exv10w74






EXHIBIT 10.74




EXECUTION VERSION




AGREEMENT AND PLAN OF MERGER




     This Agreement and Plan of Merger (the “Agreement”) is entered into as of September 15, 2010
by and among Move Sales, Inc., a Delaware corporation (“Purchaser”); Threewide Corporation, a
Delaware corporation (“Threewide”); MSI TC Merger Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of Purchaser (“Merger Sub”); and William Rice, an individual resident of
West Virginia, and J. Rudy Henley in his capacity as a manager of West Virginia Capital Management
LLC, a West Virginia limited liability company (collectively, the “Equityholders’ Representative”).
Purchaser, Threewide, Merger Sub and the Equityholders’ Representative are each referred to herein
as a “Party” and collectively as the “Parties”.



RECITALS:



     WHEREAS, the board of directors of each of the Purchaser, Threewide and Merger Sub has
approved, and deems it fair, advisable and in the best interests of their respective companies and
stockholders to consummate the merger of Merger Sub with and into Threewide upon the terms and
subject to the conditions set forth herein (collectively, the “Merger”); and



     WHEREAS, in furtherance of the Merger, the board of directors of each of the Purchaser,
Threewide and Merger Sub has approved this Agreement and the transactions contemplated herein upon
the terms and subject to the conditions set forth in this Agreement; and



     WHEREAS, immediately following the execution of this Agreement, the board of directors of
Threewide shall deliver to the Requisite Stockholders this Agreement and the Stockholder Consent,
which approves among other things the adoption of this Agreement and the transactions contemplated
hereby to be performed by Threewide; and



     WHEREAS, it is the intention of the Parties that, upon consummation of the Merger pursuant to
this Agreement, Threewide shall be a wholly-owned subsidiary of the Purchaser.



AGREEMENT:



     In consideration of the Recitals and of the agreements and covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:



1. DEFINITIONS




     As used herein, the following terms shall have the following meanings unless the context
otherwise requires:



     “Affiliate” means with respect to a specified Person, a Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under common control with,
the Person specified or one or more Affiliates thereof. For the purposes of this definition,
“controlled” and “control” mean the possession, directly or indirectly, of the
power to direct the management and policies of a Person whether through the ownership of voting
securities, contract or otherwise.



 









 





     “Agreement” has the meaning set forth in the introductory paragraph, above.



     “Appraisal Rights” means the rights of stockholders of a corporation in a merger to demand the
payment of a fair price for their shares, as determined independently, as set forth in Section 262
of the DGCL.



     “Base Consideration” has the meaning provided in Section 2.3(a).



     “Basket” has the meaning provided in Section 6.2(b).



     “Business” means the business operated by Threewide as of the date of this Agreement.



     “Cap” has the meaning provided in Section 6.2(c).



     “Certificate of Merger” means the certificate of merger in the form attached as Exhibit A.



     “Closing” has the meaning set forth in Section 2.1.



     “Closing Date” has the meaning set forth in Section 2.1.



     “Code” has the meaning set forth in Section 3.9(b).



     “Company Certificate” has the meaning set forth in Section 2.2(e).



     “Continuing Employees” has the meaning provided in Section 5.2.



     “DGCL” means the Delaware General Corporation Law.



     “Disclosure Schedules” has the meaning set forth in Section 3.



     “Dissenting Shares” has the meaning provided in Section 2.7.



     “Effective Time” has the meaning provided in Section 2.2(b).



     “Employee Pension Benefit Plan” has the meaning set forth in ERISA Section 3(2).



     “Employee Welfare Benefit Plan” has the meaning set forth in ERISA Section 3(1).



     “Employment Agreements” means the Employment Agreement between Threewide and Luke Glass in the
form attached hereto as Exhibit G-1 executed on the date hereof to be effective upon the Closing;
the Employment Agreement between Threewide and Mark T. Wise in the form attached hereto as Exhibit
G-2 executed on the date hereof to be effective upon the Closing; the Employment Agreement between
Threewide and Rob Reid in the form attached hereto as Exhibit G-3 executed on the date hereof to be
effective upon the Closing; and the Employment Agreement between Threewide and Celeste Starchild in
the form attached hereto as Exhibit G-4 executed on the date hereof to be effective upon the
Closing.



     “Equityholder” means a Stockholder or a Warrantholder. “Equityholders” means, collectively,
the Stockholders and Warrantholders.



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     “Equityholders’ Representative” has the meaning provided in the introductory paragraph.



     “ERISA” has the meaning set forth in Section 3.16(b).



     “Escrow Agreement” shall have the meaning set forth in Section 2.4(a)(i).



     “Escrow Agent” shall mean U.S. Bank N.A.



     “Escrow Amount” has the meaning set forth in Section 2.4(a)(i).



     “Expenses Cap” has the meaning set forth in Section 2.3(a)(iii).



     “Expenses Holdback” has the meaning provided in Section 2.4(a)(ii).



     “Expenses Payment” has the meaning provided in Section 2.4(c)(ii).



     “GAAP” means United States generally accepted accounting principles, as in effect from time to
time.



     “Governmental Entity” means: (i) any national government, political subdivision thereof or
local jurisdiction therein; (ii) any instrumentality, board, commission, court or agency of any of
the foregoing, however constituted; and (iii) any association, organization or institution of which
any of the foregoing is a member or to whose jurisdiction any thereof is subject or in whose
activities any of the above is a participant.



     “Indemnified Party” has the meaning set forth in Section 6.3(a).



     “Indemnifying Party” has the meaning set forth in Section 6.3(a).



     “Intellectual Property” means all formulas, trade secrets, trademarks, trade names, domain
names, codes, patents, copyrights, inventions and discoveries that are being used by Threewide, are
owned or licensed by Threewide, or are registered or filed in the name of Threewide (whether
exclusively, jointly with another Person, or otherwise), including any and all recipes, formulas or
inventions in process (whether or not reduced to practice) or any patent or trademark applications
filed by Threewide.



     “Letter of Transmittal” has the meaning provided in Section 2.5(a).



     “Management Carveout” has the meaning provided in Section 2.3(a).



     “Material Adverse Change” or “Material Adverse Effect” means any event, circumstance,
development, change or effect that has had or could have a material adverse effect on the business,
condition (financial or otherwise), properties, assets, liabilities, prospects or results of
operations of Threewide.



     “Merger” has the meaning provided in the first recital.



     “Merger Consideration” has the meaning provided in Section 2.3(a).



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     “Merger Sub” has the meaning provided in the introductory paragraph.



     “Option Payment” has the meaning provided in Section 2.6(a).



     “Option Termination Agreements” means the Option Termination Agreements between Threewide and
the holders of the options to acquire Stock in the form attached hereto as Exhibit H.



     “Parties” or “Party” shall mean Merger Sub, Threewide, and Purchaser or any of them.



     “Person” means any individual, corporation (including any non-profit corporation),
partnership, limited liability company, joint venture, estate, trust, association, organization,
labor union or other entity or Governmental Entity.



     “Pro Rata Share” means the amounts and percentages set forth on Exhibit B.



     “Purchaser” has the meaning set forth in the introductory paragraph.



     “Purchaser Indemnified Parties” has the meaning provided in Section 6.2(a).



     “Requisite Stockholders” shall mean the holders of at least: (a) a majority of Threewide’s
issued and outstanding common stock (including the preferred stock on an as-converted basis), (b) a
majority of Threewide’s issued and outstanding Series A Preferred Stock, (c) a majority of
Threewide’s issued and outstanding Series A-1 Preferred Stock, (d) two-thirds of Threewide’s issued
and outstanding Series B Preferred Stock, and (e) two-thirds of Threewide’s issued and outstanding
Series C Preferred Stock (including such stock as may be purchased by the exercise of any Warrant).



     “Stock” means the capital stock, of any class, of Threewide.



     “Stockholder” means the holder of any Stock. “Stockholders” means, collectively, the holders
of any Stock.



     “Stockholder Consent” means the stockholder consent in the form attached hereto as Exhibit I.



     “Stock Option Plan” means the Threewide 2001 Stock Option Plan, as amended, attached hereto as
Exhibit D.



     “Surviving Corporation” has the meaning provided in Section 2.2(a).



     “Tax” or “Taxes” means any federal, state, local, or foreign income, gross receipts, license,
payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code §59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of
any kind whatsoever, when computed on a separate or consolidated,



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unitary or combined basis or in any other manner, including any interest, penalty, or addition
thereto, whether disputed or not.




     “Third-Party Claim” has the meaning set forth in Section 6.3(c).



     “Threewide” has the meaning set forth in the introductory paragraph.



     “Threewide Financials” has the meaning set forth in Section 3.5.



     “To Threewide’s knowledge” and similar phrases shall mean the actual knowledge of Luke Glass,
Mark Wise, Rob Reid, Celeste Starchild, the Equityholders’ Representative and each member of
Threewide’s board of directors (where the actual knowledge of each of such persons is imputed to
all other of such persons), who, for the avoidance of doubt, are listed on Schedule 3.2(c).



     “Transaction Expenses” means fees, costs, and expenses incurred pursuant to the transactions
contemplated by this Agreement, including, but not limited to, the fees and expenses of legal
counsel, accountants, investment bankers, consultants and other experts.



     “Warrants” means the warrants to acquire any Stock.



     “Warrantholder” means the holder of any Warrants. “Warrantholders” means, collectively, the
holders of any Warrants.



2. MERGER




     2.1 The Closing. The closing of the transactions contemplated by this Agreement (the
“Closing”) shall take place at Threewide’s offices at 2 p.m. on September 20, 2010 or such other
date as the Parties may mutually agree on which all conditions precedent to the Closing described
in Section 7 are met or waived (the date of the Closing is referred to herein as the “Closing
Date”).



     2.2 The Merger.



          (a) At the Effective Time, and subject to and upon the terms and conditions of this Agreement,
the Certificate of Merger and the applicable provisions of the DGCL, Merger Sub shall be merged
with and into Threewide and the separate corporate existence of Merger Sub shall cease, and
Threewide shall continue as the surviving corporation under the laws of the State of Delaware (the
“Surviving Corporation”).




          (b) The Merger shall become effective when: (i) the Closing has occurred; and (ii) the
Certificate of Merger, executed in accordance with the DGCL, is duly filed with the Secretary of
State of Delaware, or such time as the Parties may agree and specify in the Certificate of Merger
(such time of effectiveness, the “Effective Time”).




          (c) From and after the Effective Time, the Merger shall have the effects provided for in
Section 259 of the DGCL.






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          (d) From and after the Effective Time: (i) the certificate of incorporation of Merger Sub, as
in effect immediately prior to the Effective Time, shall be the certificate of incorporation of the
Surviving Corporation (except that the name of the Surviving Corporation shall be Threewide
Corporation and the provision in the certificate of incorporation of Merger Sub naming its
incorporator shall be omitted) until thereafter amended as provided by law and such certificate of
incorporation; (ii) the bylaws of Merger Sub, as in effect immediately prior to the Effective Time,
shall be the bylaws of the Surviving Corporation until thereafter amended as provided by law, by
the certificate of incorporation of the Surviving Corporation or by such bylaws; and (iii) the
directors and officers of Merger Sub immediately prior to the Effective Time shall be the directors
and officers, respectively, of the Surviving Corporation, each of such directors and officers to
hold office, subject to the applicable provisions of the certificate of incorporation and bylaws of
the Surviving Corporation, until their respective successors shall be duly elected or appointed and
qualified.




          (e) At the Effective Time, by virtue of the Merger and without any further action by the
Parties, each share of Stock issued and outstanding immediately prior to the Effective Time and
each Warrant issued and outstanding immediately prior to the Effective Time shall be converted into
the right to receive a portion of the Merger Consideration as set forth in this Agreement upon
surrender of the certificate or agreement formerly representing such shares of Stock or Warrants
(each a “Company Certificate”), payable at the times and in the manner, and subject to the terms
and conditions, provided in this Agreement. All such converted Stock and Warrants, when so
converted, shall no longer be outstanding and shall be deemed to be cancelled and retired and shall
cease to exist, and each holder of any Stock or Warrants shall cease to have any rights with
respect to any Company Certificate except the right to receive a portion of the Merger
Consideration therefor, without interest, following the surrender of such Company Certificate in
accordance with this Agreement.




     2.3 Consideration.



          (a) The total consideration to be paid in connection with the transactions contemplated by
this Agreement shall be equal to $13,000,000 (the “Base Consideration”), as increased or decreased
on a dollar-for-dollar basis for the cumulative net adjustments required by the following (as
adjusted, the “Merger Consideration”):





          i. The Merger Consideration shall be decreased by the Option Payment, which
amount shall be payable to certain members of Threewide’s management team pursuant
to Section 2.9;




          ii. The Merger Consideration shall be decreased by $994,863.31 (the “Management
Carveout”), which amount shall also be payable to certain members of Threewide’s
management team pursuant to Section 2.9; and




          iii. The Merger Consideration shall be increased by the amount of Threewide’s
Transaction Expenses that have not been paid by Threewide prior to Closing, which
are to be set forth on Schedule 2.9(e) to be delivered at Closing, which such amount
shall not exceed $100,000 less the amount of Threewide’s



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Transaction Expenses paid by it prior to Closing, which amount shall also be
set forth on Schedule 2.9(e) (the “Expenses Cap”).



          (b) On the Closing Date, each share of Stock and each Warrant shall be converted such that, at
the Effective Time, each Equityholder shall be entitled to receive such Equityholder’s Pro Rata
Share of the Merger Consideration (less the amount of the Holdbacks) by bank check or wire transfer
in accordance with the terms and conditions of this Agreement. The Holdbacks will be applied as
set forth in Section 2.4(a). Each Equityholder’s Pro Rata Share of the Merger Consideration and
the Holdbacks shall be calculated in accordance with the methodology set forth on Exhibit B,
provided, however, that if there are any Dissenting Shares, the percentages on Exhibit B shall be
recalculated as if such Dissenting Shares did not exist. At the Closing, Threewide shall deliver
to Purchaser Exhibit B updated as of the Closing, and, in paying the Equityholders’ Pro Rata Shares
of the Merger Consideration, Purchaser shall be entitled to rely upon the calculations and amounts
set forth on such updated Exhibit B without any investigation or independent review.




          (c) Each issued and outstanding share of common stock of Merger Sub shall be converted into
one share of common stock of the Surviving Corporation.




     2.4 Escrow and Holdbacks.



          (a) Purchaser shall withhold payment of a portion of the Merger Consideration and apply it as
follows (collectively, the “Holdbacks”):





          i. On the Closing Date, Purchaser shall deposit an amount equal to $3,000,000
(the “Escrow Amount”) with the Escrow Agent in the form of a wire transfer of
immediately available funds into an account designated prior to the Closing, to be
held and disbursed pursuant to the terms and provisions of the Escrow Agreement
attached hereto as Exhibit C (the “Escrow Agreement”); and




          ii. An amount equal to $100,000 for payment or reimbursement of the
Equityholders’ Representative’s expenses incurred in connection with his duties
under this Agreement (the “Expenses Holdback”). The Expenses Holdback will be paid
to the Equityholders’ Representative in the form of a wire transfer of immediately
available funds into an account designated prior to the Closing.



          (b) Each Stockholder (except to the extent such Stockholder’s shares are Dissenting Shares)
and Warrantholder shall be deemed to have contributed to the Holdbacks pro rata in an amount equal
such Equityholder’s Pro Rata Share thereof. Stockholders holding Dissenting Shares shall not be
deemed to have contributed to the Holdbacks to the extent related to such Dissenting Shares.




          (c) Each Equityholder’s Pro Rata Share shall be available from time to time, as follows:





          i. In respect of the Escrow Amount, to satisfy any indemnification obligations
pursuant to Section 6, including without limitation



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any underlying claims in respect of any Appraisal Rights and any other costs
directly attributable to such claims (an “Indemnity Payment”). Except as
specifically set forth in Section 6, any Indemnity Payments shall be satisfied
solely by reducing each Equityholder’s Pro Rata Share in respect of the Escrow
Amount by an amount equal to the Equityholder’s Pro Rata Share of such Indemnity
Payment, to the extent such resulting amount does not exceed such Equityholder’s Pro
Rata Share in respect of the Escrow Amount.




          ii. In respect of the Expenses Holdback, to pay for or reimburse the
Equityholders’ Representative for his expenses incurred in connection with his
duties under this Agreement (each, an “Expenses Payment”). Any Expenses Payments
shall be satisfied solely by reducing each Equityholder’s Pro Rata Share in respect
of the Expenses Holdback by an amount equal to such Equityholder’s Pro Rata Share of
such Expenses Payment, to the extent such resulting amount does not exceed such
Equityholder’s Pro Rata Share in respect of the Expenses Holdback. Once the
Equityholders’ Representative has determined that no more Expenses Payments will be
paid, then the Equityholders’ Representative will distribute all Equityholders’ Pro
Rata Shares in respect of the remaining Expenses Holdback.



          (d) The balance, if any, of the Equityholders’ Pro Rata Shares in respect of the Escrow Amount
shall be released and paid over to the Equityholders’ Representative for distribution to the
Equityholders in accordance with the Escrow Agreement (for the avoidance of doubt, only
Warrantholders and Stockholders who have irrevocably forgone or lost their Appraisal Rights will be
entitled to share in such distribution).




     2.5 Exchange of Certificates.



          (a) Immediately following the execution of this Agreement and in no event more than three days
after the date hereof, the Equityholders’ Representative shall obtain from (i) the Requisite
Stockholders, (A) the Stockholder Consent in accordance with the applicable provisions of the DGCL
(including Sections 228 and 251 of the DGCL) and executed by the Requisite Stockholders, (B) an
executed letter of transmittal in the form attached hereto as Exhibit J (a “Letter of
Transmittal”), and (C) the Company Certificates representing all of the shares of Stock held by the
Requisite Stockholders, and (iii) the Warrantholders, (A) an executed Letter of Transmittal and (B)
the Company Certificates representing all of the Warrants held by the Warrantholders. As soon as
reasonably practicable following the Closing Date, Threewide shall mail, fax, send electronically
or send by overnight courier to each holder of record of one or more shares of Stock (not otherwise
obtained pursuant to the previous sentence) a Letter of Transmittal.




          (b) Following the Closing (or at the Closing, in the case of the Requisite Stockholders and
the Warrantholders) and surrender of a Company Certificate representing the shares of Stock held by
a Stockholder and/or the Warrants held by a Warrantholder, together with a Letter of Transmittal,
duly executed, the holder of the Stock and/or Warrants represented by such Company Certificate
shall be entitled to receive in exchange therefor the portion of the Merger Consideration into
which such Stock and/or Warrants shall have been converted pursuant





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to this Section 2, and the Company Certificate so surrendered to the Surviving Corporation
shall be cancelled. If payment of such portion of the Merger Consideration is to be made to a
Person other than the Person in whose name such Company Certificate is registered, it shall be a
condition of payment that the Company Certificate so surrendered shall be properly endorsed or
shall be otherwise in proper form for transfer and that the Person requesting such payment shall
have paid any transfer and other Taxes required by reason of the payment of the portion of the
Merger Consideration to a Person other than the registered holder of the Stock and/or Warrant or
shall have established to the satisfaction of the Surviving Corporation that such Tax either has
been paid or is not applicable. In the event that any Company Certificate shall have been lost,
stolen or destroyed, the Purchaser shall pay in exchange therefor, upon making of an affidavit of
that fact by the holder thereof in form and substance acceptable to the Purchaser, the portion of
the Merger Consideration due in respect of such Stock and/or Warrant that is payable pursuant to
this Agreement; provided, however, that the Purchaser may, in its discretion and as a condition
precedent to the issuance thereof, require the delivery of a suitable indemnity agreement by the
owner of such lost, stolen or destroyed Company Certificate, and may at its option require the
indemnity to be secured by a bond in form and substance satisfactory to Purchaser.




          (c) The Purchaser may pay over to the Surviving Corporation any portion of the Merger
Consideration remaining 180 days after the Effective Time, and thereafter all former Equityholders
shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat, and
other similar laws) as general creditors thereof with respect to the cash payable upon surrender of
their Company Certificates. None of the Purchaser, Merger Sub or the Surviving Corporation shall
be liable to any Equityholder for any portion of the Merger Consideration delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law. On the date
hereof, the stock transfer books of Threewide shall be closed to transfers of Stock and exercise of
Warrants outstanding immediately prior to the date hereof, and thereafter there shall be no further
registration of transfers of such Stock or exercise of Warrants on the records of Threewide, unless
this Agreement is terminated.




     2.6 Stock Options and Warrants.



          (a) All outstanding options to acquire Stock pursuant to the Stock Option Plan outstanding as
of the date hereof are set forth on Exhibit D (along with a copy of the Stock Option Plan). At the
Closing, such options shall be terminated and Threewide shall pay the amounts therefor set forth on
Exhibit D (the “Option Payment”) in consideration for the termination of such options in accordance
with and pursuant to the Option Termination Agreements.




          (b) All Warrants outstanding as of the date hereof are set forth on Exhibit E. At the
Closing, the Warrants shall be converted into the right to receive a portion of the Merger
Consideration (less the amount of the Holdbacks) as set forth on Exhibit B. The Holdbacks will be
applied as set forth in Section 2.4(a).




     2.7 Appraisal Rights and Dissenting Shares. Immediately following the Closing but in any
event within 10 days of the Closing Date, the Surviving Corporation shall mail, fax, send
electronically or send by overnight courier the Appraisal Rights Notice in the form attached hereto
as Exhibit K in accordance with Section 262 of the DGCL and a Letter of Transmittal to



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each of the Stockholders other than the Requisite Stockholders who executed and delivered the
Stockholder Consent. Any holder of Stock issued and outstanding immediately prior to the Effective
Time with respect to which Appraisal Rights, if any, are available by reason of the Merger pursuant
to Section 262 of the DGCL (“Dissenting Shares”), and have been perfected by such Stockholder,
shall be entitled to receive only such rights as are granted under Section 262 of the DGCL and
shall not be entitled to receive any portion of the Merger Consideration unless such Stockholder
effectively withdraws or loses its Appraisal Rights under the DGCL. If any such holder effectively
withdraws or loses such Appraisal Rights under the DGCL, such Dissenting Shares shall thereupon be
deemed to have been converted as of the Effective Time into the right to receive that portion of
the Merger Consideration due to such holder pursuant to this Agreement. Subject to the terms of
Section 6.2, any payments made with respect to Dissenting Shares, or any costs incurred in
connection with Dissenting Shares, that would be payable or reimbursable out of the Escrow Amount
shall be made or incurred solely by the Surviving Corporation with the consent of the
Equityholders’ Representative, which shall not be unreasonably withheld.




     2.8 Withholding Rights. The Purchaser (and after the Effective Time, the Surviving
Corporation) shall be entitled to deduct and withhold from the Merger Consideration otherwise
payable pursuant to this Agreement such amounts as it is required to deduct and withhold with
respect to the making of such payment under the Code, or any provision of United States federal,
state or local, or any foreign, Tax law. To the extent that amounts are so withheld or paid over
to or deposited with the relevant Governmental Entity by the Purchaser (or Threewide), such amounts
shall be treated for all purposes of this Agreement as having been paid to the applicable
Equityholder in respect of which the Purchaser (or Threewide) made such deduction and withholding.



     2.9 Certain Events at the Closing. At the Closing, in addition to such other actions as may
be provided for herein:



          (a) Purchaser shall deliver, to the Stockholders who have executed and delivered the
Stockholder Consent and have executed and delivered a Letter of Transmittal and the Company
Certificates in accordance with Section 2.5 and the Warrantholders who have executed and delivered
a Letter of Transmittal and the Company Certificates in accordance with Section 2.5, an amount
equal to such Equityholders’ Pro Rata Share of the Merger Consideration (less such Equityholders’
Pro Rata Share of the Holdbacks) in accordance with the provisions of this Agreement and the
amounts set forth on Exhibit B;




          (b) Purchaser shall deliver to the Escrow Agent an amount equal to the Escrow Amount for
further payment in accordance with the provisions of this Agreement and the Escrow Agreement;




          (c) Purchaser shall deliver to the Equityholders’ Representative an amount equal to the
Expenses Holdback for further payment in accordance with the provisions of this Agreement;






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          (d) Threewide shall pay the Management Carveout and Option Payment, subject to tax and other
customary withholdings, to certain members of Threewide’s management team as set forth on Exhibit F
attached hereto;




          (e) Threewide shall deliver Schedule 2.9(e) setting forth Threewide’s Transaction Expenses;




          (f) Purchaser shall deliver to Threewide the certificate required to be provided by it in
Section 7.1(d);




          (g) The Employment Agreements shall become effective;




          (h) Purchaser, Threewide, the Equityholders’ Representative and the Escrow Agent shall enter
into the Escrow Agreement;




          (i) Threewide shall deliver to Purchaser fully executed Option Termination Agreements; and




          (j) The Parties shall file the Certificate of Merger.




3. REPRESENTATIONS AND WARRANTIES BY THREEWIDE




     Threewide represents and warrants to the Purchaser and Merger Sub that the statements
contained in this Section 3 and as set forth in the disclosure schedules delivered by Threewide to
the Purchaser and Merger Sub on the date hereof (the “Disclosure Schedule”) are correct and
complete as of the date of this Agreement and will be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were substituted for the date of this Agreement
throughout this Section 3). The Disclosure Schedule shall be arranged in paragraphs corresponding
to the lettered and numbered paragraphs contained in this Section 3.



     3.1 Capitalization.



          (a) Threewide’s authorized capital stock consists of the classes and shares of capital stock
listed on Schedule 3.1(a) hereto, of which the number of shares of capital stock listed on Schedule
3.1(a) hereto are issued and outstanding. All outstanding shares of such capital stock are held of
record and beneficially as set forth on Schedule 3.1(a) hereto.




          (b) All of the issued and outstanding shares of the Stock have been duly and validly issued
and are fully paid and nonassessable.




          (c) Except as set forth on Schedule 3.1(c) hereto, there are no outstanding warrants, options,
conversion privileges, preemptive rights, voting agreements or similar arrangements, or other
rights or agreements to purchase or otherwise acquire or issue any equity securities of Threewide.




          (d) Except as set forth on Schedule 3.1(d) hereto, there is no right of first refusal option
or other restriction on transfer applicable to any of the shares of the Stock.





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          (e) Except as set forth on Schedule 3.1(e) hereto, Threewide does not have outstanding any
stock appreciation rights or other rights granting to any Person the right to be paid money or
other property based on the value of the securities of Threewide.



          (f) Except as set forth on Schedule 3.1(f) hereto, there are no agreements, restrictions,
or understanding to which Threewide is a party with respect to the sale, transfer, or voting of any
shares of the Stock.



     3.2 Organization and Good Standing.



          (a) Threewide is: (i) a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, with full corporate power and authority to conduct its
business as it is now being conducted; and (ii) is duly qualified to operate its business, and is
in good standing, in each jurisdiction where the ownership of property or the conducting of its
business requires such qualification except where the failure to be so qualified would not
have a Material Adverse Effect.



          (b) Threewide has made available to Purchaser for its review and examination complete and
accurate copies of Threewide’s Certificate of Incorporation and Bylaws, each as amended through the
date hereof, the minutes of all of Threewide’s directors’ and stockholders’ meetings through the
date hereof, and Threewide’s stock transfer book, as updated through the date hereof, the Warrants,
and all option agreements to acquire any shares of the Stock.



          (c) Schedule 3.2(c) hereto lists all current officers and directors of Threewide as of the
date hereof.



     3.3 Subsidiaries. Threewide does not currently own, have any investment in, or
control, directly or indirectly, any subsidiaries, associations or other business entities; and is
not a participant in any joint venture or partnership.



     3.4 Authority, Approval and Enforceability.



          (a) Threewide has full corporate power and authority to execute, deliver and perform its
obligations under this Agreement and, upon the execution and delivery of the Stockholder Consent by
the Requisite Stockholders, all corporate action of Threewide necessary for such execution,
delivery and performance has been duly taken. Complete and correct copies, certified by the
Secretary or Assistant Secretary of Threewide, of the resolutions adopted by the Board of
Directors, authorizing and ratifying the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein, have been delivered to the Purchaser.



          (b) Except as provided in Schedule 3.4(b), the execution and delivery by Threewide of this
Agreement and the agreements related hereto do not, and the performance and consummation of the
transactions contemplated by this Agreement and the agreements related hereto will not, result in
any conflict with, breach or violation of or default, termination or forfeiture under (or upon the
giving of notice or the lapse of time, or both, result in any conflict with, breach or violation of
or default, termination or forfeiture under) any terms or provisions of Threewide’s Certificate of
Incorporation or Bylaws, each as amended through the date hereof, or any statute, rule, regulation,
judicial or governmental decree, order or judgment, or any of the



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agreements set forth on Schedule 3.11 or Schedule 3.15(a), or any agreement related to any item set forth on Schedule 3.16(b) or
Schedule 3.16(c).




          (c) No consent, approval, authorization, order, registration, qualification or filing of
or with any court or any regulatory authority or any other governmental body is required for the
consummation by Purchaser and Threewide of the transactions contemplated by this Agreement.



          (d) Upon due execution and delivery by the parties hereto, this Agreement and the
agreements related hereto will each be legal, valid, and binding obligations of Threewide,
enforceable against Threewide in accordance with their terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally.



     3.5 Financial Statements; Books of Account. An unaudited balance sheet of Threewide as of
July 31, 2010 and the related statements of income and cash flows for the seven month period then
ended and a scheduling of the liabilities, receivables, and fixed assets included thereon
(collectively the “Threewide Financials”) are included on Schedule 3.5 hereto. The Threewide
Financials have been prepared in accordance with GAAP (except for the omission of certain
footnotes) applied on a consistent basis throughout the periods involved. Except as set forth on
Schedule 3.5 hereto, the books of account of Threewide reflect actual transactions as of the dates
shown thereon and provide a true and correct representation of substantially all items of income
and expenses, and substantially all assets, liabilities and accruals of Threewide. The Threewide
Financials fairly present in all material respects the financial position, results of operations,
and cash flows of Threewide covered thereunder as of the date thereof and for the periods covered
thereby.



     3.6 Material Changes. Except as set forth in Schedule 3.6, since July 31, 2010, there
has not been with respect to Threewide any:



          (a) Material Adverse Change in its financial condition from that shown on the Threewide
Financials;



          (b) Damage or loss, whether covered by insurance or not, materially and adversely
affecting its business, property, assets or prospects;



          (c) Other event or condition materially and adversely affecting its results of operations
or business or financial condition or prospects taken as a whole or any event (not applicable to
the economy or industry generally) which could have such an effect.



          (d) Operation of the Business outside of the ordinary course;



          (e) Violation of any law applicable to Threewide,



          (f) Amendment, modification or supplement its organizational documents;



          (g) Split, combination or reclassification of any of its capital stock or equity interests
or issue or authorize the issuance of any securities in respect of, in lieu of, or in



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substitution of its capital stock or equity interests or repurchase, redemption or other acquisition any of its
capital stock or equity interests, except as expressly contemplated by this Agreement;




          (h) Delay or postponement of payment of accounts payable or other liabilities or
obligations or acceleration of the collection of accounts receivable, or write-downs of the value
of any asset or write-offs of any accounts or notes receivable as uncollectible;



          (i) Entrance into, termination of, amendment to or other modification or waiver of any of
the terms of, any (i) agreement set forth on Schedule 3.15(a), (ii) employment agreement, (iii)
real estate lease, or (iv) agreement between or among Threewide, on the one hand, and any
Equityholder, director, or officer of Threewide or any Affiliate of any of the foregoing, on the
other hand;



          (j) (i) Adoption, amendment, modification or termination of any bonus, profit-sharing,
incentive, severance or other benefit plan, contract or commitment for the benefit of any employee;
(ii) increase of the compensation or other benefits payable or provided to any employee; or (iii)
granting of any equity or equity based awards;



          (k) Making or changing of any Tax election, changing of an annual accounting period,
adopting or changing of any accounting method with respect to Taxes, filing of any amended Tax
return, entrance into any closing agreement, settling or compromising of any proceeding with
respect to any Tax claim or assessment relating to Threewide, surrendering of any right to claim a
refund of Taxes, consenting to any extension or waiver of the limitation period applicable to any
Tax claim or assessment relating to Threewide, or taking of any other similar action relating to
the filing of any Tax return or the payment of any Tax;



          (l) Declaration, setting aside, making or payment of any dividend or other distribution in
respect of capital stock or equity interests of Threewide;



          (m) Sale, assignment, license, pledge, transfer or disposition of, or granting or taking
of any action that has created a lien on any assets, rights or properties, except for the sale of
inventory to customers in the ordinary course of business consistent with past practice;



          (n) Acquisition (by way of merger, consolidation or acquisition) of the equity interests
or assets of any Person, or acquisition of direct or indirect control of any interest in any Person
or the right to acquire any stock or interest in any other Person or in any business, or entrance
into any joint venture, partnership or similar arrangement;



          (o) (i) Distribution of any cash to any Equityholder or officer or director of Threewide
except in the ordinary course of business consistent with past practice or (ii) making any
commitment for any capital expenditures in excess of $5,000 for any individual commitment or
$10,000 in the aggregate;



          (p) Incurrence or guarantee of any indebtedness, issuance or sale of any debt securities
or warrants or other rights to acquire debt securities, or entrance into any arrangement having the
economic effect of any of the foregoing;



- 14 -









 





          (q) Payment of or agreement to pay in settlement, or compromise or waiver of any rights
under or pursuant to, any litigation, arbitration, investigation or other proceeding relating to
Threewide;



          (r) Change of the accounting methods or accounting practices followed by Threewide or
change of the depreciation or amortization policies or rates;



          (s) Cancellation or termination of any insurance policy or causing any of the coverage
thereunder to lapse;



          (t) Granting of any registration rights with respect to the equity interests of Threewide;



          (u) Institution of any general layoff of employees or implementation of any early
retirement plan or announcement of the planning of such a program; or



          (v) Entrance into any agreement or committing to take any of the types of actions
described in any of subsections (a) through (u) above.



     3.7 Accounts Receivable.



          (a) All accounts receivable reflected on the Threewide Financials are bona fide, arose
from valid sales in the ordinary course of business in the aggregate amount thereof and, to
Threewide’s knowledge, are collectible in full, except to the extent of the reserve therefor on
such financials. Schedule 3.7(a) contains a complete and accurate report showing all accounts
receivable of Threewide outstanding as of the date of the Threewide Financials, together with an
accurate aging of such accounts.



          (b) None of Threewide’s accounts receivable is subject to any lien or claim of offset,
setoff or counterclaim and Threewide does not have any knowledge of any facts or circumstances that
would give rise to any such lien or claim. Except as disclosed on Schedule 3.7(b), there are no
accounts receivable which are contingent upon the performance by Threewide of future services.



     3.8 No Undisclosed Liabilities. Threewide has no debts, liabilities or claims against it,
contingent or otherwise, which would be of a nature required to be reflected in a balance sheet
prepared in accordance with GAAP which are material individually or in the aggregate and which are
not shown or fully provided for on the Threewide Financials, except debts, liabilities and claims
incurred in the ordinary course of business since the date of the Threewide Financials which are
not material in the aggregate. The applicable reserves reflected on the Threewide Financials are
sufficient for payment of all claims, asserted and unasserted, of customers to which Threewide has
sold products or provided services through such date. All products and services provided to
customers by Threewide have complied in all material respects with all requirements binding upon
Threewide, whether by law, regulation, agreement or otherwise.



- 15 -









 





     3.9 Taxes.



          (a) Except as set forth on Schedule 3.9(a), all federal, state, local and foreign Tax
returns and reports required to be filed to date, and which are properly open for examination under
applicable statutes of limitation, with respect to the operations of Threewide have been accurately
prepared and duly filed, and all Taxes shown as payable on such returns and reports have been paid
when due, including, without limitation income, withholding, payroll, sales and
use, and real and personal property taxes. Except as set forth on Schedule 3.9(a) hereto: (i)
Threewide has not executed or filed with any Taxing authority any agreement extending the period
for assessment or collection of any Tax to a date subsequent to the date hereof; (ii) no issue has
been raised by any federal, state, local or foreign Taxing authority in connection with an audit or
examination of the Tax returns, business or properties of Threewide that has not been settled or
resolved; (iii) there is no pending claim, asserted deficiency or assessment for additional Taxes
which has not been paid, nor is there any basis for the assertion of any such claim, deficiency or
assessment; (iv) no material special charges, penalties or fines have ever been asserted against
Threewide with respect to payment of or failure to pay any Taxes; (v) the provision for Taxes shown
on the Threewide Financials is sufficient for payment of all unpaid federal, state, local and
foreign Taxes (whether asserted or unasserted) incurred by Threewide through such date.



          (b) Threewide has not filed any consent to the application of Section 341(f) of the
Internal Revenue Code of 1986, as amended (the “Code”), or been subject to any actual or deemed
election under Section 338 of the Code.



     3.10 Properties and Inventories.



          (a) Threewide has good and marketable title to, valid leasehold interests in or other
valid right to use all of the material assets used in its operations or necessary for the conduct
of its business, free and clear of any material mortgages, pledges, security interests, licenses,
encumbrances, restrictions or adverse claims, except for the lien of Taxes not yet due and payable.
Schedule 3.10(a) contains a description and the location of any such material assets that are not
in the possession of Threewide or that are located other than on Threewide’s premises in
Morgantown, West Virginia.



          (b) All of Threewide’s material assets are adequate and suitable for the purposes for
which they are presently being used. Except for those items listed on Schedule 3.10(b) or assets
subject to leases listed on Schedule 3.15(a), there are no items of equipment, machinery or other
tangible assets of Threewide that are not currently being used in its business that are reflected
on the Threewide Financials.



          (c) There has not occurred, except for those items listed on Schedule 3.10(c), since the
date of the Threewide Financials, any transfer of title other than in the ordinary course of
business, any abandonment, any material pilferage or any material loss with respect to any material
property or equipment of Threewide.



     3.11 Real Property. Threewide has no interests in real property other than leasehold
interests. Schedule 3.11 identifies all real property leased by Threewide. Threewide has



- 16 -









 




enforceable leasehold interests in all property shown on Schedule 3.11. The facilities of
Threewide (i) do not encroach on the property of others, (ii) conform in all material respects with
all applicable ordinances, regulations and zoning laws and (iii) are in good repair, reasonable
wear and tear excepted. Threewide has not subleased, licensed, or otherwise granted any third
party the right to use or occupy any real property leased by Threewide.




     3.12 Environmental Matters. Threewide has complied in all material respects with any and
all applicable statutes, rules and regulations in effect regarding the environment including,
without limitation, statutes, rules and regulations regarding the production, handling, treatment
and disposal of toxic chemicals and hazardous waste.



     3.13 Health and Safety Matters. Threewide has complied in all material respects with any
and all applicable health and safety statutes, rules and regulations of state, local and federal
authorities in effect.



     3.14 Insurance. Schedule 3.14 identifies all policies of insurance now in effect covering
the assets, properties and business of Threewide and all products liability and life insurance
policies maintained by Threewide. Threewide has made available a true and accurate copy of each of
the policies listed on Schedule 3.14 to Purchaser. Threewide has not committed an act or omission
which might invalidate any of such policies in whole or in part.



     3.15 Purchase, Sale and Other Agreements.



          (a) Except as set forth on Schedule 3.15(a), Threewide is not a party or subject to any
oral or written:




          i. agreement (or group of related agreements) for the purchase or sale of
materials, supplies, products, or other personal property, or for the furnishing or
receipt of services, the performance of which involve consideration in excess of
$25,000;




          ii. agreement concerning a partnership or joint venture;




          iii. agreement (or group of related agreements) under which it has created,
incurred, assumed, or guaranteed any indebtedness for borrowed money, or any
capitalized lease obligation or under which it has imposed an Encumbrance on any of
its assets, tangible or intangible;




          iv. agreement with any multiple listing service regarding access to any
data of any such multiple listing service;




          v. agreement with any third-party regarding distribution and/or syndication
of the data of any multiple listing service, real estate broker, or real estate
agent;




          vi. material agreement concerning confidentiality or noncompetition;



- 17 -









 






          vii. profit sharing, stock option, stock purchase, stock appreciation,
deferred compensation, severance, or other material plan or arrangement for the
benefit of its current or former directors, officers, and employees;




          viii. collective bargaining agreement;




          ix. agreement for the employment of any individual on a full-time,
part-time, consulting, or other basis or providing severance benefits;




          x. agreement under which it has advanced or loaned any amount to any of its
directors, officers, and employees outside the ordinary course of business;




          xi. agreement under which the consequences of a default or termination
could have a Material Adverse Effect; or




          xii. other agreement (or group of related agreements) the performance of
which involves consideration in excess of $25,000.



          (b) A complete and accurate copy of each written agreement and other document identified
on Schedule 3.15(a) has been made available to Purchaser. To Threewide’s Knowledge, each agreement
or arrangement identified on Schedule 3.15(a) is, except to the extent fully performed at the date
hereof, in full force and effect and valid and binding in accordance with its terms in all material
respects except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally and subject to general equity principles and
to limitations on availability of equitable relief, including specific performance. Except as set
forth on Schedule 3.15(b), to Threewide’s Knowledge, no party to any such contract, agreement or
arrangement is in material default under, or intends to cancel, withdraw, modify or amend, any such
contract, agreement or arrangement.



          (c) Except as set forth on Schedule 3.15(c), Threewide has performed all material
obligations required to be performed by it on or prior to the date hereof under each material
contract, obligation, commitment, agreement, undertaking, arrangement or lease referred to in this
Agreement or in any exhibit hereto. Threewide has not received any notice that it is in default
thereunder, nor, to Threewide’s Knowledge, is there any basis for a default.



- 18 -









 





     3.16 Trademarks, Patents and Other Intellectual Property Rights.



          (a) Threewide has not interfered with, infringed upon, misappropriated, or violated any
material Intellectual Property rights of third parties. Threewide has not received any charge,
complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation,
or violation (including any claim that Threewide must license or refrain from using any
Intellectual Property rights of any third party). To Threewide’s Knowledge, no third party has
interfered with, infringed upon, misappropriated, or violated any material Intellectual Property
rights of Threewide.



          (b) Schedule 3.16(b) identifies each patent or registration which has been issued
to Threewide with respect to any of its Intellectual Property, identifies each pending patent
application or application for registration which Threewide has made with respect to any of its
Intellectual Property, and identifies each material license, agreement, or other permission which
Threewide has granted to any third party with respect to any of its Intellectual Property (together
with any exceptions). Threewide has made available to the Purchaser correct and complete copies of
all such patents, registrations, applications, licenses, agreements, and permissions (as amended to
date). Schedule 3.16(b) also identifies each material trade name or
unregistered trademark used by Threewide in connection with any of its businesses. With
respect to each item of Intellectual Property identified in Schedule 3.16(b): (i) Threewide
possesses all right, title, and interest in and to the item, free and clear of any encumbrance,
license, or other restriction; (ii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge; and (iii) no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand is pending or, to Threewide’s Knowledge, is
threatened which challenges the legality, validity, enforceability, use, or ownership of the item.



          (c) Schedule 3.16(c) identifies each material item of Intellectual Property that
any third party owns and that Threewide uses pursuant to license, sublicense, agreement, or
permission. Threewide has made available to the Purchaser correct and complete copies of all such
licenses, sublicenses, agreements, and permissions (as amended to date). With respect to each such
item of Intellectual Property required to be identified in Schedule 3.16(c): (i) the
license, sublicense, agreement, or permission covering the item is legal, valid, binding,
enforceable, and in full force and effect in all material respects; (ii) no party to the license,
sublicense, agreement, or permission is in material breach or default, and no event has occurred
which with notice or lapse of time would constitute a material breach or default or permit
termination, modification, or acceleration thereunder; (iii) no party to the license, sublicense,
agreement, or permission has repudiated any material provision thereof; and (iv) Threewide has not
granted any sublicense or similar right with respect to the license, sublicense, agreement, or
permission.



          (d) Threewide has taken all reasonable steps to maintain the confidentiality of and
otherwise protect and enforce its rights in all Intellectual Property, including: (i) obtaining an
appropriate non-disclosure agreement prior to disclosing any trade secrets to a third party; and
(ii) imposing restrictions on unauthorized copying, unauthorized sale or transfer, recompilation,
disassembly or reverse-engineering and other industry-standard restrictions on use prior to
providing a third party with access to Intellectual Property.



- 19 -









 





     3.17 Employees and Consultants.



          (a) Schedule 3.17(a) identifies all currently effective consulting and employment
agreements and other material agreements, either oral or written, with individual consultants or
employees to which Threewide is a party. Complete and accurate copies of all such written
agreements and summaries of all oral agreements have been made available to Purchaser. Also shown
on Schedule 3.17(a) are the name of each officer, employee and agent of Threewide and each such
person’s present rate of regular compensation and bonus payments related to the fiscal year ending
December 31, 2010. No current officer, manager or key employee of Threewide has notified Threewide
of an intention to terminate employment or to seek a material change in his terms of employment.
Except as set forth on Schedule 3.17(a) no employee of Threewide has accrued more than three weeks
of paid vacation.



          (b) Except as specifically disclosed on Schedule 3.17(b), Threewide is not a party to any
pension, retirement, profit sharing, savings, bonus, incentive, deferred compensation, group health
insurance or group life insurance plan or obligation, employee welfare benefit plan, or collective
bargaining agreement or other agreement, written or oral, with any trade or labor union, employees’
association or similar organization. With respect to each plan described on Schedule 3.17(b), Threewide has made available to Purchaser complete and
accurate copies of the plan, the Internal Revenue Service determination letter, if any, all plan
applications and amendments, the most recent plan actuarial reports and all reports of or regarding
such plan required by the Employee Retirement Income Security Act of 1974, as amended, and any
regulations issued thereunder (“ERISA”). With respect to each plan, if any, which is subject to
ERISA, Threewide has properly prepared and timely filed all governmental reports and has properly
and timely posted or distributed all notices and reports to employees required to be filed, posted
or distributed with respect to such plan. No prohibited transaction has occurred with respect to
any such plan which is subject to ERISA, nor is there any pending or, to Threewide’s Knowledge,
threatened assertion of the occurrence of any such transaction.



          (c) Threewide has not received any documentation relating to union activities, including
but not limited to, correspondence or orders from the National Labor Relations Board and any state
labor relations agencies or organizations, and there are currently no agreements with any unions
and no strikes or labor disputes pending or, to Threewide’s Knowledge, threatened by any of the
employees of Threewide.



          (d) Threewide has complied in all material respects with all applicable laws or
regulations relating to the employment of labor. Threewide has withheld all amounts required by
law or agreement to be withheld from its employees for the payment of any Tax or contribution.



          (e) There are no currently outstanding loans from Threewide to any officer, director or
employee of Threewide and no commitments to lend any money or other property to any such person,
other than, in each case, routine travel advances in the ordinary course of business.



          (f) To Threewide’s Knowledge, no employee is obligated under any agreement or judgment
that would conflict with such employee’s obligation to use his best efforts to promote the
interests of Threewide or would conflict with Threewide’s business as conducted



- 20 -









 




or proposed to be conducted. To Threewide’s Knowledge, no employee of Threewide is in violation of the terms of any
employment agreement or any other agreement relating to such employee’s relationship with any
previous employer and no litigation is pending or threatened with regard thereto.




     3.18 Borrowings and Guarantees. Schedule 3.18 identifies all agreements and
undertakings pursuant to which Threewide (i) is borrowing or is entitled to borrow any money, (ii)
is lending or has committed itself to lend any money, or (iii) is a guarantor or surety with
respect to the obligations of any Person. Complete and accurate copies of all such written
agreements have been delivered to Purchaser.



     3.19 Bank Accounts and Powers of Attorney. Schedule 3.19 identifies all bank accounts
used in connection with the operations of the Business, whether or not such accounts are held in
the name of Threewide, lists the respective signatories therefor, and lists the names of all
Persons holding a power of attorney from Threewide.



     3.20 Compliance with Laws. Except as set forth in Schedule 3.20, the present conduct of
the Business by Threewide does not violate any law, ordinance, regulation, judgment, order,
decree or rule of any court, arbitrator or governmental agency or entity in any respect
material to the conduct of the Business, and there are no legal or administrative proceedings or
investigations pending or, to Threewide’s Knowledge, threatened, which, if determined adversely to
Threewide, could reasonably be expected to result, individually or in the aggregate, in any
Material Adverse Change.



     3.21 Absence of Litigation. Except as set forth on Schedule 3.21, neither Threewide nor
any officer or director of Threewide is engaged in, or has received any threat of, any litigation,
arbitration, investigation or other proceeding relating to Threewide or its employee benefit plans,
property, business assets, licenses, permits, Intellectual Property or goodwill, or against or
affecting the transactions contemplated by this Agreement, nor, to the Knowledge of Threewide, is
there any basis therefor.



     3.22 No Brokers; Transaction Expenses. Neither Threewide nor any Equityholder is
obligated for the payment of fees or expenses of any broker or finder in connection with the
origin, negotiation or execution of this Agreement or in connection with any transaction
contemplated hereby. Schedule 2.9(e) sets forth all of Threewide’s Transaction Expenses.



     3.23 Insider Transactions. Schedule 3.23 hereto is a true and complete list of all
material contracts now in effect between Threewide and any Equityholder and a true and complete
list of all material contracts and material transactions between Threewide and any Person who now
is or at any time has been an officer, director or stockholder of Threewide, other than salary and
incentive compensation arrangements of a customary nature entered into in the ordinary course of
business. No director or officer of Threewide and, to the Knowledge of Threewide, no Affiliate of
any of them has any interest (other than ownership of securities registered under the Securities
Act of 1933, as amended) in excess of $500 in (a) any equipment or other property, real or
personal, tangible or intangible, including, but without limitation, any item of Intellectual
Property, used in connection with or pertaining to the Business, or (b) any



- 21 -









 




creditor, supplier, customer, manufacturer, agent, representative or distributor of products of Threewide.




     3.24 Accuracy of Documents and Information. The copies of all instruments, agreements,
other documents and written information delivered to Purchaser by Threewide or any of its
representatives are and will be true and correct copies as of the date of delivery thereof. No
representations or warranties made by Threewide in this Agreement nor any document, written
information statement, financial statement, certificate or exhibit prepared and furnished or to be
prepared and furnished by Threewide, or its representatives, to Purchaser pursuant hereto or in
connection with the transactions contemplated hereby, taken as a whole, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a material fact necessary
to make the statements or facts contained herein or therein not misleading.



4. REPRESENTATIONS AND WARRANTIES BY PURCHASER




     Purchaser represents and warrants to Threewide as follows:



     4.1 Organization. Purchaser is a Delaware corporation, duly organized, legally existing
and in good standing under the laws of the State of Delaware and has full power, ability
and authority to conduct its business as it is now conducted, to enter into this Agreement and
to carry out the other transactions and agreements contemplated hereby.



     4.2 Due Authorization. The execution, delivery and performance of this Agreement and each
of the other agreements contemplated hereby and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary company action of Purchaser. This
Agreement has been duly executed and delivered by Purchaser and is a valid and binding obligation
of Purchaser, fully enforceable in accordance with its terms. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated hereby will: (i) conflict
with or violate any provision of Purchaser’s charter, bylaws, operating agreement or other
governing instruments, or any law, ordinance or regulation or any decree or order of any court or
administrative or other governmental body which is either applicable to, binding upon or
enforceable against Purchaser; or (ii) result in any breach of or default under any material
mortgage, contract, agreement, indenture, trust, written agreement or other instrument which is
either binding upon or enforceable against Purchaser.



     4.3 Litigation. There are no actions, suits, proceedings or investigations, either at law
or in equity, or before any Governmental Entity in any United States or foreign jurisdiction, of
any kind now pending or, to the best of the Purchaser’s knowledge, threatened against the Purchaser
that (i) question the validity of this Agreement or (ii) seek to delay, prohibit or restrict in any
manner any action taken or to be taken by that Purchaser under this Agreement.



     4.4 Brokers. All negotiations relative to this Agreement and the transactions
contemplated by it have been carried on by the Purchaser directly with Threewide and without the
intervention of any other Person and in a manner as not to give rise to any valid claim against any
of the parties for any finder’s fee, brokerage commission or like payment.



     4.5 No Untrue Statements. No statement by Purchaser contained in this Agreement and no
written statement contained in any certificate, schedule or other document required to be



- 22 -









 




furnished by Purchaser to Threewide pursuant to this Agreement contains or will contain any untrue statement
of a material fact, or omits or will omit to state a material fact necessary in order to make the
statements not misleading.




     4.6 Merger Sub. The representations set forth in Sections 4.1-4.5 and true and correct
with respect to Merger Sub as if “Merger Sub” were substituted for “Purchaser” each place it
appears.



5. COVENANTS




     5.1 Further Cooperation. In case at any time after the Closing Date any further actions
are necessary to carry out the purposes of this Agreement, each of the Parties will take such
further actions (including the execution and delivery of such further instruments and documents) as
the other Party reasonably may request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification therefor under Section 6 below).



     5.2 Employees. Subject to the requirements, if any, of applicable law and obtaining
approvals, if any, of Governmental Entities, prior to the Closing Date, Threewide shall take all
actions necessary to provide for the cancellation or termination, effective immediately prior to
the Closing, of any Threewide 401(k) or profit sharing plan. Effective as of the Closing
Date, Buyer shall offer to all employees of Threewide as of the Closing Date (“Continuing
Employees”) compensation and benefits that are substantially comparable to the compensation and
benefits they were receiving from Threewide immediately prior to the Closing Date. Comparable
benefits shall be offered to Continuing Employees either through the Buyer’s continuing to maintain
the existing Threewide Employee Welfare Benefit Plans or through immediate participation in
Employee Welfare Benefit Plans maintained by Purchaser for its similarly-situated employees.
Continuing Employees shall be eligible to participate in any Employee Pension Benefit Plan that
Purchaser maintains for its similarly-situated employees effective no later than the first day of
the first full month immediately following the Closing Date.



     5.3 Stockholder Consent and Appraisal Rights. Threewide agrees to carry out the
provisions of Sections 2.5 and 2.7 hereof and to comply with Threewide’s certificate of
incorporation, bylaws and the applicable provisions of the DGCL (including Section 262 of the
DGCL).



     5.4 Conduct of Business Prior to Closing. Threewide agrees that, from the date hereof
until the Closing, the business of Threewide shall be conducted in the ordinary course of business
consistent with past practice.



6. SURVIVAL, INDEMNIFICATION




     6.1 Survival. All representations, warranties and covenants made and given in this
Agreement (including any exhibit hereto), including those contained in any Schedule or any
certificate delivered on the Closing Date by any party shall be deemed to have been relied on in
spite of any investigation that has been or will be made or omitted by any party to this Agreement
and shall survive for 2 years following the Closing Date.



- 23 -









 





     6.2 Indemnification.



          (a) To the limited extent set forth in this Section 6.2, the Equityholders shall
indemnify, defend and save Purchaser and its Affiliates (including Threewide from and after the
Closing) and the stockholders, directors, officers, employees, and agents of Purchaser and its
Affiliates (including Threewide from and after the Closing) and the successors and assigns of the
foregoing (collectively, the “Purchaser Indemnified Parties”) harmless from any actions, claims,
losses, damages, demands or expense (including without limitation all court costs and reasonable
attorney’s fees on account thereof) suffered or incurred by any of them proximately caused by (i)
any inaccuracy in, nonperformance of, or breach of any representation, warranty, covenant,
obligation or other undertaking made by Threewide set forth in this Agreement (including any
exhibit hereto) and (ii) any Appraisal Rights.



          (b) No indemnification shall be payable to the Purchaser Indemnified Parties under this
Section 6.2 until and after the Purchaser Indemnified Parties’ losses aggregate $25,000 (the
“Basket”); provided, however, that in the event that such losses exceed the amount of the Basket,
then indemnification shall be made by the Equityholders for the full amount of such losses,
including the initial $25,000; provided, further, that the Basket shall not apply to (i) any
actions, claims, losses, damages, demands or expense (including without limitation all court
costs and reasonable attorney’s fees on account thereof) suffered or incurred by the Purchaser
Indemnified Parties proximately caused by any inaccuracy in, nonperformance of, or breach of any
representation or warranty set forth in Section 3.1 (Capitalization) or in sub-sections (a), (c),
or (d) of Section 3.4 (Authority, Approval and Enforceability), (ii) the indemnification
obligations pursuant to Section 6.2(a)(ii), or (iii) the indemnification obligations pursuant to
Section 6.2(d). Purchaser shall notify the Equityholders’ Representative promptly of any written
actions, claims or demands against any Purchaser Indemnified Parties of which the Equityholders are
responsible hereunder, specifying the basis and amount thereof in reasonable detail.



          (c) Notwithstanding any provision to the contrary contained elsewhere in this Agreement,
the Equityholders’ combined aggregate liability for indemnification under Section 6.2(a) hereof
shall not exceed the amount then held in the Escrow Account (the “Cap”) and no claim shall be made
directly against any Equityholder; provided, however, that the Cap shall not apply to any actions,
claims, losses, damages, demands or expenses as a result of breaches or other inaccuracies in the
Letters of Transmittal and the Purchaser Indemnified Parties may make direct claims against
Equityholders for such breaches or other inaccuracies.



          (d) The Equityholders shall indemnify, defend and save the Purchaser Indemnified Parties
harmless from any Transaction Expenses of Threewide exceeding the Expenses Cap, including any
actions, claims, losses, damages, demands or expense (including without limitation all court costs
and reasonable attorney’s fees on account thereof) related thereto.



          (e) Purchaser shall indemnify, defend and save Threewide and the Equityholders harmless
from any actions, claims, losses, damages, demands or expense (including without limitation all
court costs and reasonable attorney’s fees on account thereof) suffered or incurred by Threewide or
the Equityholders, or their successors and assigns,



- 24 -









 




proximately caused by any breach of any representation, warranty, covenant or other undertaking made by the Purchaser in this Agreement
(including any exhibit hereto). Threewide and/or the Equityholders’ Representative shall notify
the Purchaser promptly of any written actions, claims or demands against Threewide or the
Equityholders of which the Purchaser is responsible hereunder specifying the basis and amount
thereof in reasonable detail.




     6.3 Indemnification Procedures.



          (a) Promptly after any Party or other Person entitled to indemnification under this
Section 6 (each, an “Indemnified Party”) determines that a claim for indemnification might exist,
including notice of any claim by a third party described in Section 6.3(c), the Indemnified Party
shall promptly deliver a certificate (a “Certificate”) to the Indemnifying Party. The Person or
Persons who are required to indemnify such Indemnified Party under this Section 6 shall be referred
to herein as the “Indemnifying Party.” Such Certificate shall:



               i. state that the Indemnified Party may have incurred, or reasonably anticipates that it
will incur, damages for which such Indemnified Party is entitled to indemnification pursuant to
this Agreement; and



               ii. specify such damages in reasonable detail included in the amount so stated, the date
such item was discovered, the basis for any anticipated damages and the nature of the
misrepresentation, inaccuracy or claim to which each such item is related and the computation of
the amount to which such Indemnified Party claims to be entitled under Section 6.2 of this
Agreement. Notwithstanding any other provision of this Agreement to the contrary, for purposes of
Section 6.2(a), with respect to each representation or warranty contained in this Agreement that is
qualified by knowledge, “to the Knowledge of”, materiality, “Material Adverse Effect,” or other
similar words or phrases, no such qualification shall be permitted for the purpose of determining
the amount of any actions, claims, losses, damages, demands or expenses that are the subject of
indemnification hereunder, and all such actions, claims, losses, damages, demands and expenses
shall be calculated without regard to any such qualification.



          (b) In case the Indemnifying Party shall object to the indemnification of an Indemnified
Party in respect of any claim or claims specified in any Certificate, the Indemnifying Party shall,
within 30 days after receipt by the Indemnifying Party of such Certificate, deliver to the
Indemnified Party a written notice to such effect and the Indemnifying Party and the Indemnified
Party shall, within the 30 day period beginning on the date of receipt by the Indemnified Party of
such written objection, attempt in good faith to agree upon the rights of the respective parties
with respect to each of such claims to which the Indemnifying Party shall have so objected. If the
Indemnified Party and the Indemnifying Party shall succeed in reaching agreement on their
respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying
Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the
Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items
or amount or amounts, then such dispute shall be settled by arbitration in Wilmington, Delaware, in
accordance with the Commercial Arbitration Rules of the American Arbitration Association then in
effect. There shall be three arbitrators, one to be chosen by each of the Indemnified Party and
Indemnifying Party directly at will, and the third arbitrator to be selected by the two arbitrators
so chosen. Each arbitrator shall be an attorney: (i)



- 25 -









 




whose primary practice area comprises mergers and acquisitions; (ii) with at least 10 years of practice experience; and (iii) who is a
partner of a law firm. Each of the Indemnifying Party and the Indemnified Party shall pay the fees
of the arbitrator he or it selects and of his or its own attorneys and the expenses of his or its
witnesses, and all other fees and costs shall be borne equally by the Indemnifying Party and the
Indemnified Party. Judgment on any award rendered by the arbitrators may be entered in any court
having jurisdiction and neither the Indemnifying Party nor the Indemnified Party shall object to
the entry of such award.




          (c) Third Party Claims.




          i. If any third party notifies any Party (the “Indemnified Party”) with
respect to any matter (a “Third-Party Claim”) that may give rise to a claim for
indemnification against the other Party (the “Indemnifying Party”) under this
Section 6, then the Indemnified Party shall promptly (and in any event within five
business days after receiving notice of the Third-Party Claim) notify the
Indemnifying Party thereof in writing specifying the claimed basis and amount
thereof in reasonable detail. Failure to so notify shall not be deemed a waiver of,
or otherwise affect, the Indemnifying Party’s obligations unless the Indemnifying
Party is harmed or prejudiced by such failure to notify.




          ii. The Indemnifying Party will have the right at any time to assume and
thereafter conduct the defense of the Third-Party Claim with counsel of its choice;
provided, however, that the Indemnifying Party will not consent to the entry of any
judgment on or enter into any settlement with respect to the Third-Party Claim
without the prior written consent of the Indemnified Party (not to be unreasonably
withheld) unless the judgment or proposed settlement involves only the payment of
money damages and does not impose an injunction or other equitable relief upon the
Indemnified Party.




          iii. Unless and until the Indemnifying Party assumes the defense of the
Third-Party Claim as provided in above, however, the Indemnified Party may defend
against the Third-Party Claim in any manner it may reasonably deem appropriate. In
no event will the Indemnified Party consent to the entry of any judgment on or enter
into any settlement with respect to the Third-Party Claim without the prior written
consent of the Indemnifying Party (not to be unreasonably withheld).



          (d) Claims specified in any Certificate to which an Indemnifying Party shall not object in
writing within 30 days of receipt of such Certificate or that have been resolved pursuant to
Section 6.3(c) are hereinafter referred to as “Agreed Claims”. Within 30 days after the
determination of the amount of any Agreed Claims, the Indemnifying Party shall pay to the
Indemnified Party an amount equal to the Agreed Claim by wire transfer in immediately available
funds to the bank account or accounts designated in writing by the Indemnified Party not less than
five days prior to such payment, provided that any Agreed Claim to be paid by the Equityholders
shall be payable solely through the Escrow Account.




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7. CONDITIONS TO CLOSING; FAILURE TO CLOSE.




     7.1 Conditions to Purchaser’s Obligations at Closing. All of the obligations of the
Purchaser under this Agreement are subject to the fulfillment at or before the Closing of each of
the following conditions, any of which may be waived in writing by Purchaser:



          (a) Representations and Warranties. The representations and warranties of Threewide
contained herein shall be true and correct in all material respects (without giving effect to the
knowledge or materiality qualifiers contained therein) on and as of the Closing Date with the same
effect as if made on and as of the Closing Date and Purchaser shall have received a copy of the
Disclosure Schedules updated through and dated as of the Closing Date.



          (b) Performance. Threewide shall have performed or fulfilled in all material respects all
agreements, obligations and conditions contained herein and shall have obtained all consents,
waivers and approvals set forth on Schedule 7.1(b), including those necessary to consummate the
transactions contemplated hereby, including the Stockholder Consent executed by the Requisite
Stockholders.



          (c) Material Adverse Change. There shall have been no Material Adverse Change.



          (d) Certificate. Purchaser shall have received at the Closing a certificate, dated as of
the Closing and executed by Threewide’s President, to the effect that the conditions set forth in
Sections 7.1(a) – (c) have been satisfied.



          (e) Related Documents. Each of the following agreements shall have been duly executed and
delivered by the parties thereto (other than the Purchaser and Merger Sub): (i) the Certificate of
Merger; (ii) the Escrow Agreement; and (iii) the Option Termination Agreements.



          (f) Resignation Letters. Threewide shall have delivered to the Purchaser the resignation
letters of all members of the board of directors of Threewide and/or any officer of Threewide as
the Purchaser shall have requested at or prior to the Closing.



          (g) No Order. No action, suit, proceeding or investigation shall have been adopted or
promulgated and no Governmental Entity shall have issued any order that is in effect, which has the
effect of making illegal or otherwise prohibiting the consummation of the transactions contemplated
by this Agreement.



          (h) Legal Opinion. Purchaser shall have received an executed copy of a favorable written
opinion of Thorp Reed & Armstrong, LLP, counsel for Threewide, in form and substance reasonably
satisfactory to Purchaser.



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     7.2 Conditions to Threewide’s Obligations at Closing. The obligations of Threewide under
this Agreement are subject to the fulfillment at or before the Closing of each of the following
conditions, any of which may be waived in writing by Threewide:



          (a) Representations and Warranties. The representations and warranties of the Purchaser
contained herein shall be true and correct in all material respects (without giving effect to the
knowledge or materiality qualifiers contained therein) on and as of the Closing Date with the same
effect as if made on and as of the Closing Date.



          (b) Performance. The Purchaser shall have performed or fulfilled in all material respects
all agreements, obligations and conditions contained herein and shall have obtained all consents,
waivers and approvals set forth on Schedule 7.2(b), including those necessary to consummate the
transactions contemplated hereby, including the Stockholder Consent executed by the Requisite
Stockholders.



          (c) Aggregate Merger Consideration. At the Closing, Purchaser shall deliver the Merger
Consideration in accordance with Section 2.9(a) via wire transfer in immediately available funds,
and the Escrow Agent shall confirm receipt via wire transfer in immediately available funds of the
Escrow Amount.



          (d) Related Documents. Each of the following agreements (such agreements, together with
this Agreement, the “Related Documents”) shall have been duly executed and delivered by the
parties thereto (other than Threewide): (i) the Certificate of Merger; (ii) the Escrow Agreement;
and (iii) the Option Termination Agreements.



     7.3 Failure to Perform by Threewide. If the conditions to Closing set forth in Section
7.2 shall be met but Threewide refuses to consummate the Merger, then Purchaser shall have the
option to either (a) obtain specific performance of Threewide to consummate the Merger,
upon which Threewide hereby consents to agree to so perform; or (b) recover from Threewide, as
liquidated damages, the sum of $2,000,000, which amount represents a good-faith estimate of the
amount of damages that will likely be sustained by Purchaser as the result of a breach of this
Agreement by Threewide, it being impracticable or extremely difficult to fix the actual damages.



8. TERMINATION AND EQUITYHOLDERS REPRESENTATIVE




     8.1 Events of Termination. This Agreement may be terminated: (i) at any time by mutual
written agreement of the Parties; (ii) in whole and not in part by the Purchaser by written notice
to Threewide if the conditions set forth in Section 7.1 hereof shall not have been complied with or
performed on or prior to September 30, 2010 (or such later date as the Parties may have agreed to
in writing) in any material respect and the Purchaser shall not have materially breached any of its
representations, warranties, covenants or agreements contained herein; (iii) in whole and not in
part by Threewide by written notice from Threewide to the Purchaser if the conditions set forth in
Section 7.2 hereof shall not have been complied with or performed on or prior to September 30, 2010
(or such later date as the Parties may have agreed to in writing) in any material respect and
Threewide shall not have materially breached any of its representations, warranties, covenants or
agreements contained herein; or (iv) by any Party, by written notice to
the other Parties, if a court of competent jurisdiction or other Governmental Entity shall
have



- 28 -









 




issued a final, non-appealable order, decree or ruling, or taken any other action, having the
effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated
by this Agreement.




     8.2 Effect of Termination. In the event that this Agreement shall be terminated pursuant
to Section 8.1, all further obligations of the Parties hereto under this Agreement (other than
pursuant to Sections 7.3(b), 9.1 through 9.14, which shall continue in full force and effect) shall
terminate without further liability or obligation of any Party to any other Party hereunder;
provided, however, that no Party shall be released from liability hereunder if this Agreement is
terminated and the transactions abandoned by reason or failure of such Party to have performed its
obligations hereunder. In addition, in the event of a termination of this Agreement, Purchaser
shall keep confidential any information obtained from Threewide concerning its properties,
operations and business (unless readily ascertainable from public or published information or trade
sources) until the same ceases to be material (or becomes so ascertainable) and, at the request of
Threewide shall return to Threewide all copies of any schedules, statements, documents or other
written information obtained in connection therewith. Without limiting the generality of the
foregoing, the terms of the Mutual Confidentiality and Non-Disclosure Agreement dated January 19,
2010 between Move, Inc. and Threewide Corporation relating to obligations with respect to
confidential information and nonsolicitation are hereby incorporated by reference and,
notwithstanding the termination of this Agreement, such terms shall continue in full force and
effect until the earlier of the Closing and the date that such Mutual Confidentiality and
Non-Disclosure Agreement is terminated pursuant to its terms.



     8.3 Equityholders’ Representative.



          (a) The Equityholders’ Representative is hereby designated to act following the Closing
with respect to any and all issues arising under this Agreement and, to the extent set forth
herein, the Equityholders’ Representative shall take, and is hereby authorized to take, any and all
actions that he believes are necessary or appropriate under this Agreement as permitted above, as
fully as if the Equityholders were acting on their own behalf and with the same force and effect,
including, without limitation, by:




          i. Consenting to, compromising or settling any and all claims arising under
this Agreement;




          ii. Conducting negotiations with the Purchaser and its representatives
regarding such claims;




          iii. Performing all of his obligations under this Agreement;




          iv. Waiving, modifying, amending or supplementing provisions of this
Agreement and the obligations of the Purchaser hereunder;




          v. Taking any and all other actions specified in or contemplated by this
Agreement; and




          vi. Engaging counsel, accountants or other representatives in connection
with the foregoing matters. The Purchaser shall have the right to rely



- 29 -









 






upon all
actions taken or omitted to be taken by either one of the individuals acting as the
Equityholders’ Representative in respect of this Agreement and the transactions
contemplated hereby, all of which actions or omissions shall be legally binding upon
the Equityholders, and the Purchaser shall not be liable for any action taken or not
taken in good faith reliance on a communication or other instruction from the
Equityholders’ Representative.



          (b) Under no circumstances shall the Equityholders’ Representative have any liability to
any Equityholder for any act or omission to act of the Equityholders’ Representative in such
capacity, unless the party asserting such liability is able to prove that the Equityholders’
Representative was guilty of gross negligence or willful misconduct. The Equityholders’
Representative shall be entitled to payment of or reimbursement for any and all costs and expenses
incurred in connection with, arising out of, resulting from or incident to any act or omission to
act of the Equityholders’ Representative in his capacity as such, except to the extent caused by
the gross negligence or willful misconduct of the Equityholders’ Representative. Such costs and
expenses shall be paid solely out of the Expense Holdback as contemplated herein.



          (c) If at any time the Equityholders’ Representative or his successor is unwilling or
unable to serve as the Equityholders’ Representative, a new Equityholders’ Representative shall be
promptly designated. The new Equityholders’ Representative shall be designated by the approval of
Stockholders who collectively held at least a majority of Threewide’s Series C Preferred Stock
outstanding immediately prior to the Closing.



9. GENERAL PROVISIONS




     9.1 No Waivers. None of the Parties shall be deemed to waive any of its rights, powers or
remedies hereunder unless such waiver is in writing and signed by said Party. No delay or omission
by any Party in exercising any of said rights, powers or remedies shall operate as a waiver
thereof, nor shall a waiver signed by any Party of any breach of the covenants, conditions or
agreements binding on the other Parties on one occasion be construed as a waiver or consent to such
breach on any future occasion or a waiver of any other covenant, condition, or agreement herein
contained.



     9.2 Expenses. Purchaser and Merger Sub shall bear their Transaction Expenses, and the
Transaction Expenses of Threewide set forth on Schedule 2.9(e) shall increase the Merger
Consideration as provided in Section 2.3(a)(iii). The Equityholders shall bear the Transaction
Expenses of Threewide exceeding the Expenses Cap in accordance with Section 6.2(d).



     9.3 Publicity. Each Party shall obtain the written consent of the other Parties prior to
any publication, presentation, public announcement or press release concerning the relationship
between the Parties or the existence or terms of this Agreement, except as may otherwise be
required by law. In addition, the Parties agree not to make any disparaging or derogatory
comments regarding the other Parties to any third party.



     9.4 Assignment. No Party may assign any portion of this Agreement, voluntarily or
involuntarily, including without limitation by operation of law, without the prior written consent
of the other Parties. Any attempt to otherwise assign this Agreement shall be null and void.



- 30 -









 




Notwithstanding the foregoing, Purchaser shall be permitted to assign this Agreement, including
without limitation by operation of law, to any Affiliate of Purchaser and any of Purchaser’s or its
Affiliate’s lenders without the prior written consent of any other Party. No Person not a Party
hereto, other than the Equityholders, shall have any interest herein or be deemed a third party
beneficiary hereof, and nothing contained herein shall be construed to create any rights
enforceable by any other Person or third party; provided, however, that Purchaser or its Affiliates
may pledge or collaterally assign this Agreement and its or their rights hereunder to any of
Purchaser’s or its Affiliate’s lenders.




     9.5 Partnership. Nothing herein contained shall be construed as creating a partnership or
joint venture by or between the Parties.



     9.6 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective permitted successors and assigns.



     9.7 Severability. Any provision of this Agreement held or determined by a court (or other
legal authority) of competent jurisdiction to be illegal, invalid, or unenforceable in any
jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective to the
extent of such holding or determination without (i) invalidating the remaining provisions of this
Agreement in that jurisdiction or (ii) affecting the legality, validity or enforceability of such
provision in any other jurisdiction.



     9.8 Captions Headings. Captions and paragraph headings used in this Agreement are for
convenience only and shall not be used to interpret any provision hereof.



     9.9 Entire Agreement. This Agreement, together with the Exhibits and Disclosure
Schedules, which documents are incorporated herein by reference, constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof, and is intended as the
parties’ final expression and complete and exclusive statement of the terms thereof, superseding
all prior or contemporaneous agreements, representations, promises and understandings, whether
written or oral, between the Parties, and may be amended or modified only by an instrument in
writing signed by all Parties.



     9.10 Notices. Any notice required or permitted to be given hereunder shall be (a) in
writing, (b) effective on the first business day following the date of receipt, and (c) delivered
by one of the following means: (i) by personal delivery; (ii) by prepaid, overnight package
delivery or courier service; or (iii) by the United States Postal Service, first class, certified
mail, return receipt requested, postage prepaid. All notices given under this Agreement shall be
addressed:



     in the case of the Equityholders’ Representative, to:


William Rice

1411 Connell Road

Charleston, WV 25314 and



J. Rudy Henley

Mountaineer Capital LLC

107 Capitol Street




- 31 -









 







Suite 300

Charleston, WV 25301



with a copy to:



John C. Rodney, Esq.

Thorp Reed & Armstrong, LLP

One Oxford Centre

301 Grant Street

Pittsburgh, Pennsylvania 15219-1425




     in the case of Threewide, to:


Threewide Corporation

709 Beechurst Avenue, Suite 1B

Morgantown, West Virginia 26505

Attention:       Luke Glass





with a copy to:


John C. Rodney, Esq.

Thorp Reed & Armstrong, LLP

One Oxford Centre

301 Grant Street

Pittsburgh, Pennsylvania 15219-1425




     All notices given under this Agreement shall be addressed, in the case of Purchaser or Merger
Sub, as follows:


Move Sales, Inc.

c/o Move, Inc.

Attn: General Counsel

30700 Russell Ranch Road

Westlake Village, California 91362



or to such other addresses of which the Parties have been advised in writing by any of the
above-described means. Personal delivery to a Party or to any officer, partner, agent, or employee
of such Party at its address herein shall constitute receipt. The following shall also constitute
receipt: (i) a Party’s rejection or other refusal to accept notice, and (ii) the inability to
deliver to a Party because of a changed address of which no notice has been received by the other
Party. Notwithstanding the foregoing, no notice of change of address shall be effective until 10
days after the date of receipt thereof. This Section shall not be construed in any way to affect
or impair any waiver of notice or demand herein provided.




     9.11 Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to any principles of conflicts of law.
With respect to any litigation arising out of or relating to this Agreement, the



- 32 -









 




Parties agree that
it shall be exclusively filed in and heard by the state or federal courts with jurisdiction to hear
such suits located in the State of Delaware, and each Party hereby submits to the exclusive
jurisdiction of such courts.




     9.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which taken together shall constitute one and the same
Agreement. Execution and delivery of this Agreement by exchange of facsimile copies bearing the
facsimile signature of a Party hereto shall constitute a valid and binding execution and delivery
of this Agreement by such Party. Such facsimile copies shall constitute enforceable original
documents.



     9.13 Specific Performance. Without limiting or waiving in any respect any rights or
remedies of Purchaser now or hereinafter existing at law or equity or by statute, Purchaser shall
be entitled to seek specific performance of the obligations to be performed by the other Parties in
accordance with the provisions of this Agreement.



     9.14 Professional Fees. In the event of any litigation involving this Agreement or any of
the ancillary documents, the prevailing Party in such litigation shall be entitled to recover
reasonable attorney fees and costs in addition to any other remedy to which it is entitled.



[SIGNATURES ON FOLLOWING PAGE]





- 33 -












 





          IN WITNESS WHEREOF, each Party has executed or caused its duly authorized officer to
execute this Agreement the day and year first above written.




	 	 	 	 	 
	 	PURCHASER:



Move Sales, Inc.

 	 
	 	By:  	/s/ Errol Samuelson
 	 
	 	 	Name:  	Errol Samuelson 	 
	 	 	Its: Chief Revenue Officer 	 
	 
	 	THREEWIDE:



Threewide Corporation

 	 
	 	By:  	/s/ Luke Glass
 	 
	 	 	Name:  	Luke Glass  	 
	 	 	Its: President 	 
	 
	 	MERGER SUB:



MSI TC Merger Sub, Inc.

 	 
	 	By:  	/s/ Errol Samuelson
 	 
	 	 	Name:  	Errol Samuelson  	 
	 	 	Its: Chief Revenue Officer 	 
	 
	 	EQUITYHOLDERS’ REPRESENTATIVE:

 	 
	 	/s/ William Rice
 	 
	 	William Rice 	 
	 	 	 
	 	                                                  /s/ J. Rudy Henley
 	 
	 	J. Rudy Henley 	 



[Signatures Continue on Following Page]



 









 




The undersigned executes this Agreement for the purpose of guaranteeing the obligations of Move
Sales, Inc. hereunder.




	 	 	 	 	 
	 	Move, Inc.

 	 
	 	By:  	/s/ Errol Samuelson
 	 
	 	 	Name:  	Errol Samuelson 	 
	 	 	Its: Chief Revenue Officer 	 
	 



[Signatures Continue on Following Page]




 











 





The undersigned Requisite Stockholders execute this Agreement for the purpose of agreement to
execute the Stockholder Consent immediately after the execution of this Agreement and to otherwise
vote their shares of the Stock to cause the approval of the transactions contemplated hereby. The
undersigned Requisite Stockholders hereby represent and warrant to Purchaser that as of the date
hereof there are no outstanding voting proxies, voting trusts or voting agreements with respect to
their shares of the Stock and the undersigned agree not to grant any such voting proxy or enter
into any such voting trust or agreement subsequent to the date hereof.




	 	 	 	 	 
	 	Mountaineer Capital, L.P.

 	 
	 	By:  	/s/ Patrick A. Bond
 	 
	 	 	Name:  	Patrick A. Bond 	 
	 	 	Its:     General Partner 	 
	 
	 	Adena Ventures, L.P.

 	 
	 	By:  	/s/ Lynn Gellermann
 	 
	 	 	Name:  	Lynn Gellermann 	 
	 	 	Its:     President 	 
	 
	 	Select Capital Ventures I, L.P.

 	 
	 	By:  	/s/ Rocco A. Ortenzio
 	 
	 	 	Name:  	Rocco A. Ortenzio 	 
	 	 	Its:     Managing Member 	 
	 
	 	West Virginia Jobs Investment Trust Board

 	 
	 	By:  	/s/ C. Andrew Zulauf
 	 
	 	 	Name:  	C. Andrew Zulauf 	 
	 	 	Its:     Ex. Director 	 
	 	 	 
	 	                                              /s/ William Rice
 	 
	 	William Rice 	 
	 	 	 
	 	                                              /s/ William McDavid
 	 
	 	William McDavid 	 



[Signature Page to Agreement and Plan of Merger]





 









 








The undersigned Warrantholders execute this Agreement for the purpose of agreeing to the terms
of this Agreement relating to the Warrants, including the treatment thereof, notwithstanding the
terms and conditions set forth in the Warrants. Each of the undersigned Warrantholders acknowledge
and agree that the Warrants held by each such Warrantholder as of the date of this Agreement are
set forth opposite each such Warrantholders’ name on Exhibit E attached hereto. Each of the
undersigned Warrantholders acknowledges and agrees that, notwithstanding anything to the contrary
set forth in the Warrants, pursuant to the terms and conditions of this Agreement, (a) at the
Closing, the Warrants shall be converted into the right to receive a portion of the Merger
Consideration (less the amount of the Holdbacks) as set forth on Exhibit B hereto, (b) the
Holdbacks will be applied as set forth in Section 2.4(a), and (c) once the Warrants are so
converted, such Warrants shall no longer be outstanding and shall terminate in all respects. Each
of the undersigned Warrantholders covenants not to exercise or transfer or assign any of the
Warrants held by such Warrantholder following the date of this Agreement. Each of the undersigned
Warrantholders hereby waives any right to prior notice of any events contemplated by this
Agreement.




	 	 	 	 	 	 	 	 
	 	 
	Mountaineer Capital, L.P.	 	 	 	 	 
	 	 
	By: 	 /s/ Patrick A. Bond	 	 	/s/ William Rice	 
	 	Name: 	 Patrick A. Bond	 	 	William Rice	 
	 	Its: 	 General Partner	 	 	 	 
	 	 
	Adena Ventures, L.P.	 	 	/s/ William McDavid	 
	 	William McDavid 	 
	By: 	 /s/ Lynn Gellermann	 	 	 	 
	 	Name: 	 Lynn Gellermann	 	 	 	 	 
	
	Its: 	President 	 	 	/s/ Kenneth Kleeman	 
	
	 	 	 	 	Kenneth Kleeman	 
	 	 	 	 	 		 
	Select Capital Ventures I, L.P.	 	 	 	 	 
	 	 	 	 	 	/s/ Charles Smith	 
	By: 	 : /s/ Rocco A. Ortenzio	 	 	Charles Smith	 
	 	Name: 	 : Rocco A. Ortenzio	 	 		 
	 	Its: 	 Managing Member	 	 		 
	 	 
	West Virginia Jobs Investment Trust Board	 	 	 	 	 
	 	 
	By: 	 /s/ C. Andrew Zulauf	 	 	 	 	 
	 	Name: 	 C. Andrew Zulauf	 	 	 	 	 
	 	Its: 	Ex. Director	 	 	 	 	 






[Signature Page to Agreement and Plan of Merger]