{"id":43464,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/merger-agreement-and-plan-advent-software-inc-and-black.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"merger-agreement-and-plan-advent-software-inc-and-black","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/merger-agreement-and-plan-advent-software-inc-and-black.html","title":{"rendered":"Merger Agreement and Plan – Advent Software, Inc. and Black Diamond Performance Reporting, LLC"},"content":{"rendered":"

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

BY AND AMONG<\/strong><\/p>\n

ADVENT SOFTWARE, INC.,<\/strong><\/p>\n

BIRDIE ACQUISITION LLC,<\/strong><\/p>\n

BLACK DIAMOND PERFORMANCE REPORTING, LLC,<\/strong>\n<\/p>\n

AND, WITH RESPECT TO ARTICLE VII, ARTICLE VIII AND
\nARTICLE IX ONLY,<\/strong><\/p>\n

REED COLLEY,<\/strong><\/p>\n

AS THE SECURITYHOLDERS’ REPRESENTATIVE,<\/strong><\/p>\n

AND<\/strong><\/p>\n

U.S. BANK NATIONAL ASSOCIATION,<\/strong><\/p>\n

AS ESCROW AGENT<\/strong><\/p>\n

Dated as of May 12, 2011<\/strong><\/p>\n

\n

<\/p>\n

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

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

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

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

\n

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

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

1.1<\/p>\n<\/td>\n

\n

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

\n

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

\n

1.2<\/p>\n<\/td>\n

\n

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

\n

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

\n

1.3<\/p>\n<\/td>\n

\n

Effect of the Merger<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

1.4<\/p>\n<\/td>\n

\n

Certificate of Formation and Limited Liability Company
\nAgreement<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

1.5<\/p>\n<\/td>\n

\n

Managers and Officers<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

1.6<\/p>\n<\/td>\n

\n

Effect of Merger on the Capital Stock of Merger Sub and Interests
\nin the Company<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

1.7<\/p>\n<\/td>\n

\n

Dissenting Units<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

1.8<\/p>\n<\/td>\n

\n

Surrender of Company Units<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

1.9<\/p>\n<\/td>\n

\n

No Further Ownership Rights in Company Units<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

1.10<\/p>\n<\/td>\n

\n

Taking of Necessary Action; Further Actions<\/em><\/strong><\/p>\n<\/td>\n

\n

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

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

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

\n

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

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

2.1<\/p>\n<\/td>\n

\n

Organization of the Company<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.2<\/p>\n<\/td>\n

\n

Company Capital Structure<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.3<\/p>\n<\/td>\n

\n

Authority<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.4<\/p>\n<\/td>\n

\n

No Conflict<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.5<\/p>\n<\/td>\n

\n

Consents<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.6<\/p>\n<\/td>\n

\n

Company Financial Statements<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.7<\/p>\n<\/td>\n

\n

Internal Controls<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.8<\/p>\n<\/td>\n

\n

No Undisclosed Liabilities<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.9<\/p>\n<\/td>\n

\n

No Changes<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.10<\/p>\n<\/td>\n

\n

Accounts Receivable<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.11<\/p>\n<\/td>\n

\n

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

\n

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

\n

2.12<\/p>\n<\/td>\n

\n

Restrictions on Business Activities<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.13<\/p>\n<\/td>\n

\n

Title to Properties; Absence of Liens and Encumbrances; Condition
\nof Equipment<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.14<\/p>\n<\/td>\n

\n

Intellectual Property<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.15<\/p>\n<\/td>\n

\n

Agreements, Contracts and Commitments<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.16<\/p>\n<\/td>\n

\n

Certain Relationships and Related Transactions<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.17<\/p>\n<\/td>\n

\n

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

\n

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

\n

2.18<\/p>\n<\/td>\n

\n

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

\n

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

\n

2.19<\/p>\n<\/td>\n

\n

Minute Books<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.20<\/p>\n<\/td>\n

\n

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

\n

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

\n

2.21<\/p>\n<\/td>\n

\n

Brokers’ and Finders’ Fees; Transaction Expenses<\/em><\/strong>\n<\/p>\n<\/td>\n

\n

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

\n

2.22<\/p>\n<\/td>\n

\n

Employee Benefit Plans and Compensation<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.23<\/p>\n<\/td>\n

\n

Insurance<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.24<\/p>\n<\/td>\n

\n

Compliance with Laws<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.25<\/p>\n<\/td>\n

\n

Export and Import Control Laws<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.26<\/p>\n<\/td>\n

\n

Anti-Corruption and Anti-Bribery<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.27<\/p>\n<\/td>\n

\n

Government Contracts<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.28<\/p>\n<\/td>\n

\n

Warranties; Indemnities<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.29<\/p>\n<\/td>\n

\n

Substantial Customers and Suppliers<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

2.30<\/p>\n<\/td>\n

\n

Complete Copies of Materials<\/em><\/strong><\/p>\n<\/td>\n

\n

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

i<\/p>\n

\n

<\/p>\n

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

(Continued)<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n\n

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

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

2.31<\/p>\n<\/td>\n

\n

Representations Complete<\/em><\/strong><\/p>\n<\/td>\n

\n

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

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

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

\n

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

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

3.1<\/p>\n<\/td>\n

\n

Organization and Standing<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

3.2<\/p>\n<\/td>\n

\n

Authority<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

3.3<\/p>\n<\/td>\n

\n

No Conflict; Required Filings and Consents<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

3.4<\/p>\n<\/td>\n

\n

Cash Resources<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

3.5<\/p>\n<\/td>\n

\n

Brokers’ and Finders’ Fees<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

3.6<\/p>\n<\/td>\n

\n

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

\n

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

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

ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME<\/p>\n<\/td>\n

\n

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

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

4.1<\/p>\n<\/td>\n

\n

Conduct of Business of the Company<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

4.2<\/p>\n<\/td>\n

\n

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

\n

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

\n

4.3<\/p>\n<\/td>\n

\n

Procedures for Requesting Parent Consent<\/em><\/strong><\/p>\n<\/td>\n

\n

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

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

ARTICLE V ADDITIONAL AGREEMENTS<\/p>\n<\/td>\n

\n

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

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

5.1<\/p>\n<\/td>\n

\n

Reasonable Efforts<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.2<\/p>\n<\/td>\n

\n

Member Approval<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.3<\/p>\n<\/td>\n

\n

Regulatory Approval<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.4<\/p>\n<\/td>\n

\n

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

\n

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

\n

5.5<\/p>\n<\/td>\n

\n

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

\n

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

\n

5.6<\/p>\n<\/td>\n

\n

Public Disclosure<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.7<\/p>\n<\/td>\n

\n

Notification of Certain Matters<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.8<\/p>\n<\/td>\n

\n

Additional Documents and Further Assurances<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.9<\/p>\n<\/td>\n

\n

Contracts<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

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

\n

Employee Matters<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.11<\/p>\n<\/td>\n

\n

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

\n

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

\n

5.12<\/p>\n<\/td>\n

\n

Spreadsheet<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.13<\/p>\n<\/td>\n

\n

Release of Liens<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.14<\/p>\n<\/td>\n

\n

Repayment of Indebtedness and Payment of Amounts Due Under the
\n2011 Bonus Plan<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

5.15<\/p>\n<\/td>\n

\n

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

\n

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

\n

5.16<\/p>\n<\/td>\n

\n

RSU Issuances<\/em><\/strong><\/p>\n<\/td>\n

\n

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

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

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

\n

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

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

6.1<\/p>\n<\/td>\n

\n

Conditions to Obligations of Each Party to Effect the
\nMerger<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

6.2<\/p>\n<\/td>\n

\n

Conditions to the Obligations of Parent and Merger
\nSub<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

6.3<\/p>\n<\/td>\n

\n

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

\n

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

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

ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ESCROW<\/p>\n<\/td>\n

\n

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

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

7.1<\/p>\n<\/td>\n

\n

Survival<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

7.2<\/p>\n<\/td>\n

\n

Indemnification<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

7.3<\/p>\n<\/td>\n

\n

Limitations<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

7.4<\/p>\n<\/td>\n

\n

Exclusive Remedy<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

7.5<\/p>\n<\/td>\n

\n

Escrow Arrangements<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

7.6<\/p>\n<\/td>\n

\n

Claims for Indemnification<\/em><\/strong><\/p>\n<\/td>\n

\n

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

ii<\/p>\n

\n

<\/p>\n

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

(Continued)<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n\n

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

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

7.7<\/p>\n<\/td>\n

\n

Securityholders’ Representative<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

7.8<\/p>\n<\/td>\n

\n

Expense Escrow Account<\/em><\/strong><\/p>\n<\/td>\n

\n

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

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

ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER<\/p>\n<\/td>\n

\n

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

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

8.1<\/p>\n<\/td>\n

\n

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

\n

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

\n

8.2<\/p>\n<\/td>\n

\n

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

\n

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

\n

8.3<\/p>\n<\/td>\n

\n

Amendment<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

8.4<\/p>\n<\/td>\n

\n

Extension; Waiver<\/em><\/strong><\/p>\n<\/td>\n

\n

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

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

ARTICLE IX GENERAL PROVISIONS<\/p>\n<\/td>\n

\n

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

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

9.1<\/p>\n<\/td>\n

\n

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

\n

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

\n

9.2<\/p>\n<\/td>\n

\n

Interpretation; Rules of Construction<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

9.3<\/p>\n<\/td>\n

\n

Counterparts<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

9.4<\/p>\n<\/td>\n

\n

Entire Agreement; Assignment<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

9.5<\/p>\n<\/td>\n

\n

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

\n

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

\n

9.6<\/p>\n<\/td>\n

\n

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

\n

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

\n

9.7<\/p>\n<\/td>\n

\n

Other Remedies<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

9.8<\/p>\n<\/td>\n

\n

No Third Party Beneficiaries<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

9.9<\/p>\n<\/td>\n

\n

Governing Law; Exclusive Jurisdiction<\/em><\/strong><\/p>\n<\/td>\n

\n

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

\n

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

\n

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

\n

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

\n

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

\n

USA Patriot Act Compliance<\/em><\/strong><\/p>\n<\/td>\n

\n

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

iii<\/p>\n

\n

<\/p>\n

INDEX OF EXHIBITS<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

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

<\/td>\n\n

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

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

Exhibit A<\/p>\n<\/td>\n

<\/td>\n\n

Form of Employment Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit B<\/p>\n<\/td>\n

<\/td>\n\n

Form of Non-Competition Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit C<\/p>\n<\/td>\n

<\/td>\n\n

Form of Voting Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit D-1<\/p>\n<\/td>\n

<\/td>\n\n

Form of Member Written Consent<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit D-2<\/p>\n<\/td>\n

<\/td>\n\n

Company Support Members<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit E<\/p>\n<\/td>\n

<\/td>\n\n

Form of Joinder Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit F<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Exhibit G<\/p>\n<\/td>\n

<\/td>\n\n

Form of Limited Liability Company Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit H<\/p>\n<\/td>\n

<\/td>\n\n

Form of Manager and Officer Resignation<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit I<\/p>\n<\/td>\n

<\/td>\n\n

Form of Legal Opinion of Counsel to the Company<\/p>\n<\/td>\n<\/tr>\n

\n

Exhibit J<\/p>\n<\/td>\n

<\/td>\n\n

Description of Money Market Account<\/p>\n<\/td>\n<\/tr>\n

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

Schedules<\/u><\/strong><\/p>\n<\/td>\n

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

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

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

Schedule 1.6(a)(iv)<\/p>\n<\/td>\n

<\/td>\n\n

Bonus Plan Employees Not Subject to Escrow<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 1.6(a)(xvi)<\/p>\n<\/td>\n

<\/td>\n\n

Employees Holding Company Small-lot Options<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 1.6(a)(xxxv)<\/p>\n<\/td>\n

<\/td>\n\n

Key Future Employees<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 1.6(a)(xxxvi)<\/p>\n<\/td>\n

<\/td>\n\n

Individuals covered by “Knowledge”<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 2.14(h)(ii)-1<\/p>\n<\/td>\n

<\/td>\n\n

Employee Proprietary Information Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 2.14(h)(ii)-2<\/p>\n<\/td>\n

<\/td>\n\n

Consultant Proprietary Information Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 4.3<\/p>\n<\/td>\n

<\/td>\n\n

Designated Individuals<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 5.9(b)<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Schedule 5.10(e)<\/p>\n<\/td>\n

<\/td>\n\n

New Employment Benefits<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 5.12<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Schedule 5.13<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Schedule 6.2(h)<\/p>\n<\/td>\n

<\/td>\n\n

Third Party Consents<\/p>\n<\/td>\n<\/tr>\n

\n

Schedule 6.2(i)<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Schedule 6.2(k)<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Schedule 7.2(a)(x)<\/p>\n<\/td>\n

<\/td>\n\n

Other Indemnity Matters<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

iv<\/p>\n

\n

<\/p>\n

INDEX OF DEFINED TERMS<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

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

<\/td>\n\n

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

\n

2011 Bonus Plan<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

A\/R Schedule<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Action<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Action of Divestiture<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Affiliate<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

7.5(d)(vii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

7.5(d)(vi)<\/p>\n<\/td>\n<\/tr>\n

\n

Agreed-Upon Loss<\/p>\n<\/td>\n

<\/td>\n\n

7.6(c)(v)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

Allocation<\/p>\n<\/td>\n

<\/td>\n\n

5.15(a)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Anti-Corruption and Anti-Bribery Laws<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(iv)<\/p>\n<\/td>\n<\/tr>\n

\n

Balance Sheet Date<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Business Day<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(vii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

Change in Control Payments<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(viii)<\/p>\n<\/td>\n<\/tr>\n

\n

Change of Control Agreement<\/p>\n<\/td>\n

<\/td>\n\n

2.22(l)<\/p>\n<\/td>\n<\/tr>\n

\n

Change of Control Benefits<\/p>\n<\/td>\n

<\/td>\n\n

2.22(l)<\/p>\n<\/td>\n<\/tr>\n

\n

Change of Control Trigger<\/p>\n<\/td>\n

<\/td>\n\n

2.22(l)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

COBRA<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Code<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(ix)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Company Class A Preferred Units<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(x)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Class B Preferred Units<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xi)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Class C Units<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xiii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

6.2(i)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

Company Intellectual Property Rights<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Company Material Adverse Effect<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xiv)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xv)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Products and Services<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Company Registered Intellectual Property<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

2.14(m)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

2.14(m)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

1.6(a)(xvi)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xviii)<\/p>\n<\/td>\n<\/tr>\n

\n

Confirmatory Assignment<\/p>\n<\/td>\n

<\/td>\n\n

5.10(a)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

v<\/p>\n

\n

<\/p>\n

INDEX OF DEFINED TERMS<\/strong><\/p>\n

(Continued)<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

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

<\/td>\n\n

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

\n

Conflict<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Consultant<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(iii)<\/p>\n<\/td>\n<\/tr>\n

\n

Consultant Proprietary Information Agreement<\/p>\n<\/td>\n

<\/td>\n\n

2.14(h)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

Contaminants<\/p>\n<\/td>\n

<\/td>\n\n

2.14(l)(iv)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xix)<\/p>\n<\/td>\n<\/tr>\n

\n

Contract or Contracts<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Court<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xx)<\/p>\n<\/td>\n<\/tr>\n

\n

Current Balance Sheet<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Dissenting Unit Payments<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

DOJ<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

DOL<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(iv)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xiv)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

Electronic Delivery<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

2.22(b)(v)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

2.22(b)(vi)<\/p>\n<\/td>\n<\/tr>\n

\n

Employee Proprietary Information Agreement<\/p>\n<\/td>\n

<\/td>\n\n

2.14(h)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Equipment<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Equity Units<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

ERISA<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(vii)<\/p>\n<\/td>\n<\/tr>\n

\n

ERISA Affiliate<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(viii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

Escrow Amount<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxi)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

1.6(a)(xxii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

1.6(a)(xxiii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.8(c)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

Expense Escrow Account<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Expense Escrow Agent<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Expense Escrow Amount<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxiv)<\/p>\n<\/td>\n<\/tr>\n

\n

Export and Import Approvals<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxi)<\/p>\n<\/td>\n<\/tr>\n

\n

Export and Import Control Laws<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxii)<\/p>\n<\/td>\n<\/tr>\n

\n

Financials<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Florida LLC Act<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

FMLA<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(ix)<\/p>\n<\/td>\n<\/tr>\n

\n

FTC<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Fully Diluted Units<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxvii)<\/p>\n<\/td>\n<\/tr>\n

\n

Fundamental Representations<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

GAAP<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxviii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xxix)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

vi<\/p>\n

\n

<\/p>\n

INDEX OF DEFINED TERMS<\/strong><\/p>\n

(Continued)<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

1.6(a)(xxx)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xxxi)<\/p>\n<\/td>\n<\/tr>\n

\n

Hazardous Material Activity<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Hazardous Materials<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

HIPAA<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(x)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xxxii)<\/p>\n<\/td>\n<\/tr>\n

\n

Inbound License Agreements<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Indebtedness<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxxiii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

Indemnifying Party or Indemnifying Parties<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Intellectual Property<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Intellectual Property Rights<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Interest<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxxiv)<\/p>\n<\/td>\n<\/tr>\n

\n

Interim Financials<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

2.22(b)(xi)<\/p>\n<\/td>\n<\/tr>\n

\n

IRS<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(xii)<\/p>\n<\/td>\n<\/tr>\n

\n

JAMS<\/p>\n<\/td>\n

<\/td>\n\n

7.6(c)(iii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

Key Future Employees<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxxv)<\/p>\n<\/td>\n<\/tr>\n

\n

Knowledge<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxxvi)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xxxvii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Liabilities<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xxxix)<\/p>\n<\/td>\n<\/tr>\n

\n

Lien<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xl)<\/p>\n<\/td>\n<\/tr>\n

\n

Loss or Losses<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Manager<\/p>\n<\/td>\n

<\/td>\n\n

2.22(b)(xiii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

Member<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xli)<\/p>\n<\/td>\n<\/tr>\n

\n

Member Written Consent<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

1.6(a)(xlii)<\/p>\n<\/td>\n<\/tr>\n

\n

Non-Competition Agreement<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Oasis<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Officer’s Certificate<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Open Source License<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Open Source Materials<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Option Communications<\/p>\n<\/td>\n

<\/td>\n\n

1.6(c)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Optionholder<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xliii)<\/p>\n<\/td>\n<\/tr>\n

\n

Oral Arrangements<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Order<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xliv)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

vii<\/p>\n

\n

<\/p>\n

INDEX OF DEFINED TERMS<\/strong><\/p>\n

(Continued)<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

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

<\/td>\n\n

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

\n

Per Unit Consideration<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xlv)<\/p>\n<\/td>\n<\/tr>\n

\n

Person<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xlvi)<\/p>\n<\/td>\n<\/tr>\n

\n

Personally Identifiable Information<\/p>\n<\/td>\n

<\/td>\n\n

2.14(m)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(xlvii)<\/p>\n<\/td>\n<\/tr>\n

\n

Pre-Closing Tax Period<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xlviii)<\/p>\n<\/td>\n<\/tr>\n

\n

Pre-Closing Taxes<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(xlix)<\/p>\n<\/td>\n<\/tr>\n

\n

Pro Rata Portion<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(l)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(li)<\/p>\n<\/td>\n<\/tr>\n

\n

Proprietary Information<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

PTO<\/p>\n<\/td>\n

<\/td>\n\n

2.14(b)(vi)<\/p>\n<\/td>\n<\/tr>\n

\n

Registered Intellectual Property<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

1.6(a)(lii)<\/p>\n<\/td>\n<\/tr>\n

\n

Requisite Member Vote<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(liii)<\/p>\n<\/td>\n<\/tr>\n

\n

Returns<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

RSUs<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Section 409A<\/p>\n<\/td>\n

<\/td>\n\n

2.11(c)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

Securityholder<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(liv)<\/p>\n<\/td>\n<\/tr>\n

\n

Securityholders’ Representative<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Securityholders’ Representative Expenses<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Software<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Soliciting Materials<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Source Code<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Spreadsheet<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

SSARs<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Technology<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Third-Party Claim<\/p>\n<\/td>\n

<\/td>\n\n

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

\n

Threshold Amount<\/p>\n<\/td>\n

<\/td>\n\n

7.3(h)<\/p>\n<\/td>\n<\/tr>\n

\n

Total Outstanding Voting Units<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(lvii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(lviii)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

1.6(a)(lii)<\/p>\n<\/td>\n<\/tr>\n

\n

Unitholder<\/p>\n<\/td>\n

<\/td>\n\n

1.6(a)(lx)<\/p>\n<\/td>\n<\/tr>\n

\n

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

<\/td>\n\n

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

\n

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

<\/td>\n\n

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

\n

Year-End Financials<\/p>\n<\/td>\n

<\/td>\n\n

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

viii<\/p>\n

\n

<\/p>\n

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

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement<\/strong>“) is made
\nand entered into as of May 12, 2011 by and among Advent Software, Inc., a
\nDelaware corporation (“Parent<\/strong>“), Birdie Acquisition LLC, a
\nDelaware limited liability company and wholly owned subsidiary of Parent
\n(“Merger Sub<\/strong>“), Black Diamond Performance Reporting, LLC, a
\nFlorida limited liability company (the “Company<\/strong>“), and, with
\nrespect to Article VII<\/strong>, Article VIII<\/strong> and
\nArticle IX<\/strong> only, Reed Colley, as exclusive representative of
\nthe Indemnifying Parties (as defined herein) (the “Securityholders’
\nRepresentative<\/strong>“), and U.S. Bank National Association, as escrow agent
\n(the “Escrow Agent<\/strong>“).<\/p>\n

RECITALS<\/p>\n

A. The Boards of Directors or Managers of each of Parent, Merger Sub and the
\nCompany believe that it is advisable and in the best interests of each
\ncorporation or limited liability company, as the case may be, and its respective
\nstockholders and members that Parent acquire the Company through the statutory
\nmerger of the Company with and into the Merger Sub (the
\n“Merger<\/strong>“) and, in furtherance thereof, have approved this
\nAgreement and the Merger.<\/p>\n

B. Pursuant to the Merger, among other things, and subject to the terms and
\nconditions of this Agreement, all of the outstanding Company Interests and
\nCompany Options shall be converted into the right to receive the consideration
\nset forth herein.<\/p>\n

C. A portion of the consideration otherwise payable by Parent in connection
\nwith the Merger shall be deposited by Parent into an escrow account as partial
\nsecurity for the indemnification obligations set forth in this Agreement.<\/p>\n

D. The Company, on the one hand, and Parent and Merger Sub, on the other
\nhand, desire to make certain representations, warranties, covenants and other
\nagreements in connection with the transactions contemplated hereby.<\/p>\n

E. As a material inducement to Parent and Merger Sub to enter into this
\nAgreement, concurrent with the execution and delivery of this Agreement, each of
\nthe Key Future Employees shall have executed (i) an “at-will” employment letter,
\nin substantially the form attached hereto as Exhibit A<\/strong> (each
\nsuch agreement, an “Employment Agreement<\/strong>“), with Parent to be
\neffective as of the Effective Time and (ii) a non-competition and
\nnon-solicitation agreement in substantially the form attached hereto as
\nExhibit B<\/strong> (each such agreement, a “Non-Competition
\nAgreement<\/strong>“) with Parent to be effective as of the Effective Time.<\/p>\n

F. Concurrent with the execution and delivery of this Agreement, and as a
\ncondition and inducement to the willingness of Parent and Merger Sub to enter
\ninto this Agreement, the Company Support Members have entered into a Voting
\nAgreement dated as of the date hereof and in the form attached hereto as
\nExhibit C<\/strong> (the “Voting Agreement<\/strong>“) pursuant to
\nwhich each such Company Support Member has agreed to vote in favor of approval
\nof this Agreement and the transactions contemplated hereby and to take certain
\nother actions in furtherance of the consummation of the Merger upon the terms
\nand subject to the conditions set forth in the Voting Agreement.<\/p>\n

G. Promptly after the execution and delivery of this Agreement, but in no
\nevent later than twenty-four hours thereafter, and as a material inducement to
\nParent and Merger Sub to enter into this Agreement, the Company shall obtain and
\ndeliver to Parent a true, correct and complete copy of an action by written
\nconsent of members, evidencing the approval of this Agreement and the
\ntransactions contemplated hereby, in the form attached hereto as
\nExhibit D-1<\/strong> (the “Member Written Consent<\/strong>“),\n<\/p>\n

\n

<\/p>\n

signed by each of the persons and entities identified on Exhibit
\nD-2<\/strong> (the “Company Support Members<\/strong>“).<\/p>\n

NOW, THEREFORE, in consideration of the mutual agreements, covenants and
\nother premises set forth herein, the mutual benefits to be gained by the
\nperformance thereof, and for other good and valuable consideration, the receipt
\nand sufficiency of which are hereby acknowledged and accepted, the parties
\nhereby agree as follows:<\/p>\n

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

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

1.1 The Merger<\/em><\/strong>. At the Effective Time and subject
\nto and upon the terms and conditions of this Agreement and the applicable
\nprovisions of the Florida Statutes (“Florida Law<\/strong>“) and the
\nDelaware Limited Liability Company Act (“Delaware Law<\/strong>“), the
\nCompany shall be merged with and into Merger Sub, the separate corporate
\nexistence of the Company shall cease, and Merger Sub shall continue as the
\nsurviving company and as a wholly owned subsidiary of Parent. The surviving
\ncompany after the Merger is sometimes referred to hereinafter as the
\n“Surviving Company<\/strong>.”<\/p>\n

1.2 Effective Time<\/em><\/strong>. Unless this Agreement is
\nearlier terminated pursuant to Section 8.1<\/strong>, the closing of the
\nMerger (the “Closing<\/strong>“) will take place on the first day of the
\nmonth following the satisfaction or waiver of the conditions set forth in
\nArticle VI<\/strong> (except for those conditions to be satisfied at and
\nas of the Closing, but subject to the satisfaction of those conditions) at the
\noffices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650
\nPage Mill Road, Palo Alto, California, unless another time or place is mutually
\nagreed upon in writing by Parent and the Company. The date upon which the
\nClosing actually occurs shall be referred to herein as the “Closing
\nDate<\/strong>.” On the Closing Date, the parties hereto shall cause the Merger
\nto be consummated by filing a certificate of merger (or like instrument) in
\nsubstantially the form attached hereto as Exhibit F<\/strong> (the
\n“Certificate of Merger<\/strong>“) with the Secretary of State of the
\nState of Florida in accordance with the applicable provisions of Florida Law and
\nwith the Secretary of State of the State of Delaware in accordance with the
\napplicable provisions of Delaware Law (the later of the time of acceptance by
\nthe Secretary of State of the State of Florida or by the Secretary of State of
\nthe State of Delaware of the Certificate of Merger shall be referred to herein
\nas the “Effective Time<\/strong>“).<\/p>\n

1.3 Effect of the Merger<\/em><\/strong>. At the Effective Time,
\nthe effect of the Merger shall be as set forth in this Agreement and as provided
\nin the applicable provisions of Delaware Law and Florida Law. Without limiting
\nthe generality of the foregoing, at the Effective Time, except as otherwise
\nagreed to pursuant to the terms of this Agreement, all of the property, rights,
\nprivileges, powers and franchises of the Company and Merger Sub shall vest in
\nthe Surviving Company, and all debts, liabilities and duties of the Company and
\nMerger Sub shall become the debts, liabilities and duties of the Surviving
\nCompany.<\/p>\n

1.4 Certificate of Formation and Limited Liability Company
\nAgreement<\/em><\/strong>.<\/p>\n

(a) Certificate of Formation<\/em><\/strong>. Unless otherwise
\ndetermined by Parent prior to the Effective Time, the certificate of formation
\nof the Merger Sub as in effect immediately prior to the Effective Time shall be
\nthe certificate of formation of the Surviving Company, until thereafter amended
\nin accordance with Delaware Law and as provided in such certificate of
\nformation.<\/p>\n

(b) Limited Liability Company Agreement<\/em><\/strong>. Unless
\notherwise determined by Parent prior to the Effective Time, the limited
\nliability company agreement of the Surviving Entity at the Effective Time shall
\nread in its entirety as set forth on Exhibit G<\/strong>.<\/p>\n

2<\/p>\n

\n

<\/p>\n

1.5 Managers and Officers<\/em><\/strong>.<\/p>\n

(a) Managers of the Surviving Company<\/em><\/strong>. Unless
\notherwise determined by Parent prior to the Effective Time, the managers of
\nMerger Sub immediately prior to the Effective Time shall be the managers of the
\nSurviving Company immediately after the Effective Time, each to hold the office
\nof a manager of the Surviving Company in accordance with the provisions of
\nDelaware Law and the certificate of formation and limited liability company
\nagreement of the Surviving Company until their successors are duly elected and
\nqualified, or until their earlier death, resignation or removal.<\/p>\n

(b) Officers of the Surviving Company<\/em><\/strong>. Unless
\notherwise determined by Parent prior to the Effective Time, the officers of
\nMerger Sub immediately prior to the Effective Time shall be the officers of the
\nSurviving Company immediately after the Effective Time, each to hold office in
\naccordance with the provisions of the limited liability company agreement of the
\nSurviving Company.<\/p>\n

1.6 Effect of Merger on the Capital Stock of Merger Sub and
\nInterests in the Company<\/em><\/strong>.<\/p>\n

(a) Definitions<\/em><\/strong>. For all purposes of this
\nAgreement, the following terms shall have the following respective meanings:\n<\/p>\n

(i) “2011 Bonus Plan<\/strong>” shall mean the Company’s 2011 Bonus
\nPlan, as in effect as of the date hereof.<\/p>\n

(ii) “Action<\/strong>” shall mean any private or governmental action,
\nsuit, claim, charge, cause of action or suit (whether in contract or tort or
\notherwise), litigation (whether at law or in equity, whether civil or criminal),
\nassessment, arbitration, investigation, audit, hearing, complaint, demand or
\nother proceeding to, from, by or before any arbitrator, or Governmental Entity.\n<\/p>\n

(iii) “Affiliate<\/strong>” shall mean, with respect to any Person,
\nany other Person directly or indirectly controlling, directly or indirectly
\ncontrolled by, or under direct or indirect common control with, such Person, or
\nif such Person is a partnership, any general partner of such Person or a Person
\ncontrolling any such general partner. For purposes of this definition,
\n“control<\/strong>” (including “controlled by<\/strong>” and
\n“under common control with<\/strong>“) shall mean the power, directly or
\nindirectly, to direct or cause the direction of the management and policies of
\nsuch Person, whether through the ownership of voting securities or partnership
\nor other ownership interests, by contract or otherwise.<\/p>\n

(iv) “Anti-Corruption and Anti-Bribery Laws<\/strong>” shall mean the
\nForeign Corrupt Practices Act of 1977, as amended, any rules or regulations
\nthereunder, or any applicable United States or foreign anti-corruption or
\nanti-bribery laws or regulations.<\/p>\n

(v) “Bonus Plan Employee” <\/strong>shall mean an Employee entitled to
\nreceive, immediately before the Effective Date, payments under the 2011 Bonus
\nPlan.<\/p>\n

(vi) “Bonus Plan Escrow Amount” <\/strong>shall mean, with respect to
\neach Bonus Plan Employee, other than the Bonus Plan Employees set forth on
\nSchedule 1.6(a)(vi), their Pro-Rata Portion of the Escrow Fund and the Expense
\nEscrow Account, calculated in accordance with the provisions of Sections
\n1.6(a)(l)(aa) and (bb).<\/p>\n

(vii) “Business Day<\/strong>” shall mean each day that is not a
\nSaturday, Sunday or other day on which Parent is closed for business or banking
\ninstitutions located in San Francisco, California or Jacksonville, Florida are
\nauthorized or obligated by Law to close.<\/p>\n

3<\/p>\n

\n

<\/p>\n

(viii) “Change in Control Payments<\/strong>” shall mean (A) any
\nseverance, retention, bonus or other similar payment to any Person under any
\nContract or the Plan, other than the 2011 Bonus Plan, (B) any cancellation or
\nforgiveness of Indebtedness, or (C) any increase of any benefits otherwise
\npayable by the Company in each case of the foregoing clauses (A) and (B),
\ninclusive, that are payable or become effective as a result of the execution and
\ndelivery of this Agreement by the Company or the consummation of any of the
\ntransactions contemplated hereby.<\/p>\n

(ix) “Code<\/strong>” shall mean the Internal Revenue Code of 1986, as
\namended.<\/p>\n

(x) “Company Class A Preferred Units<\/strong>” shall mean the Class A
\nPreferred Units of the Company.<\/p>\n

(xi) “Company Class B Preferred Units<\/strong>” shall mean the Class
\nB Preferred Units of the Company.<\/p>\n

(xii) “Company Class C Units<\/strong>” shall mean the Class C Units
\nof the Company.<\/p>\n

(xiii) “Company Common Units<\/strong>” shall mean the Common Units of
\nthe Company.<\/p>\n

(xiv) “Company Material Adverse Effect<\/strong>” shall mean any
\nchange, effect, development, circumstance, change of facts, condition,
\noccurrence or event (each, an “Effect<\/strong>“) that, individually or
\nin the aggregate taken with all other Effects, (A) is or could reasonably be
\nexpected to be materially adverse to the capitalization, business, operations,
\nassets (whether tangible or intangible), liabilities, financial condition or
\nresults of operations of the Company, or (B) that would reasonably be expected
\nto prevent or materially impede, interfere with, hinder or delay the
\nconsummation by the Company of the transactions contemplated by this Agreement;
\nprovided, however<\/em>, that in no event shall any of the following Effects,
\nalone or in combination with any other Effects, be deemed to constitute, nor
\nshall any of the following be taken into account in determining whether there
\nhas or will be, a Company Material Adverse Effect: (1) general economic, market
\nor political conditions (including acts of terrorism or war) provided<\/em>
\nthat such conditions do not affect the Company disproportionately; (2) any
\nchanges (after the date hereof) in GAAP or applicable Law; (3) any occurrence or
\noccurrences relating to the industry in which the Company operates,
\nprovided<\/em> that such conditions do not affect the Company
\ndisproportionately; or (4) any adverse effect (including any loss of or adverse
\nchange in the relationship of the Company with its customers, partners or
\nsimilar relationships, or loss of or adverse change in any employee relationship
\nbut expressly excluding data provider suppliers) directly resulting from the
\npublic announcement or pendency of the transactions contemplated by this
\nAgreement.<\/p>\n

(xv) “Company Options<\/strong>” shall mean all issued and outstanding
\noptions (including Company Warrants and commitments to grant options) to
\npurchase or otherwise acquire Company Units (whether or not vested) held by any
\nEmployee, Consultant, Manager or advisor of the Company.<\/p>\n

(xvi) “Company Small-lot Options” <\/strong>shall mean the Company
\nOptions held by the Employees set forth on Schedule 1.6(a)(xvi).<\/p>\n

(xvii) “Company Units<\/strong>” shall mean the Company Common Units,
\nthe Company Class A Preferred Units, the Company Class B Preferred Units and the
\nCompany Class C Units.<\/p>\n

4<\/p>\n

\n

<\/p>\n

(xviii) “Company Warrants<\/strong>” shall mean all issued and
\noutstanding warrants to purchase or otherwise acquire Company Class C Units
\nunder that certain Warrant Agreement dated as of December 3, 2009 by and between
\nthe Company and C. David Welling.<\/p>\n

(xix) “Continuing Employee<\/strong>” shall mean each Employee who (A)
\nreceives and accepts an offer of at-will employment (which offer of employment
\nis not for a transitional period ending within a specified or estimated time
\nperiod after the Effective Time) from Parent or any of its subsidiaries prior to
\nthe Effective Time, and (B) is an employee of Parent or any of its subsidiaries
\nimmediately following the Effective Time.<\/p>\n

(xx) “Court<\/strong>” shall mean any court or arbitration tribunal of
\nthe United States, any domestic state or any foreign country, and any political
\nsubdivision or agency thereof.<\/p>\n

(xxi) “Escrow Amount<\/strong>” shall mean an amount of cash equal to
\n$7,000,000.<\/p>\n

(xxii) “Estimated Transaction Expenses<\/strong>” shall mean the
\namount of Transaction Expenses (both paid and unpaid) incurred or expected to be
\nincurred by the Company or any other Person (for which the Company may pay or
\nreimburse others or may otherwise be obligated to pay or reimburse others or may
\nbe or may become liable) as of the Closing Date as estimated by the Company in
\ngood faith and based on reasonable assumptions, as set forth on the Statement of
\nExpenses.<\/p>\n

(xxiii) “Exchange Act<\/strong>” shall mean the Securities Exchange
\nAct of 1934, as amended.<\/p>\n

(xxiv) “Expense Escrow Amount”<\/strong> shall mean the amount of cash
\nequal to $150,000.<\/p>\n

(xxv) “Export and Import Approvals<\/strong>” shall mean all export
\nlicenses, license exceptions, consents, notices, waivers, approvals, Orders,
\nauthorizations, registrations, declarations and filings, from or with any
\nGovernmental Entity, that are required for compliance with Export and Import
\nControl Laws.<\/p>\n

(xxvi) “Export and Import Control Laws<\/strong>” shall mean any U.S.
\nor applicable non-U.S. Law, regulation, or Order governing (A) imports, exports,
\nreexports, or transfers of products, services, software, or technologies from or
\nto the United States or another country; (B) any release of technology or
\nsoftware in any foreign country or to any foreign person (anyone other than a
\ncitizen or lawful permanent resident of the United States, or a protected
\nindividual as defined by 8 U.S.C. \u00a7 1324b(a)(3)) located in the United States or
\nabroad; (C) economic sanctions or embargoes; or (D) compliance with unsanctioned
\nforeign boycotts.<\/p>\n

(xxvii) “Fully Diluted Units<\/strong>” shall mean a number equal to
\n(without duplication) (A) the aggregate number of Company Common Units, Company
\nClass A Preferred Units, Company Class B Preferred Units and Company Class C
\nUnits that are outstanding as of immediately prior to the Effective Time, plus
\n(B) the maximum aggregate number of Company Class C Units issuable upon full
\nexercise of all Company Options, and all other securities that are convertible
\ninto, or exercisable or exchangeable for, Company Class C Units, in each case
\ncalculated on a fully diluted basis, that are outstanding as of immediately
\nprior to the Effective Time.<\/p>\n

(xxviii) “GAAP<\/strong>” shall mean United States generally accepted
\naccounting principles consistently applied.<\/p>\n

5<\/p>\n

\n

<\/p>\n

(xxix) “Government Contract<\/strong>” shall mean (A) any Contract bid
\non, solicited, or entered into by or on behalf of the Company with a
\nGovernmental Entity, or (B) any Contract or subcontract bid on, solicited, or
\nentered into by or on behalf of the Company, which, by its terms, relates to a
\nContract to which a Governmental Entity is a party.<\/p>\n

(xxx) “Governmental Entity<\/strong>” shall mean any government, any
\ngovernmental or regulatory entity or body, department, commission, board, agency
\nor instrumentality, and any Court, tribunal or judicial body, in each case
\nwhether federal, state, county, provincial, and whether local or foreign.<\/p>\n

(xxxi) “Governmental Official<\/strong>” shall mean any person elected
\nto a position in, appointed to a position with or otherwise employed by any
\ntransnational, domestic or foreign, federal, state or local, Governmental
\nEntity, department, Court, agency or official, including any political
\nsubdivision thereof (including public universities and hospitals).<\/p>\n

(xxxii) “HSR Act<\/strong>” shall mean the Hart-Scott-Rodino Antitrust
\nImprovements Act of 1976, as amended, and the rules and regulations promulgated
\nthereunder.<\/p>\n

(xxxiii) “Indebtedness<\/strong>” shall mean all liabilities and
\nobligations, including any applicable penalties (including with respect to any
\nprepayment thereof), interest and premiums, without duplication, (A) for
\nborrowed money; (B) evidenced by notes, bonds, debentures, letters of credit or
\nsimilar instruments; (C) for the deferred purchase price of goods or services
\n(other than trade payables or accruals incurred in the ordinary course of
\nbusiness); (D) for all net obligations under interest rate swap agreements, any
\ninterest rate cap agreement, any interest rate collar agreement or other similar
\nagreement or arrangement designed to protect any Person against fluctuations in
\ninterest rates; (E) under capital leases; or (F) in the nature of guarantees of
\nthe obligations described in clauses (A) through and (E), inclusive, above of
\nany other Person.<\/p>\n

(xxxiv) “Interest<\/strong>” in the Company shall mean the entire
\nownership interest of a Member or a Unitholder in the Company.<\/p>\n

(xxxv) “Key Future Employees<\/strong>” shall mean the Employees
\nidentified on Schedule 1.6(a)(xxxv)<\/strong> hereto.<\/p>\n

(xxxvi) “Knowledge<\/strong>” shall mean the knowledge of the persons
\nidentified on Schedule 1.6(a)(xxxvi)<\/strong>, and, except in the case
\nof non-Employee Managers, the knowledge that such persons would be reasonably
\nexpected to have if such persons had, in light of the facts and circumstances,
\nmade reasonable inquiry of all relevant Employees and Consultants.<\/p>\n

(xxxvii) “Law<\/strong>” shall mean any federal, state, local,
\nnon-U.S. or other law (statutory, common or otherwise), statute, constitution,
\ntreaty, convention, ordinance, equitable principle, code, edict, decree, rule,
\nOrder, requirement, regulation, executive order or other similar authority
\nissued, enacted, adopted, promulgated, implemented, applied or otherwise put
\ninto legal effect by or under the authority of any Governmental Entity, each as
\namended and now in effect.<\/p>\n

(xxxviii) “Legal Proceeding<\/strong>” shall mean any action, suit,
\nlitigation, arbitration, proceeding (including any civil, criminal,
\nadministrative, investigative or appellate proceeding), hearing, inquiry, audit,
\nexamination or investigation commenced, brought, conducted or heard by or
\nbefore, or otherwise involving, any court or other Governmental Entity or any
\narbitrator or arbitration panel.<\/p>\n

6<\/p>\n

\n

<\/p>\n

(xxxix) “Liabilities<\/strong>” shall mean all Indebtedness,
\nliabilities, obligations and Taxes, whether accrued or fixed, absolute or
\ncontingent, matured or unmatured, determined or determinable, asserted or
\nunasserted, known or unknown, including those arising under any Law, Action or
\nOrder and those arising under any Contract, excluding in all cases the
\nperformance obligations thereunder.<\/p>\n

(xl) “Lien<\/strong>” shall mean any lien, pledge, charge, claim,
\nmortgage, restriction on transfer, security interest or other encumbrance of any
\nsort.<\/p>\n

(xli) “Member<\/strong>” shall mean any Person admitted to the Company
\nas a member pursuant to the terms and conditions of the Operating Agreement.\n<\/p>\n

(xlii) “Merger Consideration<\/strong>” shall mean an amount of cash
\nequal to $73,000,000 minus<\/em> the sum of (1) the amount of all Change of
\nControl Payments in excess of (A) $500,000 minus<\/u> (B) Transaction Payroll
\nTaxes, if any, (2) the amount of Transaction Expenses set forth in the Statement
\nof Expenses and (3) the amount of the 2011 Bonus Plan.<\/p>\n

(xliii) “Optionholder<\/strong>” shall mean any holder of any Company
\nOptions immediately prior to the Effective Time.<\/p>\n

(xliv) “Order<\/strong>” shall mean any order, ruling, decision,
\nverdict, decree, writ, subpoena, mandate, precept, command, directive, approval,
\naward, judgment, injunction or other similar determination or finding issued,
\ngranted or made by any Governmental Entity.<\/p>\n

(xlv) “Per Unit Consideration<\/strong>” shall mean the amount
\nobtained by dividing<\/em> (A) the Merger Consideration by (B) the Fully
\nDiluted Units.<\/p>\n

(xlvi) Person <\/strong>shall mean an individual or entity, including
\na partnership, a limited liability company, a corporation, an association, a
\njoint stock company, a trust, a joint venture, an unincorporated organization or
\na Governmental Entity (or any department, agency, or political subdivision
\nthereof).<\/p>\n

(xlvii) “Plan<\/strong>” shall mean the Company’s 2007 Unit Option
\nPlan dated January 1, 2007.<\/p>\n

(xlviii) “Pre-Closing Tax Period<\/strong>” shall mean any taxable
\nperiod or portion thereof ending on or before the Closing Date.<\/p>\n

(xlix) “Pre-Closing Taxes<\/strong>” shall mean all Taxes of the
\nCompany attributable to a Pre-Closing Tax Period, including Transaction Payroll
\nTaxes. In the case of any taxable period that includes but does not end on the
\nClosing Date (each, a “Straddle Period”), the Taxes of the Company other than
\nProperty Taxes so attributable to the Pre-Closing Tax Period shall be computed
\nas if the Company had sold its assets to Parent for cash on the Closing Date and
\nliquidated immediately thereafter and the Property Taxes imposed upon the
\nCompany allocable to the Pre-Closing Tax Period shall be equal to the amount of
\nsuch Property Taxes for the entire Straddle Period multiplied by a fraction, the
\nnumerator of which is the number of days during the Straddle Period that are in
\nthe Pre-Closing Tax Period and the denominator of which is the number of days in
\nthe Straddle Period.<\/p>\n

(l) “Pro Rata Portion<\/strong>” shall mean, with respect to each
\nUnitholder (other than a Unitholder holding Dissenting Units who does not
\neffectively withdraw or lose such Unitholder’s dissenter’s rights as
\ncontemplated by Section 1.7(b)<\/strong>) or Optionholder, an amount
\nequal to the quotient<\/p>\n

7<\/p>\n

\n

<\/p>\n

obtained by dividing<\/em> (A) the cash consideration payable pursuant to
\nSections 1.6(b)<\/strong> and 1.6(c)(i)<\/strong> to such
\nUnitholder or Optionholder (including any amounts deposited into the Escrow Fund
\nand the Expense Escrow Account pursuant to this Agreement), by (B) the aggregate
\ncash consideration payable pursuant to Sections<\/strong>
\n1.6(b)<\/strong> and 1.6(c)(i)<\/strong> to all Unitholders (other
\nthan any Unitholders holding Dissenting Units who do not effectively withdraw or
\nlose such Unitholders’ dissenters’ rights as contemplated by Section
\n1.7(b)<\/strong>) and Optionholders (including any amounts deposited into the
\nEscrow Fund and the Expense Escrow Account pursuant to this Agreement);
\nprovided that<\/em>, notwithstanding anything contained in this
\nSection 1.6(a)(l)<\/strong> to the contrary, for purposes of determining
\nthe amount deposited in the Escrow Fund and the Expense Escrow Account, the
\ncalculation of the Pro Rata Portion shall (aa) exclude from the amount included
\nin Subsection (B) immediately above, the aggregate amount of the Small-lot
\nOptionholders’ Payments, and (bb) include in the amount included in Subsection
\n(B) immediately above, the aggregate cash consideration payable to the Bonus
\nPlan Employees pursuant to Section 5.14(b)<\/strong> (including any
\namounts deposited into the Escrow Fund and the Expense Escrow Account pursuant
\nto this Agreement).<\/p>\n

(li) “Property Taxes<\/strong>” shall mean any real, personal or
\nintangible property Taxes.<\/p>\n

(lii) “Related Agreements<\/strong>” shall mean the Nondisclosure
\nAgreement and Certificate of Merger.<\/p>\n

(liii) “Requisite Member Vote<\/strong>” shall mean the affirmative
\nvote of the holders of at least 95% of the outstanding Company Common Units,
\nClass A Preferred Units and Class B Preferred Units, voting together as a single
\nclass.<\/p>\n

(liv) “Securityholder<\/strong>” shall mean any holder of Company
\nUnits, Company Options or other securities that are convertible into or
\nexercisable or exchangeable for, securities of the Company immediately prior to
\nthe Effective Time.<\/p>\n

(lv) “Small-lot Optionholders”<\/strong> shall mean any holder of
\nCompany Small-lot Options immediately prior to the Effective Time.<\/p>\n

(lvi) “Small-lot Optionholders’ Payment”<\/strong> shall mean an
\namount payable to each Small-lot Optionholder as an Optionholder pursuant to the
\nterms of this Agreement.<\/p>\n

(lvii) “Total Outstanding Voting Units<\/strong>” shall mean a number
\nequal to the aggregate number of Company Common Units, Company Class A Preferred
\nUnits and Company Class B Preferred Units that are outstanding as of immediately
\nprior to the Effective Time.<\/p>\n

(lviii) “Transaction Expenses<\/strong>” shall mean (i) all fees,
\ncosts and expenses, whether or not paid, including any and all legal,
\naccounting, consulting, investment banking, financial advisory, and brokerage
\nfees, costs and expenses, incurred by the Company, or any other Person (for
\nwhich the Company may pay or reimburse others or may otherwise be obligated to
\npay or reimburse others or may be or may become liable) in connection with this
\nAgreement, the Merger or any of the transactions contemplated hereby and (ii)
\nany and all fees, costs and expenses relating to or arising from obtaining or
\nmaintaining any tail or runoff insurance policy for the Company’s managers’ and
\nofficers’ insurance.<\/strong><\/p>\n

(lix) “Transaction Payroll Taxes<\/strong>” shall mean the employer
\nportion of any employment or payroll Taxes attributable to or imposed on any
\npayment in connection with the<\/p>\n

8<\/p>\n

\n

<\/p>\n

transactions contemplated by this Agreement, including but not limited to the
\nChange in Control Payments and the cash-out of Company Options, whether payable
\nby Parent or the Company.<\/p>\n

(lx) “Unitholder<\/strong>” shall mean any holder of any Company Units
\nimmediately prior to the Effective Time.<\/p>\n

(b) Effect on Company Units<\/em><\/strong>. At the Effective Time,
\nby virtue of the Merger and without any action on the part of Merger Sub, the
\nCompany or the holders of Company Units, each Company Unit (excluding, for the
\navoidance of doubt, Dissenting Units, which shall be treated as provided for in
\nSection 1.7<\/strong>, and Company Options, which shall be treated as
\nprovided for in Section 1.6(c)<\/strong>) issued and outstanding
\nimmediately prior to the Effective Time, upon the terms and subject to the
\nconditions set forth in this Section 1.6<\/strong> and throughout this
\nAgreement, including the escrow provisions set forth in Article
\nVII,<\/strong> will be cancelled and extinguished and will be converted
\nautomatically into the right to receive, upon submission of the Exchange
\nDocuments in the manner provided in Section 1.8<\/strong>, the Per Unit
\nConsideration (it being understood that for purposes of calculating the amount
\nissuable to each Unitholder pursuant to this Section 1.6(b)<\/strong>,
\nall Company Units held by each Unitholder shall be aggregated).<\/p>\n

(c) Effect on Company Options<\/em><\/strong>.<\/p>\n

(i) Effect on Company Options<\/em><\/strong>. Parent shall not
\nassume any Company Options, and at the Effective Time each Company Option
\noutstanding immediately prior to the Effective Time shall become immediately
\nvested and shall, without any action on the part of Parent, Merger Sub, the
\nCompany or the holder thereof, be cancelled and converted into and shall become
\na right to receive an amount in cash, without interest, equal to (A) the excess,
\nif any, of (x) the amount of cash equal to the Per Unit Consideration over (y)
\nthe exercise price per unit attributable to such Company Option, multiplied
\nby<\/em> (B) the total number of Company Class C Units issuable upon exercise in
\nfull of such Company Option. The payment of any amounts pursuant to this
\nSection 1.6(c)(i)<\/strong> will be subject to withholdings for all
\napplicable Taxes and, except for the Company Small-lot Options, will be subject
\nto the escrow provisions set forth in Article VII<\/strong>.<\/p>\n

(ii) Necessary Actions<\/em><\/strong>. Prior to the Effective
\nTime, and subject to the review and approval of Parent, the Company shall take
\nall actions necessary to effect the transactions anticipated by this
\nSection 1.6(c)<\/strong> under all Company Option agreements and all
\nagreements related to Company Class C Units, including, as applicable, adopting
\nall resolutions, delivering all required notices, and taking any other actions
\nthat are necessary or appropriate to effectuate this Section
\n1.6(c)<\/strong>, including having obtained the agreement by the Optionholders,
\nother than the Small-lot Optionholders, to the escrow and indemnification
\nobligations of the Optionholder set forth in Article VII,<\/strong> the
\ndeposit of the Escrow Amount into the Escrow Fund as contemplated by
\nSection 1.8(b),<\/strong> to the appointment of Reed Colley as
\nSecurityholders’ Representative under and as defined in this Agreement, and to
\nthe deposit of the Expense Escrow Amount into the Expense Escrow Account as
\ncontemplated by Section 7.7(c)<\/strong>. Any notices, consents or other
\ncommunications to holders of Company Options will be subject to the review and
\napproval of Parent, which shall not be unreasonably withheld, conditioned or
\ndelayed, and are referred to herein collectively as the “Option
\nCommunications<\/strong>.”<\/p>\n

(d) Withholding Taxes<\/em><\/strong>. The Company, Parent, the
\nSurviving Company, the Paying Agent and the Escrow Agent, shall be entitled to
\ndeduct and withhold from any consideration payable or otherwise deliverable
\npursuant to this Agreement to any Person such amounts as may be required to be
\ndeducted or withheld therefrom under any provision of federal, state, local or
\nforeign Tax Law or under any applicable Law, and to request and be provided any
\nnecessary Tax forms, including a valid IRS Form W-9 or the appropriate version
\nof Form W-8, as applicable, and any similar information. To the extent<\/p>\n

9<\/p>\n

\n

<\/p>\n

that any payment to any Person is not reduced by such deductions or
\nwithholdings, such Person shall indemnify Parent and its Affiliates (including,
\nafter the Effective Time, the Surviving Company) for any amounts imposed by and
\nrequired to be paid over to any Taxing Authority with respect to any such Taxes,
\ntogether with any costs and expenses relating thereto (including reasonable
\nattorneys’ fees and costs of investigation). To the extent that such amounts are
\nso deducted or withheld, such amounts shall be treated for all purposes under
\nthis Agreement as having been paid to the Person to whom such amounts would
\notherwise have been paid.<\/p>\n

(e) Effect on Capital Stock of Merger Sub<\/em><\/strong>. Each
\nshare of common stock of Merger Sub issued and outstanding immediately prior to
\nthe Effective Time shall be converted into and exchanged for one validly issued,
\nfully paid and nonassessable share of common stock of the Surviving Company.
\nEach stock certificate of Merger Sub evidencing ownership of any such shares
\nshall continue to evidence ownership of such shares of common stock of the
\nSurviving Company.<\/p>\n

1.7 Dissenting Units<\/em><\/strong>.<\/p>\n

(a) Notwithstanding any other provisions of this Agreement to the contrary,
\nany Common Units, Class A Preferred Units or Class B Preferred Units held by a
\nMember who has not effectively withdrawn or lost such Member’s appraisal,
\ndissenters’ or similar rights with respect to such units under Florida Law
\n(collectively, the “Dissenting Units<\/strong>“) shall not be converted
\ninto or represent a right to receive the applicable portion of the Merger
\nConsideration set forth in Section 1.6<\/strong>, but the holder thereof
\nshall only be entitled to such rights as are provided by Florida Law.<\/p>\n

(b) Notwithstanding the provisions of Section 1.7(a)<\/strong>, if any
\nholder of Dissenting Units shall effectively withdraw or lose (through failure
\nto perfect or otherwise) such holder’s appraisal or dissenters’ rights under
\nFlorida Law, then, as of the later of the Effective Time and the occurrence of
\nsuch event, such holder’s units shall automatically be converted into and
\nrepresent only the right to receive the applicable portion of the Merger
\nConsideration set forth in Section 1.6<\/strong>, without interest
\nthereon, and subject to the provisions of Section 7.5<\/strong>, upon
\nsubmission of the Exchange Documents.<\/p>\n

(c) The Company shall comply with the applicable requirements under Sections
\n608.4351-608.43595 of the Florida Limited Liability Company Act (the
\n“Florida LLC Act<\/strong>“) under Florida Law. The Company shall give
\nParent (i) prompt notice of any written demand for appraisal received by the
\nCompany pursuant to the applicable provisions of the Florida LLC Act and (ii)
\nthe opportunity to participate in all negotiations and proceedings with respect
\nto such demands. The Company shall not, except with the prior written consent of
\nParent, make any payment with respect to any such demands or offer to settle or
\nsettle any such demands. Notwithstanding the foregoing, to the extent that
\nParent, the Surviving Company or the Company (A) makes any payment or payments
\nin respect of any Dissenting Units in excess of the consideration that otherwise
\nwould have been payable in respect of such units in accordance with this
\nAgreement, or (B) incurs any Losses (including attorneys’ and consultants’ fees,
\ncosts and expenses and including any such fees, costs and expenses incurred in
\nconnection with investigating, defending against or settling any action or
\nproceeding) in respect of any Dissenting Units (excluding payments for such
\nunits) ((A) and (B) together, “Dissenting Unit Payments<\/strong>“),
\nParent shall be entitled to recover under the terms of Article
\nVII<\/strong> the amount of such Dissenting Unit Payments.<\/p>\n

1.8 Surrender of Company Units<\/em><\/strong>.<\/p>\n

(a) Paying Agent<\/em><\/strong>. U.S. Bank National Association
\nshall serve as the paying agent (the “Paying Agent<\/strong>“) for the
\nMerger.<\/p>\n

10<\/p>\n

\n

<\/p>\n

(b) Parent to Provide Consideration<\/em><\/strong>. On the Closing
\nDate, Parent shall make available to the Paying Agent for exchange in accordance
\nwith this Article I<\/strong> that portion of the Merger Consideration
\npayable pursuant to Section 1.6<\/strong>; provided, however<\/em>,
\nthat Parent shall deposit into the Escrow Fund and the Expense Escrow Account,
\namounts of cash equal to the Escrow Amount and the Expense Escrow Amount,
\nrespectively, out of the aggregate Merger Consideration otherwise payable to the
\nUnitholders and Optionholders pursuant to Section 1.6<\/strong>. Parent
\nshall be deemed to have deposited each Unitholder’s and Optionholder’s Pro Rata
\nPortion of the Escrow Amount and the Expense Escrow Amount into the Escrow Fund
\nand the Expense Escrow Account, respectively, at such time, rounded to the
\nnearest cent.<\/p>\n

(c) Exchange Procedures<\/em><\/strong>.<\/p>\n

(i) The parties hereby acknowledge that the Company Units are not
\ncertificated. As soon as practicable, but in no event more than three Business
\nDays following the Closing Date, Parent or the Paying Agent shall mail a letter
\nof transmittal in Parent’s standard form to each Unitholder at the address set
\nforth opposite each Unitholder’s name on the Spreadsheet. After receipt of such
\nletter of transmittal and any other documents that Parent or the Paying Agent
\nmay reasonably require in order to effect the exchange of Company Units for the
\npayments set forth in Section 1.6(b)<\/strong> (the “Exchange
\nDocuments<\/strong>“), the Unitholders will submit duly completed and validly
\nexecuted Exchange Documents to the Paying Agent. Parent shall submit a copy of
\nthe proposed Exchange Documents to the Company for review at least three
\nBusiness Days prior to the Closing Date. Upon submission of such Exchange
\nDocuments, duly completed and validly executed in accordance with the
\ninstructions thereto to the Paying Agent, or such other agent or agents as may
\nbe appointed by Parent, the applicable Unitholder shall be entitled to receive
\nfrom the Paying Agent in exchange therefor the cash payment, without interest,
\nto which such holder is entitled pursuant to Section 1.6<\/strong> (less
\nthe Pro Rata Portion of the cash to be deposited in the Escrow Fund and the
\nExpense Escrow Account pursuant to Section 1.8(b)<\/strong> and
\nArticle VII<\/strong>). No portion of the Merger Consideration will be
\npaid with respect to Company Units until the holder of record of such units
\nshall submit such Exchange Documents pursuant hereto.<\/p>\n

(ii) On or prior to the Closing Date, Parent shall make available to the
\nCompany or the Surviving Company, as applicable, for exchange in accordance with
\nthis Article I<\/strong> that portion of the Merger Consideration payable
\npursuant to Section 1.6<\/strong> in exchange for outstanding Company
\nOptions. Promptly following the Closing Date, and upon receipt by the Surviving
\nCompany or Parent, as applicable, of Option Communications, each holder
\ndelivering such Option Communications shall be entitled to receive from the
\nSurviving Company or Parent, as applicable, the cash payment, without interest,
\nto which such holder is entitled pursuant to Section 1.6<\/strong> (less
\nthe Pro Rata Portion of the cash to be deposited in the Escrow Fund and the
\nExpense Escrow Account pursuant to Section 1.8(b)<\/strong> and
\nArticle VII<\/strong>). Notwithstanding anything to the contrary in this
\nAgreement, Parent shall be entitled to withhold or cause to be withheld that
\nportion of the Merger Consideration payable in respect of Company Options and
\nParent (or the Surviving Company) shall distribute, or cause to be distributed,
\nsuch portion of the Merger Consideration (less the Pro Rata Portion of the cash
\nto be deposited in the Escrow Fund and the Expense Escrow Account pursuant to
\nSection 1.8(b)<\/strong> and Article VII<\/strong>) to the holders
\nof Company Options (including by means of a payroll processor) upon receipt by
\nParent (or the Surviving Company) of the Option Communications (in each case,
\nless any applicable Tax withholding).<\/p>\n

(d) No Liability<\/em><\/strong>. Notwithstanding anything to the
\ncontrary in this Section 1.8<\/strong>, neither the Paying Agent, the
\nSurviving Company nor any party hereto shall be liable to a holder of Company
\nUnits for any amount paid to a public official pursuant to any applicable
\nabandoned property, escheat or similar Law.<\/p>\n

11<\/p>\n

\n

<\/p>\n

(e) Paying Agent to Return Undistributed
\nConsideration<\/em><\/strong>. All funds held from time to time by the Paying
\nAgent pursuant to this Section 1.8<\/strong> shall be invested by the
\nPaying Agent as directed by Parent pending payment thereof by the Paying Agent
\nto the Unitholders in accordance with the terms hereof. All interest and other
\nearnings from any investment of funds held from time to time by the Paying Agent
\npursuant to this Section 1.8<\/strong> shall be the sole and exclusive
\nproperty of Parent, and no part of such interest or other earnings shall accrue
\nto or for the benefit of any Unitholders. At any time following the six month
\nanniversary of the Closing Date, Parent shall be entitled to require the Paying
\nAgent to deliver to Parent or its designated successor or assign all cash
\namounts that have been deposited with the Paying Agent pursuant to this
\nAgreement, and any and all interest thereon or other income or proceeds thereof,
\nnot disbursed to the Unitholders pursuant to this Agreement, and thereafter the
\nUnitholders shall be entitled to look only to Parent as general creditors
\nthereof with respect to any and all cash amounts that may be payable or issuable
\nto such Unitholders in the manner set forth in this Agreement. No interest shall
\nbe payable for the cash amounts delivered to Parent pursuant to the provisions
\nof this Section 1.8(e) <\/strong>and that are subsequently delivered to
\nthe Unitholders.<\/p>\n

1.9 No Further Ownership Rights in Company Units<\/em><\/strong>.
\nThe cash paid in respect of the surrender for exchange of Company Units in
\naccordance with the terms hereof shall be deemed to constitute full satisfaction
\nof all rights pertaining to such Company Units, and, from and after the
\nEffective Time, there shall be no further registration of transfers on the
\nrecords of the Surviving Company of Company Units that were outstanding
\nimmediately prior to the Effective Time. If, after the Effective Time, any
\ninstruments of surrender, notices or other evidence of ownership in the Company
\nUnits are presented to the Surviving Company or the Paying Agent for any reason,
\nthey shall be cancelled and exchanged as provided in this Article
\nI<\/strong>.<\/p>\n

1.10 Taking of Necessary Action; Further Actions<\/em><\/strong>.
\nIf at any time after the Effective Time, any further action is necessary or
\ndesirable to carry out the purposes of this Agreement and to vest the Surviving
\nCompany with full right, title and possession to all assets, property, rights,
\nprivileges, powers and franchises of the Company, Parent and the Surviving
\nCompany and the officers and directors or managers of Parent and the Surviving
\nCompany are fully authorized in the name of their respective corporations or
\notherwise to take, and will take, all such lawful and necessary action, in all
\ncases subject to the terms and conditions of this Agreement.<\/p>\n

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

REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/strong>\n<\/p>\n

The Company hereby represents and warrants to Parent and Merger Sub, subject
\nto disclosure and exceptions as is specifically set forth in the Disclosure
\nSchedule (as defined below) (each of which disclosures and exceptions, in order
\nto be effective, shall clearly reference the appropriate section and, if
\napplicable, subsection of this Article II<\/strong> to which it relates,
\nand each of which disclosures shall be deemed to be incorporated by reference
\ninto the representations and warranties made in the section of this
\nArticle II<\/strong>); provided, however<\/em>, that any information
\ndisclosed under any section of the Disclosure Schedule shall be deemed disclosed
\nand incorporated into any other section of the Disclosure Schedule where it is
\nreasonably apparent that such disclosure, without reference to extrinsic
\ndocumentation, is relevant to such other section of the Disclosure Schedule
\ndelivered by the Company to Parent concurrently with the execution of this
\nAgreement (the “Disclosure Schedule<\/strong>“) dated as of the date
\nhereof, on the date hereof and on and as of the Closing Date, as follows:<\/p>\n

12<\/p>\n

\n

<\/p>\n

2.1 Organization of the Company<\/em><\/strong>.<\/p>\n

(a) The Company is a limited liability company duly organized, validly
\nexisting and in good standing under the laws of the State of Florida. The
\nCompany has the corporate power to own its properties and to carry on its
\nbusiness as currently conducted and as currently contemplated to be conducted.
\nThe Company is duly qualified or licensed to do business and is in good standing
\nas a foreign corporation in each jurisdiction in which the character or location
\nof its assets or properties (whether owned, leased or licensed) or the nature of
\nits business make such qualifications necessary, except where the failure to so
\nqualify would not be material to the Company. The Company has made available to
\nParent a true, correct and complete copy of its Articles of Organization and
\nlimited liability company operating agreement, as amended to date (the
\n“Operating Agreement<\/strong>“) (collectively, the “Charter
\nDocuments<\/strong>“). The Board of Managers of the Company has not approved or
\nproposed any amendment to any of the Charter Documents.<\/p>\n

(b) Section 2.1(b) <\/strong>of the Disclosure Schedule lists the
\nmanagers and officers of the Company as of the date hereof. The operations now
\nbeing conducted by the Company are not now, and have never been, conducted by
\nthe Company under any other corporate name.<\/p>\n

(c) Section 2.1(c) <\/strong>of the Disclosure Schedule lists every
\nstate or foreign jurisdiction in which the Company has Employees or facilities
\nor otherwise conducts its business.<\/p>\n

2.2 Company Capital Structure<\/em><\/strong>.<\/p>\n

(a) The Company Units are owned by the Persons and in the amounts set forth
\non Section 2.2(a) <\/strong>of the Disclosure Schedule, which further
\nsets forth, for each such Person, (A) such Person’s address; (B) the number of
\nCompany Units held by such Person (including whether such Company Units are
\nCompany Common Units, Company Class A Preferred Units, Company Class B Preferred
\nUnits or Company Class C Units); (C) the liquidation preference applicable to
\neach Company Class A Preferred Unit and Company Class B Preferred Unit held by
\nsuch Person, if any; (D) the date of acquisition of such units, (E) the Pro Rata
\nPortion applicable to such Person; (F) the amount of cash to be paid to each
\nholder pursuant to Section 1.6<\/strong>; and (G) the amount of cash, if
\nany, to be paid by or on behalf of such Person in settlement of Tax withholding
\nobligations pursuant to Section 1.6(d)<\/strong>. All outstanding Company
\nUnits are duly authorized, validly issued, fully paid and non-assessable and,
\nexcept as set forth on Section 2.2(a) <\/strong>of the Disclosure
\nSchedule, are not subject to preemptive rights created by statute, the Charter
\nDocuments or any agreement to which the Company is a party or by which it is
\nbound. All outstanding Company Units and Company Options have been issued or
\nrepurchased (in the case of Company Units or Company Options that were
\noutstanding and repurchased by the Company or any Unitholder) in compliance with
\nall applicable federal, state, foreign, or local statutes, Laws, rules or
\nregulations, including federal and state securities Laws, and were issued,
\ntransferred and repurchased (in the case of Company Units or Company Options
\nthat were outstanding and repurchased by the Company or any Securityholder) in
\naccordance with any right of first refusal or similar right or limitation,
\nincluding those in the Charter Documents. Except as set forth on
\nSection 2.2(a) <\/strong>of the Disclosure Schedule, no Securityholder
\nhas exercised any right of redemption, if any, provided for in the Operating
\nAgreement with respect to Company Class A Preferred Units or Company Class B
\nPreferred Units, and the Company has not received notice that any Securityholder
\nintends to exercise such rights. Except as set forth on Section 2.2(a)
\n<\/strong>of the Disclosure Schedule, no Company Units are unvested. For purposes
\nof this Agreement, a Company Unit shall be deemed to be “unvested” if such
\nCompany Unit is not vested or is subject to a repurchase option, risk of
\nforfeiture or other condition under any applicable unit restriction agreement or
\nother agreement with the Company. Except as set forth on Section 2.2(a)
\n<\/strong>of the Disclosure Schedule, there are no other “membership interests”
\nof the Company and no outstanding commitments to issue any membership interests
\nafter the date of this Agreement. For purposes of this Agreement, a<\/p>\n

13<\/p>\n

\n

<\/p>\n

“membership interest” shall be deemed to be an Interest (as such term is
\ndefined in the Operating Agreement). Except as set forth on Section
\n2.2(a) <\/strong>of the Disclosure Schedule, membership interests of the Company
\nare free and clear of any pledge, lien, security interest, encumbrance, claim or
\nequitable interest, and are not subject to preemptive rights, rights of first
\nrefusal, rights of first offer or similar rights created by statute, the
\nOperating Agreement or any agreement to which the Company is a party or to which
\nit is bound. All of the issued and outstanding Company Units have been offered,
\nissued and sold by the Company in compliance with all applicable federal and
\nstate securities or “blue sky” Laws. There is no indebtedness having the right
\nto vote on any matters on which the Members may vote.<\/p>\n

(b) Except for the Plan and as set forth on Section 2.2(b)
\n<\/strong>of the Disclosure Schedule, the Company has never adopted, sponsored or
\nmaintained any unit option plan or any other plan or agreement providing for
\nequity compensation to any Person. Under the Plan, Class C Units may be issued
\nto Employees, Managers and Consultants upon the issuance of units or the
\nexercise of Company Options granted under the Plan, of which (1) 1,436,634 units
\nare issuable, as of the date of this Agreement, upon the exercise of
\noutstanding, unexercised Company Options granted under the Plan; and (2) 100,000
\nunits have been issued upon the exercise of Company Options granted under the
\nPlan and remain outstanding as of the date of this Agreement. No Company Class C
\nUnits are issuable upon the exercise of outstanding Company Options that have
\nnot been issued under the Plan. Section 2.2(b) <\/strong>of the
\nDisclosure Schedule sets forth, for each outstanding Company Option, (A) the
\nname of the holder of such option; (B) the type of entity of such holder, and
\nany ultimate parent entity of such holder, if not an individual; (C) the address
\nof such holder on file with the Company; (D) the number of Company Class C Units
\nissuable upon the exercise of such option; (E) the exercise price of such
\noption; (F) the date of grant of such option; (G) the vesting schedule for such
\noption, including the extent vested as of the date of this Agreement and whether
\nthe vesting of such option is subject to acceleration as a result of the
\ntransactions contemplated by this Agreement or any other events (including a
\ncomplete description of any such acceleration provisions); and (H) whether such
\noption was issued pursuant to the Plan. True, correct and complete copies of all
\nagreements and instruments relating to or issued pursuant to the Plan have been
\nmade available to Parent and such agreements and instruments have not been
\namended, modified or supplemented, and there are no agreements to amend, modify
\nor supplement such agreements or instruments from the forms thereof made
\navailable to Parent.<\/p>\n

(c) Except for the Company Options and as set forth in Section 2.2(c)
\n<\/strong>of the Disclosure Schedule, there are no options, warrants, calls,
\nrights, convertible securities, commitments or agreements of any character,
\nwritten or oral, to which the Company is a party or by which the Company is
\nbound that obligate the Company to issue, deliver, sell, repurchase or redeem,
\nor cause to be issued, delivered, sold, repurchased or redeemed, any Company
\nUnits or other membership units in the Company or obligating the Company to
\ngrant, extend, accelerate the vesting of, change the price of, otherwise amend
\nor enter into any such option, warrant, call, right, commitment or agreement.
\nThere are no outstanding or authorized unit appreciation, phantom unit, profit
\nparticipation, or other similar rights with respect to the equity of the Company
\n(whether payable in equity, cash or otherwise). Except as contemplated hereby or
\nas set forth in Section 2.2(c) <\/strong>of the Disclosure Schedule,
\nthere are no voting trusts, proxies, or other agreements or understandings with
\nrespect to the voting interests of the Company. Other than the Operating
\nAgreement, there are no agreements to which the Company is a party relating to
\nthe registration, sale or transfer (including agreements relating to rights of
\nfirst refusal, co-sale rights or “drag-along” rights) of any Company Units. As a
\nresult of the Merger, Parent will be the sole record and beneficial holder of
\nall issued and outstanding Company Units, all membership interests in the
\nCompany and all rights to acquire or receive any Company Units, whether or not
\nsuch Company Units are outstanding.<\/p>\n

14<\/p>\n

\n

<\/p>\n

(d) Section 2.2(d) <\/strong>of the Disclosure Schedule sets forth the
\noutstanding principal, accrued interest and applicable rate of interest of all
\noutstanding loans from the Company to any Securityholder.<\/p>\n

(e) The allocation of the Merger Consideration set forth in Section
\n1.6(b) <\/strong>is and will be consistent with the Operating Agreement as of
\nimmediately prior to the Effective Time.<\/p>\n

(f) The information contained in the Spreadsheet will be true, correct and
\ncomplete as of the Closing Date.<\/p>\n

(g) Except as set forth on Section 2.2(g) <\/strong>of the Disclosure
\nSchedule, the Company does not have, and has never had, any subsidiaries or
\nAffiliates, and does not otherwise own and has never otherwise owned any shares
\nof capital stock or any interest in, and does not control and has never
\ncontrolled, directly or indirectly, any other Person. The Company is not a
\nparticipant in any joint venture, partnership, limited liability company or
\nsimilar arrangement. Since its inception, the Company has not consolidated or
\nmerged with, or acquired all or substantially all of the assets of, or acquired
\nthe stock of or any interest in, any Person.<\/p>\n

2.3 Authority<\/em><\/strong>.<\/p>\n

(a) The Company has all requisite power and authority to enter into this
\nAgreement and any Related Agreements to which it is a party and to consummate
\nthe transactions contemplated hereby and thereby. The execution and delivery of
\nthis Agreement and any Related Agreements to which the Company is a party, and
\nthe consummation of the transactions contemplated hereby and thereby, have been
\nduly authorized by all necessary corporate action on the part of the Company and
\nno further action is required on the part of the Company to authorize the
\nAgreement and any Related Agreements to which it is a party and the transactions
\ncontemplated hereby and thereby, other than the approval of this Agreement and
\nthe transactions contemplated hereby by the Members. The vote required to
\napprove this Agreement and the transactions contemplated hereby by the Members
\nis set forth on Section 2.3<\/strong> of the Disclosure Schedule. This
\nAgreement and the transactions contemplated hereby have been unanimously
\napproved by the Board of Managers of the Company. This Agreement and each of the
\nRelated Agreements to which the Company is a party have been duly executed and
\ndelivered by the Company.<\/p>\n

(b) Assuming the due authorization, execution and delivery by the other
\nparties hereto and thereto, this Agreement and each of the Related Agreements to
\nwhich the Company is a party constitute the valid and binding obligations of the
\nCompany enforceable against it in accordance with their respective terms, except
\nas such enforceability may be limited by bankruptcy, insolvency, moratorium and
\nother similar laws affecting creditors’ rights generally and by general
\nprinciples of equity.<\/p>\n

2.4 No Conflict<\/em><\/strong>. Except as set forth on
\nSection 2.4<\/strong> of the Disclosure Schedule, the execution and
\ndelivery by the Company of this Agreement and any Related Agreement to which the
\nCompany is a party, and the consummation of the transactions contemplated hereby
\nand thereby, will not conflict with or result in any violation of or default
\nunder (with or without notice or lapse of time or both) or give rise to a right
\nof first refusal, termination, cancellation, modification or acceleration of any
\nobligation or loss of any benefit under (any such event, a
\n“Conflict<\/strong>“) (a) any provision of the Charter Documents; (b) any
\nmaterial mortgage, indenture, lease (including all Lease Agreements), binding
\n(whether oral or written) contract, covenant, plan, insurance policy or other
\nagreement, instrument or commitment, permit, concession, franchise or license
\n(each a “Contract<\/strong>” and collectively the
\n“Contracts<\/strong>“) to which the Company is a party or by which any of
\nits properties or assets (whether tangible or intangible) are bound; or (c) any
\nmaterial judgment, Action, Order, decree, statute, Law, ordinance, rule or
\nregulation applicable<\/p>\n

15<\/p>\n

\n

<\/p>\n

to the Company or any of its properties or assets (whether tangible or
\nintangible). Section 2.4<\/strong> of the Disclosure Schedule sets forth
\nall necessary notices, consents, waivers and approvals that are required under
\nany Contract in connection with the consummation of the Merger or for any such
\nContract to remain in full force and effect without limitation, modification or
\nalteration after the Effective Time so as to preserve all rights of, and
\nbenefits to, the Company pursuant to each such Contract from and after the
\nEffective Time. Except as set forth on Section 2.4<\/strong> of the
\nDisclosure Schedule, following the Effective Time, the Surviving Company will be
\npermitted to exercise all of its rights under the Contracts without the payment
\nof any additional amounts or consideration other than ongoing fees, royalties or
\npayments that the Company would otherwise be required to pay pursuant to the
\nterms of such Contracts had the transactions contemplated by this Agreement not
\noccurred.<\/p>\n

2.5 Consents<\/em><\/strong>. Except as set forth on
\nSection 2.4<\/strong> of the Disclosure Schedule, no consent, notice,
\nwaiver, approval, Order or authorization of, or registration, declaration or
\nfiling with, any Governmental Entity or any third party, including a party to
\nany agreement with the Company (so as not to trigger any Conflict), is required
\nby, or with respect to, the Company in connection with the execution and
\ndelivery of this Agreement and any Related Agreement to which the Company is a
\nparty or the consummation of the transactions contemplated hereby and thereby
\nexcept for (a) such consents, notices, waivers, approvals, Orders,
\nauthorizations, registrations, declarations and filings as may be required under
\napplicable securities laws; (b) if necessary or required, the filing of the
\nNotification and Report Forms with the United States Federal Trade Commission
\n(“FTC<\/strong>“) and the Antitrust Division of the United States
\nDepartment of Justice (“DOJ<\/strong>“) required by the HSR Act and the
\nexpiration or termination of the applicable waiting period under the HSR Act and
\nsuch consents, waivers, approvals, Orders, authorizations, registrations,
\ndeclarations and filings as may be required under the foreign merger control
\nregulations; (c) the filing of the Certificate of Merger with the Secretary of
\nState of the State of Florida; (d) the adoption of this Agreement and approval
\nof the transactions contemplated by this Agreement by the Unitholders; and (e)
\nsuch notices, consents, waivers and approvals as are set forth in
\nSection 2.4<\/strong> of the Disclosure Schedule.<\/p>\n

2.6 Company Financial Statements<\/em><\/strong>.<\/p>\n

(a) Section 2.6(a) <\/strong>of the Disclosure Schedule sets forth the
\nCompany’s (a) audited balance sheet as of each of December 31, 2008 and December
\n31, 2009 and unaudited balance sheet as of December 31, 2010 (December 31, 2010,
\nthe “Balance Sheet Date<\/strong>“), and the related statements of
\nincome, cash flow and unitholders’ equity for the respective 12 month periods
\nthen ended (the “Year-End Financials<\/strong>“); and (b) the unaudited
\nbalance sheet as of March 31, 2011 and the related unaudited statements of
\nincome, cash flow and unitholders’ equity for the quarter then ended (the
\n“Interim Financials<\/strong>“).<\/p>\n

(b) The Year-End Financials and the Interim Financials (together, the
\n“Financials<\/strong>“) are true, correct and complete in all material
\nrespects and have been prepared in accordance with GAAP applied on a consistent
\nbasis throughout the periods indicated and consistent with each other (except
\nthat the Interim Financials do not contain footnotes and other presentation
\nitems that may be required by GAAP). The Financials present fairly the Company’s
\nfinancial condition, operating results and cash flows as of the dates and during
\nthe periods indicated therein, subject in the case of the Interim Financials to
\nnormal year-end adjustments, which are not material in amount or significance in
\nany individual case or in the aggregate. The Company’s unaudited balance sheet
\nas of March 31, 2011 is referred to hereinafter as the “Current Balance
\nSheet<\/strong>.” The Company has not had any disagreement (as such term is
\ndefined in Item 304 of Regulation S-K promulgated under the Exchange Act) with
\nany of its auditors regarding accounting matters or policies during any of its
\npast three full fiscal years or during the current fiscal year-to-date. The
\nbooks and records of the Company have been, and are being, maintained in all
\nmaterial respects in accordance with applicable legal and accounting
\nrequirements and the Financials are<\/p>\n

16<\/p>\n

\n

<\/p>\n

consistent with such books and records. The Company is not a party to, and
\ndoes not have any commitment to become a party to, any joint venture,
\noff-balance sheet partnership or any similar Contract relating to any
\ntransaction or relationship between or among the Company, on the one hand, and
\nany unconsolidated Affiliate, including any structured finance, special purpose
\nor limited purpose Person, on the other hand, or any “off-balance sheet
\narrangement” (as defined in Item 303(a) of Regulation S-K promulgated under the
\nExchange Act). As of the Closing Date, the Financials (i) will be true, correct
\nand complete in all material respects and will have been prepared in accordance
\nwith GAAP applied on a consistent basis throughout the periods indicated and
\nconsistent with each other (except that the Interim Financials do not contain
\nfootnotes and other presentation items that may be required by GAAP), and (ii)
\nwill present fairly the Company’s financial condition, operating results and
\ncash flows as of the dates and during the periods indicated therein. The Company
\nhas identified all uncertain tax positions, if any, contained in all Returns
\nfiled by the Company and has established adequate reserves and made any
\nappropriate disclosures in the Financials in accordance with the requirements of
\nASC 740-10 (formerly Financial Interpretation No. 48 of Financial Accounting
\nStandards Board Statement No. 109, Accounting for Uncertain Tax Positions).<\/p>\n

2.7 Internal Controls<\/em><\/strong>. The Company has established
\nand maintains a system of internal accounting controls that are effective in
\nproviding reasonable assurance regarding the reliability of financial reporting
\nand the preparation of financial statements in accordance with GAAP (including
\nthe Financials), including procedures that (a) require the maintenance of
\nrecords that in reasonable detail accurately and fairly reflect the transactions
\nand dispositions of the assets of the Company; (b) provide assurance that such
\ntransactions are recorded as necessary to permit preparation of financial
\nstatements in accordance with GAAP and that receipts and expenditures of the
\nCompany are being made only in accordance with appropriate authorizations of
\nmanagement and the Board of Managers of the Company; and (c) provide assurance
\nregarding prevention or timely detection of unauthorized acquisition, use or
\ndisposition of the assets of the Company. Neither the Company (including any
\nEmployee) nor, to the Company’s Knowledge, the Company’s independent auditors
\nhas identified or been made aware of (i) any significant deficiency or material
\nweakness in the system of internal accounting controls utilized by the Company;
\n(ii) any fraud or other wrongdoing that involves the Company’s management or
\nother Employees who have a role in the preparation of financial statements or
\nthe internal accounting controls utilized by the Company; or (iii) any claim or
\nallegation regarding any of the foregoing.<\/p>\n

2.8 No Undisclosed Liabilities<\/em><\/strong>. The Company does
\nnot have any Liability, Indebtedness, obligation, expense, dispute, claim,
\ndeficiency, guaranty or endorsement of any type, whether accrued, absolute,
\ncontingent, matured, unmatured or other (whether or not required to be reflected
\nin Financials in accordance with GAAP), except for those that (a) have been
\nreflected in the Current Balance Sheet; (b) have arisen in the ordinary course
\nof business consistent with past practices since the Balance Sheet Date and do
\nnot exceed $25,000 individually or $50,000 in the aggregate; or (c) as of the
\nClosing are Transaction Expenses listed on the Statement of Expenses.<\/p>\n

2.9 No Changes<\/em><\/strong>. Since the Balance Sheet Date, (i)
\nthe business of the Company has been conducted in the ordinary course consistent
\nwith past practice; (ii) there has not been any Effect that has had or would
\nreasonably be expected to have, individually or in the aggregate, a Company
\nMaterial Adverse Effect; and (iii) there has not been any action or event, nor
\nany authorization, commitment or agreement by the Company with respect to any
\naction or event that, if taken or if it occurred after the date of this
\nAgreement, would be prohibited by Section 4.1<\/strong>, other than as
\ndisclosed in Section 4.1<\/strong> of the Disclosure Schedule.<\/p>\n

17<\/p>\n

\n

<\/p>\n

2.10 Accounts Receivable<\/em><\/strong>.<\/p>\n

(a) The Company has made available to Parent a list of all accounts
\nreceivable of the Company as of the Balance Sheet Date, together with an aging
\nschedule indicating a range of days elapsed since invoice (such list and aging
\nschedule, the “A\/R Schedule<\/strong>“).<\/p>\n

(b) All of the accounts receivable of the Company set forth on the A\/R
\nSchedule (i) arose in the ordinary course of business; (ii) are carried at
\nvalues determined in accordance with GAAP consistently applied; (iii) are not
\nsubject to any valid set-off or counterclaim; (iv) do not represent obligations
\nfor goods sold on consignment, on approval, subject to acceptance, or on a
\nsale-or-return basis or subject to any other repurchase or return arrangement;
\nand (v) are collectible except to the extent of reserves therefor set forth in
\nthe Current Balance Sheet or, for receivables arising subsequent to the Balance
\nSheet Date, as reflected on the books and records of the Company (which
\nreceivables are recorded in accordance with GAAP consistently applied). Except
\nas set forth in Section 2.10(b) <\/strong>of the Disclosure Schedule, no
\nPerson has any Lien on any accounts receivable of the Company, and no request or
\nagreement for deduction or discount has been made with respect to any accounts
\nreceivable of the Company other than in the ordinary course of business
\nconsistent with past practices and no greater than $5,000 individually or
\n$25,000 in the aggregate.<\/p>\n

2.11 Tax Matters<\/em><\/strong>.<\/p>\n

(a) Definition of Taxes<\/em><\/strong>. For the purposes of this
\nAgreement, the term “Tax<\/strong>” or, collectively,
\n“Taxes<\/strong>” shall mean (i) any and all U.S. federal, state, local
\nand non-U.S. taxes, assessments and other governmental charges, duties,
\nimpositions and liabilities, including taxes based upon or measured by gross
\nreceipts, income, profits, sales, use and occupation, and value added, ad
\nvalorem, transfer, franchise, withholding, payroll, recapture, escheat,
\nemployment, excise and property taxes as well as public imposts, fees and social
\nsecurity charges (including health, unemployment, workers’ compensation and
\npension insurance), together with all interest, penalties and additions imposed
\nwith respect to such amounts, (ii) any liability for the payment of any amounts
\nof the type described in clause (i) of this Section 2.11(a) <\/strong>as
\na result of being a member of an affiliated, consolidated, combined, unitary or
\nsimilar group for any period (including any arrangement for group or consortium
\nrelief or similar arrangement), and (iii) any liability for the payment of any
\namounts of the type described in clauses (i) or (ii) of this Section
\n2.11(a) <\/strong>as a result of any obligation to indemnify any other Person or
\nas a result of any obligation under any agreement or arrangement with any other
\nPerson with respect to such amounts and including any liability for taxes of a
\npredecessor or transferor or otherwise by operation of law.<\/p>\n

(b) Tax Returns and Audits<\/em><\/strong>.<\/p>\n

(i) The Company has (A) prepared and timely filed all required U.S. federal,
\nstate, local and non-U.S. returns, estimates, information statements and
\nreports, including attachments and amendments thereto relating to any and all
\nTaxes concerning or attributable to the Company or its operations
\n(“Returns<\/strong>“) and such Returns are true, correct and complete and
\nhave been completed in accordance with applicable law, and (B) timely paid all
\nTaxes it is required to pay.<\/p>\n

(ii) The Company has paid or withheld with respect to its employees and other
\nthird parties all U.S. federal, state, local and non-U.S. income Taxes and
\nsocial security charges and similar fees, Federal Insurance Contribution Act
\namounts, Federal Unemployment Tax Act amounts and all other Taxes required to be
\nwithheld or paid, and has timely paid any such Taxes withheld over to the
\nappropriate authorities.<\/p>\n

18<\/p>\n

\n

<\/p>\n

(iii) The Company has not been delinquent in the payment of any material Tax,
\nnor is there any Tax deficiency outstanding, assessed or proposed against the
\nCompany, nor has the Company executed any waiver of any statute of limitations
\non or extending the period for the assessment or collection of any Tax.<\/p>\n

(iv) No audit or other examination of any Return of the Company is presently
\nin progress, nor has the Company been notified of any request for such an audit
\nor other examination. No adjustment relating to any Return filed by the Company
\nhas been proposed by any Tax authority to the Company or any representative
\nthereof and is pending. No claim has ever been made by a Tax authority that the
\nCompany is or may be subject to taxation in a jurisdiction in which it does not
\nfile Returns.<\/p>\n

(v) As of the Balance Sheet Date and as of the date of the Interim
\nFinancials, the Company did not have any liabilities for unpaid Taxes that had
\nnot been accrued or reserved on the Current Balance Sheet or the Interim
\nFinancials, as applicable, whether asserted or unasserted, contingent or
\notherwise, and the Company has not incurred any liability for Taxes since the
\nBalance Sheet Date other than in the ordinary course of business consistent with
\npast practice. Adequate accruals or reserves have been established in the
\nCompany’s Tax and accounting books and records for all liabilities for Taxes
\nincurred by the Company since the date of the Interim Financials, whether
\nasserted or unasserted, contingent or otherwise.<\/p>\n

(vi) The Company has made available to Parent copies of all Returns for the
\nCompany filed for all periods since the year ended December 31, 2007.<\/p>\n

(vii) There are (and immediately following the Effective Time there will be)
\nno Liens on the assets of the Company relating to or attributable to Taxes other
\nthan Liens for Taxes not yet due and payable. There is no basis for the
\nassertion of any claim relating or attributable to Taxes that, if adversely
\ndetermined, would result in any Lien on the assets of the Company.<\/p>\n

(viii) The Company has never engaged in a “reportable transaction” as set
\nforth in Treas. Reg. \u00a71.6011-4(b), including any transaction that is the same or
\nsubstantially similar to one of the types of transactions that the IRS has
\ndetermined to be a Tax avoidance transaction and identified by notice,
\nregulation, or other form of published guidance as a “listed transaction,” as
\nset forth in Treasury Regulation Section 1.6011-4(b)(2).<\/p>\n

(ix) The Company has been treated and is and has been validly classified for
\nU.S. federal income tax purposes as a partnership or disregarded entity at all
\ntimes since inception. No election has been made within the last sixty (60)
\nmonths to change the Company’s tax classification for U.S. federal income tax
\npurposes.<\/p>\n

(x) The Company is not and has not at any time been treated as resident in
\nany country other than the United States for any Tax purpose (including under
\nany Tax treaty). The Company is not subject to Tax in any non-U.S. jurisdiction
\nby virtue of having a permanent establishment, place of business or source of
\nincome in that jurisdiction. The Company is not liable for any non-U.S. Tax as
\nthe agent of any other Person or business or on the basis that it constitutes a
\npermanent establishment or other place of business of any other Person, business
\nor enterprise for any Tax purpose.<\/p>\n

19<\/p>\n

\n

<\/p>\n

(c) Section 409A; Stock Options and Other Equity
\nAwards<\/em><\/strong>.<\/p>\n

(i) Except as set forth on Section 2.11(c)(i)(1) <\/strong>of the
\nDisclosure Schedule, the Company is not a party to any contract, agreement or
\narrangement that is a “nonqualified deferred compensation plan” (as such term is
\ndefined in Section 409A(d)(1) of the Code). Each such nonqualified deferred
\ncompensation plan set forth on Section 2.11(c)(i)(2) <\/strong>of the
\nDisclosure Schedule was operated between January 1, 2005 and December 31, 2008
\nin compliance with Section 409A of the Code and the guidance and regulations
\nthereunder, and any applicable state Law equivalent (together, “Section
\n409A<\/strong>“). Except as set forth on Section 2.11(c)(i)(3)
\n<\/strong>of the Disclosure Schedule, since January 1, 2009, each such
\nnonqualified deferred compensation plan has been in documentary and operational
\ncompliance with Section 409A, including the final Treasury Regulations issued
\nthereunder. No nonqualified deferred compensation plan that was originally
\nexempt from application of Section 409A has been “materially modified” (within
\nthe meaning of IRS Notice 2005-1) at any time after October 3, 2004. Except as
\nmay result pursuant to Section 2.11(c)(i)(3) <\/strong>of the Disclosure
\nSchedule, no compensation shall be includable in the gross income of any
\nEmployee as of any date on or prior to the Effective Time as a result of the
\noperation of Section 409A of the Code with respect to any arrangements or
\nagreements in effect prior to the Effective Time. Except as may result pursuant
\nto Section 2.11(c)(i)(3) <\/strong>of the Disclosure Schedule, to the
\nextent required, the Company has properly reported and\/or withheld and remitted
\non amounts deferred under any Company nonqualified deferred compensation plan
\nsubject to Section 409A of the Code.<\/p>\n

(ii) No Company Option or other unit right (A) has an exercise price that has
\nbeen or may be less than the fair market value of the underlying equity as of
\nthe date such option or right was granted; (B) has any feature for the deferral
\nof compensation other than the deferral of recognition of income until the later
\nof exercise or disposition of such option or rights; (C) has been granted after
\nDecember 31, 2004, with respect to any class of units of the Company that is not
\n“service recipient stock” (to the extent such term applies, for purposes of
\nSection 409A of the Code, to equity interests in a non-corporate entity); or (D)
\nhas at any time not been properly accounted for in accordance with GAAP in the
\nYear-End Financials. There is no Contract, agreement, plan or arrangement to
\nwhich the Company or any of its ERISA Affiliates is a party, including the
\nprovisions of this Agreement, covering any Employee that individually or
\ncollectively could require the Company or any of its Affiliates to pay a Tax
\ngross up payment to, or otherwise indemnify or reimburse, any Employee for
\nTax-related payments under Section 409A. There is no Contract, agreement, plan
\nor arrangement, other than those set forth on Section 2.11(c)(i)(1)
\n<\/strong>of the Disclosure Schedule, to which the Company is a party, including
\nthe provisions of this Agreement, that, individually or collectively, could give
\nrise to a Parent (including any of its subsidiaries) or Company or other penalty
\nunder Section 409A of the Code or that would give rise to an Employee Tax and\/or
\nCompany reporting obligations under Section 409A of the Code.<\/p>\n

2.12 Restrictions on Business Activities<\/em><\/strong>. Except as
\nset forth in Section 2.12 <\/strong>of the Disclosure Schedule, there is
\nno agreement (non-competition or otherwise), Contract, commitment, judgment,
\ninjunction, Order or decree to which the Company is a party or otherwise binding
\nupon the Company that has or may reasonably be expected to have the effect of
\nprohibiting or impairing (a) any business practice of the Company; (b) any
\nacquisition of property (tangible or intangible) by the Company; (c) the conduct
\nof business by the Company as presently conducted or contemplated be conducted;
\nor (d) otherwise limiting the freedom of the Company to engage in any line of
\nbusiness or to compete with any Person. Without limiting the generality of the
\nforegoing, except as set forth in Section 2.12<\/strong> of the
\nDisclosure Schedule, the Company has not entered into any Contract or agreement
\npursuant to which the Company is restricted from selling, licensing,
\nmanufacturing or otherwise distributing any of its Technology or products or
\nfrom providing services to customers or potential customers or any class of
\ncustomers, in any geographic area, during any period of time or in any segment
\nof the market, or from hiring or soliciting potential employees, consultants or
\nindependent contractors.<\/p>\n

20<\/p>\n

\n

<\/p>\n

2.13 Title to Properties; Absence of Liens and Encumbrances;
\nCondition of Equipment<\/em><\/strong>.<\/p>\n

(a) The Company does not own any real property, nor has the Company ever
\nowned any real property.<\/p>\n

(b) Section 2.13(b) <\/strong>of the Disclosure Schedule sets forth a
\ntrue, correct and complete list of all real property currently leased, subleased
\nor licensed by or from the Company or otherwise used or occupied by the Company
\n(the “Leased Real Property<\/strong>“), including (i) the name of the
\nlessor, licensor, sublessor, master lessor and\/or lessee; (ii) the date and term
\nof the lease, license, sublease or other occupancy right and each amendment
\nthereto; and (iii) with respect to any current lease, license, sublease or other
\noccupancy right, the square footage of the premises leased thereunder and the
\naggregate annual rental payable thereunder.<\/p>\n

(c) The Company has made available to Parent true, correct and complete
\ncopies of all current leases, lease guaranties, subleases, agreements for the
\nleasing, use or occupancy of, or otherwise granting a right in or relating to
\nthe Leased Real Property, including all amendments, terminations and
\nmodifications thereof and all consents and waivers relating thereto
\n(“Lease Agreements<\/strong>“). Other than those identified on
\nSection 2.13(b) <\/strong>of the Disclosure Schedule, there are no other
\nLease Agreements for real property affecting the Leased Real Property or to
\nwhich Company is bound. All Lease Agreements are in full force and effect and
\nvalid and effective in accordance with their respective terms, and there is not,
\nunder any of such Lease Agreements, any existing default, no rentals past due,
\nor Company event of default (or event which with notice or lapse of time, or
\nboth, could constitute a Company default). The Company has not received any
\nnotice of a default, alleged failure to perform or any offset or counterclaim
\nwith respect to any such Lease Agreement that, as of the date of this Agreement,
\nhas not been fully remedied and withdrawn. Except as set forth on
\nSection 2.13(b) <\/strong>of the Disclosure Schedule, the Closing will
\nnot affect the enforceability against any Person of any Lease Agreement or any
\nrights of the Company or the Surviving Company thereunder or otherwise with
\nrespect to any Leased Real Property, including the right to the continued use
\nand possession of the Leased Real Property for the conduct of business as
\npresently conducted. The Company currently occupies all of the Leased Real
\nProperty for the operation of its business except as set forth on
\nSection 2.13(b) <\/strong>of the Disclosure Schedule. Except as set forth
\non Section 2.13(b) <\/strong>of the Disclosure Schedule, there are no
\nother parties occupying, or with a right to occupy, the Leased Real Property.
\nExcept as set forth on Section 2.13(b) <\/strong>of the Disclosure
\nSchedule, the Company does not owe any brokerage commissions or finders’ fees
\nwith respect to any Leased Real Property or would owe any such fees if any
\nexisting Lease Agreement were renewed pursuant to any renewal options contained
\nin such Lease Agreement.<\/p>\n

(d) The Leased Real Property is (i) in reasonable operating condition and
\nrepair, (ii) maintained in a manner consistent with standards generally followed
\nwith respect to similar properties, and (iii) suitable for the conduct of the
\nbusiness as presently conducted. To the Knowledge of the Company, such Leased
\nReal Property, including the improvements thereon, does not violate in any
\nmaterial respect any applicable building code, zoning requirement or Law
\nrelating to such property or operations thereon, and any such non-violation is
\nnot dependent on any “non-conforming use” exceptions.<\/p>\n

(e) To the Knowledge of the Company, as of the date of this Agreement, the
\nlandlord under each Lease Agreement has complied materially with all of the
\nrequirements, conditions, representations, warranties and covenants of the
\nlandlord thereunder, including the timely completion of construction of the
\nleased premises in a good and workmanlike manner and otherwise in accordance
\nwith the Lease Agreements.<\/p>\n

(f) The Company has good and valid title to, or, in the case of leased
\nproperties and assets, valid leasehold interests in, all of its material
\ntangible properties and material assets, real, personal<\/p>\n

21<\/p>\n

\n

<\/p>\n

and mixed, used or held for use in its business, free and clear of any Liens,
\nexcept (i) as reflected in the Current Balance Sheet, (ii) Liens for Taxes not
\nyet due and payable and (iii) such imperfections of title and encumbrances, if
\nany, that do not detract from the value or interfere with the present use of the
\nproperty subject thereto or affected thereby. Each Lease Agreement constitutes
\nthe entire agreement of the landlord and the tenant thereunder, and no term or
\ncondition thereof has been modified, amended or waived, except as described on
\nSection 2.13(b) <\/strong>of the Disclosure Schedule and shown in the
\ncopies of the Lease Agreements that have been made available to Parent. Except
\nas set forth on Section 2.13(f) <\/strong>of the Disclosure Schedule, the
\nCompany has not transferred or assigned any interest in any Lease Agreement, nor
\nhas the Company subleased or otherwise granted rights of use or occupancy of any
\nof the premises described therein to any other Person.<\/p>\n

(g) Section 2.13(g) <\/strong>of the Disclosure Schedule lists, as of
\nMarch 31, 2011, all material items of equipment (the
\n“Equipment<\/strong>“) owned or leased by the Company, and such Equipment
\nis (i) adequate for the conduct of the business of the Company as currently
\nconducted, and (ii) in good operating condition, subject to normal wear and
\ntear.<\/p>\n

2.14 Intellectual Property<\/em><\/strong>.<\/p>\n

(a) Definitions<\/em><\/strong>. For all purposes of this
\nAgreement, the following terms shall have the following respective meanings:\n<\/p>\n

“Company Form Agreements<\/em><\/strong>” shall mean any or all of
\nthe following Contracts to which the Company is a party: (i) non-exclusive end
\nuser agreements (whether denominated as licenses, subscriptions or otherwise)
\nfor Company Products and Services on the form(s) set forth in Section
\n2.14(a)-1<\/strong> of the Disclosure Schedule and (ii) non-disclosure agreements
\nentered into in the ordinary course of business on forms substantially similar
\nto those set forth on Section 2.14(a)-2<\/strong> of the Disclosure
\nSchedule.<\/p>\n

“Company Intellectual Property Rights<\/em><\/strong>” shall mean
\nany and all Intellectual Property Rights that are held in the name of, owned, or
\npurported to be owned by or exclusively licensed to the Company.<\/p>\n

“Company Products and Services”<\/em><\/strong> shall mean all
\nproducts, technologies and service offerings that have been or are currently
\nbeing marketed, offered, sold, distributed, made commercially available, or
\notherwise provided to customers by or for the Company and any such products,
\ntechnologies and service offerings that are currently under development.<\/p>\n

“Inbound License <\/em>Agreements<\/strong>” shall mean any
\nContract under which the Company acquires, licenses or obtains (contingent or
\notherwise) rights of any Intellectual Property Right of a third Person.<\/p>\n

“Intellectual Property<\/em><\/strong>” shall mean any Intellectual
\nProperty Rights and Technology.<\/p>\n

“Intellectual Property Rights<\/em><\/strong>” shall mean worldwide
\ncommon law and statutory rights associated with (A) patents and patent
\napplications; (B) copyrights, copyright registrations and copyright
\napplications, rights in databases, “moral” rights and mask work rights; (C) the
\nprotection of trade and industrial secrets and confidential information; (D)
\nother proprietary rights relating to intangible intellectual property; (E)
\ntrademarks, trade names, logos and service marks; (F) rights in domain names and
\nweb sites addresses, (G) analogous rights to those set forth above; (H)
\ndivisions, continuations, renewals, reissuances and extensions of the foregoing
\n(as applicable); and (I) rights to sue for past, present and future infringement
\nor misappropriation of the foregoing.<\/p>\n

22<\/p>\n

\n

<\/p>\n

“Open Source License<\/em><\/strong>” shall mean licenses that
\nallow for non-exclusive use, distribution and modification, including Software
\nand other materials licensed under a Creative Commons License, open database
\nlicense, Apache License, the Mozilla Public License, the GPL or LGPL, or any
\nother licenses that require the distribution of Source Code in connection with
\nthe distribution of Open Source Materials or that prohibits the Company from
\ncharging a fee or otherwise seeking compensation in connection with sublicensing
\nor distributing such Open Source Materials.<\/p>\n

“Open Source Materials<\/em><\/strong>” shall mean Software or
\nother material that is distributed as “free software,” “open source software” or
\nunder a similar licensing or distribution model (including but not limited to
\nthe Open Source Licenses).<\/p>\n

“Outbound License Agreement<\/em><\/strong>” shall mean any
\nContract under which the Company disposes, licenses or provides (contingent or
\notherwise) rights to any Company Intellectual Property Right to a third Person,
\nincluding without limitation any right to access data and\/or databases
\n(regardless of whether such data or database would qualify as an Intellectual
\nProperty Right).<\/p>\n

“Registered Intellectual Property<\/em><\/strong>” shall mean
\nIntellectual Property Rights that have been registered, filed, certified or
\notherwise perfected or recorded with or by any state, government or other public
\nor quasi-public legal authority, including domain names.<\/p>\n

“Software”<\/em><\/strong> means any and all computer software and
\ncode, including assemblers, applets, compilers, source code, object code, data
\n(including image and sound data), design tools, and user interfaces, in any form
\nor format, however fixed. “Software” specifically includes Source Code listings
\nand documentation.<\/p>\n

“Source Code<\/em><\/strong>” means computer software and code, in
\nform other than object code form, including related programmer comments and
\nannotations, help text, data and data structures, instructions and procedural,
\nobject-oriented and other code, which may be printed out or displayed in human
\nreadable form.<\/p>\n

“Standard Contract<\/em><\/strong>” shall mean any Contract to
\nwhich the Company is a party that (i) provides the Company a license to
\ngenerally commercially available binary code (other than development tools and
\ndevelopment environments and Open Source Materials) where available for a cost
\nof not more than U.S. $2,500 for a perpetual license for a single user or work
\nstation (or $7,500 in the aggregate for all users and work stations) or (ii)
\nnon-disclosure agreements entered into in the ordinary course of business on
\nforms substantially similar to those set forth in Section
\n2.14(a)-2<\/strong> of the Disclosure Schedule.<\/p>\n

“Technology<\/em><\/strong>” shall mean any or all of the
\nfollowing: (A) works of authorship including computer programs, source code, and
\nexecutable code, whether embodied in software, firmware or otherwise,
\narchitecture, documentation, designs, files, records, and data; (B) inventions
\n(whether or not patentable), discoveries and improvements; (C) proprietary and
\nconfidential information, trade secrets and know how; (D) databases, data
\ncompilations and collections and technical data; (E) logos, trade names, trade
\ndress, trademarks and service marks; (F) domain names, web addresses and sites;
\n(G) tools, methods and processes; (H) devices, prototypes, schematics,
\nbreadboards, netlists, test methodologies, verilog files, emulation and
\nsimulation reports, test vectors and any hardware; and (I) any and all
\ninstantiations of the foregoing in any form and embodied in any media.<\/p>\n

23<\/p>\n

\n

<\/p>\n

(b) Registered Intellectual Property<\/em><\/strong>.<\/p>\n

(i) Section 2.14(b)(i)-1<\/strong> of the Disclosure Schedule lists
\nall Registered Intellectual Property owned or purported to be owned by, held or
\nfiled in the name of, the Company (the “Company Registered Intellectual
\nProperty<\/strong>“). For each item of Company Registered Intellectual Property,
\nSection 2.14(b)(i)-2<\/strong> of the Disclosure Schedule also sets
\nforth, to the extent applicable (A) the title, application serial number,
\nregistration number, filing date, issue date (if issued) and other appropriate
\nidentifying information; (B) jurisdiction where the application\/registration is
\nlocated; (C) the name of the applicant\/registrant and current owners(s); and (D)
\nthe current attorney of record the name of the attorney handling the prosecution
\nof such item of Company Registered Intellectual Property with contact
\ninformation.<\/p>\n

(ii) Each item of Company Registered Intellectual Property is valid and
\nsubsisting, and all necessary registration, maintenance and renewal fees in
\nconnection with such Company Registered Intellectual Property have been paid and
\nall necessary documents and certificates in connection with such Company
\nRegistered Intellectual Property have been filed with the relevant patent,
\ncopyright, trademark or other authorities in the United States or foreign
\njurisdictions, as the case may be, for the purposes of maintaining such
\nRegistered Intellectual Property.<\/p>\n

(iii) Except as set forth on Section 2.14(b)(iii) <\/strong>of the
\nDisclosure Schedule, there are no actions that must be taken by the Company
\nwithin 60 days of the Closing Date, including the payment of any registration,
\nmaintenance or renewal fees or the filing of any documents, applications or
\ncertificates for the purposes of maintaining, perfecting or preserving or
\nrenewing any Company Registered Intellectual Property.<\/p>\n

(iv) Except as set forth on Section 2.14(b)(iv) <\/strong>of the
\nDisclosure Schedule, in each case in which the Company has acquired any
\nIntellectual Property from any Person, the Company has obtained a valid and
\nenforceable assignment sufficient to irrevocably transfer such Intellectual
\nProperty (including the right to seek past and future damages with respect
\nthereto) to the Company and, to the maximum extent provided for by, and in
\naccordance with, applicable Laws and regulations, the Company has recorded each
\nsuch assignment with the relevant governmental authorities, including the PTO,
\nthe U.S. Copyright Office, or their respective equivalents in any relevant
\nforeign jurisdiction, as the case may be.<\/p>\n

(v) Each Item of Company Registered Intellectual Property has been prosecuted
\nin compliance with all applicable rules, policies and procedures of the
\napplicable Governmental Entity. Neither the Company nor any other Person on
\nbehalf of the Company has taken any action or failed to take any action, which
\naction or failure reasonably could be expected to result in the abandonment,
\ncancellation, forfeiture, relinquishment, invalidation or unenforceability of
\nany of the Company Registered Intellectual Property. Without limiting the
\nforegoing, the Company has not taken any action, or failed to take any action
\nthat would hinder, restrict or impair, under any theory, including, but not
\nlimited to, laches or estoppel, Parent’s ability to assert or enforce any of the
\nCompany Registered Intellectual Property.<\/p>\n

(vi) Section 2.14(b)(vi) <\/strong>of the Disclosure Schedule lists
\nany proceedings or actions before any Governmental Entity (including the United
\nStates Patent and Trademark Office (the “PTO<\/strong>“) or equivalent
\nauthority anywhere in the world) in which any of the Company Registered
\nIntellectual Property is involved, including any proceedings or actions in which
\nclaims are raised relating to the validity, enforceability, scope, ownership or
\ninfringement of any of the Company Registered Intellectual Property.<\/p>\n

24<\/p>\n

\n

<\/p>\n

(vii) The Company has not committed any illegal tying, illegal term
\nextension, misuse, patent marking, other illegal anti-competition activities,
\nlaches, estoppel, waiver, inequitable conduct in violation of 35 C.F.R. 1.56 or
\nother law, that may result in the unenforceability or invalidity of any Company
\nRegistered Intellectual Property.<\/p>\n

(viii) To the extent that the Company has claimed any special status,
\nincluding, but not limited to, “small entity status,” such that the Company was
\nqualified to do so at the time and none of the Company Registered Intellectual
\nProperty have at any time been licensed, nor has any other right with respect to
\nthe Company Registered Intellectual Property been granted, to any entity that
\nwas not a “small entity” or of an equivalent status.<\/p>\n

(ix) The Company has not received any written notice from any source alleging
\nor otherwise suggesting that the Company Registered Intellectual Property may be
\ninvalid, unpatentable or unenforceable.<\/p>\n

(c) Company Products and Services<\/em><\/strong>. Section
\n2.14(c) <\/strong>of the Disclosure Schedule sets forth an accurate and complete
\nlist identifying: (i) all material Company Intellectual Property Rights that are
\nnot Company Registered Intellectual Property; and (ii) all Company Products and
\nServices.<\/p>\n

(d) Ownership<\/em><\/strong>.<\/p>\n

(i) All Company Intellectual Property Rights will be fully transferable,
\nalienable and\/or licensable by Surviving Corporation and\/or Parent without
\nrestriction and without payment of any kind to any third party.<\/p>\n

(ii) Except as set forth in Section 2.14(d)(ii) <\/strong>of the
\nDisclosure Schedule, each Company Intellectual Property Right, including all
\nCompany Registered Intellectual Property, and all material Technology licensed
\nto the Company, is free and clear of any Liens.<\/p>\n

(iii) Except as set forth in Section 2.14(d)(iii) <\/strong>of the
\nDisclosure Schedule, the Company is the exclusive owner of all Company
\nIntellectual Property Rights.<\/p>\n

(iv) Except as set forth in Section 2.14(d)(iv) <\/strong>of the
\nDisclosure Schedule, the Company has not (i) transferred (or agreed to transfer)
\nownership of, or granted (or agreed to grant) any exclusive license of or
\nexclusive right to use, or authorized the retention of any exclusive rights to
\nuse or joint ownership of, any Intellectual Property Right that is or was a
\nCompany Intellectual Property Right, or (ii) permitted any of its rights in a
\nCompany Intellectual Property Right to lapse or enter into the public domain.\n<\/p>\n

(v) The Company has, and following Closing, the Surviving Corporation will
\nhave the exclusive right to bring actions against any person that is infringing
\nor misappropriating any Company Intellectual Property Rights and to retain for
\nthe Surviving Corporation any damages recovered in any such action.<\/p>\n

(vi) Except as set forth in Section 2.14(d)(vi) <\/strong>of the
\nDisclosure Schedule, the Company Intellectual Property Rights are valid,
\nsubsisting and enforceable.<\/p>\n

(vii) Except as set forth in Section 2.14(d)(vii) <\/strong>of the
\nDisclosure Schedule, to the extent that any Intellectual Property has been
\ndeveloped or created independently or jointly by any person other than the
\nCompany for which the Company has, directly or indirectly, provided
\nconsideration for such development or creation, the Company has a written
\nagreement with such person<\/p>\n

25<\/p>\n

\n

<\/p>\n

with respect thereto, and pursuant thereto the Company has obtained ownership
\nof, and is the exclusive owner of, all such Intellectual Property by operation
\nof law or by valid assignment, and has required the waiver of all non assignable
\nrights, including all author or moral rights.<\/p>\n

(e) Intellectual Property Contracts<\/em><\/strong>.<\/p>\n

(i) Section 2.14(e)(i) <\/strong>of the Disclosure Schedule sets forth
\nan accurate and complete list of all Inbound License Agreements other than
\nStandard Agreements.<\/p>\n

(ii) Section 2.14(e)(ii)<\/strong> of the Disclosure Schedule sets
\nforth a complete and accurate list of all Outbound License Agreements other than
\nCompany Form Agreements<\/p>\n

(iii) Except as set forth in Section 2.14(e)(ii) <\/strong>of the
\nDisclosure Schedule, to the knowledge of the Company, all of the Company’s
\nrights and licenses under the Inbound License Agreements are valid and the
\nCompany’s rights and licenses are enforceable and are free and clear of any and
\nall Liens.<\/p>\n

(iv) No loss or expiration of any material Intellectual Property Right
\nlicensed to the Company under any Inbound License Agreement is pending or
\nreasonably foreseeable or, to the knowledge of the Company, threatened.<\/p>\n

(v) No Person other than Company under any Inbound License Agreement has any
\nownership or exclusive license rights in or with respect to any improvements,
\nenhancements, modifications or Derivative Works made by or for the Company to
\nthe Intellectual Property Rights licensed thereunder.<\/p>\n

(vi) Other than the license grants included in Contracts listed in
\nSection 2.15(e)(ii) <\/strong>of the Disclosure Schedule, the Company has
\nnot granted any covenant not to sue or assert its rights with respect to any
\nCompany Intellectual Property Rights.<\/p>\n

(vii) The Company is not in breach of, nor has the Company failed to perform
\nunder, any Inbound License Agreements or Outbound License Agreements and, to the
\nKnowledge of the Company, no other party to any such Inbound License Agreements
\nor Outbound License Agreements is in breach thereof. Except as set forth in
\nSection 2.14(e)(vii), <\/strong>there are no disputes regarding the scope
\nof or performance under such Inbound License Agreements or Outbound License
\nAgreements including with respect to any payments to be made or received by the
\nCompany thereunder, except for disputes involving Outbound License Agreements
\nand amounts less than $5,000 individually or $25,000 in the aggregate.<\/p>\n

(viii) Except as set forth in Section 2.14(e)(viii) <\/strong>of the
\nDisclosure Schedule, the Intellectual Property licensed pursuant to the Inbound
\nLicense Agreements constitutes all of the Intellectual Property of a third
\nPerson that is used in, necessary to or otherwise would be infringed by the
\nconduct of the business of the Company as it currently is conducted or planned
\nto be conducted, including the design, development, manufacture, use, import,
\nmarketing, licensing out and sale of any Company Product or Service or
\nTechnology (including products, Technology or services currently under
\ndevelopment).<\/p>\n

(ix) Other than Inbound License Agreements and Outbound License Agreements
\nlisted in Sections 2.14(e)(i) and (ii) of the Disclosure Schedule, the Standard
\nContracts and Company Form Agreements, there are no other material contracts,
\nlicenses or agreements to which the<\/p>\n

26<\/p>\n

\n

<\/p>\n

Company is a party with respect to any Company Intellectual Property Rights
\nor other Intellectual Property Right.<\/p>\n

(x) Other than Company Form Agreements and Outbound License Agreements listed
\nin Section 2.14(e)(ii) <\/strong>of the Disclosure Schedule, there are no
\ncontracts, licenses or agreements between the Company and any other Person
\nwherein or whereby the Company has agreed to, or assumed, any obligation or
\nduty, that is not capped to a maximum amount of liability no greater than
\n$25,000 or the amounts paid under such agreements, to warrant, indemnify,
\nreimburse, hold harmless, guaranty or otherwise assume or incur any obligation
\nor liability or provide a right of rescission with respect to the infringement
\nor misappropriation by the Company or such other Person of any third party
\nIntellectual Property Rights.<\/p>\n

(xi) Except as set forth in Section 2.14(e)(xi)<\/strong>, there are
\nno contracts, licenses or agreements between the Company and any other person
\nwith respect to Company Intellectual Property Rights or other Intellectual
\nProperty used in and\/or necessary to the conduct of the business as it is
\ncurrently conducted or planned to be conducted under which there is any
\nthreatened or ongoing action, claim or proceeding or, to the Knowledge of
\nCompany, other dispute regarding the scope of such agreement, or performance
\nunder such agreement including with respect to any payments to be made or
\nreceived by the Company thereunder, except for disputes involving Outbound
\nLicense Agreements and amounts less than $5,000 individually or $25,000 in the
\naggregate.<\/p>\n

(xii) Other than (i) the Open Source Software listed in Section
\n2.14(k) <\/strong>of the Disclosure Schedule and (ii) the Intellectual Property
\nlicensed pursuant to the agreements set forth on Section 2.14(e)(i)
\n<\/strong>of the Disclosure Schedule, all Intellectual Property that is used in
\nor necessary to the conduct of Company’s business as presently conducted or
\ncurrently contemplated to be conducted by the Company was written and created
\nsolely by either (i) Employees acting within the scope of their employment who
\nhave validly and irrevocably assigned all of their rights, including all
\nIntellectual Property Rights therein, to the Company, or (ii) by third parties
\nwho have validly and irrevocably assigned all of their rights, including all
\nIntellectual Property Rights therein, to the Company, and no third party owns or
\nhas any rights to any of the Company Intellectual Property Rights.<\/p>\n

(xiii) The Company has never been a member or promoter of, or a contributor
\nto, any industry standards body or any similar organization that could
\nreasonably be expected to require or obligate the Company to grant or offer to
\nany other Person any license or right to any Company Intellectual Property
\nRights. In addition, if any Company Intellectual Property Rights were acquired
\nfrom a Person other than an Employee, then, to the Knowledge of the Company,
\nsuch Person is not now nor has ever been a member or promoter of, or a
\ncontributor to, any industry standards body or any similar organization that
\ncould reasonably be expected to have required or obligated such Person to grant
\nor offer to any other Person any license or right to such Intellectual Property
\nRight. The Company does not have any present obligation (and there is no
\nsubstantial basis to expect that there will be a future obligation) to grant or
\noffer to any other Person any license or right to any Company Intellectual
\nProperty Right by virtue of Company’s or, to the Knowledge of the Company, any
\nother Person’s membership in, promotion of, or contributions to any industry
\nstandards body or any similar organization.<\/p>\n

(f) Non-Infringement<\/em><\/strong>.<\/p>\n

(i) Except as set forth on Section 2.14(f)(i) <\/strong>of the
\nDisclosure Schedule, the operation of the business of the Company, including the
\ndesign, development, use, import, branding, advertising, promotion, marketing,
\nmanufacture, licensing out, provision and sale of any Company Product and
\nService or Technology of the Company (including products, Technology or services\n<\/p>\n

27<\/p>\n

\n

<\/p>\n

currently under development) has not and does not infringe and does not
\nmisappropriate, and will not infringe and will not misappropriate, when
\nconducted by Parent and\/or the Surviving Corporation in substantially the same
\nmanner following the Closing, any Intellectual Property Rights of any Person,
\nviolate any right of any Person (including any right to privacy or publicity),
\nor constitute unfair competition or trade practices under the Laws of any
\njurisdiction<\/p>\n

(ii) Except as set forth in Section 2.14(f)(ii) <\/strong>of the
\nDisclosure Schedule, the Company has not received notice from any Person
\nclaiming that such operation or any act, any Company Product and Service or
\nTechnology of the Company infringes or misappropriates any Intellectual Property
\nRights of any Person or constitutes unfair competition or trade practices under
\nthe laws of any jurisdiction (nor, to the Knowledge of the Company, is there any
\nbasis therefor).<\/p>\n

(iii) To the Knowledge of the Company, no Person is infringing or
\nmisappropriating any Company Intellectual Property Rights.<\/p>\n

(iv) No (1) product, Technology, service or publication of the Company, (2)
\nmaterial published or distributed by the Company, or (3) conduct or statement of
\nthe Company includes or constitutes a defamatory statement or material, false
\nadvertising or otherwise violates any Law or regulation<\/p>\n

(g) Transaction<\/em><\/strong>.<\/p>\n

(i) Except as set forth in Section 2.14(g)(i) <\/strong>of the
\nDisclosure Schedule, neither this Agreement nor the transactions contemplated by
\nthis Agreement, including the assignment to Parent by operation of law or
\notherwise of any contracts or agreements to which the Company is a party, will
\nresult in: (i) Parent, any of its subsidiaries or the Surviving Corporation
\ngranting to any third party any right to or with respect to any Intellectual
\nProperty Rights owned by, or licensed to, either the Parent, any of its
\nsubsidiaries or the Surviving Corporation; (ii) Parent, any of its subsidiaries
\nor the Surviving Corporation, being bound by, or subject to, any non-compete or
\nother material restriction on the operation or scope of their respective
\nbusinesses; or (iii) Parent, any of its subsidiaries or the Surviving
\nCorporation being obligated to pay any royalties or other material amounts, or
\noffer any discounts, to any third party in excess of those payable by, or
\nrequired to be offered by, Parent, any of its subsidiaries or the Surviving
\nCorporation, respectively, in the absence of this Agreement or the transactions
\ncontemplated hereby.<\/p>\n

(ii) Except as set forth in Section 2.14(g)(ii) <\/strong>of the
\nDisclosure Schedule, the consummation of the transactions contemplated in this
\nAgreement will neither violate nor result in the breach, modification,
\ncancellation, termination or suspension of (or give the other party thereto the
\nright to cause any of the foregoing) any of the Inbound License Agreements or
\nOutbound License Agreements and, following the Closing, Surviving Company will
\nbe permitted to exercise all of Company’s rights and receive all of Company’s
\nbenefits (including payments) under such Inbound License Agreements or Outbound
\nLicense Agreements to the same extent and scope that Company’s would have been
\nable to had the transactions contemplated by this Agreement not occurred and
\nwithout the payment of any additional amounts or consideration other than the
\nongoing fees, royalties or other payments which Company’s would otherwise have
\nbeen required to pay pursuant to the terms of such Inbound License Agreements or
\nOutbound License Agreements had the transactions contemplated by this Agreement
\nnot occurred.<\/p>\n

28<\/p>\n

\n

<\/p>\n

(h) Trade Secrets<\/em><\/strong>.<\/p>\n

(i) The Company has taken all reasonable steps that are required or necessary
\nto protect the Company’s rights in confidential information (including all trade
\nsecrets) of the Company or provided by any other Person to the Company.<\/p>\n

(ii) Without limiting the foregoing, subject to and except as set forth in
\nSection 2.14(h)(ii) of the Disclosure Schedule, (1) the Company has, and
\nenforces, a policy requiring each current and former Employee to execute
\nproprietary information, confidentiality and assignment agreements in the
\nCompany’s standard form for employees (a copy of which is attached as
\nSchedule 2.14(h)(ii)-1<\/strong> hereto (the “Employee
\nProprietary Information Agreement<\/strong>“)); (2) the Company has, and
\nenforces, a policy requiring each current and former Consultant or contractor to
\nexecute a consulting agreement containing proprietary information,
\nconfidentiality and assignment provisions in the Company’s standard form for
\nconsultants or contractors (a copy of which is attached as Schedule
\n2.14(h)(ii)-2<\/strong> hereto (the “Consultant Proprietary Information
\nAgreement<\/strong>“)); and (3) all current and former Employees, Consultants and
\ncontractors of the Company have executed an Employee Proprietary Information
\nAgreement or a Consultant Proprietary Information Agreement, as appropriate.\n<\/p>\n

(iii) Except as set forth in Section 2.14(h)(iii) <\/strong>of the
\nDisclosure Schedule, neither the Company nor any other Person acting on its
\nbehalf has disclosed, delivered or licensed to any Person, agreed to disclose,
\ndeliver or license to any Person, or permitted the disclosure or delivery to any
\nescrow agent or other Person of, any source code for any Company Intellectual
\nProperty Right except for disclosures to Employees, contractors or Consultants
\nof the Company pursuant to agreements that prohibit use or disclosure except in
\nthe performances of services to the Company.<\/p>\n

(i) Restrictions<\/em><\/strong>. No Company Intellectual Property
\nRights, product or service of the Company is subject to any proceeding or
\noutstanding decree, Order, judgment or settlement agreement or stipulation that
\nrestricts in any manner the use, transfer or licensing thereof by the Company or
\nmay affect the validity, use or enforceability of such Company Intellectual
\nProperty Rights.<\/p>\n

(j) Government Entity<\/em><\/strong>.<\/p>\n

(i) No government funding, facilities or resources of a university, college,
\nother educational institution, research center or Governmental Entity or funding
\nfrom third parties (other than private investors in the ordinary course of
\nbusiness) was used in the development of the Company Intellectual Property
\nRights.<\/p>\n

(ii) No Governmental Entity, university, college, other educational
\ninstitution or research center has any claim or right in or to the Company
\nIntellectual Property Rights.<\/p>\n

(iii) Except as set forth on Section 2.14(j)(iii) <\/strong>of the
\nDisclosure Schedule, no current or former Employee, Consultant or independent
\ncontractor of the Company who was involved in, or who contributed to, the
\ncreation or development of any Company Intellectual Property Rights has
\nperformed services for the government, a university, college or other
\neducational institution, or a research center, during a period of time during
\nwhich such Employee, Consultant or independent contractor was also performing
\nservices for the Company.<\/p>\n

(k) Open Source Materials<\/em><\/strong>.<\/p>\n

(i) Section 2.14(k)(i) <\/strong>of the Disclosure Schedule lists all
\nOpen Source Materials that have been used, linked to and\/or incorporated into
\nany Company Product and describes:<\/p>\n

29<\/p>\n

\n

<\/p>\n

(1) the applicable Open Source License, (2) the website or other source form
\nwhere such Open Source Material has been obtained and (3) to the extent known by
\nCompany, the copyright holder(s) of such Open Source Materials.<\/p>\n

(ii) Section 2.14(k)(ii) <\/strong>of the Disclosure Schedule lists
\nall Open Source Materials that have been distributed or made available by the
\nCompany.<\/p>\n

(iii) The Company has never used and\/or incorporated Open Source Software in
\nany manner that would or could (1) require the disclosure or distribution in
\nsource code form of any Company Intellectual Property Rights, (2) require the
\nlicensing of any Company Intellectual Property Rights for the purpose of making
\nderivative works, (3) impose any restriction on the consideration to be charged
\nfor the distribution of any Company Product and Service, (4) create, or purport
\nto create, obligations for the Company with respect to Company Intellectual
\nProperty Rights or grant, or purport to grant, to any third party, any rights or
\nimmunities under Company Intellectual Property Rights, or (5) impose any other
\nmaterial limitation, restriction, or condition on the right of the Company to
\nuse or distribute any Company Product or Service.<\/p>\n

(iv) The Company has been and is in compliance with all applicable Open
\nSource Licenses with respect Open Source Materials. The Company has not received
\nnotice from any Person claiming any violation by the Company of any term or
\ncondition of an Open Source License.<\/p>\n

(l) Company Products and Services<\/em><\/strong>.<\/p>\n

(i) Except for the warranties and indemnities contained in those contracts
\nand agreements set forth in Section 2.14(l)(i) <\/strong>of the
\nDisclosure Schedule and warranties implied by law which cannot be disclaimed,
\nthe Company has never given any warranties or indemnities relating to Company
\nProducts and Services sold or services rendered by the Company.<\/p>\n

(ii) The Company has provided Parent a release schedule of Company Products
\nand Services which schedule is included in Section 2.14(l)(ii)
\n<\/strong>of the Disclosure Schedule. The Company has a good faith reasonable
\nbelief that it can achieve the release of Company Products and Services on such
\nschedule and, to its Knowledge, is not currently aware of any change in its
\ncircumstances or other fact that has occurred that would cause it to believe
\nthat it will be unable to meet such release schedule.<\/p>\n

(iii) The Company’s current (as of the date of this Agreement) list of known
\nbugs maintained by its development or quality control groups with respect to the
\nproducts and services of the Company is set forth on Section
\n2.14(l)(iii) <\/strong>of the Disclosure Schedule.<\/p>\n

(iv) All products and services (and all parts thereof) of the Company are
\nfree of any and all “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead
\ndevice,” “virus” or other software routines or hardware components that permit
\nunauthorized access or the unauthorized disablement or erasure of such product
\nor service (or all parts thereof) of the Company or data or other software of
\nusers (“Contaminants<\/strong>“).<\/p>\n

(v) Section 2.14(l)(v) <\/strong>of the Disclosure Schedule sets forth
\na list of all agreements that provide for a service level for Company Products
\nand Services that is different than that set forth in the Company Form
\nAgreements.<\/p>\n

30<\/p>\n

\n

<\/p>\n

(vi) Section 2.14(l)(vi) <\/strong>of the Disclosure Schedule sets
\nforth a list of all agreements that provide for a data security and
\nconfidentiality obligations in connection with Company Products and Services
\nthat is different than that set forth in the Company Form Agreements.<\/p>\n

(vii) The Company has not paid any damages, penalties or amounts to any
\nPerson because of Company’s breach of service level obligations or data security
\nprovision with respect to any Company Products and Services, except for damages,
\npenalties or amounts set forth on Section 2.14(l)(vii) <\/strong>of the
\nDisclosure Schedule and damages, penalties or amounts less than $5,000
\nindividually or $25,000 in the aggregate.<\/p>\n

(m) Privacy<\/em><\/strong>.<\/p>\n

(i) Section 2.14(m)(i) <\/strong>of the Disclosure Schedule generally
\ndescribes all Personally Identifiable Information collected by the Company
\nthrough Internet websites owned, maintained or operated by the Company
\n(“Company Sites<\/strong>“), and through any Company Products and
\nServices (“Company Services<\/strong>“). “Personally Identifiable
\nInformation<\/strong>” shall mean any information that alone or in combination
\nwith other information held by the Company can be used to specifically identify
\na natural Person.<\/p>\n

(ii) Except as set forth on Section 2.14(m)(ii) of the Disclosure Schedule,
\nthe Company has complied with all applicable Laws, contractual and fiduciary
\nobligations, and its internal privacy policies relating to (i) the privacy of
\nusers of Company Sites and (ii) the collection, storage, transfer and any other
\nprocessing of any Personally Identifiable Information collected or used by the
\nCompany in any manner or maintained by third parties having authorized access to
\nsuch information.<\/p>\n

(iii) The execution, delivery and performance of this Agreement complies with
\nall applicable laws relating to privacy and with the Company’s privacy policies.\n<\/p>\n

(iv) Copies of all current and prior privacy policies of the Company that
\napply to the Company Sites or the Company Services are attached to
\nSection 2.14(m)(iv) <\/strong>of the Disclosure Schedule. Each such
\nprivacy policy and all materials distributed or marketed by the Company have at
\nall times made all disclosures to users or customers required by applicable
\nLaws, and none of such disclosures made or contained in any such privacy policy
\nor in any such materials has been inaccurate, misleading or deceptive or in
\nviolation of any applicable Laws.<\/p>\n

(v) With respect to all Personally Identifiable Information, the Company has
\nat all times taken all steps reasonably necessary (including implementing and
\nmonitoring compliance with adequate measures with respect to technical and
\nphysical security) to ensure that the Personally Identifiable Information is
\nprotected against loss and against unauthorized access, use, modification,
\ndisclosure or other misuse. Except as set forth on Section 2.14(m)(v)
\n<\/strong>of the Disclosure Schedule, there has been no unauthorized access to or
\nother misuse of that Personally Identifiable Information.<\/p>\n

(n) Data Security<\/em><\/strong>.<\/p>\n

(i) The Company has taken the steps and implemented the procedures specified
\nin Section 2.14(n)(i) <\/strong>of the Disclosure Schedule to protect the
\ninformation technology systems used in connection with the operation of the
\nCompany from Contaminants.<\/p>\n

(ii) The Company has the disaster recovery and security plans, procedures and
\nfacilities for the business specified in Section 2.14(n)(ii)
\n<\/strong>of the Disclosure Schedule.<\/p>\n

31<\/p>\n

\n

<\/p>\n

(iii) To the Knowledge of the Company, except as set forth in
\nSection 2.14(n)(iii) <\/strong>of the Disclosure Schedule, there have
\nbeen no material unauthorized intrusions or breaches of the security of
\ninformation technology systems and the Company is in compliance with all
\nobligations to provide notice of any unauthorized access or breach of its
\ninformation technology systems.<\/p>\n

2.15 Agreements, Contracts and Commitments<\/em><\/strong>.<\/p>\n

(a) Except as set forth on Section 2.15<\/strong> of the Disclosure
\nSchedule (specifying the appropriate paragraph), the Company is not a party to,
\nor bound by:<\/p>\n

(i) any (A) employment, contractor or consulting agreement; (B) Contract or
\ncommitment with an Employee, Consultant or contractor; or (C) any agreement,
\ncontract or commitment to grant any severance or termination pay (in cash or
\notherwise) to any Employee;<\/p>\n

(ii) any agreement or plan, including any unit option plan, unit appreciation
\nrights plan or unit purchase plan, any of the benefits of which will be
\nincreased, or the vesting of benefits of which will be accelerated, by the
\noccurrence of any of the transactions contemplated by this Agreement (either
\nalone or in connection with additional or subsequent events) or the value of any
\nof the benefits of which will be calculated on the basis of any of the
\ntransactions contemplated by this Agreement;<\/p>\n

(iii) any fidelity or surety bond or completion bond;<\/p>\n

(iv) any collective bargaining, union or works council agreements;<\/p>\n

(v) any lease of personal property having a value in excess of $25,000
\nindividually or $50,000 in the aggregate;<\/p>\n

(vi) any agreement that imposes surety, guaranty or indemnification
\nobligations on the Company (other than indemnities contained in non-exclusive
\nlicenses of Company Products and Services to customers that have been entered
\ninto in the ordinary course of business consistent with past practice pursuant
\nto the Company Form Agreements);<\/p>\n

(vii) Inbound License Agreement (excluding Standard Contracts);<\/p>\n

(viii) Outbound License Agreement (excluding Company Form Agreements);<\/p>\n

(ix) any agreement, Contract, lease or commitment relating to capital
\nexpenditures and involving future payments in excess of $25,000 individually or
\n$50,000 in the aggregate;<\/p>\n

(x) any agreement, Contract or commitment relating to the disposition or
\nacquisition of assets or any interest in any business enterprise outside the
\nordinary course of business consistent with past practice;<\/p>\n

(xi) any mortgages, indentures, guarantees, loans or credit agreements,
\nsecurity agreements or other agreements or instruments relating to the borrowing
\nof money or extension of credit;<\/p>\n

(xii) any purchase order or contract for the purchase of materials involving
\nin excess of $25,000 individually or $50,000 in the aggregate;<\/p>\n

32<\/p>\n

\n

<\/p>\n

(xiii) any construction contracts;<\/p>\n

(xiv) any joint marketing, joint venture, partnership, strategic alliance,
\naffiliate or development agreement;<\/p>\n

(xv) any agreement, Contract or commitment to alter the Company’s interest in
\nany Person in which the Company directly or indirectly holds any interest;<\/p>\n

(xvi) any agreement, Contract or commitment pursuant to which the Company has
\nundertaken to, or pursuant to which the receipt of revenue is contingent upon,
\nthe delivery of products or service offerings not in commercial existence as of
\nthe date of this Agreement, and specifically not contingent upon the release of
\nany new product or new version of an existing product;<\/p>\n

(xvii) any agreement, Contract, arrangement or understanding between the
\nCompany and a customer or partner of the Company pursuant to which paid fees
\nmust be refunded, payment of fees is contingent upon or an agreement may be
\nterminated in the event a specified return on investment or similar success
\nmeasure for use of the products or service offerings offered by the Company is
\nnot achieved;<\/p>\n

(xviii) any agreement, Contract, arrangement or understanding between the
\nCompany and a customer or partner of the Company that includes a “most favored
\ncustomer” or similar clause;<\/p>\n

(xix) any agreement, Contract, arrangement or understanding between the
\nCompany and a customer or partner of the Company for which application revenue,
\nunder GAAP, may not be recognized on a pro rata basis over the term of the
\nagreement or for which any application revenue must be deferred or put on hold
\npending a future event;<\/p>\n

(xx) any dealer, distribution, sales representative, original equipment
\nmanufacturer, value added, remarketer, reseller, independent software vendor or
\nother agreement for distribution of the products, Technology or services of the
\nCompany; or<\/p>\n

(xxi) any other agreement, Contract, lease or commitment, including any
\nservice, operating or management agreement or arrangement with respect to any
\nLeased Real Property, that involves $25,000 individually or $50,000 in the
\naggregate or more.<\/p>\n

(b) Each Contract to which the Company is a party or any of its properties or
\nassets (whether tangible or intangible) is subject is a valid and binding
\nagreement of the Company enforceable, to the Knowledge of the Company, against
\neach of the other parties thereto in accordance with its terms, and is in full
\nforce and effect with respect to the Company and, to the Knowledge of the
\nCompany, the other parties thereto, except as such enforceability may be limited
\nby bankruptcy, insolvency, moratorium and other similar laws affecting
\ncreditors’ rights generally and by general principles of equity. The Company is
\nin material compliance with, and has not materially breached, violated or
\ndefaulted under, or received notice or has any reason to believe that a customer
\nor other third party may assert that the Company has materially breached,
\nviolated or defaulted under, any of the terms or conditions of any such
\nContract, nor, to the Knowledge of the Company, is any party obligated to the
\nCompany pursuant to any such Contract subject to any breach, violation or
\ndefault thereunder, nor, to the Knowledge of the Company, has event occurred
\nthat with the lapse of time, giving of notice or both would constitute such a
\nbreach, violation or default by the Company or any such other party. True,
\ncorrect and complete copies of each Contract disclosed in the Disclosure
\nSchedule or required to be disclosed pursuant to this<\/p>\n

33<\/p>\n

\n

<\/p>\n

Section 2.15<\/strong> (each, a “Material Contract<\/strong>”
\nand collectively, the “Material Contracts<\/strong>“) have been made
\navailable to Parent.<\/p>\n

(c) The Company has fulfilled all material obligations required pursuant to
\neach Contract to have been performed by the Company prior to the date of this
\nAgreement, and, without giving effect to the Merger, the Company will use its
\ncommercially reasonable efforts to fulfill, when due, all of its material
\nobligations under the Material Contracts that remain to be performed after the
\ndate of this Agreement.<\/p>\n

(d) Except as set forth on Section 2.15(d) <\/strong>of the Disclosure
\nSchedule, all outstanding Indebtedness of the Company may be prepaid without
\npenalty.<\/p>\n

(e) Section 2.15(e) <\/strong>of the Disclosure Schedule sets forth
\nall of the Company’s oral Contracts, agreements, arrangements and commitments
\n(“Oral Arrangements<\/strong>“), along with a summary of the material
\nterms of each Oral Arrangement, including the parties to (and the date, if
\navailable, and term of) such Oral Arrangement, obligations of each party, and
\npricing terms.<\/p>\n

2.16 Certain Relationships and Related
\nTransactions<\/em><\/strong>. Except as set forth on Section 2.16
\n<\/strong>of the Disclosure Schedule, none of the officers and Managers of the
\nCompany and, to the Knowledge of the Company, none of the Employees or
\nSecurityholders, nor, to the Knowledge of the Company, any immediate family
\nmember of an officer, Manager, Employee or Securityholder, has or has had any
\ndirect or indirect ownership, participation, royalty or other interest in, or is
\nan officer, director, employee of or consultant or contractor for any firm,
\npartnership, entity or corporation that competes with, or does business with, or
\nhas any contractual arrangement with, the Company (except with respect to any
\ninterest in less than 1% of the stock of any publicly traded corporation).
\nExcept as set forth on Section 2.16<\/strong> of the Disclosure Schedule,
\nnone of such officers, Managers, Employees, Securityholders or immediate family
\nmembers is a party to or, to the Knowledge of the Company, otherwise directly or
\nindirectly interested in, any Contract to which the Company or is a party or by
\nwhich the Company or any of its assets or properties may be bound or affected,
\nother than normal employment, compensation and benefit arrangements for services
\nas an officer, Manager, director or Employee thereof. To the Knowledge of the
\nCompany, none of such officers, Managers, Employees, Securityholders or
\nimmediate family members has any interest in any property, real or personal,
\ntangible or intangible (including any Intellectual Property) that is used in, or
\nthat relates to, the business of the Company, except for the rights of
\nUnitholders under applicable Law. To the Knowledge of the Company, there are no
\nagreements, Contracts, or commitments with regard to contribution or
\nindemnification between or among any of the Securityholders.<\/p>\n

2.17 Governmental Authorization<\/em><\/strong>. Each material
\nconsent, license, permit, grant or other authorization (a) pursuant to which the
\nCompany currently operates or holds any interest in any of its properties, or
\n(b) that is required for the operation of the Company’s business as currently
\nconducted or the holding of any such interest (collectively, “Company
\nAuthorizations<\/strong>“) has been issued or granted to the Company. The Company
\nis and has been at all times in compliance, in all material respects, with all
\nCompany Authorizations. The Company Authorizations are in full force and effect
\nand constitute all of the material consents, licenses, permits, grants or other
\nauthorizations required to permit the Company to operate or conduct its business
\nor hold any interest in its properties or assets.<\/p>\n

2.18 Litigation<\/em><\/strong>. There is no Action, suit or
\nproceeding, or claim which could reasonably be expected to result in a Legal
\nProceeding, of any nature pending or, to the Knowledge of the Company,
\nthreatened against the Company, its properties (tangible or intangible) or any
\nof its officers or Managers, nor, to the Knowledge of the Company, are there
\nfacts or circumstances that make such an Action, suit, proceeding or claim
\nreasonably likely. There is no investigation or other proceeding pending or, to
\nthe<\/p>\n

34<\/p>\n

\n

<\/p>\n

Knowledge of the Company, threatened against the Company, any of its
\nproperties (tangible or intangible) or any of its officers or Managers by or
\nbefore any Governmental Entity, nor to the Knowledge of the Company, are there
\nfacts and circumstances which make such an investigation or proceeding
\nreasonably likely. No Governmental Entity has at any time challenged or
\nquestioned the legal right of the Company to conduct its operations as presently
\nor previously conducted or as currently contemplated to be conducted. There is
\nno Action, suit or proceeding, or claim which could reasonably be expected to
\nresult in a Legal Proceeding, of any nature pending or, to the Knowledge of the
\nCompany, threatened against any Person who has a contractual right or a right
\npursuant to Florida Law or any other applicable Law to indemnification from the
\nCompany related to facts and circumstances existing prior to the Effective Time,
\nnor are there, to the Knowledge of the Company, facts or circumstances that
\nwould be reasonably likely to give rise to any such Action, suit, claim or
\nproceeding.<\/p>\n

2.19 Minute Books<\/em><\/strong>. The minutes of the Company (all
\nof which have been made available to Parent) contain complete and accurate
\nrecords of all actions taken, and summaries of all meetings held, by the Members
\nand the Board of Managers of the Company (and any committees thereof) since
\nAugust 6, 2008, and all material actions taken or decisions made prior to such
\ndate which require ratification or approval have been subsequently approved or
\nratified as appropriate. At the Closing, the minute books of the Company will be
\nin the possession of the Company.<\/p>\n

2.20 Environmental Matters<\/em><\/strong>.<\/p>\n

(a) The Company (i) has not received any notice or other communication of any
\nalleged claim, violation of or liability under any Environmental Law which has
\nnot heretofore been cured or for which there is any remaining liability; (ii)
\nhas not disposed of, emitted, discharged, handled, stored, transported, used or
\nreleased any Hazardous Materials, distributed, sold or otherwise placed on the
\nmarket Hazardous Materials or any product containing Hazardous Materials,
\narranged for the disposal, discharge, storage or release of any Hazardous
\nMaterials, or exposed any Employee or other individual to any Hazardous
\nMaterials so as to give rise to any liability or corrective or remedial
\nobligation under any Environmental Laws; (iii) has not entered into any
\nagreement that may require it to guarantee, reimburse, pledge, defend, hold
\nharmless or indemnify any other party with respect to liabilities arising out of
\nEnvironmental Laws or the Hazardous Materials Activities of the Company; (iv)
\nhas been and is in compliance with all Environmental Laws; and (v) has made
\navailable to Parent all records in the Company’s possession concerning the
\nHazardous Materials Activities of the Company and all environmental audits and
\nenvironmental assessments of any facility owned, leased or used at any time by
\nthe Company. To the Knowledge of the Company, there is no fact or circumstance
\nthat could involve the Company in any environmental litigation or impose upon
\nthe Company any environmental liability. To the Knowledge of the Company, there
\nare no Hazardous Materials in, on, or under any properties owned, leased or used
\nat any time by the Company such as could give rise to any liability or
\ncorrective or remedial obligation of the Company under any Environmental Laws.\n<\/p>\n

(b) For the purposes of this Section 2.20<\/strong>, (i)
\n“Environmental Laws<\/strong>” shall mean all federal, state, local and
\nforeign Laws and regulations relating to pollution, protection of the
\nenvironment, worker health and safety and exposure of any individual to
\nHazardous Materials, including Laws and regulations relating to emissions,
\ndischarges, releases or threatened releases of Hazardous Materials, or otherwise
\nrelating to the manufacture, processing, registration, distribution, labeling,
\nrecycling, use, treatment, storage, disposal, transport or handling of Hazardous
\nMaterials and including any Hazardous Materials related electronic waste,
\nproduct content or product take-back requirements; (ii) “Hazardous
\nMaterials<\/strong>” shall mean chemicals, pollutants, contaminants, wastes,
\ntoxic substances, emissions, discharges, radioactive and biological materials,
\nasbestos-containing materials (ACM), hazardous substances, petroleum and
\npetroleum products or any fraction thereof, excluding office and cleaning
\nsupplies used by the Company in the ordinary course of business; and (iii)
\n“Hazardous Material <\/strong><\/p>\n

35<\/p>\n

\n

<\/p>\n

Activity<\/strong>” shall mean the transportation, transfer,
\nrecycling, disposal, storage, use, labeling, treatment, manufacture, removal,
\nremediation, release, exposure of others to, sale, or distribution of any
\nHazardous Material or any product or waste containing a Hazardous Material, or
\nproduct manufactured with ozone depleting substances, including any payment of
\nwaste fees or charges (including so-called electronic waste fees) and compliance
\nwith any product take-back or product content requirements.<\/p>\n

2.21 Brokers’ and Finders’ Fees; Transaction
\nExpenses<\/em><\/strong>.<\/p>\n

(a) Except as set forth on Section 2.21(a) <\/strong>of the Disclosure
\nSchedule, the Company has not incurred, nor will it incur, directly or
\nindirectly, any Liability for brokerage or finders’ fees or agents’ commissions,
\nfees related to investment banking or similar advisory services or any similar
\ncharges in connection with the Agreement or any transaction contemplated hereby,
\nnor will Parent, Merger Sub<\/em><\/strong> or the Surviving Company
\nincur, directly or indirectly, any such Liability based on arrangements made by
\nor on behalf of the Company.<\/p>\n

(b) Section 2.21(b) <\/strong>of the Disclosure Schedule sets forth
\nthe Company’s current reasonable estimate of all Transaction Expenses incurred,
\nor expected to be incurred, by the Company in connection with the negotiation
\nand effectuation of the terms and conditions of this Agreement and the
\ntransactions contemplated hereby.<\/p>\n

2.22 Employee Benefit Plans and Compensation<\/em><\/strong>.<\/p>\n

(a) Prior Employee Arrangements<\/em><\/strong>. Prior to January
\n1, 2009, the Company had no individuals classified as employees on its payroll
\nand instead obtained its operating personnel by means of a contract with an
\noutsourcing (“employee leasing<\/strong>“) company, Oasis Outsourcing,
\nInc. (“Oasis”<\/strong>). All such “leased employees” were paid wages by
\nOasis and were provided employee benefits through plans and arrangements of
\nOasis. In conformance with the requirements of Oasis, the Company was indicated
\nas a participating employer in the 401(k) plan maintained by Oasis. The Company
\nhas no Knowledge of any documentary or operational concerns regarding plans and
\narrangements of Oasis but has not made any inquiries thereof.<\/p>\n

(b) Definitions<\/em><\/strong>. For all purposes of this
\nAgreement, the following terms shall have the following respective meanings:\n<\/p>\n

(i) “Company Employee Plan<\/em><\/strong>” shall mean any plan,
\nprogram, policy, practice, contract, agreement or other arrangement, whether
\nwritten or unwritten, providing for compensation, severance, change of control
\npay, termination pay, deferred compensation, performance awards, unit or
\nunit-related awards, welfare benefits, fringe benefits or other employee
\nbenefits or remuneration of any kind, funded or unfunded, including each
\n“employee benefit plan,” within the meaning of Section 3(3) of ERISA which is or
\nhas been established, adopted, sponsored, maintained, contributed to, or
\nrequired to be contributed to, by the Company or any ERISA Affiliate for the
\nbenefit of any Employee, or with respect to which the Company or any ERISA
\nAffiliate has or may have any liability or obligation, including any
\nInternational Employee Plan.<\/p>\n

(ii) “COBRA<\/em><\/strong>” shall mean the Consolidated Omnibus
\nBudget Reconciliation Act of 1985, as amended.<\/p>\n

(iii) “Consultant<\/em><\/strong>” shall mean any individual
\nproviding (or who has in the past provided) services to the Company or any ERISA
\nAffiliate who is not an Employee or a Manager.<\/p>\n

(iv) “DOL<\/em><\/strong>” shall mean the United States Department
\nof Labor.<\/p>\n

36<\/p>\n

\n

<\/p>\n

(v) “Employee<\/em><\/strong>” shall mean any current or former
\nemployee, Consultant or Manager of the Company or any ERISA Affiliate.<\/p>\n

(vi) “Employee Agreement<\/em><\/strong>” shall mean each
\nmanagement, employment, severance, separation, settlement, consulting,
\ncontractor, relocation, change of control, retention, bonus, repatriation,
\nexpatriation, loan, visa, work permit or other agreement, or contract (including
\nany offer letter or any agreement providing for acceleration of Company Options,
\nor any other agreement providing for compensation or benefits) between the
\nCompany or any ERISA Affiliate and any Employee, whether written or unwritten.\n<\/p>\n

(vii) “ERISA<\/em><\/strong>” shall mean the Employee Retirement
\nIncome Security Act of 1974, as amended.<\/p>\n

(viii) “ERISA Affiliate<\/em><\/strong>” shall mean any other
\nPerson under common control with the Company or that, together with the Company,
\ncould be deemed to be a “single employer” within the meaning of Section
\n4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, and the
\nregulations issued thereunder.<\/p>\n

(ix) “FMLA<\/em><\/strong>” shall mean the Family Medical Leave Act
\nof 1993, as amended.<\/p>\n

(x) “HIPAA<\/em><\/strong>” shall mean the Health Insurance
\nPortability and Accountability Act of 1996, as amended.<\/p>\n

(xi) “International Employee Plan<\/em><\/strong>” shall mean each
\nCompany Employee Plan or Employee Agreement that has been established, adopted
\nor maintained, or contributed to or required to be contributed to, by the
\nCompany or any ERISA Affiliate, whether formally or informally or with respect
\nto which the Company or any ERISA Affiliate will or may have any liability with
\nrespect to Employees who perform services outside the United States.<\/p>\n

(xii) “IRS<\/em><\/strong>” shall mean the United States Internal
\nRevenue Service.<\/p>\n

(xiii) “Manager<\/em><\/strong>” shall mean an individual who is
\nnot an Employee and who serves or has served as a member of the Board of
\nManagers of the Company.<\/p>\n

(xiv) “Pension Plan<\/em><\/strong>” shall mean each Company
\nEmployee Plan that is an “employee pension benefit plan,” within the meaning of
\nSection 3(2) of ERISA, or an International Employee Plan and that: (1) provides
\na guaranteed or minimum rate guarantee; (2) is not account-based with individual
\nparticipant accounts; and (3) is designed to accumulate or accrue a benefit,
\nannuity payment or a cash balance that a service provider of the Company could
\ndraw upon at a specific age, or retirement or following separation from service.\n<\/p>\n

(c) Schedule<\/em><\/strong>.<\/p>\n

(i) Section 2.22(c)(i) <\/strong>of the Disclosure Schedule contains a
\ntrue, correct and complete list of each Company Employee Plan and each Employee
\nAgreement.<\/p>\n

(ii) Section 2.22(c)(ii) <\/strong>of the Disclosure Schedule sets
\nforth a true, correct and complete table setting forth the name and salary of
\neach current Employee as of the date of this Agreement.<\/p>\n

37<\/p>\n

\n

<\/p>\n

(iii) Section 2.22(c)(iii) <\/strong>of the Disclosure Schedule
\ncontains a true, correct and complete list of all Persons that as of the date of
\nthis Agreement have a service, consulting or advisory relationship with the
\nCompany other than as an Employee and a brief description of such relationship.\n<\/p>\n

(iv) Neither the Company nor any ERISA Affiliate has made any plan or
\ncommitment to (A) establish any new Company Employee Plan or Employee Agreement;
\n(B) to modify any Company Employee Plan or Employee Agreement (except to the
\nextent required by Law or to conform any such Company Employee Plan or Employee
\nAgreement to the requirements of any applicable Law, in each case as previously
\ndisclosed to Parent in writing, or as required by this Agreement); or (C) to
\nadopt or enter into, or contribute or agree to contribute to, any Company
\nEmployee Plan or Employee Agreement. To the Knowledge of the Company, except as
\nset forth on Section 2.22(c)(iv) <\/strong>of the Disclosure Schedule, no
\nEmployee intends to terminate his or her employment for any reason. Other than
\nthe Plan, no Company Employee Plan permits by its terms participation in or
\nprovides benefits to any Consultant or Manager.<\/p>\n

(d) Documents<\/em><\/strong>. The Company has provided to Parent
\n(i) a true, correct and complete copy of documents embodying each Company
\nEmployee Plan (including each International Employee Plan, if any) and each
\nEmployee Agreement, including all amendments thereto and all related trust
\ndocuments, that are listed on Section 2.22(c)(i) <\/strong>of the
\nDisclosure Schedule. The furnished documents include: (ii) the reports for 2009
\n(Form Series 5500 and all schedules and financial statements attached thereto),
\nif any, required under ERISA or the Code in connection with each Company
\nEmployee Plan; (iii) if a Company Employee Plan is funded, the most recent
\nannual accounting of Company Employee Plan assets; (iv) the summary plan
\ndescription for the 401(k) plan and insurance certificates issued with respect
\nto Company Employee Plans that are insured; (v) all material written agreements
\nand contracts relating to each Company Employee Plan, including administrative
\nservice agreements and group insurance contracts; (vi) written communications,
\nif any, material for 2011 to Employees generally relating to any Company
\nEmployee Plan and any proposed Company Employee Plan, any written communications
\nto Employees relating to any amendments, terminations, establishments, increases
\nor decreases in benefits, acceleration of payments or vesting schedules or other
\nevents which would result in any liability to the Company; (vii) all material
\ncorrespondence to or from any governmental agency, if any, relating to any
\nCompany Employee Plan; (viii) all policies, if any, pertaining to fiduciary
\nliability insurance covering the fiduciaries for each Company Employee Plan;
\n(ix) nondiscrimination test reports and summaries for each Company Employee Plan
\nfor the 2010 plan year, if any are required; and (x) all IRS determination or
\nopinion letters issued, if any, and all applications and correspondence with the
\nIRS and\/or the DOL, if any, with respect to such application or letter with
\nrespect to each Company Employee Plan.<\/p>\n

(e) Employee Plan Compliance<\/em><\/strong>. The Company and each
\nERISA Affiliate has performed in all material respects all obligations required
\nto be performed by them under, is not in default or violation of, and, to the
\nKnowledge of the Company, there has been no default or violation by any other
\nparty to, any Company Employee Plan. Except as set forth on Section
\n2.22(e) <\/strong>of the Disclosure Schedule, each Company Employee Plan has been
\nestablished and maintained in all material respects in accordance with its terms
\nand in material compliance with all applicable Laws, statutes, Orders, rules and
\nregulations, including ERISA and the Code. Any Company Employee Plan intended to
\nbe qualified under Section 401(a) of the Code has obtained a favorable
\ndetermination letter (or opinion letter, if applicable) as to its qualified
\nstatus under the Code and, there has been no event, condition or circumstance
\nthat has adversely affected or is likely to adversely affect its tax-qualified
\nstatus. Except as set forth on Section 2.22(e) <\/strong>of the
\nDisclosure Schedule, no “prohibited transaction,” within the meaning of Section
\n4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt
\nunder Sections 4975(c)(2) and 4975(d) of the Code or Section 408 of ERISA, has
\noccurred with respect to any<\/p>\n

38<\/p>\n

\n

<\/p>\n

Company Employee Plan. There are no actions, suits or claims pending or, to
\nthe Knowledge of the Company, threatened or reasonably anticipated (other than
\nroutine claims for benefits) against any Company Employee Plan or against the
\nassets of any Company Employee Plan. Each Company Employee Plan can be amended,
\nterminated or otherwise discontinued after the Effective Time in accordance with
\nits terms, without material liability to Parent, the Company or any ERISA
\nAffiliate. There are no audits, inquiries or proceedings pending or, to the
\nKnowledge of the Company, threatened by the IRS, DOL or any other Governmental
\nEntity with respect to any Company Employee Plan. To the Knowledge of the
\nCompany, neither the Company nor any ERISA Affiliate is subject to any penalty
\nor Tax with respect to any Company Employee Plan under Section 502(i) of ERISA
\nor Sections 4975 through 4980 of the Code. Except as set forth on
\nSection 2.22(e) <\/strong>of the Disclosure Schedule, the Company has
\ntimely made all contributions and other payments required by and due under the
\nterms of each Company Employee Plan.<\/p>\n

(f) The Company is in material compliance with all of its bonus, commission
\nand other compensation plans and has paid any and all amounts required to be
\npaid under such plans, including any and all bonuses and commissions (or pro
\nrata portion thereof) that may have accrued or been earned through the calendar
\nquarter preceding the Closing Date, and is not liable for any payments, taxes or
\npenalties for failure to comply with any of the terms or conditions of such
\nplans or the laws governing such plans.<\/p>\n

(g) No Pension Plan or Funded Welfare Plans or
\nMEWAs<\/em><\/strong>. Neither the Company nor any ERISA Affiliate has ever
\nmaintained, established, sponsored, participated in, contributed to or agreed to
\ncontribute to, or otherwise be part of, any (i) Pension Plan, including a plan
\nthat is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA
\nor Section 412 of the Code, (ii) a “funded welfare plan” within the meaning of
\nSection 419 of the Code, or (iii) a Multiple Employer Welfare Arrangement, as
\ndefined under Section 3(40)(A) of ERISA (without regard to Section 514(b)(6)(B)
\nof ERISA), established or maintained for the purpose of offering or providing
\nwelfare plan benefits to the employees of two or more employer (including one or
\nmore self-employed individuals), or to their beneficiaries.<\/p>\n

(h) No Self-Insured Plan<\/em><\/strong>. Except as set forth on
\nSection 2.22(h) <\/strong>of the Disclosure Schedule, neither the Company
\nnor any ERISA Affiliate has ever maintained, established, sponsored,
\nparticipated in, contributed to, or agreed to contribute to any self-insured
\nplan that provides benefits to Employees (including any such plan pursuant to
\nwhich a stop-loss policy or contract applies) and no Company Employee Plan is
\nself-insured.<\/p>\n

(i) No Collectively Bargained, Multiemployer and
\nMultiple-Employer Plan<\/em><\/strong>. At no time has the Company or any ERISA
\nAffiliate contributed to or been obligated to contribute to any multiemployer
\nplan (as defined in Section 3(37) and 4001(a)(3) of ERISA). Neither the Company
\nnor any ERISA Affiliate has at any time ever maintained, established, sponsored,
\nparticipated in or contributed to any multiple employer plan or to any plan
\ndescribed in Section 413 of the Code.<\/p>\n

(j) No Retiree Obligations<\/em><\/strong>. No Company Employee
\nPlan or Employee Agreement provides, or reflects or represents any liability to
\nprovide, retiree life insurance, retiree health or other retiree employee
\nwelfare benefits to any person for any reason, except as may be required by
\nCOBRA or other applicable Law, and the Company has not ever represented,
\npromised or contracted (whether in oral or written form) to any Employee (either
\nindividually or to Employees as a group) or any other person that such
\nEmployee(s) or other person would be provided with retiree life insurance,
\nretiree health or other retiree employee welfare benefits, except to the extent
\nrequired by statute.<\/p>\n

39<\/p>\n

\n

<\/p>\n

(k) COBRA; FMLA; HIPAA<\/em><\/strong>. The Company and each ERISA
\nAffiliate has, prior to the Effective Time, complied in all material respects
\nwith COBRA, FMLA, HIPAA, the Patient Protection and Affordable Care Act, the
\nWomen’s Health and Cancer Rights Act of 1998, the Newborns’ and Mothers’ Health
\nProtection Act of 1996, the Medicare Prescription Drug, Improvement and
\nModernization Act of 2003, Patient Protection and Affordable Care Act of 2010,
\nand any similar provisions of state Law applicable to its Employees and the
\napplicable Company Employee Plan. To the Knowledge of the Company, to the extent
\nrequired under HIPAA and the regulations issued thereunder, the Company has,
\nprior to the Effective Time, performed in all material respects all obligations
\nunder the medical privacy rules of HIPAA (45 C.F.R. Parts 160 and 164), the
\nnondiscrimination requirements of HIPAA (45 C.F.R. Parts 144 and 146), the
\nelectronic data interchange requirements of HIPAA (45 C.F.R. Parts 160 and 162),
\nand the security requirements of HIPAA (45 C.F.R. Part 142) as applicable to any
\nCompany Employee Plan.<\/p>\n

(l) Effect of Transaction<\/em><\/strong>. Except as set forth in
\nSection 2.22(l) <\/strong>of the Disclosure Schedule, a Change of Control
\nTrigger will not (i) result in any payment (including compensation, severance,
\ngolden parachute, bonus or otherwise) becoming due to any Employee, (ii) result
\nin any forgiveness of indebtedness, (iii) materially increase any benefits
\notherwise payable by the Company, (iv) result in any obligation to fund benefits
\nwith respect to any Employee, or (v) result in the acceleration of the time of
\npayment or vesting of any such benefits except as required under Section
\n411(d)(3) of the Code ((i) through (v), inclusive, collectively, the
\n“Change of Control Benefits<\/strong>“). “Change of Control
\nTrigger<\/strong>” shall mean either (A) the execution and delivery of this
\nAgreement, (B) the approval by the Members of the Merger, this Agreement or the
\nconsummation of the transactions contemplated hereby, or (C) the consummation of
\nthe transactions contemplated hereby, in each case, either alone or in
\nconnection with any other event, including any termination of employment or
\nservice. “Change of Control Agreement<\/strong>” shall mean each Company
\nEmployee Plan and each Employee Agreement under which a Change of Control
\nTrigger will or could result in any Change of Control Benefits (without regard
\nto any amendment(s) thereto entered into in accordance with the Recitals of this
\nAgreement). Section 2.22(l) <\/strong>of the Disclosure Schedule lists
\nall Change of Control Agreements.<\/p>\n

(m) Employment Matters<\/em><\/strong>. The Company is in
\ncompliance in all material respects with all applicable foreign, federal, state
\nand local Laws, rules and regulations respecting employment, employment
\npractices, terms and conditions of employment, worker classification, tax
\nwithholding, prohibited discrimination, equal employment, fair employment
\npractices, meal and rest periods, immigration status, employee safety and
\nhealth, wages (including overtime), compensation, and hours of work, and in each
\ncase, with respect to Employees: (i) has withheld and reported all amounts
\nrequired by law or by agreement to be withheld and reported with respect to
\nwages, salaries and other payments to Employees, (ii) is not liable for any
\narrears of wages, severance pay or any Taxes or any penalty for failure to
\ncomply with any of the foregoing, and (iii) is not liable for any payment to any
\ntrust or other fund governed by or maintained by or on behalf of any
\nGovernmental Entity with respect to unemployment compensation benefits, social
\nsecurity or other benefits or obligations for Employees (other than routine
\npayments to be made in the normal course of business and consistent with past
\npractice). There are no Actions, suits, claims or administrative matters
\npending, or, to the Knowledge of the Company, threatened against the Company or
\nany of its Employees relating to any Employee, Employee Agreement or Company
\nEmployee Plan. There are no pending, or, to the Knowledge of the Company,
\nthreatened claims or actions against the Company or any Company trustee under
\nany worker’s compensation policy or long-term disability policy. The Company is
\nnot a party to a conciliation agreement, consent decree or other agreement or
\nOrder with any Governmental Entity with respect to employment practices. The
\nservices provided by each of the Company’s and its ERISA Affiliates’ Employees
\nis terminable at the will of the Company and its ERISA Affiliates and any such
\ntermination would result in no liability to the Company or any ERISA Affiliate.
\nSection 2.22(m) <\/strong>of the Disclosure Schedule lists all
\nLiabilities of the Company to any Employee, that result from the termination by
\nthe<\/p>\n

40<\/p>\n

\n

<\/p>\n

Company or Parent of such Employee’s employment or provision of services, a
\nchange of control of the Company, or a combination thereof. Neither the Company
\nnor any ERISA Affiliate has direct or indirect liability with respect to any
\nmisclassification of any person as an independent contractor rather than as an
\nemployee, with respect to any employee leased from another employer or with
\nrespect to any person currently or formerly classified as exempt from overtime
\nand minimum wages.<\/p>\n

(n) Labor<\/em><\/strong>. No work stoppage, slowdown, concerted
\nrefusal to work overtime, labor strike, or other labor dispute against the
\nCompany is pending, or to the Knowledge of the Company, threatened. To the
\nKnowledge of the Company, there are no activities or proceedings of any labor
\nunion to organize any Employees. There are no Actions, suits, claims, labor
\ndisputes or grievances pending, or, to the Knowledge of the Company, threatened
\nrelating to any labor matters involving any Employee, including charges of
\nunfair labor practices. The Company has not engaged in any unfair labor
\npractices within the meaning of the National Labor Relations Act. The Company is
\nnot presently, nor has it been in the past, a party to, or bound by, any
\ncollective bargaining agreement or union contract with respect to Employees and
\nno collective bargaining agreement is being negotiated by the Company.<\/p>\n

(o) No Interference or Conflict<\/em><\/strong>. To the Knowledge
\nof the Company, no Securityholder, Manager, officer, Employee or Consultant of
\nthe Company is obligated under any Contract or agreement, or subject to any
\njudgment, decree, or Order of any Court or Governmental Entity that would
\ninterfere with such Person’s efforts to promote the interests of the Company or
\nthat would interfere with the Company’s business. Neither the execution nor
\ndelivery of this Agreement, nor the carrying on of the Company’s business as
\npresently conducted nor any activity of such officers, Managers, Employees or
\nConsultants in connection with the carrying on of the Company’s business as
\npresently conducted will, to the Knowledge of the Company, conflict with or
\nresult in a breach of the terms, conditions, or provisions of, or constitute a
\ndefault under, any contract or agreement under which any of such officers,
\nManagers, Employees, or Consultants is now bound.<\/p>\n

(p) International Employee Plan<\/em><\/strong>. Neither the
\nCompany nor any ERISA Affiliate currently or has it ever had the obligation to
\nmaintain, establish, sponsor, participate in, be bound by or contribute to any
\nInternational Employee Plan.<\/p>\n

2.23 Insurance<\/em><\/strong>. Section 2.23<\/strong> of
\nthe Disclosure Schedule lists all insurance policies and fidelity bonds covering
\nthe assets, business, equipment, properties, operations, Employees, officers and
\nManagers of the Company or any ERISA Affiliate, including the type of coverage,
\nthe carrier, the amount of coverage, the term and the annual premiums of such
\npolicies. There is no claim by the Company or any ERISA Affiliate pending under
\nany of such policies or bonds as to which coverage has been questioned, denied
\nor disputed or that the Company or any ERISA Affiliate has a reason to believe
\nwill be denied or disputed by the underwriters of such policies or bonds. There
\nis no pending claim the total value of which (inclusive of defense expenses)
\nwill exceed the policy limits. All premiums due and payable under all such
\npolicies and bonds have been paid (or if installment payments are due, will be
\npaid if incurred prior to the Closing Date), and the Company and its ERISA
\nAffiliates are otherwise in material compliance with the terms of such policies
\nand bonds (or other policies and bonds providing substantially similar insurance
\ncoverage). Such policies and bonds (or other policies and bonds providing
\nsubstantially similar coverage) have been in effect since the respective dates
\nset forth on Section 2.23<\/strong> of the Disclosure Schedule and remain
\nin full force and effect. To the Knowledge of the Company, there is no
\nthreatened termination of, or pending premium increase with respect to, any of
\nsuch policies or bonds. Neither the Company nor any Affiliate of the Company
\n(including any ERISA Affiliate) has ever maintained, established, sponsored,
\nparticipated in or contributed to any self-insurance plan.<\/p>\n

2.24 Compliance with Laws<\/em><\/strong>. The Company has, since
\nits date of formation, materially complied and is in material compliance with
\nall applicable Laws to which the Company, its properties and<\/p>\n

41<\/p>\n

\n

<\/p>\n

assets and its business, as currently conducted and as currently contemplated
\nto be conducted, are subject. The Company has not received any notice of any
\nviolation with respect to any applicable Law.<\/p>\n

2.25 Export and Import Control Laws<\/em><\/strong>.<\/p>\n

(a) The Company has, at all times, conducted its export and import
\ntransactions in accordance with all applicable Export and Import Control Laws.
\nWithout limiting the foregoing: (i) the Company is in compliance with the terms
\nof all applicable Export and Import Approvals; (ii) there are no pending or, to
\nthe Knowledge of the Company, threatened claims, charges, investigations,
\nviolations, settlements, civil or criminal enforcement actions, lawsuits, or
\nother Actions against the Company with respect to any Export and Import Control
\nLaws; (iii) there are no Actions, conditions or circumstances pertaining to the
\nCompany’s export or import transactions that may give rise to any future claims,
\ncharges, investigations, violations, settlements, civil or criminal actions,
\nlawsuits, or other Actions under the Export and Import Control Laws; and (iv) no
\napproval from a Governmental Entity is required for the transfer of Export and
\nImport Approvals to Parent are required, or such approvals can be obtained
\nexpeditiously without material cost.<\/p>\n

(b) The Company has established and maintains a compliance program and
\nreasonable internal controls and procedures appropriate to the requirements of
\nExport and Import Control Laws.<\/p>\n

(c) Section 2.25(c) <\/strong>of the Disclosure Schedule sets forth
\nthe true, correct and complete export control classifications, Harmonized Tariff
\nSchedule Codes, and Schedule B Codes applicable to the Company’s products,
\nservices, software and technologies.<\/p>\n

2.26 Anti-Corruption and Anti-Bribery<\/em><\/strong>.<\/p>\n

(a) The Company (including any of its officers, Managers, agents, Employees,
\nAffiliates or other Person associated with or acting on its behalf) has not,
\ndirectly or indirectly, used any corporate funds for unlawful contributions,
\ngifts, services of value, entertainment or other unlawful expenses relating to
\npolitical activity, made or promised to make any unlawful payment or gave or
\npromised to give, anything of value to foreign or domestic Governmental
\nOfficials or employees or made, or promised to make any bribe, rebate, payoff,
\ninfluence payment, kickback or other similar unlawful payment, or taken any
\naction that would cause any of them to be in violation of any Anti-Corruption or
\nAnti-Bribery Laws.<\/p>\n

(b) There are no pending or, to the Knowledge of the Company, threatened
\nActions, claims, charges, investigations, violations, settlements, civil or
\ncriminal enforcement actions or lawsuits against the Company with respect to any
\nAnti-Corruption and Anti-Bribery Laws.<\/p>\n

(c) There are no Actions or, to the Knowledge of the Company, conditions or
\ncircumstances pertaining to the Company’s activities that could reasonably be
\nexpected to give rise to any future claims, charges, investigations, violations,
\nsettlements, civil or criminal actions, lawsuits, or other court actions under
\nany Anti-Corruption and Anti-Bribery Laws.<\/p>\n

2.27 Government Contracts<\/em><\/strong>. The Company has no
\nGovernment Contracts.<\/p>\n

2.28 Warranties; Indemnities<\/em><\/strong>. Except as otherwise
\nprovided in Section 2.14(e)(x) <\/strong>and warranties implied by Law,
\nthe Company has not given any warranties or indemnities relating to Company
\nProducts and Services or technology sold or rendered by the Company.<\/p>\n

42<\/p>\n

\n

<\/p>\n

2.29 Substantial Customers and Suppliers<\/em><\/strong>.<\/p>\n

(a) Section 2.29(a) <\/strong>of the Disclosure Schedule lists each of
\nthe Company’s top 40 customers by yearly revenue for the year ended December 31,
\n2010.<\/p>\n

(b) Section 2.29(b) <\/strong>of the Disclosure Schedule lists, for
\neach of the 25 largest suppliers of the Company on the basis of cost of goods or
\nservices purchased for the 12 month period ending on the Current Balance Sheet
\nDate, the suppliers name and the amount of goods or services purchased for the
\ntwelve month period ending on the Current Balance Sheet Date.<\/p>\n

(c) Except as set forth on Section 2.29(c) <\/strong>of the Disclosure
\nSchedule, no such customer or supplier has (i) ceased or materially reduced its
\npurchases from or sales or provision of services to the Company since the
\nbeginning of such twelve month period; (ii) to the Knowledge of the Company,
\nthreatened to cease or materially reduce such purchases or sales or provision of
\nservices; (iii) to the Knowledge of the Company, been threatened with bankruptcy
\nor insolvency; or (iv) to the Knowledge of the Company, has a dispute or claim
\nwith the Company or any reasonable basis therefor.<\/p>\n

2.30 Complete Copies of Materials<\/em><\/strong>. The Company has
\nmade available to Parent true, correct and complete copies of each document (or
\nsummaries thereof) that has been requested by Parent, including all Contracts
\nand other documents listed on the Disclosure Schedule.<\/p>\n

2.31 Representations Complete<\/em><\/strong>. None of the
\nrepresentations or warranties made by the Company (as modified by the Disclosure
\nSchedule) in this Agreement, and none of the statements made in any exhibit,
\nschedule or certificate furnished by the Company pursuant to this Agreement,
\ncontains any untrue statement of a material fact or omits to state any material
\nfact necessary in order to make the statements contained herein or therein, in
\nthe light of the circumstances under which they were made, not misleading.<\/p>\n

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

REPRESENTATIONS AND WARRANTIES OF PARENT AND
\nSUB<\/strong><\/p>\n

Each of Parent and Merger Sub hereby represents and warrants to the Company
\nthat on the date hereof and on and as Closing Date, as though made on and as of
\nthe Closing Date, as follows:<\/p>\n

3.1 Organization and Standing<\/em><\/strong>. Parent is a
\ncorporation duly organized, validly existing and in good standing under the laws
\nof the State of Delaware. Merger Sub is a limited liability company duly
\norganized, validly existing and in good standing under the laws of the State of
\nDelaware.<\/p>\n

3.2 Authority<\/em><\/strong>. Each of Parent and Merger Sub has
\nall requisite corporate power and authority to enter into this Agreement and any
\nRelated Agreements to which it is a party and to consummate the transactions
\ncontemplated hereby and thereby. The execution and delivery by each of Parent
\nand Merger Sub of this Agreement and any Related Agreements to which it is a
\nparty, and the consummation of the transactions contemplated hereby and thereby,
\nhave been duly authorized by all necessary corporate action on the part of
\nParent and Merger Sub. This Agreement and any Related Agreements to which Parent
\nor Merger Sub is a party has been duly executed and delivered by Parent and
\nMerger Sub, as applicable, and constitutes the valid and binding obligation of
\nParent and Merger Sub, as applicable, enforceable against Parent and Merger Sub,
\nas applicable, in accordance with their terms.<\/p>\n

43<\/p>\n

\n

<\/p>\n

3.3 No Conflict; Required Filings and Consents<\/em><\/strong>.\n<\/p>\n

(a) The execution and delivery by Parent and Merger Sub of this Agreement and
\neach of the other Related Agreements to which it is a party do not, and the
\nperformance of this Agreement and each of the other Related Agreements to which
\nit is a party will not, (i) conflict with or violate the certificate of
\nincorporation or bylaws of Parent or the certificate of formation or limited
\nliability company agreement of Merger Sub, or (ii) conflict with or violate in
\nany material respect any Law or Order applicable to Parent or Merger Sub or by
\nwhich its or any of their respective properties, rights or assets is bound or
\naffected.<\/p>\n

(b) The execution and delivery by Parent and Merger Sub of this Agreement do
\nnot, and the performance by Parent and Merger Sub of this Agreement shall not,
\nrequire Parent or Merger Sub to obtain the Approval of, observe any waiting
\nperiod imposed by, or make any filing with or notification to, any Person or
\nGovernmental Entity, except for (i) the filing of the Certificate of Merger in
\naccordance with Delaware Law; (ii) if necessary or required, antitrust filings
\nunder the HSR Act or any applicable foreign jurisdictions; (iii) compliance with
\napplicable requirements of the Securities Act of 1933, as amended, and any
\napplicable foreign or state securities or “blue sky” Laws; and (iv) such other
\nconsents, authorizations, filings, approvals, notices and registrations that, if
\nnot obtained or made, would not prevent, materially alter or materially delay
\nthe consummation of any of the transactions contemplated by this Agreement.<\/p>\n

3.4 Cash Resources<\/em><\/strong>. Parent will have sufficient
\ncash on hand at the Closing to pay the Merger Consideration.<\/p>\n

3.5 Brokers’ and Finders’ Fees<\/em><\/strong>. Parent has not
\nincurred, nor will it incur, directly or indirectly, any liability for brokerage
\nor finders’ fees or agents’ commissions, fees related to investment banking or
\nsimilar advisory services or any similar charges in connection with the
\nAgreement or any transaction contemplated hereby, nor will the Company incur,
\ndirectly or indirectly, any such liability based on arrangements made by or on
\nbehalf of Parent.<\/p>\n

3.6 Litigation<\/em><\/strong>. There are no Actions, suits,
\nproceedings or investigations pending or, to Parent’s knowledge, threatened
\nagainst Parent or any of its properties before or by any court or arbitrator or
\nany Governmental Entity in which there is a reasonable likelihood (in the
\njudgment of Parent) of an adverse decision that is reasonably likely to impair
\nthe ability of Parent to perform in any material respect its obligations under
\nthis Agreement or any Related Agreement to which Parent is a party.<\/p>\n

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

CONDUCT PRIOR TO THE EFFECTIVE TIME<\/strong><\/p>\n

4.1 Conduct of Business of the Company<\/em><\/strong>. During the
\nperiod from the date of this Agreement and continuing until the earlier of the
\ntermination of this Agreement or the Effective Time, the Company agrees to (i)
\nconduct the business of Company, except to the extent that Parent shall
\notherwise consent in writing in accordance with Section 4.3<\/strong>, in
\nthe ordinary course in substantially the same manner as heretofore conducted;
\n(ii) pay the debts and Taxes of the Company when due (subject to Parent’s review
\nand consent to the filing of any Return as set forth in Section
\n4.1(f))<\/strong>; (iii) pay or perform other obligations when due; and (iv) use
\ncommercially reasonable efforts to (x) preserve intact the present business
\norganizations of the Company, (y) keep available the services of the present
\nofficers and Employees and (z) preserve the relationships of the Company with
\nits customers, suppliers, distributors, licensors, licensees and others having
\nbusiness dealings with them, all with the goal of preserving unimpaired the
\ngoodwill and ongoing business of the Company at the Effective Time. The Company\n<\/p>\n

44<\/p>\n

\n

<\/p>\n

shall promptly notify Parent of any event or occurrence or emergency not in
\nthe ordinary course of business of the Company and any material event involving
\nthe Company that arises during the period from the date of this Agreement and
\ncontinuing until the earlier of the termination date of this Agreement or the
\nEffective Time. Except as expressly contemplated by this Agreement or as
\nexpressly set forth on Section 4.1<\/strong> of the Disclosure Schedule,
\nthe Company shall not, without the prior written consent of Parent in accordance
\nwith Section 4.3<\/strong>:<\/p>\n

(a) cause or permit any modifications, amendments or changes to the Charter
\nDocuments;<\/p>\n

(b) organize or establish any subsidiary (whether or not wholly owned) or
\nenter into any new line of business;<\/p>\n

(c) except as set forth on Section 4.1(c) <\/strong>of the Disclosure
\nSchedule, undertake any expenditure, transaction or commitment exceeding $10,000
\nindividually or $50,000 in the aggregate, except in the ordinary course of
\nbusiness consistent with past practice, or any commitment or transaction of the
\ntype described in Section 2.12<\/strong>;<\/p>\n

(d) except as otherwise provided in Section 4.1(n)<\/strong>, pay,
\ndischarge, waive or satisfy any claim, liability, right or obligation (absolute,
\naccrued, asserted or unasserted, contingent or otherwise), including any
\nIndebtedness, other than the payment, discharge or satisfaction of amounts in
\nthe ordinary course of business of liabilities reflected or reserved against on
\nthe Current Balance Sheet;<\/p>\n

(e) adopt or change accounting methods or practices (including any change in
\ndepreciation or amortization policies or rates) other than as required by GAAP;\n<\/p>\n

(f) make or change any material Tax election, change any annual Tax
\naccounting period, adopt or change any Tax accounting method, enter into any Tax
\nclosing agreement, settle any Tax claim or assessment, consent to any extension
\nor waiver of the limitation period applicable to any Tax claim or assessment,
\nsurrender any right to claim a refund of Taxes or file any initial or amended
\nReturn inconsistent with past practice;<\/p>\n

(g) revalue any of its assets (whether tangible or intangible), including
\nwriting down the value of inventory;<\/p>\n

(h) (A) declare, set aside or pay any dividends on or make any other
\ndistributions (whether in cash, Company Units or other property) in respect of
\nany Company Units; (B) split, combine or reclassify any Company Units; (C) issue
\nor authorize the issuance of any other securities in respect of, in lieu of, in
\nexchange for or in substitution for Company Units; or (D) directly or indirectly
\nrepurchase, redeem or otherwise acquire any Company Units (or options, warrants
\nor other rights convertible into, exercisable or exchangeable for Company
\nUnits);<\/p>\n

(i) Except as set forth on Schedule 4.1(i) <\/strong>of the Disclosure
\nSchedule, increase or otherwise change the salary or other compensation payable
\nor to become payable to any officer, Manager, Employee, Consultant or advisor of
\nthe Company, or make any declaration, payment or commitment or obligation of any
\nkind for the payment (whether in cash, equity or other property) of a severance
\npayment, change of control payment, termination payment, bonus or other
\nadditional salary or compensation to any such person;<\/p>\n

(j) convey, sell, lease, license or otherwise dispose of or grant any
\nsecurity interest in any of its properties or assets, including the sale of any
\naccounts receivable of the Company, except<\/p>\n

45<\/p>\n

\n

<\/p>\n

properties or assets (whether tangible or intangible) which are not
\nIntellectual Property and only in the ordinary course of business and consistent
\nwith past practice;<\/p>\n

(k) adopt a plan of complete or partial liquidation, dissolution,
\nrestructuring, recapitalization or other reorganization of the Company (other
\nthan the Merger);<\/p>\n

(l) make any loan to any Person or purchase debt securities of any Person or
\namend the terms of any outstanding loan agreement, except for advances to
\nEmployees for travel and business expenses in the ordinary course of business
\nconsistent with past practices;<\/p>\n

(m) incur any Indebtedness, amend the terms of any outstanding Indebtedness
\nor issue or sell any debt securities or guarantee any debt securities of any
\nPerson;<\/p>\n

(n) waive or release any right or claim of the Company, including any
\nwrite-off or other compromise of any account receivable of the Company other
\nthan amounts less than $5,000 individually or $25,000 in the aggregate in the
\nordinary course of business consistent with past practice;<\/p>\n

(o) accelerate collection of accounts receivable or change the Company’s
\ncredit practices or payment terms or provide discounts or other pricing
\nincentives beyond those granted in the ordinary course of business, consistent
\nwith past practice;<\/p>\n

(p) commence or settle any Action or proceeding, threat of any Action or
\nproceeding or other investigation by or against the Company or relating to any
\nof its businesses, properties or assets;<\/p>\n

(q) issue, grant, deliver or sell or authorize or propose or contract for the
\nissuance, grant, delivery or sale of, or purchase or propose or contract for the
\npurchase of, any Company Units or any securities convertible into, exercisable
\nor exchangeable for, or subscriptions, rights, warrants or options to acquire,
\nor other agreements or commitments of any character obligating any of them to
\nissue or purchase any such shares or other convertible securities, except for
\nthe issuance of Company Class C Units pursuant to the exercise of Company
\nOptions outstanding on the date of this Agreement;<\/p>\n

(r) (A) sell, lease, license or transfer to any Person any rights to any
\nCompany Intellectual Property Rights or enter into any agreement or modify or
\namend any existing agreement with respect to any Company Intellectual Property
\nRights with any Person or with respect to any Intellectual Property of any
\nPerson except in the ordinary course of business consistent with past practice;
\n(B) purchase or license any Intellectual Property or enter into any agreement or
\nmodify or amend any existing agreement with respect to the Intellectual Property
\nof any Person; or (C) enter into any agreement or modify or amend any existing
\nagreement with respect to the development of any Intellectual Property with a
\nthird party;<\/p>\n

(s) except as set forth on Section 4.1(s) <\/strong>of the Disclosure
\nSchedule, enter into or amend any Contract pursuant to which any other party is
\ngranted marketing, distribution, development, manufacturing or similar rights of
\nany type or scope with respect to any products or technology of the Company;\n<\/p>\n

(t) enter into any Contract to purchase or sell any interest in real
\nproperty, grant any security interest in any real property, enter into any
\nlease, sublease, license or other occupancy agreement with respect to any real
\nproperty or, except as set forth on Section 4.1(t) <\/strong>of the
\nDisclosure Schedule, alter, amend, modify or terminate any of the terms of any
\nLease Agreements, or waive any term or condition thereof or grant any consents
\nthereunder;<\/p>\n

46<\/p>\n

\n

<\/p>\n

(u) grant or otherwise create or consent to the creation of any easement,
\ncovenant, restriction, assessment or charge affecting any real property or any
\npart thereof; commit any waste or nuisance on any such property; or make any
\nmaterial changes in the construction or condition of any such property;<\/p>\n

(v) except as set forth on Section 4.1(v) <\/strong>of the Disclosure
\nSchedule, terminate, amend or otherwise modify (or agree to do so), or violate
\nthe terms of, any of the Contracts set forth or described on the Disclosure
\nSchedule;<\/p>\n

(w) acquire or agree to acquire by merging or consolidating with, or by
\npurchasing any assets or equity securities of, or by any other manner, any
\nbusiness or any corporation, partnership, association or other business
\norganization or division thereof, or otherwise acquire or agree to acquire any
\nassets which are material or any equity securities, individually or in the
\naggregate, to the business of the Company;<\/p>\n

(x) except as set forth on Section 4.1(x) <\/strong>of the Disclosure
\nSchedule, grant any severance, change of control or termination pay (whether
\npayable in cash, equity or otherwise) to any Employee, except pursuant to
\nwritten agreements outstanding, or policies existing, on the date hereof and as
\npreviously disclosed in writing to Parent, or adopt any new severance plan, or
\namend or modify or alter in any respect any severance plan, agreement or
\narrangement existing on the date hereof;<\/p>\n

(y) except as set forth on Section 4.1(y) <\/strong>of the Disclosure
\nSchedule, adopt, amend or terminate any Employee Agreement, Company Employee
\nPlan or employee unit purchase or unit option plan, or enter into any employment
\ncontract (other than offer letters and letter agreements entered into, in the
\nordinary course of business and consistent with past practice, with newly hired
\nemployees who are terminable “at will” and who are not officers of the Company
\nand which letters and agreements do not provide for any severance, retention or
\nsimilar benefits) or collective bargaining agreement, pay any special bonus or
\nspecial remuneration (whether payable in cash, equity or otherwise) to any
\nEmployee, or increase the salaries or wage rates or fringe benefits (whether
\npayable in cash, equity or otherwise) (including rights to severance or
\nindemnification) of its Employees, except pursuant to agreements outstanding on
\nthe date hereof that have been previously been disclosed in writing to Parent;\n<\/p>\n

(z) make any representations or issue any communications to Employees that
\nare inconsistent with this Agreement or the transactions contemplated thereby,
\nincluding any representations regarding offers of employment from Parent;<\/p>\n

(aa) enter into any strategic alliance, affiliate agreement or joint
\nmarketing arrangement or Contract;<\/p>\n

(bb) except as set forth on Section 4.1(bb) of the Disclosure Schedule, enter
\ninto any Contract that if entered into on or prior to the date hereof would be
\nrequired to be disclosed in Section 2.15(a)(i) <\/strong>through
\nSection 2.15(a)(xxi)<\/strong>, inclusive, of the Disclosure Schedule, or
\namend any Contract disclosed or required to be disclosed in Section
\n2.15(a)(i) <\/strong>through Section 2.15(a)(xxi)<\/strong>, inclusive, of
\nthe Disclosure Schedule;<\/p>\n

(cc) except as set forth on Section 4.1(cc)<\/strong> of the
\nDisclosure Schedule, waive any stock repurchase rights, accelerate, amend or
\nchange the period of exercisability of options or restricted stock or any other
\nequity or similar incentive awards (including any long term incentive awards),
\nor reprice stock options (through amendment, exchange or otherwise) or authorize
\ncash payments or new equity awards in exchange for any stock options, other than
\nas provided by this Agreement;<\/p>\n

47<\/p>\n

\n

<\/p>\n

(dd) except as set forth on Section 4.1(dd)<\/strong> of the
\nDisclosure Schedule, hire, offer to hire or terminate any Employee or encourage
\nor otherwise cause any Employee to resign from the Company;<\/p>\n

(ee) except as set forth on Section 4.1(ee)<\/strong> of the
\nDisclosure Schedule, promote, demote, terminate or otherwise change the
\nemployment status or titles of any Employee;<\/p>\n

(ff) alter, or enter into any commitment to alter, its interest in any Person
\nin which the Company directly or indirectly holds any interest;<\/p>\n

(gg) cancel, amend or renew any insurance policy; or<\/p>\n

(hh) take, commit, or agree in writing or otherwise to take, any of the
\nactions described in Sections 4.1(a) <\/strong>through
\n4.1(gg)<\/strong>, inclusive, or any other action that would (i) prevent
\nthe Company from performing, or cause the Company not to perform, its covenants
\nor agreements hereunder, or (ii) cause or result in any of its representations
\nand warranties contained herein being untrue or incorrect.<\/p>\n

4.2 No Solicitation<\/em><\/strong>.<\/p>\n

(a) Until the earlier of (i) the Effective Time or (ii) the date of
\ntermination of this Agreement pursuant to the provisions of Section
\n8.1<\/strong>, the Company shall not (nor shall the Company permit, as
\napplicable, any of its officers, Managers, Employees, agents (including its
\nfinancial, legal, accounting or other advisors), Affiliates, Securityholders or
\nany of their respective representatives to), directly or indirectly, take any of
\nthe following actions with any party other than Parent and its designees: (i)
\nsolicit, facilitate, encourage, seek, entertain, support, assist, initiate or
\nparticipate in any inquiry, negotiations or discussions, or enter into any
\nagreement, with respect to any offer or proposal to acquire all or any material
\npart of the business, properties or technologies of the Company or any amount of
\nCompany Units (whether or not outstanding), whether by merger, purchase of
\nassets, tender offer, license or otherwise, or effect any such transaction (any
\nsuch offer, proposal or inquiry, an “Acquisition Proposal<\/strong>“);
\n(ii) disclose any information not customarily disclosed to any Person concerning
\nthe business, technologies or properties of the Company, or afford to any Person
\naccess to its properties, technologies, books or records not customarily
\nafforded such access; (iii) assist or cooperate, or participate in any
\ndiscussion, with any Person in connection with an Acquisition Proposal; or (iv)
\nenter into any contract, agreement, binding or nonbinding term sheet, or
\narrangement with any Person concerning or relating to an Acquisition Proposal.
\nThe Company shall immediately cease and cause to be terminated any such
\nnegotiations, discussion or agreements (other than with Parent and its
\nrepresentatives) that are the subject matter of clause (i), (ii), (iii) or (iv)
\nabove. Until the earlier of (A) the Effective Time or (B) the date of
\ntermination of this Agreement pursuant to the provisions of Section
\n8.1<\/strong>, the Company will not waive (and will enforce) the provisions of
\nany confidentiality or other similar agreement, and any “standstill” or other
\nsimilar agreement, in each case to which the Company is a party.<\/p>\n

(b) The Company shall notify Parent promptly (but in no event later than 24
\nhours) (i) after receipt by the Company or its officers, Managers, Employees,
\nagents (including its financial, legal, accounting or other advisors),
\nAffiliates, Securityholders or their respective representatives of any
\nunsolicited offer, proposal, inquiry, communication or expression of interest
\nregarding a bona fide Acquisition Proposal; (ii) if any of the foregoing Persons
\nengages in any negotiations or discussions relating to an Acquisition Proposal
\nor any modification of or amendment to any Acquisition Proposal; (iii) request
\nfor nonpublic information relating to the Company or for access to the
\nproperties, books or records of the Company; or (iv) communication or notice by
\nany Person that it is considering making, or has made, an Acquisition Proposal
\nor that could reasonably be expected to lead to an Acquisition<\/p>\n

48<\/p>\n

\n

<\/p>\n

Proposal. Such notice to Parent shall be made orally and in writing and shall
\nindicate (A) the identity of the Person making the Acquisition Proposal or
\nintending to make or considering making an Acquisition Proposal or requesting
\nnon-public information or access to the books and records of the Company, and
\n(B) a summary of the terms of such bona fide Acquisition Proposal (and a copy
\nthereof, if in writing). In no event will the Company accept or enter in any
\nAcquisition Proposal prior to the earlier of the Closing Date or the date of
\ntermination of this Agreement pursuant to its terms, and the Company agrees that
\nany negotiations in progress as of the date hereof with respect to any
\nAcquisition Proposal will be immediately terminated or suspended. The Company
\nshall indemnify Parent, its representatives and agents from and against any
\nclaims by any party to an Acquisition Proposal based upon or arising out of the
\ndiscussion or consummation of the transactions contemplated by this Agreement.\n<\/p>\n

(c) The parties hereto agree that irreparable damage would occur in the event
\nthat the provisions of this Section 4.2<\/strong> were not performed in
\naccordance with their specific terms or were otherwise breached. It is
\naccordingly agreed by the parties hereto that Parent shall be entitled to an
\nimmediate injunction or injunctions, without the necessity of proving the
\ninadequacy of money damages as a remedy and without the necessity of posting any
\nbond or other security, to prevent breaches of the provisions of this
\nSection 4.2<\/strong> and to enforce specifically the terms and
\nprovisions hereof in any court of the United States or any state having
\njurisdiction, this being in addition to any other remedy to which Parent may be
\nentitled at law or in equity. Without limiting the foregoing, it is understood
\nthat any violation of the restrictions set forth above by any officer, Manager,
\nEmployee, agent (including financial, legal, accounting or other advisors),
\nAffiliate, Securityholder of the Company, or any of their representatives, shall
\nbe deemed to be a breach of this Agreement by Company.<\/p>\n

4.3 Procedures for Requesting Parent Consent<\/em><\/strong>. If
\nthe Company desires to take or not take any action that would require the
\nwritten consent of Parent pursuant to Section 4.1<\/strong>, prior to
\ntaking or not taking such action, the Company may request such written consent
\nby sending an email or fax to the individuals set forth on Schedule
\n4.3<\/strong>, or such individual’s designee, and the Company may not take or
\nrefrain from taking such action until such consent in writing (which may be by
\nemail or fax, with confirmation of receipt) has been received from one of the
\nindividuals on Schedule 4.3<\/strong>. Parent shall acknowledge such
\nrequest promptly upon receipt and in any event respond to such request within
\none business day. If the Company does not receive a response within such period,
\nit may notify Parent again using the procedures set forth above, and if the
\nCompany has not received a response within 24 hours of its second request,
\nconsent shall be deemed given by Parent for the Company to take or not take such
\naction. The parties agree that should immediate action be required, they will
\nuse their commercially reasonable efforts to reach a decision regarding the
\nconsent as soon as possible.<\/p>\n

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

ADDITIONAL AGREEMENTS<\/strong><\/p>\n

5.1 Reasonable Efforts<\/em><\/strong>. Subject to the terms and
\nconditions provided in this Agreement, each of the parties hereto shall use its
\nreasonable efforts to take promptly, or cause to be taken promptly, all actions,
\nand to do promptly, or cause to be done promptly, all things necessary, proper
\nor advisable under applicable Laws and regulations to (a) consummate and make
\neffective the transactions contemplated hereby, (b) cause all conditions to the
\nobligations of the other parties hereto to effect the Merger to occur, (c)
\nobtain all necessary waivers, consents, approvals and other documents required
\nto be delivered hereunder, and (d) effect all necessary registrations and
\nfilings and to remove any injunctions or other impediments or delays, legal or
\notherwise, in order to consummate and make effective the transactions
\ncontemplated by this Agreement for the purpose of securing to the parties hereto
\nthe benefits contemplated by this Agreement; provided<\/em>,
\nhowever<\/em>, that Parent shall not be required to agree to (i) any license,
\nsale or other disposition or holding separate (through establishment of a trust
\nor otherwise) of any<\/p>\n

49<\/p>\n

\n

<\/p>\n

shares of capital stock or of any business, assets or properties of Parent,
\nits subsidiaries or Affiliates or of the Company; (ii) the imposition of any
\nlimitation on the ability of Parent, its subsidiaries or Affiliates or the
\nCompany to conduct their respective businesses or own any capital stock or
\nassets or to acquire, hold or exercise full rights of ownership of their
\nrespective businesses and, in the case of Parent, the business of the Company;
\nor (iii) the imposition of any impediment on Parent, its subsidiaries or
\nAffiliates or the Company under any statute, rule, regulation, decree, Order or
\nother legal restraint governing competition, monopolies or restrictive trade
\npractices (any such action described in (i), (ii) or (iii) an “Action of
\nDivestiture<\/strong>“). Nothing herein shall require Parent to litigate with any
\nGovernmental Entity.<\/p>\n

5.2 Member Approval<\/em><\/strong>.<\/p>\n

(a) As promptly as practicable following the execution of this Agreement, but
\nin no event longer than two business days thereafter, the Company shall submit
\nthis Agreement and the transactions contemplated hereby to its Members for
\napproval and adoption as provided by Florida Law and the Charter Documents. Such
\nsubmission, and any proxy or consent in connection therewith, (i) shall include
\na solicitation of the Requisite Member Vote and (ii) shall specify that adoption
\nof this Agreement shall constitute approval by the Members of (i) the escrow and
\nindemnification obligations of the Unitholders set forth in Article
\nVII<\/strong> and the deposit of the Escrow Amount and the Expense Escrow Amount
\ninto the Escrow Fund and the Expense Escrow Account, respectively, as
\ncontemplated by Section 1.8(b)<\/strong>, and (ii) in favor of the
\nappointment of Reed Colley as Securityholders’ Representative, under and as
\ndefined in this Agreement. The Company shall use its reasonable efforts to
\nobtain the consent of its Members holding the Requisite Member Vote to approve
\nthis Agreement and the transactions contemplated by this Agreement and to enable
\nthe Closing to occur as promptly as practicable.<\/p>\n

(b) Any materials to be submitted to the Members in connection with the
\nsolicitation of their approval of the Merger and this Agreement (the
\n“Soliciting Materials<\/strong>“), shall be subject to review and
\napproval (not to be unreasonably withheld) by Parent and shall include
\ninformation regarding the Company, the terms of the Merger and this Agreement,
\nand the unanimous recommendation of the Board of Managers of the Company in
\nfavor of the Merger and this Agreement, including each of the matters set forth
\nin Section 5.2(a)<\/strong>. Anything to the contrary contained herein
\nnotwithstanding, the Company shall not include in the Soliciting Materials any
\ninformation with respect to Parent or its Affiliates or associates that has not
\nbeen consented to in writing by Parent prior to such inclusion. The Company and
\nParent will promptly advise the other in writing if at any time prior to the
\nClosing the Company or Parent, as the case may be, shall obtain knowledge of any
\nfacts that might make it necessary or appropriate to amend or supplement the
\nSoliciting Materials in order to make statements contained or incorporated by
\nreference therein not misleading or to comply with applicable Law;
\nprovided<\/em>, however<\/em>, that Parent shall only be required to
\nprovide notice of any such facts to the extent that such facts relate to
\ninformation furnished in writing by Parent or Merger Sub for the express purpose
\nof inclusion in such Soliciting Materials.<\/p>\n

(c) The Board of Managers of the Company shall not alter, modify, change or
\nrevoke its unanimous approval of the Merger, this Agreement and the transactions
\ncontemplated hereby, and its unanimous recommendation to the Members to vote in
\nfavor of this Agreement and the transactions contemplated by this Agreement.\n<\/p>\n

(d) The information prepared by the Company furnished on or in any document
\nmailed, delivered or otherwise furnished to Unitholders by the Company in
\nconnection with the solicitation of their consent to this Agreement, the
\ntransactions contemplated hereby and the other matters contemplated by
\nSection 5.2<\/strong> will not contain, at or prior to the Effective
\nTime, any untrue statement of a<\/p>\n

50<\/p>\n

\n

<\/p>\n

material fact and will not omit to state any material fact necessary in order
\nto make the statements made therein, in light of the circumstances under which
\nmade, not misleading.<\/p>\n

(e) The Company shall distribute Joinder Agreements in the form attached as
\nExhibit E<\/strong> (each a “Joinder Agreement<\/strong>“) to the
\nUnitholders and Optionholders (other than the Small-lot Optionholders) promptly
\nfollowing the execution of this Agreement and use its reasonable efforts to
\nobtain executed copies of a Joinder Agreement on or prior to the Closing Date
\nfrom each Unitholder and Optionholder (other than the Small-lot Optionholders)
\nand to deliver executed copies thereof to Parent prior to the Closing.<\/p>\n

5.3 Regulatory Approval<\/em><\/strong>.<\/p>\n

(a) To the extent necessary or required, as soon as may be reasonably
\npracticable, the Company and Parent (and any applicable Unitholder) shall make
\nall filings, notices, petitions, statements, registrations and submissions of
\ninformation, application or submission of other documents required by any
\nGovernmental Entity in connection with the Merger and the transactions
\ncontemplated hereby. Each of Parent and the Company shall cause all documents
\nthat it is responsible for filing with any Governmental Entity under this
\nSection 5.3<\/strong> to comply in all material respects with applicable
\nLaw.<\/p>\n

(b) The Company and Parent (and\/or any applicable Unitholder) each shall
\npromptly (i) supply the others with any information which reasonably may be
\nrequired in order to effectuate the filings contemplated by Section
\n5.3(a)<\/strong>, and (ii) supply any additional information which reasonably may
\nbe required by the competition or merger control authorities of any other
\njurisdiction and which the parties may reasonably deem appropriate. Except where
\nprohibited by applicable Law, the Company shall consult with Parent prior to
\ntaking a position with respect to any such filings, shall permit Parent to
\nreview and discuss in advance, and consider in good faith the views of Parent in
\nconnection with, any analyses, appearances, presentations, memoranda, briefs,
\nwhite papers, other materials, arguments, opinions and proposals before making
\nor submitting any of the foregoing to any Governmental Entity in connection with
\nany investigations or proceedings in connection with this Agreement or the
\ntransactions contemplated hereby, coordinate with Parent in preparing and
\nproviding such information and promptly provide Parent (and its counsel) copies
\nof all filings, presentations and submissions (and a summary of oral
\npresentations) made by the Company with any Governmental Entity in connection
\nwith this Agreement and the transactions contemplated hereby. Parent shall have
\nprincipal control over the strategy for interacting with such Governmental
\nEntities in connection with the matters contained in this Section
\n5.3<\/strong>.<\/p>\n

(c) Each of Parent and the Company shall notify the other promptly upon the
\nreceipt of (i) any comments from any officials of any Governmental Entity in
\nconnection with any filings made pursuant hereto, and (ii) any request by any
\nofficials of any Governmental Entity for amendments or supplements to any
\nfilings made pursuant to, or information provided to comply in all materials
\nrespect with, applicable Law. Whenever any event occurs that is required to be
\nset forth in an amendment or supplement to any filing made pursuant to
\nSection 5.3(a)<\/strong>, Parent or the Company, as the case may be, will
\npromptly inform the other of such occurrence and cooperate in filing with the
\napplicable Governmental Entity such amendment or supplement.<\/p>\n

5.4 Access to Information<\/em><\/strong>. The Company shall afford
\nParent and its accountants, counsel and other representatives reasonable access
\nduring the period from the date hereof through the Effective Time to (a) all of
\nthe properties (including for the performance of environmental tests or
\ninvestigations as Parent may desire and as may be permitted by any lessor),
\nbooks, contracts, commitments and records of the Company, including all Company
\nIntellectual Property Rights (including access to design processes and
\nmethodologies and all source code); (b) all other information concerning the
\nbusiness, properties and<\/p>\n

51<\/p>\n

\n

<\/p>\n

personnel (subject to restrictions imposed by applicable Law) of the Company
\nas Parent may reasonably request, and (iii) all Employees (subject to
\nrestrictions imposed by applicable Law) of the Company as identified by Parent.
\nThe Company agrees to provide to Parent and its accountants, counsel and other
\nrepresentatives copies of internal financial statements (including Tax Returns
\nand supporting documentation) promptly upon request. Parent will provide the
\nCompany with copies of such publicly available information about Parent as the
\nCompany may request. No information or knowledge obtained in any investigation
\npursuant to this Section 5.4<\/strong> or otherwise shall affect or be
\ndeemed to modify any representation or warranty contained herein or the
\nconditions to the obligations of the parties to consummate the Merger in
\naccordance with the terms and provisions hereof.<\/p>\n

5.5 Confidentiality<\/em><\/strong>. Each of the parties hereto
\nhereby agrees that the information obtained in any investigation pursuant to
\nSection 5.4<\/strong>, or pursuant to the negotiation and execution of
\nthis Agreement or the effectuation of the transactions contemplated hereby,
\nshall be governed by the terms of the Confidentiality Agreement, dated as of
\nFebruary 23, 2011 (the “Nondisclosure Agreement<\/strong>“), between the
\nCompany and Parent. Parent and the Company agree that such information will
\nconstitute “Proprietary Information” as contemplated by the Nondisclosure
\nAgreement, notwithstanding any failure (i) to specifically designate such
\ninformation as “Confidential,” “Proprietary” or some similar designation, and
\n(ii) to confirm in writing that information communicated orally is “Proprietary
\nInformation.” The Company further acknowledges that the Parent Common Stock is
\npublicly traded and that any information obtained during the course of its due
\ndiligence could be considered to be material non-public information within the
\nmeaning of federal and state securities laws. Accordingly, the Company
\nacknowledges and agrees not to engage in any discussions or correspondence
\nregarding transactions in the Parent Common Stock in violation of applicable
\nsecurities Laws.<\/p>\n

5.6 Public Disclosure<\/em><\/strong>. Neither Parent nor the
\nCompany (nor any of their respective representatives) shall issue any statement
\nor communication to any third party (other than their agents that are bound by
\nconfidentiality restrictions) regarding the subject matter of this Agreement or
\nthe transactions contemplated hereby, including, if applicable, the termination
\nof this Agreement and the reasons therefor, without the consent of the other,
\nexcept that this restriction shall be subject to Parent’s obligation to comply
\nwith applicable securities Laws and the rules and regulations of The Nasdaq
\nStock Market.<\/p>\n

5.7 Notification of Certain Matters<\/em><\/strong>. The Company
\nshall give prompt notice to Parent of (a) the occurrence or non-occurrence of
\nany event, which occurrence or non-occurrence is likely to cause any
\nrepresentation or warranty of the Company contained in this Agreement to be
\nuntrue or inaccurate at or prior to the Effective Time; and (b) any failure of
\nthe Company to comply with or satisfy any covenant, condition or agreement to be
\ncomplied with or satisfied by it hereunder; provided<\/em>,
\nhowever<\/em>, that the delivery of any notice pursuant to this
\nSection 5.7<\/strong> shall not (i) limit or otherwise affect any
\nremedies available to the party receiving such notice, or (ii) constitute an
\nacknowledgment or admission of a breach of this Agreement. No disclosure by the
\nCompany pursuant to this Section 5.7<\/strong> shall be deemed to amend
\nor supplement the Disclosure Schedule or prevent or cure any misrepresentations,
\nbreach of warranty or breach of covenant.<\/p>\n

5.8 Additional Documents and Further Assurances<\/em><\/strong>.
\nEach party hereto, at the request of another party hereto, shall execute and
\ndeliver such other instruments and do and perform such other acts and things as
\nmay be necessary or desirable for effecting completely the consummation of the
\nMerger and the transactions contemplated hereby.<\/p>\n

52<\/p>\n

\n

<\/p>\n

5.9 Contracts<\/em><\/strong>.<\/p>\n

(a) Consents<\/em><\/strong>. The Company shall use its reasonable
\nefforts to obtain all necessary consents, waivers and approvals of any parties
\nto any Contract, and give all necessary notices to such parties, as are required
\nthereunder in connection with the Merger or for any such Contracts to remain in
\nfull force and effect, all of which are required to be listed in
\nSection 2.4<\/strong> of the Disclosure Schedule, so as to preserve all
\nrights of, and benefits to, the Company under such Contract from and after the
\nEffective Time. Such consents, waivers, approvals and notices shall be in a form
\nreasonably acceptable to Parent. In the event that the other parties to any such
\nContract, including any lessor or licensor of any Leased Real Property,
\nconditions its grant of a consent, waiver, approval (including by threatening to
\nexercise a “recapture” or other termination right) upon the payment of a consent
\nfee or other similar consideration, including increased rent payments,
\nacceleration of rent payments or other payments under the Contract relating to
\nsuch consent, waiver, approval, the Company shall be responsible for making all
\npayments required to obtain such consent, waiver or approval, and Parent shall
\nbe entitled to indemnification for the payment of any such consent fee or other
\nsimilar consideration and the amounts set forth on Schedule
\n5.9(a).<\/strong> The Company shall also use its reasonable efforts to obtain and
\ndeliver to Parent from each of the landlords under leases of premises containing
\nmore than 5,000 square feet an estoppel certificate, in a form acceptable to
\nParent, certifying (a) that the form of the applicable Lease Agreement delivered
\nby the Company to Parent is a true, correct and complete copy of such Lease
\nAgreement and is in full force and effect, (b) that such Lease Agreement has not
\nbeen modified and that no material rights have been waived thereunder, (c) the
\naggregate monthly rental then payable thereunder, and (d) that, to the knowledge
\nof the landlord, there exist no defaults on the part of any party to the Lease
\nAgreement or specifying the nature of any such defaults, and providing such
\nfurther information about the Lease Agreement or the applicable premises as may
\nbe reasonably required by Parent.<\/p>\n

(b) Termination of Agreements<\/em><\/strong>. The Company shall
\nterminate each of the agreements listed on Schedule 5.9(b)
\n<\/strong>(the “Terminated Agreements<\/strong>“), effective as of and
\ncontingent upon the Closing, including sending all required notices, so that
\neach such agreement shall be of no further force or effect immediately following
\nthe Effective Time. Upon the Closing, the Company shall have paid all amounts
\nowed pursuant to the Terminated Agreements (as a result of the termination of
\nthe Terminated Agreements or otherwise), and the Surviving Company will not
\nincur any claim, liability or obligation (absolute, accrued, asserted or
\nunasserted, contingent or otherwise) under any Terminated Agreement following
\nthe Closing Date.<\/p>\n

5.10 Employee Matters<\/em><\/strong>.<\/p>\n

(a) Proprietary Information and Inventions Assignment
\nAgreements<\/em><\/strong>. The Company shall use its reasonable efforts to cause
\neach Employee to have entered into and executed, and each person who becomes an
\nemployee of the Company after the date hereof and prior to the Closing shall be
\nrequired by the Company to enter into and execute, an Employee Proprietary
\nInformation Agreement with the Company effective as of such employee’s first
\ndate of employment or service and a confirmatory assignment of Intellectual
\nProperty in a form reasonably acceptable to Parent (the “Confirmatory
\nAssignment<\/strong>“). The Company shall use its reasonable efforts to cause
\neach current and former Consultant or contractor of the Company to have entered
\ninto and executed, and each person who becomes a consultant or contractor of the
\nCompany after the date hereof and prior to the Closing shall be required by the
\nCompany to enter into and execute, a Consultant Proprietary Information
\nAgreement with the Company effective as of such consultant or contractor’s first
\ndate of service.<\/p>\n

(b) Employment and Non-Competition Agreements<\/em><\/strong>.
\nPrior to or concurrent with execution of this Agreement, the Company shall cause
\neach of the Key Future Employees to execute and deliver to Parent an Employment
\nAgreement and a Non-Competition Agreement.<\/p>\n

53<\/p>\n

\n

<\/p>\n

(c) Resignation of Officers and Managers<\/em><\/strong>. The
\nCompany shall cause each officer and manager of the Company to execute a
\nresignation letter in the form set forth on Exhibit H<\/strong>
\neffective as of the Effective Time.<\/p>\n

(d) Termination of Certain Company Employee Plans<\/em><\/strong>.
\nEffective as of no later than the day immediately preceding the Closing Date,
\neach of the Company and any ERISA Affiliate shall terminate any and all group
\nseverance, salary continuation and separation programs (each, a
\n“Severance Plan<\/strong>“), and Company Employee Plans intended to
\ninclude a Code Section 401(k) arrangement (each, a “401(k)
\nPlan<\/strong>“) (unless Parent provides written notice to the Company that one
\nor more of such Severance Plans, and 401(k) Plans shall not be terminated).
\nUnless Parent provides such written notice to the Company, no later than five
\nBusiness Days prior to the Closing Date, the Company shall provide Parent with
\nevidence that such Severance Plan(s), and 401(k) Plan(s) have been terminated
\n(effective as of the day immediately preceding the Closing Date) pursuant to
\nresolutions of the Board of Managers of the Company or such ERISA Affiliate, as
\nthe case may be. The form and substance of such resolutions shall be subject to
\nthe prior review and approval of Parent. The Company also shall take such other
\nactions in furtherance of terminating such Severance Plan(s), and 401(k) Plan(s)
\nas Parent may reasonably require. In the event that termination of any 401(k)
\nPlan would reasonably be anticipated to trigger liquidation charges, surrender
\ncharges or other fees (such charges or fees, the “401(k)
\nFees<\/strong>“), then the Company shall reasonably estimate the amount of such
\n401(k) Fees and provide such estimate in writing to Parent no later than 15 days
\nprior to the Closing Date.<\/p>\n

(e) New Employment Benefits<\/em><\/strong>. As of the Effective
\nTime, all Continuing Employees of the Company shall continue as employees of the
\nSurviving Corporation or Parent or a subsidiary of Parent, as Parent directs,
\nwith compensation and terms and conditions of employment set forth in their
\nemployment agreements or “at-will” offer letters, as applicable. Continuing
\nEmployees shall be eligible to receive employee benefits on substantially the
\nsame basis as the benefits received by similarly situated employees of Parent
\nand its subsidiaries and consistent with Schedule 5.10(e)<\/strong>. For
\npurposes of employee benefits for Continuing Employees, to the extent reasonably
\npracticable and permitted by the terms of the plan and Applicable Law, Parent
\nshall cause its employee benefit plans (including, without limitation, those
\nCompany benefit plans, if any, which Parent continues), and those of its
\nsubsidiaries and affiliates, to give to Continuing Employees full credit under
\nsuch plans for their service with the Company prior to the Effective Time for
\npurposes of eligibility, participation, vesting and benefits determined by
\nlength of service (such as vacation time or severance pay), but not for benefit
\naccruals under any defined benefit plan of Parent or its subsidiaries to the
\nextent service was recognized under analogous Company benefit plans, except
\nwhere doing so would result in duplication of benefits. To the extent permitted
\nby Applicable Law and the terms of the plans, and to the extent reasonably
\npracticable, Parent shall, or shall cause its employee benefit plans, and those
\nof its subsidiaries and affiliates, to use commercially reasonable efforts to:
\n(i) waive any pre-existing condition exclusions (if the condition was covered
\nunder the Company Employee Plans or to the extent of any exclusion period
\napplied under the Company Employee Plans); and (ii) provide that any expenses
\nincurred on or before the Effective Time by a Company employee (or such Company
\nemployee’s dependents) shall be taken into account for purposes of satisfying
\napplicable deductible, coinsurance and maximum out of pocket provisions.<\/p>\n

(f) Notwithstanding anything to the contrary set forth in this Agreement,
\nnothing contained in this Section 5.10<\/strong> shall require or imply
\nthat the employment of Continuing Employees will continue for any particular
\nperiod of time following the Effective Time. This Section 5.10<\/strong>
\nis not intended, and shall not be deemed, to confer any rights or remedies upon
\nany person other than the parties to this Agreement and their respective
\nsuccessors and permitted assigns, to create any third-party beneficiary
\nhereunder, or to be interpreted as an amendment to any plan of Parent or any
\nsubsidiary of Parent.<\/p>\n

54<\/p>\n

\n

<\/p>\n

5.11 Expenses<\/em><\/strong>.<\/p>\n

(a) Except as otherwise provided in this Agreement, (i) all fees, costs and
\nexpenses of Parent or Merger Sub incurred in connection with this Agreement and
\nthe transactions contemplated hereby, including fees and expenses of financial
\nadvisors, financial sponsors, legal counsel and other advisors, shall be paid by
\nParent whether or not the Merger is consummated and (ii) all fees, costs and
\nexpenses of the Company and the Securityholders’ Representative incurred in
\nconnection with this Agreement and the transactions contemplated hereby,
\nincluding fees and expenses of financial advisors, financial sponsors, virtual
\ndata room providers, legal counsel and other advisors, shall be obligations of
\nthe Unitholders and Optionholders, which will be deducted from the Merger
\nConsideration as set forth in this Agreement. At least five (5) Business Days
\nprior to the Closing Date, the Company shall provide Parent with a statement
\n(the “Statement of Expenses<\/strong>“), in a form reasonably acceptable
\nto Parent and certified as true, correct and complete by the Company’s Chief
\nExecutive Officer and Chief Financial Officer as of the Closing, containing
\nEstimated Transaction Expenses, and such statement shall show in reasonable
\ndetail both previously paid and currently unpaid Transaction Expenses incurred
\nby the Company or any other Person (for which the Company may pay or reimburse
\nothers or may otherwise be obligated to pay or reimburse others or may be or may
\nbecome liable) as well as the Transaction Expenses that are expected to be
\nincurred by the Company or any other Person (for which the Company may pay or
\nreimburse others or may otherwise be obligated to pay or reimburse others or may
\nbe or may become liable) in connection with this Agreement and the transactions
\ncontemplated hereby. Parent shall be entitled to indemnification for Transaction
\nExpenses incurred by the Company that are not reflected on the Statement of
\nExpenses (“Excess Transaction Expenses<\/strong>“) in accordance with
\nSection 7.2(a)(vii),<\/strong> which shall not be limited by the
\nThreshold Amount.<\/p>\n

5.12 Spreadsheet<\/em><\/strong>. The Company shall deliver to
\nParent and the Paying Agent at least five (5) Business Days prior to the Closing
\nDate a spreadsheet (the “Spreadsheet<\/strong>“) substantially in the
\nform attached as Schedule 5.12<\/strong>, which spreadsheet shall be
\ncertified as true, correct and complete by the Company’s Chief Executive Officer
\nand Chief Financial Officer as of the Closing and which shall include:<\/p>\n

(a) the calculation of “Merger Consideration,” including a separate line item
\nfor each adjustment thereto in accordance with the definition of “Merger
\nConsideration”;<\/p>\n

(b) a calculation of the “Per Unit Consideration” in accordance with the
\ndefinition of “Per Unit Consideration”;<\/p>\n

(c) a calculation of the “Escrow Amount” in accordance with the definition of
\n“Escrow Amount”;<\/p>\n

(d) a calculation of the “Expense Escrow Amount” in accordance with the
\ndefinition of “Expense Escrow Amount”;<\/p>\n

(e) a calculation of the outstanding Indebtedness of the Company as of the
\ndate of the Agreement;<\/p>\n

(f) with respect to each Unitholder, (i) such Unitholder’s address and social
\nsecurity number (or tax identification number, as applicable); (ii) the number
\nof Company Units held by such Unitholder (including whether such units are
\nCompany Common Units, Company Class A Preferred Units, Company Class B Preferred
\nUnits or Company Class C Units); (iii) the date of acquisition of such units;
\n(iv) for units acquired on or after January 1, 2011, such Unitholder’s basis in
\nsuch units; (v) the Pro Rata Portion applicable to such Unitholder; (vi) the
\namount of cash to be paid to each holder pursuant to<\/p>\n

55<\/p>\n

\n

<\/p>\n

Section 1.6<\/strong>; and (vii) to the extent reasonably
\ndeterminable, the amount of cash, if any, to be paid by or on behalf of the
\nUnitholder in settlement of Tax withholding obligations pursuant to
\nSection 1.6(d)<\/strong>;<\/p>\n

(g) with respect to each holder of Company Options, (i) such holder’s address
\nand social security number (or tax identification number, as applicable); (ii)
\nthe number of Company Units underlying each Company Option held by such holder;
\n(iii) the respective exercise price per unit of such Company Option; (iv) the
\nrespective grant date(s) of such Company Option; (v) whether the holder of such
\nCompany Option is a Continuing Employee or Key Future Employee; (vi) the amount
\nof cash to be paid to each holder pursuant to Section 1.6<\/strong>; and
\n(vii) to the extent reasonably determinable, the amount of cash, if any, to be
\npaid by or on behalf of the holder in settlement of Tax withholding obligations
\npursuant to Section 1.6(d)<\/strong>; and<\/p>\n

(h) such other information that Parent or the Paying Agent may reasonably
\nrequest.<\/p>\n

5.13 Release of Liens<\/em><\/strong>. On or before the Closing
\nDate and to be effective no later than the Closing Date, the Company shall file,
\nor shall have filed, all agreements, instruments, certificates and other
\ndocuments, in form and substance reasonably satisfactory to Parent, that are
\nnecessary or appropriate to effect the release of all Liens set forth on
\nSchedule 5.13<\/strong>.<\/p>\n

5.14 Repayment of Indebtedness and Payment of Amounts Due Under
\nthe 2011 Bonus Plan.<\/em><\/strong><\/p>\n

(a) On or before the Closing Date and except as otherwise instructed in
\nwriting by Parent, the Company shall repay and extinguish all Indebtedness, in
\neach case without any further liability to the Company or Parent, and, in the
\ncase of Indebtedness to be repaid and extinguished at the Closing, shall
\ndeliver, at least three Business Days prior to the Closing Date, executed payoff
\nletters from each lender, creditor, noteholder or other counterparty to which
\nsuch Indebtedness is owing, in each case (a) that sets forth the amount to be
\npaid on or prior to the Closing Date, together with wire transfer instructions
\nand (b) evidencing that the payment of such amount would result in the full
\nrepayment, satisfaction, release, and discharge of all current and future
\nobligations of the Company in respect of such item and of all current and future
\nLiens relating to such item.<\/p>\n

(b) (i) On or before the Closing Date, Parent shall make available to the
\nCompany or the Surviving Company, as applicable, for the benefit of the Company,
\nthe aggregate amount payable to the Bonus Plan Employees, as provided on the
\nline item of the adjustment to the Merger Consideration set forth in
\nSection 5.12(a) <\/strong>(the “Bonus Plan Amount<\/strong>“). On
\nor promptly following the Closing Date, the Surviving Company shall distribute,
\nor cause to be distributed (including by means of a payroll processor), the
\namount payable to each Bonus Plan Employee, in each case, less (i) any Bonus
\nPlan Escrow Amount attributable to such Bonus Plan Employee, which shall be
\ndistributed to the Escrow Agent and the Expense Escrow Agent, and (ii)
\napplicable Tax withholding.<\/p>\n

(ii) Prior to the Effective Time, the Company shall take all actions
\nnecessary to effect the transactions anticipated by Section
\n5.14(b)(i)<\/strong>, including adopting all resolutions, delivering all required
\nnotices, obtaining consents from each Bonus Plan Employee and taking any other
\nactions that are necessary or appropriate to effectuate this Section
\n5.14(b)(ii)<\/strong>, including obtaining the agreement by the Bonus Plan
\nEmployees to the escrow and indemnification obligations of the Bonus Plan
\nEmployee set forth in Article VII<\/strong> and the deposit of the Bonus
\nPlan Escrow Amount into the Escrow Fund and the Expense Escrow Account as
\ncontemplated by Section 5.14(b)(i)<\/strong>, and to the appointment of
\nReed Colley as Securityholders’ Representative under and as defined in this
\nAgreement. Immediately prior to the Effective Time, the Company shall terminate
\nthe 2011 Bonus Plan.<\/p>\n

56<\/p>\n

\n

<\/p>\n

5.15 Tax Matters<\/em><\/strong>.<\/p>\n

(a) Tax Treatment<\/em><\/strong>.<\/p>\n

(i) Unless otherwise required by the IRS or any other applicable taxing
\nauthority, the parties agree to treat and report the Merger for U.S. federal
\nand, to the extent applicable, state income tax purposes as (A) a taxable sale
\nof the Company’s assets to Parent for a purchase price equal to the Merger
\nConsideration increased by the amounts referred to in clauses (1), (2) and (3)
\nof the definition of such term in Section 1.6 (a) (xl) plus any liabilities of
\nthe Company assumed by the Surviving Company in connection with the Merger or to
\nwhich the Company’s assets are subject in the hands of the Surviving Company as
\nof the Closing, (B) a payment by the Company (and not by the Surviving Company
\nor Parent) of the amounts referred to in clauses (1), (2) and (3) of the
\ndefinition of the term Merger Consideration in Section 1.6 (a) (xl), and (C)
\nliquidation of the Company. Parent, the Company, and the Unitholders shall not
\ntake any actions or positions inconsistent with the obligations of the parties
\nwith respect to Tax matters set forth herein.<\/p>\n

(ii) Within ninety (90) days after the Closing Date, Parent shall provide the
\nSecurityholders’ Representative with an allocation of the consideration payable
\npursuant to this Agreement among the assets of the Company, prepared by an
\nindependent appraiser selected by Parent and reasonably acceptable to the
\nSecurityholders’ Representative (and who the parties agree may be Duff & Phelps, LLC and in accordance with Section 1060 of the Code and Treasury
\nRegulations thereunder (and any similar provision of state, local or non-U.S.
\nlaw, as appropriate) (the “Allocation<\/strong>“) for the
\nSecurityholders’ Representative’s review and comment. If the parties agree to
\nsuch Allocation, (A) the Allocation shall be conclusive and binding upon Parent,
\nthe Company, and the Unitholders for all purposes, and (B) the parties agree
\nthat all returns and reports (including IRS Form 8594) and all financial
\nstatements shall be prepared in a manner consistent with (and the parties shall
\nnot otherwise take a position on a Tax Return that is inconsistent with) the
\nAllocation unless required by the IRS or any other applicable taxing authority.\n<\/p>\n

(b) Responsibility for Taxes and Tax Returns<\/em><\/strong>.<\/p>\n

(i) The Securityholders’ Representative shall prepare, or cause to be
\nprepared, and the Securityholders’ Representative or Parent shall cause to be
\nfiled, all income and other similar Returns for the Company for any Pre-Closing
\nTax Period for which items of income, deductions, credits, gains or losses are
\npassed through to the Unitholders (including, for the avoidance of doubt, any
\namendments of such Returns). Such Returns shall be prepared in accordance with
\napplicable law and consistent with past practices (to the extent applicable).
\nThe Securityholders’ Representative shall permit Parent to review and comment on
\neach such Return prior to filing and shall consider in good faith Parent’s
\nreasonable comments.<\/p>\n

(ii) Except as set forth in Section 5.15(b)(i),<\/strong> Parent shall
\nprepare and file, or cause to be prepared and filed, all other Returns for the
\nCompany required, in Parent’s sole discretion, to be filed for any taxable
\nperiod (including, for the avoidance of doubt, any amended Returns and any
\nfilings required to be made with respect to Company Employee Plans),
\nprovided that<\/em> no Return for any Pre-Closing Tax Period shall be filed
\nwithout the prior written consent of the Securityholders’ Representative (not
\nunreasonably to be withheld or delayed) if the filing of such Return could
\nresult in any liability of the Unitholders and\/or Optionholders to indemnify the
\nCompany, the Surviving Company or Parent under this Agreement unless, in the
\njudgment of a nationally recognized accounting firm (which may be
\nPricewaterhouseCoopers, LLP), after consultation with the Securityholders’
\nRepresentative, the filing position suggested by the Securityholders’
\nRepresentatives is not more likely than not to be sustained.<\/p>\n

57<\/p>\n

\n

<\/p>\n

(iii) All audits or other controversies in respect of Taxes that could give
\nrise to an obligation of the Unitholders and\/or Optionholders to indemnify the
\nCompany, the Surviving Company or Parent under this Agreement (whether
\nadministrative or judicial) shall be conducted in accordance with the provisions
\nof Section 7.6(d)<\/strong>.<\/p>\n

(iv) Parent and the Surviving Company agree to utilize, or cause their
\nAffiliates to utilize, the alternate procedure set forth in Revenue Procedure
\n2004-53, 2004-2 C.B. 320, with respect to wage reporting.<\/p>\n

(c) Cooperation; Audits<\/em><\/strong>. In connection with the
\npreparation of Returns, audit examinations, and any proceedings relating to the
\nliabilities for Taxes of the Company, Parent and the Surviving Company, on the
\none hand, and the Securityholders’ Representative and the Indemnifying Parties,
\non the other hand, shall reasonably cooperate with each other in good faith,
\nincluding by furnishing or making available during normal business hours the
\nrecords, personnel (as reasonably required), books of account, powers of
\nattorney or other materials necessary or helpful for the preparation of such Tax
\nReturns, the conduct of audit examinations or the defense of claims relating to
\nsuch Taxes.<\/p>\n

(d) Certain Transfer Taxes and Fees<\/em><\/strong>. All transfer,
\ndocumentary, sales, use, stamp, value added, goods and services, excise,
\nregistration and other similar Taxes, and all conveyance fees, recording charges
\nand other fees and charges (including any penalties and interest) incurred in
\nconnection with consummation of the transactions contemplated by this Agreement
\nshall be paid fifty percent (50%) by the Unitholders and Optionholders and fifty
\npercent (50%) by Parent when due. The party obligated to file any related
\nReturns or other documentation (or if no party is so obligated, Parent) will, at
\nits own expense, file all necessary Returns and other documentation with respect
\nto all such Taxes, fees and charges, and, if required by applicable Law, the
\nother party or parties will, and will cause its Affiliates to, join in the
\nexecution of any such Returns and other documentation.<\/p>\n

5.16 RSU Issuances<\/em><\/strong>. Parent shall recommend to its
\nBoard of Directors or Compensation Committee, as applicable, that Parent issue
\nan aggregate amount of 375,000 equity units (“Equity Units<\/strong>“) in
\naccordance with Parent’s standard valuation procedures and with Parent’s
\nstandard terms and conditions, including vesting of such units, to Continuing
\nEmployees of the Company, provided that such Continuing Employee is employed by
\nParent or a subsidiary of Parent at the time of grant, at or as promptly as
\npracticable after Closing with the allocation schedule to be mutually agreed by
\nParent and the Company prior to the Closing. For purposes of this section,
\nEquity Units shall include a combination of stock-settled stock appreciation
\nrights (“SSARs<\/strong>“) and restricted stock units
\n(“RSUs<\/strong>“) as determined by Parent in its sole discretion and
\neach RSU issued shall be counted as two (2) Equity Units while each SSAR shall
\ncount as one (1) Equity Unit.<\/p>\n

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

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

6.1 Conditions to Obligations of Each Party to Effect the
\nMerger<\/em><\/strong>. The respective obligations of the Company, Parent and
\nMerger Sub to effect the Merger shall be subject to the satisfaction, at or
\nprior to the Effective Time, any of which may be waived, in writing, by the
\nCompany, Parent and Merger Sub, of the following conditions:<\/p>\n

(a) No Order; Injunctions; Restraints; Illegality<\/em><\/strong>.
\nNo Governmental Entity shall have enacted, issued, promulgated, enforced or
\nentered any Law, Order, injunction or other legal restraint (whether temporary,
\npreliminary or permanent) that is in effect and that has the effect of making
\nthe<\/p>\n

58<\/p>\n

\n

<\/p>\n

Merger illegal or otherwise prohibiting or preventing consummation of the
\nMerger or any other transaction contemplated hereby.<\/p>\n

6.2 Conditions to the Obligations of Parent and Merger
\nSub<\/em><\/strong>. The obligations of Parent and Merger Sub to effect the Merger
\nshall be subject to the satisfaction at or prior to the Closing of each of the
\nfollowing conditions, any of which may be waived, in writing, exclusively by
\nParent and Merger Sub:<\/p>\n

(a) Representations, Warranties and Covenants<\/em><\/strong>. (i)
\nThe representations and warranties of the Company in this Agreement (other than
\nthe representations and warranties of the Company as of a specified date, which
\nshall be true and correct as of such date) shall have been true and correct on
\nand as of the date of this Agreement and shall be true and correct in all
\nmaterial respects (in each case, without giving effect to any limitation as to
\n“materiality,” “Company Material Adverse Effect” or “Knowledge” set forth
\ntherein), on and as of the Closing Date with the same force and effect as if
\nsuch representations and warranties had been made on and as of the Closing Date,
\nand (ii) the Company shall have performed and complied in all material respects
\nwith all covenants and obligations under this Agreement required to be performed
\nand complied with by it prior to or as of the Closing.<\/p>\n

(b) No Company Material Adverse Effect<\/em><\/strong>. Since the
\nBalance Sheet Date, there shall not have occurred any event or condition of any
\ncharacter that has had or is reasonably likely to have, individually or in the
\naggregate, with all such other events or conditions, a Company Material Adverse
\nEffect.<\/p>\n

(c) Member Approval<\/em><\/strong>. Members constituting the
\nRequisite Member Vote and holding not less than 95% of the Total Outstanding
\nVoting Units shall have approved this Agreement and the transactions
\ncontemplated hereby, including the appointment of the Securityholders’
\nRepresentative and the deposit of the Escrow Amount and the Expense Escrow
\nAmount into the Escrow Fund and the Expense Escrow Account, respectively. Parent
\nshall have received a duly executed Joinder Agreement from Members holding at
\nleast 95% of the Total Outstanding Voting Units as of immediately prior to the
\nClosing.<\/p>\n

(d) Unanimous Board Approval<\/em><\/strong>. The Board of Managers
\nof the Company shall have unanimously approved this Agreement and the
\ntransactions contemplated hereby, which unanimous approval shall be in full
\nforce and effect and shall not have been altered, modified, changed or revoked.\n<\/p>\n

(e) Litigation<\/em><\/strong>. There shall be no Action, suit,
\nclaim, order, injunction or proceeding of any nature pending or threatened, (i)
\nagainst Parent or the Company, their respective properties or any of their
\nrespective officers, directors, managers or subsidiaries arising out of, or in
\nany way connected with, the transactions contemplated by this Agreement or
\notherwise seeking any of the results set forth in Section
\n6.1(a)<\/strong>, or (ii) against the Company, its properties or any of its
\nofficers or Managers that has had or is reasonably likely to have a Company
\nMaterial Adverse Effect.<\/p>\n

(f) Governmental Approval<\/em><\/strong>. All material approvals
\nfrom any Governmental Entity deemed appropriate or necessary by Parent shall
\nhave been timely obtained.<\/p>\n

(g) Dissenters’ Rights<\/em><\/strong>. The Company shall have
\ndelivered notice in accordance with the applicable provisions of Florida Law
\nsuch that no Member will be able to exercise dissenters’ rights if such Member
\nhas not perfected such dissenters’ rights prior to Closing, and Members holding
\nno more than 5% of the Total Outstanding Voting Units shall continue to have a
\nright to exercise appraisal, dissenters’ or similar rights under Florida Law
\nwith respect to their Company Units by virtue of the Merger.<\/p>\n

59<\/p>\n

\n

<\/p>\n

(h) Contracts<\/em><\/strong>.<\/p>\n

(i) Consents<\/em><\/strong>. Parent shall have received from the
\nCompany evidence satisfactory to Parent of all necessary assignment of Contracts
\nand consents, waivers, and approvals of parties to any set forth on
\nSchedule 6.2(h) <\/strong>as are required thereunder in connection with
\nthe Merger.<\/strong><\/p>\n

(ii) Waiver or Termination<\/em><\/strong>. Parent shall have
\nreceived evidence satisfactory to Parent of the termination or waiver of any
\nrights of co-sale, voting, registration, first refusal, board observation,
\ninformation or redemption in favor of any Unitholder that by their terms survive
\nthe Effective Time, and the termination of the Contracts providing any such
\nrights, in each case effective as of the Effective Time.<\/p>\n

(iii) [Intentionally Omitted]<\/p>\n

(i) Employee Matters<\/em><\/strong>.<\/p>\n

(i) Key Future Employees<\/em><\/strong>. As of the Closing Date,
\n(A) at least six (6) of each of the Employment Agreements and Non-Competition
\nAgreements with the Key Future Employees set forth on Schedule
\n6.2(i)(i)<\/strong>, including all of the Key Future Employees denoted with an
\nasterisk on such schedule, entered into concurrently with the execution and
\ndelivery of this Agreement shall be in full force and effect (other than as a
\nresult of any termination by Parent), and (B) no more than two Key Future
\nEmployees, who shall not be a Key Future Employee denoted with an asterisk on
\nSchedule 6.2(i)(i)<\/strong>, shall have terminated, rescinded or
\nrepudiated his or her Employment and\/or Non-Competition Agreement or notified
\nParent or the Company of such person’s intention of leaving the employ of Parent
\nor any of Parent’s subsidiaries (including the Surviving Company) following the
\nEffective Time; provided, however<\/em> that the condition set forth in this
\nSection 6.2(i)(i) <\/strong>shall be deemed satisfied with respect to any
\nCompany Employee who has died or suffered a permanent disability (as defined in
\nSection 22(e)(3) of the Code).<\/p>\n

(ii) Company Employees<\/em><\/strong>. As of the Closing Date, at
\nleast 85% of the Employees of the Company (the “Company
\nEmployees<\/strong>“) set forth on Schedule 6.2(i)(ii) <\/strong>shall (A)
\nhave entered into an “at-will” employment arrangement with Parent or any of its
\nSubsidiaries (including the Surviving Company) pursuant to his or her execution
\nof the employee offer letter and a proprietary information and inventions
\nassignment agreement, (or amendment of the Company’s proprietary information and
\ninventions assignment agreement in a form reasonably acceptable to Parent), in
\neach case on Parent’s standard form, each of which shall be in full force and
\neffect (subject to applicable law and other than as a result of any termination
\nby Parent), (B) be employed by the Company or any of its Subsidiaries as of
\nimmediately prior to the Effective Time, and (C) not have notified (whether
\nformally or informally) Parent, any of its Subsidiaries, or the Company of his
\nor her intention of leaving the employ of Parent or any of its Subsidiaries
\nfollowing the Effective Time provided, however<\/em> that the condition set
\nforth in this Section 6.2(i)(ii) <\/strong>shall be deemed satisfied with
\nrespect to any Company Employee who (i) has died or suffered a permanent
\ndisability (as defined in Section 22(e)(3) of the Code) or (ii) has not received
\nan offer of employment by Parent consistent with the terms of Section
\n5.10(e) <\/strong>hereof.<\/p>\n

(iii) Resignation of Officers and Managers<\/em><\/strong>. Parent
\nshall have received a written resignation letter from each of the officers and
\nmanagers of the Company in the form set forth on Exhibit H<\/strong>
\neffective as of the Effective Time.<\/p>\n

(iv) Termination of 401(k) Plans<\/em><\/strong>. Parent shall have
\nreceived evidence (A) that, unless Parent has explicitly instructed otherwise
\npursuant to Section 5.10(d)<\/strong>, all Company<\/p>\n

60<\/p>\n

\n

<\/p>\n

Employee Plans referred to in Section 5.10(d) <\/strong>have been
\nterminated pursuant to resolution of the Board of Managers of the Company or the
\nERISA Affiliate, as the case may be (the form and substance of which shall have
\nbeen subject to review and approval of Parent), effective as of no later than
\nthe day immediately preceding the Closing, and (B) of the taking of any and all
\nfurther actions as provided in Section 5.10(d) <\/strong>reasonably
\ncapable of being performed prior to the Closing.<\/p>\n

(j) Release of Liens<\/em><\/strong>. Parent shall have received
\nfrom the Company a duly and validly executed copy of all agreements,
\ninstruments, certificates and other documents, in form and substance reasonably
\nsatisfactory to Parent, that are necessary or appropriate to evidence the
\nrelease of all Liens set forth on Schedule 5.13<\/strong>.<\/p>\n

(k) Payment of Indebtedness<\/em><\/strong>. Parent shall have
\nreceived from the Company evidence reasonably satisfactory to Parent of the
\npayment of all Indebtedness forth on Schedule 6.2(k)<\/strong>.<\/p>\n

(l) Legal Opinion<\/em><\/strong>. Parent shall have received a
\nlegal opinion from Seyfarth Shaw LLP, legal counsel to the Company, together
\nwith any Florida counsel’s legal opinion in support thereof, substantially in
\nthe form attached as Exhibit I<\/strong>.<\/p>\n

(m) Audit<\/em><\/strong>. Parent shall have received from the
\nCompany an audited consolidated balance sheet as of December 31, 2010, and the
\nrelated consolidated statements of income, cash flow and stockholders’ equity
\nfor the twelve (12) month period then ended (the “Closing
\nFinancials<\/strong>“).<\/p>\n

(n) Closing Deliveries of the Company<\/em><\/strong>. Parent shall
\nhave received the following:<\/p>\n

(i) the Statement of Expenses pursuant to Section 5.11(a)
\n<\/strong>at least five (5) Business Days prior to the Closing Date;<\/p>\n

(ii) the Spreadsheet pursuant to Section 5.12<\/strong> at least five
\n(5) Business Days prior to the Closing Date;<\/p>\n

(iii) certificates in form and substance reasonably satisfactory to Parent
\nfrom the Company, validly executed by the Company’s Chief Executive Officer or
\nChief Financial Officer for and on the Company’s behalf, certifying: (A) as to
\nthe matters set forth in Section 6.2(a) <\/strong>and Section
\n6.2(b)<\/strong>; (B) that the other conditions to the obligations of Parent and
\nMerger Sub set forth in this Section 6.2<\/strong> have been satisfied
\n(unless otherwise waived in accordance with the terms hereof); and (C) that each
\nof the Statement of Expenses and Spreadsheet are true, correct and complete;\n<\/p>\n

(iv) a certificate, validly executed by the Chief Financial Officer of the
\nCompany, certifying as to (A) the terms and effectiveness of the Charter
\nDocuments, (B) the valid adoption of resolutions of the Board of Managers of the
\nCompany (whereby the Merger and the transactions contemplated by this Agreement
\nwere unanimously approved by the Board of Managers) and (C) that the Members
\nconstituting the Requisite Member Vote have adopted and approved the Merger,
\nthis Agreement and the consummation of the transactions contemplated hereby; and\n<\/p>\n

(v) a short-form certificate of good standing from the Secretary of State of
\nthe State of Florida that is dated within two (2) Business Days prior to Closing
\nwith respect to the Company.<\/p>\n

61<\/p>\n

\n

<\/p>\n

6.3 Conditions to Obligations of the Company<\/em><\/strong>. The
\nobligations of the Company to effect the Merger shall be subject to the
\nsatisfaction at or prior to the Closing Date of each of the following
\nconditions, any of which may be waived, in writing, exclusively by the Company:\n<\/p>\n

(a) Representations, Warranties and Covenants<\/em><\/strong>. (i)
\nThe representations and warranties of Parent and Merger Sub in this Agreement
\n(other than the representations and warranties of Parent and Merger Sub as of a
\nspecified date, which shall be true and correct as of such date) shall have been
\ntrue and correct on and as of the date of this Agreement and shall be true and
\ncorrect in all material respects (in each case, without giving effect to any
\nlimitation as to “materiality,” “material adverse effect” or “Knowledge” set
\nforth therein) on and as of the Closing Date with the same force and effect as
\nif such representations and warranties had been made on and as of the Closing
\nDate; and (ii) Parent and Merger Sub shall have performed and complied in all
\nmaterial respects with all covenants and obligations under this Agreement
\nrequired to be performed and complied with by Parent and Merger Sub prior to or
\nas of the Closing.<\/p>\n

(b) Closing Deliveries of the Parent<\/em><\/strong>. The Company
\nshall have received from the Parent a certificate in form and substance
\nreasonably satisfactory to the Company from Parent, validly executed by the
\nParent’s Chief Financial Officer for and on the Parent’s behalf, certifying as
\nto the matters set forth in Section 6.3(a)<\/strong>.<\/p>\n

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

SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
\nESCROW<\/strong><\/p>\n

7.1 Survival<\/em><\/strong>. The representations and warranties of
\nthe Company contained in this Agreement, the Related Agreements or in any
\ncertificate or other instrument delivered by or behalf of the Company under or
\npursuant to this Agreement shall survive the Closing and the Effective Time and
\nshall remain in full force and effect, regardless of any investigation or
\ndisclosure made by or on behalf of any of the parties hereto, until 11:59 p.m.
\n(California time) on the date that is 15 months after the Closing Date (such
\ndate, the “Survival Date<\/strong>“); provided<\/em>,
\nhowever<\/em>, that (a) the representations and warranties of the Company set
\nforth in: (a) Section 2.2<\/strong> (Company Capital Structure),
\nSection 2.3<\/strong> (Authority), Section 2.11<\/strong> (Tax
\nMatters) and Section 2.14<\/strong> (Intellectual Property) (such
\nrepresentations and warranties of the Company described in clause (a) of this
\nSection 7.1<\/strong> being referred to as the “Fundamental
\nRepresentations<\/strong>“) shall survive the Closing and the Effective Time and
\nshall remain in full force and effect until the expiration of the applicable
\nstatute of limitations in the case of Section 2.2<\/strong> (Company
\nCapital Structure), Section 2.3<\/strong> (Authority) and
\nSection 2.11<\/strong> (Tax Matters) or, three years in the case of
\nSection 2.14<\/strong> (Intellectual Property); and (b) that in the event
\nof fraud with respect to a representation or warranty, such representation or
\nwarranty shall survive the Closing and the Effective Time and shall remain in
\nfull force and effect in perpetuity with respect to the Person or Persons
\ncommitting such fraud. The representations and warranties of Parent and Merger
\nSub contained in this Agreement, the Related Agreements or in any certificate or
\nother instrument delivered pursuant to this Agreement shall not survive the
\nClosing and shall terminate at the Effective Time.<\/p>\n

7.2 Indemnification<\/em><\/strong>.<\/p>\n

(a) The Unitholders, Optionholders and Bonus Plan Employees (each an
\n“Indemnifying Party<\/strong>” and collectively, the
\n“Indemnifying Parties<\/strong>“) shall severally and not jointly
\nindemnify and hold harmless Parent and its officers, directors, Affiliates,
\nemployees, agents and representatives, including the Surviving Company (each, an
\n“Indemnified Party<\/strong>” and collectively, the “Indemnified
\nParties<\/strong>“), against all claims, losses, Taxes, Liabilities, damages,
\ndeficiencies, costs, interest, awards, judgments, penalties and expenses,
\nincluding attorneys’ and consultants’ fees and<\/p>\n

62<\/p>\n

\n

<\/p>\n

expenses and including any such expenses incurred in connection with
\ninvestigating, defending against or settling any of the foregoing (hereinafter
\nindividually a “Loss<\/strong>” and collectively
\n“Losses<\/strong>“), incurred or sustained by the Indemnified Parties or
\nany of them (including the Surviving Company), directly or indirectly, as a
\nresult of the following:<\/p>\n

(i) any breach or inaccuracy of a representation or warranty (other than a
\nFundamental Representation) of the Company or any other Person on behalf of the
\nCompany contained in this Agreement, any Related Agreements or any certificate
\nor other instrument delivered by or on behalf of the Company pursuant to this
\nAgreement, provided<\/em> that in the event of any such breach or inaccuracy,
\nfor purposes of determining the amount of any Loss with respect thereto, no
\neffect will be given to any qualification as to “materiality,” a “Company
\nMaterial Adverse Effect” or “Knowledge” contained therein;<\/p>\n

(ii) any breach or inaccuracy of a Fundamental Representation (other than the
\nrepresentations and warranties set forth in Section 2.14<\/strong>
\n(Intellectual Property)) contained in this Agreement, any Related Agreements or
\nany certificate or other instrument delivered by or on behalf of the Company
\npursuant to this Agreement, provided<\/em> that in the event of any such
\nbreach or inaccuracy, for purposes of determining the amount of any Loss with
\nrespect thereto, no effect will be given to any qualification as to
\n“materiality,” a “Company Material Adverse Effect” or “Knowledge” contained
\ntherein;<\/p>\n

(iii) any breach or inaccuracy of the representations and warranties set
\nforth in Section 2.14<\/strong> (Intellectual Property) contained in this
\nAgreement, any Related Agreements or any certificate or other instrument
\ndelivered by or on behalf of the Company pursuant to this Agreement,
\nprovided<\/em> that in the event of any such breach or inaccuracy, for
\npurposes of determining the amount of any Loss with respect thereto, no effect
\nwill be given to any qualification as to “materiality,” a “Company Material
\nAdverse Effect” or “Knowledge” contained therein;<\/p>\n

(iv) any failure by the Company or any other Person on behalf of the Company
\nto perform or comply with any covenant or agreement applicable to any of them
\ncontained in this Agreement, any Related Agreements or any certificate or other
\ninstrument delivered pursuant to this Agreement;<\/p>\n

(v) any fraud in connection with this Agreement, any Related Agreement or any
\ncertificate or other instrument delivered pursuant to this Agreement on the part
\nof the Company or any other Person (other than Parent or Merger Sub), or in
\nconnection with the transactions contemplated by this Agreement;<\/p>\n

(vi) any Dissenting Unit Payments;<\/p>\n

(vii) any Excess Transaction Expenses;<\/p>\n

(viii) [Intentionally Omitted]<\/p>\n

(ix) any payment or consideration contemplated by Section 5.9 hereof;<\/p>\n

(x) any unpaid Pre-Closing Taxes (except as provided on Schedule 7.2(a)(x)
\nhereof);<\/p>\n

(xi) any inaccuracy in the Spreadsheet; and<\/p>\n

63<\/p>\n

\n

<\/p>\n

(xii) any Agent Interpleader Expenses or Agent Indemnification Expenses.<\/p>\n

(b) The Indemnifying Parties (including any Manager or officer of the
\nCompany) shall not have any right of contribution, indemnification or right of
\nadvancement from the Surviving Company or Parent in their respective capacities
\nas Indemnifying Parties with respect to any Loss claimed by an Indemnified
\nParty; provided<\/em>, however, that any rights to which a director or
\nofficer is otherwise entitled pursuant to the Charter Documents, any applicable
\ninsurance policy or Florida law shall not be affected by this Article
\nVII<\/strong>.<\/p>\n

7.3 Limitations<\/em><\/strong>.<\/p>\n

(a) Except as otherwise set forth in this Section 7.3<\/strong>, the
\nmaximum amount that an Indemnified Party may recover from each Indemnifying
\nParty pursuant to claims for indemnification pursuant to Section
\n7.2(a)(i) <\/strong>shall be limited to such Indemnifying Party’s Pro Rata
\nPortion of the Escrow Fund.<\/p>\n

(b) Except as otherwise set forth in this Section 7.3<\/strong>, the
\nmaximum amount that an Indemnified Party may recover from each Indemnifying
\nParty pursuant to claims for indemnification pursuant to Section
\n7.2(a)(ii) <\/strong>and Sections 7.2(a)(iv) <\/strong>through
\n7.2(a)(xii) <\/strong>shall be limited to, with respect to Unitholders
\nand Optionholders, such Indemnifying Party’s Pro Rata Portion of the Merger
\nConsideration, and with respect to Bonus Plan Employees, such Indemnifying
\nParty’s pro rata portion of the Bonus Plan Amount.<\/p>\n

(c) Except as otherwise set forth in this Section 7.3<\/strong>, the
\nmaximum amount that an Indemnified Party may recover from each Indemnifying
\nParty pursuant to claims for indemnification pursuant to Section
\n7.2(a)(iii) <\/strong>shall be limited to, with respect to Unitholders and
\nOptionholders, 50% of such Indemnifying Party’s Pro Rata Portion of the Merger
\nConsideration, and with respect to Bonus Plan Employees, 50% of such
\nIndemnifying Party’s pro rata portion of the Bonus Plan Amount.<\/p>\n

(d) Notwithstanding anything to the contrary set forth in this Agreement,
\nnothing in this Agreement shall limit the liability of any Indemnifying Party
\nfor any claims or causes of action under applicable law arising out of fraud in
\nconnection with this Agreement, any Related Agreement or any certificate or
\nother instrument delivered pursuant to this Agreement or in connection with the
\ntransactions contemplated by this Agreement.<\/p>\n

(e) Notwithstanding anything to the contrary set forth in this Agreement,
\nnothing in this Agreement shall limit the liability of the Company for any
\nbreach or inaccuracy of any representation, warranty or covenant contained in
\nthis Agreement, any Related Agreements or in any certificate or other instrument
\ndelivered pursuant to this Agreement if the Merger does not close or this
\nAgreement is terminated in accordance with its terms.<\/p>\n

(f) Notwithstanding anything to the contrary set forth in this Agreement, the
\nparties hereto agree and acknowledge that any Indemnified Party may bring a
\nclaim for indemnification for any Loss under this Article VII<\/strong>
\nnotwithstanding the fact that such Indemnified Party had knowledge of the
\nbreach, inaccuracy, event or circumstance giving rise to such Loss prior to the
\nClosing, or waived any condition to the Closing related thereto.<\/p>\n

(g) Notwithstanding anything to the contrary set forth in this Agreement,
\nnothing shall prohibit Parent from seeking and obtaining recourse against the
\nIndemnifying Parties, or any of them, in the event that Parent issues more than
\nthe Merger Consideration to which the Indemnifying Parties, or any of them, are
\nentitled pursuant to Article I<\/strong> of this Agreement.<\/p>\n

64<\/p>\n

\n

<\/p>\n

(h) Notwithstanding any provision of this Agreement to the contrary, except
\nas set forth in this Section 7.3(h)<\/strong>, an Indemnified Party may
\nnot recover any Losses under Section 7.2(a)(i) <\/strong>unless and until
\none or more Officer’s Certificates identifying such Losses under
\nSection 7.2(a)(i) <\/strong>in excess of $250,000 in the aggregate (the
\n“Threshold Amount<\/strong>“) has or have been delivered to the Escrow
\nAgent and the Securityholders’ Representative as provided in Section
\n7.6(a)<\/strong>, in which case Parent shall be entitled to recover the aggregate
\namount of Losses that exceed the Threshold Amount. Parent shall be entitled to
\nrecover for, and the Threshold Amount shall not apply as a threshold to, any and
\nall claims or payments made with respect to any right to recover Losses (A)
\npursuant to fraud in connection with this Agreement, any Related Agreement or
\nany certificates or other instruments delivered by or on behalf of the Company
\npursuant to this Agreement or in connection with the transactions contemplated
\nby this Agreement (provided<\/em> that, in the event of such fraud for
\npurposes of determining the amount of any Loss no effect will be given to any
\nqualification as to “materiality,” a “Company Material Adverse Effect” or
\n“Knowledge” contained therein) or (B) pursuant to Sections 7.2(a)(ii)
\n<\/strong>through 7.2(a)(xii)<\/strong>, inclusive.<\/p>\n

(i) Except to the extent that the Losses (i) in connection with any fraud in
\nconnection with this Agreement, any Related Agreement or any certificate or
\nother instrument delivered pursuant to this Agreement, or in connection with the
\ntransactions contemplated by this Agreement (in which case, recovery of such
\nLosses may, at the discretion of an Indemnified Party, also be pursued directly
\nagainst an Indemnifying Party), (ii) relate to the matters set forth in
\nSection 7.2(a)(ii) <\/strong>through 7.2(a)(xii)<\/strong>, or
\n(iii) as otherwise provided in Section 7.3,<\/strong> claims by an
\nIndemnified Party for Losses pursuant to this Agreement shall be satisfied
\nsolely from the Escrow Fund. Other than with respect to Losses in connection
\nwith any fraud in connection with this Agreement, any Related Agreement or any
\ncertificate or other instrument delivered pursuant to this Agreement, or in
\nconnection with the transactions contemplated by this Agreement, the Indemnified
\nParty shall first seek recovery for Losses pursuant to this Agreement from the
\nEscrow Fund prior to seeking recovery from any Indemnifying Party directly.<\/p>\n

7.4 Exclusive Remedy<\/em><\/strong>. Except for any claims or
\ncauses of actions under applicable law arising out of fraud in connection with
\nthis Agreement, any Related Agreement or any certificate or other instrument
\ndelivered pursuant to this Agreement or the transactions contemplated hereby, if
\nthe Merger is consummated, the indemnification remedies set forth in this
\nArticle VII<\/strong> shall be the exclusive remedy of any Indemnified
\nParty for any breach by the Company of this Agreement, any Related Agreement or
\nany certificate or other instrument delivered pursuant to this Agreement or in
\nconnection with the transactions contemplated by this Agreement.<\/p>\n

7.5 Escrow Arrangements<\/em><\/strong>.<\/p>\n

(a) Escrow Fund<\/em><\/strong>. By virtue of this Agreement and as
\npartial security for the indemnity obligations provided for in Section
\n7.2<\/strong>, at the Effective Time, Parent will deposit with the Escrow Agent
\nthe Escrow Amount without any action of or by the Indemnifying Parties. Such
\ndeposit of the Escrow Amount will constitute the establishment of an escrow fund
\n(the “Escrow Fund<\/strong>“) to be governed by the terms set forth
\nherein. The Escrow Fund shall be available to compensate the Indemnified Parties
\nfor any claims by such parties for any Losses suffered or incurred by them and
\nfor which they are entitled to recovery under this Article
\nVII<\/strong>. The Escrow Agent may execute this Agreement following the date
\nhereof and prior to the Closing, and any such later execution, shall not affect
\nthe binding nature of this Agreement as of the date hereof between the other
\nsignatories hereto. Any interest accruing on the Escrow Amount shall be held in
\nthe Escrow Fund and be available to cover claims for Losses until distributed
\nupon termination of the Escrow Fund. Any such interest shall be distributed to
\nParent (to the extent earned or paid with respect to cash in the Escrow Fund
\ndistributed to Parent to cover Losses pursuant to this Article
\nVII<\/strong> or pro rata to the Indemnifying Parties (to the extent earned or
\npaid with respect to cash ultimately distributed to such Indemnifying Parties
\nupon termination of the Escrow Fund), such that any interest earned on any cash
\nin the Escrow Fund generally follows the<\/p>\n

65<\/p>\n

\n

<\/p>\n

ultimate recipient of the cash on which such interest was earned. The Escrow
\nFund shall be invested in a U.S. Bank money market account, as more fully
\ndescribed in the attached Exhibit J<\/strong>.<\/p>\n

(b) Escrow Period; Release upon Termination of Escrow
\nPeriod<\/em><\/strong>. Subject to the following requirements and subject to the
\nearly release provisions set forth in Section 7.5(c) below, the Escrow Fund
\nshall be in existence immediately following the Effective Time and shall
\nterminate at 5:00 p.m. (California time) on the date that is 10 days after the
\n18-month anniversary of the Effective Time (the “Escrow
\nPeriod<\/strong>“), and the Escrow Agent shall release the remaining amounts in
\nthe Escrow Fund, if any, to the Indemnifying Parties in proportion to their
\nrespective Pro Rata Portions following such termination; provided<\/em>,
\nhowever<\/em>, that the Escrow Fund shall not terminate with respect to any
\namount in respect of any unsatisfied claims specified in any Officer’s
\nCertificate (“Unresolved Claims<\/strong>“) delivered to the Escrow Agent
\nand the Securityholders’ Representative (or the Indemnifying Party(s) in the
\nevent that indemnification is being sought hereunder directly from such
\nIndemnifying Party(s)) prior to the Escrow Period termination date with respect
\nto facts and circumstances existing prior to the Survival Date, and any such
\namount shall not be released to the Indemnifying Parties at such time and shall
\ncontinue to be held by the Escrow Agent. As soon as all such Unresolved Claims
\nhave been resolved, the Escrow Agent shall deliver the remaining portion of the
\nEscrow Fund, if any, not required to satisfy such Unresolved Claims.<\/p>\n

(c) Tax Reporting Information and Certification of Tax
\nIdentification Numbers<\/em><\/strong>.<\/p>\n

(i) The parties hereto agree that, for Tax reporting purposes, Parent shall
\nbe treated as the owner of any cash in the Escrow Fund, and all interest on or
\nother taxable income, if any, earned from the investment of such cash pursuant
\nto this agreement shall be treated for tax purposes as earned by Parent until
\nthe Escrow Fund is distributed in accordance with this Agreement. The Escrow
\nAgent is hereby directed to pay to Parent out of the Escrow Fund, as soon as
\nreasonably practicable following the reporting of any such income to Parent, a
\ndistribution equal to 40% of the amount of such net income reported to Parent.
\nUpon the release of the cash in the escrow fund, a portion of any cash
\ndistributed to the Indemnifying Parties shall be treated as interest under the
\nimputed interest rules of the Code.<\/p>\n

(ii) The parties hereto agree to provide the Escrow Agent with a certified
\ntax identification number by signing and returning a Form W-9 (or original Form
\nW-8 BEN, in case of non-U.S. persons) to the Escrow Agent upon the execution and
\ndelivery of this Agreement.<\/p>\n

(d) Escrow Agent’s Duties<\/em><\/strong>.<\/p>\n

(i) The Escrow Agent shall be obligated only for the performance of such
\nduties as are specifically set forth herein and as set forth in any additional
\nwritten escrow instructions that the Escrow Agent may receive after the date of
\nthis Agreement that are signed by a senior officer of Parent and the
\nSecurityholders’ Representative, and may rely and shall be protected in relying
\nor refraining from acting on any instrument reasonably believed to be genuine
\nand to have been signed or presented by the proper party or parties. The Escrow
\nAgent shall not be liable for any act done or omitted hereunder as Escrow Agent
\nwhile acting in good faith and in the exercise of reasonable judgment, and any
\nact done or omitted pursuant to the advice of legal counsel shall be conclusive
\nevidence of such good faith.<\/p>\n

(ii) The Escrow Agent is hereby expressly authorized to disregard any and all
\nwarnings given by any of the parties hereto or by any other Person, excepting
\nonly orders or process of courts of law, and is hereby expressly authorized to
\ncomply with and obey orders, judgments or decrees of any court, awards of
\narbitrators and written instructions of Parent and the Securityholders’<\/p>\n

66<\/p>\n

\n

<\/p>\n

Representative. In case the Escrow Agent obeys or complies with any such
\norder, judgment or decree of any court, award of arbitrator or instructions, the
\nEscrow Agent shall not be liable to any of the parties hereto or to any other
\nPerson by reason of such compliance, notwithstanding any such order, judgment,
\ndecree or award being subsequently reversed, modified, annulled, set aside,
\nvacated or found to have been entered without jurisdiction.<\/p>\n

(iii) The Escrow Agent shall not be liable in any respect on account of the
\nidentity, authority or rights of the parties executing or delivering or
\npurporting to execute or deliver this Agreement or any documents or papers
\ndeposited or called for hereunder.<\/p>\n

(iv) The Escrow Agent shall not be liable for the expiration of any rights
\nunder any statute of limitations with respect to this Agreement or any documents
\ndeposited with the Escrow Agent.<\/p>\n

(v) In performing any duties under this Agreement, the Escrow Agent shall not
\nbe liable to any party for damages, losses or expenses, except for gross
\nnegligence or willful misconduct on the part of the Escrow Agent. The Escrow
\nAgent shall not incur any such liability for (A) any act or failure to act made
\nor omitted in good faith, or (B) any action taken or omitted in reliance upon
\nany instrument, including any written statement or affidavit provided for in
\nthis Agreement that the Escrow Agent shall in good faith believe to be genuine,
\nnor will the Escrow Agent be liable or responsible for forgeries, fraud,
\nimpersonations, or determining the scope of any representative authority. In
\naddition, the Escrow Agent may consult with legal counsel in connection with
\nperforming the Escrow Agent’s duties under this Agreement and shall be fully
\nprotected in any act taken, suffered, or permitted by the Escrow Agent in good
\nfaith in accordance with the advice of counsel. The Escrow Agent is not
\nresponsible for determining and verifying the authority of any person acting or
\npurporting to act on behalf of any party to this Agreement.<\/p>\n

(vi) If any controversy arises between the parties to this Agreement, or with
\nany other party, concerning the subject matter of this Agreement, its terms or
\nconditions, the Escrow Agent will not be required to determine the controversy
\nor to take any action regarding such controversy. The Escrow Agent may hold all
\ndocuments and the Escrow Fund and may wait for settlement of any such
\ncontroversy by final appropriate legal proceedings or other means as, in the
\nEscrow Agent’s discretion, may be required, notwithstanding anything to the
\ncontrary in this Agreement. In such event, the Escrow Agent will not be liable
\nfor damages. Furthermore, the Escrow Agent may at its option file an action of
\ninterpleader requiring the parties to answer and litigate any claims and rights
\namong themselves. The Escrow Agent is authorized to deposit with the clerk of
\nthe court all documents and the Escrow Fund, except for all costs, expenses,
\ncharges and reasonable attorney fees incurred by the Escrow Agent due to the
\ninterpleader action (the “Agent Interpleader Expenses<\/strong>“) and
\nwhich the parties agree to pay as follows: 50% to be paid by Parent and 50% to
\nbe paid by the Indemnifying Parties on the basis of the Indemnifying Parties’
\nrespective Pro Rata Portions; provided<\/em>, however<\/em>, that in the
\nevent any Indemnifying Party fails to timely pay his or her Pro Rata Portion of
\nthe Agent Interpleader Expenses, the parties agree that Parent may at its option
\npay such Indemnifying Party’s Pro Rata Portion of the Agent Interpleader
\nExpenses and recover an equal amount (which shall be deemed an Agreed-Upon Loss)
\nfrom such Indemnifying Party’s Pro Rata Portion of the Escrow Fund. Upon
\ninitiating such action, the Escrow Agent shall be fully released and discharged
\nof and from all obligations and liability imposed by the terms of this
\nAgreement.<\/p>\n

(vii) The parties and their respective successors and assigns agree jointly
\nand severally to indemnify and hold the Escrow Agent harmless against any and
\nall losses, claims, damages, liabilities and expenses, including reasonable
\ncosts of investigation, counsel fees (including allocated costs of in-house
\ncounsel) and disbursements that may be imposed on Escrow Agent or incurred by\n<\/p>\n

67<\/p>\n

\n

<\/p>\n

Escrow Agent in connection with the performance of the Escrow Agent’s duties
\nunder this Agreement, including any litigation arising from this Agreement or
\ninvolving its subject matter, other than those arising out of the gross
\nnegligence or willful misconduct of the Escrow Agent (the “Agent
\nIndemnification Expenses<\/strong>“) as follows: 50% to be paid by Parent and 50%
\nto be paid by the Indemnifying Parties on the basis of the Indemnifying Parties’
\nrespective Pro Rata Portions; provided<\/em>, however<\/em>, that in the
\nevent any Indemnifying Party fails to timely pay his or her Pro Rata Portion of
\nthe Agent Indemnification Expenses, the parties agree that Parent may at its
\noption pay such Indemnifying Party’s Pro Rata Portion of the Agent
\nIndemnification Expenses and recover an equal amount (which shall be deemed an
\nAgreed-Upon Loss) from such Indemnifying Party’s Pro Rata Portion of the Escrow
\nFund.<\/p>\n

(viii) The Escrow Agent may resign at any time upon giving at least 30 days
\nwritten notice to Parent and the Securityholders’ Representative;
\nprovided<\/em>, however<\/em>, that no such resignation shall become
\neffective until the appointment of a successor escrow agent which shall be
\naccomplished as follows: Parent and the Securityholders’ Representative shall
\nuse their commercially reasonable efforts to mutually agree on a successor
\nescrow agent within 30 days after receiving such notice. If Parent and the
\nSecurityholders’ Representative fail to agree upon a successor escrow agent
\nwithin such time, the Escrow Agent shall have the right to appoint a successor
\nescrow agent authorized to do business in the State of California. The successor
\nescrow agent shall execute and deliver an instrument accepting such appointment
\nand it shall, without further acts, be vested with all the estates, properties,
\nrights, powers, and duties of the predecessor escrow agent as if originally
\nnamed as escrow agent. Upon appointment of a successor escrow agent, the Escrow
\nAgent shall be discharged from any further duties and liability under this
\nAgreement.<\/p>\n

(e) Fees<\/em><\/strong>. All fees of the Escrow Agent for
\nperformance of its duties hereunder shall be paid by Parent in accordance with
\nthe standard fee schedule of the Escrow Agent. It is understood that the fees
\nand usual charges agreed upon for services of the Escrow Agent shall be
\nconsidered compensation for ordinary services as contemplated by this Agreement.
\nIn the event that the conditions of this Agreement are not promptly fulfilled,
\nor if the Escrow Agent renders any service not provided for in this Agreement
\nbut that has been requested by a senior officer of Parent, or if the parties
\nrequest a substantial modification of the terms of the Agreement, or if any
\ncontroversy arises, or if the Escrow Agent is made a party to, or intervenes in,
\nany litigation pertaining to the Escrow Fund or its subject matter, the Escrow
\nAgent shall be reasonably compensated for such extraordinary services and
\nreimbursed for all costs, attorney’s fees (including allocated costs of in-house
\ncounsel) and expenses occasioned by such default, delay, controversy or
\nlitigation.<\/p>\n

(f) Successor Escrow Agents<\/em><\/strong>. Any corporation into
\nwhich the Escrow Agent in its individual capacity may be merged or converted or
\nwith which it may be consolidated, or any corporation resulting from any merger,
\nconversion or consolidation to which the Escrow Agent in its individual capacity
\nshall be a party, or any corporation to which substantially all the corporate
\ntrust business of the Escrow Agent in its individual capacity may be
\ntransferred, shall be the Escrow Agent under this Escrow Agreement without
\nfurther act.<\/p>\n

7.6 Claims for Indemnification<\/em><\/strong>.<\/p>\n

(a) Claims for Indemnification<\/em><\/strong>.<\/p>\n

(i) Upon receipt by the Escrow Agent at any time on or before the last day of
\nthe Escrow Period of an Officer’s Certificate, the Escrow Agent shall, subject
\nto the provisions of Section 7.6(b) <\/strong>and Section
\n7.6(c)<\/strong>, deliver to Parent, as promptly as practicable, an amount of
\ncash equal to such Losses. The date of such delivery of an Officer’s Certificate
\nis referred to herein as the “Claim <\/strong><\/p>\n

68<\/p>\n

\n

<\/p>\n

Date<\/strong>” of such Officer’s Certificate (and the claims for
\nindemnification contained therein). For the purposes hereof, “Officer’s
\nCertificate<\/strong>” shall mean a certificate signed by a senior officer of
\nParent (A) stating that an Indemnified Party has paid, sustained, incurred or
\nproperly accrued, or reasonably anticipates that it will have to pay, sustain,
\nincur or accrue, any amount of Losses; and (B) specifying in reasonable detail
\nthe individual items of Losses included in the amount so stated, the date each
\nsuch item was paid, sustained, incurred or properly accrued, or the basis for
\nsuch anticipated liability, and, if applicable, the nature of the
\nmisrepresentation or breach of warranty or covenant to which such item is
\nrelated.<\/p>\n

(ii) In the event that an Indemnified Party pursues a claim directly against
\nany Indemnifying Party(s) or any other Person, subject to the provisions of
\nSection 7.3<\/strong>, Section 7.3(i)<\/strong>, Section
\n7.5(b)<\/strong>, and Section 7.6(c)<\/strong>, each Person from whom
\nindemnification is sought shall promptly, and in no event later than 30 days
\nafter delivery of an Officer’s Certificate to each such Indemnifying Party, make
\npayment by wire transfer of immediately available funds to the Indemnified Party
\nan amount of cash equal to the amount of the Loss.<\/p>\n

(b) Objections to Claims<\/em><\/strong>.<\/p>\n

(i) The Escrow Agent shall hold and safeguard the Escrow Fund during the
\nEscrow Period, shall treat such fund as a trust fund in accordance with the
\nterms of this Agreement and shall hold and dispose of the Escrow Fund only in
\naccordance with the terms of this Article VII<\/strong>. At the time of
\ndelivery of any Officer’s Certificate to the Escrow Agent, a duplicate copy of
\nsuch certificate shall be delivered by the Indemnified Party to the
\nSecurityholders’ Representative (and the Indemnifying Party, if applicable) and
\nfor a period of 30 days after the Claim Date, the Escrow Agent shall make no
\ndelivery to Parent of any portion of the Escrow Fund pursuant to
\nSection 7.6<\/strong> (other than Agreed-Upon Losses as described below)
\nunless the Escrow Agent shall have received written authorization from the
\nSecurityholders’ Representative to make such delivery. After the expiration of
\nsuch 30 day period, the Escrow Agent shall make delivery of cash from the Escrow
\nFund equal to the amount of Losses claimed in the Officer’s Certificate,
\nprovided<\/em> that no such payment or delivery may be made if the
\nSecurityholders’ Representative shall object in a written statement to the claim
\nmade in the Officer’s Certificate (an “Objection Notice<\/strong>“),
\nprovided<\/em> further<\/em> that, to be effective, such Objection Notice
\nmust (A) be delivered to the Indemnified Party and the Escrow Agent prior to
\n5:00 p.m. (California time) on the 30th day following the Claim Date of such
\nOfficer’s Certificate (such deadline, the “Objection Deadline<\/strong>”
\nfor such Officer’s Certificate and the claims for indemnification contained
\ntherein) and (B) set forth in reasonable detail the nature of the objections to
\nthe claims in respect of which the objection is made. Notwithstanding the
\nforegoing, the Securityholders’ Representative hereby waives the right to object
\nto any claims against the Escrow Fund in respect of any Agreed-Upon Loss. The
\nSecurityholders’ Representative hereby authorizes the Escrow Agent to deliver
\ncash from the Escrow Fund equal to the amount of Losses claimed in any Officer’s
\nCertificate in respect of any Agreed-Upon Loss upon receipt of such Officer’s
\nCertificate without regard to the 30-day period set forth in this
\nSection 7.6(b)<\/strong>.<\/p>\n

(ii) If the Securityholders’ Representative (or the Indemnifying Party(s), in
\nthe event that indemnification is being sought hereunder directly from such
\nIndemnifying Party(s)) does not object in writing (as provided in
\nSection 7.6(b)(i)<\/strong>) to the claims contained in an Officer’s
\nCertificate prior to the Objection Deadline for such Officer’s Certificate, such
\nfailure to object shall be an irrevocable acknowledgment by the Securityholders’
\nRepresentative and the Indemnifying Party(s) that the Indemnified Party is
\nentitled to the full amount of the claims for Losses set forth in such Officer’s
\nCertificate (and such entitlement shall be conclusively and irrefutably
\nestablished).<\/p>\n

69<\/p>\n

\n

<\/p>\n

(c) Resolution of Conflicts<\/em><\/strong>.<\/p>\n

(i) In the event that the Securityholders’ Representative delivers an
\nObjection Notice in accordance with Section 7.6(b) <\/strong>(other than
\nin connection with Agreed-Upon Losses for which the Securityholders’
\nRepresentative has waived the right to object), the Securityholders’
\nRepresentative and Parent shall attempt in good faith to agree upon the rights
\nof the respective parties with respect to each such claim. If the
\nSecurityholders’ Representative and Parent should so agree, a memorandum setting
\nforth such agreement shall be prepared and signed by both parties and, in the
\ncase of a claim against the Escrow Fund, shall be furnished to the Escrow Agent.
\nThe Escrow Agent shall be entitled to rely on any such memorandum and make
\ndistributions from the Escrow Fund in accordance with the terms thereof.<\/p>\n

(ii) If no such agreement can be reached after good faith negotiation and
\nprior to 30 days after delivery of an Objection Notice, either Parent or the
\nSecurityholders’ Representative may demand arbitration of the matter unless the
\namount of the Loss that is at issue is the subject of pending litigation with a
\nthird party, in which event arbitration shall not be commenced until such amount
\nis ascertained or both parties agree to arbitration, and in either such event
\nthe matter shall be settled by arbitration conducted by one arbitrator mutually
\nagreeable to Parent and the Securityholders’ Representative. In the event that,
\nwithin 30 days after submission of any dispute to arbitration, Parent and the
\nSecurityholders’ Representative cannot mutually agree on one arbitrator, then,
\nwithin 15 days after the end of such 30 day period, Parent and the
\nSecurityholders’ Representative shall each select one arbitrator. The two
\narbitrators so selected shall select a third arbitrator. If the Securityholders’
\nRepresentative fails to select an arbitrator during such 15 day period, then the
\nparties agree that the arbitration will be conducted by one arbitrator selected
\nby Parent.<\/p>\n

(iii) Any such arbitration shall be held in New York, New York, under the
\nArbitration Rules and Procedures of JAMS\/Endispute (“JAMS<\/strong>“).
\nThe arbitrator(s) shall determine how all expenses relating to the arbitration
\nshall be paid, including the respective expenses of each party, the fees of each
\narbitrator and the administrative fee of JAMS. The arbitrator or arbitrators, as
\nthe case may be, shall set a limited time period and establish procedures
\ndesigned to reduce the cost and time for discovery while allowing the parties an
\nopportunity, adequate in the sole judgment of the arbitrator or majority of the
\nthree arbitrators, as the case may be, to discover relevant information from the
\nopposing parties about the subject matter of the dispute. The arbitrator, or a
\nmajority of the three arbitrators, as the case may be, shall rule upon motions
\nto compel or limit discovery and shall have the authority to impose sanctions,
\nincluding attorneys’ fees and costs, to the same extent as a competent court of
\nlaw or equity, should the arbitrators or a majority of the three arbitrators, as
\nthe case may be, determine that discovery was sought without substantial
\njustification or that discovery was refused or objected to without substantial
\njustification. The decision of the arbitrator or a majority of the three
\narbitrators, as the case may be, as to the validity and amount of any claim in
\nsuch Officer’s Certificate shall be final, binding, and conclusive upon the
\nparties to this Agreement and the Indemnifying Parties. Such decision shall be
\nwritten and shall be supported by written findings of fact and conclusions that
\nshall set forth the award, judgment, decree or order awarded by the
\narbitrator(s), and the Escrow Agent shall be entitled to rely on, and make
\ndistributions from the Escrow Fund in accordance with, the terms of such award,
\njudgment, decree or order. Within 30 days of a decision of the arbitrator(s)
\nrequiring payment by one party to another, such party shall make the payment to
\nsuch other party, including any distributions out of the Escrow Fund, as
\napplicable.<\/p>\n

(iv) Judgment upon any award rendered by the arbitrator(s) may be entered in
\nany court having jurisdiction. Except as set forth in Section
\n7.6(c)(v)<\/strong>, the forgoing arbitration provision shall apply to any
\ndispute among the Indemnifying Parties and the Indemnified Parties under this
\nArticle <\/strong><\/p>\n

70<\/p>\n

\n

<\/p>\n

VII<\/strong>, whether relating to claims upon the Escrow Fund or to
\nthe other indemnification obligations set forth in this Article
\nVII<\/strong>.<\/p>\n

(v) This Section 7.6(c) <\/strong>shall not apply to claims against
\nthe Escrow Fund made in respect of (A) any Dissenting Unit Payments, (B) any
\nExcess Transaction Expenses, if any, and (C) any Agent Interpleader Expenses or
\nAgent Indemnification Expenses pursuant to clauses (vi) and (vii) of
\nSection 7.5(d) <\/strong>(each of (A), (B), and (C), an
\n“Agreed-Upon Loss<\/strong>“). Claims against the Escrow Fund made in
\nrespect of any Agreed-Upon Loss shall be resolved in the manner described in
\nSection 7.6(b)<\/strong>.<\/p>\n

(d) Third-Party Claims<\/em><\/strong>. In the event that Parent
\nbecomes aware of a third party claim (other than a claim that is the subject of
\nan Agreed-Upon Loss) (a “Third-Party Claim<\/strong>“) that Parent
\nreasonably believes may result in a demand against the Escrow Fund or for other
\nindemnification pursuant to this Article VII<\/strong>, Parent shall
\nnotify the Securityholders’ Representative of such claim, and the
\nSecurityholders’ Representative shall be entitled, on behalf of the Indemnifying
\nParties, at their expense, to participate in, but not to determine or conduct,
\nthe defense of such Third-Party Claim. Parent shall act in good faith and will
\nconsult as reasonable with the Securityholder’s Representative and deliver, or
\ncause to be delivered, to the Securityholders’ Representative copies of all
\nmaterial correspondence, pleadings, motions, briefs, or appeals relating to or
\nsubmitted in connection with the defense of any such Third Party Claim, and
\nnotices of any hearing or other court proceeding relating to such Third Party
\nClaim in each case to the extent that receipt of such documents or consultation
\ndoes not affect any privilege relating to any Indemnified Party and to the
\nextent reasonably practicable. Parent shall have the right in its sole
\ndiscretion to conduct the defense of, and to settle, any such claim;
\nprovided<\/em>, however<\/em>, that except with the consent of the
\nSecurityholders’ Representative, no settlement of any such Third-Party Claim
\nwith third party claimants shall be determinative of the amount of Losses
\nrelating to such matter. In the event that the Securityholders’ Representative
\nhas consented to any such settlement, the Indemnifying Parties shall have no
\npower or authority to object under any provision of this Article
\nVII<\/strong> to the amount of any Third-Party Claim by Parent against the Escrow
\nFund, or against the Indemnifying Parties directly, as the case may be, with
\nrespect to such settlement. If there is a Third-Party Claim that, if adversely
\ndetermined would give rise to a right of recovery for Losses hereunder, then any
\namounts incurred or accrued by the Indemnified Parties in defense or settlement
\nof such Third-Party Claim, regardless of the outcome of such claim, shall be
\ndeemed Losses hereunder. Notwithstanding anything in this Agreement to the
\ncontrary, this Section 7.6(d) <\/strong>shall not apply to any
\nThird-Party Claim that is the subject of an Agreed-Upon Loss.<\/p>\n

7.7 Securityholders’ Representative<\/em><\/strong>.<\/p>\n

(a) By virtue of the approval of the Merger and this Agreement by the
\nIndemnifying Parties and\/or entering into a Joinder Agreement, each of the
\nIndemnifying Parties shall be deemed to have agreed to appoint Reed Colley as
\nits agent and attorney-in-fact as the Securityholders’ Representative for and on
\nbehalf of the Indemnifying Parties to give and receive notices and
\ncommunications, to authorize payment to any Indemnified Party from the Escrow
\nFund in satisfaction of claims by any Indemnified Party, to object to such
\npayments, to agree to, negotiate, enter into settlements and compromises of, and
\ndemand arbitration and comply with orders of courts and awards of arbitrators
\nwith respect to such claims, to assert, negotiate, enter into settlements and
\ncompromises of, and demand arbitration and comply with orders of courts and
\nawards of arbitrators with respect to, any other claim by any Indemnified Party
\nagainst any Indemnifying Party or by any such Indemnifying Party against any
\nIndemnified Party or any dispute between any Indemnified Party and any such
\nIndemnifying Party, in each case relating to this Agreement or the transactions
\ncontemplated hereby, and to take all other actions that are either (i) necessary
\nor appropriate in the judgment of the Securityholders’ Representative for the
\naccomplishment of the foregoing, or (ii) specifically mandated by the terms of
\nthis Agreement. Such agency may be changed by the Indemnifying Parties from time
\nto time upon not less than 30 days prior<\/p>\n

71<\/p>\n

\n

<\/p>\n

written notice to Parent; provided<\/em>, however<\/em>, that the
\nSecurityholders’ Representative may not be removed or any change to the agency
\nmade unless holders of a two-thirds interest of the Escrow Fund agree to such
\nremoval and to the identity of the substituted agent or such change.
\nNotwithstanding the foregoing, a vacancy in the position of Securityholders’
\nRepresentative may be filled by the holders of two-thirds in interest of the
\nEscrow Fund. No bond shall be required of the Securityholders’ Representative,
\nand the Securityholders’ Representative shall not receive any compensation for
\nits services. Notices or communications to or from the Securityholders’
\nRepresentative shall constitute notice to or from the Indemnifying Parties.<\/p>\n

(b) The Securityholders’ Representative shall not be liable for any act done
\nor omitted hereunder as Securityholders’ Representative while acting in good
\nfaith and in the exercise of reasonable judgment. The Indemnifying Parties on
\nwhose behalf the Escrow Amount was contributed to the Escrow Fund shall
\nindemnify the Securityholders’ Representative and hold the Securityholders’
\nRepresentative harmless against any loss, liability or expense incurred without
\ngross negligence or bad faith on the part of the Securityholders’ Representative
\nand arising out of or in connection with the acceptance or administration of the
\nSecurityholders’ Representative’s duties hereunder, including the reasonable
\nfees and expenses of any legal counsel retained by the Securityholders’
\nRepresentative (“Securityholders’ Representative Expenses<\/strong>“).
\nFollowing the termination of the Escrow Period, the resolution of all Unresolved
\nClaims and the satisfaction of all claims made by Indemnified Parties for
\nLosses, the Securityholders’ Representative shall have the right to recover
\nSecurityholders’ Representative Expenses from the Escrow Fund prior to any
\ndistribution to the Indemnifying Parties, and prior to any such distribution,
\nshall deliver to the Escrow Agent a certificate setting forth the
\nSecurityholders’ Representative Expenses actually incurred. A decision, act,
\nconsent or instruction of the Securityholders’ Representative, including an
\namendment, extension or waiver of this Agreement pursuant to Section
\n8.3<\/strong> and Section 8.4<\/strong>, shall constitute a decision of
\nthe Indemnifying Parties and shall be final, binding and conclusive upon the
\nIndemnifying Parties; and the Escrow Agent and Parent may rely upon any such
\ndecision, act, consent or instruction of the Securityholders’ Representative as
\nbeing the decision, act, consent or instruction of the Indemnifying Parties. The
\nEscrow Agent and Parent are hereby relieved from any liability to any person for
\nany acts done by them in accordance with such decision, act, consent or
\ninstruction of the Securityholders’ Representative.<\/p>\n

7.8 Expense Escrow Account<\/em><\/strong>. At the Effective Time,
\nParent will deposit the Expense Escrow Amount into an escrow account (the
\n“Expense Escrow Account<\/strong>“) maintained by an escrow agent
\ndetermined by the Securityholders’ Representative without any act of the
\nSecurityholders or the Bonus Plan Employees. Such Expense Escrow Account shall
\nbe governed by an escrow agreement (the “Expense Escrow
\nAgreement<\/strong>“) to be executed by the Securityholders’ Representative and
\nan escrow agent selected by the Securityholders’ Representative (the
\n“Expense Escrow Agent<\/strong>“). The Securityholders’ Representative
\nmay use the funds in the Expense Escrow Account to pay any expenses incurred by
\nthe Securityholders’ Representative in accordance with, and pursuant to the
\nprovisions of this Agreement (including, without limitation, any out of pocket
\nexpenses incurred as the Securityholders’ Representative (whether in respect of
\nindemnification claims, the defense thereof or otherwise)). Any portion of the
\nExpense Escrow Amount remaining after payment of all of the Securityholders’
\nRepresentative’s expenses following the resolution of all indemnification claims
\nunder this Article VII<\/strong> and\/or the determination by the
\nSecurityholders’ Representative that such funds or a portion thereof are no
\nlonger necessary in connection with indemnification claims that may be brought
\nhereunder, shall be distributed to the Securityholders and Bonus Plan Employees
\nsubject to the Expense Escrow Account entitled to on a pro rata basis (based on
\ntheir Pro Rata Portion); provided, however, that at any time, and from time to
\ntime, in the sole discretion of the Securityholders’ Representative, any or all
\nof the Expense Escrow Amount may be earlier distributed to the applicable
\nSecurityholders and Bonus Plan Employees. All matters relating to the Expense
\nEscrow Account, to the extent not referred to in this Agreement, shall be
\ngoverned by the Expense Escrow Agreement, provided, however, that in the event
\nof any conflict<\/p>\n

72<\/p>\n

\n

<\/p>\n

between the terms of this Agreement and the Expense Escrow Agreement, the
\nterms of this Agreement shall be controlling. The Expense Escrow Account shall
\nnot be used for any purposes other than as set forth in this Section 7.8 and
\nshall not be available to Parent or any Person to satisfy any claims hereunder.\n<\/p>\n

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

TERMINATION, AMENDMENT AND WAIVER<\/strong><\/p>\n

8.1 Termination<\/em><\/strong>. Subject to Section
\n8.2<\/strong>, this Agreement may be terminated and the Merger abandoned at any
\ntime prior to the Closing:<\/p>\n

(a) by mutual written agreement of the Company and Parent;<\/p>\n

(b) by written notice of Parent to the Company if, within twenty-four hours
\nafter the execution and delivery of this Agreement by the Company, the Company
\nshall not have obtained and delivered to Parent (i) the executed Member Written
\nConsents for each Company Support Member and (ii) Joinder Agreements executed by
\neach Company Support Member executing the Member Written Consents.<\/p>\n

(c) by written notice of Parent or the Company to the other parties if the
\nClosing Date shall not have occurred by July 13, 2011; provided<\/em>,
\nhowever<\/em>, that the right to terminate this Agreement under this
\nSection 8.1(c) <\/strong>shall not be available to any party whose action
\nor failure to act has been a principal cause of or resulted in the failure of
\nthe Merger to occur on or before such date and such action or failure to act
\nconstitutes breach of this Agreement;<\/p>\n

(d) by written notice of Parent to the Company if any Governmental Entity
\nshall have enacted, issued, promulgated, enforced or entered any Law, statute,
\nrule, regulation, decree, injunction, Order or other legal restraint that is in
\neffect and that has the effect of making the Merger illegal;<\/p>\n

(e) by written notice of Parent to the Company if there shall be any action
\ntaken, or any Law, statute, rule, regulation or Order enacted, promulgated or
\nissued or deemed applicable to the Merger by any Governmental Entity that would
\nconstitute an Action of Divestiture;<\/p>\n

(f) by written notice of Parent to the Company if (i) Parent is not in
\nmaterial breach of its obligations under this Agreement and there has been a
\nbreach of any representation, warranty, covenant or agreement of the Company
\ncontained in this Agreement such that the conditions set forth in
\nSection 6.2(a) <\/strong>or Section 6.2(b) <\/strong>would not be
\nsatisfied and such breach has not been cured within 20 days after written notice
\nthereof to the Company; provided<\/em>, however<\/em>, that no cure period
\nshall be required for a breach that by its nature cannot be cured; or (ii) a
\nCompany Material Adverse Effect has occurred following the date of this
\nAgreement; or<\/p>\n

(g) by written notice of the Company to Parent if the Company is not in
\nmaterial breach of its obligations under this Agreement and there has been a
\nbreach of any representation, warranty, covenant or agreement of Parent
\ncontained in this Agreement such that the conditions set forth in
\nSection 6.3(a) <\/strong>would not be satisfied and such breach has not
\nbeen cured within 20 days after written notice thereof to Parent;
\nprovided<\/em>, however<\/em>, that no cure period shall be required for a
\nbreach which by its nature cannot be cured.<\/p>\n

8.2 Effect of Termination<\/em><\/strong>. In the event of
\ntermination of this Agreement as provided in Section 8.1<\/strong>, this
\nAgreement shall forthwith become void and there shall be no liability or
\nobligation on<\/p>\n

73<\/p>\n

\n

<\/p>\n

the part of Parent or the Company or its respective officers, directors,
\nmanagers or Unitholders or Optionholders, if applicable; provided<\/em>,
\nhowever<\/em>, that each party hereto and each Person shall remain liable for
\nany breaches of this Agreement prior to its termination; and provided<\/em>
\nfurther<\/em> that the provisions of Sections 4.2(c), 5.5, 5.6,
\n5.10(e) and 7.3(c), Article IX<\/strong> and this Section 8.2<\/strong>
\nshall remain in full force and effect and survive any termination of this
\nAgreement pursuant to the terms of this Article VIII<\/strong>.<\/p>\n

8.3 Amendment<\/em><\/strong>. This Agreement may be amended by the
\nparties hereto at any time by execution of an instrument in writing signed on
\nbehalf of the party against whom enforcement is sought. For purposes of this
\nSection 8.3<\/strong>, the Indemnifying Parties agree that any amendment
\nof this Agreement signed by the Securityholders’ Representative shall be binding
\nupon and effective against the Indemnifying Parties whether or not they have
\nsigned such amendment.<\/p>\n

8.4 Extension; Waiver<\/em><\/strong>. At any time prior to the
\nClosing, Parent, on the one hand, and the Company and the Securityholders’
\nRepresentative, on the other hand, may, to the extent legally permissible, (a)
\nextend the time for the performance of any of the obligations of the other party
\nhereto; (b) waive any inaccuracies in the representations and warranties made to
\nsuch party contained herein or in any document delivered pursuant hereto; and
\n(c) waive compliance with any of the covenants, agreements or conditions for the
\nbenefit of such party contained herein. Any agreement on the part of a party
\nhereto to any such extension or waiver shall be valid only if set forth in an
\ninstrument in writing signed on behalf of such party. For purposes of this
\nSection 8.4<\/strong>, the Indemnifying Parties agree that any extension
\nor waiver signed by the Securityholders’ Representative shall be binding upon
\nand effective against all Indemnifying Parties whether or not they have signed
\nsuch extension or waiver.<\/p>\n

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

GENERAL PROVISIONS<\/strong><\/p>\n

9.1 Notices<\/em><\/strong>. All notices and other communications
\nhereunder shall be in writing and shall be deemed given if delivered personally
\nor by commercial messenger or courier service, or mailed by registered or
\ncertified mail (return receipt requested) or sent by fax (with acknowledgment of
\ncomplete transmission) to the parties at the following addresses (it being
\nunderstood that notices sent by mail will not be deemed given until received):\n<\/p>\n

(a) if to Parent or Merger Sub, to:<\/p>\n

Randall Cook<\/p>\n

Advent Software, Inc.<\/p>\n

600 Townsend Street<\/p>\n

San Francisco, CA 94103<\/p>\n

Telephone: (415) 645-1173<\/p>\n

Facsimile: (415) 556-0626<\/p>\n

E-mail address: rcook@advent.com<\/p>\n

James Cox<\/p>\n

Advent Software, Inc.<\/p>\n

600 Townsend Street<\/p>\n

San Francisco, CA 94103<\/p>\n

Telephone: (415) 645-1302<\/p>\n

Facsimile: (415) 556-0626<\/p>\n

74<\/p>\n

\n

<\/p>\n

E-mail address: jcox@advent.com<\/p>\n

with a copy (which shall not constitute notice) to:<\/p>\n

Wilson Sonsini Goodrich & Rosati
\nProfessional Corporation
\n650 Page Mill Road
\nPalo Alto, California 94304
\nAttention: Mark A. Bertelsen
\nFacsimile No.: (650) 493-6811<\/p>\n

(b) if to the Company (prior to the Effective Time), to:<\/p>\n

Reed Colley, Chief Executive Officer<\/p>\n

Black Diamond Performance Reporting, LLC
\n10151 Deerwood Park Boulevard<\/p>\n

Building 400, Suite 300<\/p>\n

Jacksonville, Florida 32256
\nTelephone: (904) 241-2444
\nFacsimile No.: (904) 241-4474<\/p>\n

E-mail address: rcolley@blackdiamondreporting.com<\/p>\n

Christopher L. Haley, Chief Financial Officer and General Counsel<\/p>\n

Black Diamond Performance Reporting, LLC
\n10151 Deerwood Park Boulevard<\/p>\n

Building 400, Suite 300<\/p>\n

Jacksonville, Florida 32256
\nTelephone: (904) 241-2444
\nFacsimile No.: (904) 241-4474<\/p>\n

E-mail address: chaley@blackdiamondreporting.com<\/p>\n

with a copy (which shall not constitute notice) to:<\/p>\n

Seyfarth Shaw LLP
\n620 Eighth Avenue
\nNew York, New York 10018-1405
\nAttention: Charles M. Modlin
\nFacsimile No.: (212) 218-5526<\/p>\n

if to the Securityholders’ Representative, to:<\/p>\n

Reed Colley, c\/o Black Diamond Performance Reporting, LLC
\n10151 Deerwood Park Boulevard<\/p>\n

Building 400, Suite 300<\/p>\n

Jacksonville, Florida 32256
\nTelephone: (904) 241-2444
\nFacsimile No.: (904) 241-4474<\/p>\n

E-mail address: rcolley@blackdiamondreporting.com<\/p>\n

75<\/p>\n

\n

<\/p>\n

(c) if to the Escrow Agent, to:<\/p>\n

U.S. Bank National Association
\nOne California Street, Suite 1000
\nSan Francisco, California 94111
\nAttention: Shelia K. Soares
\nFacsimile No.: (415) 273-4590<\/p>\n

9.2 Interpretation; Rules of Construction<\/em><\/strong>.<\/p>\n

(a) The words “include,” “includes” and “including” when used herein shall be
\ndeemed in each case to be followed by the words “without limitation.”<\/p>\n

(b) When a reference is made in this Agreement to a Schedule or an Exhibit,
\nsuch reference shall be to a Schedule or an Exhibit to this Agreement unless
\notherwise indicated. When a reference is made in this Agreement to an Article or
\na Section, such reference shall be to an Article or a Section of this Agreement
\nunless otherwise indicated. The words “hereof,” “herein” and “herewith” and
\nwords of similar import shall, unless otherwise stated, be construed to refer to
\nthis Agreement as a whole and not to any particular provision of this Agreement,\n<\/p>\n

(c) The headings set forth in this Agreement are for reference purposes only
\nand shall not affect in any way the meaning or interpretation of this Agreement.\n<\/p>\n

(d) Article, section, paragraph, exhibit and schedule references are to the
\narticles, sections, paragraphs, exhibits and schedules of this Agreement unless
\notherwise specified.<\/p>\n

(e) The meaning assigned to each term defined herein shall be equally
\napplicable to both the singular and the plural forms of such term, and words
\ndenoting any gender shall include all genders. Where a word or phrase is defined
\nherein, each of its other grammatical forms shall have a corresponding meaning.\n<\/p>\n

(f) All references in this Agreement to the subsidiaries of a legal entity
\nshall be deemed to include all direct and indirect subsidiaries of such entity.\n<\/p>\n

(g) Documents or other information and materials shall be deemed to have been
\n“made available” by the Company if and only if the Company has posted such
\ndocuments and information and other materials to a virtual data room managed by
\nthe Company at [ -] at least three Business Days prior to the execution and
\ndelivery of this Agreement by the parties hereto.<\/p>\n

(h) A reference to any party to this Agreement or any other agreement or
\ndocument shall include such party’s successors and permitted assigns.<\/p>\n

(i) A reference to any specific legislation or to any provision of any
\nlegislation shall include any amendment to, and any modification or re-enactment
\nthereof, any legislative provision substituted therefor and all regulations and
\nstatutory instruments issued thereunder or pursuant thereto.<\/p>\n

(j) References to “$<\/strong>” and “Dollars<\/strong>” are to
\nU.S. dollars.<\/p>\n

(k) No summary of this Agreement or any Exhibit or Schedule delivered
\nherewith prepared by or on behalf of any party will affect the meaning or
\ninterpretation of this Agreement or any such Exhibit or Schedule.<\/p>\n

76<\/p>\n

\n

<\/p>\n

(l) The parties hereto agree that they have been represented by counsel
\nduring the negotiation and execution of this Agreement and, therefor, waive the
\napplication of any law, regulation, holding or rule of construction providing
\nthat ambiguities in an agreement or other document will be construed against the
\nparty drafting such agreement or document<\/p>\n

9.3 Counterparts<\/em><\/strong>. This Agreement may be executed in
\none or more counterparts, all of which shall be considered one and the same
\nagreement and shall become effective when one or more counterparts have been
\nsigned by each of the parties and delivered to the other party, it being
\nunderstood that all parties need not sign the same counterpart. Any such
\ncounterpart, to the extent delivered by means of a fax machine or by .pdf, .tif,
\n.gif, .jpeg or similar attachment to electronic mail (any such delivery, an
\n“Electronic Delivery<\/strong>“) shall be treated in all manner and
\nrespects as an original executed counterpart and shall be considered to have the
\nsame binding legal effect as if it were the original signed version thereof
\ndelivered in person. No party hereto shall raise the use of Electronic Delivery
\nto deliver a signature or the fact that any signature or agreement or instrument
\nwas transmitted or communicated through the use of Electronic Delivery as a
\ndefense to the formation of a contract, and each such party forever waives any
\nsuch defense, except to the extent that such defense relates to lack of
\nauthenticity.<\/p>\n

9.4 Entire Agreement; Assignment<\/em><\/strong>. This Agreement,
\nincluding the Disclosure Schedule (and all exhibits and schedules thereto) and
\nall Exhibits and Schedules to this Agreement, and all other agreements referred
\nto herein is complete, and all promises, representations, understandings,
\nwarranties and agreements with reference to the subject matter hereof, and all
\ninducements to the making of this Agreement relied upon by all the parties
\nhereto, have been expressed herein or in such Disclosure Schedule, Exhibits or
\nsuch other agreements and this Agreement, including such Disclosure Schedule,
\nExhibits and such other agreements supersedes any prior understandings,
\nagreements or representations by or among the parties, written or oral, to the
\nextent they related in any way to the subject matter hereof. No party is relying
\non any information, representation or warranty other than those set forth in
\nthis Agreement and the Exhibits and Schedules to this Agreement, and all other
\nagreements referred to herein.<\/p>\n

9.5 Severability<\/em><\/strong>. In the event that any provision
\nof this Agreement or the application thereof becomes or is declared by a court
\nof competent jurisdiction to be illegal, void or unenforceable, the remainder of
\nthis Agreement will continue in full force and effect and the application of
\nsuch provision to other persons or circumstances will be interpreted so as
\nreasonably to effect the intent of the parties hereto. The parties further agree
\nto replace such void or unenforceable provision of this Agreement with a valid
\nand enforceable provision that will achieve, to the extent possible, the
\neconomic, business and other purposes of such void or unenforceable provision.\n<\/p>\n

9.6 Specific Performance<\/em><\/strong>. The parties hereto agree
\nthat irreparable damage would occur in the event that any of the provisions of
\nthis Agreement were not performed in accordance with their specific terms or
\nwere otherwise breached. It is accordingly agreed that the parties shall be
\nentitled to seek an injunction or injunctions to prevent breaches of this
\nAgreement and to enforce specifically the terms and provisions hereof, this
\nbeing in addition to any other remedy to which they are entitled at law or in
\nequity and the parties hereby agree to waive any requirements for posting a bond
\nin connection with any such action.<\/p>\n

9.7 Other Remedies<\/em><\/strong>. Any and all remedies herein
\nexpressly conferred upon a party will be deemed cumulative with and not
\nexclusive of any other remedy conferred hereby, or by law or equity upon such
\nparty, and the exercise by a party of any one remedy will not preclude the
\nexercise of any other remedy.<\/p>\n

9.8 No Third Party Beneficiaries<\/em><\/strong>. This Agreement,
\nthe Exhibits and Schedules hereto, the Disclosure Schedule, and the documents
\nand instruments and other agreements among the parties hereto<\/p>\n

77<\/p>\n

\n

<\/p>\n

referenced herein are not intended to, and shall not, confer upon any other
\nperson any rights or remedies hereunder, nor create any right, claim or remedy
\nof any nature whatsoever, including any rights of employment for any specified
\nperiod and\/or any employee benefits in favor of any Person, union, association,
\nContinuing Employee, other employee or former employee, contractor or other
\nentity, other than the parties hereto and their respective successors and
\npermitted assigns.<\/p>\n

9.9 Governing Law; Exclusive Jurisdiction<\/em><\/strong>. This
\nAgreement shall be governed by and construed in accordance with the laws of the
\nState of Delaware. Subject to Section 7.6(c)<\/strong>, each of the
\nparties hereto irrevocably consents to the exclusive jurisdiction and venue of
\nany court within San Francisco County, State of California, in connection with
\nany matter based upon or arising out of this Agreement or the matters
\ncontemplated herein, agrees that process may be served upon them in any manner
\nauthorized by the laws of the State of California for such persons and waives
\nand covenants not to assert or plead any objection which they might otherwise
\nhave to such jurisdiction, venue and such process. Subject to Section
\n7.6(c)<\/strong>, each party agrees not to commence any legal proceedings related
\nhereto except in such courts. The parties hereto hereby waive any right to stay
\nor dismiss any action or proceeding under or in connection with this Agreement
\nbrought before the foregoing courts on the basis of (i) any claim that it is not
\npersonally subject to the jurisdiction of the above-named courts for any reason,
\nor that it or any of its property is immune from the above-described legal
\nprocess, (ii) that such action or proceeding is brought in an inconvenient
\nforum, that venue for the action or proceeding is improper or that this
\nAgreement may not be enforced in or by such courts, or (iii) any other defense
\nthat would hinder or delay the levy, execution or collection of any amount to
\nwhich any party hereto is entitled pursuant to any final judgment of any court
\nhaving jurisdiction.<\/p>\n

9.10 Waiver of Jury Trial<\/em><\/strong>. EACH OF THE PARTIES
\nHERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AND ANY ACTION,
\nPROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE)
\nARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO
\nIN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.<\/p>\n

9.11 USA Patriot Act Compliance<\/em><\/strong>. To help the
\ngovernment fight the funding of terrorism and money laundering activities,
\nfederal law requires all financial institutions to obtain, verify and record
\ninformation that identifies each Person who opens an account. For a
\nnon-individual Person such as a business entity, a charity, a trust or other
\nlegal entity, the Escrow Agent will ask for documentation to verify its
\nformation and existence as a legal entity. The Escrow Agent may also ask to see
\nfinancial statements, licenses, identification and authorization documents from
\nindividuals claiming authority to represent the entity or other relevant
\ndocumentation. The parties each agree to provide all such information and
\ndocumentation as to themselves as requested by the Escrow Agent to ensure
\ncompliance with federal law.<\/p>\n

[Execution page follows<\/em>.]<\/p>\n

78<\/p>\n

\n

<\/p>\n

IN WITNESS WHEREOF, Parent, Merger Sub, the Company, the Securityholders’
\nRepresentative and the Escrow Agent have caused this Agreement to be signed as
\nof the date first written above.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n\n

ADVENT SOFTWARE, INC.<\/strong><\/p>\n<\/td>\n<\/tr>\n

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

By:<\/p>\n<\/td>\n

\n

\/s\/ James S. Cox<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Name:<\/p>\n<\/td>\n

\n

James S. Cox<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Title:<\/p>\n<\/td>\n

\n

Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n

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

BIRDIE ACQUISITION LLC<\/strong><\/p>\n<\/td>\n<\/tr>\n

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

By:<\/p>\n<\/td>\n

\n

\/s\/ James S. Cox<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Name:<\/p>\n<\/td>\n

\n

James S. Cox<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Title:<\/p>\n<\/td>\n

\n

Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n

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

BLACK DIAMOND PERFORMANCE REPORTING, LLC<\/strong><\/p>\n<\/td>\n<\/tr>\n

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

By:<\/p>\n<\/td>\n

\n

\/s\/ Reed Colley<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Name:<\/p>\n<\/td>\n

\n

Reed Colley<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Title:<\/p>\n<\/td>\n

\n

Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n

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

SECURITYHOLDERS’ REPRESENTATIVE<\/strong><\/p>\n<\/td>\n<\/tr>\n

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

\/s\/ Reed Colley<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Reed Colley<\/p>\n<\/td>\n<\/tr>\n

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

U.S. BANK NATIONAL ASSOCIATION<\/strong><\/p>\n<\/td>\n<\/tr>\n

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

By:<\/p>\n<\/td>\n

\n

\/s\/ Sheila K. Soares<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Name:<\/p>\n<\/td>\n

\n

Sheila K. Soares<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Title:<\/p>\n<\/td>\n

\n

Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Signature Page to Agreement and Plan of Merger<\/p>\n

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