exv10w1





Exhibit 10.1





Execution Copy




AGREEMENT AND PLAN OF MERGER




Dated as of August 10, 2008




Among




JDA SOFTWARE GROUP, INC.,




ICEBERG ACQUISITION CORP.




And




I2 TECHNOLOGIES, INC.




 









 






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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I. THE MERGER
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 The Merger
	 	 	1	 
	Section 1.2 Closing
	 	 	1	 
	Section 1.3 Effective Time
	 	 	2	 
	Section 1.4 Effects of the Merger
	 	 	2	 
	Section 1.5 Certificate of Incorporation and Bylaws of the Surviving Corporation
	 	 	2	 
	Section 1.6 Directors of the Surviving Corporation
	 	 	2	 
	Section 1.7 Officers of the Surviving Corporation
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II. EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; EXCHANGE OF CERTIFICATES; COMPANY STOCK OPTIONS
	 	 	2	 
	 
	 	 	 	 
	Section 2.1 Effect on Capital Stock
	 	 	2	 
	Section 2.2 Surrender of Certificates
	 	 	4	 
	Section 2.3 Company Stock Plans
	 	 	6	 
	Section 2.4 Withholding Taxes
	 	 	7	 
	Section 2.5 Adjustments
	 	 	7	 
	 
	 	 	 	 
	ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
	 	 	7	 
	 
	 	 	 	 
	Section 3.1 Organization, Standing and Corporate Power
	 	 	7	 
	Section 3.2 Capitalization
	 	 	9	 
	Section 3.3 Authority; Noncontravention; Voting Requirements
	 	 	10	 
	Section 3.4 Governmental Approvals
	 	 	12	 
	Section 3.5 Company SEC Documents; Undisclosed Liabilities
	 	 	12	 
	Section 3.6 Absence of Certain Changes or Events
	 	 	14	 
	Section 3.7 Legal Proceedings
	 	 	14	 
	Section 3.8 Compliance With Laws; Permits
	 	 	15	 
	Section 3.9 Information in Proxy Statement
	 	 	16	 
	Section 3.10 Tax Matters
	 	 	16	 
	Section 3.11 Employee Benefits and Labor Matters
	 	 	18	 
	Section 3.12 Environmental Matters
	 	 	20	 
	Section 3.13 Contracts
	 	 	22	 
	Section 3.14 Title to Properties
	 	 	25	 
	Section 3.15 Intellectual Property
	 	 	26	 
	Section 3.16 Insurance
	 	 	30	 
	Section 3.17 Opinion of Financial Advisor
	 	 	30	 
	Section 3.18 Brokers and Other Advisors
	 	 	30	 
	Section 3.19 Anti-Takeover Statutes
	 	 	31	 
	Section 3.20 Company Rights Agreement
	 	 	31	 
	Section 3.21 Related Party Transactions
	 	 	31	 






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	 	 	Page
	Section 3.22 Company Convertible Notes
	 	 	31	 
	 
	 	 	 	 
	ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
	 	 	31	 
	 
	 	 	 	 
	Section 4.1 Organization, Standing and Corporate Power
	 	 	31	 
	Section 4.2 Authority; Noncontravention
	 	 	32	 
	Section 4.3 Governmental Approvals
	 	 	32	 
	Section 4.4 Information Supplied
	 	 	33	 
	Section 4.5 Ownership and Operations of Merger Sub
	 	 	33	 
	Section 4.6 Financing
	 	 	33	 
	Section 4.7 Brokers and Other Advisors
	 	 	33	 
	 
	 	 	 	 
	ARTICLE V. COVENANTS AND AGREEMENTS
	 	 	34	 
	 
	 	 	 	 
	Section 5.1 Preparation of the Proxy Statement; Stockholder Meeting
	 	 	34	 
	Section 5.2 Conduct of Business of the Company
	 	 	35	 
	Section 5.3 No Solicitation by the Company; Etc
	 	 	37	 
	Section 5.4 Further Action; Reasonable Best Efforts
	 	 	40	 
	Section 5.5 Public Announcements
	 	 	42	 
	Section 5.6 Access to Information; Confidentiality
	 	 	42	 
	Section 5.7 Notification of Certain Matters
	 	 	43	 
	Section 5.8 Indemnification and Insurance
	 	 	43	 
	Section 5.9 Securityholder Litigation
	 	 	44	 
	Section 5.10 Fees and Expenses
	 	 	44	 
	Section 5.11 Employee Benefits
	 	 	44	 
	Section 5.12 Convertible Notes
	 	 	46	 
	Section 5.13 Warrants
	 	 	47	 
	Section 5.14 Debt Financing
	 	 	47	 
	Section 5.15 Inventions Assignment
	 	 	48	 
	Section 5.16 Product Review
	 	 	48	 
	 
	 	 	 	 
	ARTICLE VI. CONDITIONS PRECEDENT
	 	 	49	 
	 
	 	 	 	 
	Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger
	 	 	49	 
	Section 6.2 Conditions to Obligations of Parent and Merger Sub
	 	 	49	 
	Section 6.3 Conditions to Obligation of the Company
	 	 	50	 
	Section 6.4 Frustration of Closing Conditions
	 	 	51	 
	 
	 	 	 	 
	ARTICLE VII. TERMINATION
	 	 	51	 
	 
	 	 	 	 
	Section 7.1 Termination
	 	 	51	 
	Section 7.2 Effect of Termination
	 	 	53	 
	Section 7.3 Termination Fee
	 	 	53	 
	 
	 	 	 	 
	ARTICLE
VIII. MISCELLANEOUS
	 	 	55	 
	 
	 	 	 	 
	Section 8.1 Nonsurvival of Representations and Warranties
	 	 	55	 
	Section 8.2 Amendment or Supplement
	 	 	55	 
	Section 8.3 Extension of Time, Waiver, Etc
	 	 	56	 






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	 	 	Page
	Section 8.4 Assignment
	 	 	56	 
	Section 8.5 Counterparts; Facsimile; Electronic Transmission
	 	 	56	 
	Section 8.6 Entire Agreement; No Third-Party Beneficiaries
	 	 	56	 
	Section 8.7 Governing Law
	 	 	56	 
	Section 8.8 Specific Enforcement
	 	 	57	 
	Section 8.9 Consent to Jurisdiction
	 	 	57	 
	Section 8.10 Notices
	 	 	57	 
	Section 8.11 Severability
	 	 	58	 
	Section 8.12 Remedies
	 	 	58	 
	Section 8.13 Definitions
	 	 	59	 
	Section 8.14 Waiver of Jury Trial
	 	 	64	 
	Section 8.15 Interpretation
	 	 	64	 
	 
	 	 	 	 
	Exhibit A            Voting Agreements
	 	 	 	 
	 
	 	 	 	 
	Exhibit B            Certificate of Incorporation of the Company
	 	 	 	 
	 
	 	 	 	 
	Schedule A         Signatories to Voting Agreements
	 	 	 	 






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AGREEMENT AND PLAN OF MERGER




     This AGREEMENT AND PLAN OF MERGER, dated as of August 10, 2008 (this “Agreement”), is among
JDA Software Group, Inc., a Delaware corporation (“Parent”), Iceberg Acquisition Corp., a Delaware
corporation and a wholly-owned Subsidiary of Parent (“Merger Sub”), and i2 Technologies, Inc., a
Delaware corporation (the “Company”). Certain terms used in this Agreement are used as defined in
Section 8.13.



     WHEREAS, Parent has approved, and the respective Boards of Directors of the Company and Merger
Sub have adopted, approved and declared advisable, this Agreement and the merger of Merger Sub with
and into the Company (the “Merger”), on the terms and subject to the conditions provided for in
this Agreement;



     WHEREAS, concurrent with the execution of this Agreement and as a condition to and inducement
of Parent’s willingness to enter into this Agreement, executive officers, directors and a
stockholder of the Company set forth on Schedule A are entering into voting
undertakings in substantially the forms attached as Exhibit A (each, a “Voting
Agreement”); and



     WHEREAS, Parent, Merger Sub and the Company desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also to prescribe various
conditions to the Merger.



     NOW, THEREFORE, in consideration of foregoing premises and the representations, warranties,
covenants and agreements contained in this Agreement, and intending to be legally bound hereby,
Parent, Merger Sub and the Company hereby agree as follows:



ARTICLE I.


THE MERGER


     Section 1.1 The Merger. Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the General Corporation Law of the State of Delaware (the
“DGCL”), at the Effective Time Merger Sub shall be merged with and into the Company, and the
separate corporate existence of Merger Sub shall thereupon cease, and the Company shall be the
surviving corporation in the Merger (the “Surviving Corporation”).



     Section 1.2 Closing. The closing of the Merger (the “Closing”) shall take place at 10:00 a.m.
(Central Time) on a date to be specified by the parties, which date shall be no later than the
second business day after satisfaction or waiver of the conditions set forth in Article VI (other
than those conditions that by their nature are to be satisfied at the Closing, but subject to the
satisfaction or waiver of such conditions) (the “Anticipated Closing Date”), unless another time or
date, or both, are agreed to in writing by the parties hereto, provided however, that
notwithstanding the satisfaction or waiver of the conditions set forth in Article VI as of any
date, in the event that Parent determines in its sole discretion that additional time is required
to arrange the Debt Financing and so notifies the Company of such in writing, the parties shall not
be required to effect the Closing until the earliest of (i) any Business Day after the Anticipated
Closing Date as may be specified by Parent on no less than three Business Days’ prior notice to the
Company, (ii) the Outside Date, or (iii) a date no more than sixty (60) days following the



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Anticipated Closing Date, provided further that any such Closing shall be subject to the
satisfaction or waiver of the conditions set forth in Article VI. The date on which the Closing is
held is herein referred to as the “Closing Date”. The Closing will be held at the offices of DLA
Piper US LLP at 1221 South Mopac Expressway, Suite 400, Austin, Texas, unless another place is
agreed to in writing by the parties hereto.




     Section 1.3 Effective Time. Subject to the provisions of this Agreement, as soon as
practicable on the Closing Date the parties shall file a certificate of merger with the Secretary
of State of the State of Delaware, executed in accordance with the relevant provisions of the DGCL
(the “Certificate of Merger”). The Merger shall become effective upon the filing of the
Certificate of Merger or at such later time as is agreed to by the parties hereto and specified in
the Certificate of Merger (the time at which the Merger becomes effective is herein referred to as
the “Effective Time”).



     Section 1.4 Effects of the Merger. The Merger shall have the effects set forth in the DGCL.
Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all
the rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest
in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub
shall become the debts, liabilities and duties of the Surviving Corporation.



     Section 1.5 Certificate of Incorporation and Bylaws of the Surviving Corporation.



          (a) At the Effective Time, the certificate of incorporation of the Company shall be amended to
read in its entirety as set forth on Exhibit B.




          (b) 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 therein or by
applicable Law.




     Section 1.6 Directors of the Surviving Corporation. Parent and the Company shall take all
necessary actions to cause the directors of Merger Sub immediately prior to the Effective Time to
be the directors of the Surviving Corporation immediately following the Effective Time, until the
earlier of their death, resignation or removal or until their respective successors are duly
elected and qualified, as the case may be



     Section 1.7 Officers of the Surviving Corporation. The officers of Merger Sub immediately
prior to the Effective Time shall be the officers of the Surviving Corporation until their
respective successors are duly appointed and qualified or their earlier death, resignation or
removal in accordance with the certificate of incorporation and bylaws of the Surviving
Corporation.



ARTICLE II.




EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT

CORPORATIONS; EXCHANGE OF CERTIFICATES; COMPANY STOCK OPTIONS




     Section 2.1 Effect on Capital Stock. At the Effective Time, by virtue of the Merger and
without any action on the part of the holder of any shares of common stock, par value



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$0.00025 per share, of the Company (“Company Common Stock”), any shares of Series B 2.5%
Convertible Preferred Stock, par value $0.001 per share, of the Company (“Series B Preferred
Stock”) or any shares of capital stock of Merger Sub:




          (a) Capital Stock of Merger Sub. Each issued and outstanding share of capital stock of Merger
Sub shall be converted into and become one validly issued, fully paid and nonassessable share of
common stock, par value $0.01 per share, of the Surviving Corporation.




          (b) Cancellation of Treasury Stock and Parent-Owned Stock. Any shares of Company Common Stock
or Series B Preferred Stock that are owned by the Company as treasury stock, and any shares of
Company Common Stock and Series B Preferred Stock owned by Parent or Merger Sub (in each case,
other than shares held on behalf of third parties), shall be automatically canceled and shall cease
to exist and no consideration shall be delivered in exchange therefor. Each share of Company
Common Stock and Series B Preferred Stock owned by any Subsidiary of the Company shall be
automatically canceled and shall cease to exist and no consideration shall be delivered in exchange
therefore.




          (c) Conversion of Company Common Stock. Each issued and outstanding share of Company Common
Stock (other than Dissenting Shares and shares to be canceled in accordance with Section 2.1(b)),
together with the Company Rights attached thereto or associated therewith, shall be converted into
the right to receive $14.86 in cash, without interest (the “Common Stock Merger Consideration”).
As of the Effective Time, all such shares of Company Common Stock, and associated Company Rights,
shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and
each holder of a certificate which immediately prior to the Effective Time represented any such
shares of Company Common Stock (each, a “Common Stock Certificate”) shall cease to have any rights
with respect to such securities, except the right to receive the Common Stock Merger Consideration
to be paid in consideration therefor upon surrender of such Certificate in accordance with
Section 2.2(b), without interest.




          (d) Conversion of Series B Preferred Stock. Each issued and outstanding share of Series B
Preferred Stock (other than Dissenting Shares and shares to be canceled in accordance with
Section 2.1(b)) shall be converted into the right to receive $1,095.3679 plus all accrued and
unpaid dividends thereon through the Effective Time, in cash, without interest (the “Preferred
Stock Merger Consideration,” and together with the Common Stock Merger Consideration, the “Merger
Consideration”). As of the Effective Time, dividends shall cease to accrue on all such shares of
Series B Preferred Stock, all such shares of Series B Preferred Stock shall no longer be
outstanding and shall automatically be canceled and shall cease to exist, and each holder of a
certificate which immediately prior to the Effective Time represented any such shares of Series B
Preferred Stock (each, a “Series B Preferred Stock Certificate” ) shall cease to have any rights
with respect to such securities, except the right to receive the Preferred Stock Merger
Consideration to be paid in consideration therefor upon surrender of such Certificate in accordance
with Section 2.2(b), without interest.




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     Section 2.2 Surrender of Certificates.



          (a) Paying Agent. Prior to the filing of the Certificate of Merger, Parent shall designate a
bank or trust company to act as agent for payment of the Merger Consideration (the “Paying Agent”)
upon surrender of the Common Stock Certificates and the Preferred Stock Certificates (collectively,
the “Certificates”). Prior to the filing of the Certificate of Merger, Parent shall deposit, or
cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger
Consideration payable pursuant to Sections 2.1(c) and 2.1(d) upon surrender of Certificates.
Parent shall replenish the Payment Fund to the extent of any investment losses incurred through any
investment made pursuant to Section 2.2(g). Such funds provided to the Paying Agent are referred
to herein as the “Payment Fund.”




          (b) Payment Procedures. Promptly (but in any event within five (5) Business Days) after the
Effective Time, the Paying Agent shall mail to each holder of record of a Certificate (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to
the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, and which
shall be in such form and shall have such other provisions as Parent may reasonably specify) and
(ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent, together with
such letter of transmittal, duly completed and validly executed in accordance with the instructions
(and such other customary documents as may reasonably be required by the Paying Agent), the holder
of such Certificate shall be entitled to receive in exchange therefor the amount of cash into which
the shares of Company Common Stock or Series B Preferred Stock formerly represented by such
Certificate shall have been converted pursuant to Sections 2.1(c) or 2.1(d), and the Certificate so
surrendered shall forthwith be canceled. In the event of a transfer of ownership of shares of
Company Common Stock or Series B Preferred Stock that is not registered in the transfer records of
the Company, the proper amount of cash may be paid in exchange therefor to a Person other than the
Person in whose name the Certificate so surrendered is registered if such Certificate shall be
properly endorsed or shall otherwise be in proper form for transfer and the Person requesting such
payment shall pay any transfer and other Taxes required by reason of the payment to a Person other
than the registered holder of such Certificate or establish to the satisfaction of the Surviving
Corporation that such Tax either has been paid or is not applicable. Until surrendered as
contemplated by this Section 2.2(b), each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender the Merger Consideration.
No interest will be paid or will accrue on the cash payable upon surrender of any Certificate.




          (c) Transfer Books; No Further Ownership Rights in Company Stock. All cash paid upon the
surrender of Certificates in accordance with the terms of this Article II shall be deemed to have
been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock or
Series B Preferred Stock previously represented by such Certificates. At the close of business on
the day on which the Effective Time occurs, the stock transfer books of the Company shall be closed
and there shall be no further registration of transfers on the stock transfer books of the
Surviving Corporation of the shares of Company Common Stock or Series B Preferred Stock that were
outstanding immediately prior to the Effective Time. Subject to Section 2.2(e), if, at any time
after the Effective Time, Certificates are presented to the Surviving




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Corporation or the Paying Agent for any reason, they shall be canceled and exchanged as
provided in this Article II.




          (d) Lost, Stolen or Destroyed Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate
to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond,
in such reasonable amount as Parent may direct, as indemnity against any claim that may be made
against it with respect to such Certificate, the Paying Agent will pay the Merger Consideration to
such Person in exchange for such lost, stolen or destroyed Certificate.




          (e) Termination of Fund. Any portion of the Payment Fund (including the proceeds of any
investments thereof) that remains undistributed to the holders of the Certificates for 270 days
after the Effective Time shall be delivered by the Paying Agent to the Surviving Corporation upon
demand. Any holders of Certificates who have not theretofore complied with this Article II shall
thereafter look only to the Surviving Corporation for payment of the Merger Consideration.




          (f) No Liability. Notwithstanding any provision of this Agreement to the contrary, none of
Parent, the Surviving Corporation or the Paying Agent shall be liable to any Person for any amount
properly paid from the Payment Fund or delivered to a public official pursuant to any applicable
abandoned property, escheat or similar Law.




          (g) Investment of Payment Fund. The Paying Agent shall invest the Payment Fund in U.S.
government or other investment grade securities, in each case, maturing in not more than one year,
or other investments of comparable liquidity and credit-worthiness as directed by Parent. Any
interest and other income resulting from such investment shall be the property of, and shall be
paid promptly to, Parent.




          (h) Dissenting Shares. Notwithstanding Section 2.1, any shares of Company Common Stock or, in
the event appraisal rights are available under the DGCL, Series B Preferred Stock that are issued
and outstanding immediately prior to the Effective Time and held by any holder who has not voted in
favor of the Merger or consented thereto in writing and who has properly demanded appraisal for
such shares pursuant to, and has complied in all respects with, the provisions of Section 262 of
the DGCL (the “Dissenting Shares”) shall not be converted into the right to receive the Merger
Consideration, unless such holder fails to perfect or withdraws or otherwise loses its rights to
appraisal or it is determined that such holder does not have appraisal rights in accordance with
the DGCL. If, after the Effective Time, such holder fails to perfect or withdraws or loses its
right to appraisal, or if it is determined that such holder does not have appraisal rights, such
shares (and, in the case of Company Common Stock, associated Company Rights) shall be treated as if
they had been converted as of the Effective Time into the right to receive the Merger Consideration
without interest thereon. The Company shall give Parent prompt notice of any demands received by
the Company for appraisal of shares, and Parent shall have the right to participate in all
negotiations and proceedings with respect to such demands except as required by applicable Law.
The Company shall not, except with the prior written consent of Parent, make any payment with
respect to, or settle or offer to settle, any such demands, unless and to the extent required to do
so under applicable Law.




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     Section 2.3 Company Stock Plans.



          (a) At the Effective Time, by virtue of the Merger and without any action on the part of the
holder of any Company Option, each Company Option outstanding immediately prior to the Effective
Time (whether or not then vested and exercisable) shall be canceled and terminated and (except to
the extent Section 3.2(a) of the Company Disclosure Schedule specifies that no payment will be made
with respect to a particular Option) converted into the right to receive a cash amount equal to the
Option Consideration for each share of Company Common Stock then subject to the Company Option.
Prior to the Effective Time, the Company shall make any amendments to the terms of the Company
Stock Plans and give any notices required under the Company Stock Plans and obtain all consents
that, in each case, are necessary to give effect to the transactions contemplated by this
Section 2.3 and, notwithstanding anything to the contrary, payment may be withheld in respect of
any Option until any necessary consents are obtained. Without limiting the foregoing, the Company
shall take all actions necessary to ensure that the Company will not at the Effective Time be bound
by any Options, stock appreciation rights, or other agreements which would entitle any Person,
other than Parent and its Subsidiaries, to own any capital stock of the Surviving Corporation or to
receive any payment in respect thereof (other than the payment of Option Consideration pursuant to
this Section 2.3). Prior to the Effective Time, the Company shall take all actions necessary to
terminate all its Company Stock Plans, such termination to be effective at or before the Effective
Time. For purposes of this Agreement, “Option Consideration” means, with respect to any share of
Company Common Stock issuable under a particular Option, an amount equal to the excess, if any, of
(i) the Common Stock Merger Consideration per share of Company Common Stock over (ii) the exercise
price payable in respect of such share of Company Common Stock issuable under such Option. For
purposes of clarity, any Company Option with a per-share exercise price that is greater than or
equal to the per-share Common Stock Merger Consideration shall be canceled and terminated as of the
Effective Time, and no payment shall be made with respect thereto or in respect thereof.




          (b) Prior to the Effective Time, the Company shall take all actions necessary to cause the
outstanding shares of restricted stock held under restricted stock agreements to vest in accordance
with the terms of such agreements.




          (c) At the Effective Time, by virtue of the Merger and without any action on the part of the
holder of any RSU, each RSU outstanding immediately prior to the Effective Time shall be converted
into the right to receive a cash amount equal to the RSU Consideration for each share of Company
Common Stock then subject to the RSU. Prior to the Effective Time, the Company shall take all
actions necessary, including without limitation obtaining all necessary consents, to provide that
each RSU outstanding immediately prior to the Effective Time (whether or not then vested) shall be
cancelled and terminated and converted at the Effective Time into the right to receive a cash
amount equal to the RSU Consideration for each share of Company Common Stock then subject to the
RSU, free of any restriction or risk of forfeiture. Except as otherwise provided below, the RSU
Consideration shall be paid as soon after the Closing Date as shall be practicable. Prior to the
Effective Time, the Company shall make any amendments to the terms of the Company Stock Plans, and
obtain any consents from holders of RSUs that, in each case, are necessary to give effect to the
transactions contemplated by this Section 2.3 and, notwithstanding anything to the contrary,
payment may be withheld in




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respect of any RSU until any necessary consents are obtained. For purposes of this Agreement,
“RSU Consideration” means, with respect to any share of Company Common Stock issuable under a
particular RSU, an amount equal to the Common Stock Merger Consideration per share of Company
Common Stock.




          (d) The Company shall take such steps as may be reasonably requested by any party hereto to
cause dispositions of Company equity securities (including derivative securities) pursuant to the
Transactions by each individual who is a director or officer of the Company to be exempt under
Rule 16b-3 promulgated under the Exchange Act in accordance with that certain No-Action Letter
dated January 12, 1999 issued by the Securities and Exchange Commission (the “SEC”) regarding such
matters.




     Section 2.4 Withholding Taxes. Parent, the Surviving Corporation and the Paying Agent shall
be entitled to deduct and withhold from the consideration otherwise payable pursuant to this
Agreement such amounts as shall be required to be deducted or withheld with respect to the making
of such payment under the Code, or under any provision of state, local or foreign tax law. To the
extent that amounts are so deducted and withheld, such amounts shall be treated for all purposes
under this Agreement as having been paid to the Person in respect of which such deduction and
withholding was made.



     Section 2.5 Adjustments. If during the period between the date of this Agreement and the
Effective Time, any change in the outstanding shares of Company Common Stock, or securities
convertible or exchangeable into or exercisable for shares of Company Common Stock, or Series B
Preferred Stock shall occur by reason of any reclassification, recapitalization, stock split or
combination, exchange or readjustment of shares of Company Common Stock, or any similar
transaction, or any stock dividend thereon with a record date during such period, the Merger
Consideration shall be appropriately adjusted to reflect such change.



ARTICLE III.




REPRESENTATIONS AND WARRANTIES OF THE COMPANY




     Except as set forth in the letter (each section of which qualifies the correspondingly
numbered representation and warranty to the extent expressly specified therein and such other
representations and warranties to the extent a matter in such section of the disclosure schedule is
disclosed in such a way as to make its relevance to the information called for by such other
representation and warranty readily apparent) dated as of the date hereof and addressed to Parent
from the Company and delivered to Parent simultaneously with the execution of this Agreement (the
“Company Disclosure Schedule”), the Company represents and warrants to Parent and Merger Sub that:



     Section 3.1 Organization, Standing and Corporate Power.



          (a) The Company is a corporation duly organized, validly existing and in good standing under
the Laws of the State of Delaware and has all requisite corporate power and authority necessary to
own or lease all of its properties and assets and to carry on its business as it is now being
conducted and as currently proposed by its management to be conducted. Each




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of the Subsidiaries is duly organized, validly existing and, to the extent applicable in such
jurisdiction, in good standing under the Laws of the jurisdiction in which it is incorporated or
otherwise organized and has all requisite corporate power and authority necessary to own or lease
all of its properties and assets and to carry on its business as it is now being conducted and as
currently proposed by its management to be conducted. Each of the Company and its Subsidiaries is
duly licensed or qualified to do business and, to the extent applicable in such jurisdiction, is in
good standing in each jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed, qualified or in good standing,
individually or in the aggregate, has not had and would not reasonably be expected to have a
Company Material Adverse Effect. For purposes of this Agreement, the term “Company Material
Adverse Effect” means any change, event, occurrence or state of facts that (A) has a material
adverse effect on the business, properties, assets, liabilities, results of operations or financial
condition of the Company and its Subsidiaries taken as a whole or (B) prevents, or materially
hinders the Company from consummating the Merger or any of the other transactions contemplated by
this Agreement; provided, however, that none of the following shall be deemed either alone or in
combination to constitute, and none of the following shall be taken into account in determining
whether there has been, or could reasonably be expected to be, a Company Material Adverse Effect:
(1) any change, event, occurrence or state of facts relating to the global, U.S. or regional
economy, financial markets, political conditions in general, or the industry in which the Company
operates, including such changes thereto as are caused by terrorist activities, entry into or
material worsening of war or armed hostilities, or other national or international calamity, except
to the extent such changes or developments have a disproportionate impact on the Company and its
Subsidiaries, taken as a whole, relative to other industry participants; (2) any change, event,
occurrence or state of facts that directly arises out of or results from the announcement or
pendency of this Agreement or any of the Transactions, including shareholder litigation or
disruption or loss of customer business or supplier or employee relationships that is directly
related to or directly arises out of or results from the announcement or pendency of this Agreement
or any of the Transactions; (3) any changes or effects directly arising out of or resulting from
actions taken or the failure to take actions by the Company or its Subsidiaries with Parent’s
express written consent or in accordance with express written instructions of Parent or as
otherwise expressly required to be taken by the Company or its Subsidiaries pursuant to the terms
of this Agreement;  (4) in and of itself, any change in the Company’s stock price or trading volume
or any failure to meet internal projections or forecasts or published revenue or earnings
projections of industry analysts (provided that this clause (4) shall not be construed as providing
that the change, event, occurrence or state of facts giving rise to such change or failure does not
constitute or contribute to a Company Material Adverse Effect); (5) any stockholder class action
litigation arising from allegations of breach of fiduciary duty relating to the Agreement; and (6)
any change, event, occurrence or state of facts arising out of any change in GAAP or applicable
accounting requirements or principles which occur or become effective after the date of this
Agreement.




          (b) Section 3.1(b) of the Company Disclosure Schedule lists all Subsidiaries of the Company
together with the jurisdiction of organization of each such Subsidiary. All of the outstanding
shares of capital stock of, or other equity interests in, each Subsidiary of the Company have been
duly authorized and validly issued and are fully paid, nonassessable and were not issued in
violation of any preemptive rights, purchase option, call or right of first




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refusal or similar rights. All of the outstanding shares of capital stock of, or other equity
interests in, each Subsidiary of the Company are owned directly or indirectly by the Company and
are free and clear of all liens, pledges, charges, mortgages, encumbrances, adverse rights or
claims and security interests of any kind or nature whatsoever (including any restriction on the
right to vote or transfer the same, except for such transfer restrictions of general applicability
as may be provided under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the “Securities Act”), and the “blue sky” laws of the various States of the
United States or any foreign equivalent of any thereof) (collectively, “Liens”). The Company does
not own, directly or indirectly, any capital stock, voting securities or equity securities or
similar interests, or any interest convertible for an equity security or similar interest, in any
Person that is not a Subsidiary of the Company.




          (c) The Company has made available to Parent complete and correct copies of its certificate of
incorporation and bylaws (the “Company Charter Documents”), in each case as amended to the date of
this Agreement, and all such Company Charter Documents and the articles of incorporation and bylaws
(or comparable organizational documents) of each of the Company’s Subsidiaries (the “Subsidiary
Documents”). The Company Charter Documents and the Subsidiary Documents are in full force and
effect and neither the Company nor any of its Subsidiaries is in violation of any of their
respective provisions. The Company has made available to Parent and its representatives correct
and complete copies of the minutes (or, in the case of minutes that have not yet been finalized,
drafts thereof) of all meetings of stockholders, the Board of Directors and each committee of the
Board of Directors of the Company and each of its Significant Subsidiaries held since January 1,
2005.




     Section 3.2 Capitalization.



          (a) The authorized capital stock of the Company consists of (i) 5,000,000 shares of preferred
stock, par value $.0001 per share, of the Company (“Company Preferred Stock”), of which (A)
2,000,000 shares have been designated as Series A junior participating preferred stock (“Series A
Preferred Stock”), and (B) 150,000 have been designated as Series B Preferred Stock and
(ii) 2,000,000,000 shares of Company Common Stock. At the close of business on August 7, 2008 (the
“Measurement Date”), (i) 107,943 shares of Series B Preferred Stock were issued and outstanding (no
other shares of Company Preferred Stock being outstanding), (ii) 21,568,485 shares of Company
Common Stock were issued and outstanding (no shares of Company Common Stock were held by the
Company in its treasury), (iii) 2,000,000 shares of Series A Preferred Stock were reserved for
issuance upon exercise of the rights to purchase such shares (the “Company Rights”) issued pursuant
to the Rights Agreement dated as of January 17, 2002, between the Company and Mellon Investor
Services, LLC (the “Company Rights Agreement”), (iv) 13,707,342 shares of Company Common Stock were
reserved for issuance under the Company Stock Plans (of which 4,262,622 shares of Company Common
Stock were subject to outstanding Options and 800,612 shares of Company Common Stock were subject
to outstanding RSUs granted under the Company Stock Plans), (v) 484,889 shares of Company Common
Stock were reserved for issuance under outstanding warrants to purchase Company Common Stock issued
under the Purchase Agreement dated as of November 21, 2005 (the “Warrants”), (vi) 4,436,501 shares
of Company Common Stock were reserved for issuance upon conversion of the Series B Preferred Stock
and (vi) 5,576,208 shares of Company Common Stock were reserved for issuance upon conversion of the
Company’s 5% Senior




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Convertible Notes (the “Convertible Notes”). Of the issued and outstanding shares of Company
Common Stock, 70,113 shares were, as of the Measurement Date, restricted stock granted under the
restricted stock agreements listed on Section 3.2(a) of the Company Disclosure Schedule. All
outstanding shares of Company Common Stock have been duly authorized and validly issued and are
fully paid, nonassessable and free of preemptive rights. Section 3.2(a) of the Company Disclosure
Schedule contains a true and accurate description of the determination of the Preferred Stock
Merger Consideration set forth in Section 2.1(d). No Company Common Stock or Series B Preferred
Stock is held by any of the Subsidiaries of the Company. Included in Section 3.2(a) of the Company
Disclosure Schedule is a correct and complete list, as of the Measurement Date, of (a) all Options
granted under the Company Stock Plans or otherwise, and, for each such Option, (1) the number of
shares of Company Common Stock subject thereto and (2) the exercise price thereof, (b) all RSUs
granted under the Company Stock Plans or otherwise, and, for each such RSU, the number of shares of
Company Common Stock subject thereto and (c) all Warrants and, for each such Warrant, (1) the
number of shares of Company Common Stock subject thereto and (2) the exercise price thereof. All
Options, RSUs and restricted stock awards have been issued pursuant to the standard forms of award
agreements made available to Parent. Since the Measurement Date, the Company has not issued any
shares of its capital stock, voting securities or equity interests, or any securities convertible
into or exchangeable or exercisable for any shares of its capital stock, voting securities or
equity interests, other than (x) pursuant to the exercise of outstanding Options, (y) upon vesting
of RSUs or restricted stock referred to above in this Section 3.2(a), or (z) dividends on the
shares of Series B Preferred Stock paid in shares of Series B Preferred Stock as contemplated in
Section 5.2(a)(iii). Except (A) as set forth above in this Section 3.2(a) or (B) as otherwise
expressly permitted by Section 5.2 hereof, as of the date of this Agreement there are not, and as
of the Effective Time there will not be, any shares of capital stock, voting securities or equity
interests of the Company issued and outstanding or any subscriptions, options, warrants, calls,
convertible or exchangeable securities, rights, commitments or agreements of any character
providing for the issuance of any shares of capital stock, voting securities or equity interests of
the Company, including any representing the right to purchase or otherwise receive any Company
Common Stock.




          (b) Except as referred to in Section 3.2(a), (i) none of the Company or any of its
Subsidiaries has issued or is bound by any outstanding subscriptions, options, warrants, calls,
convertible or exchangeable securities, rights, commitments or agreements of any character
providing for the issuance or disposition of any shares of capital stock, voting securities or
equity interests of any Subsidiary of the Company and (ii) there are no outstanding obligations,
commitments or arrangements, contingent or otherwise, of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock, voting securities or equity
interests (or any options, warrants or other rights to acquire any shares of capital stock, voting
securities or equity interests) of the Company or any of its Subsidiaries or to provide funds to
the Company or any Subsidiary of the Company or to make any investment (in the form of a loan,
capital contribution or otherwise).




     Section 3.3 Authority; Noncontravention; Voting Requirements.



          (a) The Company has all necessary corporate power and authority to execute and deliver this
Agreement and, subject to obtaining the Company Stockholder Approval, to perform its obligations
hereunder and to consummate the Transactions. The execution, delivery




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and performance by the Company of this Agreement, and the consummation by it of the
Transactions, have been duly authorized and approved by its Board of Directors, and except for
obtaining the Company Stockholder Approval, no other corporate action on the part of the Company is
necessary to authorize the execution, delivery and performance by the Company of this Agreement and
the consummation by it of the Transactions. This Agreement has been duly executed and delivered by
the Company and, assuming due authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except that such enforceability (i) may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of
general application affecting or relating to the enforcement of creditors’ rights generally and
(ii) is subject to general principles of equity, whether considered in a proceeding at law or in
equity (collectively, the “Bankruptcy and Equity Exception”).




          (b) The Company’s Board of Directors, at a meeting duly called and held, has (i) approved this
Agreement and adopted, approved and declared advisable the Transactions, including this Agreement
and the Merger, and (ii) resolved to recommend that stockholders of the Company adopt this
Agreement (the “Company Board Recommendation”) and directed that such matter be submitted for
consideration of the stockholders of the Company at the Company Stockholders Meeting.




          (c) Except as set forth on Schedule 3.3(c) of the Company Disclosure Schedule, neither the
execution and delivery of this Agreement by the Company nor the consummation by the Company of the
Transactions, nor compliance by the Company with any of the terms or provisions hereof, will
(i) conflict with or violate any provision of the Company Charter Documents or any of the
Subsidiary Documents, (ii) assuming that the authorizations, consents and approvals referred to in
Section 3.4 and the Company Stockholder Approval are obtained and the filings referred to in
Section 3.4 are made, violate any Law, judgment, writ or injunction of any Governmental Authority
applicable to the Company or any of its Subsidiaries or any of their respective properties or
assets, (iii) require any consent, approval or other authorization of, or filing with or
notification to any person under, materially violate or conflict with, result in the loss of any
material benefit under, constitute a material default (or an event which, with notice or lapse of
time, or both, would constitute a material default) under, result in the termination or revocation
of or a right of termination or cancellation under, or accelerate the performance required by, the
Company or any of its Subsidiaries under, any of the terms, conditions or provisions of any loan or
credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, license, lease,
contract or other agreement, instrument or obligation (each, a “Contract”) to which the Company or
any of its Subsidiaries is a party, or by which they or any of their respective properties or
assets may be bound or affected that is a Material Contract or any Permit, or (iv) result in the
creation of any Lien upon any of the respective properties or assets of the Company or any of its
Subsidiaries under, any Contract to which the Company or any of its Subsidiaries is a party, or by
which they or any of their respective properties or assets may be bound or affected or any Permit.




          (d) The affirmative vote (in person or by proxy) of the holders of a majority of the
outstanding shares of Company Common Stock and the Series B Preferred Stock (voting on an
as-converted basis), voting together as a single class, at the Company Stockholders Meeting




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or any adjournment or postponement thereof in favor of the adoption of this Agreement (the
“Company Stockholder Approval”) is the only vote or approval of the holders of any class or series
of capital stock of the Company or any of its Subsidiaries which is necessary to adopt this
Agreement and approve the Transactions.




          (e) There are no voting trusts, proxies or similar agreements, arrangements or commitments to
which the Company or any of its Subsidiaries is a party or of which the Company has Knowledge with
respect to the voting of any shares of capital stock of the Company or any of its Subsidiaries,
except for the Voting Agreements. There are no bonds, debentures, notes or other instruments of
indebtedness of the Company or any of its Subsidiaries that have the right to vote, or that are
convertible or exchangeable into or exercisable for securities or other rights having the right to
vote, on any matters on which stockholders of the Company may vote.




     Section 3.4 Governmental Approvals. Except for (i) the filing with the SEC of a proxy
statement relating to the Company Stockholders Meeting (as amended or supplemented from time to
time, the “Proxy Statement”), and other filings required under, and compliance with other
applicable requirements of, the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the “Exchange Act”), and the rules of the NASDAQ Stock Market,
(ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware
pursuant to the DGCL, (iii) filings required under, and compliance with other applicable
requirements of, the HSR Act and (iv) filings required under, and compliance with other applicable
requirements of, non-U.S. Laws intended to prohibit, restrict or regulate actions or transactions
having the purpose or effect of monopolization, restraint of trade, harm to competition or
effectuating foreign investment (collectively, “Foreign Antitrust Laws”), no consents or approvals
of, or filings, declarations or registrations with, any Governmental Authority are necessary for
the execution, delivery and performance of this Agreement by the Company and the consummation by
the Company of the Transactions, other than such other consents, approvals, filings, declarations
or registrations that, if not obtained, made or given, would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.



     Section 3.5 Company SEC Documents; Undisclosed Liabilities.



          (a) The Company has filed and furnished all required reports, schedules, forms, prospectuses,
and registration, proxy and other statements with the SEC since January 1, 2005 (collectively, and
in each case including all exhibits, schedules and amendments thereto and documents incorporated by
reference therein, the “Company SEC Documents”). None of the Company’s Subsidiaries is required to
file periodic reports with the SEC pursuant to the Exchange Act. Except to the extent that
information contained in any Company SEC Document has been revised or superseded by a later-filed
Company SEC Document (provided, in the case of Company SEC Documents filed prior to the date of
this Agreement, the later-filed Company SEC Document was filed or furnished and made publicly
available prior to the date of this Agreement) (i) as of their respective effective dates (in the
case of Company SEC Documents that are registration statements filed pursuant to the requirements
of the Securities Act), (ii) as of their respective SEC filing dates (in the case of all other
Company SEC Documents), the Company SEC Documents complied in all material respects with the
requirements of the




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Exchange Act and the Securities Act, as the case may be, applicable to such Company SEC
Documents, and (iii) none of the Company SEC Documents as of such respective dates contained any
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. To the Knowledge of the Company, no investigation by the SEC
with respect to the Company or any of its Subsidiaries is pending or threatened.




          (b) Except to the extent that financial statements contained in any Company SEC Document has
been revised or superseded by a later-filed Company SEC Document (provided, in the case of Company
SEC Documents filed prior to the date of this Agreement, the later-filed Company SEC Document was
filed or furnished and made publicly available prior to the date of this Agreement), at the time
they were filed with the SEC, the consolidated financial statements of the Company included in the
Company SEC Documents complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect thereto as then in
effect, had been prepared in accordance with GAAP (except, in the case of unaudited quarterly
statements, as indicated in the notes thereto) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly presented (including within
the meaning of the Sarbanes-Oxley Act of 2002) the consolidated financial position of the Company
and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case of unaudited quarterly
statements, to normal adjustments, none of which has been or will be, individually or in the
aggregate, material to the Company and its Subsidiaries, taken as a whole).




          (c) The Company has established and maintains (i) disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) and Rule 15d-15(e) under the Exchange Act) that are reasonably
designed to ensure that all information (both financial and non-financial) required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the rules and forms of the
SEC, and that all such information is accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required disclosure and to make the certifications
of the chief executive officer and chief financial officer of the Company required under the
Exchange Act with respect to such reports and (ii) internal controls over financial reporting (as
such term is defined in Rule 13a-15(f) and Rule 15d-15(f) under the Exchange Act) that are
reasonably designed to provide assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with GAAP. The principal
executive officer and the principal financial officer of the Company have timely made all
certifications required by the Sarbanes-Oxley Act of 2002 and any rules and regulations promulgated
by the SEC thereunder (the “SOX”). All of the statements contained in such certifications were
complete and correct as of the dates thereof. As of the date of the Company’s most recent Annual
Report on Form 10-K, the Company’s principal executive officer and its principal financial officer
have disclosed, based on their evaluation at that time of internal control over financial
reporting, to the Company’s auditors and the audit committee of the Board of Directors of the
Company (x) all significant deficiencies and material weaknesses (as such terms are defined in
PCAOB Auditing Standard No. 2) in the design or operation of internal control over financial
reporting which are




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reasonably likely to adversely affect the Company’s ability to record, process, summarize and
report financial data and (y) any fraud, whether or not material, that involves management or other
employees who have a significant role in the Company’s internal control over financial reporting.
Except as disclosed on Section 3.5(c) of the Company Disclosure Schedule, the Company has not
identified any significant deficiencies or material weaknesses in internal controls. The Company
is not aware of any facts or circumstances that would prevent its chief executive officer and chief
financial officer from giving the certifications and attestations required pursuant to the rules
and regulations adopted pursuant to Section 404 of SOX, without qualification, when next due.




          (d) Neither the Company nor any of its Subsidiaries has any liabilities or obligations of any
nature (whether accrued, absolute, contingent or otherwise, and whether known or unknown) required,
if known, to be reflected or reserved against on a consolidated balance sheet of the Company
prepared in accordance with GAAP or the notes thereto, except liabilities (i) as and to the extent
set forth on the audited balance sheet of the Company and its Subsidiaries as of March 31, 2008
(the “Balance Sheet Date”) included in the Company’s Quarterly Report on Form 10-Q for the quarter
ended as of such date (including the notes thereto) or as otherwise set forth in the consolidated
financial statements of the Company included in the Company SEC Documents filed by the Company and
publicly available prior to the date of this Agreement (the “Filed Company SEC Documents”),
(ii) incurred after the Balance Sheet Date in the ordinary course of business consistent with past
practice, (iii) incurred after the Balance Sheet Date in the ordinary course of business pursuant
to the Contracts disclosed on the Company Disclosure Schedule, (iv)  incurred after the date of
this Agreement and permitted under Section 5.2 or (v) with respect to Taxes, which are the subject
of Section 3.10.




     Section 3.6 Absence of Certain Changes or Events. Between the Balance Sheet Date and the date
of this Agreement, there have not been any events, changes, occurrences or state of facts that,
individually or in the aggregate, have had or would reasonably be expected to have a Company
Material Adverse Effect. Between the Balance Sheet Date and the date of this Agreement, (a) the
Company and its Subsidiaries have carried on and operated their respective businesses in all
material respects in the ordinary course of business consistent with past practice and (b) neither
the Company nor any of its Subsidiaries has taken any action described in Section 5.2 hereof that
if taken after the date of this Agreement and prior to the Effective Time without the prior written
consent of Parent would violate such provision. Without limiting the foregoing, between the
Balance Sheet Date and the date of this Agreement there has not occurred any damage, destruction or
loss (whether or not covered by insurance) of any material asset of the Company or any of its
Subsidiaries which materially affects the use thereof.



     Section 3.7 Legal Proceedings. Except with respect to Taxes, which are the subject of
Section 3.10, as of the date of this Agreement, there is no pending or, to the Knowledge of the
Company, threatened, material legal, administrative, arbitral or other proceeding, claim, suit or
action against the Company or any of its Subsidiaries, or, to the Knowledge of the Company,
Governmental Investigation, nor is there any injunction, order, judgment, ruling or decree imposed
(or, to the Knowledge of the Company, threatened to be imposed) upon the Company, any of its
Subsidiaries or the assets of the Company or any of its Subsidiaries, by or before any Governmental
Authority that as of the date of this Agreement, (a) has had or is reasonably likely



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to result in the payment of money in an amount in excess of $100,000 individually or $250,000
in the aggregate (b) has had or would reasonably be expected to have a Company Material Adverse
Effect, nor is there any judgment outstanding against the Company or any of its Subsidiaries that,
as of the date hereof, (y) is reasonably likely to result in the payment of money in excess of
$100,000 individually or $250,000 in the aggregate or (z) would reasonably be expected to have a
Company Material Adverse Effect.




     Section 3.8 Compliance With Laws; Permits.



          (a) Except with respect to Taxes, ERISA and Environmental Laws, which are the subjects of
Sections 3.10, 3.11 and 3.12, respectively, the Company and its Subsidiaries are in compliance in
all material respects with all laws (including common law), statutes, rules, codes, executive
orders, ordinances, regulations, requirements, administrative rulings or judgments of any
Governmental Authority or any order, writ, injunction or decree, whether preliminary or final,
entered by any court, arbitrator or other Governmental Authority (collectively, “Laws”) applicable
to the Company or any of its Subsidiaries or any of their properties or other assets or any of
their businesses or operations, except for failures to be in compliance that would not reasonably
be expected to have a Company Material Adverse Effect. Since January 1, 2007, neither the Company
nor any of its Subsidiaries has received written notice to the effect that a Governmental Authority
claimed or alleged that the Company or any of its Subsidiaries was not in compliance in a material
respect with any Law applicable to the Company and any of its Subsidiaries, any of their material
properties or other assets or any of their business or operations. To the Knowledge of the
Company, neither the Company nor any of its Subsidiaries, nor any officer, director or employee of
the Company or any such Subsidiary, is under investigation by any Governmental Authority related to
the conduct of the Company’s or any such Subsidiary’s business, the results of which investigation
would or would reasonably be expected to result in a Company Material Adverse Effect.




          (b) The Company and each of its Subsidiaries hold all material licenses, franchises, permits,
certificates, approvals and authorizations from Governmental Authorities, or required by
Governmental Authorities to be obtained, in each case necessary for the conduct of their respective
businesses, including the manufacture, license and sale of their respective products and services
(collectively, “Permits”). The Company and its Subsidiaries are in compliance in all material
respects with the terms of all Permits, and all such Permits are in full force and effect, except
where such suspension or cancellation would not be reasonably expected to constitute a Company
Material Adverse Effect.




          (c) No event or condition has occurred or exists which would result in a violation of, breach,
default or loss of a benefit under, or acceleration of an obligation of the Company or any of its
Subsidiaries under, any Permit (in each case, with or without notice or lapse of time or both),
except for violations, breaches, defaults, losses or accelerations that would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No such
suspension, cancellation, violation, breach, default, loss of a benefit, or acceleration of an
obligation will result from the Transactions, except for violations, breaches, defaults, losses or
accelerations that would not be reasonably be expected to result in a Company Material Adverse
Effect.




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     Section 3.9 Information in Proxy Statement. The Proxy Statement and any other document filed
with the SEC by the Company in connection with the Merger (or any amendment thereof or supplement
thereto), at the date first mailed to the stockholders of the Company and at the time of the
Company Stockholders Meeting, as the case may be, will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they are made, not
misleading; provided, however, that no representation is made by the Company with respect to
statements made therein based on information supplied in writing by Parent or Merger Sub relating
to Parent or Merger Sub and specifically for inclusion in such documents. The Proxy Statement and
such other documents filed with the SEC by the Company in connection with the Merger will comply in
all material respects with the provisions of the Exchange Act.



     Section 3.10 Tax Matters.



          (a) Each of the Company and its Subsidiaries has timely filed, or has caused to be timely
filed on its behalf (taking into account an extension of time within which to file), all Tax
Returns required to be filed by it, and all such Tax Returns are correct and complete in all
material respects, except in each case where such failures to so prepare or file Tax Returns, or
the failure of such filed Tax Returns to be complete and accurate, individually or in the
aggregate, would not reasonably be expected to have a Company Material Adverse Effect. All Taxes
of the Company and its Subsidiaries due and owing have been timely paid (whether or not shown to be
due on such Tax Returns), except (i) with respect to matters contested in good faith by appropriate
proceedings and for which reserves have been established in accordance with GAAP and (ii) where
such failure to so pay or remit, individually or in the aggregate, would not reasonably be expected
to have a Company Material Adverse Effect.




          (b) The most recent financial statements contained in the Filed Company SEC Documents reflect
reserves in accordance with GAAP for all Taxes payable by the Company and its Subsidiaries for all
taxable periods and portions thereof through the date of such financial statements.




          (c) Neither the Company nor any of its Subsidiaries has constituted either a “distributing
corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code)
in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code
since the effective date of Section 355(e) of the Code.




          (d) As of the date of this Agreement, no audit or other administrative or court proceedings
are pending or, to the Knowledge of the Company, threatened in writing by any Governmental
Authority with respect to Taxes of the Company or any of its Subsidiaries.




          (e) Neither the Company nor, to the Knowledge of the Company, any of its Subsidiaries has ever
been a member of an affiliated group of corporations, within the meaning of Section 1504 of the
Code (or any similar provision of state, local or foreign law), other than the affiliated group of
which the Company is the common parent.





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          (f) There are no outstanding agreements extending or waiving the statutory period of
limitations applicable to any claim for, or the period for the collection, assessment or
reassessment of, Taxes due from the Company or any of its Subsidiaries for any taxable period and
no request for any such waiver or extension is currently pending.




          (g) Neither the Company nor any of its Subsidiaries is a party to any Tax sharing or similar
Tax agreement (other than an agreement exclusively between or among the Company and its
Subsidiaries) pursuant to which it will have any obligation to make any payments with respect to
Taxes after the Closing Date.




          (h) Neither the Company nor any of its Subsidiaries has engaged in any “reportable
transaction” under Section 6011 of the Code and the regulations promulgated thereunder.




          (i) The Company and its Subsidiaries have withheld all Taxes required to have been withheld in
connection with amounts paid or owing to any employee, independent contractor, creditor,
stockholder or other third party and, to the extent due and payable, have paid such amounts to the
appropriate taxing authority, except for such Taxes as to which the failure to pay or withhold
would not, individually or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect.




          (j) Neither the Company nor any of its Subsidiaries is subject to a disallowance of deduction
under section 162(m) of the Code under any program, arrangement or understanding currently in
effect.




          (k) No closing agreement pursuant to section 7121 of the Code (or any similar provision of
state, local or foreign law) has been entered into by or with respect to Company or any of its
Subsidiaries.




          (l) Neither the Company nor any of its Subsidiaries has agreed to, or is required to make, any
adjustment under Section 481(a) of the Code and, to the Knowledge of the Company, no taxing
authority has proposed in writing any such adjustment or change in accounting method.




          (m) There are no liens for Taxes on any of the assets of the Company or any of its
Subsidiaries, other than liens for Taxes not yet due and payable.




          (n) For purposes of this Agreement: (i) “Taxes” shall mean (a) all federal, state, local or
foreign taxes, charges, fees, imposts, levies or other assessments, including all net income, gross
receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory,
capital stock, license, withholding, payroll, employment, social security, unemployment, excise,
severance, stamp, occupation and property taxes, customs duties and similar fees, assessments and
charges, (b) all interest, penalties, fines, additions to tax or additional amounts imposed by any
taxing authority in connection with any item described in clauses (a) or (b), and (c) any amounts
in respect of any items described in clauses (a) and/or (b) payable by reason of contract,
assumption, transferee liability, operation of Law, Treasury Regulation Section 1.1502-6(a) (or any
predecessor or successor thereof of any analogous or similar provision under Law) or otherwise, and
(ii) “Tax Returns” shall mean any return, report,




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claim for refund, estimate, information return or statement, election or other similar
document, including any schedule or attachment thereto, and including any amendment thereof,
required by Tax Law to be filed with any Governmental Authority with respect to Taxes.




     Section 3.11 Employee Benefits and Labor Matters.



          (a) Section 3.11(a) of the Company Disclosure Schedule sets forth a complete and correct list,
separately with respect to each country in which the Company or any of its Subsidiaries has
employees, of: (i) all “employee benefit plans” (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), and without regard to whether ERISA
applies thereto), and (ii) all other employee benefit plans, agreements, policies or arrangements,
including employment, consulting or other compensation agreements, collective bargaining agreements
and all plans, agreements, policies or arrangements providing for bonus or other incentive
compensation, equity or equity-based compensation, retirement, deferred compensation, retention or
change in control rights or benefits, termination or severance benefits, stock purchase, sick
leave, vacation pay, salary continuation, hospitalization, medical insurance, life insurance,
fringe benefits or other compensation, or educational assistance, in each case to which the Company
or any of its Subsidiaries has any obligation or liability (contingent or otherwise) thereunder for
current or former directors or employees of the Company or any of its Subsidiaries (the
“Employees”) or any current or former consultants to the Company or any of its Subsidiaries
(collectively, the “Company Plans” Section 3.11(a) of the Company Disclosure Schedule indicates
each Company Plan that is maintained outside the jurisdiction of the United States, or covers any
employee residing or working outside the United States (any such Company Plan, a “Foreign Benefit
Plan,” any Company Plan that is not a Foreign Benefit Plan being called a “Domestic Benefit Plan”).




          (b) True, current and complete copies of the following documents, with respect to each of the
Company Plans, have been made available to Parent by the Company, to the extent applicable: (i) any
plans, all amendments thereto and related trust documents, insurance contracts or other funding
arrangements, and amendments thereto; (ii) for the most recent two years, Forms 5500 and all
schedules thereto and the most recent actuarial report, if any; (iii) the most recent IRS
determination letter; (iv) the most recent summary plan descriptions (together with any summary or
summaries of modifications thereto); (v) written descriptions of all non-written material
agreements relating to the Company Plans and (vi) all material correspondence to or from any
governmental Authority within the last three years.




          (c) The Domestic Benefit Plans have been maintained, in all material respects, in accordance
with their terms and with all applicable provisions of ERISA, the Code and other applicable Laws,
and neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any
“party in interest” or “disqualified person” with respect to the Domestic Benefit Plans has engaged
in a material non-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or
Section 406 of ERISA. No fiduciary has any material liability for breach of fiduciary duty or any
other failure to act or comply in connection with the administration or investment of the assets of
any Domestic Benefit Plan; provided that this sentence is subject to the Knowledge of the Company
to the extent that any Domestic Benefit Plan refers to a Plan fiduciary other than (i) the Company,
(ii) any Subsidiary, or (iii) or any of their respective officers, employees and directors.




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          (d) Each Domestic Benefit Plan that is intended to qualify under Section 401 of the Code is so
qualified and (ii) any trusts intended to be exempt from federal income taxation under Section 501
of the Code are so exempt. Nothing has occurred with respect to the operation of such Domestic
Benefit Plans that could cause the loss of such tax favored treatment, qualification or exemption,
or the imposition of any material liability, penalty or Tax under ERISA, the Code or other
applicable Law that, if corrected under the Employee Plans Compliance Resolution System, could
reasonably be expected to give rise to a material liability.




          (e) No plan currently or ever in the past maintained, sponsored, contributed to or required to
be contributed to by the Company, any of its Subsidiaries or any of Company’s ERISA Affiliates is
or ever in the past was (i) a “multiemployer plan,” as defined in Section 3(37) of ERISA, (ii) a
plan subject to Title IV of ERISA or (iii) a plan subject to Section 412 of the Code. The term
“ERISA Affiliate” means any Person that, together with the Company, would be deemed a “single
employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.




          (f) Except as set forth in Schedule 3.11(f) of the Company Disclosure Schedule, no Company
Plan provides for the payment of any severance or retention payment (or the settlement of any
award) on account of the severance of  any “service provider” (within the meaning of Section 409A
of the Code) such that the payment (or settlement) would be treated as deferred compensation
subject to Section 409A of the Code.  Neither the Company nor any of its Subsidiaries is a party to
any nonqualified deferred compensation plan subject to Section 409A of the Code that would subject
any Person to tax pursuant to Section 409A of the Code based upon a good faith interpretation of
all applicable regulations, notices and regulatory guidance. The exercise price of each Company
Option is not less than the fair market value (within the meaning of Section 409A of the Code) of
the underlying stock on the date the Company Option was granted.




          (g) Except as would not reasonably be expected to give rise to a material liability, (i) all
contributions (including all employer contributions and employee salary reduction contributions)
required to have been made under any of the Domestic Benefit Plans (including workers compensation)
have been made or reflected on the most recent financial statements included in the Filed Company
SEC Documents and (ii) no accumulated funding deficiencies exist in any of the Domestic Benefit
Plans subject to Section 412 of the Code.




          (h) With respect to any Foreign Benefit Plans, (A) all Foreign Benefit Plans have been
established, maintained and administered in compliance in all material respects with their terms
and all applicable statutes, laws, ordinances, rules, orders, decrees, judgments, writs, and
regulations of any controlling Governmental Authority, (B) all Foreign Benefit Plans that are
required to be funded are fully funded, and with respect to all other Foreign Benefit Plans, the
most recent financial statements contained in the Filed Company SEC Documents reflect reserves
therefor in accordance with GAAP and (C) no material liability or obligation of the Company or its
Subsidiaries exists with respect to such Foreign Benefit Plans.




          (i) There are no pending actions or lawsuits which have been asserted or instituted against
the Company Plans, the assets of any of the trusts under such plans or the sponsor or administrator
of any of the Company Plans, or against any fiduciary of the Company




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Plans (other than routine benefit claims), nor to the Knowledge of the Company, has any such
action or lawsuit been threatened, nor does the Company have any Knowledge of facts that could form
the basis for any such action or lawsuit.




          (j) None of the Domestic Benefit Plans provide for post-employment life or health insurance,
or other welfare benefits coverage for any participant or any beneficiary of a participant, except
(i) as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”) or other similar law, (ii) deferred compensation benefits accrued as liabilities on the
Company’s financial statements and (iii) at the expense of the participant or the participant’s
beneficiary.




          (k) Except as set forth in Sections 2.1 and 2.3 or under a Contract listed on Schedule 3.11(k)
of the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the
consummation of the Transactions will (i) result in any payment becoming due to any Employee,
(ii) increase any benefits otherwise payable under any Company Plan or (iii)  result in the
acceleration of the time of payment or vesting of any such benefits under any such plan.




          (l) Neither the execution and delivery of this Agreement nor the consummation of the
Transactions will (either alone or in combination with another event that occurs at or prior to the
Effective Time) result in the payment of any amount that would, individually or in combination with
any other such payment, reasonably be expected to constitute an “excess parachute payment,” as
defined in Section 280G(b)(1) of the Code.




          (m) None of the Employees is represented in his or her capacity as an employee of the Company
or any of its Subsidiaries by any labor organization or works council or similar representative.
Neither the Company nor any of its Subsidiaries has recognized any labor organization, nor has any
labor organization been elected as the collective bargaining agent of any Employees, nor has the
Company or any of its Subsidiaries entered into any collective bargaining agreement or union
contract recognizing any labor organization as the bargaining agent of any Employees. The Company
and its Subsidiaries are in compliance in all material respects with all Laws relating to the
employment of labor, including all such Laws relating to wages, hours, the Worker Adjustment and
Retraining Notification Act and any similar state or local “mass layoff” or “plant closing” law
(“WARN”), collective bargaining, discrimination, civil rights, safety and health, workers’
compensation and the collection and payment of withholding and/or social security taxes and any
similar tax.




     Section 3.12 Environmental Matters. Except for such matters that, individually or in the
aggregate, would not reasonably be expected to have a Company Material Adverse Effect:



          (a) (i) each of the Company and its Subsidiaries is, and has been, in compliance with all
applicable Environmental Laws, (ii) to the Knowledge of the Company, there is no investigation,
suit, claim, action or proceeding relating to or arising under Environmental Laws that is pending
or threatened against or affecting the Company or any of its Subsidiaries or any real property
currently or, to the Knowledge of the Company, formerly owned, operated or leased by the Company or
its Subsidiaries; (iii) neither the Company nor any of its Subsidiaries has received any notice of
or entered into or assumed by Contract or operation




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of Law or otherwise, any obligation, liability, order, settlement, judgment, injunction or
decree relating to or arising under Environmental Laws; and (iv) to the Knowledge of the Company,
no facts, circumstances or conditions exist with respect to the Company or any of its Subsidiaries
or any property currently or formerly owned, operated or leased by the Company or any of its
Subsidiaries or any property to or at which the Company or any of its Subsidiaries transported or
arranged for the disposal or treatment of Hazardous Materials that would reasonably be likely to
result in the Company and its Subsidiaries incurring Environmental Liabilities individually in the
excess of $50,000 or in the aggregate in excess of $250,000.




          (b) (i) The Company has obtained and currently maintains all Permits necessary under
Environmental Laws for their operations as conducted on the date of this Agreement (“Environmental
Permits”), (ii) there is no investigation known to the Company, nor any action pending or, to the
Knowledge of the Company, threatened against or affecting the Company or any real property owned,
operated or leased by the Company to revoke such Environmental Permits, and (iii) the Company has
not received any written notice from any Governmental Authority to the effect that there is lacking
any Environmental Permit required under Environmental Law for the current use or operation of any
property owned, operated or leased by the Company.




          (c) For purposes of this Agreement:





          (i) “Environmental Laws” means all Laws relating in any way to the environment,
preservation or reclamation of natural resources, the presence, management or Release of, or
exposure to, Hazardous Materials, or to human health and safety, including the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. § 5101 et seq.), the Resource Conservation
and Recovery Act (42 U.S.C. § 6901 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.),
the Clean Air Act (42 U.S.C. § 7401 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f
et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), and the Occupational
Safety and Health Act (29 U.S.C. § 651 et seq.), each of their state and local counterparts
or equivalents, each of their foreign and international equivalents, and any transfer of
ownership notification or approval statute (including the Industrial Site Recovery Act (N.J.
Stat. Ann. § 13:1K-6 et seq.), as each has been amended and the regulations promulgated
pursuant thereto.




          (ii) “Environmental Liabilities” means, with respect to any Person, all liabilities,
obligations, responsibilities, remedial actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including any amounts paid in
settlement, all reasonable fees, disbursements and expenses of counsel, experts and
consultants and costs of investigation and feasibility studies), fines, penalties, sanctions
and interest incurred as a result of any claim or demand by any other Person or in response
to any violation of Environmental Law, whether known or unknown, accrued or contingent,
whether based in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, to the extent based upon, related to, or arising under or pursuant to any
Environmental Law, environmental permit, order or agreement with any Governmental Authority
or other Person, which relates to any environmental, health or



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safety condition, violation of Environmental Law or a Release or threatened Release of
Hazardous Materials.




          (iii) “Hazardous Materials” means any material, substance or waste that is regulated,
classified, or otherwise characterized under or pursuant to any Environmental Law as
“hazardous”, “toxic”, a “pollutant”, a “contaminant”, “radioactive” or words of similar
meaning or effect, including petroleum and its by-products, asbestos, polychlorinated
biphenyls, radon, mold, urea formaldehyde insulation, chlorofluorocarbons and all other
ozone-depleting substances.




          (iv) “Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing of or migrating into or
through the environment.



     Section 3.13 Contracts.



          (a) Set forth in Section 3.13(a) of the Company Disclosure Schedule is a list of each Contract
that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the
Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration
statement or report was filed by the Company with the SEC on the date of this Agreement and which
has not previously been filed as an exhibit to the Filed Company SEC Documents. Also set forth in
Section 3.13(a) of the Company Disclosure Schedule is a list of each of the following to which the
Company or any of its Subsidiaries is a party which has not previously been filed as an exhibit to
the Filed Company SEC Documents any:





          (i) Contract that contains a provision capable of being invoked that (A) is not
terminable for convenience upon reasonable notice at no charge that purports to materially
limit, curtail, restrict the ability of the Company or any of its existing or future
Subsidiaries or Affiliates to compete in any geographic area or line of business or restrict
the Persons with whom it and existing or future Subsidiaries or Affiliates can compete or to
whom it or its existing or future Subsidiaries or Affiliates can sell products or deliver
services, (B) is not terminable for convenience upon reasonable notice at no charge that
purports to grant any exclusivity, right of first refusal, right of first negotiation, most
favored nation status or similar rights that materially restrict the Company or any of its
Subsidiaries, or (C) imposes any liquidated damages or penalty clauses on the Company or any
of its Subsidiaries, offsets from, or credits to, any other Person (other than service level
credits provided pursuant to agreements with customers entered into in the ordinary course
of business consistent with past practice);




          (ii) Contract with any director, officer or other Affiliate of the Company other than
Contracts under which the Company and its Subsidiaries have no further liabilities or
obligations and no continuing rights;




          (iii) loan or credit agreement, mortgage, indenture, note or other Contract or
instrument evidencing indebtedness for borrowed money by the Company or any of its
Subsidiaries or any Contract or instrument pursuant to which indebtedness for



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borrowed money may be incurred or is guaranteed by the Company or any of its
Subsidiaries or by which they may be obligated for the liabilities of another person;




          (iv) financial derivatives master agreement or confirmation or other agreement
evidencing financial hedging or similar trading activities, other than Contracts relating to
currency hedges or derivatives entered into in the ordinary course of business consistent
with past practice;




          (v) voting agreement;




          (vi) except for Contracts listed in clauses (iii) and (iv) of Section 3.3 of the
Company Disclosure Schedule, mortgage, pledge, security agreement, deed of trust or other
Contract granting a Lien on any material property or assets of the Company or any of its
Subsidiaries;




          (vii) Contract with a supplier or provider of products or services that has required
payments by the Company or any of its Subsidiaries of consideration (whether or not measured
in cash) in the fiscal year 2007 or that is reasonably likely, based on the Company’s past
experience, to require such payment of consideration in fiscal year 2008 (whether or not
measured in cash) of greater than $500,000 but excluding any Contract that requires payment
by the Company or any of its Subsidiaries on a time and materials basis;




          (viii) Contract with a top thirty (30) customer of the Company measured by operating
revenue received by the Company and its Subsidiaries during the eighteen (18) month period
prior to the date hereof, including Contracts with any such customer involving software
license, maintenance and/or services;




          (ix) Contract which makes up the top ten (10) services agreement (excluding any fixed
price services agreement) of the Company measured by operating revenue received by the
Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;




          (x) Contract which makes up the top ten (10) fixed price services agreement (excluding
any services agreement required to be listed pursuant to Section 3.13(a)(ix)) of the Company
and its Subsidiaries) of the Company measured by operating revenue received by the Company
and its Subsidiaries during the eighteen (18) month period prior to the date hereof;




          (xi) Contract which makes up the top eighty-five percent (85%) of all active
subscription agreements for the Company’s Freight Matrix products measured by revenue
received by the Company and its Subsidiaries during the eighteen (18) month period prior to
the date hereof;




          (xii) “standstill” or similar agreement restricting the Company;




          (xiii) agreement containing a provision capable of being invoked which relates to (A)
the granting to the Company or any of its Subsidiaries of any license in or



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to any Intellectual Property owned by a third party that is used in any current
standard or other product of the Company made generally available by the Company or is
otherwise material to the Company, or (B) the granting by the Company or any of its
Subsidiaries of any license to a third party in or to any Intellectual Property that are
material to the Company, (except, in the case of each of clause (A) and clause (B), for any
(1) licenses for commercial off-the-shelf software, (2) licenses with terms of use or
service posted on a web site, (3) licenses for third party software generally available to
the public, and (4) non-negotiated licenses of third party Intellectual Property that is
embedded in equipment or fixtures and are used by the Company or any of its Subsidiaries for
internal purposes only; and, in the case of clause (B), non-exclusive licenses to customers
of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day
business of the Company and its Subsidiaries consistent with past practice);




          (xiv) any agreement granting by the Company or any of its Subsidiaries any license to a
third party to use any source code that is part of the Company Intellectual Property (except
source code escrow arrangements for the benefit of customers and related agreements with
customers of the Company and its Subsidiaries in the normal and ordinary course of the
day-to-day business of the Company and its Subsidiaries consistent with past practice;




          (xv) any reseller, distribution, alliance, collaboration, joint marketing or similar
agreements that are material to the Company and its Subsidiaries;




          (xvi) Contract (1) providing for (or imposing any material ongoing indemnification or
other obligations of the Company or any of its Subsidiaries in connection with) the
disposition or acquisition by the Company or any of its Subsidiaries of (A) any corporation,
partnership or other entity or business or (B) any material amount of assets or rights
outside the ordinary course of business consistent with past practice or (2) pursuant to
which the Company or any of its Subsidiaries has any material ownership interest in any
other person or other business enterprise, other than contracts or agreements under which
the Company and its Subsidiaries have no further liabilities or obligations and no
continuing rights;




          (xvii) settlement agreement, other than (A) releases immaterial in nature or amount
entered into with former employees or independent contractors of the Company in the ordinary
course of business consistent with past practice in connection with the routine cessation of
such employee’s or independent contractor’s employment with the Company, (B) settlement
agreements for cash only (which has been paid) and does not exceed $100,000 as to such
settlement or (C) settlement agreements entered into more than three years prior to the date
of this Agreement under which none of the Company or its Subsidiaries have any continuing
obligations, liabilities, or rights (excluding releases); or




          (xviii) commitment or agreement to enter into any of the foregoing (the Contracts and
other documents required to be listed on Section 3.13(a) of the Company Disclosure Schedule,
together with any and all other Contracts of such type entered into in accordance with
Section 5.2 and the Contracts filed as exhibits to the Filed Company



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SEC Documents, each a “Material Contract”). The Company has heretofore made available
to Parent complete and correct copies of each Material Contract in existence as of the date
of this Agreement, together with any and all amendments and supplements thereto and material
“side letters” and similar documentation relating thereto.



          (b) Each of the Material Contracts is valid, binding and in full force and effect and is
enforceable in accordance with its terms by the Company and its Subsidiaries party thereto, subject
to the Bankruptcy and Equity Exception. Neither the Company nor any of its Subsidiaries is in
material default under any Material Contract, nor does any condition exist that, with notice or
lapse of time or both, would constitute a material default thereunder by the Company or its
Subsidiaries party thereto. To the Knowledge of the Company, no other party to any Material
Contract is in material default thereunder, nor does any condition exist that with notice or lapse
of time or both would constitute a material default by any such other party thereunder. Neither
the Company nor any of its Subsidiaries has received any written notice of termination or
cancellation under any Material Contract or received any notice of breach or default under any
Material Contract which breach has not been cured.




     Section 3.14 Title to Properties.



          (a) The Company and its Subsidiaries (i) have good, valid and marketable title to all
properties and other assets which are reflected on the most recent consolidated balance sheet of
the Company included in the Filed Company SEC Documents as being owned by the Company or one of its
Subsidiaries (or acquired after the date thereof) and which are, individually or in the aggregate,
material to the Company’s business or financial condition on a consolidated basis (except
properties sold or otherwise disposed of since the date thereof in the ordinary course of business
consistent with past practice and not in violation of this Agreement), free and clear of all Liens
except (x) statutory liens securing payments not yet due, (y) security interests, mortgages and
pledges that are disclosed in the Filed Company SEC Documents that secure indebtedness that is
reflected in the most recent consolidated financial statements of the Company included in the Filed
Company SEC Documents and (z) such other imperfections or irregularities of title or other Liens
that, individually or in the aggregate, do not and would not reasonably be expected to materially
affect the use of the properties or assets subject thereto or otherwise materially impair business
operations as presently conducted or as currently proposed by the Company’s management to be
conducted, and (ii) have good and valid leasehold interests (subject to customary subordination
provisions) in all real property leased or subleased by them which are, individually or in the
aggregate, material to the Company’s business or financial condition on a consolidated basis. Each
parcel of real property leased or subleased by the Company and its Subsidiaries is listed on
Section 3.14(a) of the Company Disclosure Schedule.




          (b) The tangible assets which are reflected on the most recent consolidated balance sheet of
the Company included in the Filed Company SEC Documents as being owned by the Company or one of its
Subsidiaries (or acquired after the date of this Agreement) are in good operating condition and
repair (except for normal wear and tear and those defects that are not material) and have been
maintained in accordance with reasonable commercial practices.




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     Section 3.15 Intellectual Property.



          (a) The Company and its Subsidiaries own, or are validly licensed or otherwise have the valid
right to use, all Intellectual Property and other intellectual property rights and computer
programs that are material to the conduct of the business of the Company and its Subsidiaries taken
as a whole (collectively, “Company Intellectual Property”). Section 3.15(a) of the Company
Disclosure Schedule sets forth as of the date of this Agreement a list of all registered Company
Intellectual Property that is the subject of a registration or application with any Governmental
Authority owned by, or filed in, the name of the Company or any of its Subsidiaries (“Registered
Company Intellectual Property”), which list identifies the jurisdiction in which such Registered
Company Intellectual Property was issued and/or where the application or registration was filed and
the date of issuance, registration or application.




          (b) No claims are pending or, to the Knowledge of the Company, threatened that the Company or
any of its Subsidiaries is infringing or otherwise adversely affecting the rights of any Person
with regard to any Intellectual Property, nor, to the Knowledge of the Company, are there any facts
which could give rise to any claim of infringement, unauthorized use, misappropriation or violation
of any Intellectual Property used or owned by any Person against the Company or its Subsidiaries.
The conduct of the business of the Company and its Subsidiaries, as currently conducted, does not
infringe, violate or misappropriate any Intellectual Property of any Person, other than the rights
of any Person under any Patents, and, to the knowledge of the Company, the operation of the
Company’s business as now conducted does not infringe any Patents of any Person. The Company and
its Subsidiaries are the sole and exclusive owners (except for co-ownership rights set forth in
Section 3.15(h) of the Company Disclosure Schedule in certain software jointly developed with or
for customers or other third parties in the ordinary course of the Company’s business consistent
with past practice) of, or have a valid right to use, sell and license, as the case may be, in each
case free and clear of any Liens to which the Company or any of its Subsidiaries are subject or by
which their respective properties are subject, all Company Intellectual Property used, sold or
licensed by the Company and its Subsidiaries (free and clear of any Liens with respect to any
Company Intellectual Property owned by Company and to the Knowledge of the Company, free and clear
of any Liens with respect to any Company Intellectual Property licensed to the Company by another
Person), as applicable, in the business of the Company and its Subsidiaries as presently conducted
and as currently contemplated to be conducted.  The Company has not received written notice of any
judgment, order, writ, stipulation or decree, by which its assets are bound, that (i) restrict in
any manner the use, transfer or licensing of any Company Intellectual Property or (ii) affect the
validity, use or enforceability of any Company Intellectual Property owned by Company or to the
knowledge of the Company, any Company Intellectual Property that is licensed to the Company.




          (c) To the Knowledge of the Company, no third party is infringing, violating, misusing or
misappropriating any Company Intellectual Property, and no such claims have been made against a
third party by the Company or any of its Subsidiaries.




          (d) There are no actions that are required to be taken by the Company or any of its
Subsidiaries within ninety (90) days of the date of this Agreement with respect to registered
Company Intellectual Property that, if not taken will have a material adverse effect on any




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registered Company Intellectual Property or the prosecution of applications or registrations
relating thereto.




          (e) Section 3.15(e) of the Company Disclosure Schedule list all Software that is distributed
by the Company and its Subsidiaries on the date hereof and that, to the Knowledge of the Company,
uses, incorporates or has embedded in it any source, object or other software code subject to an
“open source,” “copyleft” or other similar types of license terms (each, an “Open Source License”)
(including, without limitation, any GNU General Public License, Library General Public License,
Lesser General Public License, Mozilla License, Berkeley Software Distribution License, Open Source
Initiative License, MIT, Apache or public domain licenses, and the like) (collectively, “Open
Source Software”), and the license applicable to such Open Source Software. There is no use of any
Open Source Software by the Company or any of its Subsidiaries that requires or would reasonably be
expected to require, or conditions, or would reasonably be expected to condition, the: (i)
distribution of any Software owned by the Company or its Subsidiaries under any Open Source
License; or (ii) disclosure, licensing or distribution of any source code of any Software owned by
the Company or any of its Subsidiaries. The Company and its Subsidiaries are in compliance in all
material respects with all license agreements applicable to the Open Source Software listed in
Section 3.15(e) of the Company Disclosure Schedule.




          (f) The policies and procedures of the Company and its Subsidiaries provide that each employee
or independent contractor of the Company or any of its Subsidiaries enter into a written agreement
ensuring that all Intellectual Property developed by such Persons is owned exclusively by the
Company and its Subsidiaries, and to the Knowledge of the Company, except as set forth on Section
3.15(f) of the Company Disclosure Schedule, each employee or independent contractor of the Company
or any of its Subsidiaries has entered into such a written agreement in each case pursuant to the
form of such agreement made available to Parent or pursuant to a substantially similar form of
agreement. To the Knowledge of the Company, no such consultant, independent contractor or employee
is in breach of his, her or its obligations pursuant to any such agreement.




          (g) The Company and its Subsidiaries have taken all commercially reasonable steps to safeguard
and maintain the secrecy and confidentiality of all Trade Secrets used by them, and no Trade
Secrets of the Company or its Subsidiaries have been disclosed without a written non-disclosure or
confidentiality agreement in effect with the recipient of the Trade Secrets. Except as set forth
in Section 3.15(g) of the Company Disclosure Schedule, there have been no disclosures of the source
code to any Software owned by the Company or its Subsidiaries other than pursuant to the terms of a
confidentiality agreement in effect with the recipient of the Software source code.
Section 3.15(g) of the Company Disclosure Schedule also includes a list of all source code escrow
arrangements to which the Company or any of its Subsidiaries is a party pursuant to which the
source code of any Software owned by the Company or its Subsidiaries was placed in escrow for the
benefit of another Person.




          (h) Section 3.15(h) of the Company Disclosure Schedule sets forth a complete list of those
Contracts to which the Company or any of its Subsidiaries (i) grants an explicit covenant not to
sue, explicit covenant not to assert or other explicit immunity from suit under any current or
future Intellectual Property; (ii) is involved in any joint development of any




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Company Intellectual Property resulting in joint ownership of the Company Intellectual
Property developed pursuant thereto; (iii) by which the Company or its Subsidiaries grants or
transfers, or otherwise confers any ownership right or title to any Company Intellectual Property
(including, but not limited to, any derivative works, modifications or enhancements to the Company
Intellectual Property, whether created by the Company or any other Person); (iv) by which the
Company or a Subsidiary is assigned or granted an ownership interest in any Intellectual Property
other than agreements with employees and contractors that assign or grant to the Company ownership
of any Intellectual Property developed in the course of providing services by such employees and
contractors; and (v) under which the Company grants or receives an option or right of first refusal
relating to any Intellectual Property.




          (i) Except with respect to demonstration or trial copies, no product, system, program or
software module designed, developed, distributed, licensed or otherwise made available by the
Company or its Subsidiaries to any Person, contains any “back door,” “time bomb,” “Trojan horse,”
“worm,” “drop dead device,” “virus” or other software routines or hardware components designed to
permit access or to disable or erase software, hardware or data without the consent of the user.




          (j) Except as set forth in Section 3.15(j) of the Company Disclosure Schedule, (i) the
Software made designed, developed, sold, installed, licensed or otherwise made available by the
Company to any Person conforms and complies in all material respects with the terms and
requirements of any applicable warranty and the agreement related to such Software; (ii) no
customer or other Person has asserted or threatened in writing to assert any claim against the
Company during the period beginning three (3) years from the date hereof (A) under or based upon
any warranty provided by or on behalf of the Company, or (B) under or based upon any other warranty
relating to any Software made available by the Company; and (iii) each currently generally
available Software product made available by the Company was free of any material design defect or
other material defect or deficiency at the time it was sold or otherwise made available. All
installation services, programming services, repair services, maintenance services, support
services, training services, upgrade services and other services that have been performed by the
Company were performed properly and in full conformity with the terms and requirements of all
applicable warranties and the agreement related to such services and with all applicable legal
requirements. Except for maintenance releases required by Company’s standard form warranty and
maintenance provisions, Schedule 3.15(j) of the Company Disclosure Schedules lists all of the
Company’s and its Subsidiaries’ fixed fee agreements as of June 30, 2008 for which the Company has
recorded a loss reserve in accordance with GAAP, (2) to the Company’s Knowledge, all fixed fee
agreements for the period beginning July 1, 2008 and ending on the date hereof which would
reasonably be likely to result in the Company having to record a loss reserve in accordance with
GAAP for such period, (3) contractual or other obligations as of June 30, 2008 to any third party
that will require the use of the Company’s product development staff to develop new Software or to
provide modifications, upgrades, new versions or enhancements to existing Software and (4) to the
Knowledge of the Company for the period beginning on July 1, 2008 and ending on the date hereof,
contractual or other obligations to any third party that will require the use of the Company’s
product development staff to develop new Software or to provide modifications, upgrades, new
versions or enhancements to existing Software. The Company has not agreed to provide vendor
financing with respect to the sale or licensing of any products or services made available by the
Company. No product




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liability claims have been threatened in writing or filed against the Company related to any
product or service made available by the Company.




          (k) The Company is not and has never been, and no previous owner of any Company Intellectual
Property now owned by the Company was during the duration of their ownership, a member or promoter
of, or a contributor to or made any commitments or agreements regarding any patent pool, industry
standards body, standard setting organization, industry or other trade association or similar
organization, in each case that could or does require or obligate the Company or the previous owner
to grant or offer to any other Person any license or right to such Company-owned Company
Intellectual Property, including without limitation any future Intellectual Property developed,
conceived, made or reduced to practice by the Company after the date of this Agreement.




          (l) No funding, facilities or personnel of any governmental entity were used, directly or
indirectly, to develop or create, in whole or in part, any Company Intellectual Property owned by
the Company in such a way as to grant or give such governmental entity any right or claim to such
Company-owned Company Intellectual Property.




          (m) No college, university or other educational institution, nor any students, professors,
fellow, interns or other Person affiliated with a college, university or other education
institution, were involved in the development of any Company Intellectual Property owned by the
Company in such a way as to grant or give any of the foregoing any right or claim on any such
Company Intellectual Property.




          (n) The execution, delivery or performance of this Agreement or any ancillary agreement
contemplated hereby, the consummation of the transactions contemplated by this Agreement or such
ancillary agreements and the satisfaction of any closing condition will not contravene, conflict
with or result in any limitation on Parent’s right, title or interest in or to any Intellectual
Property owned by or licensed to the Company. The Company has no obligations to pay any additional
royalties, license fees or other amounts or provide or pay any other consideration to any Person
under any Contract respecting Intellectual Property licensed to the Company by another Person or
otherwise by reason of this Agreement or the transactions contemplated herein




          (o) The collection, use, transfer, import, export, storage, disposal, and disclosure by the
Company and its Subsidiaries of personally identifiable information, or other information relating
to persons protected by Law, has not violated any applicable U.S. or foreign Laws relating to data
collection, use, privacy, or protection (including, without limitation, any requirement arising
under any constitution, statute, code, treaty, decree, rule, ordinance, or regulation)
(collectively, “Data Laws”) in a manner that, individually or in the aggregate, would reasonably be
expected to have a Company Material Adverse Effect. Since January l, 2006, the Company and its
Subsidiaries have complied with, and is presently in compliance with, its privacy policies, which
policies comply with all Data Laws, except where any non-compliance would not, individually or in
the aggregate, have a Company Material Adverse Effect. There is no complaint, audit, proceeding,
investigation, or claim against or, to the Knowledge of the Company threatened against, the Company
or any of its Subsidiaries by any Governmental Authority, or by any Person respecting the
collection, use, transfer, import, export, storage,




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disposal, and disclosure of personal information by any Person in connection with the Company,
its Subsidiaries, or their respective business. To the Knowledge of the Company, since January 1,
2006 there have been no material security breaches compromising the confidentiality or integrity of
such personal information.




          (p) The Company has not received any written notice that any current or prior director,
officer, employee, independent contractor or consultant of the Company or its Subsidiaries claims
or has a right to claim an ownership interest in any Company Intellectual Property or any
remuneration or other payments aside from salary or other compensation already paid by the Company
as a result of having been involved in the development or licensing of any such Company
Intellectual Property while employed by or consulting to the Company or its Subsidiaries. In those
jurisdictions that require the payment of specific remuneration for the development of Intellectual
Property, the Company has made the required remuneration payments or has a policy and procedure for
making such payments (which policy or procedure has been provided to Parent in writing). In those
jurisdictions that recognize Moral Rights, the Company has obtained written waivers, consents or
agreements from each of the holders of such Moral Rights whereby such holders will not, at any
time, assert such Moral Rights against the Company. For purposes of this Agreement, “Moral Rights”
shall mean collectively, rights to claim authorship of a work, to object to or prevent any
modification of a work, to withdraw from circulation or control the publication or distribution of
a work, and any similar rights, whether existing under judicial or statutory law of any country or
jurisdiction worldwide, or under any treaty or similar legal authority, regardless of whether such
right is called or generally referred to as a “moral right.”




     Section 3.16 Insurance. All material insurance policies of the Company and its Subsidiaries
(the “Policies”) are in full force and effect and are listed on Schedule 3.16 of the Company
Disclosure Schedule. Neither the Company nor any of its Subsidiaries is in material breach or
default, and neither the Company nor any of its Subsidiaries has taken any action or failed to take
any action which, with notice or the lapse of time, would constitute such a breach or default, or
permit termination or modification of any of the Policies. No notice of cancellation or
termination has been received by the Company with respect to any such Policy. With respect to each
of the legal proceedings set forth in the Company SEC Documents, no carrier of any Policy has
asserted any denial of coverage other than the issuance of customary reservation of rights letters
issued by such carriers in connection with the filing of any claims.



     Section 3.17 Opinion of Financial Advisor. The Board of Directors of the Company has received
the written opinion of J.P. Morgan Securities Inc. (the “Financial Advisor”) dated as of the date
of this Agreement, to the effect that, as of such date, and subject to the various assumptions and
qualifications set forth therein, the consideration to be received in the Merger by the holders of
Company Common Stock is fair from a financial point of view to such stockholders (the “Fairness
Opinion”). The Company has furnished to Parent a correct and complete copy of the Fairness
Opinion. The Company has obtained the authorization of the Financial Advisor to include a copy of
its Fairness Opinion in the Company Proxy Statement.



     Section 3.18 Brokers and Other Advisors. Section 3.18 of the Company Disclosure Schedule
identifies each broker, investment banker, financial advisor or other Person entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission, or the



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reimbursement of expenses, in connection with the Transactions based upon arrangements made by
or on behalf of the Company or any of its Subsidiaries, and the fees and expenses of such Persons
will be paid by the Company. The Company has made available to Buyer a true, complete and correct
copy of the Company’s engagement letter with any Person identified in Section 3.18 of the Company
Disclosure Schedule.




     Section 3.19 Anti-Takeover Statutes. The Company has taken all necessary action to render
Section 203 of the DGCL and any other potentially applicable anti-takeover or similar statute or
regulation or provision of the certificate of incorporation or by-laws, or other organizational or
constitutive document or governing instruments of the Company inapplicable to this Agreement and
the Transactions.



     Section 3.20 Company Rights Agreement. The Company has taken all actions necessary to (a)
render the Company Rights Agreement inapplicable to this Agreement and the Transactions, (b) ensure
that (i) none of Parent, Merger Sub or any other Subsidiary of Parent is an Acquiring Person (as
defined in the Company Rights Agreement) pursuant to the Company Rights Agreement as the result of
this Agreement and the Transactions and (ii) a Distribution Date, a Triggering Event or a Share
Acquisition Date (as such terms are defined in the Company Rights Agreement) does not occur, in the
case of clauses (i) and (ii), solely by reason of the execution of this Agreement or the
consummation of the Transactions, and (c) provide that the Final Expiration Date (as defined in the
Company Rights Agreement) shall occur immediately prior to the Effective Time.



     Section 3.21 Related Party Transactions. Except as set forth in Schedule 3.21 of the Company
Disclosure Schedule or the Filed Company SEC Documents, there are no Material Contracts between the
Company or any of its Subsidiaries, on the one hand, and (a) any officer or director of the
Company, (b) any record or beneficial owner of five percent (5%) or more of the voting securities
of the Company or (c) to the Knowledge of the Company, any Affiliate of any such officer, director
or record or beneficial owner, on the other hand, in each case, that would be required to be
disclosed under Item 404 of Regulation S-K promulgated under the Securities Act.



     Section 3.22 Company Convertible Notes. To the Company’s Knowledge, after consultation with
the trustee of the indenture pursuant to which the Convertible Notes were issued, as of the
Measurement Date, Section 3.22 of the Company Disclosure Schedule sets forth a true and complete
list of all beneficial owners of the Convertible Notes.



ARTICLE IV.




REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB




     Parent and Merger Sub jointly and severally represent and warrant to the Company:



     Section 4.1 Organization, Standing and Corporate Power. Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under the Laws of the
jurisdiction in which it is incorporated.



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     Section 4.2 Authority; Noncontravention.



          (a) Each of Parent and Merger Sub has all necessary corporate power and authority to execute
and deliver this Agreement and to perform their respective obligations hereunder and to consummate
the Transactions. The execution, delivery and performance by Parent and Merger Sub of this
Agreement, and the consummation by Parent and Merger Sub of the Transactions, have been duly
authorized and approved by all requisite corporate approvals and no other corporate action on the
part of Parent and Merger Sub is necessary to authorize the execution, delivery and performance by
Parent and Merger Sub of this Agreement and the consummation by them of the Transactions. This
Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due
authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding
obligation of each of Parent and Merger Sub, enforceable against each of them in accordance with
its terms, subject to the Bankruptcy and Equity Exception.




          (b) Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the
consummation by Parent or Merger Sub of the Transactions, nor compliance by Parent or Merger Sub
with any of the terms or provisions hereof, will (i) conflict with or violate any provision of the
certificate of incorporation or bylaws of Parent or the certificate of incorporation or bylaws of
Merger Sub or (ii) assuming that the authorizations, consents and approvals referred to in
Section 4.3 are obtained and the filings referred to in Section 4.3 are made, violate any Law,
judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or
any of their respective properties or assets, or (iii) require any consent, approval or other
authorization of, or filing with or notification to any person under, materially violate, conflict
with, result in the loss of any material benefit under, constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material default) under, result in
the termination of or a right of termination or cancellation under, or accelerate the performance
required by, or result in the creation of any Lien upon any of the respective properties or assets
of, Parent or Merger Sub or any of their respective Subsidiaries under, any of the terms,
conditions or provisions of any Contract to which Parent, Merger Sub or any of their respective
Subsidiaries is a party, or by which they or any of their respective properties or assets may be
bound or affected or (iv) result in the creation of any Lien upon any of the respective properties
or assets of, Parent or Merger Sub or any of their respective Subsidiaries under, any Contract to
which the Company or any of its Subsidiaries is a party, or by which they or any of their
respective properties or assets may be bound or affected except, in the case of clauses (ii),
(iii) or (iv), for such violations, conflicts, losses, defaults, terminations, cancellations,
accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to
have a Parent Material Adverse Effect.




     Section 4.3 Governmental Approvals. Except for (i) filings required under, and compliance
with applicable requirements of, the Exchange Act and the rules of the NASDAQ Stock Market,
(ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware
pursuant to the DGCL, and (iii) filings required under, and compliance with other applicable
requirements of, the HSR Act and Foreign Antitrust Laws, no consents or approvals of, or filings,
declarations or registrations with, any Governmental Authority are necessary for the execution,
delivery and performance of this Agreement by Parent and Merger Sub or the consummation by Parent
and Merger Sub of the Transactions, other than such other consents,



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approvals, filings, declarations or registrations that, if not obtained, made or given, would
not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse
Effect.




     Section 4.4 Information Supplied. The information furnished in writing to the Company by
Parent and Merger Sub relating to Parent or Merger Sub and specifically for inclusion in the Proxy
Statement will not, at the time the Proxy Statement is first mailed to the stockholders of the
Company, at the time of such Company Stockholders Meeting and at the time filed with the SEC,
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.



     Section 4.5 Ownership and Operations of Merger Sub. Parent owns beneficially and indirectly
of record all of the outstanding capital stock of Merger Sub. Merger Sub was formed solely for the
purpose of engaging in the Transactions, has engaged in no other business activities and has
conducted its operations only as contemplated hereby.



     Section 4.6 Financing. Parent has delivered to the Company true and complete copies of the
commitment letter, dated as of August 10, 2008, between Parent,
Credit Suisse, Credit
Suisse Securities (USA) LLC, Wachovia Bank, National
Association and Wachovia Capital Markets, LLC (together, the
“Lenders”), pursuant to which the Lenders have agreed to lend the amounts set forth therein (the “Debt Financing”) for the purpose of, inter alia,
funding the transactions contemplated by this Agreement (the “Financing Commitment”). Parent has
fully paid any and all commitment fees or other fees required by the Financing Commitment to be
paid as of the date hereof. The Financing Commitment has not been amended or modified prior to the
date of this Agreement, and the respective commitments contained in the Financing Commitment has
not been withdrawn or rescinded in any respect. The Financing Commitment is in full force and
effect and constitutes the legal, valid and binding obligations of Parent. There are no conditions
precedent or other contingencies related to the funding of the full amount of the Debt Financing
required to be satisfied by Parent and Merger Sub, other than as expressly set forth in the
Financing Commitment. Assuming the accuracy of the representations and warranties set forth in
Section 3.2 and the existence of at least $215 million of available, unrestricted cash on hand with
the Company, upon consummation of the Debt Financing, the net proceeds contemplated by the
Financing Commitment will, in the aggregate, be sufficient for Merger Sub and the Surviving
Corporation to pay the aggregate Merger Consideration, aggregate Option Consideration (the
“Aggregate Option Consideration”) and aggregate RSU Consideration (the “Aggregate RSU
Consideration”) (and any other repayment or refinancing of debt or preferred stock contemplated by
this Agreement or the Financing Commitment) and any other amounts required to be paid in connection
with the consummation of the Transactions and to pay all related fees and expenses. As of the date
of this Agreement, no event has occurred which, with or without notice, lapse of time or both,
would constitute a default or breach on the part of Parent under the Financing Commitment and
neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Debt
Financing will not be satisfied or that the Debt Financing will not be available to Parent on the
Closing Date.



     Section 4.7 Brokers and Other Advisors. No broker, investment banker, financial advisor or
other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar



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fee or commission in connection with the Transactions based upon arrangements made by or on
behalf of Parent or any of its Subsidiaries (other than Citigroup Global Markets Inc., whose fees
shall be paid by Parent).




ARTICLE V.




COVENANTS AND AGREEMENTS




     Section 5.1 Preparation of the Proxy Statement; Stockholder Meeting.



          (a) As promptly as practicable following the date of this Agreement, the Company shall prepare
and, after consultation with Parent, file the Proxy Statement with the SEC. Parent and the Company
shall cooperate with one another in connection with the preparation of the Proxy Statement and
shall furnish all information concerning such party as the other party may reasonably request in
connection with the preparation of the Proxy Statement. Parent and the Company shall each use its
commercially reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as
reasonably practicable after such filing. The Company shall use its reasonable best efforts to
(i) respond to any comments on the Proxy Statement or requests for additional information from the
SEC with respect to the Proxy Statement as soon as practicable after receipt of any such comments
or requests and (ii) cause the Proxy Statement to be mailed to the stockholders of the Company as
promptly as practicable following the date of this Agreement and clearance by the SEC. The Company
shall promptly (A) notify Parent upon the receipt of any such comments or requests and (B) provide
Parent with copies of all correspondence between the Company and its Representatives, on the one
hand, and the SEC and its staff, on the other hand, with respect to the Proxy Statement. Prior to
responding to any such comments or requests or the filing or mailing of the Proxy Statement,
(x) the Company shall provide Parent with a reasonable opportunity to review and comment on any
drafts of the Proxy Statement and related correspondence and filings, (y) the Company shall include
in such drafts, correspondence and filings all comments reasonably proposed by Parent and (z) to
the extent practicable, the Company and its outside counsel shall permit Parent and its outside
counsel to participate in all communications with the SEC and its staff (including all meetings and
telephone conferences) relating to the Proxy Statement, this Agreement or any of the Transactions.
Subject to Section 5.3(c), the Proxy Statement shall include the Company Board Recommendation and,
if required, copies of the written opinion of the Financial Advisors referred to in Section 3.17.
If at any time prior to the Effective Time any event shall occur, or fact or information shall be
discovered, that should be set forth in an amendment of or a supplement to the Proxy Statement, the
Company shall, in accordance with the procedures set forth in this Section 5.1(a) (including
consultation with Parent), prepare and file with the SEC such amendment or supplement as soon
thereafter as is reasonably practicable and to the extent required by applicable Law, cause such
amendment or supplement to be distributed to the stockholders of the Company.




          (b) The Company shall, as soon as practicable following the date of this Agreement, establish
a record date for, duly call, give notice of, convene and hold a special meeting of its
stockholders (the “Company Stockholders Meeting”) solely for the purpose of obtaining the Company
Stockholder Approval. Subject to Section 5.3(c), the Company shall, through its Board of
Directors, make the Company Board Recommendation. The Company will




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(a) use all reasonable efforts to solicit or cause to be solicited from its stockholders
proxies in favor of adoption of this Agreement and (b) subject to Section 5.3(c), take all other
reasonable action necessary to secure the Company Stockholder Approval.




     Section 5.2 Conduct of Business of the Company. Except as expressly required by this
Agreement, as set forth on Section 5.2 of the Company Disclosure Schedule or as required by
applicable Law, during the period from the date of this Agreement until the Effective Time, unless
Parent otherwise agrees in writing (which agreement will not be unreasonably withheld or delayed),
the Company shall, and shall cause each of its Subsidiaries to, (x) conduct its business in the
ordinary course consistent with past practice, and (y) use commercially reasonable efforts, under
the circumstances, to maintain and preserve intact its business organization and the goodwill of
those having significant business relationships with it. Without limiting the generality of the
foregoing, except as expressly required by this Agreement, as set forth on Section 5.2 of the
Company Disclosure Schedule or as required by applicable Law, during the period from the date of
this Agreement to the Effective Time, the Company shall not, and shall not permit any of its
Subsidiaries to, without the prior consent of Parent (which consent will not be unreasonably
withheld or delayed):



          (a) (i) authorize for issuance or issue, sell, grant, dispose of, pledge or otherwise encumber
any shares of its capital stock, voting securities or equity interests, or any securities or rights
convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any
shares of its capital stock, voting securities or equity interests, or any rights, warrants,
options, calls, commitments or any other agreements of any character to purchase or acquire any
shares of its capital stock, voting securities or equity interests or any securities or rights
convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any
shares of its capital stock, voting securities or equity interests, provided that the Company may
issue shares of Company Common Stock upon the exercise of Options and RSUs that are outstanding on
the date of this Agreement and in accordance with the terms thereof; (ii) redeem, purchase or
otherwise acquire any of its outstanding shares of capital stock, voting securities or equity
interests, or any rights, warrants, options, calls, commitments or any other agreements of any
character to acquire any shares of its capital stock, voting securities or equity interests;
(iii) declare, set aside for payment or pay any dividend on, or make any other distribution in
respect of, any shares of its capital stock or otherwise make any payments to its stockholders in
their capacity as such (other than regular semi-annual dividends in cash or in kind on the Series B
Preferred Stock at the rate of $25 per share per annum); (iv) split, combine, subdivide or
reclassify any shares of its capital stock; or (v) amend (including by reducing an exercise price
or extending a term) or waive any of its rights under any provision of the Company Stock Plans or
any agreement evidencing any outstanding Option, RSU or other right to acquire capital stock of the
Company or any restricted stock purchase agreement or any similar or related contract, except such
vesting as required pursuant to employment agreements in effect on the date of this Agreement, and
except that the Company shall take such action as are necessary to comply with Section 2.3 hereof;




          (b) incur or assume any indebtedness for borrowed money or guarantee any indebtedness for
borrowed money (or enter into a “keep well” or similar agreement) or issue or sell any debt
securities or options, warrants, calls or other rights to acquire any debt securities of the
Company or any of its Subsidiaries, other than (A) standby letters of credit under the




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Company’s existing credit agreement listed on Section 3.13(a) of the Company’ Disclosure
Schedule to the extent required by Laws, provided that the Company shall have provided Parent with
prompt notice of the issuance of such standby letters of credit, and (B) borrowings from the
Company by a direct or indirect wholly-owned Subsidiary of the Company in the ordinary course of
business consistent with past practice;




          (c) sell, transfer, lease, license, mortgage, encumber, abandon or otherwise dispose of or
voluntarily permit to become subject to any Lien (including pursuant to a sale-leaseback
transaction or an asset securitization transaction) any of its material properties or assets
(including securities of Subsidiaries) to any Person, except (A) sales and non-exclusive licenses
of products and services to customers in the ordinary course of business consistent with past
practice, (B)  dispositions of excess equipment or obsolete or worthless assets or sales of
properties or assets (excluding securities of Subsidiaries) in an amount not in excess of $100,000
in the aggregate;




          (d) make any acquisition (by purchase of securities or assets, merger or consolidation, or
otherwise) of any other Person, business or division;




          (e) make any investment (by contribution to capital, property transfers, purchase of
securities or otherwise) in, or loan or advance (other than travel and similar advances to its
employees in the ordinary course of business consistent with past practice) to, any Person other
than a direct or indirect wholly owned Subsidiary of the Company in the ordinary course of business
consistent with past practice;




          (f) other than in the ordinary course of business consistent with past practice, enter into,
terminate or amend (other than immaterial amendments) any Material Contract;




          (g) increase in any manner the compensation of any of its directors, officers or employees or
enter into, establish, amend, modify or terminate any employment, consulting, retention, change in
control, collective bargaining, bonus or other incentive compensation, profit sharing, health or
other welfare, stock option or other equity (or equity-based), pension, retirement, vacation,
severance, deferred compensation or other compensation or benefit plan (including any plan that
would constitute a Company Plan), policy, agreement, trust, fund or arrangement with, for or in
respect of, any stockholder, director, officer, other employee, consultant or Affiliate, or enter
into or make any loans or advances to directors, officers or employees (other than advances in the
ordinary course of business consistent with past practice) other than (i) as required pursuant to
applicable Law or the terms of any employment agreement or Company Plan existing as of the date of
this Agreement, (ii)  increases in salaries, wages and benefits of employees (but not officers)
made in the ordinary course of business consistent with past practice and in amounts and in a
manner consistent with past practice and (iii) taking any such actions in connection with the
hiring and termination of employees (other than officers, as such term is used in Rule 16a-1(f) of
the Exchange Act) in the ordinary course of business consistent with past practice;




          (h) make any changes (other than immaterial changes made in the ordinary course of business
consistent with past practice) in financial or tax accounting methods, principles, policies or
practices (or change an annual accounting period), except insofar as may




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be required by GAAP, the SEC, the Internal Revenue Service or applicable Law (including
published Tax guidance) or such changes in practices as may be made in connection with the
Company’s efforts to enhance its and its Subsidiaries’ internal controls over financial reporting;




          (i) amend the Company Charter Documents or the Subsidiary Documents;




          (j) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring,
recapitalization, merger, consolidation or other reorganization;




          (k) waive, release, assign, settle or compromise any action, investigation, proceeding or
litigation instituted, commenced, pending or threatened against the Company or any of its
Subsidiaries, other than waivers, releases, assignments, settlements or compromises in the ordinary
course of business consistent with past practice that involve only the payment of monetary damages
by the Company and its Subsidiaries not in excess of $100,000 in the aggregate and that do not
impose equitable relief or any restrictions on the business and operations of, on, or the admission
of any wrongdoing by, the Company or any of its Subsidiaries;




          (l) enter into any license with respect to Company Intellectual Property unless such license
is non-exclusive and entered into in the ordinary course of business consistent with past
practices;




          (m) permit any material item of Company Intellectual Property to become abandoned, cancelled,
invalidated or dedicated to the public;




          (n) make capital expenditures in any fiscal quarter in excess of $100,000; or




          (o) agree, in writing or otherwise, to take any of the foregoing actions or, subject to
Section 5.3, take any action or agree, in writing or otherwise, to take any action, which would
cause any of the conditions to the Merger set forth in this Agreement not to be satisfied.




     Section 5.3 No Solicitation by the Company; Etc.



          (a) The Company and its Subsidiaries shall, and the Company shall use its reasonable best
efforts to cause the Company’s and its Subsidiaries’ respective directors, officers, investment
bankers, financial advisors, attorneys, accountants, agents and other representatives
(collectively, “Representatives”) to, and shall use reasonable best efforts to cause its and its
Subsidiaries’ non-officer employees to, immediately cease and cause to be terminated any
discussions or negotiations with any Person with respect to a Takeover Proposal. The Company and
its Subsidiaries shall not, and the Company shall not knowingly authorize or permit its
Representatives to, and shall not knowingly authorize or permit its and its Subsidiaries’
non-officer employees to, directly or indirectly (i) solicit, initiate or knowingly facilitate or
encourage (including by way of furnishing information or providing assistance) any inquiries or
proposals that constitute, or may reasonably be expected to lead to, any Takeover Proposal,
(ii) participate in any discussions or negotiations with, or furnish or disclose any non-public
information relating to the Company or any of its Subsidiaries to or otherwise cooperate with or
assist, any third party regarding any Takeover Proposal, (iii) approve, endorse or recommend any
Takeover Proposal or (iv) enter into any letter of intent or agreement related to




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any Takeover Proposal; provided, however, that if after the date hereof the Company receives
an unsolicited, bona fide written Takeover Proposal made after the date hereof and the Board of
Directors (or a committee thereof) of the Company determines in good faith after consultation with
outside legal counsel (i)  that such Takeover Proposal is, or is reasonably likely to lead to, a
Superior Proposal and (ii) that the failure to take such action would be inconsistent with its
fiduciary duties to the Company’s stockholders under applicable law, then the Company may, at any
time prior to obtaining the Company Stockholder Approval (but in no event after obtaining the
Company Stockholder Approval), (A) furnish information with respect to the Company and its
Subsidiaries to the Person making such Takeover Proposal, but only after such Person is a party to
or enters into a customary confidentiality agreement with the Company (which confidentiality
agreement must be no less favorable to the Company in any material respect (i.e., no less
restrictive with respect to the conduct of such Person) than the then applicable terms of the
Confidentiality Agreement) and which shall permit the Company to comply with the terms of this
Section 5.3, provided that (1) such confidentiality agreement may not include any provision calling
for an exclusive right to negotiate with the Company and (2) the Company advises Parent of all such
non-public information delivered to such Person concurrently with its delivery to such Person and
concurrently with its delivery to such Person the Company delivers to Parent all such information
not previously provided to Parent, (B) participate in discussions and negotiations with such Person
regarding such Takeover Proposal (including solicitation of a revised Takeover Proposal) and
(C) enter into the confidentiality agreement contemplated by clause (A) of this proviso. The
Company shall take all action necessary to enforce, and shall not waive or amend, each
confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is
a party or by which any of them is bound (in each case, other than any such agreement with Parent);
provided, however, that the Company may waive any standstill or similar agreement and permit a
proposal to be made if the Board (or committee thereof) determines in good faith, after
consultation with outside counsel, that failure to do so would be inconsistent with its fiduciary
duty under applicable law. The Company shall provide Parent with a correct and complete copy of
any confidentiality agreement entered into pursuant to this paragraph within 24 hours of the
execution thereof.




          (b) In addition to the other obligations of the Company set forth in this Section 5.3, the
Company shall promptly advise Parent no later than twenty-four hours after receipt by an officer or
director of the Company, if any proposal, offer, inquiry or other contact is initially received by,
any information is initially requested from, or any discussions or negotiations are sought to be
initiated or continued with, the Company in respect of any Takeover Proposal, and shall notify
Parent, indicate the identity of the Person making such proposal, offer, inquiry or other contact
and the material terms and conditions of any proposals or offers or the nature of any inquiries or
contacts (and shall include with such notice copies of any written materials received from or on
behalf of such Person relating to such proposal, offer, inquiry or request), and thereafter shall
promptly (within twenty four hours) keep Parent informed of all material developments affecting the
status and terms of any such proposals, offers, inquiries or requests and of the status of any such
discussions or negotiations.




          (c) Except as expressly permitted by this Section 5.3(c), neither the Board of Directors of
the Company nor any committee thereof shall (i)(A) qualify, withdraw or modify, in a manner adverse
to Parent, or propose publicly to qualify, withdraw or modify, in a manner adverse to Parent, the
Company Board Recommendation or (B) approve or recommend, or




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propose publicly to approve or recommend, any Takeover Proposal (any action described in this
clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve or recommend,
or propose publicly to approve or recommend, or cause or authorize the Company or any of its
Subsidiaries to enter into, any letter of intent, agreement in principle, memorandum of
understanding, merger, acquisition, purchase or joint venture agreement or other agreement related
to any Takeover Proposal (other than a confidentiality agreement in accordance with Section 5.3(a))
(each, a “Company Acquisition Agreement”). Notwithstanding the foregoing or any other provision of
this Agreement, prior to the time that the Company Stockholder Approval has been obtained (but in
no event after obtaining the Company Stockholder Approval) (x) the Board of Directors of the
Company (or committee thereof) may make an Adverse Recommendation Change if the Board of Directors
(or committee thereof) determines in good faith, after consultation with outside legal counsel,
that the failure to make such Adverse Recommendation Change would be inconsistent with its
fiduciary duties to the Company’s stockholders under the applicable law, and, with respect to any
recommendation of a Takeover Proposal, the Board (or committee thereof) determines in good faith
that such Takeover Proposal constitutes a Superior Proposal, and (y) if the Company receives an
unsolicited, bona fide written Takeover Proposal that the Board of Directors (or committee thereof)
determines in good faith constitutes a Superior Proposal, the Board of Directors (or committee
thereof) may, in response to such Superior Proposal after the expiration of the three business day
period described below, cause the Company to enter into a definitive agreement with respect to such
Superior Proposal but only if the Company shall have concurrently with entering into such
definitive agreement terminated this Agreement pursuant to Section 7.1(d)(ii) and prior thereto or
concurrently therewith paid the Termination Fee required pursuant to Section 7.3, but in any event
only after the third business day following Parent’s receipt of written notice (the “Notice”) from
the Company advising Parent that the Board of Directors of the Company (or any committee thereof)
is prepared to enter into a definitive agreement with respect to such Superior Proposal and
terminate this Agreement (it being understood that the Company shall be required to deliver a new
Notice in respect of any revised Superior Proposal (other than immaterial revisions) from such
third party or its Affiliates that the Company proposes to accept, attaching the most current
version of such agreement to such Notice and the other information required by Section 5.3(b)
(which information shall be updated on a current basis), and only if at the end of such three
business day period, after taking into account any revised terms as may have been proposed by
Parent in writing (and not withdrawn) since its receipt of such Notice, the Board of Directors of
the Company (or committee thereof) has again in good faith made the determination referred to above
in this clause (y).




          (d) For purposes of this Agreement:





          “Takeover Proposal” means any inquiry, proposal or offer from any Person or “group” (as
defined in Section 13(d) of the Exchange Act), other than Parent and its Subsidiaries,
relating to any (A) direct or indirect acquisition (whether in a single transaction or a
series of related transactions) of assets of the Company and its Subsidiaries (including
securities of Subsidiaries) equal to 20% or more of the Company’s consolidated assets or to
which 20% or more of the Company’s consolidated revenues on a consolidated basis for the
then preceding four completed and publicly reported calendar quarters are attributable,
(B) direct or indirect acquisition (whether in a single transaction or a series of related
transactions) of 20% or more of the Company



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Common Stock, (C) tender offer or exchange offer that if consummated would result in
any Person or “group” (as defined in Section 13(d) of the Exchange Act) beneficially owning
20% or more of the Company Common Stock or (D) merger, consolidation, share exchange,
business combination, recapitalization, liquidation, dissolution or similar transaction
involving the Company or any of its Subsidiaries; in each case, other than the Transactions.




          “Superior Proposal” means an unsolicited, written Takeover Proposal made by a third
party, which is on terms and conditions which the Board of Directors of the Company (or
committee thereof) determines in its good faith judgment (after consultation with the
Financial Advisor or another financial advisor of national reputation) to be more favorable
to the Company’s stockholders from a financial point of view (taking into account all terms
and conditions of the Takeover Proposal, including any break-up fees, expense reimbursement
provisions and financial terms, and the ability of the Person making such proposal to
consummate the transactions contemplated by such proposal, based upon, among other things,
the availability of financing and the expectation of obtaining required approvals) than the
Merger and the other Transactions, taking into account at the time of determination any
changes to the terms of this Agreement that as of that time had been proposed by Parent in
writing (and not withdrawn), except that the reference to “20%” in the definition of
“Takeover Proposal” shall be deemed to be a reference to “50%”.



          (e) Nothing in this Section 5.3 shall prohibit the Board of Directors of the Company from
taking and disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a),
Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act if such Board of
Directors determines in good faith, after receiving the advice of outside counsel, that failure to
so disclose such position would be inconsistent with applicable Law; provided, however, that if
such disclosure has the effect of withdrawing or modifying the Company Board Recommendation in a
manner adverse to Parent or the approval of this Agreement by the Board of Directors of the
Company, Parent shall have the right to terminate this Agreement to the extent set forth in
Section 7.1(c)(iii) of this Agreement.




     Section 5.4 Further Action; Reasonable Best Efforts.



          (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the
parties hereto shall, and shall cause their respective Affiliates to, use reasonable best efforts
to take, or cause to be taken, all actions necessary, proper and advisable under applicable Laws to
consummate the Transactions as promptly as practicable. In furtherance and not in limitation of
the foregoing, each party shall: (i) make an appropriate filing of a Notification and Report Form
pursuant to the HSR Act with respect to the Transactions as promptly as practicable and supply as
promptly as practicable any additional information and documentary material that may be requested
pursuant to the HSR Act; (ii) make any additional filings required by any applicable Competition
Law and take all other actions reasonably necessary, proper or advisable to cause the expiration or
termination of the applicable waiting periods under the HSR Act or other Competition Laws, and
comply with applicable Foreign Antitrust Laws, as promptly as practicable; and (iii) subject to
applicable Laws relating to access to and the exchange of information, use its reasonable best
efforts to (A) cooperate with each other in connection with




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any filing or submission and in connection with any investigation or other inquiry under or
relating to any Competition Law; (B) keep the other parties informed of any communication received
by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the
Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority and
of any communication received or given in connection with any proceeding by a private party, in
each case regarding any of the Transactions; and (C) permit the other parties hereto to review in
advance any communication intended to be given by it to, and consult with the other parties in
advance of any meeting or conference with, the FTC, the DOJ or any such other Governmental
Authority, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental
Authority, give the other parties the opportunity to attend and participate in such meetings and
conferences. To the extent permitted by Law, Parent shall have the right to direct all matters
relating to compliance with Competition Laws in connection with any Transaction.




          (b) In furtherance and not in limitation of the covenants of the parties contained in
Section 5.4(a), but subject to Section 5.4(c), in the event that any legal, administrative,
arbitral or other proceeding, claim, suit or action is instituted (or threatened to be instituted)
by a Governmental Authority or private party under any Competition Laws challenging any of the
Transactions or in the event that any Governmental Authority shall otherwise object to any of the
Transactions, each of Parent, Merger Sub and the Company shall cooperate with each other and use
its respective reasonable best efforts: (A) to vigorously defend, contest and resist any such
proceeding, claim, suit, action or challenge; (B) to have vacated, lifted, reversed or overturned
any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that
is in effect and that prohibits, prevents or restricts consummation of the Transactions; and (C) to
resolve objections.




          (c) Notwithstanding anything to the contrary contained in this Agreement, in no event shall
Parent or any of its Subsidiaries or Affiliates be obligated to, and the Company shall not, without
Parent’s prior written consent, propose or agree to accept any undertaking or condition, enter into
any consent decree, make any divestiture, accept any operational restriction or take or commit to
take any action that would reasonably be expected to limit: (i) the freedom of action of Parent or
its Subsidiaries or Affiliates with respect to the operation of, or Parent’s ability to retain, the
Company or any businesses, product lines or assets of the Company, or (ii) Parent’s or its
Subsidiaries’ or Affiliates’ ability to retain, own or operate any portion of the businesses,
product lines or assets of Parent or any of its Subsidiaries or Affiliates, or alter or restrict in
any way the business or commercial practices of Parent or its Subsidiaries or Affiliates or the
Company or its Subsidiaries (any such event, a “Burdensome Condition”).




          (d) Notwithstanding the foregoing or any other provision of this Agreement, nothing in this
Section 5.4 shall limit a party’s right to terminate this Agreement pursuant to
Section 7.1(b)(i) or (ii) so long as such party has up to then complied in all material respects
with its obligations under this Section 5.4.




          (e) The Company shall not take any action that would result in any state takeover statute or
similar Law becoming applicable to any of the Transactions. If any state takeover statute or
similar Law becomes applicable to any of the Transactions, Parent, Merger Sub and the Company shall
use reasonable best efforts to take all action necessary to ensure that




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the Transactions may be consummated as promptly as practicable on the terms contemplated by
this Agreement and otherwise minimize the effect of such Law on the Transactions.




          (f) For purposes hereof, “Competition Laws” means the HSR Act, the Clayton Act, as amended,
the Federal Trade Commission Act, as amended, and all other applicable Laws issued by a
Governmental Authority that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade or lessening of competition
through merger or acquisition, including any Foreign Antitrust Laws.




     Section 5.5 Public Announcements. The initial press release with respect to the execution of
this Agreement shall be a joint press release to be reasonably agreed upon by Parent and the
Company. Thereafter and prior to the Effective Time, neither the Company nor Parent shall issue or
cause the publication of any press release or other public announcement (to the extent not
previously issued or made in accordance with this Agreement) with respect to the Merger, this
Agreement or the other Transactions without the prior consent of the other party (which consent
shall not be unreasonably withheld or delayed), except (i) as may be required by Law (including,
without limitation, as permitted by Section 5.3(e)) or by any applicable listing agreement with a
national securities exchange as determined in the good faith judgment of the party proposing to
make such release (in which case such party shall not issue or cause the publication of such press
release or other public announcement without prior consultation with the other party) or (ii) for
press releases or announcements to be issued with respect to actions taken by the Company or its
Board of Directors as permitted by and in accordance with Section 5.3.



     Section 5.6 Access to Information; Confidentiality.



          (a) Subject to applicable Laws relating to the exchange of information (including applicable
Competition Laws) and the Confidentiality Agreement, the Company shall, and shall cause each of its
Subsidiaries to, afford to Parent and Parent’s Representatives reasonable access after providing
reasonable prior written notice, during normal business hours to all of the Company’s and its
Subsidiaries’ properties, assets, books, Contracts, commitments, electronic and physical records,
correspondence (including electronic correspondence), officers, employees, accountants, counsel,
financial advisors and other Representatives and the Company shall furnish (or otherwise make
available, including through the SEC EDGAR system) promptly to Parent (i) a copy of each report,
schedule and other document (A) filed, furnished or received by it or any of its Subsidiaries
pursuant to the requirements of Federal or state securities Laws or (B) filed or furnished by it or
any of its Subsidiaries with any Governmental Authority with respect to compliance with applicable
Laws and (ii) all other information concerning its and its Subsidiaries’ business, properties and
personnel as Parent may reasonably request; provided, however, that nothing in this Agreement shall
require the Company or any of its Subsidiaries to provide access to any item that contains
confidential information the Company is obligated to any third party to maintain the
confidentiality of.




          (b) Except for disclosures permitted by the terms of the Confidentiality Agreement dated as of
December 12, 2007 between Parent and the Company (as it may be amended from time to time, the
“Confidentiality Agreement”), Parent and Parent’s Representatives shall hold information received
from the Company pursuant to this Section 5.6




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in confidence in accordance with the terms of the Confidentiality Agreement. The terms of the
Confidentiality Agreement shall continue in full force and effect following execution (or
termination) of this Agreement.




          (c) No investigation by Parent or its representatives or advisors prior to or after the date
of this Agreement shall diminish, obviate or cure any breach of any representation, warranty,
covenant or agreement contained in this Agreement or otherwise affect Parent’s rights under
Articles I, VI and VII of this Agreement.




     Section 5.7 Notification of Certain Matters. The Company shall give prompt notice to Parent,
and Parent shall give prompt notice to the Company, of (i) any notice or other communication
received by such party from any Governmental Authority in connection with the Transactions or from
any Person alleging that the consent of such Person is or may be required in connection with the
Transactions, if the subject matter of such communication or the failure of such party to obtain
such consent could be material to the Company, the Surviving Corporation or Parent, (ii) any
actions, suits, claims, investigations or proceedings commenced or, to such party’s Knowledge,
threatened against, relating to or involving or otherwise affecting such party or any of its
Subsidiaries which relate to the Transactions, (iii) the discovery of any fact or circumstance
that, or the occurrence or non-occurrence of any event the occurrence or non-occurrence of which,
would cause any representation or warranty made by such party contained in this Agreement to be
untrue such that the conditions set forth in Section 6.2(a) or 6.3(a) would not be satisfied and
(iv) any failure of such party to comply with or satisfy any covenant or agreement to be complied
with or satisfied by it hereunder such that the conditions set forth in Section 6.2(b) or 6.3(b)
would not be satisfied; provided, however, that the delivery of any notice pursuant to this
Section 5.7 shall not (x) be considered an admission that any representation or warranty is untrue
for purposes of Article VI or Article VII, (y) cure any breach or non-compliance with any other
provision of this Agreement or (z) limit the remedies available to the party receiving such notice;
provided, further, that the failure to deliver any notice pursuant to this Section 5.7 shall not be
considered in determining whether the condition set forth in Section 6.2(b) or 6.3(b) has been
satisfied or the related termination right in Article VII is available except to the extent that a
party hereto is actually prejudiced by such failure to give notice.



     Section 5.8 Indemnification and Insurance.



          (a) From and after the Effective Time, the Surviving Corporation shall (and Parent shall cause
the Surviving Corporation to) indemnify the individuals who at or prior to the Effective Time were
directors or officers of the Company (collectively, the “Indemnitees”) with respect to all acts or
omissions by them in their capacities as such at any time prior to the Effective Time, to the
fullest extent permitted by (A) the Company Charter Documents as in effect on the date of this
Agreement, (B) any applicable contract as in effect on the date of this Agreement and
(C) applicable Law; provided, however, that the Surviving Corporation shall not be required to
indemnify any Indemnitee for such Indemnitee’s criminal conduct or fraud.




          (b) Parent will provide, or cause the Surviving Corporation to provide, for a period of not
less than six years after the Effective Time, the Indemnitees (as defined to mean those persons
currently insured under the Company’s directors’ and officers’ insurance and




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indemnification policy) with an insurance and indemnification policy that provides coverage
for events occurring at or prior to the Effective Time (the “D&O Insurance”) that is no less
favorable than the existing policy or, if substantially equivalent insurance coverage is
unavailable, the best available coverage; provided, however, that Parent and the Surviving
Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 300%
of the annual premium currently paid by the Company for such insurance, provided, further, that if
the annual premiums of such insurance coverage exceed such amount, Parent or the Surviving
Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost
not exceeding such amount. Notwithstanding the foregoing, the Surviving Corporation may fulfill
its obligation to provide insurance under this Section 5.8(b) by obtaining a prepaid “tail” policy
of at least the same coverage and amounts containing terms and condition which are, in the
aggregate, no less favorable to the insured than the existing policy, and maintaining such “tail”
policy in full force and effect for a period of at least six (6) years.




          (c) The Indemnitees to whom this Section 5.8 applies shall be third party beneficiaries of
this Section 5.8. The provisions of this Section 5.8 are intended to be for the benefit of each
Indemnitee, his or her heirs and his or her representatives.




          (d) In the event that Parent or the Surviving Corporation or any of their respective
successors or assigns (i) consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or
conveys all or a majority of its properties and assets to any Person, then, and in each such case,
proper provision shall be made so that the successors and assigns of Parent or the Surviving
Corporation shall succeed to the obligations set forth in this Section 5.8.




     Section 5.9 Securityholder Litigation. The Company shall give Parent prompt written notice
of, and the opportunity to participate in, the defense or settlement of any securityholder
litigation against the Company and/or its directors relating to the Transactions, and no such
settlement shall be agreed to without Parent’s prior written consent (which consent shall not be
unreasonably withheld or delayed).



     Section 5.10 Fees and Expenses. Whether or not the Merger is consummated, and except as
otherwise contemplated under Section 7.3 of the Agreement, all fees and expenses incurred in
connection with this Agreement, the Merger and the Transactions shall be paid by the party
incurring such fees or expenses; provided, however, that Company and Parent shall
share equally (a) the filing fee of Parent’s pre-merger notification report under the HSR Act and
all fees and expenses incurred by Parent or Company in seeking approvals under all other applicable
Antitrust Laws, and (b) all fees and expenses, other than accountants’ and attorneys’ fees,
incurred with respect to the printing, filing and mailing of the Proxy Statement (including any
related preliminary materials) and any amendments or supplements thereto).



     Section 5.11 Employee Benefits.



          (a) Without limiting the provisions of Section 5.11(d) hereof, for a period of time of at
least one year following the Closing Date, Parent shall, or shall cause its Affiliates to, provide
each employee who continues employment with the Surviving Corporation (a “Continuing Employee”)
with combined aggregate pay (which shall include rates of base salary




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or wages and annual bonus opportunities) and employee benefits that are comparable to the pay
and benefits provided to similarly situated employees of Parent or its Affiliates, provided that
for such purposes of this covenant, stock options and other equity awards shall be disregarded.




          (b) Continuing Employees shall also be provided credit for all service with the Company and
its subsidiaries, to the same extent as such service was credited for such purpose by the Company
and its Subsidiaries for such Continuing Employees, under (i) all employee benefit plans, programs,
policies and fringe benefits (other than stock option and other equity award programs) arrangements
to be provided to such employees for purposes of eligibility and vesting, (ii) severance plans,
programs and policies to be provided to such employees for purposes of calculating the amount of
each such employee’s severance benefits and (iii) vacation and sick leave plans, programs and
policies for purposes of calculating the amount of each such employee’s vacation and sick leave,
except, in each case, as would result in a duplication of benefits. With respect to each employee
benefit plan, program or policy of Parent or its Subsidiaries that is a “welfare benefit plan” (as
defined in Section 3(1) of ERISA, and without regard to whether ERISA applies thereto) in which
Continuing Employees participate following the Effective Time, Parent or its Subsidiaries shall
cause there to be waived any pre-existing condition limitations. In addition, to the extent
permissible under the terms of such plan, if the effective time at which a Continuing Employee
participates in any such plan falls within an annual period of coverage under such plan, each
Continuing Employee shall be given credit for covered expenses paid by that Continuing Employee and
his or her dependents under comparable Company plans during the applicable coverage period through
such effective time toward satisfaction of any annual deductible limitation and out-of-pocket
maximum that may apply under that plan of the Surviving Corporation and its Subsidiaries.




          (c) Parent shall, or shall cause the Surviving Corporation to, assume and either shall, or
shall cause the Surviving Corporation to, discharge the obligations under each employment,
severance or retention agreement (including the establishment and funding of any related rabbi
trust) listed in Section 3.11(a) of the Company Disclosure Schedule.




          (d) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.11
shall impede or limit Parent, Merger Sub, the Company, the Surviving Corporation or any of their
Affiliates from terminating any of their employees at any time for any reason or no reason, subject
to the provisions of applicable Law.




          (e) Effective no later than the last day of the payroll period immediately preceding the
Closing Date, the Company and its ERISA Affiliates, as applicable, shall each terminate any and all
plans intended to include a Code Section 401(k) arrangement (collectively, the “401(k) Plans”)
unless Parent provides written notice to the Company that any 401(k) Plan shall not be so
terminated. Unless Parent provides such written notice to the Company, no later than seven (7)
business days prior to the Closing Date, the Company shall provide to Parent (i) copies of duly
adopted resolutions by the Company’s Board of Directors authorizing the termination of such 401(k)
Plans and (ii) with respect to each 401(k) Plan, an executed amendment to the 401(k) Plan
sufficient to assure compliance with all applicable requirements of the Code and regulations
thereunder so that the tax-qualified status of the 401(k) Plan shall be maintained at the time of
termination. The form and substance of such resolutions and amendment shall be subject to the
prior review and approval of Parent.




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          (f) The provisions of this Section 5.11 are solely for the benefit of the parties to this
Agreement, and no current or former employee, director or independent contractor or any other
individual associated therewith shall be regarded for any purpose as a third party beneficiary of
this Section 5.11 and nothing herein shall be construed as an amendment to any Company Plan for any
purpose.




     Section 5.12 Convertible Notes. Parent acknowledges that the consummation of the Merger will
constitute a “Fundamental Change,” as such term is defined in Indenture dated as of November 23,
2005 (the “Indenture”) between the Company and The Bank of New York Mellon Trust Company N.A., as
successor in interest to JPMorgan Chase Bank, National Association, as Trustee (the “Trustee”).



          (a) As soon as possible, after the date of this Agreement, the Company shall enter into a
supplemental indenture with the Trustee in form agreed to by Parent (the “Supplemental Indenture”)
to be effective at the Effective Time. The Supplemental Indenture shall, among other things, amend
the Indenture to remove the Indenture Covenants (as defined in the Consent and Conversion
Agreement).




          (b) As soon as reasonably practical after the date hereof, the Company shall provide to each
holder of the outstanding Convertible Notes a Consent and Conversion Agreement, in the forms agreed
to by Parent and the Company and substantially similar to the Consent and Conversion Agreement
dated as of even date herewith between the Company and Highbridge International LLC, (together, the
“Consent and Conversion Agreements”). The Consent and Conversion Agreements shall provide, among
other things, (i) for the payment upon conversion of a Note of the sum of the Conversion
Obligation, the Consent Premium (both as defined in the Consent and Conversion Agreement), accrued
but unpaid interest on such Convertible Notes and the Make Whole Premium (as defined in the
Indenture) (together, the “Conversion Price”) for such Note, (ii) the acknowledgement and agreement
of such holders to the removal and deletion of each of the Indenture Covenants from the Indenture
effective automatically upon the conversion of such holder’s Convertible Notes, and (iii) for the
sale of the Warrants held by such holder to the Company effective as of the Effective Time for the
price for the Warrants set forth in the applicable Consent and Conversion Agreement. The Company
shall ensure that the price paid for any Note shall not exceed the Conversion Price for such Note.
The conversion of the Convertible Notes (and any payments in connection with such conversion) shall
be conditioned on the occurrence of the Closing. Prior to the Effective Time, the Company shall
take all steps reasonably necessary upon consultation with Parent to obtain the Supplemental
Indenture and to complete the conversion of the Convertible Notes surrendered pursuant to the
Consent and Conversion Agreements. The Company shall not, without the consent of Parent, waive any
condition to the Consent and Conversion Agreements or make any changes to the Consent and
Conversion Agreements other than as agreed between Parent and the Company.




          (c) Promptly after the date of this Agreement, the Company shall use commercially reasonable
efforts to prepare all other necessary and appropriate documentation required by the Indenture in
connection with the transactions contemplated herein (collectively, the “Note Documents”), and such
Note Documents shall comply as to form and substance with applicable legal requirements, including,
but not limited to, the requirements under the Indenture.




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The Company shall, and shall cause its Subsidiaries to, use its and their reasonable
commercial efforts to have its and their Representatives to provide such cooperation to Parent as
Parent may reasonably request in connection with the Note Documents and the conversion of the
Convertible Notes. All Note Documents and mailings to the holders of the Convertible Notes in
connection with the transactions contemplated herein shall be subject to the prior review and
comment by each of the Company and Parent and shall be reasonably acceptable to each of them.




          (d) Following the Closing and to the extent any Convertible Notes remain outstanding, Parent
shall use commercially reasonable efforts to cause the Surviving Corporation to assume and
discharge the obligations of the Company under the Indenture and the Supplemental Indenture in
accordance with the terms thereof, including the giving of any notices and making of any payments
that may be required in connection with any repurchases or conversions of Convertible Notes
occurring as a result of such Fundamental Change, and the Company shall assist Parent and the
Surviving Corporation in assuming such obligations of the Company.




     Section 5.13 Warrants. Parent acknowledges that the consummation of the Merger will
constitute a “Change of Control,” as such term is defined in the Warrants. Prior to the Effective
Time, the Company shall take all commercially reasonable actions to provide for the (i) Company’s
purchase of the Warrants at the Effective Time for the price for the Warrants set forth in the
applicable Consent and Conversion Agreement, (ii) the cancellation of all the outstanding Warrants
effective upon the Effective Time and (iii) all such other action that Parent may reasonably
request, including the giving of any notices, in connection with any purchases of the Warrants in
connection with such Change of Control in accordance with the terms thereof.



     Section 5.14 Debt Financing.



          (a) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the
Debt Financing on the terms and conditions described in the Financing Commitment, including
commercially reasonable efforts to (i) maintain in effect the Financing Commitment, (ii) satisfy on
a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing,
(iii) enter into definitive agreements with respect thereto on terms and conditions contained in
the Financing Commitment or consistent in all material respects with the Financing Commitment, and
(iv) consummate the Debt Financing at or prior to the Closing. Parent shall give the Company
prompt notice (A) of any material breach by any party of the Financing Commitment of which Parent
or Merger Sub becomes aware, (B) if and when Parent or Merger Sub becomes aware that any portion of
the financing contemplated by the Financing Commitment will not be available to consummate the
Transactions and (C) of any termination of the Financing Commitment. Parent shall keep the Company
informed on a reasonably current basis in reasonable detail of the status of their efforts to
arrange the Debt Financing or Alternative Financing and provide to the Company copies of executed
copies of the definitive documents related to the Debt Financing or Alternative Financing
(excluding any fee letters, engagement letters or other agreements that are confidential by their
terms). If the Financing Commitment shall expire or terminate for any reason, Parent shall use its
reasonable best efforts to promptly obtain, and will promptly provide the Company with a copy of, a
new financing commitment that provides for an amount of financing sufficient to consummate the
transactions




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contemplated hereby and other terms and conditions the aggregate effect of which is not
materially adverse to Parent in comparison with those contained in the Financing Commitment as
originally issued (an “Alternate Financing”). Any
Alternate Financing may be made by the Lenders or
other lenders that are parties to the Financing Commitment as originally issued or another bona
fide lender or lenders acceptable to the Parent. Parent shall accept any such commitment letter if
the funding conditions and other terms and conditions contained therein are not materially adverse
to Parent in comparison with those contained in the Financing Commitment as originally issued.




          (b) The Company shall provide, and shall cause its Subsidiaries and use its reasonable best
efforts to cause its and their respective Representatives to provide on a timely basis, such
reasonable assistance and cooperation in connection with the arrangement of the Debt Financing
contemplated by the Financing Commitment (or Alternate Financing, as applicable) as may be
reasonably requested by Parent, provided, however, that no such requested cooperation may
unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such
cooperation shall include (i) making senior management of the Company reasonably available for
customary lender meetings and “roadshow” presentations and cooperating with prospective lenders in
performing their due diligence, (ii) providing due diligence materials to the parties to the
Financing Commitment or other potential financing sources (including pursuant to an Alternate
Financing) (iii) furnishing all financial statements and financial and other information that are
customarily prepared by the Company and reasonably required in connection with such Debt Financing
or Alternate Financing, as applicable, (iv) assisting Parent and its debt financing sources in the
preparation of, and executing, if applicable, an offering document and definitive transaction
documents for such Debt Financing or Alternate Financing, as applicable, and materials for rating
agency presentations, (v) cooperating with the marketing efforts of Parent and its debt financing
sources for such Debt Financing or Alternate Financing, as applicable, (vi) providing such other
documents as may be reasonably requested by Parent in connection therewith, and (vii) facilitating
the pledge of collateral (including the release of any Liens on the assets of the Company and its
Subsidiaries) to secure the Debt Financing or Alternate Financing, as applicable, at and after the
Closing; provided, that that no obligation of the Company or any of its Subsidiaries under any
certificate, document or instrument shall be effective until the Effective Time and none of the
Company or any Subsidiary shall be required to pay any commitment or other similar fee or incur any
other liability in connection with the Debt Financing or Alternate Financing, as applicable, prior
to the Closing.




     Section 5.15 Inventions Assignment. Prior to the Effective Time, the Company shall use
commercially reasonable efforts to obtain from each employee and independent contractor listed on
Schedule 3.15(f) of the Company Disclosure Schedule a fully executed written agreement in a form
acceptable to Parent providing that all Company Intellectual Property developed by such Persons is
owned exclusively by the Company and its Subsidiaries; provided that, notwithstanding anything in
this Agreement to the contrary, no failure to have obtained such fully executed agreements from
such employees and independent contractors prior to the Effective Time shall be deemed to
constitute a failure of the condition to the Merger set forth in Section 6.2(b).



     Section 5.16 Product Review. Prior to the Effective Time, the Company shall respond promptly
to Parent’s reasonable requests for information concerning the Company’s use of Open



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Source Software (including providing descriptions of whether and how the Open Source Software
is or was used, modified and/or distributed) and shall use commercially reasonable efforts to take
such actions as reasonably requested by Parent to address issues identified by Parent arising from
the results of the scan of the currently-supported release(s) of the Company’s Software at the
request of Parent; provided that, notwithstanding anything in this Agreement to the contrary, no
failure to have completed the actions requested by Parent pursuant to this Section 5.16 prior to
the Effective Time shall be deemed to constitute a failure of the condition to the Merger set forth
in Section 6.2(b).




ARTICLE VI.




CONDITIONS PRECEDENT




     Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger. The respective
obligations of each party hereto to effect the Merger shall be subject to the satisfaction (or
waiver, if permissible under applicable Law) on or prior to the Closing Date of the following
conditions:



          (a) Stockholder Approval. The Company Stockholder Approval shall have been obtained in
accordance with applicable Law and the Company Charter Documents; 




          (b) No Injunctions or Restraints. No Law, injunction, judgment or ruling enacted,
promulgated, issued, entered, amended or enforced by any Governmental Authority (collectively,
“Restraints”) shall be in effect enjoining, restraining, preventing or prohibiting consummation of
the Merger or making the consummation of the Merger illegal; and




          (c) Regulatory Approvals. The waiting period applicable to the consummation of the Merger
under any applicable Competition Laws shall have expired or been terminated and all other approvals
or consents required of any other Governmental Authority for the consummation of the Merger shall
have been obtained.




     Section 6.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and
Merger Sub to effect the Merger are further subject to the satisfaction (or waiver, if permissible
under applicable Law) on or prior to the Closing Date of the following conditions:



          (a) Representations and Warranties. The representations and warranties of the Company
contained in Sections 3.2, 3.3(a), 3.3(b) and 3.3(d) shall be true and correct in all respects
(except, in the case of Section 3.2 for such inaccuracies as are de minimis in the aggregate), in
each case both when made and at and as of the Closing Date, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of such date) and
(ii) all other representations and warranties of the Company set forth herein shall be true and
correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse
Effect” set forth therein, when made and at and as of the Closing Date as if made at and as of such
time (except to the extent expressly made as of an earlier date, in which case as of such date),
except where the failure of such representations and warranties to be so true and correct would not
have a Company Material Adverse Effect.





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          (b) Performance of Obligations of the Company. The Company shall have performed in all
material respects all obligations required to be performed by it under this Agreement at or prior
to the Closing Date.




          (c) Officer’s Certificate. Parent shall have received a certificate, signed by the chief
executive officer or chief financial officer of the Company, certifying as to the matters set forth
in Sections 6.2(a) and 6.2(b).




          (d) No Litigation. There shall not be any action, investigation, proceeding or litigation
instituted, commenced, pending or threatened by or before any Governmental Authority in which a
Governmental Authority is a party, nor shall there be any Restraint in effect, that would
(i) restrain, enjoin, prevent, prohibit or make illegal the acquisition of some or all of the
shares of Company Common Stock by Parent or Merger Sub or the consummation of the Merger or the
other Transactions, (ii) impose limitations on the ability of Parent or its Affiliates effectively
to exercise full rights of ownership of all shares of the Surviving Corporation in a manner that
materially and adversely affects the value of the Company and its Subsidiaries taken as a whole,
(iii) result in the imposition of a Burdensome Condition, or (iv) result in a Company Material
Adverse Effect.




          (e) Supplemental Indenture. Contemporaneously with the Effective Time, the Supplemental
Indenture shall be duly and validly executed by each of the Company and the Trustee, shall be in
full force and effect, shall be binding and enforceable against the holder of the outstanding
Convertible Notes, and shall not have been modified, rescinded, terminated or superseded.




          (f) Consent and Conversion Agreement. The Consent and Conversion Agreement dated as of August
10, 2008 by and between the Company and Highbridge International LLC shall be duly and validly
executed by each of the parties thereto, shall be in full force and effect and binding on the
parties thereto and shall not have been modified, rescinded, terminated or superseded.




          (g) Company Material Adverse Effect. Since the date of this Agreement, there shall not have
been any Company Material Adverse Effect.




     Section 6.3 Conditions to Obligation of the Company. The obligation of the Company to effect
the Merger is further subject to the satisfaction (or waiver, if permissible under applicable Law)
on or prior to the Closing Date of the following conditions:



          (a) Representations and Warranties. The representations and warranties of Parent and Merger
Sub contained in this Agreement (without giving effect to any materiality or Parent Material
Adverse Effect qualification) shall be true and correct as of the Closing Date as though made on
the Closing Date (except to the extent such representations and warranties expressly relate to an
earlier date, in which case as of such earlier date), except as does not have, individually or in
the aggregate, a Parent Material Adverse Effect;




          (b) Performance of Obligations of Parent and Merger Sub. Parent and Merger Sub shall have
performed in all material respects all obligations required to be performed by them under this
Agreement at or prior to the Closing Date; and




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          (c) Officer’s Certificate. The Company shall have received a certificate, signed by a duly
authorized representative of Parent, certifying as to the matters set forth in Sections 6.3(a) and
6.3(b).




     Section 6.4 Frustration of Closing Conditions. None of the Company, Parent or Merger Sub may
rely on the failure of any condition set forth in Section 6.1, 6.2 or 6.3, as the case may be, to
be satisfied if such failure was caused by such party’s failure to use its reasonable best efforts
to consummate the Merger and the other Transactions, as required by and subject to Section 5.4.



ARTICLE VII.




TERMINATION




     Section 7.1 Termination. This Agreement may be terminated and the Transactions abandoned at
any time prior to the Effective Time:



          (a) by the mutual written consent of the Company and Parent duly authorized by each of their
respective Boards of Directors; or




          (b) by either of the Company or Parent:





          (i) if the Merger shall not have been consummated on or before the six-month
anniversary of execution of this Agreement (the “Outside Date”), provided, however, that the
right to terminate this Agreement under this Section 7.1(b)(i) shall not be available to a
party if the failure of the Merger to have been consummated on or before the Outside Date
was primarily due to such party’s breach or failure to perform any of its representations,
warranties, covenants or agreements set forth in this Agreement;




          (ii) if any Restraint having the effect set forth in Section 6.1(b) shall be in effect
and shall have become final and nonappealable; provided, however, that the right to
terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a party if
such Restraint was primarily due to such party’s breach or failure to perform any of its
representations, warranties, covenants or agreements set forth in this Agreement; or




          (iii) if the Company Stockholder Approval shall not have been obtained at the Company
Stockholders Meeting duly convened therefor (including any adjournment or postponement
thereof) upon a vote taken on this Agreement; or



          (c) by Parent:





          (i) if the Company shall have breached or failed to perform in any material respect any
of its material covenants or agreements set forth in this Agreement, or if any
representation or warranty of the Company shall have become untrue, in either case such that
the conditions set forth in Section 6.2(a) or (b) would not be satisfied (a “Terminating
Company Breach”); provided, however, that if such Terminating Company Breach is curable by
the Company through the exercise of reasonable best efforts prior to



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the Outside Date and within twenty (20) business days, then Parent shall not be
permitted to terminate this Agreement pursuant to this Section 7.1(c)(i) until the earlier
to occur of (1) the expiration of a twenty (20) business day period after delivery of
written notice from Parent to the Company of such breach or inaccuracy, as applicable, or
(2) the Company ceasing to exercise reasonable best efforts to cure such breach or
inaccuracy, provided that the Company continues to exercise reasonable best efforts to cure
such breach or inaccuracy (it being understood that Parent may not terminate this Agreement
pursuant to this Section 7.1(c)(i) if such breach or inaccuracy by the Company is cured
within such twenty (20) business day period);




          (ii) if any Restraint having the effect of granting or implementing any relief referred
to Section 6.2(d) shall be in effect and shall have become final and nonappealable;




          (iii) if (x) the Company enters into a Company Acquisition Agreement or (y) the Board
of Directors of the Company or any committee thereof (A) shall have made an Adverse
Recommendation Change or (B) shall not have rejected any bona fide publicly announced offer
for a Takeover Proposal within ten (10) business days of the making thereof (including, for
these purposes, by taking no position with respect to the acceptance of a tender offer or
exchange offer by its stockholders, which shall constitute a failure to reject such offer
for a Takeover Proposal);




          (iv) if the Company (i) breaches any material obligations under Section 5.1 or Section
5.3, or the Board of Directors of the Company or any committee thereof shall resolve to do
any of the foregoing;




          (v) if a Company Material Adverse Effect shall occur and be continuing, provided that
if such Company Material Adverse Effect is curable by the Company through the exercise of
reasonable best efforts prior to the Outside Date and within twenty (20) business days, then
Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.1(c)(v)
until the earlier to occur of (1) the expiration of a twenty (20) business day period after
delivery of written notice from Parent to the Company of such Company Material Adverse
Effect, or (2) the Company ceasing to exercise reasonable best efforts to cure such Material
Adverse Effect, provided that the Company continues to exercise reasonable best efforts to
cure such Company Material Adverse Effect (it being understood that Parent may not terminate
this Agreement pursuant to this Section 7.1(c)(v) if such Company Material Adverse Effect is
cured within such twenty (20) calendar day period); or



          (d) by the Company:





          (i) if Parent or Merger Sub shall have breached or failed to perform any of its
representations, warranties, covenants or agreements set forth in this Agreement, or if any
representation or warranty of Parent or Merger Sub shall have become untrue, in either case
such that the conditions set forth in Section 6.3(a) or (b) would not be satisfied (a
“Terminating Parent Breach”); provided, however, that if such Terminating Parent Breach is
curable by Parent or Merger Sub through the exercise



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of reasonable best efforts prior to the Outside Date and within twenty (20) business
days, then the Company shall not be permitted to terminate this Agreement pursuant to this
Section 7.1(d)(i) until the earlier to occur of (1) the expiration of a twenty (20) business
day period after delivery of written notice from the Company to Parent of such breach or
inaccuracy, as applicable, or (2) Parent ceasing to exercise reasonable best efforts to cure
such breach or inaccuracy, provided that Parent continues to exercise reasonable best
efforts to cure such breach or inaccuracy (it being understood that the Company may not
terminate this Agreement pursuant to this Section 7.1(d)(i) if such breach or inaccuracy by
Parent is cured within such twenty (20) business day period); 


          (ii) at any time prior to the Company Stockholder Approval, if concurrently with such
termination the Company enters into a definitive Company Acquisition Agreement providing for
a Superior Proposal in accordance with Section 5.3(c); provided that prior thereto or
concurrently therewith the Company shall have paid or caused to be paid the Termination Fee
to Parent in accordance with Section 7.3 (and such termination of this Agreement by the
Company shall not take effect unless and until the Termination Fee shall have been paid to
Parent); or


          (iii) if the Effective Time shall not have occurred on or before the date required
pursuant to Section 1.2 due to Parent’s or Merger Sub’s failure to effect the Closing in
breach of this Agreement, and at the time of such termination (treating such date of
termination as if it were the Closing Date) the conditions set forth in Sections 6.1 and 6.2
(other than the delivery by the Company of the officer’s certificate contemplated by Section
6.2(c)) have been satisfied or waived.


     Section 7.2 Effect of Termination. In the event of the termination of this Agreement as
provided in Section 7.1, written notice thereof shall be given to the other party or parties,
specifying the provision hereof pursuant to which such termination is made, and this Agreement
shall forthwith become null and void (other than the provisions of Sections 3.18, 5.6(b), 5.10, 7.2
and 7.3, and Article VIII, all of which shall survive termination of this Agreement), and there
shall be no liability on the part of Parent, Merger Sub or the Company or their respective
directors, officers and Affiliates, except (i) as provided in Section 7.3, and (ii) nothing shall
relieve any party from liability for fraud or, subject to the limitations set forth in Section 7.3
and Section 8.8, any breach of this Agreement.



     Section 7.3 Termination Fee.



          (a) In the event that (A) (x) this Agreement is terminated by the Company or Parent pursuant
to Section 7.1(b)(i) (and at the time of such termination a vote to obtain the Company Stockholder
Approval has not been held) or Section 7.1(b)(iii), (y) prior to such termination, any Person or
“group” (as defined in Section 13(d) of the Exchange Act), other than Parent and its Subsidiaries,
Affiliates and Representatives (on behalf of Parent), shall have publicly announced (and shall not
have withdrawn) an intention (whether or not conditional or withdrawn) to make a Takeover Proposal
or such Takeover Proposal has otherwise become publicly known and (z) the Company enters into a
definitive agreement with respect to, or consummates, a transaction contemplated by any Takeover
Proposal within twelve (12) months of the date this Agreement is terminated, (B) this Agreement is
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Section 7.1(c)(iii) or (C) this Agreement is terminated by the Company pursuant to Section
7.1(d)(ii), then in any such event under clause (A), (B) or (C) of this Section 7.3(a), the Company
shall pay to Parent a termination fee of $15,000,000 in cash (the “Company Termination Fee”). Any
payment required to be made pursuant to clause (A) of this Section 7.3(a) shall be made to Parent
promptly following the earlier of the execution of a definitive agreement with respect to, or the
consummation of, any transaction contemplated by a Takeover Proposal; any payment required to be
made pursuant to clause (B) of this Section 7.3(a) shall be made to Parent promptly following (and
in any event not later than two business days after) termination of this Agreement by Parent
pursuant to such section; and any payment required to be made pursuant to clause (C) of this
Section 7.3(a) shall be made to Parent prior to or simultaneously with (and as a condition to the
effectiveness of) termination of this Agreement by the Company pursuant to Section 7.1(d)(ii). All
such payments shall be made by wire transfer of immediately available funds to an account to be
designated by Parent.




          (b) In the event that this Agreement is terminated by the Company pursuant to Section
7.1(d)(i) or 7.1(d)(iii),or by Parent or the Company pursuant to Section 7.1(b)(i) at a time when
the Agreement could have been terminated by the Company pursuant to Section 7.1(d)(iii) then Parent
shall pay to the Company a termination fee of $20,000,000 in cash (the “Parent Termination Fee”),
it being understood that in no event shall Parent to be required to pay the Parent Termination Fee
on more than one (1) occasion. If the Parent Termination Fee becomes payable pursuant to this
Section 7.3(b), it shall be paid no later than three (3) Business Days after the termination of
this Agreement pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii).




          (c) In the event that the Company shall fail to pay the Termination Fee when due, or Parent
shall fail to pay the Parent Termination Fee when due, as the case may be, such payment amount
shall accrue interest for the period commencing on the date such payment amount became past due, at
a rate equal to the rate of interest publicly announced by Citibank, in the City of New York from
time to time during such period, as such bank’s Prime Lending Rate. In addition, if either party
shall fail to pay such payment amount when due, such party shall also pay to such other party all
of such other party’s costs and expenses (including attorneys’ fees) in connection with efforts to
collect such payment amount. Each of the Company and Parent acknowledges that the payment amounts
and the other provisions of this Section 7.3 are an integral part of the Transactions and that,
without these agreements, neither the Company nor Parent would enter into this Agreement.




          (d) If this agreement is terminated by the Company pursuant to Section 7.1(d)(i) or Section
7.1(d)(iii), the Company’s right to receive payment of the Parent Termination Fee from Parent in
respect thereof shall be the sole and exclusive remedy of the Company and its Affiliates against
Parent or Merger Sub or any of their respective former, current or future stockholders, directors,
officers, employees, representatives or Affiliates (collectively, the “Parent Related Parties”) for
any loss suffered as a result of the failure of the Merger to be consummated or for a breach or
failure to perform hereunder or otherwise (“Company Damages”) and upon payment of such amount none
of the Parent Related Parties shall have any further liability or obligation relating to or arising
out of this Agreement or the Transactions (except that Parent shall also be obligated with respect
to Section 7.3(c)).




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          (e) Notwithstanding anything herein to the contrary, (i) the maximum aggregate liability of
Parent and Merger Sub for all Company Damages (inclusive of the Parent Termination Fee), shall be
limited to an amount equal to the Parent Termination Fee plus any amounts that become due under
Section 7.3(c) (the “Parent Liability Limitation”), and in no event shall the Company or any of its
Affiliates seek (x) any Company Damage in excess of such amount, (y) any Company Damages in any
amount if the Parent Termination Fee has been paid or (z) any other recovery, judgment, or damages
of any kind, including equitable relief or consequential, indirect, or punitive damages, against
Parent and Merger Sub or any other Parent Related Parties in connection with this Agreement or the
Transactions and (ii) the Company acknowledges and agrees that it has no right of recovery against,
and no personal liability shall attach to, in each case with respect to Company Damages, any of the
Parent Related Parties, through Parent or otherwise, whether by or through attempted piercing of
the corporate veil, by or through a claim by or on behalf of Parent against or any other Parent
Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute, regulation or applicable Law, or otherwise, except for its rights to recover
the Parent Termination Fee or Company Damages subject to the Parent Liability Limitation, from
Parent (but not any other Parent Related Party), in each case, subject to the Parent Liability
Limitation and the other limitations described therein and herein. Subject to the limitations
contained herein, recourse against Parent hereunder shall be the sole and exclusive remedy of the
Company and its Affiliates against any other Parent Related Party in respect of any liabilities or
obligations arising under, or in connection with, this Agreement or the Transactions.




ARTICLE VIII.




MISCELLANEOUS




     Section 8.1 Nonsurvival of Representations and Warranties. Except as otherwise provided in
this Agreement, the representations, warranties and agreements of each party hereto shall remain
operative and in full force and effect regardless of any investigation made by or on behalf of any
other party hereto, any Person controlling any such party or any of their officers, directors or
Representatives, whether prior to or after the execution of this Agreement, and no information
provided or made available shall be deemed to be disclosed in this Agreement or in the Company
Disclosure Schedule, except to the extent actually set forth herein or therein. The
representations, warranties and agreements in this Agreement shall terminate at the Effective Time
or, except as otherwise provided in Section 7.2, upon the termination of this Agreement pursuant to
Section 7.1, as the case may be, except that the agreements set forth in Article II and
Sections 5.8, 5.9, 5.10, 5.11 and 5.12 and any other agreement in this Agreement which contemplates
performance after the Effective Time shall survive the Effective Time indefinitely and those set
forth in Sections 3.18, 5.6(b), 5.10, 7.2 and 7.3 and this Article VIII shall survive termination
indefinitely. The Confidentiality Agreement shall (i) survive termination of this Agreement in
accordance with its terms and (ii) terminate as of the Effective Time.



     Section 8.2 Amendment or Supplement. At any time prior to the Effective Time, this Agreement
may be amended or supplemented in any and all respects, whether before or after receipt of the
Company Stockholder Approval, by written agreement of the parties hereto, by action taken by their
respective Boards of Directors; provided, however, that following approval of the Transactions by
the stockholders of the Company, there shall be no amendment or change



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to the provisions hereof which by Law would require further approval by the stockholders of
the Company without such approval.




     Section 8.3 Extension of Time, Waiver, Etc. At any time prior to the Effective Time, any
party may, subject to applicable Law, (a) waive any inaccuracies in the representations and
warranties of any other party hereto, (b) extend the time for the performance of any of the
obligations or acts of any other party hereto or (c) waive compliance by the other party with any
of the agreements contained herein or, except as otherwise provided herein, waive any of such
party’s conditions. Notwithstanding the foregoing, no failure or delay by the Company, Parent or
Merger Sub in exercising any right hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right hereunder. Any agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of such party.



     Section 8.4 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, by
any of the parties without the prior written consent of the other parties, except that Parent
and/or Merger Sub may assign, in their sole discretion, any of or all their respective rights,
interests and obligations under this Agreement to any Affiliate of Parent or to one or more
financing sources for collateral purposes without the written consent of the Company, but no such
assignment shall relieve Merger Sub of any of its obligations hereunder. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and permitted assigns. Any purported assignment not
permitted under this Section shall be null and void.



     Section 8.5 Counterparts; Facsimile; Electronic Transmission. This Agreement may be executed
in counterparts (each of which shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement) and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties. The
exchange of copies of this Agreement and of signature pages by facsimile or electronic transmission
shall constitute effective execution and delivery of this Agreement as to the parties and may be
used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by
facsimile or electronic transmission shall be deemed to be their original signatures for all
purposes.



     Section 8.6 Entire Agreement; No Third-Party Beneficiaries. This Agreement, the Company
Disclosure Schedule and the Confidentiality Agreement (a) constitute the entire agreement, and
supersede all other prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof and thereof and (b) except for the
provisions of Section 5.8, are not intended to and shall not confer upon any Person other than the
parties hereto any rights or remedies hereunder.



     Section 8.7 Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware applicable to contracts executed in and to be performed
entirely within that State.



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     Section 8.8 Specific Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed by the Company in
accordance with their specific terms or were otherwise breached and that money damages would not be
an adequate remedy. It is accordingly agreed that Parent and Merger Sub shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement by the Company and to enforce
specifically the terms and provisions of this Agreement in the Delaware Court of Chancery or, if
subject matter jurisdiction in the such court is not available, in the United States District Court
for the District of Delaware without bond or other security being required, this being in addition
to any other remedy to which they are entitled at law or in equity. The parties further
acknowledge that the Company shall not be entitled to an injunction or injunctions to prevent
breaches of this Agreement by Parent or Merger Sub or to enforce specifically the terms and
provisions of this Agreement and that the Company’s sole and exclusive remedy with respect to any
such breach shall be the remedy available to the Company set forth in Section 7.3.



     Section 8.9 Consent to Jurisdiction. All actions and proceedings arising out of or relating
to this Agreement or any of the Transactions shall be heard and determined in the Delaware Court of
Chancery or, if subject matter jurisdiction in the such court is not available, in the United
States District Court for the District of Delaware, and the parties hereto hereby irrevocably
submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate
appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of
an inconvenient forum to the maintenance of any such action or proceeding. The consent to
jurisdiction set forth in this paragraph shall not constitute general consent to service of process
in the State of Delaware and shall have no effect for any purpose except as provided in this
paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.
The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by applicable law.



     Section 8.10 Notices. All notices, requests and other communications to any party hereunder
shall be in writing and shall be deemed given if delivered personally, facsimiled (which is
confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the
following addresses:



          If to Parent or Merger Sub, to:



JDA Software Group, Inc.

14400 N. 87th Street

Scottsdale, AZ 85260-3649

Attention: Hamish N. Brewer

Facsimile: 480.308.3001




          with copies (which shall not constitute notice) to:



DLA Piper US LLP

1221 S. MoPac Expressway

Suite 400




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Austin, TX  78746-7650

Attention: Paul E. Hurdlow

Facsimile: 512.457.7001




          and



DLA Piper US LLP

2000 University Avenue

East Palo Alto, CA  94303-2215

Attention: Diane Holt Frankle

Facsimile: 650.833.2001




          If to the Company, to:



i2 Technologies, Inc.

11701 Luna Road

Dallas, TX 75234

Attn: John Harvey

Facsimile: 469.357.6893




          with copies (which shall not constitute notice) to:



Munsch Hardt Kopf & Harr, P.C.

500 N. Akard Street, Suite 3800

Dallas, TX 75201-6659

Attn: A. Michael Hainsfurther

Facsimile: 214.978.4356



or such other address or facsimile number as such party may hereafter specify by like notice to the
other parties hereto. All such notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5:00 P.M. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any such notice,
request or communication shall be deemed not to have been received until the next succeeding
business day in the place of receipt.




     Section 8.11 Severability. If any term or other provision of this Agreement is determined by
a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule
of law or public policy, all other terms, provisions and conditions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by applicable law in an acceptable manner to the end
that the Transactions are fulfilled to the extent possible.



     Section 8.12 Remedies. Except as otherwise provided in this Agreement, any and all remedies
expressly conferred upon a party to this Agreement will be cumulative with, and not exclusive of,
any other remedy contained in this Agreement, at law or in equity. The exercise by



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a party to this Agreement of any one remedy will not preclude the exercise by it of any other
remedy.




     Section 8.13 Definitions.



          (a) As used in this Agreement, the following terms have the meanings ascribed thereto below:





     “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, or is controlled by, or is under common control with, such Person. For this
purpose, “control” (including, with its correlative meanings, “controlled by” and “under
common control with”) shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of management or policies of a Person, whether through the
ownership of securities or partnership or other ownership interests, by contract or
otherwise.




     “business day” means a day except a Saturday, a Sunday or other day on which the SEC or
banks in the City of New York or the State of Texas are authorized or required by Law to be
closed.




     “Code” means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.




     “Company Option” means any Option issued under a Company Stock Plan.




     “Company Stock Plans” means the following plans of the Company, as amended: (i) the
1995 Stock Option/Stock Issuance Plan, (ii) the 2001 Non-Officer Stock Option/Stock Issuance
Plan and (iii) Aspect Development, Inc. 1992 Stock Option Plan.




     “Data Room” means the secure on-line data room (or workspace) maintained by JP Morgan
on behalf of the Company, and to which designated personnel of Parent have been given
access, at Intralinks and designated as the workspace for “Project Igloo.”




     “GAAP” shall mean generally accepted accounting principles as applied in the United
States.




     “Governmental Authority” means any United States, non-United States or multi-national
government entity, body or authority, including (i) any United States federal, state or
local government (including any town, village, municipality, district or other similar
governmental or administrative jurisdiction or subdivision thereof, whether incorporated or
unincorporated), (ii) any non-United States or multi-national government or governmental
authority or any political subdivision thereof, (iii) any United States, non-United States
or multi-national regulatory or administrative entity, authority, instrumentality,
jurisdiction, agency, body or commission, exercising, or entitled or purporting to exercise,
any administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power, including any court, tribunal, commission or arbitrator, (iv) any
self-regulatory organization or (v) any official of any of the foregoing.



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     “Governmental Investigation” means an investigation by a Governmental Authority for the
purpose of imposing criminal sanctions.




     “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.




     “Intellectual Property” of any Person means all intellectual property rights arising
from or in respect of the following, whether protected, created or arising under any Law,
including: (i) all patents and applications therefor, including continuations, divisionals,
continuations-in-part, or reissues of patent applications and patents issuing thereon
(collectively, “Patents”); (ii) all trademarks, service marks, trade names, service names,
brand names, trade dress rights, logos, Internet domain names and corporate names, together
with the goodwill associated with any of the foregoing, and all applications, registrations
and renewals thereof, (collectively, “Marks”); (iii) copyrights and registrations and
applications therefor, works of authorship and mask work rights (collectively,
“Copyrights”); (iv) discoveries, concepts, ideas, research and development, know-how,
formulae, inventions, compositions, manufacturing and production processes and techniques,
technical data, procedures, designs, drawings, specifications, databases and other
proprietary and confidential information, including customer lists, supplier lists, pricing
and cost information, and business and marketing plans and proposals, in each case excluding
any rights in respect of any of the foregoing that comprise or are protected by Copyrights
or Patents (collectively, “Trade Secrets”); and (v) all Software.




     “Knowledge” shall mean, (i) in the case of any Person other than the Company or its
Subsidiaries that is not an individual, with respect to any matter in question, the actual
knowledge after due inquiry of such Person’s executive officers and all other officers and
managers having responsibility relating to the applicable matter and (ii) in the case of the
Company or its Subsidiaries, the actual knowledge, after reasonable inquiry within the scope
of their respective business responsibilities (which shall not require inquiry of persons
other than the persons hereinafter named in this definition), of Michael J. Berry, Pallab K.
Chatterjee, John Harvey, Nancy Litzler, Aditya Srivastava, Surku Sinnadurai, Mark E.
Trivette and Hiten D. Varia.




     “Options” means options, warrants and other rights to acquire shares of Company Common
Stock.




     “Parent Material Adverse Effect” shall mean any change, event, occurrence, or state of
facts that would reasonably be expected to prevent or materially hinder the ability of
Parent or Merger Sub to consummate the Transactions; provided, however, that none of the
following shall be deemed either alone or in combination to constitute, and none of the
following shall be taken into account in determining whether there has been, or could
reasonably be expected to be, a Parent Material Adverse Effect: (1) any change, event,
occurrence or state of facts relating to the global, U.S. or regional economy, capital or
financial markets (including public and private debt markets), political conditions in
general, or the industry in which the Company operates, including such changes thereto as
are caused by terrorist activities, entry into or material worsening of war or armed
hostilities, or other national or international calamity, except to the extent such changes



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or developments have a disproportionate impact on the Company and its Subsidiaries,
taken as a whole, relative to other industry participants; and (2) any change, event,
occurrence or state of facts arising out of any change in GAAP or applicable accounting
requirements or principles which occur or become effective after the date of this Agreement.




     “Person” means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity, including a Governmental
Authority.




     “RSU” means any award, or portion thereof, of restricted stock or restricted stock
units, whether vested or unvested, made under a Company Stock Plan with respect to which the
shares of Company Common Stock subject thereto have not been issued (and are not
outstanding) prior to the Effective Date.




     “Significant Subsidiary” has the meaning set forth in Rule 1-01(w) under Regulation S-X
as promulgated by the SEC under the Exchange Act.




     “Software” means any and all (i) computer programs, including any and all software
implementations of algorithms, models and methodologies, whether in source code or object
code, (ii) databases and compilations, including any and all data and collections of data,
whether machine readable or otherwise, (iii) descriptions, flow-charts and other work
product used to design, plan, organize and develop any of the foregoing, screens, user
interfaces, report formats, firmware, development tools, templates, menus, buttons and
icons, and (iv) documentation including user manuals and other training documentation
related to any of the foregoing.




     “Subsidiary” when used with respect to any party, means any corporation, limited
liability company, partnership, association, trust or other entity the accounts of which
would be consolidated with those of such party in such party’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP, as well as
any other corporation, limited liability company, partnership, association, trust or other
entity of which securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power (or, in the case of a partnership, more
than 50% of the general partnership interests) are, as of such date, owned by such party or
one or more Subsidiaries of such party or by such party and one or more Subsidiaries of such
party.




     “Transactions” refers collectively to this Agreement and the transactions contemplated
hereby, including the Merger and the transactions contemplated thereby.



     The following terms are defined on the page of this Agreement set forth after such term below:



	 	 	 
	 	 	Section
	401(k) Plans
	 	5.11(e)
	Adverse Recommendation change
	 	5.3(c)
	Aggregate Option Consideration
	 	4.6






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	 	 	Section
	Aggregate RSU Consideration
	 	4.6
	Agreement
	 	Preamble
	Alternate Financing
	 	5.14(a)
	Certificate of Merger
	 	1.3
	Balance Sheet Date
	 	3.5(d)
	Bankruptcy and Equity Exception
	 	3.3(a)
	Burdensome Condition
	 	5.4(c)
	Certificates
	 	2.2(a)
	Certificate of Merger
	 	1.3
	Closing
	 	1.2
	Closing Date
	 	1.2
	COBRA
	 	3.11(j)
	Common Stock Merger Consideration
	 	2.1(c)
	Common Stock Certificate
	 	2.1(c)
	Company
	 	Preamble
	Company Acquisition Agreement
	 	5.3(c)
	Company Board Recommendation
	 	3.3(b)
	Company Charter Documents
	 	3.1(c)
	Company Common Stock
	 	2.1
	Company Damages
	 	7.3(d)
	Company Disclosure Schedule
	 	Article III
	Company Intellectual Property
	 	3.15(a)
	Company Material Adverse Effect
	 	3.1(a)
	Company Plans
	 	3.11(a)
	Company Preferred Stock
	 	3.2(a)
	Company Rights
	 	3.2(a)
	Company Rights Agreement
	 	3.2(a)
	Company SEC Documents
	 	3.5(a)
	Company Stockholder Approval
	 	3.3(d)
	Company Stockholders Meeting
	 	5.1(b)
	Company Termination Fee
	 	7.3(a)
	Competition Laws
	 	5.4(f)
	Confidentiality Agreement
	 	5.6(b)
	Consent and Conversion Agreements
	 	5.12(b)
	Contract
	 	3.3(c)
	Continuing Employee
	 	5.11(a)
	Conversion Price
	 	5.12(b)
	Convertible Notes
	 	3.2(a)
	D&O Insurance
	 	5.8(b)
	Data Laws
	 	3.15(n)
	Financing Commitment
	 	4.6
	Debt Financing
	 	4.6
	DGCL
	 	1.1
	Dissenting Shares
	 	2.2(h)
	DOJ
	 	5.4(a)






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	 	 	Section
	Domestic Benefit Plan
	 	3.11(a)
	Effective Time
	 	1.3
	Employees
	 	3.11(a)
	Environmental Laws
	 	3.12(c)(i)
	Environmental Liabilities
	 	3.12(c)(ii)
	Environmental Permits
	 	3.12(b)
	ERISA
	 	3.11(a)
	ERISA Affiliates
	 	3.11(e)
	Exchange Act
	 	3.4
	Fairness Opinion
	 	3.17
	Filed Company SEC Documents
	 	3.5(d)
	Financial Advisor
	 	3.17
	Financing Commitment
	 	4.6
	Foreign Antitrust Laws
	 	3.4
	Foreign Benefit Plan
	 	3.11(a)
	FTC
	 	5.4(a)
	Hazardous Materials
	 	3.12(c)(iii)
	Indemnitees
	 	5.8(a)
	Indenture
	 	5.12
	Laws
	 	3.8(a)
	Liens
	 	3.1(b)
	Material Contract
	 	3.13(a)
	Measurement Date
	 	3.2(a)
	Merger
	 	Preamble
	Merger Consideration
	 	2.1(d)
	Merger Sub
	 	Preamble
	Moral Rights
	 	3.15(o)
	Note Covenants
	 	5.12(a)
	Note Documents
	 	5.12(c)
	Notice
	 	5.3(c)
	Offer Documents
	 	5.12(b)
	Open Source License
	 	3.15(d)
	Open Source Software
	 	3.15(d)
	Option Consideration
	 	2.3(a)
	Outside Date
	 	7.1(b)(i)
	Parent
	 	Preamble
	Parent Liability Limitation
	 	7.3(e)
	Parent Related Parties
	 	7.3(d)
	Parent Termination Fee
	 	7.3(b)
	Paying Agent
	 	2.2(a)
	Payment Fund
	 	2.2(a)
	Permits
	 	3.8(b)
	Policies
	 	3.16
	Preferred Stock Merger Consideration
	 	2.1(d)
	Proceeding
	 	8.14






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	 	 	Section
	Proxy Statement
	 	3.4
	Registered Company Intellectual Property
	 	3.15(a)
	Release
	 	3.12(c)(iv)
	Representatives
	 	5.3(a)
	Restraints
	 	6.1(b)
	RSU Consideration
	 	2.3(c)
	SEC
	 	2.3(d)
	Securities Act
	 	3.1(b)
	Series A Preferred Stock
	 	3.2(a)
	Series B Preferred Stock
	 	2.1
	Series B Preferred Stock Certificate
	 	2.1(d)
	SOX
	 	3.5(c)
	Subsidiary Documents
	 	3.1(c)
	Superior Proposal
	 	5.3(d)
	Supplemental Indenture
	 	5.12(a)
	Surviving Corporation
	 	1.1
	Takeover Proposal
	 	5.3(d)
	Taxes
	 	3.10(n)
	Tax Returns
	 	3.10(n)
	Terminating Company Breach
	 	7.1(c)(i)
	Terminating Parent Breach
	 	7.1(d)(i)
	Trustee
	 	5.12
	Voting Agreements
	 	Preamble
	WARN
	 	3.11(m)
	Warrants
	 	3.2(a)






     Section 8.14 Waiver of Jury Trial. Each party acknowledges and agrees that any controversy
which may arise under this Agreement is likely to involve complicated and difficult issues and,
therefore, each such party irrevocably and unconditionally waives any right it may have to a trial
by jury in respect of any legal action, suit or proceeding arising out of or relating to this
Agreement or the Transactions (each, a “Proceeding”). Each party to this Agreement certifies and
acknowledges that (a) no Representative of any other party has represented, expressly or otherwise,
that such other party would not seek to enforce the foregoing waiver in the event of a Proceeding,
(b) such party has considered the implications of this waiver, (c) such party makes this waiver
voluntarily, and (d) such party has been induced to enter into this Agreement by, among other
things, the mutual waivers and certifications in this Section 8.14.



     Section 8.15 Interpretation.



          (a) When a reference is made in this Agreement to an Article, a Section, Exhibit or Schedule,
such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to, this
Agreement unless otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used
in this Agreement, they shall be deemed to be followed by the words




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“without limitation”. The words “hereof”, “herein” and “hereunder” and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well as to the feminine
and neuter genders of such term. Any agreement, instrument or statute defined or referred to
herein or in any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented, including (in the
case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession
of comparable successor statutes and references to all attachments thereto and instruments
incorporated therein. References to a Person are also to its permitted successors and assigns.




          (b) The parties hereto have participated jointly in the negotiation and drafting of this
Agreement and, in the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision
of this Agreement.




          (c) For purposes of this Agreement, the Company shall be deemed to have “delivered,” “made
available” or furnished any document or information if such document or information shall have been
posted to the Data Room with notice delivered to Parent no less than two (2) Business Days prior to
the execution of this Agreement and not subsequently removed.




[Signature page follows.]




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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the date first above written.



	 	 	 	 	 
	 	I2 TECHNOLOGIES, INC.

 	 
	 	By:  	 	 
	 	 	     Jackson L. Wilson Jr. 	 
	 	 	     Executive Chairman of the Board 	 
	 
	 	JDA SOFTWARE GROUP, INC.

 	 
	 	By:  	 	 
	 	 	     Hamish N. Brewer  	 
	 	 	     President and Chief Executive Officer 	 
	 
	 	ICEBERG ACQUISITION CORP.

 	 
	 	By:  	 	 
	 	 	     Hamish N. Brewer 	 
	 	 	     President and Chief Executive Officer 	 
	 


 



Signature page to Agreement and Plan of Merger