares\" means all outstanding securities entitled generally to\n --------------------\nvote in the election of directors of the Company on a fully diluted basis, after\ngiving effect to the exercise, conversion or termination of all options,\nwarrants, rights and securities exercisable or convertible into such voting\nsecurities. Furthermore, notwithstanding any other term of the Offer or this\nAgreement, Sub shall not be required to accept for payment or, subject as\naforesaid, to pay for any shares of Company Common Stock not theretofore\naccepted for payment or paid for, and may terminate or amend the Offer, with the\nconsent of the Company or if, at any time on or after the date of this Agreement\nand before the expiration of the Offer, any of the following conditions exists:\n\n          (a)  there shall be threatened in writing, instituted or pending any\n     suit, action or proceeding by any Governmental Entity, (i) challenging the\n     acquisition by Parent or Sub of any Company Common Stock, seeking to\n     restrain or prohibit the making or consummation of the Offer or the Merger\n     or any other Transaction, or seeking to obtain from the Company, Parent or\n     Sub any damages that are material in relation to the Company and its\n     subsidiaries taken as a whole, (ii) seeking to prohibit or limit the\n     ownership or operation by the Company, Parent or any of their respective\n     subsidiaries of any material portion of the business or assets of the\n     Company, Parent or any of their respective subsidiaries, or to compel the\n     Company, Parent or any of their respective subsidiaries to dispose of or\n     hold separate all or any material portion of the business or assets of the\n     Company, Parent or any of their respective subsidiaries, as a result of the\n     Offer, the Merger or any of the other Transactions, (iii) seeking to impose\n     limitations on the ability of Parent or Sub to acquire or hold, or exercise\n     full rights of ownership of, any shares of Company Common Stock, including\n     the right to vote the Company Common Stock purchased by it on all matters\n     properly presented to the stockholders of the Company, (iv) seeking to\n     prohibit Parent or any of its subsidiaries from effectively controlling in\n     any material respect the business or operations of the Company and the\n\n                                      A-1\n\n \n     Company Subsidiaries, or (v) which otherwise is reasonably likely to have a\n     Parent Material Adverse Effect or a Company Material Adverse Effect;\n\n          (b)  any statute, rule, regulation, legislation, interpretation,\n     judgment, Order or injunction shall be threatened, proposed, enacted,\n     entered, enforced, promulgated, amended or issued with respect to, or\n     deemed applicable to, or any consent or approval withheld with respect to\n     the Offer, the Merger or any of the other Transactions, by any Governmental\n     Entity that is reasonably likely to result, directly or indirectly, in any\n     of the consequences referred to in paragraph (a) above;\n\n          (c)  except as disclosed in the Filed Company SEC Documents or the\n     Company Disclosure Letter, since the date of the most recent audited\n     financial statements included in the Filed Company SEC Documents there\n     shall have occurred any change, event, effect or development that,\n     individually or in the aggregate, has had or could reasonably be expected\n     to have, a Company Material Adverse Effect;\n\n          (d)  the Company Board or any committee thereof shall have withdrawn\n     or modified in a manner adverse to Parent its approval or recommendation of\n     the Offer and this Agreement or the Company Board or any committee thereof\n     shall have resolved to take any of the foregoing actions;\n\n          (e)  the representations and warranties of Company contained in this\n     Agreement shall not have been true and correct in all respects as of the\n     date of this Agreement and on and as of the date of the expiration of the\n     Offer with the same force and effect as if made on or as of such date\n     (except for those representations and warranties that address matters only\n     as of a particular date, which representations and warranties shall have\n     been true and correct as of such particular date), except (A) for such\n     failures to be true and correct as would not, individually or in the\n     aggregate, have or could reasonably be expected to have a Company Material\n     Adverse Effect; provided, however, that such Company Material\n                     --------  -------    \n     Adverse Effect qualifier shall be inapplicable with respect to the\n     representations and warranties contained in Sections 4.03, 4.04, 4.05(i),\n                                                 -------------  ----  ----  \n     4.06, 4.14, 4.15, 4.16 and 4.25, each of which individually shall have been\n     ----  ----  ----  ----     ----\n     true and correct in all material respects as of the date of this Agreement\n     and shall be true and correct in all material respects on and as of the\n     date of the expiration of the Offer and (B) for changes contemplated by\n     this Agreement (it being understood that, for purposes of determining the\n     accuracy of such representations and warranties, (x) all \"Company Material\n     Adverse Effect\" and materiality qualifications and other qualifications\n     based on the word \"material\" or similar phrases contained in such\n     representations and warranties shall be disregarded, and (y) any update of\n     or modification to the Company Disclosure Letter made or purported to have\n     been made after the date of this Agreement shall be disregarded).\n\n          (f)  the Company shall have failed to perform in any material respect\n     any obligation or to comply in any material respect with any agreement or\n     covenant of the Company to be performed or complied with by it under this\n     Agreement;\n\n          (g)  this Agreement shall have been terminated in accordance with its\n     terms;\n\n                                      A-2\n\n \n          (h)  any of the Stock Option and Tender Agreements shall not be in\n     full force and effect or any of the Principal Company Stockholders shall\n     have failed to perform in any material respect any obligation or to comply\n     in any material respect with any agreement or covenant to be performed or\n     complied with by them under any such agreement; or\n     \n          (i)  the Rights Plan Amendment shall not be in full force and effect;\n\nwhich, in the reasonable judgment of Sub or Parent, in any such case, and\nregardless of the circumstances giving rise to any such condition (including,\nwithout limitation, any action or inaction by Parent or any of its Affiliates),\nmakes it inadvisable to proceed with such acceptance for payment or payment.\n\n     The foregoing conditions are for the sole benefit of Sub and Parent and\nmay be asserted by Sub or Parent regardless of the circumstances giving rise to\nsuch condition or may be waived by Sub and Parent in whole or in part at any\ntime and from time to time in their sole discretion prior to the expiration of\nthe Offer. The failure by Parent, Sub or any other Affiliate of Parent at any\ntime to exercise any of the foregoing rights shall not be deemed a waiver of any\nsuch right, the waiver of any such right with respect to particular facts and\ncircumstances shall not be deemed a waiver with respect to any other facts and\ncircumstances and each such right shall be deemed an ongoing right that may be\nasserted at any time and from time to time prior to the expiration of the Offer.\n\n                                      A-3\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9136],"corporate_contracts_industries":[9521],"corporate_contracts_types":[9622,9626],"class_list":["post-43138","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ual-corp","corporate_contracts_industries-transportation__air","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43138","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43138"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43138"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43138"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43138"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}