**Exhibit 99.14**

 

**EXECUTION VERSION**

 

TRANSACTION AGREEMENT

among

 

AVOCENT CORPORATION

(a Delaware corporation),

 

CRIMSON ACQUISITION CORP.,(a Delaware),

 

LANDESK GROUP LIMITED

(an Irish company),

 

and

 

THE SHAREHOLDER REPRESENTATIVE

 

 

Dated April 26, 2006

 

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**Table of Contents**

 
| ** ** | ** ** | ** **                                     | ** ** | **Page** |
|------------|------------|------------------------------------------------|------------|----------|
|       |       |                                           |       |     |
| ARTICLE 1  |       | DEFINITIONS                                    |       | 1        |
|       |       |                                           |       |     |
| ARTICLE 2  |       | THE  OFFER                                     |       | 13       |
|       |       |                                           |       |     |
| 2.1        |       | Terms                                          |       | 13       |
| 2.2        |       | Company Support for the  Offer                 |       | 14       |
| 2.3        |       | Section 204 Procedure                     |       | 14       |
| 2.4        |       | Treatment of Company  Warrants                 |       | 14       |
| 2.5        |       | Treatment of Company Share  Options            |       | 14       |
| 2.6        |       | Withholding                                    |       | 15       |
|       |       |                                           |       |     |
| ARTICLE 3  |       | CLOSING                                        |       | 16       |
|       |       |                                           |       |     |
| 3.1        |       | Location; Date                                 |       | 16       |
| 3.2        |       | Deliveries                                     |       | 16       |
| 3.3        |       | Termination                                    |       | 18       |
|       |       |                                           |       |     |
| ARTICLE 4  |       | REPRESENTATIONS  AND WARRANTIES OF THE COMPANY |       | 19       |
|       |       |                                           |       |     |
| 4.1        |       | Organization and Standing                      |       | 19       |
| 4.2        |       | Capitalization and  Ownership                  |       | 21       |
| 4.3        |       | Authority and Binding  Effect                  |       | 22       |
| 4.4        |       | Subsidiaries                                   |       | 22       |
| 4.5        |       | Validity of the  Transactions                  |       | 23       |
| 4.6        |       | Restrictions                                   |       | 23       |
| 4.7        |       | Third-Party Options                            |       | 23       |
| 4.8        |       | Financial Statements;  Indebtedness            |       | 23       |
| 4.9        |       | Books and Records                              |       | 24       |
| 4.10       |       | No Undisclosed Liabilities                     |       | 24       |
| 4.11       |       | Accounts Receivable                            |       | 24       |
| 4.12       |       | Inventory                                      |       | 25       |
| 4.13       |       | No Changes                                     |       | 25       |
| 4.14       |       | Taxes                                          |       | 27       |
| 4.15       |       | Restrictions on Business  Activities           |       | 29       |
| 4.16       |       | Title to Assets; All  Tangible Assets          |       | 29       |
| 4.17       |       | Condition of Assets                            |       | 30       |
| 4.18       |       | Real Property                                  |       | 30       |
| 4.19       |       | Intellectual Property                          |       | 30       |
| 4.20       |       | Contracts                                      |       | 36       |
| 4.21       |       | Permits                                        |       | 38       |
| 4.22       |       | Compliance with Law and  Court Orders          |       | 39       |
| 4.23       |       | Claims                                         |       | 39       |
| 4.24       |       | Insurance                                      |       | 39       |
| 4.25       |       | Employee Matters and  Benefit Plans            |       | 40       |
| 4.26       |       | Customers                                      |       | 43       |
| 4.27       |       | Transaction Expenses                           |       | 43       |
| 4.28       |       | Representations Complete                       |       | 44       |
| 4.29       |       | Transactions with  Affiliates                  |       | 44       |
| 4.30       |       | Environmental Matters                          |       | 44       |

 

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| ** ** | ** ** | ** **                                                                                  | ** ** | **Page** |
|------------|------------|---------------------------------------------------------------------------------------------|------------|----------|
|       |       |                                                                                        |       |     |
| 4.31       |       | Compliance with the  Foreign Corrupt Practices Act and Export Control and Anti-Boycott Laws |       | 45       |
| 4.32       |       | PRC Subsidiary and the PRC  Business                                                        |       | 46       |
| 4.33       |       | Broker’s or Finder’s Fee                                                          |       | 48       |
| 4.34       |       | Intel Contingent  Obligation                                                                |       | 48       |
| 4.35       |       | Certificate; Spreadsheet                                                                    |       | 48       |
|       |       |                                                                                        |       |     |
| ARTICLE 5  |       | REPRESENTATIONS  AND WARRANTIES OF THE BUYER PARTIES                                        |       | 48       |
|       |       |                                                                                        |       |     |
| 5.1        |       | Organization and Standing                                                                   |       | 49       |
| 5.2        |       | Capital Structure                                                                           |       | 49       |
| 5.3        |       | Authority, Binding Effect  and Noncontravention                                             |       | 50       |
| 5.4        |       | Exchange Act Reports;  Financial Statements                                                 |       | 50       |
| 5.5        |       | Absence of Certain Changes  or Events                                                       |       | 51       |
| 5.6        |       | Litigation                                                                                  |       | 51       |
| 5.7        |       | Compliance With Laws                                                                        |       | 51       |
| 5.8        |       | Brokers                                                                                     |       | 51       |
| 5.9        |       | Interim Operations of  Acquisition Company                                                  |       | 51       |
| 5.10       |       | Offer Materials                                                                             |       | 51       |
| 5.11       |       | Availability of Funds                                                                       |       | 52       |
| 5.12       |       | Required Vote                                                                               |       | 52       |
| 5.13       |       | No Knowledge Breach                                                                         |       | 52       |
|       |       |                                                                                        |       |     |
| ARTICLE 6  |       | PRE-CLOSING  COVENANTS                                                                      |       | 52       |
|       |       |                                                                                        |       |     |
| 6.1        |       | Access; Confidentiality                                                                     |       | 52       |
| 6.2        |       | Operation of the Business                                                                   |       | 52       |
| 6.3        |       | Negative Covenant                                                                           |       | 53       |
| 6.4        |       | No Solicitation                                                                             |       | 53       |
| 6.5        |       | Securities Condition                                                                        |       | 54       |
| 6.6        |       | Notice of Developments and  Events Constituting Material Adverse Effect                     |       | 56       |
| 6.7        |       | HSR Act and Other  Antitrust Laws                                                           |       | 56       |
| 6.8        |       | Spreadsheet                                                                                 |       | 57       |
| 6.9        |       | Alternative Structures                                                                      |       | 57       |
| 6.10       |       | Consents, Further  Assurances                                                               |       | 58       |
| 6.11       |       | Nasdaq Listing                                                                              |       | 58       |
| 6.12       |       | Section 280G                                                                           |       | 58       |
| 6.13       |       | Termination of Company  Employee Plans                                                      |       | 58       |
| 6.14       |       | Section 16 Approvals                                                                        |       | 59       |
| 6.15       |       | Severance and Transition  Agreements                                                        |       | 59       |
| 6.16       |       | Retention Bonus Program                                                                     |       | 59       |
|       |       |                                                                                        |       |     |
| ARTICLE 7  |       | POST-CLOSING  COVENANTS                                                                     |       | 59       |
|       |       |                                                                                        |       |     |
| 7.1        |       | Conduct of the Business  following the Closing                                              |       | 59       |
| 7.2        |       | Indemnification of Certain  Parties                                                         |       | 60       |
| 7.3        |       | Form S-8                                                                               |       | 61       |
| 7.4        |       | Employee Benefits                                                                           |       | 61       |
| 7.5        |       | Availability of Public  Information                                                         |       | 62       |

 

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| ** ** | ** ** | ** **                                                                       | ** ** | **Page** |
|------------|------------|----------------------------------------------------------------------------------|------------|----------|
|       |       |                                                                             |       |     |
| 7.6        |       | Pre-Closing Tax Returns                                                          |       | 62       |
|       |       |                                                                             |       |     |
| ARTICLE 8  |       | CONDITIONS  PRECEDENT                                                            |       | 62       |
|       |       |                                                                             |       |     |
| 8.1        |       | Conditions Precedent to  Obligations of Acquiror                                 |       | 62       |
| 8.2        |       | Conditions Precedent to  Obligations of the Company and the Selling Shareholders |       | 64       |
|       |       |                                                                             |       |     |
| ARTICLE 9  |       | PUBLIC  ANNOUNCEMENTS                                                            |       | 65       |
|       |       |                                                                             |       |     |
| ARTICLE 10 |       | SHAREHOLDER  REPRESENTATIVE                                                      |       | 65       |
|       |       |                                                                             |       |     |
| 10.1       |       | Shareholder Representative  Provisions                                           |       | 65       |
| 10.2       |       | Shareholder Information                                                          |       | 66       |
|       |       |                                                                             |       |     |
| ARTICLE 11 |       | MISCELLANEOUS                                                                    |       | 66       |
|       |       |                                                                             |       |     |
| 11.1       |       | Contents of Agreement                                                            |       | 66       |
| 11.2       |       | Amendment, Parties in  Interest, Assignment, Etc                                 |       | 66       |
| 11.3       |       | Interpretation                                                                   |       | 66       |
| 11.4       |       | Sole Remedy                                                                      |       | 67       |
| 11.5       |       | Notices                                                                          |       | 67       |
| 11.6       |       | Governing Law                                                                    |       | 68       |
| 11.7       |       | Waiver                                                                           |       | 69       |
| 11.8       |       | No Third Party  Beneficiaries                                                    |       | 69       |
| 11.9       |       | WAIVER OF JURY TRIAL                                                             |       | 69       |
| 11.10      |       | Counterparts                                                                     |       | 69       |

 

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**TRANSACTION AGREEMENT**

** **

**INTRODUCTION**

** **

This TRANSACTION AGREEMENT is dated as ofApril 26, 2006 (“Agreement Date”). The parties are Avocent Corporation, aDelaware corporation (“Acquiror”), Crimson Acquisition Corp., a Delawarecorporation and a wholly-owned subsidiary of Acquiror (“Buyer”), LANDesk GroupLimited, a company incorporated in Ireland under company registered number316974, formerly known as LANDesk Holdings Ireland Limited (the “Company”), andVector Capital Corporation, solely in its capacity as the ShareholderRepresentative (as defined below).

 

**BACKGROUND**

** **

WHEREAS, Buyer desires to acquire all of theissued shares in the capital of the Company, and Buyer is prepared to make anoffer to purchase such shares on the terms and subject to the conditionscontained in the Offer Materials;

 

WHEREAS, the board of directors of theCompany has unanimously determined, after consultation with its advisors, andafter considering other relevant factors, that it would be in the bestinterests of the Company for the directors to cooperate with Acquiror and Buyerand take all reasonable action to support the offer to be made by Buyer on theterms and subject to the conditions contained herein;

 

WHEREAS, in connection with this Agreement,Acquiror and Buyer have entered into irrevocable undertakings (the “IrrevocableUndertaking”) with the Shareholders set forth on **Exhibit A**hereto in the form of **Exhibit B**hereto;

 

WHEREAS, contemporaneously herewith,Acquiror, Buyer and Synovus Trust Company, N.A. as escrow agent(the “Escrow Agent”) will enter into an escrow agreement (the “Escrow Agreement”)in substantially the form of **Exhibit C**hereto;

 

WHEREAS, Acquiror has entered into thisAgreement so as to facilitate the proposed offer by Buyer and the otherTransactions;

 

NOW, THEREFORE, in consideration of the respectivecovenants, promises, representations and warranties set forth herein and forother good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, and intending to be legally bound hereby, the partieshereto agree as follows:

 

**ARTICLE 1**

 

**DEFINITIONS**

 

For convenience, certain terms used in thisAgreement are listed in alphabetical order and defined or referred to below(such terms as well as any other terms defined elsewhere in this Agreementshall be equally applicable to both the singular and plural forms of the terms

 

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defined). Capitalized terms used, but notdefined herein shall have the meanings ascribed to them in the Offer Materials.

 

“1990 Act” is defined in Section 4.1(d)(i).

 

“Acceptance” means the acceptance of theOffer by the due execution and delivery of a Form of Acceptance.

 

“Accounts Receivable” means all accountsreceivable of the Company that are reflected in the Company FinancialStatements or on the accounting records of the Company as of the Closing Date.

 

“Acquiror Common Stock Value” means theaverage closing price of Acquiror Common Stock on the NASDAQ National MarketSystem for the ten (10) consecutive trading days ending on and including the tradingday that is two (2) trading days immediately prior to the Closing Date.

 

“Acquiror Common Stock” means the shares ofcommon stock, par value $0.001 per share, of Acquiror.

 

“Acquiror Disclosure Schedules” is defined inArticle 5.

 

“Acquiror’s Financial Statements” is definedin Section 5.4.

 

“Acquiror Material Adverse Effect” is definedin Section 5.1.

 

“Acquiror Officer’s Certificate” is definedin Section 8.2(c).

 

“Acquiror Option” means a stock option topurchase shares of Acquiror Common Stock.

 

“Acquiror Preferred Stock” is defined inSection 5.2(a).

 

“Acquiror SEC Documents” is defined inSection 5.4.

 

“Acquiror” is defined in the Introduction.

 

“Acquisition Proposal” means any proposal oroffer relating to (a) any merger or consolidation, or any sale or license ofsubstantial assets outside the ordinary course of business, or similartransactions involving the Company, or (b) sales or issuances by the Company ofany shares in the capital of the Company (including, without limitation, in anequity financing or by way of a tender offer or an exchange offer), other thanissuances upon exercise of Company Share Options outstanding as of the date ofthis Agreement.

 

“Additional Cash Consideration” means thequotient obtained by dividing (i) the Per Share Contingent CashDistribution Amount, by (ii) the Unvested Option Exchange Ratio.

 

“Additional Stock Consideration” means thequotient obtained by dividing (i) the Per Share Escrow Amount, by(ii) the Unvested Option Exchange Ratio.

 

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“Affiliates” means, with respect to aparticular party, Persons controlling, controlled by or under common controlwith that party, as well as any executive officers, directors andmajority-owned entities of that party and of its other Affiliates; provided,however, that no Person controlled by any Affiliate of the Company, to theextent that such Affiliate is an investment fund or vehicle, or a director,officer, partner or member of such investment fund or vehicle, shall be deemedto be an “Affiliate” hereunder.

 

“Agreement Date” is defined in theIntroduction.

 

“Agreement” means this Transaction Agreement,including all schedules, annexes and exhibits hereto.

 

“Assets” means all of the assets andproperties of the Company and its Subsidiaries, real and personal, tangible andintangible, wherever situated and whether or not reflected on the CurrentBalance Sheet.

 

“Assignee” is defined in Section 11.2.

 

“Audited” or “audited,” when used inreference to financial statements, shall refer to financial statements preparedon an accrual basis and otherwise in accordance with GAAP, consistentlyapplied, and audited in accordance with generally accepted auditing standards.

 

“Borrowed Money Indebtedness”**means with respect to the Company or any of itsSubsidiaries all indebtedness or guarantees of indebtedness for borrowed moneyor indebtedness issued in substitution or exchange for borrowed money and allinterest, fees, or penalties related to the foregoing.

 

“Business Day” means any calendar day whichis not a Saturday, Sunday or public holiday under the Laws of New York, NewYork or Dublin, Ireland.

 

“Business” means the existing business andoperations of the Company and its Subsidiaries, taken as a whole.

 

“Buyer Parties” means Acquiror and Buyer.

 

“Buyer” is defined in the Introduction.

 

“CFO Certificate” is defined in Section3.2(a)(ix).

 

“Charter Documents” means an entity’scertificate, memorandum or articles of association, incorporation or formation,certificate defining the rights and preferences of securities, bylaws, articlesof organization, general or limited partnership agreement, operating agreement,certificate of limited partnership, joint venture agreement or similar documentgoverning the entity.

 

“Closing Date” is defined inSection 3.1.

 

“Closing” is defined in Section 3.1.

 

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“Code” means the US Internal Revenue Code of1986, as amended, and the rules and regulations thereunder.

 

“CompanyEmployee Plan” shall refer to any material plan, program, policy,practice, contract, agreement or other arrangement providing for compensation,severance, termination pay, deferred compensation, performance awards, stock orstock-related awards, fringe benefits or other employee benefits orremuneration of any kind (other than workers’ compensation, unemploymentcompensation and other programs, in each case, of a Government Entity), whetherwritten or unwritten, funded or unfunded, including, each “employee benefitplan”, within the meaning of Section 3(3) of ERISA which is or has sinceSeptember 18, 2002 been maintained, contributed to, or required to becontributed to, by the Company or any ERISA Affiliate for the benefit of any “Employee”or with respect to which the Company or any ERISA Affiliate has or may have anyliability or obligation.

 

“Company Financial Statements” means theaudited consolidated balance sheet of the Company as of December 31, 2005 andthe related statements of income and cash flows for the 12-month period thenended and the unaudited consolidated balance sheet of the Company as ofMarch 31, 2006 and the related statements of income and cash flows for thethree-month period then ended.

 

“Company Intellectual Property” is defined inSection 4.19(a)(v).

 

“Company Legal Opinion” is defined inSection 8.1(f).

 

“Company Officer’s Certificate” is defined inSection 8.1(c).

 

“Company Ordinary Shares” means the Company’sU.S. $0.00001 ordinary shares in the capital of the Company.

 

“Company Participants” is defined in Section7.4(b).

 

“Company Preferred Shares” means the Company’sU.S. $0.001 Series A convertible preference shares in the capital of theCompany.

 

“Company Covered Products” is defined inSection 4.19(a)(i).

 

“Company Registered Intellectual PropertyRights” is defined in Section 4.19(a)(vii).

 

“Company Share Option Plan” means the Company’s2002 Stock Option Plan, as amended and restated.

 

“Company Share Option” means an option topurchase Ordinary Shares granted under the Company Share Option Plan.

 

“Company Source Code” is defined in Section4.19(a)(x).

 

“Company Transaction Expenses” means thoseexpenses incurred by the Company and its Subsidiaries on their behalf or onbehalf of the Shareholders in connection with the

 

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preparation of the Transaction Documents, thecarrying out of the provisions of this Agreement and the consummation of theTransactions as of the Closing Date, including legal, accounting, financialadvisor, and other professional service provider’s fees and expenses but notincluding any such expenses incurred directly by any Shareholder.

 

“Company Warrants” means those warrantsissued by the Company pursuant to that certain Warrant Agreement, dated as ofSeptember 18, 2002, which warrants are exercisable for, in the aggregate,5,061,728 Company Ordinary Shares, to those parties to the LANDesk IrelandLimited Company Ordinary Shares Warrant Agreement.

 

“Company” is defined in the Introduction.

 

“Compulsory Acquisition” is defined in Section 2.3.

 

“Conflict” is defined in Section 4.5.

 

“Consents” is defined in Section 4.5.

 

“Contingent Cash Period” means the periodcommencing as of January 1, 2006 and ending December 31, 2006,inclusive.

 

“Contract” means any binding written or oralagreement, contract, subcontract, lease, binding understanding, instrument,note, option, warranty, license, sublicense, insurance policy, commitment orundertaking of any nature, as of the date hereof or as may hereafter be ineffect.

 

“Covered Claims” is defined in Section7.2(a).

 

“Current Balance Sheet” is defined inSection 4.8(a).

 

“Damages” means any Liabilities, claims,demands, judgments, losses, costs, damages or expenses whatsoever (includingreasonable attorneys’, consultants’ and other professional fees anddisbursements of every kind, nature and description incurred by suchIndemnified Party in connection therewith, but excluding punitive, incidentaland consequential damages, lost profits and other amounts of a speculativenature).

 

“Default” or “default” means (i) a breach,default or violation, (ii) the occurrence of an event or an omission that withor without the passage of time or the giving of notice, or both, wouldconstitute a breach, default or violation or (iii) with respect to anyContract, the occurrence of an event or an omission that with or without thepassage of time or the giving of notice, or both, would give rise to a right oftermination, revocation of license or acceleration, or a right to receivedamages or a payment of penalties.

 

“Development” is defined in Section 6.6.

 

“Disclosure Schedules” is defined in Article4.

 

“DOJ” is defined in Section 3.3(a)(ii).

 

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“DOL” is defined in Section 4.25(b).

 

“EmployeeAgreement” means each management, employment, severance, consulting,relocation, repatriation, expatriation, or other Contract between the Companyor any Affiliate of the Company and any Employee, other than offer letters forat-will employment for Employees who are not executive officers of the Company.

 

“Employee”means any current, former, or retired employee, individual consultant retaineddirectly by the Company or such Affiliate, or director of the Company or anyAffiliate of the Company.

 

“Environmental Claims” is defined in Section4.30(b)(i).

 

“Environmental Laws” is defined in Section4.30(b)(ii).

 

“Environmental Permit” is defined in Section4.30(b)(i).

 

“ERISA Affiliate” means, with respect to anyentity, all other entities that are treated as a single employer with thatentity pursuant to sections 414(b), 414(c), 414(m), and/or 414(o) of the Code.

 

“ERISA” means the Employee Retirement IncomeSecurity Act of 1974, as amended, and all regulations and rules issuedthereunder, or any successor Law.

 

“Escrow Agent” is defined in the Background.

 

“Escrow Agreement” is defined in theBackground.

 

“Escrow Fund” is defined inSection 3.2(b)(iii).

 

“Escrowed Consideration” means that number ofshares of Acquiror Common Stock included in the Stock Consideration that areequal to $60,000,000, divided by the Acquiror Common Stock Value, as rounded tothe nearest whole share.

 

“Exchange Act” means the Securities ExchangeAct of 1934, as amended, and the rules and regulations thereunder.

 

“Exchange Agent” means American StockTransfer & Trust Company.

 

“Fairness Determination” is defined inSection 6.5(d)(i).

 

“Fairness Hearing” is defined in Section6.5(d)(i).

 

“Final Loan Stock Balance” means the totalamount accrued for principal and interest related to the Loan Stock outstandingas of the Closing Date.

 

“Floor Price” means that Acquiror CommonStock Value that will result in the total number of shares of Acquiror CommonStock to be issued or issuable by Acquiror as the Stock Consideration and uponthe exercise of all Acquiror Options to be granted to holders of Unvested

 

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Company Options (assuming that such AcquirorOptions are fully exercisable) to equal 19.9% of the outstanding shares ofAcquiror Common Stock as of the close of business on the trading day that istwo (2) trading days immediately prior to the Closing Date.

 

“Form of Acceptance” means the form ofacceptance, election and authority relating to the Offer accompanying the OfferLetter.

 

“Form S-4” is defined in Section 6.5(a).

 

“FTC” is defined in Section 3.3(a)(ii).

 

“Fully Diluted Company Share Amount” meansthe total number of Company Ordinary Shares issued as of the Closing Date(including that number of Company Ordinary Shares acquirable on conversion ofall then outstanding Company Preferred Shares) after giving effect to theexercise or deemed exercise prior to Closing of all Vested Company Options andthe exercise or termination of all Company Warrants, but excluding all CompanyOrdinary Shares underlying Unvested Company Options.

 

“GAAP” means Generally Accepted AccountingPrinciples of the US.

 

“Governmental or Regulatory Authority” meansany court, tribunal, arbitrator, authority, agency, commission, official orother instrumentality of the US, the PRC, Ireland, any foreign country or anydomestic or foreign federal, state, county, city, local, municipal or otherpolitical subdivision.

 

“Hazardous Material” is defined in Section4.30(b)(iv).

 

“HSR Act” means the Hart-Scott-RodinoAntitrust Improvements Act of 1976, as amended, and the rules and regulationsthereunder.

 

“Indemnitees” is defined in Section 7.2(a).

 

“Initial Cash Consideration” means$200,000,000, less the Final Loan Stock Balance, plus fifty percent (50%) ofthe Vested Option Exercise Amount.

 

“Initial Consideration” means the sum of (a)the Initial Cash Consideration and (b) Stock Consideration, reduced by theEscrowed Consideration.

 

“Intel Contingent Obligation” means any andall remaining amounts payable to Shareholder Intel Corporation pursuant to Section 2.08of that certain Amended and Restated Purchase and Contribution Agreement, datedas of September 18, 2002 between the Company, Intel Corporation andcertain Shareholders.

 

“Intellectual Property Rights” is defined inSection 4.19(a)(iv).

 

“InternationalEmployee Plan” means any material plan, program, policy, practice,contract, agreement or other arrangement, including any Company Employee Plan,that has been adopted or maintained by the Company or any of its Subsidiaries,whether informally or

 

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formally, or with respect to which theCompany or any of its Subsidiaries will or may have any liability, for thebenefit of Employees who perform services outside the United States.

 

“Irrevocable Undertaking” is defined in theBackground.

 

“IRS” is defined in Section 4.25(a).

 

“Key Employees” mean the following employeesof the Company: Tom Davis, Terry Haas, Ron Gibbons, Bob MacFarlane, DaveTaylor, Corey Ercanbrack, William Smith and David Breck.

 

“Knowledge” or “Known” shall mean, with respect to theCompany, the knowledge of the Company’s and each of its Subsidiaries’ officersand members of the board of directors, and shall be deemed that such personsshall have made due and diligent inquiry of all relevant employees andconsultants of the Company and any of its Subsidiaries.

 

“Law” means any statute, law, ordinance,regulation, order or rule of any Governmental or Regulatory Authority,including those covering employment, employee benefits, energy, safety, health,information technology, privacy, transportation, bribery, recordkeeping,zoning, antidiscrimination, antitrust, unfair competition or trade practices,wage and hour, and price and wage control matters.

 

“Lease” is defined in Section 4.18(a).

 

“Lender” means any Person to whom the Companyor any of its Subsidiaries has any Liability to pay for Borrowed MoneyIndebtedness.

 

“Liability” means any direct or indirectliability, indebtedness, obligation, expense, claim, loss, damage, deficiency,guaranty or endorsement of or by any Person, absolute or contingent, known orunknown, accrued or unaccrued, liquidated or unliquidated, due or reasonablyexpected to become due and the term “Liabilities” shall be construedaccordingly.

 

“Liens” means any lien, mortgage, security,interest, pledge, restriction on transferability (other than those imposed byapplicable securities Laws), defect of title or other claim, charge orencumbrance of any nature whatsoever on any property or property interest.

 

“Litigation” means any lawsuit, claim,action, arbitration, administrative or other governmental proceeding orcriminal prosecution.

 

“Loan Stock” means the Company’s redeemableloan stock in the aggregate principal amount of $25,394,000 issued on September18, 2002.

 

“Material Adverse Effect” means any change, event, effect,occurrence, violation, inaccuracy, circumstance or development that, eitheralone or in combination with any other change, event, effect, occurrence,violation, inaccuracy, circumstance or development, is, or is reasonably likelyto be, materially adverse to the Business, Assets, financial condition,operations or results of operations of the Company and its Subsidiaries, takenas a whole; *provided*,*however*,that in no event shall any of the following, alone or in combination with any

 

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other, be deemed to constitute, nor shall anyof the following be taken into account in determining whether there has been orwill be, a Material Adverse Effect: any change, event, effect, occurrence,violation, inaccuracy, circumstance or development that is caused by or resultfrom (A) conditions affecting the industry in which the Companyparticipates, in each case not having a disproportionate effect on the Companyand its Subsidiaries taken as a whole, (B) general economic changes,foreign or domestic, not specifically related to the Company, (C) theCompany’s compliance with its obligations pursuant to the Transactions or theTransaction Agreement, (D) the execution, announcement or pendency of theTransactions or the Transaction Agreement, (E) all actions by the Companywhich have been agreed to, directed or consented to by or on behalf ofAcquiror, or (F) the outbreak or escalation of war, hostilities or terroristactivities, either in the US or elsewhere, in each case not having a materiallydisproportionate effect on the Company and its Subsidiaries, taken as a whole; *provided*, *however*,that the Company shall bear the burden of proof in a proceeding with regard toestablishing that the Material Adverse Effect on the Company resulted from thedirect effect of one of the events described in clauses (A) through (F) above.

 

“Matheson Ormsby Opinion” is defined inSection 8.1(g).

 

“MultiemployerPlan” means any Pension Plan which is a “multiemployer plan”, as definedin Section 3(37) of ERISA.

 

“NDA” is defined in Section 11.1.

 

“Offer Letter” means the offer letter fromBuyer to all of the Shareholders and all of the holders of Vested CompanyOptions and Company Warrants, together with all Schedules and Annexes forming apart thereof including, the Form of Acceptance enclosed therewith,substantially in the form of **Exhibit D**hereto, with such changes as shall be agreed to by Company and Acquiror, andany extension, amendment, clarifications or additions thereto subsequentlyissued by Buyer.

 

“Offer Materials” means the Offer Letter andany other documentation delivered in connection therewith or pursuant toSection 6.5 hereof.

 

“Offer” means the offer made on the terms andthe conditions set forth in the Offer Letter by Buyer for all of the Shares.

 

“Open Source Agreement(s)” is defined inSection 4.19(a)(viii).

 

“Open Source Company Software” is defined inSection 4.19(a)(ii).

 

“Optionholder” means a Person who holds aCompany Share Option as of the Closing Date.

 

“Ordinary course” or “ordinary course ofbusiness” means, with respect to the Company, the ordinary course of commercialoperations customarily engaged in by the Company and its Subsidiaries,consistent with past practices.

 

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“Other Antitrust Law or Laws” means theantitrust or competition Laws of all jurisdictions other than the US.

 

“Patents” is defined in Section 4.19(a)(iv).

 

“PensionPlan” shall refer to each Company Employee Plan which is an “employeepension benefit plan”, within the meaning of Section 3(2) of ERISA.

 

“Per Share Contingent Cash DistributionAmount” means that dollar amount equal to (i) the Contingent CashConsideration, divided by (ii) the Fully Diluted Company Share Amount.

 

“Per Share Escrow Amount” means that:(i) number of shares of Acquiror Common Stock in the EscrowedConsideration, as reduced for any shares of Acquiror Common Stock withheld orapplied to satisfy Damages in accordance with Schedule 4 and Schedule5 of the Offer Document and the Escrow Agreement, divided by: (ii) theFully Diluted Company Share Amount.

 

“Per Share Initial Cash Distribution Amount”means that dollar amount equal to: (i) the Initial Cash Consideration, less$2,861,348, divided by (ii) the Fully Diluted Company Share Amount.

 

“Per Share Stock Distribution Amount” meansthat number of shares of Acquiror Common Stock determined as follows: (i) theStock Consideration reduced by the Escrowed Consideration and divided by (ii)the Fully Diluted Company Share Amount.

 

“Permit Materials” is defined in Section6.5(d)(i).

 

“Permits” means any permits, licenses,franchises, registrations, certificates, variances, exemptions, consents,approvals and other authorizations granted by any Governmental or RegulatoryAuthority.

 

“Permitted Liens” means (i) Liens for taxes,assessments or similar charges not yet due and payable or which are beingcontested in good faith and for which adequate reserves have been establishedon the Current Balance Sheet or after the date of thereof in the ordinarycourse of business; (ii) Liens of mechanics, materialmen, warehousemen,carriers, or other like Liens securing obligations incurred in the ordinarycourse of business; (iii) Liens, including easements, rights of way,objections, reservations, consents, tenancies, licenses and the like affectingany real property, in each case of public record, visible upon a physicalinspection of the real property or otherwise disclosed in the DisclosureSchedules; (iv) Liens against the interests of the landlord under any of theLeases; and (v) Liens that are not material in amount and that do not adverselyaffect the Company’s or its Subsidiaries’ use of the property subject thereto.

 

“Person” means any natural person,corporation, partnership, limited liability company, proprietorship,association, joint venture, trust or other legal entity.

 

“PRC” means the People’s Republic of China,for the purposes of this Agreement, excluding the Hong Kong SpecialAdministrative Region, the Macao Special Administrative Region and Taiwan.

 

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“Preferred Share Initial Cash DistributionAmount” means that dollar amount equal to the sum of $0.02855 and the Per ShareInitial Cash Distribution Amount.

 

“Proprietary Company Software” is defined inSection 4.19(a)(xi).

 

“PTO” is defined in Section 4.19(b).

 

“Public Software” is defined in Section4.19(a)(ix).

 

“Registered Intellectual Property Rights” isdefined in Section 4.19(a)(vi).

 

“Release” is defined in Section 4.30(b)(v).

 

“Relief” includes any loss, relief,allowance, credit, deduction, exemption, set-off or right to repayment of Tax,including, without limitation any deduction in computing income, profits orgains for the purposes of any Tax.

 

“Required Consents” is defined in Section4.5.

 

“SDCA” is defined in Section 4.14(g).

 

“SEC” is defined in Section 5.4.

 

“Securities Act” means the Securities Act of1933, as amended, and the rules and regulations thereunder.

 

“Securities Condition” is defined in Section6.5(d)(iii).

 

“Selling Shareholder” means, in respect ofany Share(s), the Registered Shareholder of such Share(s) who accepts the Offerin accordance with the terms of this Offer Letter.

 

“Shareholder Representative” is defined inSection 10.1.

 

“Shareholder Representative Provisions” isdefined in Section 10.1.

 

“Shareholders” mean all registered andbeneficial owners of the Shares.

 

“Shares” mean the issued shares in thecapital of the Company.

 

“Source Code Escrow Agreement” is defined inSection 4.19(u).

 

“Spreadsheet” is defined in Section 6.8.

 

“Stamp Tax” means any stamp, registration orother transaction or documentary tax charged in accordance with the SDCA inrespect of the transfer of Shares pursuant to the Offer.

 

“Stock Consideration” means that number ofshares of Acquiror Common Stock determined by dividing $200,000,000 by theAcquiror Common Stock Value.

 

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“Strategic Investors” mean the followingshareholders of the Company:  OrcaCapital Corporation, Intel Atlantic, Inc., Vector Capital and its affiliates,vSpring SBIC, L.P., WS Investment Company, LLC, Blueprint Ventures and itsaffiliates, Westbridge Ventures, L.P., and TCO/WB LLC.

 

“Subsidiary” means, with respect to anyPerson, any corporation, partnership, limited liability company, association,joint venture or other business entity of which (i) if a corporation, at least50% of the total voting power of shares of stock entitled (irrespective ofwhether, at the time, stock of any other class or classes of such corporationshall have or might have voting power by reason of the happening of anycontingency) to vote in the election of directors, managers or trustees thereofis at the time owned or controlled, directly or indirectly, by that Person orone or more of the other Subsidiaries of that Person or a combination thereof,or (ii) if a partnership, limited liability company, association, joint ventureor other business entity, at least 50% of the partnership, joint venture orother similar ownership interest thereof is at the time owned or controlled,directly or indirectly, by that Person or one or more Subsidiaries of thatPerson or a combination thereof.

 

“Tax Authority” means any authority or bodywhether national or otherwise having the power or authority or other functionin relation to Tax.

 

“Tax Return” means all returns and reports(including elections, declarations, disclosures, schedules, estimates andinformation returns) relating to Taxes required to be filed or actually filedwith a Governmental or Regulatory Authority.

 

“Tax” or “Taxes” means: (i) all taxes,charges, fees, levies or other assessments, including income, corporation,capital gains, gross receipts, value-added, excise, withholding, personalproperty, real estate, sales, use, ad valorem, license, lease, service,severance, stamp, capital duties, transfer, payroll, employment, unemployment,social security, customs, duties, alternative, add-on minimum, estimated and franchisetaxes (including any interest, penalties or additions attributable to orimposed on or with respect to any such assessment) whether arising in the US,Ireland or elsewhere; (ii) any Liability for or in respect of the payment ofany amount of a type described in clause (i) of this definition as a result ofbeing a member of an affiliated, combined, consolidated, unitary or other groupfor Tax purposes; or (iii) any Liability for or in respect of the paymentof any amount described in clauses (i) or (ii) of this definition as atransferee or successor, by Contract or Law.

 

“Technology” is defined in Section4.19(a)(iii).

 

“Third Party Code” is defined in Section4.19(a)(xii).

 

“Trade Secrets” is defined in Section4.19(a)(iv).

 

“Trademarks” is defined in Section4.19(a)(iv).

 

“Transaction Documents” means this Agreement,the Offer Materials and any other certificate or agreement required to beexecuted and delivered pursuant to the terms hereof or thereof.

 

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“Transactions” means the Offer and the othertransactions contemplated by the Transaction Documents.

 

“Unvested Company Options” means alloutstanding Company Share Options other than Vested Company Options.

 

“Unvested Option Exchange Ratio” means thesum of (i) the Per Share Initial Cash Distribution Amount divided by theAcquiror Common Stock Value, and (ii) the Per Share Stock DistributionAmount.

 

“US” means the United States of America.

 

“Vested Company Options” means alloutstanding Company Share Options which according to their terms and conditionsare vested and exercisable as of the Closing.

 

“Vested Option Exercise Amount” shall meanthe aggregate exercise price payable with respect to all Vested Company Optionsthat would be deducted from the amounts paid with respect to Vested CompanyOptions pursuant to Section 2.5 hereof.

 

“Warrant Holder” means a Person who holds aCompany Warrant as of the Closing Date.

 

**ARTICLE 2**

 

**THE OFFER**

 

2.1                                 Terms.

 

(a)                                  Onthe terms and subject to the conditions of this Agreement, Buyer shall make,and Acquiror shall cause Buyer to make, the Offer to all Shareholders andholders of Vested Company Options and Company Warrants and mail the OfferMaterials to all Shareholders and holders of Vested Company Options and CompanyWarrants within two (2) Business Days following the date the SecuritiesCondition is satisfied.

 

(b)                                 TheOffer will be made in accordance with applicable Laws and shall expire noearlier than twenty (20) Business Days after the Offer is mailed to Shareholdersand holders of Vested Company Options and Company Warrants, subject to theright of Buyer to extend the period during which Shares may be accepted withoutthe prior written consent of the board of directors of the Company if suchextension is required by applicable Law and then for such additional days asrequired by applicable Law. Any extension not set forth in thisSection 2.1(b) shall require the prior written consent of the board ofdirectors of the Company, which consent shall not be unreasonably withheld,delayed or conditioned.

 

(c)                                  Itis understood and agreed that Buyer may, but subject to applicable Laws andthis Agreement, amend, supplement, modify or waive any term or condition of theOffer; provided, however, that in the event that any of the conditions for theOffer are not satisfied or waived as of the scheduled expiration date of theOffer, Buyer shall extend the Offer until either (A) all of the conditionsto the Offer are satisfied or waived or (B) this Agreement is terminatedpursuant to Section 3.3, and that Buyer will not, except as provided inSection 2.1(b), without the

 

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prior written consent of the board ofdirectors of the Company, (i) decrease the consideration per Share, (ii) changethe form of consideration payable under the Offer (other than to add additionalconsideration), (iii) except as may be required by applicable Laws, imposeadditional conditions to the Offer or (iv) make any other change to the termsand conditions of the Offer that is, or would be reasonably likely to,adversely affect the Shareholders.

 

2.2                                 CompanySupport for the Offer. The Company has provided the Buyer Parties with atrue and correct list of the registered owners of the Shares together with theiraddresses as they appear on the Company’s share records and respectiveregistered holdings of Shares. The Company shall furnish reasonably promptly toBuyer (i) any changes to the addresses and respective holdings of the Shares bythe registered or beneficial holders of Shares, such changes which the Companyis or becomes aware and (ii) such additional information and assistance as theBuyer Parties may reasonably request.

 

2.3                                 Section 204Procedure. After the Offer has been accepted by holders of not less than80% in nominal value of each class of Shares in the share capital of theCompany, Buyer shall, and Acquiror shall cause Buyer to, use its reasonablebest efforts (to the maximum extent possible) to acquire the remainder of theShares from Shareholders who have not accepted the Offer pursuant toSection 204 of the Companies Act 1963 of Ireland (the “CompulsoryAcquisition”). If the Compulsory Acquisition is not available for any reason,the Buyer Parties shall pursue any other means available under applicable Law,and shall use their reasonable best efforts with respect to, acquiring anyremaining Shares not tendered in the Offer on the same terms and conditions(including price) as the Shares tendered in the Offer. The Company shall useits commercially reasonable efforts to cooperate with and assist the BuyerParties in completing any such Compulsory Acquisition, or such other meansavailable under applicable Law, of acquiring any remaining Shares not tenderedin the Offer. The Buyer Parties shall use their respective commerciallyreasonable efforts to complete any such Compulsory Acquisition, or such othermeans available under applicable Law, of acquiring any remaining Shares nottendered in the Offer as promptly as practicable after the Closing.

 

2.4                                 Treatmentof Company Warrants. Any Company Warrants must be exercised on or beforethe Closing Date. To the extent any Company Warrant is not exercised prior tothe Closing Date, such Company Warrants will terminate as of the Closing Date. TheCompany shall, prior to the Closing, take all action and give all noticesnecessary to effect the treatment of Company Warrants contemplated by thisSection 2.4.

 

2.5                                 Treatmentof Company Share Options. Each Vested Company Option outstanding as of theClosing Date must be exercised on or before the Closing Date in accordance withthe Company Share Option Plan. To the extent any Vested Company Option is notexercised prior to the Closing Date, such Company Share Options will becancelled as of the Closing Date in exchange for the right to receive thepayment equal to that amount set forth in the Offer Document for each issuedCompany Ordinary Share less the exercise price of such Vested Company Option(such payment to be net of taxes required by law to be withheld with respectthereto). Each Unvested Company Option outstanding as of the Closing Date willbe assumed by Acquiror and converted into an Acquiror Option, which shallprovide for the same vesting schedule under the Company Share Option Plan andits respective stock option agreement. Each such assumed Unvested CompanyOption shall continue to be subject to the

 

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terms and conditions set forth in the CompanyShare Option Plan and the option agreement evidencing such assumed UnvestedCompany Option, except that (i) each such Unvested Company Option will beexercisable for that number of whole shares of Acquiror Common Stock (roundeddown to the nearest whole share of Acquiror Common Stock) equal to the productof the number of Company Ordinary Shares that would be issuable upon exerciseof such Unvested Company Option immediately prior to the Closing, assuming thatall vesting conditions applicable to such Unvested Company Option were thensatisfied, multiplied by the Unvested Option Exchange Ratio, (ii) for eachresulting share of Acquiror Common Stock subject to an Acquiror Option issuedto a holder of such Unvested Company Option, such holder shall be entitled toreceive, in the manner specified below, the Additional Stock Consideration andthe Additional Cash Consideration, in either case if any, and (iii) the pershare exercise price for the shares of Acquiror Common Stock issuable uponexercise of such assumed Unvested Company Option will be equal to the quotientdetermined by dividing the exercise price per share of Company Ordinary Sharesat which the Unvested Company Option was exercisable immediately prior to theClosing by the Unvested Option Exchange Ratio, rounded up to the nearest wholecent. On or before January 31 of each calendar year following the date uponwhich the Contingent Cash Consideration, if any, is paid to the Shareholders,each former holder of an Unvested Company Option shall be entitled to receivethe Additional Cash Consideration, if any, payable with respect to each shareof Acquiror Common Stock subject to such holder’s Acquiror Option for whichsuch Acquiror Option has become exercisable during the preceding calendar year(or in the case of the first such distribution, each such share of AcquirorCommon Stock for which such Acquiror Option has become exercisable from theClosing Date to the end of the preceding calendar year), which distributionsshall continue until all Additional Cash Consideration has been paid for sharesof Acquiror Common Stock exercisable under such Acquiror Option. On or beforeJanuary 31 of each year following the date on which the EscrowedConsideration, if any, is disbursed to the Shareholders, each such formerholder of an Unvested Company Option shall further be entitled to receive theAdditional Stock Consideration, if any for each such share of Acquiror CommonStock for which such Acquiror Option has become exercisable during thepreceding calendar year (or in the case of the first such distribution, each suchshare of Acquiror Common Stock for which such Acquiror Option has becomeexercisable from the Closing Date to the end of the preceding calendar year),until all Additional Stock Consideration has been paid for shares of AcquirorCommon Stock exercisable under such Acquiror Option. As soon as practicableafter the Closing Date, Acquiror shall deliver to each holder of an outstandingassumed Unvested Company Option an appropriate notice setting forth such holder’srights pursuant thereto and that such assumed Unvested Company Option shallcontinue in effect on the same terms and conditions as the Unvested CompanyOption (subject to the adjustments described herein after giving effect to theTransaction). The Company shall, prior to the Closing, take all action and giveall notices necessary to effect the treatment of Company Share Optionscontemplated by this Section 2.5. It is the intention of the parties thateach Unvested Company Option so assumed by Acquiror shall qualify following theClosing Date as an incentive stock option as defined in Section 422 of the Codeto the extent such Unvested Company Option qualified as an incentive stockoption prior to the Closing Date.

 

2.6                                 Withholding.Each of Acquiror, Buyer and the Company shall be entitled to deduct andwithhold from the consideration otherwise payable pursuant to this Agreement orthe Offer Materials to any Shareholder, Warrant Holder or Optionholder suchamounts as it is

 

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required to deduct and withhold with respectto the making of such payment under the Code, or any other applicable state,local or foreign Law relating to Taxes. To the extent that amounts are sowithheld by the Company, Acquiror or Buyer, as the case may be, such withheldamounts (i) shall be remitted by Company, Acquiror or Buyer, as the case maybe, to the applicable Governmental or Regulatory Authority, and (ii) shall betreated for all purposes of this Agreement as having been paid to theShareholder, Warrant Holder or Optionholder in respect of which such deductionand withholding was made by the Company, Acquiror or Buyer, as the case may be;provided, however, that Acquiror shall use reasonable commercial efforts toprovide notice to the Shareholder Representative at least (5) Business Daysprior to the withholding of any amount, and shall consult with the ShareholderRepresentative with respect to, in either case, the withholding of any amountpayable to any Shareholder, Warrant Holder or Optionholder (other than in respectof Unvested Company Options) if such withholding is not with respect to theperformance of services by such Shareholder, Warrant Holder or Optionholder asan employee.

 

**ARTICLE 3**

 

**CLOSING.**

 

3.1                                 Location;Date. The consummation of the Transactions (the “Closing”) shall be held atthe offices of Morrison & Foerster LLP, 755 Page Mill Road, Palo Alto,California 94304 on a date which shall be no later than two Business Days aftersatisfaction or waiver of the conditions set forth in Sections 8.1 and 8.2(other than those conditions which are to be satisfied or waived as of theClosing Date) or at such other date and place as may be mutually agreed upon byAcquiror and the Company (the “Closing Date”).

 

3.2                                 Deliveries.At the Closing:

 

(a)                                  TheCompany shall deliver, or shall cause to be delivered, each of the following toAcquiror, unless Acquiror waives the delivery thereof:

 

(i)                                     Thewritten resignations of each director and officer of the Company set forth on**Schedule 3.2(a)(i)**;

 

(ii)                                  TheCompany Officer’s Certificate;

 

(iii)                               TheCompany Legal Opinion;

 

(iv)                              TheMatheson Ormsby Opinion;

 

(v)                                 Writtenconfirmation, in form reasonably satisfactory to Acquiror, that the IntelContingent Obligation has been paid in full by the Company;

 

(vi)                              Evidenceof releases of all Liens on the Assets set forth in **Schedule 3.2(a)(vi)**;

 

(vii)                           Acertificate of the Secretary of the Company in form and substance reasonablyacceptable to Acquiror, certifying as to (A) the authorization of the board

 

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of directors of the Company of this Agreementand the transactions contemplated hereby; (B) the names and the signatures ofthe Company’s officers authorized to sign the Transactions Documents to whichit is a party; and (C) the Company’s and each of its Subsidiaries’ CharterDocuments, each as in effect at the Closing Date;

 

(viii)                        Ifreasonably requested, a certificate or certificates of the kind described insection 980 of the Irish Taxes Consolidation Act 1997 TCA in respect ofthe entire purchaser consideration.

 

(ix)                                Acertificate of the Chief Financial Officer of the Company (the “CFO Certificate”)certifying as to (A) the total amount of the Final Loan Stock Balance, and (B)as to each party to whom the Final Loan Stock Balance is owed at the ClosingDate (and the amounts owed thereof), along with wire transfer or otherinstructions for payment of the Final Loan Stock Balance;

 

(x)                                   Evidencesatisfactory to the Acquiror that the Company has obtained the RequiredConsents

 

(xi)                                Acopy of the audited consolidated balance sheet of the Company as of December31, 2005 and the related statement of income and cash flow for the 12-monthperiod then ended; and

 

(xii)                             ExecutedEscrow Agreement.

 

(b)                                 Acquirorshall deliver, or shall cause to be delivered, each of the following to theCompany, unless the Company waives the delivery thereof:

 

(i)                                     Acquirorshall pay to each party identified in the CFO Certificate, on behalf of theCompany, the amount of the Final Loan Stock Balance owed to each such party inaccordance with the payment instructions contained therein;

 

(ii)                                  Acquirorshall pay an amount equal to the Initial Cash Consideration and the StockConsideration in accordance with the Offer Materials;

 

(iii)                               Acquirorshall deposit the Escrowed Consideration into an escrow fund (the “Escrow Fund”)with the Escrow Agent pursuant to the Escrow Agreement in accordance with theOffer Materials; and

 

(iv)                              ExecutedEscrow Agreement.

 

(c)                                  Buyershall serve notice pursuant to Section 204(1) of the Companies Act 1963that it desires to acquire the beneficial ownership of the Shares of any holderof Shares who has not accepted the offer.

 

3.3                                 Termination.

 

(a)                                  ThisAgreement may be terminated and the Transactions may be abandoned at any timeprior to the Offer becoming unconditional only as follows:

 

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(i)                                     bymutual written consent of Acquiror and the Company;

 

(ii)                                  atthe election of either Acquiror or the Company, if the Closing Date shall nothave occurred on or before 5:00 P.M. New York, New York time onSeptember 30, 2006; provided that (A) no party shall be entitled toterminate this Agreement pursuant to this Section 3.3(a)(ii) if such party’sfailure to fulfill any obligation under this Agreement (or, in the case of theCompany, a Shareholder’s failure to fulfill its obligation under theIrrevocable Undertaking) has been the primary cause of the failure of theClosing to occur on or before such date and (B) if the sole reason that theparties hereto have not closed the Transactions as of September 30, 2006is that the required approval from the United States Department of Justice (the“DOJ”), the United States Federal Trade Commission (the “FTC”) or any otherantitrust Governmental or Regulatory Authority whose consent is required priorto the Closing has not been obtained, despite the reasonable best efforts ofAcquiror, then neither Acquiror nor the Company may terminate this Agreementpursuant to this Section 3.3(a)(ii) until November 30, 2006;

 

(iii)                               byeither Acquiror or the Company if a court of competent jurisdiction shall haveissued an order, decree or ruling permanently restraining, enjoining orotherwise prohibiting the Transactions, and such order, decree or ruling shallhave become final and nonappealable;

 

(iv)                              byAcquiror if Acquiror is not in material breach of its obligations under thisAgreement and there has been a material breach of any representation, warranty,covenant, or agreement of the Company contained in this Agreement, (A) such thatthe conditions set forth in Section 8.1 could not be satisfied, (B) whichbreach would reasonably be expected to materially impair the ability of theCompany to consummate the Transactions and (C) which breach has not been curedwithin twenty (20) Business Days after written notice thereof to the Companyand the Shareholder Representative; provided that no cure period shall berequired for a breach which by its nature cannot be cured;

 

(v)                                 bythe Company if the Company and the Shareholders are not in material breach oftheir respective obligations under this Agreement or the IrrevocableUndertaking, as applicable, and there has been a material breach of anyrepresentation, warranty, covenant, or agreement of Acquiror or Buyer containedin this Agreement, which breach would reasonably be expected to materiallyimpair the ability of Acquiror or Buyer to consummate the Transactions, andwhich breach has not been cured within twenty (20) Business Days after writtennotice thereof to Acquiror; provided that no cure period shall be required fora breach which by its nature cannot be cured; or

 

(vi)                              subjectto Section 8.1(e) hereof, by the Acquiror if the Acquiror Common Stock Value isless than the Floor Price.

 

(b)                                 Thetermination of this Agreement by Acquiror shall be effectuated by the deliveryby Acquiror to the Company of a written notice of such termination. Thetermination of this Agreement by the Company shall be effectuated by thedelivery by the Company to Acquiror of a written notice of such termination.

 

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(c)                                  Inthe event that this Agreement shall be terminated pursuant to thisSection 3.3, all obligations of the parties hereto under this Agreementshall terminate and there shall be no liability of any party hereto to anyother party except that nothing herein will relieve any party from liabilityfor any willful breach of this Agreement.

 

**ARTICLE 4**REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

 

As of the date hereof and as of the ClosingDate (except where the representation or warranty is expressly made as ofanother date, in which case such representation or warranty is made only as ofsuch other date), the Company hereby represents and warrants to Acquiror andBuyer, subject to such exceptions as are specifically disclosed in writing inthe disclosure letter, dated as of the date hereof, and certified by a dulyauthorized officer of the Company (the “Disclosure Schedules”), whichexceptions shall specifically identify the Section, subsection, paragraph andclause hereof to which such exception relates and other Sections, subsections,paragraphs and clauses hereof to the extent it is reasonably apparent that suchexceptions are applicable to such representations and warranties, as follows:

 

4.1                                 Organizationand Standing.

 

(a)                                  TheCompany is a corporation duly incorporated and validly existing under the Lawsof Ireland, having full corporate power and authority to carry on the Businessas it is now being conducted and as currently proposed by the Company to beconducted, and to own, lease and operate the Assets. The Company is dulyqualified to do business and is in good standing (if applicable) in everyjurisdiction in which the Business or the character of the Assets requires suchqualification, except where the failure to be so qualified or licensed wouldnot individually or in the aggregate have a Material Adverse Effect on theCompany. **Schedule 4.1(a)** sets forth eachjurisdiction where the Company is so qualified, licensed or admitted to dobusiness and separately lists each other jurisdiction in which the Companyowns, uses, licenses or leases its assets and properties, or conducts businessor has employees or engages independent contractors. **Schedule 4.1(b)**lists the directors and officers of the Company as of the date of thisAgreement. The Company has delivered to Acquiror a true and correct copy of itsCharter Documents, each as amended through the date hereof and as are in fullforce and effect as of the date hereof. The share register and minute books(containing the records of all resolutions adopted by, the shareholders and theboard of directors of the Company since September 18, 2002), of the Company arecorrect and complete in all material respects and such register and minutebooks have been made available to counsel for Acquiror.

 

(b)                                 Noorder has been made or petition presented or resolution passed or proceedingsor action taken or ground arisen for the winding up of the Company or any ofits Subsidiaries or for or with a view to appointing an examiner, receiver,administrator, trustee or other similar officer to the Company or any of itsSubsidiaries nor has any distress, execution, sequestration, attachment orother similar process been levied or entered upon or sued out in respect of theCompany or any of its Subsidiaries or against any property or asset of theCompany or any of its Subsidiaries nor to the Knowledge of the Company is anyof the

 

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foregoing in the process of being so levied,entered upon or sued out. No event analogous to the foregoing has occurredoutside of Ireland.

 

(c)                                  Noneof the Company or any of its Subsidiaries has ceased payment of any debt nor isthe Company insolvent or unable to pay its debts within the meaning ofSection 214 of the Irish Companies Act 1963 of Ireland or Section 2of the 1990 Act. No notice has been served on the Company underSection 214(a) of the Companies Act 1963 of Ireland and no arrangement hasbeen or is about to be entered into by the Company under Section 201 orSection 279 of the Companies Act 1963 of Ireland and no encumbrancer hastaken possession or attempted to take possession of or exercised or attemptedto exercise any power of sale in respect of the whole or any part of the undertaking,property, assets or revenues of the Company and there exist no circumstancesunder which a receiver may be appointed by any Person over the whole or anypart of the undertaking, property, assets or revenues of the Company, nor isthere an unfulfilled or unsatisfied judgment, ruling, order, award, decree ordirective outstanding against the Company and the Company is not in defaultwith respect to the payment of any material obligation due for payment.

 

(d)                                 Neitherthe Company nor any of its Subsidiaries:

 

(i)                                     hadits affairs investigated pursuant to Section 7, Section 8 orSection 9 of the Companies Act 1990 of Ireland (the “1990 Act”) nor, hasthere been any investigation of the ownership of the shares of the Company orany of its Subsidiaries pursuant to Sections 14 and 15 of the 1990 Act nor hasthere been a direction made under Section 16 of the 1990 Act nor aninvestigation pursuant to Section 66 of the 1990 Act;

 

(ii)                                  hasentered into any arrangement in breach of Section 28 or Section 29 ofthe 1990 Act;

 

(iii)                               hasmade any loans or quasi-loans (within the meaning of Section 25 of the1990 Act), entered into any credit transactions as creditor or entered into anyguarantee or indemnity or provided any security in connection with a loan,quasi-loan or credit transaction in breach of Section 31 of the 1990 Act;

 

(iv)                              issubject to an order made under Section 140 of the 1990 Act;

 

(v)                                 hashad a notice served on them by their auditors pursuant to Section 185 or194 of the 1990 Act;

 

(vi)                              hasbeen struck-off and subsequently restored to the Register pursuant to theprovisions of Section 311 (a) of the Companies Act 1963 of Ireland;

 

(vii)                           enteredinto any transaction or arrangement, particulars whereof would, pursuant toSection 41 of the 1990 Act, be required to be contained in the accountsprepared by the Company or any of its Subsidiaries; or

 

(viii)                        purchasedor redeemed their own shares or those of their holding companies or createdtreasury shares pursuant to the provisions of Part XI of the 1990 Act.

 

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4.2                                 Capitalizationand Ownership. The authorized share capital of the Company is US$105,353.08divided into 250,000,000 Company Ordinary Shares and 102,853,089 CompanyPreferred Shares. A total of 15,530,453 Company Ordinary Shares and 100,222,361Company Preferred Shares are issued as of the date hereof. The numbers ofShares held by each Shareholder as of the date hereof are set forth in **Schedule 4.2**, no Shares are issued as of the datehereof that are not set forth in **Schedule 4.2**and no such Shares shall be issued as of the Closing Date that are not setforth in **Schedule 4.2**except for CompanyOrdinary Shares issued pursuant to the exercise of Company Share Options orCompany Warrants listed in **Schedule 4.2**or pursuant to the conversion of Company Preferred Shares in issue on the datehereof. All of the Shares have been duly authorized and validly issued and arefully paid, were not issued in violation of the terms of any Contract bindingupon the Company, and were issued in compliance with all applicable CharterDocuments of the Company and in material compliance all applicable federal andstate securities or “blue sky” Laws and regulations. There are no undeclared oraccrued but unpaid dividends with respect to any Shares. Except as set forth on**Schedule 4.2**, there are nopreemptive rights with respect to the issuance of the Shares. The Company hascomplied with all preemptive rights associated with the Shares. Except as setforth on **Schedule 4.2**, or pursuant to theCompany Share Option Plan, Company Options, Company Preferred Shares, CompanyWarrants, this Agreement, the Irrevocable Undertaking or the Offer Documents,there are: (i) no existing Contracts, stock appreciation rights,subscriptions, options, warrants, calls, commitments or rights of any characterto purchase or otherwise acquire from the Company, or the Company’s Knowledge,any Company shareholder, at any time, or upon the happening of any statedevent, any Shares or other securities of the Company, whether or not presentlyissued; (ii) no securities of the Company that are convertible into orexchangeable for Shares or other securities of the Company; (iii) no existingContracts, trusts or powers of attorney with respect to the voting ordisposition of the Shares held of record or beneficially by each Shareholder,to which the Company or an officer or director of the Company is a party or towhich the Company has Knowledge; and (iv) no existing Contracts, stockappreciation rights, subscriptions, options, warrants, calls, commitments orrights of any character to purchase or otherwise acquire from the Company anysuch convertible or exchangeable securities. The rules of the Company ShareOption Plan permit the granting of Company Share Options over Company OrdinaryShares which when aggregated with the number of Company Ordinary Shares issuedpursuant to the exercise of Company Share Options does not exceed 16,130,000. **Schedule 4.2** sets forth, with respect to eachoutstanding Company Share Option, (i) the identity of the grantee,(ii) the address of such grantee, (iii) the per share exercise price ofsuch Company Share Option, (iv) the number of Company Ordinary Shares issuableupon exercise of such Company Share Option, and (v) the vesting schedule ofsuch Company Share Option, including the extent to which such Company ShareOption is vested to date. **Schedule 4.2**also sets forth, with respect to each outstanding Company Warrant, (i) theidentity of the Warrant holder, (ii) the address of such Warrant holder,(iii) the per share exercise price of such Company Warrant, and (iv) the numberof Company Ordinary Shares issuable upon exercise of such Company Warrant. NoSubsidiary of the Company owns Shares. Except as described in **Schedule 4.2**, there are no options, warrants, calls,rights, commitments or agreements of any character, written or oral, to whichthe Company is a party or by which it is bound obligating the Company to grant,extend, accelerate the vesting of, change the price of, otherwise amend orenter into any such option, warrant, call, right, commitment or agreement. Theholders of Company Share Options will be given, or will have properly waived,any required notice prior to the Transactions and all such

 

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rights will be treated as provided for thisAgreement. As a result of the Transactions, including the CompulsoryAcquisition, Acquiror will be the sole record and beneficial owner of alloutstanding shares in capital of the Company and all rights to acquire orreceive shares in the capital of the Company, whether or not such shares in thecapital of the Company are outstanding.

 

4.3                                 Authorityand Binding Effect. The Company has the full corporate power and authorityto execute, deliver and perform the Transaction Documents to which it is aparty and has taken all actions necessary to secure all corporate approvalsrequired in connection therewith. The execution, delivery and performance ofthis Agreement and the consummation of the Transactions will not contravene orviolate the Charter Documents of the Company or any of its Subsidiaries. ThisAgreement constitutes, and the other Transaction Documents to which the Companyis a party will constitute, legal, valid and binding obligations of theCompany, enforceable against it in accordance with their respective terms,except as such enforcement may be limited by applicable bankruptcy, insolvency,moratorium or similar Laws affecting the rights of creditors generally andgeneral equity principles (regardless of whether enforceability is consideredin a proceeding at Law or in equity). The board of directors of the Company hasunanimously approved this Agreement and the transactions contemplated hereby.

 

4.4                                 Subsidiaries.

 

(a)                                  EachSubsidiary of the Company is a corporation or other entity duly incorporated ororganized, validly existing and in good standing (if applicable) under the lawsof its jurisdiction of incorporation or organization, has all corporate orother powers and all governmental licenses, authorizations, permits, consentsand approvals required to carry on its business as now conducted except, ineach case, where such failure would not reasonably be expected to have aMaterial Adverse Effect. Each such Subsidiary is duly qualified to do businessas a foreign corporation and is in good standing (if applicable) in eachjurisdiction where such qualification is necessary except in each case, wheresuch failure would not reasonably be expected to have a Material Adverse Effect.A true and complete list of all the Subsidiaries of the Company, together withthe jurisdiction of incorporation or organization of each such Subsidiary andthe percentage of each such Subsidiary’s outstanding capital stock or otherequity interests owned by the Company or another of its Subsidiaries as of thedate hereof, is set forth in **Schedule 4.4**.

 

(b)                                 Allof the outstanding capital stock of, or other voting securities or ownershipinterests in, each Subsidiary of the Company, is owned by the Company, directlyor indirectly, free and clear of any Lien other than Permitted Liens and freeof any other limitation or restriction (including any restriction on the rightto vote, sell or otherwise dispose of such capital stock or other votingsecurities or ownership interests other than restrictions imposed by U.S.federal or state or non-US securities Laws). Other than as set forth on **Schedule 4.2**, there are no outstanding (i) securitiesof the Company or any of its Subsidiaries convertible into or exchangeable forshares of capital stock or other voting securities or ownership interests inany Subsidiary of the Company or (ii) options or other rights to acquire fromthe Company or any of its Subsidiaries, or other obligation of the Company orany of its Subsidiaries to issue, any capital stock or other voting securitiesor ownership interests in, or any securities convertible into or exchangeablefor any capital stock or other voting securities or ownership interests in, any

 

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Subsidiary of the Company (the items inclauses (i) and (ii) being referred to collectively as the “Company SubsidiarySecurities”). There are no outstanding obligations of the Company or any of itsSubsidiaries to repurchase, redeem or otherwise acquire any of the CompanySubsidiary Securities. Except as set forth on **Schedule 4.2(b)**, the Company and its Subsidiaries do not have any, direct orindirect, record or beneficial, interest in the voting interests of any Person.

 

4.5                                 Validityof the Transactions. Except as specified on **Schedule 4.5**(the “Consents”) neither the execution and delivery of this Agreement by theCompany, the performance by the Company or any of its Subsidiaries of itsobligations hereunder, nor the consummation of the Transactions will (i) conflictwith any provision of the Charter Documents of the Company or any of itsSubsidiaries, (ii) result in any violation or breach of or default under(with or without notice or lapse of time, or both) any Contract to which theCompany or any of its Subsidiaries or any of their Assets is subject,(iii) give rise to a right of termination, cancellation, modification oracceleration of any obligation or loss of any benefit under any Contract of theCompany or any of its Subsidiaries, or (iv) result in any violation of anyjudgment, order, decree, statute, law, ordinance, rule or regulation applicableto the Company or any of its Subsidiaries or any of their Assets (any suchevent described in (i), (ii), (iii), or (iv), a “Conflict”). Consents set forth on **Schedule 4.5**that are marked as “Required” are required to be delivered at the Closing andare referred to herein as the “Required Consents.”

 

4.6                                 Restrictions.Neither the Company nor any of its Subsidiaries is a party to any Contract orsubject to any court order or Law which restricts the ability of the Company orany of its Subsidiaries to consummate the Transactions.

 

4.7                                 Third-PartyOptions. Except for the Company Share Option Plan, Company Options, CompanyPreferred Shares, Company Warrants, this Agreement, the Irrevocable Undertakingor the Offer Documents, there are no existing Contracts, options, commitmentsor rights of any character with, to or in any third party to acquire theCompany or any of its Subsidiaries, any Asset (other than product sales in theordinary course of business) or Shares, or any interest therein.

 

4.8                                 FinancialStatements; Indebtedness.

 

(a)                                  **Schedule 4.8**sets forth the Company FinancialStatements. The Company Financial Statements have been prepared in accordancewith GAAP applied on a consistent basis as of the dates and for the periodscovered thereby, except that the unaudited, consolidated balance sheet of theCompany as of March 31, 2006 (“Current Balance Sheet”) and the relatedstatement of income and cash flows for the three-month period then ended do notcontain footnotes and are subject to normal audit adjustments.

 

(b)                                 TheCompany Financial Statements give a true and fair view of the financialposition of the Company and its Subsidiaries as of the respective dates thereofand the results of operations and cash flows of the Company and it Subsidiariesfor the periods covered thereby.

 

(c)                                  **Schedule 4.8(c)** lists, and the Company has delivered toAcquiror accurate and complete copies of the documentation creating or governing,all securitization transactions

 

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and “off balance sheet arrangements” (asdefined in Item 303(a)(4)(ii) of Regulation S-K of General Rules andRegulations under the Securities Act of 1933, as amended (the “Securities Act”))effected by the Company since January 1, 2003.

 

(d)                                 TheCompany and each of its Subsidiaries maintain accurate books and recordsreflecting its assets and liabilities and maintains proper and adequateinternal accounting controls which provide assurance that: (i) transactions areexecuted in accordance with management’s authorization; (ii) transactions arerecorded as necessary to permit preparation of the consolidated financialstatements of the Company in accordance with GAAP and to maintainaccountability for the Company’s consolidated assets; (iii) access to theassets of the Company is permitted only in accordance with management’sauthorization; and (iv) accounts, notes and other receivables are recordedaccurately, and procedures are implemented in an effort to reflect thecollection thereof on a current and timely basis. Since January 1, 2003, theCompany has not been advised by its accountants that there has been (i) amaterial weakness in the Company’s internal control over financial reporting(whether or not remediated) or (ii) a change in the Company’s internalcontrol over financial reporting that has materially affected, or is reasonablylikely to materially affect, the Company’s internal control over financialreporting.

 

(e)                                  **Schedule 4.8(e)** contains an accurate and complete listof the Borrowed Money Indebtedness of the Company and each of its Subsidiaries,itemized by Lender, with the aggregate balances owed to each Lender as of thedate hereof. Except as set forth on **Schedule 4.8**,neither the Company nor any of its Subsidiaries has any Borrowed MoneyIndebtedness as of the date hereof.

 

4.9                                 Booksand Records. The books of account and stock record books of the Company andeach of its Subsidiaries, all of which have been made available to Acquiror,are complete and correct in all material respects and have been maintained inaccordance with sound business practices and the requirements ofSection 13(b)(2) of the Exchange Act (regardless of whether or not theCompany or any of its Subsidiaries is subject to that Section).

 

4.10                           NoUndisclosed Liabilities. Neither the Company nor any of its Subsidiarieshas any Liabilities other than those that, (a) have been reflected in theCurrent Balance Sheet, or (b) have arisen in the ordinary course of businesssince the date of the Current Balance Sheet and that are not, individually orin the aggregate, material to the Company or that have arisen in connectionwith the Transactions.

 

4.11                           AccountsReceivable. The Accounts Receivable represent or will represent validobligations arising from sales actually made or services actually performed inthe ordinary course of business. Unless paid prior to the Closing Date, theAccounts Receivable are or will be as of the Closing Date current andcollectible net of the respective reserves shown in the Company FinancialStatements or on the accounting records of the Company as of the Closing Date(which reserves are adequate and calculated consistent with past practice and,in the case of the reserves as of the Closing Date, will not represent agreater percentage of the Accounts Receivable as of the Closing Date than thereserves reflected in the Current Balance Sheet represented of the AccountsReceivable reflected therein and will not represent a material adverse changein the composition of such Accounts Receivable in terms of aging). There is nocontest, claim, or right of set-off, other than returns in the Ordinary Courseof Business, under

 

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any contract with any obligor of an AccountsReceivable relating to the amount or validity of such Accounts Receivable as ofthe date hereof. **Schedule 4.11** contains acomplete and accurate list of all Accounts Receivable as of the date of theCurrent Balance Sheet, which list sets forth the aging of such AccountsReceivable as of such date.

 

4.12                           Inventory.All inventory of the Company and each of its Subsidiaries, whether or notreflected in the Company Financial Statements or the Current Balance Sheet, consistsof a quality and quantity usable and salable in the ordinary course ofbusiness, except for obsolete items and items of below standard quality, all ofwhich have been written off or written down in accordance with GAAP applied ona consistent basis to net realizable value in the Company Financial Statementsor the Current Balance Sheet or on the accounting records of the Company as ofthe Closing Date, as the case may be. All inventories not written off have beenpriced at the lower of cost or market on a first in, first out basis inaccordance with GAAP applied on a consistent basis. The quantities of each itemof inventory (whether raw materials, work-in-process, or finished goods) arenot excessive, but are reasonable in the present circumstances of the Company.

 

4.13                           NoChanges. Since the date of the Current Balance Sheet, there has not been,occurred or arisen any:

 

(a)                                  commitmentor transaction by the Company or any of its Subsidiaries except in the ordinarycourse of business as conducted on that date and consistent with pastpractices;

 

(b)                                 amendmentor change to the Articles of Incorporation, Bylaws or other organizationaldocuments, as the case may be, of the Company or any of its Subsidiaries;

 

(c)                                  changein the Company’s or any of its Subsidiaries authorized capital structure;

 

(d)                                 capitalexpenditures, lease commitments or capital commitments by the Company or any ofits Subsidiaries, either individually exceeding $100,000 or in the aggregateexceeding $200,000;

 

(e)                                  payment,discharge or satisfaction by the Company or any of its Subsidiaries, in anyamount in excess of $100,000 in any one case or $200,000 in the aggregate, ofany claim, liability or obligation (absolute, accrued, asserted or unasserted,contingent or otherwise), other than payment, discharge or satisfaction(i) of any Borrowed Money Indebtedness, or (ii) in the ordinarycourse of business of other liabilities reflected or reserved against in theCurrent Balance Sheet, or arising thereafter in the ordinary course ofbusiness;

 

(f)                                    destructionof, damage to or loss of any Assets (whether or not covered by insurance), inexcess of $200,000 in the aggregate;

 

(g)                                 revaluationby the Company or any of its Subsidiaries of any of their respective Assets;

 

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(h)                                 change,event or effect that has had a Material Adverse Effect on the Company or any ofits Subsidiaries;

 

(i)                                     changein accounting methods or practices (including any change in depreciation oramortization policies or rates) by the Company or any of its Subsidiaries,including, but not limited to, any change made in accordance with GAAP;

 

(j)                                     changein any election material with respect to Taxes, adoption or change in anymaterial accounting method in respect of Taxes, agreement or settlement of anymaterial claim or assessment in respect of Taxes, extension or waiver of thelimitation period applicable to any material claim or assessment in respect ofTaxes, or material amendment or change of any Return;

 

(k)                                  declaration,setting aside or payment of a dividend or other distribution with respect tothe shares in the capital of the Company, or any split, combination orreclassification in respect of any shares in the capital of the Company, or anyissuance or authorization of any issuance of any other securities in respectof, in lieu of or in substitution for shares in the capital of the Company, orany direct or indirect redemption, repurchase or other acquisition by theCompany of any shares in the capital of the Company (or options, warrants orother rights convertible into, exercisable or exchangeable therefor), except inaccordance with the Company Share Option Plan;

 

(l)                                     increasein the salary or other compensation payable or to become payable by the Companyor any of its Subsidiaries to any of its officers, directors or employees(other than increases in the ordinary course of business for employees who arenot executive officers) or the declaration, payment or commitment or obligationof any kind for the payment, by the Company or any of its Subsidiaries, of aseverance payment, termination payment, change in control payment, bonus orother additional salary or compensation to any such Person except as otherwisecontemplated by this Agreement;

 

(m)                               terminationby the Company (other than expiration in accordance with its terms), extensionby the Company (other than renewal in accordance with its terms), materialamendment or material modification of the terms of any Contract set forth onthe Disclosure Schedules other than in the ordinary course of businessconsistent with past practices;

 

(n)                                 sale,lease, assignment, license or other disposition of any of the Assets of theCompany or any of its Subsidiaries other than in the ordinary course ofbusiness consistent with past practices;

 

(o)                                 loanby the Company or any of its Subsidiaries to or capital investment in anyPerson, incurring by the Company or any of its Subsidiaries of any indebtednessfor borrowed money, guaranteeing by the Company or any of its Subsidiaries ofany indebtedness for borrowed money of others, issuance or sale of any debtsecurities of the Company or any of its Subsidiaries or guaranteeing of anydebt securities of others;

 

(p)                                 waiveror release of any material right or claim of the Company or any of its Subsidiaries,including any write-off or other compromise of any account receivable of theCompany or any of its Subsidiaries;

 

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(q)                                 commencementor settlement of any lawsuit by the Company or any of its Subsidiaries;

 

(r)                                    issuanceor sale, or contract or agreement to issue or sell, by the Company or any ofits Subsidiaries of any of shares in the capital of the Company or securitiesexchangeable, convertible or exercisable therefor, or of any other of its securities,except for, in the case of the Company, issuances or sales of shares in thecapital of Company upon the exercise of Company Share Options or CompanyWarrants outstanding as of the date of this Agreement;

 

(s)                                  transferor license to or from any Person any Intellectual Property Rights (includingany Company Intellectual Property) or entry into or amendment of any agreementwith any Person regarding any Intellectual Property Rights (including anyCompany Intellectual Property), except in the ordinary course of businessconsistent with past practice or (ii) agreement with respect to thedevelopment of any Intellectual Property with a third party or amendment of anysuch agreement except in the ordinary course of business consistent with pastpractice, or (iii) change in pricing or royalties set or charged by the Companyor any of its Subsidiaries to its customers or licensees or in pricing orroyalties set or charged by persons who have licensed Intellectual Property orIntellectual Property Rights to the Company or any of its Subsidiaries;

 

(t)                                    agreementor modification to any material agreement pursuant to which any other party wasgranted marketing, distribution, development or similar rights of any type orscope with respect to any products or services of the Company or any of itsSubsidiaries or Company Intellectual Property;

 

(u)                                 failureto pay or otherwise satisfy its monetary obligations as they become due, exceptsuch as are being contested in good faith; or

 

(v)                                 agreementby the Company or any of its Subsidiaries or any officer or employee on behalfof the Company or any of its Subsidiaries to do any of the things described inthe preceding clauses (a) through (u).

 

4.14                           Taxes.

 

(a)                                  TheCompany and all of its Subsidiaries have at all times submitted to all relevantTax Authorities by the requisite dates every income Tax Return and every otherTax Return, and each such Tax Return correctly and completely reflectsliability for Taxes and all other information required to be reported thereonin all material respects. All Taxes owed by the Company or any of itsSubsidiaries, whether or not shown on such Tax Returns, have been timely paidor subsequently corrected. Each of the Company and its Subsidiaries hasadequately provided for, in its books of account and related records, liabilityfor all unpaid Taxes, being current Taxes not yet due and payable through thedate of the Current Balance Sheet.

 

(b)                                 TheCompany has not been notified in writing of any action, audit, dispute or claimin respect of any Taxes, whether now proposed, threatened or pending against,or with respect to, the Company or any of its Subsidiaries. Neither the Companynor any of its Subsidiaries is the beneficiary of any extension of time withinwhich to file any Tax Return. The

 

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Company has not been notified in writing ofany claim by an authority in a jurisdiction where the Company or any of itsSubsidiaries does not file Tax Returns that the Company or any of itsSubsidiaries is or may be subject to taxation by that jurisdiction or that itmust file Tax Returns. There are (and immediately following the Closing Datethere will be) no Liens (except Permitted Liens) on any of the stock or assetsof the Company or any of its Subsidiaries with respect to Taxes.

 

(c)                                  Eachof the Company and its Subsidiaries has properly made all deductions,withholdings and retentions required to be made in respect of any actual ordeemed payments made or provided on or before Closing and has accounted for allsuch deductions, withholdings and retentions to each relevant Tax Authority andcomplied with all obligations in respect of and has properly operated PAYE andany other payroll withholding taxes and has complied with all informationreporting requirements, including maintenance of required records with respectthereto.

 

(d)                                 TheCompany has delivered or made available to Acquiror correct and complete copiesof all Tax Returns, Tax examination reports and statements of Tax deficienciesassessed against or agreed to by the Company or any of its Subsidiaries sinceSeptember 18, 2002. Neither the Company nor any of its Subsidiaries haswaived any statute of limitations in respect of Taxes or agreed to anyextension of time with respect to a Tax assessment or deficiency.

 

(e)                                  NoRelief claimed by the Company or any of its Subsidiaries prior to Closing isthe subject of any dispute with any Tax Authority.

 

(f)                                    Eachdocument in the possession or under the control of the Company or any of itsSubsidiaries or to the production of which the Company or any of itsSubsidiaries is entitled and on which the Company or any of its Subsidiariesrelies or may rely for any purpose whatsoever which requires a stamp or markhas been duly stamped or marked.

 

(g)                                 TheCompany and its Subsidiaries have not made any claim for relief or exemptionunder section 79 or section 80 of the Irish Stamp DutiesConsolidation Act 1999 (the “SDCA”), and no such claim will be made prior toClosing.

 

(h)                                 TheCompany and all of its Subsidiaries have duly paid all capital duty, andinterest, fines and penalties thereon, payable in accordance with theprovisions of section 116 of the SDCA. Additionally, the Company and itsSubsidiaries have never made any claim for relief or exemption under section 119of the SDCA within the two years ending on the date of this Agreement.

 

(i)                                     TheCompany and all relevant Subsidiaries are registered as a taxable person forvalue added tax and have complied with all legislation, notice or guidance inrelation to value added tax.

 

(j)                                     Neitherthe Company nor any of its Subsidiaries are, nor have ever been, resident fortax purposes in Ireland, and they have never carried on a trade in Irelandthrough a branch or agency.

 

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(k)                                  Neitherthe Company nor any of its Subsidiaries has been the “distributing corporation”or “controlled corporation” with respect to a transaction described in Section355 of the Code during the past two years. Neither the Company nor any of itsSubsidiaries has received (or is subject to) any ruling from any taxingauthority or has entered into (or is subject to) any agreement relating toTaxes with a Governmental or Regulatory Authority.

 

(l)                                     Neitherthe Company nor any of its Subsidiaries is a party to any Tax allocation orsharing agreement in effect as of the Closing Date. Neither the Company nor anyof its Subsidiaries has any liability for the Taxes of any Person (other thanthe Company or any of its Subsidiaries) (i) as a transferee or successor, (ii)by contract, (iii) under Section 1.1502-6 of the U.S. Treasury regulations (orany similar provision of state, local or non-U.S. law), or (iv) otherwise. Exceptas set forth on Schedule 4.14(j) neither the Company nor any of itsSubsidiaries has ever been a member of any affiliated, combined, consolidated,unitary, or similar group for Tax purposes other than the group of which theCompany is the common parent.

 

(m)                               Neitherthe Company nor any of its Subsidiaries has elected underSection 301.7701-2 of the US Treasury Regulations to be treated as anentity disregarded as an entity separate from its owner for U.S. federal incometax purposes.

 

(n)                                 TheCompany and its Subsidiaries have complied in all material respects with thereporting and record maintenance requirements of Section 6038A of the Code. TheCompany and its Subsidiaries have complied in all material respects with thedocumentation requirements of Section 6662(e)(3) of the Code. Neither theCompany nor any of its Subsidiaries has participated in a “reportabletransaction” within the meaning of Section 1.6011-4 of the U.S. TreasuryRegulations.

 

4.15                           Restrictionson Business Activities. Except for field of use limitations and similarrestrictions included in license agreements that restrict the use of thetechnology thereunder, there is no agreement (noncompete or otherwise),commitment, judgment, injunction, order or decree to which the Company or anyof its Subsidiaries is a party or otherwise binding upon the Company or any ofits Subsidiaries which has or reasonably could be expected to have the effectof prohibiting or impairing any material business practice of the Company orany of its Subsidiaries, any acquisition of property (tangible or intangible)by the Company or any of its Subsidiaries, the conduct of business by theCompany or any of its Subsidiaries or otherwise limiting the freedom of theCompany or any of its Subsidiaries to engage in any line of business or tocompete with any Person. Without limiting the foregoing, neither the Companynor any of its Subsidiaries have entered into any agreement under which theCompany or any of its Subsidiaries is restricted from selling, licensing orotherwise distributing any of its technology (including any CompanyIntellectual Property) or products, or from providing services to, customers orpotential customers, or any class of customers, in any geographic area, duringany period of time or in any segment of the market.

 

4.16                           Titleto Assets; All Tangible Assets. The Company or its Subsidiaries have goodand valid title to all of the material tangible personal property, includingthe assets and properties set forth on the Current Balance Sheet (except forsuch as may have been disposed of in the

 

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ordinary course of business since the date ofthe Current Balance Sheet), free and clear of all Liens, except PermittedLiens.

 

4.17                           Conditionof Assets. All material tangible Assets are in good operating condition andrepair and are usable in the ordinary course of business ordinary wear and tearexcepted.

 

4.18                           RealProperty.

 

(a)                                  Allreal property (including, all interests in and rights to real property) leasedor otherwise occupied by the Company or any of its Subsidiaries (individually,a “Lease” and collectively, the “Leases”), including the address of each parcelor premises demised under each such Lease (“Leased Premises”) is identified on **Schedule 4.18**. Neither the Company nor any of itsSubsidiaries owns any real property. Each of the Leases is in full force and effect in accordance with its terms and the Companyor one of its Subsidiaries is the sole holder of the lessee’s or tenant’sinterest thereunder, in each case free and clear of all Liens, except PermittedLiens. There exists no material default under any Lease by the tenantthereunder and no circumstance exists which, with or without the giving ofnotice, the passage of time or both, is reasonably likely to result in such amaterial default. To the Knowledge of the Company, there exists no defaultunder any Lease by the landlord thereunder and, to the Knowledge of the Companyor any of its Subsidiaries, no circumstance exists which, with the giving ofnotice, the passage of time or both, is reasonably likely to result in such adefault. The Company or one of its Subsidiaries has paid all rents and othercharges to the extent due and payable under the Leases. There are no leases,subleases, licenses, concessions, assignments or any other Contracts to whichthe Company or one of its Subsidiaries is a party granting to any Person otherthan the Company or one of its Subsidiaries any right to the possession, use,occupancy or enjoyment of any real property leased by the Company or any of itsSubsidiaries or any portion thereof. The copies of Leases delivered by theCompany or any of its Subsidiaries to Acquiror on or before the date of thisAgreement represent all of the Contracts to which the Company or any of itsSubsidiaries are a party pertaining to any rights of any parties to occupy theLeased Premises.

 

(b)                                 To the Company’s Knowledge, neither the whole norany portion of any Leased Premises is subject to any order to be sold or isbeing condemned, expropriated or otherwise taken by any Governmental orRegulatory Authority with or without payment of compensation therefore nor hasany such condemnation, expropriation or taking been proposed.

 

4.19                           IntellectualProperty.

 

(a)                                  Forall purposes of this Agreement, the following terms shall have the followingrespective meanings:

 

(i)                                     “CompanyCovered Products” shall mean products manufactured, sold, licensed, leased ordelivered by the Company or its Subsidiaries, other than products of thirdparties resold, distributed or sublicensed by the Company. Each Company CoveredProduct is listed on **Schedule 4.19(a)(v)**.

 

(ii)                                  “OpenSource Company Software” shall mean those software packages distributed by theCompany or its Subsidiaries and licensed under an Open Source Agreement.

 

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(iii)                               “Technology”shall mean any or all of the following: (i) works of authorship including computer programs, source codeand executable code, whether embodied in software, firmware or otherwise,documentation, designs, files, net lists, records, data and mask works; (ii) inventions(whether or not patentable), improvements, tools, methods, processes andtechnology; (iii) confidential or proprietary information, includingtechnical data, tools, methods and processes; (iv) databases, datacompilations, data collections and technical data; (v) logos, trade names,trade dress, Trademarks, World Wide Web addresses and domain names;(vi) all know-how, Trade Secrets (as defined below), and otherconfidential or proprietary information, including methodologies, processes,customer lists, supplier lists, products plans, service plans and rights inresearch and development; and (vii) all instantiations of the foregoing in anyform and embodied in any media.

 

(iv)                              “IntellectualProperty Rights” shall mean any or all of the following and all rights therein,arising therefrom, or associated therewith: (i) all US and foreign patents and utility models and applicationstherefor and all reissues, divisions, re-examinations, renewals, extensions,provisionals, continuations and continuations-in-part thereof, improvementsthereto, and equivalent or similar rights anywhere in the world in inventionsand discoveries, including invention disclosures (collectively, “Patents”);(ii) all trade secrets and other rights in know-how and confidential orproprietary information (collectively, “Trade Secrets”); (iii) allcopyrights, copyright registrations and applications therefor and all otherrights corresponding thereto throughout the world, and any renewals,modifications and extensions thereof (collectively, “Copyrights”);(iv) all moral and economic rights of authors and inventors, howeverdenominated, throughout the world; (v) all industrial designs and anyregistrations and applications therefor throughout the world; (vi) allrights in World Wide Web addresses and domain names and applications andregistrations therefor, all trade names, logos, common Law trademarks andservice marks, trademark and service mark registrations and applicationstherefor, including intent-to-use applications, brand names, trade dress, andall goodwill associated therewith throughout the world and any renewals,modifications and extensions thereof (collectively, “Trademarks”); and(vii) any similar, corresponding or equivalent rights to any of theforegoing anywhere in the world.

 

(v)                                 “CompanyIntellectual Property” shall mean all Intellectual Property Rights, includingthe Company Registered Intellectual Property Rights, that are owned by theCompany or any of its Subsidiaries.

 

(vi)                              “RegisteredIntellectual Property Rights” shall mean all US, international and foreignPatents, registered Trademarks, registered Copyrights and any other Technologythat is the subject of an application, certificate, filing, registration orother document issued by, filed with, or recorded by, any state, government orother public legal authority.

 

(vii)                           “CompanyRegistered Intellectual Property Rights” shall mean all Registered IntellectualProperty Rights owned by, filed in the name of, or applied for, by the Companyor any of its Subsidiaries.

 

(viii)                        “OpenSource Agreement(s)” shall mean any open source code style of license,including the General Public License (GPL), Lesser General Public License(LGPL), Mozilla Public License (MPL), and BSD license.

 

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(ix)                                “PublicSoftware” shall mean any software that contains, or is derived in any manner(in whole or in part) from, any software that is distributed as free software,open source software (e.g., Linux) or similar licensing or distribution models,including software licensed or distributed under any Open Source Agreement.

 

(x)                                   “CompanySource Code” shall mean, collectively, any human-readable software source code,or any material portion or aspect of such source code, that constitutes CompanyIntellectual Property, other than the Open Source Company Software.

 

(xi)                                “ProprietaryCompany Software” shall mean, collectively, Company Source Code and object codeof any computer software included in the Company Intellectual Property, otherthan the Open Source Company Software.

 

(xii)                             “ThirdParty Code” means computer programming code licensed to the Company or any ofits Subsidiaries pursuant to a Contract identified on **Schedule 4.19(e)**or **Schedule 4.19(f)**.

 

(b)                                 **Schedule 4.19(b)** sets forth a complete list of allCompany Registered Intellectual Property Rights and specifies the jurisdictionsin which such Company Registered Intellectual Property Right has been issued orregistered or in which an application for such issuance and registration has beenfiled, including the respective registration or application numbers and thenames of all registered owners. **Schedule 4.19(b)**also lists any proceedings or actions before any court, tribunal (including theUnited States Patent and Trademark Office (the “PTO”) or equivalent authorityanywhere in the world) related to any of the Company Registered IntellectualProperty Rights or Company Intellectual Property (other than Third Party Code).

 

(c)                                  Eachitem of Company Registered Intellectual Property Rights is valid andsubsisting, and except as set forth in **Schedule 4.19(c),**all necessary registration, maintenance and renewal fees in connection withsuch Company Registered Intellectual Property Rights have been paid, and allnecessary documents and certificates in connection with such Company RegisteredIntellectual Property Rights have been filed with the relevant patent,copyright, trademark or other authorities in the US or foreign jurisdictions,as the case may be, for the purposes of maintaining such Company RegisteredIntellectual Property Rights in the jurisdictions set forth on **Schedule 4.19(b)**. Except as set forth on **Schedule 4.19(c)**, as of the date hereof there are noactions that must be taken by the Company or any of its Subsidiaries withinsixty (60) days of the Closing Date, including the payment of any registration,maintenance or renewal fees or the filing of any responses to PTO officeactions, documents, applications or certificates for the purposes of obtaining,maintaining, perfecting or preserving or renewing any Company RegisteredIntellectual Property Rights in the jurisdictions set forth on **Schedule 4.19(b)**. To the extent necessary underapplicable Laws and regulations, each of the Company and its Subsidiaries hasrecorded each assignment of a material Registered Intellectual Property Rightassigned to the Company or such Subsidiary with the relevant Governmental orRegulatory Authority, including the PTO, the US Copyright Office, or theirrespective equivalents in any relevant foreign jurisdiction, as the case maybe.

 

(d)                                 Exceptas set forth on **Schedule 4.19(d)**, there is noinformation, material, fact, or circumstance, including any information or factthat would constitute prior art required to

 

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be disclosed by the Company, that has notbeen disclosed in the application for any Company Patent, that would rendersuch Company Patent invalid or unenforceable, or would adversely affect anypending application for any Company Patent.

 

(e)                                  Exceptas set forth on **Schedule 4.19(e)(i)**, each item ofCompany Intellectual Property is free and clear of any Liens other thanPermitted Liens. The Company or one of its Subsidiaries is the licensee orowner of all Technology and Intellectual Property Rights that are used inconnection with the Business or are necessary for the Business as of theClosing, and neither the Company nor any of its Subsidiaries is contractuallyobligated to pay any compensation (other than licensing fees and royalties setforth in the applicable license agreement and referenced on **Schedule 4.19(e)(iii)**) to any third party for the usethereof or the material covered thereby in connection with the Company CoveredProducts, services of the Company or operation of the Business. **Schedule 4.19(e)(iii)** sets forth a complete and accuratelist of, and the Company has previously delivered to Acquiror true and completecopies of, all material Contracts (other than Open Source Agreements,assignments of Copyright by the employees, consultants and individualcontributors of each of the Company and its Subsidiaries and agreements for thelicensing of generally available third party Technology (including software)for an aggregate fee less than $25,000)) pursuant to which a third party haslicensed or transferred any material Intellectual Property to the Company orany of its Subsidiaries and includes the date thereof and identity of allparties thereto. Except as set forth on **Schedule 4.19(e)(iii)**and**Schedule 4.19(f),**no Person who haslicensed to the Company or any of its Subsidiaries any Technology orIntellectual Property Rights has ownership rights or license rights to materialimprovements made by the Company or any of its Subsidiaries in such Technologyor Intellectual Property Rights.

 

(f)                                    **Schedule 4.19(f)** lists for each Company Covered Product(including, without limitation, each product currently under development), allPublic Software that is incorporated in or bundled with such product, or fromwhich any portion of such product is derived. **Schedule4.19(f)** also lists, for each such item of Public Software, theagreement under which such item is licensed to the Company. The Company has notused, distributed or incorporated Public Software (and has no plans to use,distribute or incorporate such Public Software) in a manner that requires anyCompany Covered Products, or any portions thereof to be (A) disclosed ordistributed in source code form, (B) licensed to other Persons for thepurpose of making derivative works or redistributing such software, or(C) licensed or otherwise distributed to other Persons at no charge. Withoutlimiting the generality of the foregoing, the Proprietary Company Software doesnot incorporate, constitute a derivative work of, dynamically link with orotherwise interact with any Public Software or any other computer softwaresubject to an Open Source Agreement in a manner that would require thedisclosure or release of the source code of such Proprietary Company Softwarepursuant to an Open Source Agreement. Neither the Company nor any of itsSubsidiaries has ever received any request or demand for the release of sourcecode of any Proprietary Company Software, whether brought under an Open SourceAgreement or other Contract.

 

(g)                                 Allpast employees since September 18, 2002 and present employees andconsultants of each of the Company and its Subsidiaries involved in thecreation of any material Technology or Intellectual Property Rights for theCompany have entered into valid and binding written agreements with the Companyor such Subsidiary sufficient to vest title in or license to

 

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the Company or such Subsidiary of allmaterial Technology and Intellectual Property Rights therein, created by suchemployee or consultant while employed or engaged by the Company or any of itsSubsidiaries to the extent permitted by applicable law.

 

(h)                                 Exceptas set forth on **Schedule 4.19(h)(i)**, each of theCompany and its Subsidiaries has taken reasonable steps to protect its rightsin the Trade Secrets of the Company and other information that it hasdetermined, in its reasonable commercial discretion to keep confidential or anyTrade Secrets or confidential information of third parties provided to it andwithout limiting the foregoing, each of the Company and its Subsidiaries hasand enforces a policy requiring each employee and consultant involved in thecreation of any Technology or Intellectual Property Rights for the Company toexecute a proprietary information/nondisclosure agreement substantially in theform(s) provided to Acquiror, and all current and former employees andconsultants of the Company and each of its Subsidiaries have executed such anagreement. Since September 18, 2002, each current and former employee andconsultant of the Company and each of its Subsidiaries listed in **Schedule 4.19(h)(ii)** involved in the creation of anymaterial Technology or Intellectual Property Rights for the Company hasexecuted a proprietary information/nondisclosure agreement substantially in theform(s) provided to Acquiror.

 

(i)                                     Neitherthe Company nor any of its Subsidiaries has transferred ownership of, orgranted any exclusive license of or exclusive right to use, or authorized theretention of any exclusive rights to use or joint ownership of, any materialTechnology or Intellectual Property Right that is or was Company IntellectualProperty, to any third party. **Schedule 4.19(i)**sets forth a complete and accurate list of, and the Company has previouslydelivered to Acquiror true and complete copies of, all material Contractspursuant to which Company or its Subsidiaries has licensed or transferred anymaterial Intellectual Property that is or was Company Intellectual Property toany third party (excluding any Contracts, including but not limited to end useragreements, distribution and reseller agreements, and OEM agreements, that wereentered into in the ordinary course of business) and includes the date thereofand identity of all parties thereto.

 

(j)                                     Theexecution and delivery of this Agreement by the Company, and the consummationof the Transactions, will not cause the Company or any of its Subsidiaries tobe in default under any Contract listed on, or which should be listed on, **Schedule 4.19(e)**or **Schedule 4.19(f)**,nor cause the forfeiture or termination or give rise to a right of forfeitureor termination of any material Technology or Intellectual Property Rights thatare used in connection with the Business or are necessary for the Business asof the Closing, or of any such license, sublicense or other Contract. Anyagreement identified on **Schedule 4.19(e)**and**Schedule 4.19(f)** that requires theexecution and filing with an appropriate governmental agency (including anyaffidavits or renewals) or the consent of a third party have been so indicatedon **Schedule 4.19(e)**or **Schedule 4.19(f)**, as applicable. Neither the Company nor anyof its Subsidiaries is in material default under any of the foregoing licenses,sublicenses or other Contracts and, to the Company’s Knowledge, no other partyto any such license, sublicense or other Contract is in default thereof or hasprovided the Company with written notice of any claim with respect to any ofthe foregoing licenses or Contracts.

 

(k)                                  Exceptfor those Contracts listed on **Schedule 4.19(k)**,following the Closing, each of the Company and its Subsidiaries will bepermitted to exercise all of the rights

 

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of the Company or such Subsidiary under suchlicenses, sublicenses and other Contracts related to Technology andIntellectual Property Rights that are used in connection with the Business orare necessary for the Business as of the Closing to the same extent the Companyor such Subsidiary would have been able to had the Transactions not occurredand without the payment of any additional amounts or consideration other thanongoing fees, royalties or payments which the Company or such Subsidiary wouldotherwise be required to pay and without obtaining the consent or permission ofany party to such licenses, sublicenses and other Contracts except for thirdparty consents set forth on **Schedule 4.19(k)**.

 

(l)                                     Eachof the Company and its Subsidiaries has obtained any and all necessary consentsfrom consumers with regard to their respective collection and dissemination ofpersonal consumer information in accordance with the privacy policy publishedon any website owned and/or operated by or on behalf of the Company or any ofits Subsidiaries. The practices of each of the Company and its Subsidiariesregarding the collection and use of consumer personal information are and havebeen in accordance with such privacy policies.

 

(m)                               Whenexporting or re-exporting products and information directly or indirectly, viaany means, including electronic transfer, each of the Company and itsSubsidiaries has done so in accordance with the US Export AdministrationRegulations and the Laws of host countries, and each of the Company and itsSubsidiaries has obtained any necessary export approvals. Specifically andwithout limitation, neither the Company nor any of its Subsidiaries hasexported products to embargoed or otherwise restricted countries or end users.

 

(n)                                 Neitherthe Company nor any of its Subsidiaries has been sued or charged as a defendantin any Litigation which involves a claim of infringement of any IntellectualProperty Rights of any third party. The operation of the Business up to theClosing does not infringe or misappropriate any Intellectual Property Right ofany third party, violate any right of any third party (including any right toprivacy or publicity), or constitute unfair competition or trade practicesunder the Laws of any US state or federal or any foreign jurisdiction, andneither the Company nor any of its Subsidiaries has received written notice fromany third party claiming that such operation or any act, product, Technology orservice (including Technology or services currently under development) of theCompany or any of its Subsidiaries infringes or misappropriates anyIntellectual Property Right of any third party or constitutes unfaircompetition or trade practices under the Laws of any jurisdiction (nor doeseither the Company or any of its Subsidiaries have Knowledge of any basistherefor). Each of the Company and its Subsidiaries has taken reasonablemeasures to prevent the inclusion of third party proprietary materials in theCompany Covered Products, Technologies, and services unless the Company or suchSubsidiary has secured the necessary license rights for the conduct of theBusiness.

 

(o)                                 Exceptas set forth on **Schedule 4.19(o)**, to the Company’sKnowledge, no Person is infringing or misappropriating any Company IntellectualProperty in a manner that would have a Material Adverse Effect on the Company.

 

(p)                                 TheCompany has not received written notice that any Company Intellectual Property,Company Covered Product or service of the Company or any of its Subsidiaries issubject to any proceeding or outstanding decree, order, judgment or settlementagreement or stipulation directed to the Company specifically that restricts inany manner the

 

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use, transfer or licensing thereof by theCompany or any of its Subsidiaries or may affect the validity, use orenforceability of such Company Intellectual Property.

 

(q)                                 No(i) Company Covered Product, Technology or service of the Company or anyof its Subsidiaries, (ii) material published or distributed by the Companyor any of its Subsidiaries, or (iii) conduct or statement of the Companyor any of its Subsidiaries, constitutes a defamatory statement or material,false advertising or otherwise violates any applicable US state or federal Lawor regulations.

 

(r)                                    Exceptas set forth on **Schedule 4.19(r)**, as of theClosing Date all Company Intellectual Property will be fully transferable,alienable or licensable by the Company or one of its Subsidiaries withoutrestriction (other than as described on **Schedule 4.19(f)**)and without payment of any kind to any third party.

 

(s)                                  **Schedule 4.19(s)** lists all industry standard-settingactivities in which the Company or any of its Subsidiaries and their respectivepersonnel participate (including the Worldwide Web Consortium) and indicates(i) any Company Intellectual Property that is, or is reasonably likely tobecome, part of an industry standard, (ii) the applicable standard-settingorganization’s publicly disclosed policies regarding intellectual property andany Contracts executed by the Company or any of its Subsidiaries or theirrespective personnel in connection with such participation, and (iii) anyCompany Intellectual Property disclosures made by the Company or any of itsSubsidiaries to such standard-setting organization.

 

(t)                                    Exceptas set forth on **Schedule 4.19(t)**, neither theCompany nor any of its Subsidiaries has entered into any agreement, or assumedany obligation or duty, to warrant, indemnify, reimburse, hold harmless,guaranty or otherwise assume or incur any obligation or liability or provide aright of rescission to a third party with respect to the infringement ormisappropriation of any Intellectual Property Rights except for licenses andother Contracts entered into by the Company in the ordinary course of business.

 

(u)                                 **Schedule 4.19(u)** lists each Contract (“Source Code EscrowAgreement”) pursuant to which the Company or any of its Subsidiaries hasdeposited, or is or may be required to deposit, with an escrow holder or anyother party, any Company Source Code. No event has occurred that wouldreasonably be expected to result in the release to a Source Code EscrowAgreement of any Company Source Code.

 

(v)                                 **Schedule 4.19(v)**sets forth a complete and accuratelist (by name, version number, part number and other appropriate productidentifiers) of all Company Covered Products currently sold or distributed bythe Company.

 

(w)                               Exceptas set forth on **Schedule 4.19(w)**, nogovernment funding, nor any facilities of a university, college, othereducational institution or research center, was used in the development of theCompany Intellectual Property.

 

4.20                           Contracts.

 

(a)                                  **Schedule 4.20(a)** separately sets forth a complete andaccurate list of all Contracts that accounted for more than $100,000 in any onecase of revenue in the 2005 calendar

 

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year or are expected, as of the date hereof,to account for more than $100,000 in any one case of revenue in the twelve (12)months following the Closing Date, and each of the Company’s and itsSubsidiaries’ standard forms of customer, end-user, maintenance, support, andprofessional services Contracts are attached to **Schedule 4.20(a)**.

 

(b)                                 Exceptas separately set forth on **Schedule 4.20(b)**(pursuant to the sub-sections below), neither the Company nor any of itsSubsidiaries is a party to any of the following which have material current orfuture obligations that have not been fulfilled:

 

(i)                                     Contractwith any present or former Employee, independent contractor or shareholder,other than offer letters for at-will employment and option grants;

 

(ii)                                  Contractwith any labor union or other representative of Employees;

 

(iii)                               Contractfor the future purchase of, or payment for, supplies or products, or for theperformance of services by a third party, involving in any one case $100,000 ormore ;

 

(iv)                              Contractto sell or supply products or to perform services, involving in any one case$100,000 or more;

 

(v)                                 Contractgranting any exclusive rights to make, use, sell or otherwise exploit itsproducts or otherwise exploit any Company Intellectual Property or creatingexclusive distribution rights;

 

(vi)                              Note,debenture, bond, conditional sale agreement, mortgage equipment trustagreement, letter of credit agreement, loan agreement or other Contract for theborrowing or lending of money (including, loans to or from officers, directors,Affiliates, shareholders or any member of their immediate families), agreementor arrangement for a line of credit or guarantee, pledge or undertaking of theindebtedness of any other Person, in a principal amount in excess of $100,000that is outstanding or may be incurred on the terms thereof other than accountsreceivable and payable in the ordinary course of business;

 

(vii)                           Contractfor any capital expenditure in excess of $100,000 individually or for anyrelated expenditures;

 

(viii)                        Contractpursuant to which the Company or any of its Subsidiaries has agreed to, orassumed or guaranteed any obligation to, indemnify any Person other thanContracts entered into in the ordinary course of business in connection withthe sale of the Company’s products or any of its Subsidiaries’ products.

 

(ix)                                Contractcontaining a “most favored nation” pricing clause granted by the Company or anyof its Subsidiaries;

 

(x)                                   Fidelityor surety bond or completion bond;

 

(xi)                                Leaseof personal property having a value in excess of $100,000;

 

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(xii)                             Contractrelating to the disposition or acquisition of material assets or any materialinterest in any business enterprise outside the ordinary course of the Company’sbusiness consistent with past practices;

 

(xiii)                          Dealer,distribution, joint marketing, joint venture or development agreement,strategic alliance, or any other agreement (noncompete or otherwise) thatreasonably could be expected to have the effect (whether by default, terminationor otherwise) of prohibiting or impairing any material business practice of theCompany or any of its Subsidiaries, any acquisition of property by the Companyor any of its Subsidiaries, the conduct of business by the Company or any ofits Subsidiaries, or the manufacture, sale, licensing or distribution by theCompany or any of its Subsidiaries of any product, service, CompanyIntellectual Property or Intellectual Property Rights in any manner, orotherwise limiting the freedom of the Company or any of its Subsidiaries toengage in any line of business or compete with any Person;

 

(xiv)                         Thirdparty sales representative, original equipment manufacturer, value added,remarketer, reseller, or independent software vendor agreement, or otheragreement for distribution of the Company’s or any of its Subsidiaries’products, technology or services, in any one case involving in excess of$100,000; or

 

(xv)                            Othercontract that involves $100,000 or more individually and is not cancelable bythe Company or any of its Subsidiaries without penalty within thirty (30) days.

 

(c)                                  TheCompany has provided to or made available to Acquiror true, correct andcomplete copies of all Contracts set forth on **Schedules 4.20(a)**and **4.20(b)**.

 

(d)                                 Allof the Contracts set forth on **Schedules 4.20(a)**and**4.20(b)**are valid, binding andenforceable upon the Company or such Subsidiary in accordance with their termsand to the Company’s Knowledge, the other parties thereto, except as suchenforcement may be limited by applicable bankruptcy, insolvency, moratorium orsimilar Laws affecting the rights of creditors generally and general equityprinciples (regardless of whether enforceability is considered in a proceedingat Law or in equity). None of the Company, any of its Subsidiaries, or to theCompany’s Knowledge, any of the other parties thereto, is in breach of ordefault under such Contracts, and no notice of any claim of default has beenreceived by the Company or any of its Subsidiaries. With respect to any of suchContracts that are Leases, neither the Company nor any of its Subsidiaries hasreceived any written notice of cancellation or termination under any option orright reserved to the lessor, or any notice of default, thereunder. Immediatelyfollowing the Closing, the Company will be permitted to exercise all of itsrights under the Contracts without the payment of any additional amounts orconsideration other than ongoing fees, royalties or payments which the Companyand each of its Subsidiaries would otherwise be required to pay pursuant to theterms of such Contracts had the transactions contemplated by this Agreement notoccurred, other than as a result of actions or inactions by Acquiror.

 

4.21                           Permits.**Schedule 4.21**sets forth a completelist of all Permits held by the Company and each of its Subsidiaries. TheCompany and its Subsidiaries possess all Permits that are necessary to conductthe Business as now conducted. Neither the Company nor any of its Subsidiariesis in default, nor has the Company or any of its Subsidiaries received anywritten notice of default, with respect to any such Permits. Except asotherwise governed by Law, all

 

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such Permits are renewable by their terms orin the ordinary course of business without the need to comply with any specialqualification procedures or to pay any amounts other than routine filing orrenewal fees. To the Knowledge of the Company, no present director, officer oremployee of the Company or any of its Subsidiaries or any of their Affiliatesowns or has any proprietary, financial or other interest (direct or indirect)in any Permit which the Company or any of its Subsidiaries possesses.

 

4.22                           Compliancewith Law and Court Orders. Neither the Company nor any of its Subsidiariesis in violation of any Law or court order, and the Assets have not been used oroperated by the Company or any of its Subsidiaries in violation of any Lawexcept as would not have a Material Adverse Effect or court order. All courtorders to which the Company or any of its Subsidiaries is a party or is subjectare listed on **Schedule 4.22**. Each of the Companyand its Subsidiaries has made all filings or notifications required to be madeby it under any Laws applicable to it, the Business or the Assets except aswould not have a Material Adverse Effect.

 

4.23                           Claims.As of the date hereof, there is no action, suit, claim or proceeding of anynature pending or, to the Company’s Knowledge, threatened against the Companyor any of its Subsidiaries, any of its Assets or any of its officers ordirectors, in their respective capacities as such, nor is there any reasonablebasis therefor. There is no proceeding pending or, to the Company’s Knowledge,there is no investigation against the Company nor any proceeding threatenedagainst the Company or any of its Subsidiaries or any of its Assets or againstany of its officers or directors in their respective capacities as such by orbefore any Governmental or Regulatory Authority, nor is there any reasonablebasis therefor. **Schedule 4.23** sets forth, withrespect to any pending, or if known to the Company, threatened, action, suit,proceeding (including any proceeding relating to Company RegisteredIntellectual Property Rights) or if known to the Company, any pending or threatenedinvestigation, the forum, the parties thereto, the subject matter thereof andthe amount of damages claimed or other remedy requested. No Governmental orRegulatory Authority has challenged or questioned in a writing delivered to theCompany or any of its Subsidiaries or otherwise brought to the attention of theCompany or any of its Subsidiaries the legal right of the Company or any of itsSubsidiaries to conduct its operations as presently conducted or as presentlycontemplated to be conducted.

 

4.24                           Insurance.The Company and each of its Subsidiaries maintain fire, liability, workmen’scompensation, property and casualty and other insurance policies that companiesengaged in a similar business and with similar ownership would customarilymaintain. Copies of such policies have been made available to Acquiror, and **Schedule 4.24**briefly describes the coverage, limitsand premiums of each. All such policies are in full force and effect as of thedate hereof, and neither the Company nor any of its Subsidiaries has committedany default thereunder. With respect to the insurance policies and fidelitybonds maintained by the Company and its Subsidiaries covering the assets,business, equipment, properties, operations, employees, officers and directorsof the Company or any of its Subsidiaries, there is no claim by the Company orany of its Subsidiaries pending under any of such policies or bonds as to whichcoverage has been questioned, denied or disputed by the underwriters of suchpolicies or bonds in a writing delivered to the Company or any of itsSubsidiaries or otherwise brought to the attention of the Company or any of itsSubsidiaries or any of their Affiliates. No written notice of cancellation,non-renewal or material premium increase has been received by the Company orany of its Subsidiaries with respect to such policies.

 

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4.25                           EmployeeMatters and Benefit Plans. **Schedule 4.25(a)**contains an accurate and complete list of each Company Employee Plan (includingeach International Employee Plan), and each Employee Agreement. Neither theCompany nor any of its Subsidiaries have any plan or commitment to establishany new Company Employee Plan (including any International Employee Plan), orEmployee Agreement, to modify any Company Employee Plan, International EmployeePlan or Employee Agreement, or to adopt or enter into any Company EmployeePlan, International Employee Plan or Employee Agreement (except in the ordinarycourse of business consistent with past practices, to the extent required byLaw or to conform any such Company Employee Plan, International Employee Planor Employee Agreement to the requirements of any applicable Law, or as requiredby this Agreement).

 

(a)                                  Documents.The Company has provided or otherwise made available to Acquiror correct andcomplete copies of: (i) all documents embodying or relating to each CompanyEmployee Plan and International Employee Plan, and each Employee Agreementincluding all amendments thereto and all related trust documents,administrative service agreements, group annuity contracts, group insurancecontracts, and policies pertaining to fiduciary liability insurance coveringthe fiduciaries, if any, for each Company Employee Plan and InternationalEmployee Plan; (ii) the most recent annual actuarial valuations, if any,prepared for each Company Employee Plan and International Employee Plan; (iii)the three (3) most recent annual reports (Form 5500 series and all schedulesand financial statements attached) and any comparable forms or reports for eachInternational Employee Plan, if any, required under ERISA, the Code, orapplicable Law in connection with each Company Employee Plan, InternationalEmployee Plan or related trust; (iv) if the Company Employee Plan orInternational Employee Plan is funded, the most recent annual and periodicaccounting of such plans’ assets; (v) the most recent summary plan descriptiontogether with the summaries of material modifications thereto, if any, requiredunder ERISA or applicable Law with respect to each Company Employee Plan andInternational Employee Plan; (vi) all Internal Revenue Service (the “IRS”)determination opinion, notification and advisory letters and all applicationsand correspondence to or from the IRS or the Department of Labor (“DOL”) withrespect to any such application or letter; (vii) all materialcorrespondence to or from any Governmental or Regulatory Authority relating toany Company Employee Plan or International Employee Plan during the three (3)years prior to the Closing; (viii) the three (3) most recent plan yearsdiscrimination tests for each applicable Company Employee Plan; and (ix) allregistration statements, annual reports and prospectuses prepared in connectionwith each Company Employee Plan and International Employee Plan.

 

(b)                                 EmployeePlan Compliance. Except as set forth on **Schedule 4.25(c)**,(i) the Company, each of its Subsidiaries and its ERISA Affiliates haveperformed in all material respects all obligations required to be performed byit under the terms of, is not in default or violation of, and has no Knowledgeof any default or violation by any other party to each Company Employee Plan,and each Company Employee Plan has been established and maintained in allmaterial respects in accordance with its terms and in compliance with allapplicable Laws, statutes, orders, rules and regulations, including but notlimited to ERISA or the Code; (ii) each Company Employee Plan intended toqualify under Section 401(a) of the Code and each trust intended toqualify under Section 501(a) of the Code has received a favorabledetermination, opinion, notification or advisory letter from the IRS withrespect to each such plan as to its qualified status under the Code, includingall amendments to the Code effected by

 

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the “GUST” legislation, the Economic Growthand Tax Relief Reconciliation Act of 2001, and subsequent legislation;(iii) no material “prohibited transaction,” within the meaning of Section 4975of the Code or Sections 406 and 407 of ERISA and not otherwise exempt underSection 408 of ERISA, has occurred with respect to any Company EmployeePlan; (iv) there are no actions, suits or claims pending or, to the Knowledgeof the Company, threatened, or anticipated (other than routine claims forbenefits) against any Company Employee Plan or against the assets of anyCompany Employee Plan; (v) there are no audits, inquiries or proceedingspending or, to the Knowledge of the Company, threatened by the IRS or DOL withrespect to any Company Employee Plan; and (vi) neither the Company, any of itsSubsidiaries nor any ERISA Affiliate is subject to any material penalty or taxwith respect to any Company Employee Plan under Section 502(i) of ERISA orSections 4975 through 4980 of the Code. The Company, each of its Subsidiariesand each ERISA Affiliate has timely made all contributions and other paymentsrequired by and due under the terms of each Company Employee Plan in allmaterial respects.

 

(c)                                  PensionPlans. Neither the Company, any of its Subsidiaries nor any ERISA Affiliatenow, nor has ever, maintained, established, sponsored, participated in, orcontributed to, or incurred any liability with respect to any Pension Planwhich is subject to Part 3 of Subtitle B of Title I of ERISA,Title IV of ERISA or the minimum funding standards of Section 412 ofthe Code. Except in respect of any Company Employee Plan or InternationalEmployee Plan set forth in **Schedule 4.25(a)**,neither the Company nor any of its Subsidiaries will have any materialobligation or liability (actual or contingent) after the Closing to any non-USemployee, or for the benefit of any dependents of such persons, to pay orsecure (other than by payment of employers’ contributions under the applicablenational insurance or social security legislation or as otherwise required byapplicable law), any pension or other similar benefit on redundance, layoff,retirement, death or disability or on the attainment of a specified age or oncompletion of a specified number of years in service.

 

(d)                                 Multiemployerand Multiple Employer Plans. At no time has either the Company, any of itsSubsidiaries or any ERISA Affiliate contributed to or been obligated tocontribute to any Multiemployer Plan. Neither the Company, any of itsSubsidiaries nor any ERISA Affiliate has at any time ever maintained,established, sponsored, participated in, or contributed to any “multipleemployer plan” (within the meaning of Section 413 of the Code) or to any “fundedwelfare plan” within the meaning of Section 419 of the Code. No CompanyEmployee Plan or International Employee Plan provides health benefits that arenot fully insured through an insurance contract.

 

(e)                                  NoPost Employment Obligations. Except as set forth in **Schedule 4.25(e)**,no Company Employee Plan or International Employee Plan provides, or reflectsor represents any liability to provide, life insurance, medical or otheremployee benefits to any Employee upon his or her retirement or termination ofemployment for any reason, except as may be required by applicable Law, andneither the Company, or any of its Subsidiaries has ever represented, promisedor contracted (whether in oral or written form) to any Employee (eitherindividually or to Employees as a group) that such Employee(s) would beprovided with life insurance, medical or other employee welfare benefits upontheir retirement or termination of employment, except to the extent required byapplicable Law.

 

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(f)                                    PastAcquisitions. Neither the Company nor any of its Subsidiaries is currentlyobligated to provide an Employee with any compensation or benefits pursuant toan agreement (e.g., an acquisition agreement) with a former employer of suchEmployee.

 

(g)                                 Effectof Transaction.

 

(i)                                     Exceptas set forth in **Schedule 4.25(g)(i)**, theexecution of this Agreement and the consummation of the transactionscontemplated hereby will not (either alone or upon the occurrence of anyadditional or subsequent events which, standing alone, would not constituteevents) constitute an event under any Company Employee Plan, InternationalEmployee Plan, Employee Agreement, trust or loan that will or may result in anypayment (whether of severance pay or otherwise), acceleration, forgiveness ofindebtedness, vesting, distribution, increase in benefits or obligation to fundbenefits with respect to any Employee.

 

(ii)                                  Exceptas set forth in **Schedule 4.25(g)(ii)**,****no payment or benefit which will or may be made by theCompany, or any of its Subsidiaries or its Affiliates with respect to anyEmployee or any “disqualified individual” (as defined in Code Section 280Gand the regulations thereunder) will be characterized as a “parachute payment”,within the meaning of Section 280G(b)(2) of the Code.

 

(h)                                 EmploymentMatters. The Company and each of its Subsidiaries (i) are in materialcompliance with all applicable foreign, federal, state and local laws, rulesand regulations, collective and work force agreements respecting employment,employment practices, terms and conditions of employment and wages and hours,in each case, with respect to Employees; (ii) have, in all material respects,withheld and reported all amounts required by law to be withheld and reportedwith respect to wages, salaries and other payments to Employees; (iii) are notliable for any arrears of wages or any taxes or any penalty for failure tocomply with any of the foregoing; and (iv) are not liable for any materialpayment to any trust or other fund or to any governmental or administrativeauthority, with respect to unemployment compensation benefits, social securityor other benefits or obligations for Employees (other than routine payments tobe made in the normal course of business and consistent with past practice). Thereare no pending, or, to the Knowledge of the Company, threatened or reasonablyanticipated claims or actions against the Company or any of its Subsidiariesunder any worker’s compensation policy or long term disability policy. Neitherthe Company, any of its Subsidiaries nor any Affiliate has direct or indirectliability with respect to any misclassification of any person as an independentcontractor rather than as an employee, or with respect to any employee leasedfrom another employer.

 

(i)                                     Labor.No work stoppage or labor strike or employment relations dispute against theCompany or any of its Subsidiaries is pending, or to the Knowledge of theCompany, threatened or reasonably anticipated. The Company does not know of anyactivities or proceedings of any labor union or other employee representativebody to organize any Employees or to obtain recognition in respect of anyEmployees. There are no actions, suits, claims, labor disputes or grievancespending, or to the Knowledge of the Company, threatened or reasonablyanticipated relating to any labor, safety or discrimination matters involvingany Employee, including, without limitation, charges of unfair labor practicesor discrimination complaints, which, if adversely determined, would, individuallyor in the aggregate, result in

 

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material liability to the Company or any ofits Subsidiaries. Neither the Company nor or any of its Subsidiaries hasengaged in any unfair labor practices within the meaning of the National LaborRelations Act. The Company and each of its Subsidiaries is not presently, norhas it been in the past, a party to, or bound by, any collective bargaining orworkforce agreement or union contract with respect to Employees and no collectivebargaining or workforce agreement or union contract is being negotiated by theCompany or its Subsidiaries. Neither the Company nor any of its Subsidiarieshas incurred any liability or obligation under the Worker Adjustment andRetraining Notification Act or any similar state or local law which remainsunsatisfied.

 

(j)                                     InternationalEmployee Plan. Each International Employee Plan has been established,maintained and administered in material compliance with its terms andconditions and with the requirements prescribed by any and all statutory orregulatory laws that are applicable to such International Employee Plan. Furthermore,no International Employee Plan has any material unfunded liabilities requiredto be accrued in the Company Financial Statement, that as of the Closing Date,will not be offset by insurance or fully accrued. Except as required by law, nocondition exists that would prevent the Company or Acquiror from terminating oramending any International Employee Plan at any time for any reason withoutliability to the Company or its Affiliates (other than ordinary administrationexpenses or routine claims for benefits). There are no actions, suits,investigations, or claims (other than routine claims for benefits) pending or,to the Knowledge of the Company, threatened with respect to any InternationalEmployee Plan that could result in any material Liability for the Company orany Subsidiary or, from and after the Closing Date, any material Liability forAcquiror.

 

(k)                                  Section 409A.Each “nonqualified deferred compensation plan” (as defined in Section409A(d)(1) of the Code) has been operated since January 1, 2005 in good faithcompliance with Section 409A of the Code, IRS Notice 2005-l, and all proposedregulations under Section 409A of the Code. No additional Tax underSection 409A(a)(1)(B) of the Code has been or is reasonably expected to beincurred by a participant in any such “non-qualified deferred compensationplan.”  The Company is not a party to, orotherwise obligated under, any contract, agreement, plan or arrangement thatprovides for the gross-up of Taxes imposed by Section 409A(a)(1)(B) of theCode.

 

4.26                           Customers.**Schedule 4.26** lists all customers,distributors and agents who have made payments to the Company and its Subsidiariesin excess of $100,000 during any calendar year from and after January 1, 2003until the date of this Agreement, relating to the products manufactured andservices performed by or for the Company or any of its Subsidiaries. No suchcustomer, distributor or agent of the Company or any of its Subsidiaries hasnotified the Company of its intention to terminate its ongoing relationshipwith the Company or its Subsidiaries and neither the Company nor any of itsSubsidiaries is aware of any fact that exists which would cause or would bereasonably likely to cause, such customer, distributor or agent to terminateits ongoing relationship with the Company or its Subsidiaries other than theexecution, announcement or pendency of the Transactions or the TransactionAgreement.

 

4.27                           TransactionExpenses. **Schedule** **4.27**provides an accurate and complete detailed list of all Company TransactionExpenses incurred by or on behalf of the Company and each of its Subsidiarieson or prior to the date of this Agreement, and all Company Transaction Expenses

 

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that will become payable with respect toservices performed for the Company and each of its Subsidiaries on or prior tothe Closing Date.

 

4.28                           RepresentationsComplete. None of the representations or warranties made by the Company inthis Agreement, and none of the statements made in any exhibit, schedule orcertificate furnished by the Company pursuant to this Agreement contains, orwill contain at the Closing Date, any untrue statement of a material fact, oromits or will omit at the Closing Date to state any material fact necessary inorder to make the statements contained herein or therein, in the light of thecircumstances under which made, not misleading.

 

4.29                           Transactionswith Affiliates. Except as disclosed on **Schedule 4.29**,

 

(a)                                  noAffiliate of the Company or any of its Subsidiaries has:  (i) borrowed money or loaned money to theCompany or any of its Subsidiaries which remains outstanding; or (ii) anymaterial contractual arrangements with the Company or any of its Subsidiaries(other than contractual arrangements with directors or executive offices whichare disclosed in **Schedule 4.25(a)**; and

 

(b)                                 thereare not outstanding any:

 

(i)                                     loans,quasi loans or credit transactions made by the Company or any of itsSubsidiaries to, for, or in respect of any director of the Company or any ofits Subsidiaries or any person connected with any of such persons or securitygiven by the Company or any of its Subsidiaries for or in connection with anyloans, quasi loans or credit transactions or other transaction of or concerningany such persons; or

 

(ii)                                  debtsowing to the Company or any of its Subsidiaries by any director, formerdirector or shadow director of the Company or any of its Subsidiaries or anyperson connected with any such person.

 

For purposes ofSection 4.29(b), the term “connected with” in the context of personsconnected with a director of the Company or any of its Subsidiaries, a formerdirector or a shadow director of the Company or any of its Subsidiaries shallhave the meaning given to that phrase by Section 26 of the 1990 Act.

 

4.30                           EnvironmentalMatters.

 

(a)                                  Exceptas would not reasonably be expected to result in a Material Adverse Effect, (a)neither the Company nor any of its Subsidiaries has Released HazardousMaterials at or on any property during the period it was owned or leased by theCompany or any of its Subsidiaries, (b) there are no pending or threatenedEnvironmental Claims against the Company or any of its Subsidiaries, (c)neither the Company nor any of its Subsidiaries has received a written requestfrom a Governmental or Regulatory Authority under any of the Environmental Lawsfor information relating to any of the property now or at any time owned,operated, leased or otherwise used by the Company or any of its Subsidiaries,(d) there are no unsatisfied financial assurance or closure requirements of theCompany or any of its Subsidiaries under the Environmental Laws pertaining toany property on account of the use or ownership of such property by the Companyor any of its Subsidiaries, (e) neither the Company nor any of its

 

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Subsidiaries has notified any Governmental orRegulatory Authority of any actual, threatened or suspected Releases ofHazardous Materials or any violation of any environmental approval, permit,license, clearance or consent (“Environmental Permit”), term or otherrequirement of Environmental Laws, and (f) the Company has provided Acquirorwith copies of all environmental site assessment reports relating to anyproperties now or previously owned, operated, leased or otherwise used by theCompany or any of its Subsidiaries that are in the possession of the Company orany of its Subsidiaries, the shareholders of the Company or their respectiverepresentatives.

 

(b)                                 Asused in this Agreement:

 

(i)                                     “EnvironmentalClaims” means any and all administrative or judicial actions, suits, orders,claims, liens, violations or proceedings arising under any applicableEnvironmental Law or any Environmental Permit brought, issued or asserted by aGovernmental or Regulatory Authority or any other third party for damages,fines, penalties, removal, response, or remedial actions pursuant to anyapplicable Environmental Law or for personal injury (including employees of theCompany or any of its Subsidiaries seeking damages for exposure to HazardousMaterials) or property damage resulting from the Release of a HazardousMaterial at, to, on, or from any facility or property of the Company or any ofits Subsidiaries or any facility or property at which the Company or any of itsSubsidiaries disposed or arranged for the disposal or treatment (with atransporter or otherwise) of Hazardous Materials;

 

(ii)                                  “EnvironmentalLaws” means any and all applicable Laws (including federal, state, provincial,foreign and local Laws), statutes, ordinances, codes, rules and regulationsrelated to pollution and protection of the environment, natural resources,safety or health of employees with respect to the exposure to HazardousMaterials or the handling, use, recycle, manufacture, generation, treatment,storage, transportation or disposal of Hazardous Materials, and any common lawcause of action relating to the environment, natural resources, safety orhealth of employees with respect to exposures to Hazardous Materials, or themanagement of or exposure to Hazardous Materials;

 

(iii)                               “EnvironmentalPermit” means all permits, licenses, approvals, authorizations or consentsrequired by any Governmental or Regulatory Authority under any applicableEnvironmental Law and includes any and all orders, consent orders or bindingagreements issued or entered into between the Company or any of itsSubsidiaries and a Governmental or Regulatory Authority under any applicableEnvironmental Law;

 

(iv)                              “HazardousMaterial” means any pollutant, contaminant, chemical, substance, material orwaste which is regulated by any Governmental or Regulatory Authority pursuantto Environmental Law, including (A) friable asbestos, (B) polychlorinatedbiphenyls, (C) radioactive materials, and (D) petroleum or petroleumby-products; and

 

(v)                                 “Release”means the active spilling, leaking, pumping, pouring, emitting, emptying,discharging, injecting, dumping or disposing of any Hazardous Material.

 

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4.31                           Compliancewith the Foreign Corrupt Practices Act and Export Control and Anti-Boycott Laws.

 

(a)                                  Neitherthe Company nor any of its US Subsidiaries have unlawfully obtained or retainedbusiness, directly or, to its Knowledge, indirectly offered, paid or promisedto pay, or authorized the payment of, any money or other thing of value or anycommission payment to: (i) any person who is an official, officer, agent,employee or representative of any Governmental or Regulatory Authority;(ii) any political party or official thereof; (iii) any candidate forpolitical or political party office; or (iv) any other individual orentity; while knowing or having reason to believe that all or any portion ofsuch money or thing of value would be offered, given, or promised, directly orindirectly, to any such official, officer, agent, employee, representative,political party, political party official, candidate, individual, or any entityaffiliated with such customer, political party or official or political office.

 

(b)                                 TheCompany and each of its US Subsidiaries have at all times been in compliancewith all legal requirements relating to export control and trade embargoes. Noproduct sold or service provided by the Company and any of its Subsidiariesduring the last five years has been, directly or, to the Knowledge of theCompany, indirectly, sold to or performed on behalf of Cuba, Iraq, Iran, Libyaor North Korea.

 

(c)                                  Tothe Knowledge of the Company, neither the Company nor any of its Subsidiarieshave violated the anti-boycott prohibitions contained in 50 U.S.C. 2401 et seq.or taken any action that can be penalized under Section 999 of the Code. SinceSeptember 18, 2002, neither the Company nor any of its Subsidiaries havebeen a party to, is a beneficiary under or performed any service or sold anyproduct to customers in Bahrain, Iraq, Jordan, Libya, Sudan, Syria or theRepublic of Yemen.

 

4.32                           PRCSubsidiary and the PRC Business.

 

(a)                                  Organization.(Beijing) Software Co., Ltd. (the “**PRC Subsidiary**”)is a wholly foreign-owned enterprise established on January 3, 2003 andhas its legal address at Level 5, Tower W1, The Towers, Oriental Plaza, 1 East,Chang An Ave, Dong Cheng District, Beijing 100738, China. The legalrepresentative of the PRC Subsidiary is Matthew Dean.

 

(b)                                 Qualifications.

 

(i)                                     Thearticles of association of the PRC Subsidiary and any amendments thereto havebeen duly approved by the competent PRC Governmental or Regulatory Authorities.

 

(ii)                                  Allconsents, approvals, authorizations or licenses required under applicable PRClaws for the due and proper establishment and operation of the PRC Subsidiaryhave been duly obtained from the relevant PRC Governmental or RegulatoryAuthorities and are in full force and effect.

 

(iii)                               Allfilings and registrations with the PRC Governmental or Regulatory Authoritiesrequired in respect of the PRC Subsidiary and its operations, including but notlimited to, the approval from the Ministry of Commerce, the registration withthe State

 

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Administration for Industry and Commerce, theState Administration of Foreign Exchange, the relevant tax bureaus and customsauthorities have been duly obtained and completed in accordance with therelevant rules and regulations.

 

(iv)                              ThePRC Subsidiary is not in receipt of any letter or notice from any relevant PRCGovernmental or Regulatory Authority notifying revocation of any permits orlicenses issued to it for noncompliance or the need for compliance or remedialactions in respect of the activities carried out directly or indirectly by it.

 

(v)                                 Inrespect of approvals, licenses or permits requisite for the conduct of any partof the business of the PRC Subsidiary which are subject to periodic renewal,neither the Company nor the PRC Subsidiary has any valid reason to believe thatsuch requisite renewals will not be timely granted by the relevant PRCGovernmental or Regulatory Authorities.

 

(c)                                  ShareholdingStructure. The registered capital of the PRC Subsidiary is fully paid up. TheCompany legally and beneficially owns 100% of the equity interest in the PRCSubsidiary. There are no outstanding rights, or commitments made by the Companyto sell any of its equity interest in the PRC Subsidiary.

 

(d)                                 BusinessScope. The PRC Subsidiary has been conducting and will conduct its businessactivities within the permitted scope of business as set forth on its BusinessLicense and its foreign invested enterprise approval certificate, as currentlyin effect, copies of which have been provided to the Acquiror, and is otherwiseoperating its business in full compliance with all relevant legal requirementsand with all requisite licenses, permits and approvals granted by competent PRCGovernmental or Regulatory Authorities.

 

(e)                                  Subsidiariesor Branch Office. Except as set forth on the Disclosure Schedule, the PRCSubsidiary does not have any, direct or indirect, record or beneficial,subsidiaries, branches or representative offices.

 

(f)                                    Employmentand Social Insurance. The PRC Subsidiary has made timely and proper contributionsto those pension, medical, unemployment, housing and other social insurancefunds that are mandatory under applicable PRC law in connection with thecompany’s employment of each employee. Other than required by applicable laborlaws of the PRC, the PRC Subsidiary does not provide and is not required toprovide any retirement, social insurance, life insurance, medical, dental orother welfare benefits provided on ill-health, injury, death, disability or ontermination of employment to any current or former employees of the PRCSubsidiary. The Disclosure Schedule lists all currently effective laborcontracts, deferred compensation arrangement, bonus plan, vacation,hospitalization, medical or other plan, policy, trust or arrangement or anyother employment compensation agreement. The PRC Subsidiary has complied withall applicable laws with regard to employment, staff or labor management andrelating to any benefit plans to which the PRC Subsidiary has adopted or issubject to, including without limitation, Laws pertaining to welfare funds,social benefits, medical benefits, insurance, retirement benefits and pensions.The PRC Subsidiary does not have any liability whatsoever to make payment to orfor the benefit of any current or former employee of the PRC Subsidiary withrespect to statutory social insurance plans operated under the laws of the PRC.All

 

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contributions and payments required to bemade by any employees of the PRC Subsidiary have been fully deducted and paidto the relevant PRC Governmental or Regulatory Authority, and no suchdeductions have been challenged or disallowed by any PRC Governmental orRegulatory Authority or any employee of the PRC Subsidiary.

 

(g)                                 Tax.The Disclosure Schedule (A) lists all the annual income Tax Returns filed withrespect to the PRC Subsidiary for taxable periods ended on or afterDecember 31, 2003, (B) indicates those Tax Returns that have beenaudited, (C) indicates those Tax Returns that are currently the subject of anaudit, and (D) identifies all enterprise income tax rates and business taxrates applicable to the PRC Subsidiary. Following the Closing, the PRCSubsidiary shall be entitled to the same tax advantaged status in the PRC withrespect to “tax holidays” or special tax rates applicable to the PRC Subsidiaryprior to the Closing.

 

(h)                                 Others.

 

(i)                                     TheCompany and the PRC Subsidiary is in compliance with all PRC governmentalregulations regarding the use, manufacture, advertising, sale, import andexport of Company Intellectual Property used in the conduct of the business.

 

(ii)                                  Tothe Company’s Knowledge there has been no unauthorized use by, disclose to orby infringement, misappropriation or other violation of any of the CompanyIntellectual Property used in the conduct of business of the PRC Subsidiary byany third party and/or any current or former officer, employee, consultant oragent of the PRC Subsidiary, including, without limitation, shrinkwrap andoff-the-shelf enterprise software applications.

 

4.33                           Broker’sor Finder’s Fee. Except as set forth on **Schedule 4.33**,no agent, broker, Person or firm acting on behalf of Acquiror or Buyer or anySubsidiary, is, or will be, entitled to any commission or broker’s or finder’sfees from any of the parties hereto, in connection with this Agreement or anyof the Transactions.

 

4.34                           IntelContingent Obligation. The Intel Contingent Obligation is equal to$9,816,487.

 

4.35                           Certificate;Spreadsheet. The information contained in the CFO Certificate and theSpreadsheet is complete and correct.

 

**ARTICLE 5**

 

**REPRESENTATIONSAND WARRANTIES OF THE BUYER PARTIES**

 

As of the datehereof and as of the Closing Date (except where the representation or warrantyis expressly made as of another date, in which case such representation orwarranty is made only as of such other date), the Buyer Parties herebyrepresent and warrant to the Company, subject to such exceptions as arespecifically disclosed in writing in the disclosure letter, dated, as of thedate hereof, and certified by a duly authorized officer of the Acquiror (the “AcquirorDisclosure Schedules”), which exceptions shall specifically identify theSection, subsection, paragraph and clause hereof to which such exceptionrelates and other Sections,

 

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subsections, paragraphs and clauses hereof to the extent it isreasonably apparent that such exceptions are applicable to such representationsand warranties, as follows:

 

5.1                                 Organizationand Standing. Acquiror is a corporation duly incorporated, validly existingand in good standing under the Laws of the State of Delaware, having full powerand authority to perform its obligations under this Agreement. Buyer is acorporation duly incorporated, validly existing and in good standing under theLaws of Delaware, having full power and authority to perform its obligationsunder this Agreement. Each of Acquiror and Buyer is duly qualified orlicensed to do business and is in good standing in each jurisdiction (domestic orforeign) in which the nature of its business or the ownership or leasing of itsproperties makes such qualification or licensing necessary, other than in suchjurisdictions where the failure to be so qualified or licensed (individually orin the aggregate) would have material adverse effect on the business, assets,financial condition, operations, results of operations or capitalization ofAcquiror (an “Acquiror Material Adverse Effect”); provided, however, that in noevent shall either of the following, alone or in combination with the other, bedeemed to constitute, nor shall either of the following be taken into accountin determining whether there has been an Acquiror Material Adverse Effect:(i) any change or changes in the price per share of Acquiror Common Stockor a change in the trading volume of Acquiror Common Stock; (ii) anyoccurrence or occurrences relating to the industry in which Acquiror operates,other than that which affects Acquiror disproportionately; or(iii) failing to meet or otherwise satisfy analyst or other third partyexpectations relating to the results of Acquiror’s operations provided thatclauses (i) and (iii) shall not exclude any underlying effect which may havecaused such change in stock price, trading volume or the failure to meet suchexpectations. Acquiror has made available to the Company complete and correctcopies of its certificate of incorporation and bylaws and the articles ofincorporation and bylaws of Buyer.

 

5.2                                 CapitalStructure.

 

(a)                                  Asof December 31, 2005, the authorized capital stock of Acquiror consists of200,000,000 shares of Acquiror Common Stock and 5,000,000 shares of preferredstock of Acquiror, par value $0.001 per share (the “Acquiror Preferred Stock”).As of December 31, 2005, there were: (A) 48,837,000 shares of Acquiror Common Stock outstanding;(B) 51,612,000 shares of Acquiror Common Stock issued; (C) 3,641,136shares of Acquiror Common Stock reserved for issuance pursuant to Acquiror’sstock option plans (such plans, the “Acquiror Stock Plans”); (D) 5,684,286shares of Acquiror Common Stock issuable upon exercise of awarded butunexercised stock options (excluding 732,626 shares of Acquiror Common Stockissuable upon exercise of awarded but unexercised stock options assumed byAcquiror in acquisitions); and (E) no shares of Acquiror Preferred Stockoutstanding. Since December 31, 2005, there have been no changes in theissued capital stock of Acquiror except for: (i) issuance of shares of Acquiror Common Stock in accordance withthe terms of Acquiror Stock Plans; and (ii) repurchases by Acquiror ofshares of Acquiror Common Stock in accordance with Acquiror’s publiclyannounced repurchase programs.

 

(b)                                 AllAcquiror Common Stock which may be issued as Stock Consideration, EscrowedConsideration or upon the exercise of Unvested Options after the Closing Datewill be when issued, duly authorized, validly issued, fully paid andnonassessable and not subject to preemptive rights. All securities issued byAcquiror as Stock Consideration or Escrowed

 

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Consideration shall be either registeredunder the Securities Act or issued under the exemption from registration setforth in Section 3(a)(10) of the Securities Act. Acquiror has taken allcorporate action necessary to reserve for issuance a sufficient number ofshares of Acquiror Common Stock for delivery upon exercise of Unvested CompanyOptions.

 

5.3                                 Authority,Binding Effect and Noncontravention.

 

(a)                                  EachBuyer Party has the requisite corporate power and authority to execute, deliverand perform this Agreement and the other Transaction Documents to which it is aparty and has taken all actions necessary to secure all corporate approvalsrequired in connection therewith. The execution, delivery and performance ofthis Agreement and the consummation of the Transactions by each Buyer Party hasbeen duly authorized by all necessary corporation action. This Agreementconstitutes, and the other Transaction Documents to which each Buyer Party is aparty will constitute, legal, valid and binding obligations of such BuyerParty, as the case may be, enforceable against each of them in accordance withtheir respective terms, except as such enforcement may be limited by applicablebankruptcy, insolvency, moratorium or similar Laws affecting the rights ofcreditors generally and general equity principles (regardless of whetherenforceability is considered in a proceeding at Law or in equity).

 

(b)                                 The execution and delivery of thisAgreement does not, and the consummation by Buyer Parties of the transactioncontemplated by this Agreement and compliance by Buyer Parties with theprovisions of this Agreement will not, conflict with, or result in any breachor violation of, or default (with or without notice or lapse of time, or both)under, or give rise to a right of termination, cancellation or acceleration of,or a “put” right with respect to any obligation under, or to a loss of amaterial benefit under, or result in the creation of any Lien upon any of theproperties or assets of Buyer Parties under, (A) the certificate ofincorporation (or similar organization document) or bylaws of Acquiror orAcquisition Company, (B) any loan or credit agreement, note, bond, mortgage,indenture, lease or other agreement, instrument, permit, concession, franchiseor license applicable to Buyer Parties or any of their respective properties orassets or (C) subject to the governmental filings and other matters referred toin the following sentence, any judgment or order applicable to Buyer Parties ortheir respective properties or assets, other than, in the case of clauses (B)and (C), any such conflict, breaches, violations, defaults, rights, losses orliens that individually or in the aggregate could not reasonably be expected tohave an Acquiror Material Adverse Effect or prevent or materially delay theability of Buyer Parties to consummate the transactions contemplated by thisAgreement or perform their respective obligations hereunder.

 

5.4                                 ExchangeAct Reports; Financial Statements. A true and complete copy of each annual,quarterly and other report, registration statement, and definitive proxystatement filed by Acquiror with the Securities and Exchange Commission (the “SEC”)since December 31, 2004 (the “Acquiror SEC Documents”) is available on the Website maintained by the SEC at http://www.sec.gov, other than portions inrespect of which confidential treatment was granted by the SEC. As of theirrespective filing dates, the Acquiror SEC Documents complied or will comply inall material respects with the requirements of the Securities Act and theExchange Act, as the case may be, and the rules and regulations of the SECpromulgated thereunder applicable to such Acquiror SEC Documents, and none ofthe Acquiror SEC Documents contained or will

 

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contain on their filing dates any untruestatement of a material fact or omitted or will omit to state a material factrequired to be stated therein or necessary to make the statements therein, inlight of the circumstances under which they were made, not misleading, exceptto the extent corrected by a subsequently filed Acquiror SEC Document filedprior to the date hereof. The financial statements of Acquiror included in theAcquiror SEC Documents (the “Acquiror Financial Statements”) complied or willcomply as to form in all material respects with the published rules andregulations of the SEC with respect thereto, were or will be prepared inaccordance with GAAP applied on a consistent basis throughout the periodsindicated (except as may be indicated in the notes thereto, except in the caseof pro forma statements, or, in the case of unaudited financial statements,except as permitted under Form 10-Q under the Exchange Act) and fairlypresented or will fairly present the consolidated financial position ofAcquiror and its consolidated subsidiaries as of the respective dates thereofand the consolidated results of Acquiror’s operations and cash flows for theperiods indicated (subject to, in the case of unaudited statements, normal andrecurring year-end audit adjustments).

 

5.5                                 Absenceof Certain Changes or Events. Since January 1, 2006, there is not and hasnot been:  (i) any event that hascaused a Material Adverse Effect with respect to Acquiror; or (ii) anycondition, event or occurrence which, individually or in the aggregate, couldreasonably be expected to prevent or materially delay the ability of BuyerParties to consummate the transactions contemplated by this Agreement or performtheir obligations hereunder.

 

5.6                                 Litigation.There is no action, suit, arbitration, mediation, proceeding or claim pending,or to Acquiror’s knowledge, threatened against Acquiror or any of itssubsidiaries (or any of their respective officers, or directors in theircapacities as such) before any agency, court, Governmental or RegulatoryAuthority, arbitrator or mediator that would reasonably be expected toadversely affect the ability of Buyer Parties to consummate the Transactionscontemplated by this Agreement. There is no judgment, decree or orderoutstanding against Acquiror or any of its subsidiaries that would reasonablybe expected to adversely affect the ability of Buyer Parties to consummate theTransactions contemplated by this Agreement.

 

5.7                                 ComplianceWith Laws. The businesses of Acquiror and the Acquiror subsidiaries are notbeing conducted in violation of any applicable Law except for possibleviolations which, individually or in the aggregate, do not have a MaterialAdverse Effect with respect to Acquiror.

 

5.8                                 Brokers.No broker, investment banker, financial advisor or other person, other than asdisclosed on Acquiror Disclosure Schedules, the fees and expenses of which willbe paid by Acquiror, is entitled to any broker’s, finder’s, financial advisor’sor other similar fee or commission in connection with the transactionscontemplated by this Agreement based upon arrangements made by or on behalf ofBuyer Parties.

 

5.9                                 InterimOperations of Acquisition Company. Buyer was formed on April 25, 2006solely for the purpose of engaging in the Transactions contemplated hereby, hasengaged in no other business activities and has conducted its operations onlyas contemplated hereby.

 

5.10                           OfferMaterials. The Offer Materials (and any amendment thereof or supplementthereto) will comply as to form in all material respects with applicable IrishLaws. The Offer

 

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Materials, on the date first published, sentor given to the Shareholders and the holders of Vested Options and CompanyWarrants, will not contain any untrue statement of a material fact or omit tostate any material fact required to be stated therein or necessary in order tomake the statements therein, in light of the circumstances under which theywere made, not misleading; provided, however, that no representation orwarranty is made by Acquiror with respect to information supplied by theCompany in writing for inclusion or incorporation by reference in the OfferMaterials.

 

5.11                           Availabilityof Funds. Acquiror has as of the date of this Agreement, and will have uponthe expiration date of the Offer (as the same may be extended from time to timepursuant to this Agreement) and at the Closing Date, and will make available tothe Shareholders at the expiration date of the Offer and at the Closing Date,through cash on hand, the funds necessary to consummate the Offer and theCompulsory Acquisition.

 

5.12                           RequiredVote. This Agreement has been approved by Acquiror, as the sole shareholderof Buyer. No other vote of holders of any class or series of securities ofAcquiror or Buyer is necessary to approve this Agreement, or the transactionscontemplated hereby.

 

5.13                           NoKnowledge Breach. As of the date hereof, Acquiror is not aware of anyfacts, events or circumstances that would cause any of the representations orwarranties of the Company set forth in Article 4 hereof to be untrue orincorrect in any material respect.

 

**ARTICLE 6**PRE-CLOSING COVENANTS

 

6.1                                 Access;Confidentiality.

 

(a)                                  Fromthe date of this Agreement to the Closing Date, the Company shall give Acquirorand its counsel, accountants and other representatives reasonable access duringnormal business hours to the premises of the Business, personnel, counsel,accountants and other representatives of each of the Company and itsSubsidiaries and furnish to Acquiror and such representatives all suchadditional documents and information with respect to the Business as Acquirormay from time to time reasonably request, provided that the Company shall berequired to provide such access or information only to the extent (a) that itdoes not unreasonably interfere with its operation of the Business or (b)advisable or consistent with the HSR Act and Other Antitrust Laws. Noinvestigation by Acquiror or its representatives shall affect or limit thescope of the representations and warranties of the Company and the Shareholdersin the Transaction Documents, as applicable, or limit the liability of theCompany or the Shareholders for any breach of such representations andwarranties.

 

(b)                                 Theparties acknowledges that the information provided to it in connection withthis Agreement and the transactions contemplated hereby is subject to the termsof the NDA, the terms of which are incorporated herein by reference.

 

6.2                                 Operationof the Business. Except as otherwise expressly permitted or required bythis Agreement or with the prior written consent of Acquiror (which consentshall not be unreasonably withheld or delayed) between the date of thisAgreement and the Closing Date, the

 

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Company will, and will cause each of itsSubsidiaries to use commercially reasonable efforts consistent with pastpractice and policies to carry on the Company’s business in the ordinary courseof business, to pay its debts and Taxes when due, to pay or perform otherobligations when due, and, to the extent consistent with such business, topreserve intact its present business organization, keep available the servicesof its present officers and Key Employees and preserve its relationships withmaterial customers, suppliers, distributors, licensors, licensees and othershaving material business dealings with it, all with the goal of preservingunimpaired its goodwill and ongoing businesses at the Closing Date. The Companyshall promptly notify Acquiror of any Material Adverse Effect on the Company.

 

6.3                                 NegativeCovenant. Except as otherwise expressly permitted by this Agreement,between the date hereof and the Closing Date, the Company will not, without theprior written consent of Acquiror which consent shall not be unreasonablywithheld or delayed, take any affirmative action (i) as a result of whichany of the changes or events listed in Section 4.13 (other than subparagraphs(f), (h), (q) and (s)(iii) thereof) is likely to occur, or (ii) expresslyprohibited by Section 6.06 of Schedule 6 of the Offer Letter. Notwithstandingthe foregoing, the Company may take any action expressly permitted bySection 6.06 of Schedule 6 to the Offer Letter.

 

6.4                                 NoSolicitation. From and after the date of this Agreement until the earlierto occur of the Closing or termination of this Agreement pursuant to its terms,the Company and each of its Subsidiaries will not, and the Company will notpermit, authorize or direct any of its directors, officers, employees,representatives, investment bankers, agents or affiliates to, directly orindirectly, (a) solicit, encourage, facilitate or induce submission of anyAcquisition Proposal by any person, entity or group (other than Acquiror andits affiliates, agents, and representatives) or (b) participate in anydiscussions or negotiations with, or disclose any information concerning theCompany or any of its Subsidiaries to, or afford access to the properties, books,or records of the Company or any of its Subsidiaries, or otherwise assist orfacilitate, or enter into any agreement or understanding with, any person,entity or group (other than Acquiror and its affiliates, agents, andrepresentatives) in connection with, or that would reasonably be expected tofacilitate, any Acquisition Proposal with respect to the Company or any of itsSubsidiaries. The Company and each of its Subsidiaries will immediately cease,and cause its directors, officers, employees, representatives, investmentbankers, agents and affiliates to cease, any and all existing activities,discussions or negotiations with any parties conducted heretofore with respectto any Acquisition Proposal. The Company and each of its Subsidiaries willwithin one Business Day of receipt (a) notify Acquirer if, on or after the dateof this Agreement, it receives any proposal or inquiry or request forinformation in connection with an Acquisition Proposal or a proposal that wouldbe reasonably expected to lead to an Acquisition Proposal and (b) unlessprohibited by the terms of any confidentiality agreements entered into prior toMarch 24, 2006, notify Acquiror of the significant terms and conditions ofany such Acquisition Proposal including the identity of the party making anAcquisition Proposal. In addition, from and after the date of this Agreement,until the earlier to occur of the Closing or termination of this Agreementpursuant to its terms, the Company will not, and the Company will not permit,authorize or direct any of its directors, officers, employees, representatives,investment bankers, agents and affiliates to, directly or indirectly, make orauthorize any public statement, recommendation or solicitation in support ofany Acquisition Proposal made by any person, entity or group (other thanAcquiror). The parties hereto agree that irreparable damage

 

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would occur in the event that the provisionsof this Section 6.4 were not performed in accordance with their specificterms or were otherwise breached. It is accordingly agreed by the partieshereto that Acquiror shall be entitled to an immediate injunction orinjunctions, without the necessity of proving the inadequacy of money damagesas a remedy and without the necessity of posting any bond or other security, toprevent breaches of the provisions of this Section 6.4 and to enforcespecifically the terms and provisions hereof in any court of the United Statesor any state having jurisdiction, this being in addition to any other remedy towhich Acquiror may be entitled at law or in equity. Without limiting theforegoing, it is understood that any violation of the restrictions set forthabove by the Company or any of its Subsidiaries, or any director, officer,employee, representative, investment banker, agent or affiliate thereof shallbe deemed to be a breach of this Agreement by Company.

 

6.5                                 SecuritiesCondition.

 

(a)                                  Assoon as reasonably practicable after the date hereof, the Company and Acquirorshall cooperate and prepare and file a Registration Statement on Form S-4 (the “FormS-4”) with the SEC under the Securities Act with respect to the Acquiror CommonStock issuable in the Transaction, and shall use their commercially reasonablebest efforts to respond to any comments of the SEC or its staff and to causethe Form S-4 to be cleared by the SEC; provided, however that theobligations under this sentence shall terminate if no Form S-4 is required tobe filed in accordance with Section 6.5(d) below. The Company and Acquirorshall cooperate with each other in the preparation of the Form S-4, and shallnotify each other of the receipt of any comments from the SEC or its staff andof any request by the SEC or its staff for amendments or supplements to theForm S-4 or for additional information and shall supply each other reasonablypromptly with copies of all correspondence between such Party or any of itsrepresentatives, on the one hand, and the SEC or its staff, on the other hand,with respect to the Form S-4. The Parties shall give each other an opportunityto review the Form S-4 prior to its being filed with the SEC and shall giveeach other and their respective counsels the opportunity to review allamendments and supplements to the Form S-4 and all responses to requests foradditional information and replies to comments prior to their being filed with,or sent to, the SEC. Each of the Company and Acquiror agrees to use itscommercially reasonable best efforts, after consultation with the other partieshereto, to respond promptly to all such comments of and requests by the SEC. Aspromptly as reasonably practicable after the Form S-4 has been cleared by theSEC, the Company, Buyer and Acquiror shall mail the Offer Materials to theholders of Company Shares and Vested Options and Company Warrants.

 

(b)                                 Eachof Acquiror and the Company agrees to advise the other as promptly asreasonably practicable if, at any time prior to the Closing Date, anyinformation provided by it in the Offer Materials or Form S-4 is or becomesincorrect or incomplete in any material respect and to provide the other withthe information needed to correct such inaccuracy or omission. Each of theCompany and Acquiror will furnish the other with such supplemental informationas may be necessary in order to cause the Offer Materials or Form S-4, insofaras it relates to it, to comply with Applicable Law after the mailing of theOffer Materials to the holders of Company Shares Vested Options and CompanyWarrants.

 

(c)                                  TheCompany agrees to use its commercially reasonable best efforts to provide, assoon as reasonably practicable after the Agreement Date, financial statementswith

 

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respect to the periods required to beincluded in the Form S-4 that comply in all material respects with therequirements of Regulation S-X of the SEC for inclusion in the Form S-4 to befiled by Acquiror with respect to the transactions contemplated by thisAgreement.

 

(d)                                 (i)As soon as reasonably practicable after the date hereof and as an alternativeto the filing and other obligations with respect to the Form S-4 as provided inSections 6.5(a)-(c) above, Acquiror shall file an application with theCalifornia Department of Corporations requesting a hearing (the “FairnessHearing”) satisfying the requirements of the California Corporations Code beheld as soon as practicable after the date hereof before the CaliforniaDepartment of Corporations to determine the fairness to the holders of CompanyShares and Company Share Options of the consideration payable to such holderspursuant to the Offer Materials and the terms and conditions of thetransactions described in this Agreement, such that, at the Closing, the StockConsideration shall be deemed exempt securities under Section 3(a)(10) ofthe Securities Act. Each of Acquiror, Buyer and the Company shall cooperatewith each other in the preparation and submission of any and all documents andmaterials required by the California Department of Corporations in connectiontherewith (the “Permit Materials”). Each of the Acquiror and the Company shallbe solely responsible for any statement, information or omission in the PermitMaterials relating to it or its Affiliates based upon written informationfurnished by it. If the Fairness Hearing shall have been held, and anappropriate permit issued, such that the Stock Consideration shall constituteexempt securities with the meaning of Section 3(a)(10) of the Act, (the “FairnessDetermination”), the condition to submission of the Offer Materials to theholders of Company Shares and Company Share Options as provided inSection 2.1(a) hereof and Section 6.5(d)(iii) below shall have beendeemed to be met and satisfied and any references in this Agreement to the FormS-4 going effective shall be deemed to be references to such permit beingissued, and any references to the Form S-4, including with respect to theCompany’s and Acquiror’s representations and warranties, shall be deemed to bereferences to the Permit Materials. If the Fairness Hearing shall not have beenscheduled for a date which is the earlier of (i) on or before June 30, 2006, or(ii) the date on which the Form S-4 can be filed with the SEC, then the FormS-4 shall be filed with the SEC as contemplated by Section 6.5(a) and,unless otherwise agreed to by Acquiror and the Company, Acquiror shall withdrawthe application for a Fairness Hearing.

 

(i)                                     keephidden text – for autonumbering purposes

 

(ii)                                  Ifthe Fairness Determination has been received, the Company shall as promptly asreasonably practicable mail the Offer Materials to the holders of CompanyShares and Vested Company Share Options and Company Warrants. The Company andAcquiror agree that none of the information provided and to be provided by suchparty for inclusion in the Permit Materials or the Offer Materials will, at thetime the Offer Materials are mailed, be false or misleading with respect to anymaterial fact, or omit to state any material fact required to be stated thereinor necessary in order to make the statements therein not false or misleading ornecessary to correct any statement which has become false or misleading in anyearlier communication with respect to such document.

 

(iii)                               Acquiror’sduty to mail and provide the Offering Materials to the holders of the CompanyShares and the Vested Company Share Options and Company Warrants shall beconditioned (the “Securities Condition”) upon (1) the effectiveness of theForm S-4, or (ii) the obtaining of a Fairness Determination from theCalifornia Department of Corporations.

 

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If the Fairness Determination has beenreceived, Acquiror shall have no obligation to file a Form S-4 pursuant toSection 6.5(a).

 

6.6                                 Noticeof Developments and Events Constituting Material Adverse Effect. Each partyshall notify the other party in writing of (i) any event or occurrence thatarose after the Agreement Date and that would cause a breach at the Closing ofany of that party’s representations and warranties (a “Development”) or (ii)any event or occurrence arising prior to the Agreement Date that wouldconstitute a Material Adverse Effect as to that party. Each notification as toa Development shall be deemed to supplement or amend the appropriaterepresentation or warranty of that party and that party’s Disclosure Schedulesfor the purpose of determining the accuracy of any of the representations andwarranties made by that party in this Agreement as of the Closing Date, butshall not be deemed to so amend or supplement for the purpose of determiningwhether any of the conditions set forth in Article 8 has been satisfied(including, without limitation, the condition to Acquiror’s obligations setforth in Section 8.1(c) hereof based on performance by the Company of itsobligations pursuant to Sections 6.2 and 6.3 hereof). Any notification withrespect to an event or occurrence arising prior to the Agreement Date thatwould constitute a Material Adverse Effect as to that party shall not be deemedto supplement or amend any representation or warrant of that party or thatparty’s Disclosure Schedule for either the purpose of determining the accuracyof any representations and warranties made by that party in this Agreement asof the Agreement Date or in determining whether any of the conditions set forthin Article 8 has been satisfied.

 

6.7                                 HSR Act and Other Antitrust Laws.

 

(a)                                  The Company and Acquiror shall as promptly aspracticable after signing of this Agreement, file with (i) the FTC and the DOJ,the notification and report form required for the Transactions and anysupplemental information requested in connection therewith pursuant to the HSRAct, which forms shall specifically request an early termination of the waitingperiod prescribed by the HSR Act and (ii) any other Governmental or RegulatoryAuthority, any other filings, reports, information and documentation requiredfor the Transactions pursuant to any Other Antitrust Law, except as otherwiseagreed by the parties’ anti-trust counsel or where the absence of such filingwill not have a Material Adverse Effect. Each of the Company and Acquiror shallfurnish to each other’s counsel such necessary information and reasonableassistance as the other may request in connection with its preparation of anyfiling or submission under the HSR Act and any Other Antitrust Laws. Acquirorand the Company shall split equally the costs and fees payable in connectionwith such filings and for local counsel fees (if applicable).

 

(b)                                 Each of the Company and Acquiror shall use itscommercially reasonable efforts to promptly obtain any clearance required underthe HSR Act and any Other Antitrust Laws for the consummation of theTransactions and shall keep each other apprised of the status of anycommunications with, and any inquiries or requests for additional informationfrom, the FTC and the DOJ and other Governmental or Regulatory Authorities andshall comply promptly with any such inquiry or request; provided, however, thatAcquiror shall not be required to consent to the divestiture or otherdisposition of any of its or its Affiliates’ material assets or to consent toany other material structural or conduct relief and Acquiror and its Affiliatesshall have no obligation to contest, administratively or in court, any ruling,order or other action of

 

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any Governmentalor Regulatory Authority respecting the Transactions; provided, further,however, that the Company and Acquiror shall both promptly respond to the DOJor the FTC to a Request for Additional Information.

 

(c)                                  The parties hereto commit to instruct theirrespective counsel to cooperate with each other and use commercially reasonableefforts to facilitate and expedite the identification and resolution of anyissues arising under the HSR Act or under any Other Antitrust Laws, or relatingto securing expiration of any waiting periods under such laws, at the earliestpracticable dates. Said commercially reasonable efforts and cooperationinclude, but are not limited to, counsel’s undertaking (i) to keep each otherappropriately informed of communications from and to personnel of the reviewingantitrust authority, and (ii) to confer with each other regarding appropriatecontacts with and responses to the request or demands from said antitrustauthority or its personnel.

 

6.8                                 Spreadsheet.The Company shall deliver to Acquiror and the Exchange Agent a spreadsheet (the“Spreadsheet”) substantially in the form attached hereto as **Schedule 6.8**, which spreadsheet shall be certified ascomplete and correct by the Chief Executive Officer and Chief Financial Officerof the Company as of the Closing and which shall include, among other things,as of the Closing, (i) all Selling Shareholders and their respectiveaddresses as reflected in the Company’s records, indicating whether such holderis an employee or not an employee, the number of Company Shares held by suchpersons (including whether such shares are Company Ordinary Shares or CompanyPreferred Shares, the respective certificate numbers, whether such shares aresubject to a repurchase right by the Company (including, for each certificate,the number of shares that are vested as of the Closing) and the liquidationpreference applicable to each Company Preferred Share), the date of acquisitionof such shares, the Preferred Share Initial Cash Distribution Amount applicableto each holder of Company Preferred Shares, the Ordinary Share Initial CashDistribution Amount applicable to each holder of Company Ordinary Shares, thenumber of Acquiror Common Stock to be issued to each holder, the number ofshares of Acquiror Common Stock to be deposited into the Escrow Fund on behalfof each holder, and such other information relevant thereto or which theExchange Agent and/or the Escrow Agent may reasonably request, and(ii) all holders of Company Share Options and Company Warrants and theirrespective addresses, as reflected in the Company’s records, whether each suchholder is an employee or not an employee, the number of shares of CompanyOrdinary Shares or Company Preferred Shares underlying each such Company ShareOption and Company Warrant, the grant dates of such Company Share Options andCompany Warrants and the vesting arrangement with respect to such Company ShareOptions and Company Warrants and indicating, with respect to each Company ShareOption, whether such Company Share Options are incentive stock options ornon-qualified stock options and such other information relevant thereto orwhich Acquiror may reasonably request. The Company shall deliver theSpreadsheet three Business Days prior to the Closing Date.

 

6.9                                 Alternative Structures.

 

(a)                                  Priorto the making of the Offer, the Company agrees to take all actions reasonablyrequested by Acquiror to implement alternative structures to effect theTransaction (or otherwise transfer shares of any Subsidiary of the Company or anyassets of the Company or 

 

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any of its Subsidiaries to Acquiror or any ofits Subsidiaries) as of or immediately preceding the Closing Date.

 

(b)                                 Priorto the making of the Offer, the Company agrees to take all actions reasonablyrequested by Acquiror (including arranging for shareholder resolutions) as arenecessary to effect an issue of share warrants (as defined for the purposes ofthe Irish Companies Act 1963) in respect of the entire issued share capital ofthe Company.

 

(c)                                  Nothingcontained in this Section 6.9 shall obligate the Company to take anyaction that: (i) the Company determines in good faith will increase the TaxLiability in any material respect of any of the Shareholders as a result of theTransactions or otherwise affect the Company, its directors or the Shareholdersas a group, adversely in any material respect; (ii) will cause the Companyto incur any material out of pocket expense that will not be assumed orotherwise reimbursed by Acquiror; or (iii) is reasonably likely tomaterially delay the Closing.

 

6.10                           Consents, Further Assurances. Consistent with the terms and conditionshereof, each party hereto will use its commercially reasonable efforts toexecute and deliver such other documents and take such other actions asreasonably requested by the other party to fulfill the conditions precedent tothe obligation of the other party to consummate the Transactions, or as theother party hereto may reasonably request in order to carry out this Agreementand the Transactions. Each of Acquiror and the Company shall use itscommercially reasonable efforts and will cooperate with each other to theextent reasonably necessary to obtain all consents, approvals and waivers, ifany, from third parties required to consummate the Transactions and shall useits commercially reasonable efforts to cause the conditions set forth inArticle 8 to be satisfied. Notwithstanding the foregoing, in connection withthe Company’s covenants in this Section 6.5, in no event shall theCompany or any of its Subsidiaries be obligated to incur any more than anominal cost or suffer the loss of any right or benefit under, or incur any materialobligation with respect to, any Contract.

 

6.11                           Nasdaq Listing. Acquiror agrees to cause the listing on Nasdaq the shares of AcquirorCommon Stock issuable, and those required to be reserved for issuance, as theStock Consideration and upon exercise of assumed Unvested Company Options,subject to official notice of issuance.

 

6.12                           Section 280G. The Company agrees to use its commerciallyreasonable efforts to seek the approval of the Company’s shareholders in themanner provided for in Section 280G(b)(5) of the Code of any payment in thenature of compensation, deemed payment or any other benefit payable as a resultof the Transactions (whether alone or in connection with any subsequentevent(s)) that might otherwise be a “parachute payment” under Section 280Gof the Code if paid (including any incentive plan for officers of the Companyimplemented after the date hereof by any Shareholders). The Company agrees toconduct the process of submitting such payments, deemed payments or otherbenefits for shareholder approval in the time and manner required by Section280G(b)(5) of the Code and the regulations thereunder.

 

6.13                           Terminationof Company Employee Plans. Effectiveimmediately preceding the Closing, the Company will terminate any and all CompanyEmployee Plans intended toqualify as a qualified cash or deferred arrangement under Section 401(k)of the Code and, at the request

 

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ofAcquiror, the Company will provide Acquiror with evidence that such plans havebeen terminated effective immediately prior to the Closing pursuant toresolutions duly adopted by the Board of Directors of the Company or otherduly-designated authority. In addition, at the request of Acquiror, the Companywill terminate, immediately prior to the Closing, any and all other CompanyEmployee Plans thatare “employee welfare benefit plans” within the meaning of Section 3(1) ofERISA, including any group health, dental, severance, separation or salarycontinuation plans, programs or arrangements, effective as of the datespecified by Acquiror and, at the request of Acquiror, the Company will provideAcquiror with evidence that such plans have been so terminated pursuant toresolutions duly adopted by the Board of Directors of the Company or otherduly-designated authority. The Company also shall take such other actions infurtherance of terminating such Company Employee Plans as Acquiror mayreasonably require.

 

6.14                           Section16 Approvals. The Board of Directors (or an appropriate committee thereof)of Acquiror shall grant all approvals and take all other actions requiredpursuant to Rule 16b-3(d) under the Exchange Act to cause the issuance ofthe Stock Consideration to be exempt from the provisions of Section 16(b) ofthe Exchange Act.

 

6.15                           Severanceand Transition Agreements; Employment Agreements.

 

(a)                                  TheCompany agrees to use its commercially reasonable efforts to cause each of JoeWang, Bruce Felt and Matt Dean to execute severance and transition agreementsin a form approved by the Company’s board of directors and Acquiror.

 

(b)                                 TheCompany agrees to use its commercially reasonable efforts to cause each of theKey Employees to enter into employment agreements in substantially the formpreviously provided by Acquiror.

 

6.16                           RetentionBonus Program. Prior to Closing, certain Shareholders may create aretention bonus program for the benefit of certain Company employees that willbe funded solely out of payments of Contingent Cash Consideration otherwisepayable to such participating Selling Shareholders. In the event such retentionbonus program is to be implemented, Acquiror shall take such commerciallyreasonable action as requested by such participating Selling Shareholders tocooperate with the Company and such Selling Shareholders to structure andimplement the retention pool in a Tax efficient manner, provided that Acquirorshall not be required to: (i) incur any material direct or indirect out ofpocket expenses in connection with such retention bonus program (including,without limitation, any increased Tax liability), (ii) incur any additionalamounts as a result of such action that are deemed to be an operating expensefor the purpose of Acquirer’s publicly released operating results; or (iii)otherwise take any action that Acquiror determines in good faith isinconsistent with any applicable Laws, fiduciary duties of Acquiror or itsAffiliates or Contracts binding on Acquiror or its Subsidiaries.

 

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**ARTICLE 7**

 

**POST-CLOSING COVENANTS**

 

7.1                                 Conductof the Business following the Closing.

 

(a)                                  Subjectto the terms and conditions of the Transaction Documents, following theClosing, Acquiror, in its capacity as the sole shareholder of the Company,shall be entitled to conduct the Business of the Company and the Company’sSubsidiaries (i) until December 31, 2006, in accordance withSchedule 6 of the Offer Letter, and (ii) from and after January 1,2007, in such manner in its discretion as it may deem appropriate from time totime.

 

(b)                                 Acquirorshall promptly pay to the appropriate authorities and be responsible for theStamp Tax incurred in connection with the Transactions.

 

(c)                                  TheCompany shall pay and the Acquiror shall cause the Company to pay all CompanyTransaction Expenses on or prior to the later to occur of (i) the Closing Date,if invoices in respect of such Company Transaction Expenses have been providedto the Company and Acquiror three (3) Business Days prior to the Closing Date,or (ii) the third (3rd) Business Day after the date of delivery to the Companyand Acquiror of an invoice in respect thereof. In the event the Company shallbe prohibited from making any such payment of Company Transaction Expensespursuant to Irish Law, Acquiror shall, or shall cause one of its Affiliates, tomake such payments at the relevant times.

 

(d)                                 Inthe event that, following the Closing, Acquiror shall make an election underSection 338 of the Code with respect to the Company or any Subsidiary ofthe Company, Acquiror shall indemnify certain affected Shareholders as providedin Schedule 7 to the Offer Document. For this purpose, “Shareholders”shall include any person included as an “Election Indemnified Party” inSchedule 7 to the Offer Document.

 

7.2                                 Indemnificationof Certain Parties.

 

(a)                                  Fromand after the Effective Time and for a period of six years from the ClosingDate, Acquiror will, and will cause the Company or any of its successors orassigns to, fulfill and honor in all respects, to the extent permitted byapplicable Law, the indemnification obligations of the Company for any actionthat may be instituted by any Person except for any claims that Indemnitees (asdefined below) are obligated to indemnify the Indemnified Parties pursuant toSchedule 4 of the Offer Letter (“Covered Claims”) owed to each Person who is orwas a director, officer or employee of the Company at or prior to the ClosingDate (the “Indemnitees”) pursuant to the indemnification provisions of theCompany’s Charter Documents in effect on the date hereof. The Company’s CharterDocuments will contain provisions with respect to exculpation andindemnification for Covered Claims that are at least as favorable to theindemnified parties thereunder as those contained in the Company’s CharterDocuments as in effect on the date hereof, which provisions shall not berepealed, amended or otherwise modified for a period of six years from theClosing Date in a manner that would adversely affect the rights of individualswho, at any time prior to the Closing Date, were indemnified partiesthereunder, except as required by applicable Law.

 

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(b)                                 Acquirorwill purchase a “tail” to the Company’s current directors’ and officers’liability insurance policy to be effective for a period of six (6) years afterthe Closing Date.

 

(c)                                  IfAcquiror, the Company or any of their successors or assigns(i) consolidates with or merges into any other person and shall not be thecontinuing or surviving corporation or entity of such consolidation or mergeror (ii) transfers all or substantially all of its properties and assets toany Person, then, in each such case, proper provisions shall be made so thatthe successors and assigns of Acquiror or Buyer, as the case may be, shallassume the obligations set forth in this Section 7.2(c).

 

(d)                                 ThisSection 7.2(d) is for the benefit of the Indemnitees and is binding onAcquiror, Buyer, the Company and their respective successors and assigns andwill be enforceable by the Indemnitees as third party beneficiaries hereof. Notwithstandingthe foregoing, the Company and its Subsidiaries shall not be required toindemnify the Indemnitees for any claims that such Indemnitees are obligated toindemnify the Indemnified Parties pursuant to Schedule 4 of the Offer Letter.

 

7.3                                 Form S-8.Acquiror agrees to file a registration statement on Form S-8 for theshares of Acquiror Common Stock issuable with respect to assumed Company ShareOptions as soon as is reasonably practicable after the Closing, but in anyevent not later than ten (10) Business Days following the Closing and shall useall reasonable efforts to maintain the effectiveness of such registrationstatement (and maintain the current status of the prospectus or prospectusescontained therein) thereafter for so long as any of such options or otherrights remain outstanding. In addition, Acquiror agrees to approve the grantsof all Acquiror Options for purposes of exempting such grants from theprovisions of Section 16(b) of the Exchange Act.

 

7.4                                 EmployeeBenefits.

 

(a)                                  Compensationand Benefits. Acquiror or one of its Affiliates will compensate eachEmployee (so long as any such Employee remains employed by Buyer or anAffiliate thereof, and subject to Acquiror’s termination rights) after theClosing Date as follows:

 

(i)                                     ata rate of total cash compensation, including base salary rate and target bonusopportunity, which shall be at least substantially similar in the aggregate tothe total cash compensation opportunity provided to the employee by the Companyimmediately prior to March 24, 2006; and

 

(ii)                                  duringthe Contingent Cash Period with Acquiror Employee Benefits Plans that are atleast substantially similar in the aggregate to the benefits provided underthose Company Plans (including International Employee Plans) in effectimmediately prior to March 24, 2006.

 

(b)                                 ServiceCredit; Eligibility. Following the Contingent Cash Period, Acquiror shallarrange for each Employee who is a participant in a Company Employee Plan,including any vacation plan or program (the “Company Participants”), who becomes an employee of Acquiror, anyAcquiror Affiliate or the surviving Corporation and their dependents to beeligible for substantially similar employee welfare benefits as those receivedby similarly

 

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situated Acquiror employees (or by similarlysituated employees of the Applicable Acquiror Affiliate) with similar positionsand responsibilities. To the extent permitted under applicable Law and theapplicable waiting periods in Acquiror’s employee welfare benefit plans andarrangements, each Company Participant shall be given service credit for allpurposes under Acquiror’s employee welfare benefit plans and arrangements,including for eligibility to participate (provided that no retroactivecontributions will be required), eligibility for vesting under Acquiroremployee welfare benefit plans and arrangements with respect to his or herlength of service with the Company (and its subsidiaries and predecessors)prior to the Closing Date, except to the extent that such crediting wouldresult in duplication of benefits. To the extent permitted under applicable Lawand the terms and provisions of Acquiror’s employee benefit plans andarrangements, Acquiror shall cause any and all pre-existing condition (oractively at work or similar) limitations, eligibility waiting periods andevidence of insurability requirements under any Acquiror employee welfarebenefit plans and arrangements to be waived with respect to such CompanyParticipants (and their beneficiaries) and shall provide them with credit forany co-payments, deductibles, and offsets (or similar payments) made during theplan year which includes the Closing Date for the purposes of satisfying anyapplicable deductible, out-of-pocket, or similar requirements under anyAcquiror employee welfare benefit plans or arrangements in which they areeligible to participate after the Closing Date.

 

7.5                                 Availabilityof Public Information. For a period following the Closing Date until the dateno former holder of Company Shares is required to comply with Rule 145(c)of the SEC in the resale of Acquiror Common Stock required in the Transaction,Acquiror shall cause the adequate current public information required byRule 144(c) be available in compliance with such Rule.

 

7.6                                 Pre-ClosingTax Returns. Acquiror shall prepare or cause to be prepared and file orcause to be filed all Tax Returns for the Company and its Subsidiaries for allperiod beginning before the Closing Date that are filed after the Closing Date(“Pre-Closing Tax Returns”). All such Pre-Closing Tax Returns shall be preparedin a manner consistent with past practice, to the extent permitted by law. Acquirorshall cause any U.S. federal or Irish income tax Pre-Closing Tax Returns to beprovided to the Shareholder Representative at least thirty (30) days prior tothe due date for such Pre-Closing Tax Returns. The Shareholder Representativeshall have the right to review and approve such Pre-Closing Tax Returns to theextent any amount reflected on such Tax Returns could be the responsibility ofany Selling Shareholder under this Transaction Agreement or the Offer Letter;provided, however, that this sentence and the preceding sentence shall notapply to a Pre-Closing Tax Return resulting from or reflecting the effects ofan election under Section 338(g) of the Code.

 

**ARTICLE 8**

 

**CONDITIONSPRECEDENT**

 

8.1                                 ConditionsPrecedent to Obligations of Acquiror. All obligations of Acquiror toconsummate the Transactions in accordance with this Agreement and the OfferMaterials are subject to the satisfaction (or waiver by Acquiror) prior theretoof each of the following conditions:

 

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(a)                                  GovernmentApprovals. All consents, approvals and waivers, if any, from anyGovernmental or Regulatory Authorities required to consummate the Transactionsshall have been obtained and delivered to Acquiror, and all applicable waitingperiods under the HSR Act or any Other Antitrust Laws shall have expired or beenterminated and (if different) all clearances under Other Antitrust Laws shallhave been obtained, excepting only those expirations or clearances the absenceof which would not be reasonably expected to have a material adverse effect onthe consummation of the Transactions; provided, however, that Acquiror may notrely on the conditions set forth in this sentence if the failure to obtaintermination of the relevant waiting period under the HSR Act or clearancesunder any Other Antitrust Laws for the Transactions is in any way a result ofAcquiror’s failure to take all necessary actions set forth in Section 6.7.

 

(b)                                 AncillaryDocuments. Acquiror shall have received from the Company executed copies ofthe respective Transaction Documents to which the Company is a party.

 

(c)                                  Representationsand Warranties; Performance of Obligations. All of the representations andwarranties of the Company contained in this Agreement shall be true and correct(without giving effect to any qualification as to materiality or MaterialAdverse Effect contained in any specific representation or warranty) (otherthan qualifications as to those specific provisions of such representations andwarranties that call for a listing of specific types of items or agreements orare qualified by dollar thresholds) as of the Closing Date with the same forceand effect as if made on the Closing Date as provided in Section 6.6hereof (except that those representations and warranties which address mattersonly as of a particular date shall have been true and correct only on suchdate), except in each case or in the aggregate, as does not constitute aMaterial Adverse Effect at the Closing Date; all of the terms, covenants,agreements and conditions of the Transaction Documents, as applicable, to be compliedwith, performed or satisfied by the Company on or before the Closing Date shallhave been duly complied with, performed or satisfied in all material respects;and Acquiror shall have received a certificate dated the Closing Date andsigned by the Chief Executive Officer of the Company with respect to theforegoing and as set forth in Section 8.1(d) (the “Company Officer’sCertificate”).

 

(d)                                 MaterialAdverse Changes. Since the date of the Current Balance Sheet, there shallnot have occurred any event or condition of any character that has had, eitherindividually or in the aggregate with all such other events or conditions, aMaterial Adverse Effect, and the Company Officer’s Certificate shall include acertification as to the foregoing.

 

(e)                                  MinimumAcquiror Common Stock Value  TheAcquiror Common Stock Value shall be not less than the Floor Price, providedthat, in the event that Acquiror shall terminate the Offer and the thisAgreement pursuant to Section 3.3(a)(ii) hereof on the basis of the failureof this condition or Section 3.3(a)(vi), the Company shall have the right,exercisable on notice given to Acquiror not less than five (5) Business Daysfollowing the notice of termination from the Acquiror given pursuant toSection 3.3(b) of the Transaction Agreement, to accept the Floor Price asthe Acquiror Common Stock Value (notwithstanding any other provision of theOffer Materials) and thereby cause this condition to be deemed fully satisfied.Any determination by the Company to satisfy this condition by setting theAcquiror Common Stock Value at the Floor Price shall require the writtenconsent of Selling Shareholders holding

 

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not less than 80% of the Fully DilutedCompany Share Amount, and such consent shall be thereafter binding on allSelling Shareholders.

 

(f)                                    CompanyLegal Opinion. Acquiror shall have received a legal opinion of O’Melveny& Myers LLP in customary form as reasonably acceptable to counsel forAcquiror (the “Company Legal Opinion”).

 

(g)                                 Matheson Ormsby Opinion. Acquiror shall have received a legalopinion of Matheson Ormsby Prentice in customary form as reasonably acceptableto counsel for Acquiror (the “Matheson Ormsby Prentice Opinion”).

 

(h)                                 Acceptanceof Offer. Valid Acceptances shall have been received in accordance with theTransaction Documents by holders of not less than 80% in nominal value for eachclass of Shares in the issued share capital of the Company.

 

(i)                                     Releaseof Liens. The Buyer shall have received releases in terms satisfactory toit of any material liens specified in Section 3.2(a)(vi) hereof.

 

(j)                                     SecuritiesCondition. Securities Condition shall have been satisfied.

 

(k)                                  Spreadsheet.Acquiror shall have received from the Company three Business Days prior to theClosing Date the Spreadsheet pursuant to Section 6.7 which shall have beencertified as of the Closing Date as complete and correct by the Chief ExecutiveOfficer and the Chief Financial Officer of the Company.

 

(l)                                     Consents.Acquiror shall have received from the Company the Required Consents.

 

(m)                               ClosingDeliveries. Acquiror shall have received all of the closing deliverieslisted in Section 3.2 hereof.

 

8.2                                 ConditionsPrecedent to Obligations of the Company and the Selling Shareholders. Allobligations of the Company and the Selling Shareholders to consummate theTransactions are subject to the satisfaction (or waiver by the Company) priorthereto of each of the following conditions:

 

(a)                                  GovernmentApprovals. All consents, approvals and waivers, if any, from anyGovernmental or Regulatory Authorities required to consummate the Transactionsshall have been obtained and delivered to Company, and all applicable waitingperiods under the HSR Act or any Other Antitrust Laws shall have expired orbeen terminated and (if different) all clearances under Other Antitrust Lawsshall have been obtained, excepting only those expirations or clearances theabsence of which would not be reasonably expected to have a material adverseeffect on the consummation of the Transactions; provided, however, that theCompany may not rely on the conditions set forth in this sentence if thefailure to obtain termination of the relevant waiting period under the HSR Actor clearances under any Other Antitrust Laws for the Transactions is in any waya result of the Company’s failure to take all necessary actions set forth inSection 6.7.

 

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(b)                                 AncillaryDocuments. The Company shall have received from Acquiror executed copies ofthe respective Transaction Documents to which Acquiror is a party.

 

(c)                                  Representationsand Warranties; Performance of Obligations. The representations andwarranties of Acquiror contained in this Agreement shall be true and correct inall material respects (without giving effect to any qualification as tomateriality or an Acquiror Material Adverse Effect contained in any specificrepresentation or warranty (other than qualifications as to those specificprovisions of such representations and warranties that call for a listing ofspecific types of items or agreements or are qualified by dollar thresholds))at the Closing Date with the same force and effect as if made on the ClosingDate (except that those representations and warranties which address mattersonly as of a particular date shall have been true and correct only on suchdate), except in each case or in the aggregate, as does not constitute anAcquiror Material Adverse Effect; all of the terms, covenants, agreements andconditions of the Transaction Documents, as applicable, to be complied with,performed or satisfied by the Company on or before the Closing Date shall havebeen duly complied with, performed or satisfied in all material respects; andthe Company shall have received a certificate dated the Closing Date and signedby an authorized officer of Acquiror with respect to the foregoing (the “AcquirorOfficer’s Certificate”).

 

(d)                                 Acceptanceof Offer. Valid Acceptances shall have been received in accordance with theTransaction Documents by holders of not less than 80% in nominal value for eachclass of Shares in the issued share capital of the Company.

 

(e)                                  Securities.The Securities Condition shall have been satisfied.

 

(f)                                    NasdaqListing. The shares of Acquiror Common Stock issuable to the Shareholdersas the Stock Consideration and such other shares required to be reserved forissuance upon exercise of assumed Unvested Company Options shall have beenauthorized for listing on Nasdaq upon official notice of issuance.

 

(g)                                 AcquirorPublic Information. Acquiror shall be in compliance with the requirementsof Rule 144(c) of the SEC to make available adequate public information asrequired by such Rule.

 

(h)                                 AcquirorMaterial Adverse Effect; Stock Splits. No Acquiror Material Adverse Effect,nor any split or dividend with respect to the Acquiror Common Stock, shall haveoccurred during or after the period in which the Acquiror Common Stock Value isdetermined.

 

**ARTICLE 9**

 

**PUBLICANNOUNCEMENTS**

 

The Company, the Shareholder Representativeand Acquiror will consult with each other before issuing any press release ormaking any public statement with respect to this Agreement and the Transactionsand, except as may be required by applicable Law or any applicable stockexchange regulations, the Company and the Shareholder Representative will notissue any such press release or make any such public statement without theprior written consent of Acquiror.

 

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**ARTICLE 10**

 

**SHAREHOLDERREPRESENTATIVE**

 

10.1                           ShareholderRepresentative Provisions. In accordance with the terms and conditions ofthe Offer, each of the Shareholders who has accepted the Offer shall appointand designate Vector Capital Corporation, as its agent and attorney-in-fact (the “Shareholder Representative”),with full power in its name and on itsbehalf to act according to the terms thereof. From and after the Closing Date,(i) all of the terms and conditions set forth in Schedule 6 of the OfferLetter (the “Shareholder Representative Provisions”) shall be deemedincorporated, by this reference thereto, into this Agreement, (ii) theShareholder Representative shall become a party hereto solely for the purposesof this Article 10 and (iii) the Buyer Parties and the ShareholderRepresentative shall be entitled to all of the rights and benefits set forthin, and shall be entitled to rely on all of, the Shareholder RepresentativeProvisions. The Shareholder Representative agrees to act as, and undertake theresponsibilities of the Shareholder Representative as provided herein.

 

10.2                           ShareholderInformation. Within two (2) Business Days following the receipt thereof,Acquiror shall provide, or cause to be provided, to the ShareholderRepresentative a copy of the forms of Acceptances received in the Offer.

 

**ARTICLE 11**

 

**MISCELLANEOUS**

 

11.1                           Contentsof Agreement. This Agreement and the Offer Materials, together with theother Transaction Documents and the Mutual Non-Disclosure Agreement by andbetween Acquiror and the Company dated as of August 30, 2005, as amended (the “NDA”),sets forth the entire understanding of the parties hereto with respect to theTransactions and supersedes all prior agreements or understandings among theparties regarding those matters.

 

11.2                           Amendment,Parties in Interest, Assignment, Etc. This Agreement may be amended,modified or supplemented only by a written instrument duly executed byAcquiror, the Company and the Shareholder Representative; *provided*,*however*, to the extent that suchamendment, modification or supplement adversely affects any Shareholder in amanner different from any other Shareholder, Shareholder Representative mustobtain written consent of such affected holder. If any provision of thisAgreement shall for any reason be held to be invalid, illegal, or unenforceablein any respect, such invalidity, illegality, or unenforceability shall notaffect any other provision hereof, and this Agreement shall be construed as ifsuch invalid, illegal or unenforceable provision had never been containedherein. This Agreement shall be binding upon and inure to the benefit of and beenforceable by the respective heirs, legal representatives, successors andpermitted assigns of the parties hereto. No party hereto shall assign thisAgreement or any right, benefit or obligation hereunder; provided, however,that Buyer may assign its rights and obligations hereunder to one or morePersons, (each, an “Assignee”) provided (a) the Assignee executes anddelivers to the Company and the Shareholder Representative a document by whichthe Assignee agrees to be bound by the terms and conditions applicable toAcquiror under this Agreement, and (b) Buyer shall remain obligated to

 

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fulfill the Assignee’s obligations hereunderto the extent that the Assignee fails to do so hereunder. Any term or provisionof this Agreement may be waived at any time by the party entitled to thebenefit by a written instrument duly executed by such party.

 

11.3                           Interpretation.Unless the context of this Agreement clearly requires otherwise,(a) references to the plural include the singular and the singular theplural, (b) references to any gender include all genders, (c) ”or”has the inclusive meaning frequently identified with the phrase “and/or,”(d) ”including” has the inclusive meaning frequently identified with thephrase “but not limited to,” and (e) references to “hereunder” or “herein”relate to this Agreement. The Section and other headings contained in thisAgreement are for reference purposes only and shall not control or affect theconstruction of this Agreement or the interpretation thereof in any respect. Section,subsection, schedule and exhibit references are to this Agreement unlessotherwise specified. Each accounting term used herein that is not specificallydefined herein shall have the meaning given to it under GAAP. This Agreementconstitutes the product of the negotiation of the parties hereto and theenforcement hereof shall be interpreted in a neutral manner, and not morestrongly for or against any party based upon the source of the draftsmanshiphereof.

 

11.4                           SoleRemedy. The parties hereto acknowledge and agree that, after the Closing,the indemnification provisions contained in the Offer Materials shall be theBuyer Parties’ sole and exclusive remedy with respect to breaches of therepresentations and warranties, covenants and agreements contained in the OfferMaterials. Notwithstanding any other provision in this Agreement, any partyhereunder shall have the right to seek specific performance or injunctiverelief to enforce another party’s performance of any obligations expressly setforth in the Agreement and the Offer Materials and nothing herein shall bedeemed to limit or restrict in any manner any rights or remedies that any partyhas, or might have, at Law, in equity or otherwise, against any other partyhereto, based on fraud or any willful misrepresentation committed by suchparty.

 

11.5                           Notices.All notices that are required or permitted hereunder shall be in writing andshall be sufficient if personally delivered or sent by mail, facsimile messageor by a nationally recognized overnight delivery courier. Any notices shall bedeemed given upon the earlier of the date when received at, or the third dayafter the date when sent by registered or certified mail or the day after thedate when sent by overnight delivery courier to the address set forth below orby facsimile to the fax number set forth below (with confirmation of receipt),unless such address or fax number is changed by notice to the other partyhereto:

 

If to Acquiror or Buyer, or following theClosing, the Company:

 

Avocent Corporation

4991 Corporate Drive

Huntsville, Alabama 35805

Fax:  (256)430-4030

Attention: John R. Cooper

 

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with required copies to:

 

Avocent Corporation

9911 Willows Road NE

Redmond, Washington 98052

Fax:  (425)861-5757

Attention: Samuel F. Saracino

 

and

 

Morrison & Foerster LLP

755 Page Mill Road

Palo Alto, California 94304

Fax:  (650)494-0792

Attention: Michael C. Phillips

 

If to the Company prior to the Closing:

 

LANDesk Group Limited

North America

Corporate Headquarters

United States & Canada

698 West 10000 South, Suite 500

South Jordan, Utah 84095

Fax:  (801)208-1354

Attention: Zhuo “Joe” Wang

 

with a required copy to:

 

O’Melveny & Myers

Embarcadero Center West

275 Battery Street, Suite 2600

San Francisco, CA 94111-3305

Fax:  (415)984-8701

Attention: Michael S. Dorf

 

If to the Shareholder Representative:

 

Vector Capital Group

456 Montgomery Street, 19th Floor

San Francisco, California 94104

Fax:  (415)293-5100

Attention: Christopher G. Nicholson

 

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with a required copy to:

 

O’Melveny & Myers

Embarcadero Center West

275 Battery Street, Suite 2600

San Francisco, CA 94111-3305

Fax:  (415)984-8701

Attention: Michael S. Dorf

 

11.6                           GoverningLaw. This Agreement shall be construed and interpreted in accordance withthe Laws of the State of New York without regard to its provisions concerningconflict of Laws, except to the extent the laws of Ireland are applicable tothe provisions of this Agreement pertaining to the Offer and the CompulsoryAcquisition. Each party to this Agreement (a) hereby irrevocably submits to theexclusive jurisdiction and venue of the state and federal courts located in NewYork, New York for the purpose of any action, claim, cause of action or suit(in contract, tort or otherwise), inquiry, proceeding or investigation arisingout of or related to this Agreement or the Transactions, (b) to the extent notprohibited by applicable Law, hereby waives and agrees not to assert by way ofmotion, as a defense or otherwise, in any such action, any claim that it is notsubject to the personal jurisdiction of the above-named courts, that its propertyis exempt or immune from attachment or execution by reason of a lack ofpersonal jurisdiction, that any such proceeding brought in one of theabove-named courts is improper by reason of a lack of personal jurisdiction orvenue, or that this Agreement or the subject matter hereof may not be enforcedin or by such court by reason of a lack of personal jurisdiction or impropervenue, and (c) hereby agrees not to commence any action, claim, cause of actionor suit (in contract, tort or otherwise), inquiry, proceeding or investigationarising out of or related to this Agreement or the Transactions other thanbefore one of the above-named courts, nor to make any motion or take any otheraction seeking or intending to cause the transfer or removal of any such action,claim, cause of action or suit (in contract, tort or otherwise), inquiry,proceeding or investigation to any court other than one of the above-namedcourts. Each party hereto hereby consents to and accepts service of process inany such proceeding in any manner permitted by the Laws of the State of NewYork or if served pursuant to Section 11.5.

 

11.7                           Waiver.By executing this Agreement, the Company expressly waives any rights of firstrefusal or rights of co-sale to which the Company may be entitled pursuant tothat certain Right of First Refusal and Co-Sale Agreement datedOctober 10, 2002, as amended, the Company’s Charter Documents or any otheragreement, as a result of the Offer.

 

11.8                           NoThird Party Beneficiaries. Except as contemplated by Sections 7.2 andArticle 10, no provision of this Agreement is intended to benefit any Personother than the signatories hereto, nor shall any such provision be enforceableby any other Person.

 

11.9                           WAIVEROF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY ANDALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TOTHIS AGREEMENT OR THE TRANSACTIONS.

 

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11.10                     Counterparts.This Agreement may be executed in two or more counterparts (delivery of whichmay occur via facsimile or as an attachment to an electronic mail message in “pdf”or similar format), each of which shall be binding as of the date first writtenabove, and, when delivered, all of which shall constitute one and the sameinstrument. This Agreement and any documents delivered pursuant hereto, and anyamendments hereto or thereto, to the extent signed and delivered by means of afacsimile machine or as an attachment to an electronic mail message in “pdf” orsimilar format, shall be treated in all manner and respects as an originalagreement or instrument and shall be considered to have the same binding legaleffect as if it were the original signed version thereof delivered in person. Atthe request of any party hereto or to any such agreement or instrument, eachother party hereto or thereto shall re-execute original forms thereof anddeliver them to all other parties. No party hereto or to any such agreement orinstrument shall raise the use of a facsimile machine or electronic mailattachment in “pdf” or similar format to deliver a signature or the fact thatany signature or agreement or instrument was transmitted or communicatedthrough the use of a facsimile machine or as an attachment to an electronicmail message as a defense to the formation of a contract and each such partyforever waives any such defense. A facsimile signature or electronicallyscanned copy of a signature shall constitute and shall be deemed to besufficient evidence of a party’s execution of this Agreement, without necessityof further proof. Each such copy shall be deemed an original, and it shall notbe necessary in making proof of this Agreement to produce or account for morethan one such counterpart.

 

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INWITNESS WHEREOF, this Transaction Agreement has been executed by the partieshereto as of the day and year first written above.

 
|   | AVOCENT  CORPORATION        |
|--------|-----------------------------|
|   |                        |   |
|   |                        |   |
|   | By:                         | /s/ John R.  Cooper |   |
|   | Name:                       | John R.  Cooper |
|   | Title:                      | Chief  Executive Officer |
|   |                        |   |
|   |                        |   |
|   | CRIMSON  ACQUISITION CORP.  |
|   |                        |   |
|   |                        |   |
|   | By:                         | /s/ Samuel  F. Saracino |   |
|   | Name:                       | Samuel F.  Saracino |
|   | Title:                      | Vice  President and Secretary |
|   |                        |   |
|   |                        |   |
|   | LANDESK  GROUP LIMITED      |
|   |                        |   |
|   |                        |   |
|   | By:                         | /s/ Zhuo Wang |   |
|   | Name:                       | Zhuo “Joe”  Wang |
|   | Title:                      | Chief  Executive Officer and President |
|   |                        |   |
|   |                        |   |
|   | SHAREHOLDER  REPRESENTATIVE |
|   | (solely in  such capacity)  |
|   |                        |   |
|   | VECTOR  CAPITAL CORPORATION |
|   |                        |   |
|   |                        |   |
|   | By:                         | /s/  Christopher Nicholson |   |
|   | Name:                       | Christopher  Nicholson |
|   | Title:                      | Authorized  Person |

 

 

**Signature Pageto Transaction Agreement**

 

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