EX-10.2 AGREEMENT AND PLAN OF MERGER






EXHIBIT 10.2
 





 

 






 




 




 




 




AGREEMENT AND PLAN OF MERGER

 

by and among

 

INTERCONTINENTALEXCHANGE, INC.,




 

COLUMBIA MERGER CORPORATION,

 




CREDITEX GROUP INC.,

 




and

 




TA ASSOCIATES, INC., as the Stockholders’ Representative

(for the limited purposes described herein)




 




June 3, 2008




 




 




 




 



 

 






 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE I THE MERGER	 	 	2	 
	 

	 	Section 1.1
	 	The Merger
	 	 	2	 
	 

	 	Section 1.2
	 	Effective Time
	 	 	2	 
	 

	 	Section 1.3
	 	Certificate of Incorporation and By-Laws
	 	 	2	 
	 

	 	Section 1.4
	 	Closing
	 	 	2	 
	 

	 	Section 1.5
	 	Directors and Officers
	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS	 	 	3	 
	 

	 	Section 2.1
	 	Effect on Capital Stock
	 	 	3	 
	 

	 	Section 2.2
	 	Company Stock Options and Related Matters
	 	 	9	 
	 

	 	Section 2.3
	 	Payments at Closing for Indebtedness
	 	 	11	 
	 

	 	Section 2.4
	 	Payments at Closing for Expenses
	 	 	11	 
	 

	 	Section 2.5
	 	Closing and Post-Closing Adjustments
	 	 	11	 
	 

	 	Section 2.6
	 	Expense Amount
	 	 	14	 
	 

	 	Section 2.7
	 	Escrow Funds
	 	 	14	 
	 

	 	Section 2.8
	 	Other Adjustments
	 	 	15	 
	 

	 	Section 2.9
	 	Fractional Shares
	 	 	16	 
	 

	 	Section 2.10
	 	Private Placement; Non-Accredited Investors
	 	 	16	 
	 

	 	Section 2.11
	 	Cash Election
	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III EXCHANGE FOR SHARES; DISSENTING SHARES	 	 	18	 
	 

	 	Section 3.1
	 	Cash Election Procedure
	 	 	18	 
	 

	 	Section 3.2
	 	Exchange for Shares of Buyer Stock or Cash
	 	 	19	 
	 

	 	Section 3.3
	 	Appraisal Rights
	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY	 	 	23	 
	 

	 	Section 4.1
	 	Existence; Good Standing; Authority
	 	 	23	 
	 

	 	Section 4.2
	 	Capitalization
	 	 	24	 
	 

	 	Section 4.3
	 	Subsidiaries
	 	 	25	 
	 

	 	Section 4.4
	 	No Conflict; Consents
	 	 	26	 
	 

	 	Section 4.5
	 	Financial Statements
	 	 	27	 
	 

	 	Section 4.6
	 	Absence of Certain Changes
	 	 	27	 
	 

	 	Section 4.7
	 	Litigation
	 	 	28	 
	 

	 	Section 4.8
	 	Taxes
	 	 	28	 
	 

	 	Section 4.9
	 	Employee Benefit Plans
	 	 	31	 
	 

	 	Section 4.10
	 	Real and Personal Property
	 	 	33	 
	 

	 	Section 4.11
	 	Labor and Employment Matters
	 	 	35	 
	 

	 	Section 4.12
	 	Contracts
	 	 	36	 
	 

	 	Section 4.13
	 	Intellectual Property
	 	 	37	 
	 

	 	Section 4.14
	 	Software
	 	 	40	 
	 

	 	Section 4.15
	 	Environmental Matters
	 	 	41	 
	 

	 	Section 4.16
	 	Insurance
	 	 	42	 
	 
	 	 	 	 	 	 	 	 





i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 

	 	Section 4.17
	 	No Brokers
	 	 	43	 
	 

	 	Section 4.18
	 	Compliance with Laws
	 	 	43	 
	 

	 	Section 4.19
	 	Government Regulation
	 	 	43	 
	 

	 	Section 4.20
	 	Books and Records
	 	 	46	 
	 

	 	Section 4.21
	 	Related Party Transactions
	 	 	46	 
	 

	 	Section 4.22
	 	Foreign Assets Control
	 	 	46	 
	 

	 	Section 4.23
	 	AML Standards
	 	 	46	 
	 

	 	Section 4.24
	 	No Other Representations and Warranties; Knowledge
	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER AND MERGERCO	 	 	47	 
	 

	 	Section 5.1
	 	Existence; Good Standing
	 	 	48	 
	 

	 	Section 5.2
	 	Formation and Ownership of MergerCo; No Prior Activities
	 	 	48	 
	 

	 	Section 5.3
	 	Capitalization
	 	 	49	 
	 

	 	Section 5.4
	 	Authority; Validity of Agreement; Necessary Action
	 	 	49	 
	 

	 	Section 5.5
	 	No Conflicts
	 	 	49	 
	 

	 	Section 5.6
	 	Governmental Approvals and Consents
	 	 	49	 
	 

	 	Section 5.7
	 	Buyer Reports; Financial Statements
	 	 	49	 
	 

	 	Section 5.8
	 	Absence of Certain Changes
	 	 	50	 
	 

	 	Section 5.9
	 	Compliance
	 	 	50	 
	 

	 	Section 5.10
	 	Brokers
	 	 	50	 
	 

	 	Section 5.11
	 	Litigation
	 	 	50	 
	 

	 	Section 5.12
	 	Inspection
	 	 	51	 
	 

	 	Section 5.13
	 	No other Representations and Warranties; Knowledge
	 	 	51	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI CONDUCT OF BUSINESS PENDING THE MERGER	 	 	52	 
	 

	 	Section 6.1
	 	Conduct of Business Prior to Closing
	 	 	52	 
	 

	 	Section 6.2
	 	Communications
	 	 	56	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII ADDITIONAL AGREEMENTS	 	 	56	 
	 

	 	Section 7.1
	 	Stockholders Consent
	 	 	56	 
	 

	 	Section 7.2
	 	Access to Information
	 	 	57	 
	 

	 	Section 7.3
	 	Confidentiality
	 	 	58	 
	 

	 	Section 7.4
	 	Regulatory and Other Authorizations; Consents
	 	 	58	 
	 

	 	Section 7.5
	 	Press Releases
	 	 	59	 
	 

	 	Section 7.6
	 	No Solicitations
	 	 	60	 
	 

	 	Section 7.7
	 	Officers’ and Directors’ Indemnification
	 	 	60	 
	 

	 	Section 7.8
	 	Employee Benefit Arrangements
	 	 	62	 
	 

	 	Section 7.9
	 	Tax Matters
	 	 	63	 
	 

	 	Section 7.10
	 	Section 16(b) Matters
	 	 	66	 
	 

	 	Section 7.11
	 	Further Action
	 	 	67	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII CONDITIONS TO THE MERGER	 	 	67	 
	 

	 	Section 8.1
	 	Conditions to the Obligations of Each Party to Effect the Merger
	 	 	67	 
	 

	 	Section 8.2
	 	Additional Conditions to Obligations of Buyer and MergerCo
	 	 	67	 
	 

	 	Section 8.3
	 	Additional Conditions to Obligations of the Company
	 	 	69	 
	 
	 	 	 	 	 	 	 	 





ii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE IX SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION	 	 	71	 
	 

	 	Section 9.1
	 	Survival
	 	 	71	 
	 

	 	Section 9.2
	 	Buyer/MergerCo Indemnification
	 	 	71	 
	 

	 	Section 9.3
	 	Company Indemnification
	 	 	72	 
	 

	 	Section 9.4
	 	Limitations
	 	 	72	 
	 

	 	Section 9.5
	 	Notice; Defense of Claims
	 	 	74	 
	 

	 	Section 9.6
	 	Agreed Claims
	 	 	75	 
	 

	 	Section 9.7
	 	Remedies Exclusive
	 	 	76	 
	 

	 	Section 9.8
	 	Treatment of Indemnity Payments
	 	 	76	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X TERMINATION	 	 	76	 
	 

	 	Section 10.1
	 	Termination
	 	 	76	 
	 

	 	Section 10.2
	 	Effect of Termination
	 	 	78	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI STOCKHOLDERS’ REPRESENTATIVE	 	 	78	 
	 

	 	Section 11.1
	 	Appointment
	 	 	78	 
	 

	 	Section 11.2
	 	Authorization
	 	 	78	 
	 

	 	Section 11.3
	 	Agency
	 	 	79	 
	 

	 	Section 11.4
	 	Indemnification and Exculpation
	 	 	79	 
	 

	 	Section 11.5
	 	Access to Information
	 	 	80	 
	 

	 	Section 11.6
	 	Reasonable Reliance
	 	 	80	 
	 

	 	Section 11.7
	 	Orders
	 	 	80	 
	 

	 	Section 11.8
	 	Removal of Stockholders’ Representative; Authority of Stockholders’
Representative
	 	 	81	 
	 

	 	Section 11.9
	 	Expenses of the Stockholders’ Representative
	 	 	81	 
	 

	 	Section 11.10
	 	Irrevocable Appointment
	 	 	81	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII GENERAL PROVISIONS	 	 	82	 
	 

	 	Section 12.1
	 	Notices
	 	 	82	 
	 

	 	Section 12.2
	 	Disclosure Schedules
	 	 	83	 
	 

	 	Section 12.3
	 	Entire Agreement; No Third Party Beneficiaries
	 	 	83	 
	 

	 	Section 12.4
	 	Assignment
	 	 	84	 
	 

	 	Section 12.5
	 	Severability
	 	 	84	 
	 

	 	Section 12.6
	 	Interpretation
	 	 	84	 
	 

	 	Section 12.7
	 	Fees and Expenses
	 	 	84	 
	 

	 	Section 12.8
	 	Choice of Law/Consent to Jurisdiction
	 	 	84	 
	 

	 	Section 12.9
	 	Amendment
	 	 	85	 
	 

	 	Section 12.10
	 	Extension; Waiver
	 	 	85	 
	 

	 	Section 12.11
	 	Conflicts and Privilege
	 	 	85	 
	 

	 	Section 12.12
	 	Mutual Drafting
	 	 	86	 
	 

	 	Section 12.13
	 	Specific Performance
	 	 	86	 
	 

	 	Section 12.14
	 	Miscellaneous
	 	 	86	 






iii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	ANNEXES	 	 	 	 
	 

	 	Annex A
	 	List of Defined Terms	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	EXHIBITS	 	 	 	 
	 

	 	Exhibit A
	 	Form of Stockholder Written Consent	 	 	 	 
	 

	 	Exhibit B
	 	Form of Registration Rights Agreement	 	 	 	 
	 

	 	Exhibit C
	 	Form of Escrow Agreement	 	 	 	 
	 

	 	Exhibit D
	 	Form of Certificate of Incorporation of Surviving Corporation	 	 	 	 
	 

	 	Exhibit E
	 	Form of 16(b) Resolution	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	DISCLOSURE SCHEDULES	 	 	 	 
	 

	 	2.2(a)
	 	Company Stock Plans	 	 	 	 
	 

	 	2.11
	 	Employee Stockholders	 	 	 	 
	 

	 	4.1(a)
	 	Existence; Good Standing; Authority	 	 	 	 
	 

	 	4.2(a)
	 	Capitalization	 	 	 	 
	 

	 	4.2(b)
	 	Company Options	 	 	 	 
	 

	 	4.3(a)
	 	Company Subsidiaries	 	 	 	 
	 

	 	4.3(b)
	 	Subsidiaries Good Standing	 	 	 	 
	 

	 	4.4(a)
	 	No Conflicts	 	 	 	 
	 

	 	4.4(b)
	 	Consents	 	 	 	 
	 

	 	4.4(c)
	 	Claims	 	 	 	 
	 

	 	4.5(a)
	 	Company Financial Statements	 	 	 	 
	 

	 	4.5(b)
	 	Indebtedness and Liabilities	 	 	 	 
	 

	 	4.6
	 	Absence of Certain Changes	 	 	 	 
	 

	 	4.7(a)
	 	Litigation	 	 	 	 
	 

	 	4.8
	 	Taxes	 	 	 	 
	 

	 	4.9(a)(1)
	 	Employee Benefit Plans	 	 	 	 
	 

	 	4.9(a)(2)
	 	Employee Benefit Plans (Company Non-U.S. Plans)	 	 	 	 
	 

	 	4.9(a)(3)
	 	Employee Benefit Plans (ERISA Affiliates)	 	 	 	 
	 

	 	4.9(e)
	 	Employee Benefit Plans (Changes in Benefit Plans)	 	 	 	 
	 

	 	4.9(f)
	 	Employee Benefit Plans (Change of Control Consequences)	 	 	 	 
	 

	 	4.10(a)
	 	Owned Real Property	 	 	 	 
	 

	 	4.10(b)
	 	Leased Real Property	 	 	 	 
	 

	 	4.10(c)
	 	Tangible Real Property	 	 	 	 
	 

	 	4.11(a)
	 	Labor and Employment Matters	 	 	 	 
	 

	 	4.11(c)
	 	UK Employees	 	 	 	 
	 

	 	4.12
	 	Contracts	 	 	 	 
	 

	 	4.13(b)
	 	Intellectual Property Licenses	 	 	 	 
	 

	 	4.13(c)
	 	Registered Intellectual Property	 	 	 	 
	 

	 	4.13(d)
	 	Intellectual Property — Unregistered and Common Law Marks	 	 	 	 
	 

	 	4.13(f)
	 	Intellectual Property (Developed)	 	 	 	 
	 

	 	4.13(h)
	 	Intellectual Property — Potential Infringements	 	 	 	 
	 

	 	4.13(i)
	 	Confidential Information	 	 	 	 
	 

	 	4.14(a)
	 	Company Licensed/Proprietary Software	 	 	 	 






iv









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	4.14(b)
	 	Open Source Software	 	 	 	 
	 

	 	4.15
	 	Environmental Matters	 	 	 	 
	 

	 	4.16
	 	Insurance Policies	 	 	 	 
	 

	 	4.18
	 	Compliance with Laws	 	 	 	 
	 

	 	4.19(a)
	 	Governmental Permits	 	 	 	 
	 

	 	4.19(b)
	 	Government Regulation	 	 	 	 
	 

	 	4.19(i)
	 	Broker-Dealer Registration	 	 	 	 
	 

	 	4.20
	 	Books and Records	 	 	 	 
	 

	 	4.21
	 	Related Party Transactions	 	 	 	 
	 

	 	4.23
	 	Anti Money Laundering Policies and Procedures	 	 	 	 
	 

	 	4.24(c)
	 	Knowledge of the Company	 	 	 	 
	 

	 	6.1
	 	Conduct of the Business Prior to Closing	 	 	 	 
	 

	 	7.8(b)
	 	Benefit Plans	 	 	 	 
	 

	 	8.1(c)
	 	Governmental Consents	 	 	 	 
	 

	 	8.2(f)(i)
	 	United States Employees	 	 	 	 
	 

	 	8.2(f)(ii)
	 	United Kingdom Employees	 	 	 	 
	 

	 	8.2(g)
	 	Contract Consents	 	 	 	 








v









 








AGREEMENT AND PLAN OF MERGER




     THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of June 3, 2008, is by
and among IntercontinentalExchange, Inc., a Delaware corporation (“Buyer”), Columbia Merger
Corporation, a Delaware corporation (“MergerCo”), Creditex Group Inc., a Delaware
corporation (the “Company”), and TA Associates, Inc., solely in the capacity of
Stockholders’ Representative and only for the express purposes provided for herein and for no other
purpose (the “Stockholders’ Representative”). An index of defined terms used in this
Agreement is attached as Annex A hereto.



     WHEREAS, Buyer and the Company wish to effect a business combination through a merger (the
“Merger”) of MergerCo with and into the Company on the terms and conditions set forth in
this Agreement and in accordance with the Delaware General Corporation Law, as amended (the
“DGCL”);



     WHEREAS, it is intended that (a) the Merger shall qualify as a “reorganization” within the
meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the
“Code”), and the rules and regulations promulgated thereunder, by virtue of the provisions
of Section 368(a)(2)(E) of the Code, (b) this Agreement shall constitute a plan of reorganization
for purposes of Section 354 and 361 of the Code, and (c) that each of Buyer, MergerCo and the
Company shall be a “party to a reorganization” within the meaning of Section 368(b) of the Code;



     WHEREAS, the Board of Directors of the Company (the “Company Board”) has approved this
Agreement, the Merger and the other transactions contemplated by this Agreement and determined that
this Agreement and the Merger are advisable and in the best interest of the Company and its
stockholders;



     WHEREAS, the respective Boards of Directors of Buyer and MergerCo have determined that this
Agreement, the Merger and the other transactions contemplated by this Agreement are in the best
interest of Buyer and MergerCo, respectively;



     WHEREAS, immediately following the execution and delivery of this Agreement, the Company shall
use commercially reasonable efforts to obtain from all of its stockholders an irrevocable and
unconditional action by written consent adopting this Agreement and approving the Merger,
substantially in the form attached hereto as Exhibit A (the “Stockholder Written
Consent”); and



     WHEREAS, concurrently with the execution and delivery of this Agreement, Buyer shall enter
into a Registration Rights Agreement, substantially in the form attached hereto as Exhibit
B (the “Registration Rights Agreement”), with certain Stockholders of the Company, and
Buyer shall enter into an Escrow Agreement, substantially in the form attached hereto as
Exhibit C (the “Escrow Agreement”), with the Stockholders’ Representative,



     NOW THEREFORE, in consideration of the mutual agreements and covenants herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:



 









 





ARTICLE I




THE MERGER




     Section 1.1 The Merger. Subject to the terms and conditions of this Agreement and in
accordance with the DGCL, at the Effective Time (as defined in Section 1.2), the Company and
MergerCo shall consummate the Merger pursuant to which (a) MergerCo shall be merged with and into
the Company and the separate corporate existence of MergerCo shall thereupon cease, (b) the Company
shall be the surviving corporation in the Merger (the “Surviving Corporation”) and shall
continue to be governed by the Laws of the State of Delaware, and (c) the separate corporate
existence of the Company with all its rights, privileges, immunities, powers and franchises shall
continue unaffected by the Merger. The Merger shall have the effects specified in the DGCL.



     Section 1.2 Effective Time. On the Closing Date (as defined in Section 1.4), MergerCo
and the Company shall duly execute a certificate of merger (the
“Certificate of Merger”)
and file such Certificate of Merger with the Secretary of State of the State of Delaware in
accordance with the DGCL. The Merger shall become effective upon the later of: (a) the date and
time of the filing of the Certificate of Merger with the Secretary of State of the State of
Delaware and (b) such later date and time as may be specified in the Certificate of Merger with the
consent of Buyer and the Company (the “Effective Time”).



     Section 1.3 Certificate of Incorporation and By-Laws. The certificate of
incorporation of the Company, as in effect immediately prior to the Effective Time, shall be
amended pursuant to the Merger to read in its entirety as set forth in Exhibit D hereto,
and as so amended shall be the certificate of incorporation of the Surviving Corporation until
thereafter amended, restated, repealed or otherwise modified as provided by Law or the terms of
such certificate of incorporation. The by-laws of MergerCo, as in effect immediately prior to the
Effective Time, shall be the by-laws of the Surviving Corporation until thereafter amended as
provided by Law, by the terms of the certificate of incorporation of the Surviving Corporation and
by the terms of such by-laws.



     Section 1.4 Closing. The closing of the Merger (the “Closing”) shall occur as
promptly as practicable (but in no event later than the third (3rd) Business Day (as
defined below) following the day on which the last to be satisfied or waived of the conditions set
forth in Article VIII (other than those conditions which by their nature are required to be
satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the
Closing) shall have been satisfied or waived in accordance with this Agreement), and shall take
place at such time and on a date to be specified by the parties (the actual date of such Closing,
the “Closing Date”). The Closing shall take place at the offices of Goodwin Procter LLP
(“Goodwin”), 620 Eighth Avenue, New York, NY 10018, or at such other place as agreed to by
the parties hereto. “Business Day” means any day other than a day on which the office of
the Secretary of State of the State of Delaware is closed or banks in New York, New York are
required to close.



     Section 1.5 Directors and Officers. The directors of MergerCo immediately prior to
the Effective Time shall, from and after the Effective Time, be the initial directors of the



2









 




Surviving Corporation, and the officers of the Surviving Corporation immediately prior the
Effective Time shall, from and after the Effective Time, be the initial officers of the Surviving
Corporation, in each case to hold office until their successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in accordance with the
certificate of incorporation and by-laws of the Surviving Corporation, and the DGCL.



ARTICLE II




EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS




     Section 2.1 Effect on Capital Stock. As of the Effective Time, by virtue of the
Merger and without any action on the part of the holders of any shares of the Company Stock (as
defined in Section 2.1(e)(v)) (each a “Stockholder,” and collectively, the
“Stockholders”) or any shares of the capital stock of MergerCo:


          (a) MergerCo Shares. Each share of common stock, par value $0.01 per share, of
MergerCo issued and outstanding immediately prior to the Effective Time shall be converted into one
fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving
Corporation.


          (b) Cancelled Shares. Each share of Company Stock that is owned by the Company, by
Buyer or by MergerCo shall automatically be cancelled and retired and shall cease to exist, and no
cash or other consideration shall be delivered or deliverable in exchange therefor.


          (c) Company Common Stock. Each share of the Company’s Common Stock, par value $.001
per share (the “Common Stock”), issued and outstanding immediately prior to the Effective
Time (other than shares to be cancelled in accordance with Section 2.1(b), the Company Restricted
Stock (as defined in Section 2.2(b)), and any Dissenting Shares (as defined in Section 3.3(a)) will
be converted into, subject to this Article II and the last sentence of Section 3.2(c), the right to
receive (i) subject to Section 2.10 and Section 2.11, that number of shares of Common Stock, par
value $.01 per share, of the Buyer (“Buyer Stock”), equal to the Common Stock Merger
Consideration per Share (as defined in Section 2.1(e)(iv)) and (ii) a contingent right to receive
(x) in the event that the Final Closing Adjustment is a positive amount as provided in Section
2.5(d), the portion of such Final Closing Adjustment to be delivered in respect of a share of
Common Stock in the form and at the time determined pursuant to Section 2.5(d), (y) each time, if
at all, there is a release and distribution to the Stockholders of Escrow Shares and Escrow Cash
from the Escrow Funds, the portion of such Escrow Shares and Escrow Cash to be delivered in respect
of a share of Common Stock in the form and at the times determined pursuant to the Escrow
Agreement, and (z) in the event that there is a release and distribution of any amount held in the
Stockholders’ Representative Expense Fund, the portion of such distribution allocated in respect of
a share of Common Stock. Notwithstanding the foregoing, an Electing Employee Stockholder (as
defined in Section 2.11(a)) may, in respect of each share of Common Stock (other than shares
representing Company Restricted Stock) owned by such Electing Employee Stockholder, elect in lieu
of the Common Stock Merger



3









 







Consideration per Share provided for in clause (i) of the immediately preceding sentence, to
receive the Cash Consideration Per Share and the other contingent consideration described in
Section 2.11(a) in accordance with and subject to the terms and conditions of Section 2.11 and
Section 3.1 (such election, a “Cash Election”). As of the Effective Time, all such shares
of Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and
shall cease to exist, and each holder of a stock certificate which immediately prior to the
Effective Time represented any such shares of Common Stock (a “Common Stock Certificate”)
shall cease to have any rights with respect thereto, except the right to receive, upon the
surrender of such Common Stock Certificate or the delivery of an affidavit of loss in lieu thereof
as described in Section 3.2(d), the consideration per share set forth in this Section 2.1(c) at the
times set forth in this Section 2.1(c), subject to Section 2.10 and Section 2.11.


          (d) Company Preferred Stock. Each share of the Company’s Series A Convertible
Preferred Stock, par value $.001 per share (the “Series A Convertible Preferred Stock”),
the Company’s Series C Convertible Preferred Stock, par value $.001 per share (the “Series C
Convertible Preferred Stock,” and the Company’s Series D Convertible Preferred Stock, par value
$.001 per share (the “Series D Convertible Preferred Stock, and together with the Series A
Convertible Preferred Stock and the Series C Convertible Preferred Stock, the “Convertible
Preferred Stock”), issued and outstanding immediately prior to the Effective Time (other than
shares to be cancelled in accordance with Section 2.1(b) and any Dissenting Shares) will be
converted into, subject to this Article II and the last sentence of Section 3.2(c), the right to
receive (i) subject to Section 2.10, that number of shares of Buyer Stock equal to the product of
(A) the Common Stock Merger Consideration per Share multiplied by (B) the total number of
shares of Common Stock (including fractional shares) into which such share of Convertible Preferred
Stock is, as of the Effective Time, convertible pursuant to the terms of the Company’s Certificate
of Incorporation (as defined in Section 4.1(a)) (as applicable to such share of Convertible
Preferred Stock, the “Conversion Ratio”) (the product of (A) the Common Stock Merger
Consideration per Share multiplied by (B) the applicable Conversion Ratio is hereinafter
sometimes referred to as the “Preferred Stock Merger Consideration per Share” of such
shares of Convertible Preferred Stock) and (ii) a contingent right to receive (x) in the event that
the Final Closing Adjustment is a positive amount as provided in Section 2.5(d), (A) the portion of
such Final Closing Adjustment to be delivered in respect of a share of Common Stock
multiplied by (B) the applicable Conversion Ratio, in the form and at the time determined
pursuant to Section 2.5(d), (y) each time, if any, there is a release and distribution to the
Stockholders of Escrow Shares and Escrow Cash from the Escrow Funds, (A) the portion of such Escrow
Shares and Escrow Cash to be delivered in respect of a share of Common Stock multiplied by
(B) the applicable Conversion Ratio, in the form and at the times determined pursuant to the Escrow
Agreement, and (z) in the event that there is a release and distribution of any amount held in the
Stockholders’ Representative Expense Fund, (A) the portion of such distribution allocated in
respect of a share of Common Stock multiplied by (B) the applicable Conversion Ratio. As
of the Effective Time, all such shares of Convertible Preferred Stock shall no longer be
outstanding and shall automatically be cancelled and retired and shall cease to exist, and each
holder of a stock certificate which immediately prior to the Effective Time represented any such
shares of Convertible Preferred Stock (a “Convertible Preferred Stock Certificate”) shall
cease to have any rights with respect thereto, except the right to receive, upon the surrender of
such Convertible Preferred Stock Certificate or the delivery of an affidavit of loss in lieu
thereof as described in



4









 







Section 3.2, the applicable consideration per share set forth in this Section 2.1(d) at the
times set forth in this Section 2.1(d), subject to Section 2.1(d).


          (e) Certain Definitions. For purposes of this Agreement:




      (i) “Aggregate Merger Consideration” shall mean the sum of the
aggregate merger consideration provided for in Section 2.1(c) with respect to shares
of Common Stock issued and outstanding immediately prior to the Effective Time
plus the aggregate merger consideration provided for in accordance with
Section 2.1(d) with respect to shares of Convertible Preferred Stock issued and
outstanding immediately prior to the Effective Time.




      (ii) “Aggregate Promissory Note Proceeds” shall mean an amount, as
certified by the Chief Financial Officer of the Company, equal to the aggregate
outstanding principal amount and accrued interest as of immediately prior to the
Effective Time of all promissory notes in favor of the Company, which were delivered
to the Company by Stockholders as payment for shares of Company Stock.




      (iii) “Closing Price” shall mean the average of (A) the average per
share closing prices of Buyer Stock as reported on the New York Stock Exchange, Inc.
composite transactions reporting system (as reported in the Eastern Edition of The
Wall Street Journal or, if not reported thereby, another authoritative source) for
the eight (8) consecutive full trading days ending on the first (1st) Business Day
prior to the date hereof, and (B) the average per share closing prices of Buyer
Stock as reported on the New York Stock Exchange, Inc. composite transactions
reporting system (as reported in the Eastern Edition of The Wall Street Journal or,
if not reported thereby, another authoritative source) for the eight (8) consecutive
full trading days ending on the fifth (5th) Business Day prior to the Closing.




      (iv) “Common Stock Merger Consideration per Share” shall mean a number
of shares of Buyer Stock equal to the Net Merger Consideration divided by
the Fully Diluted Shares Outstanding, rounded to six decimal points.




      (v) “Company Stock” shall mean any shares of Common Stock and
Convertible Preferred Stock of the Company.




      (vi) “Escrow Funds per Share” shall mean (A) 7.5% multiplied by
the amount of Net Merger Consideration that is the result of the calculations
described in subsections (A) through (L) of Section 2.1(e)(xv), divided by
(B) the Fully Diluted Shares Outstanding, rounded to six decimal points.




      (vii) “Estimated Reference Date Balance Sheet” shall mean the unaudited
consolidated balance sheet of the Company and its Subsidiaries as of the close of
business on March 31, 2008, prepared in accordance with GAAP and on a basis
consistent with the accounting practices and policies used to prepare the Company’s
Financial Statements.



5









 






     (viii) “Estimated Reference Date Cash Amount” shall mean the aggregate
amount of cash and cash equivalents (excluding Restricted Cash) of the Company and
its Subsidiaries as of the close of business on March 31, 2008, as reflected on the
Estimated Reference Date Balance Sheet (provided, that for purposes of such
calculation, only 50.1% of the cash and cash equivalents held by QW Holdings, LLC
shall be included).




     (ix) “Estimated Reference Date Stockholders’ Equity” shall mean the
amount of the Company’s Stockholders’ Equity as of the close of business on March
31, 2008, which calculation shall be based on the Estimated Reference Date Balance
Sheet, as set forth on a certificate delivered by the Company to Buyer on the date
of this Agreement.




     (x) “Estimated Stockholders’ Equity Adjustment” shall mean an amount
equal to the Estimated Closing Date Stockholders’ Equity (as defined in Section
2.5(a)) minus the Estimated Reference Date Stockholders’ Equity.




     (xi) “Fully Diluted Shares Outstanding” shall mean the sum, as
certified by the Chief Financial Officer of the Company, of (A) the number of shares
of Common Stock issued and outstanding immediately prior to the Effective Time
(excluding all shares of Company Restricted Stock and, if the Closing Date occurs
after the ninetieth (90th) day following the date of this Agreement, all
shares that would have been Company Restricted Stock but for the lapse of forfeiture
restrictions (as a result of vesting) subsequent to the date that is ninety (90)
days after the date of this Agreement but prior to the Closing Date), plus
(B) the number of shares of Common Stock issuable upon exercise of all Vested
Company Options that remain outstanding immediately prior to the Effective Time,
plus (C) the number of shares of Common Stock issuable upon conversion of
all issued and outstanding Convertible Preferred Stock immediately prior to the
Effective Time.




     (xii) “GAAP” shall mean U.S. generally accepted accounting principles,
as applied on a consistent basis.




     (xiii) “Indebtedness for Borrowed Money” shall mean an amount equal to
the sum of:




     (A) the outstanding principal and accrued and unpaid interest (as well
as prepayment, breakage and similar charges payable) under that certain
Amended and Restated Senior Secured Revolving Credit Agreement, dated as of
November 22, 2006, as amended and restated as of July 31, 2007, by and among
the Company, the Lenders named therein and JPMorgan Chase Bank, N.A., as
Administrative Agent; and




     (B) any other indebtedness for money borrowed by the Company or any
Subsidiary of the Company, any indebtedness for money borrowed that is
secured by the assets of or in any manner by the



6









 






Company or any Subsidiary of the Company, and all accrued and unpaid
interest or fees, penalties or other amounts due with respect to any of the
foregoing.




     (xiv) “Merger Consideration” shall mean an amount equal to
$625,000,000.




     (xv) “Net Merger Consideration” shall mean the number of shares of
Buyer Stock equal to the result of the calculations described in (A) through (M)
below, divided by the Closing Price: (A) the Merger Consideration,
plus (B) the Estimated Reference Date Cash Amount, plus (C) to the
extent that the Company has received the written consents provided for in Section
3.2(c) to reduce the number of shares of Buyer Stock and/or the cash amount to be
received by certain affected Stockholders, the portion of Aggregate Promissory Note
Proceeds attributable to the holders of such notes who have provided such consents,
plus (D) if the Estimated Stockholders’ Equity Adjustment is a positive
number, the amount of the Estimated Stockholders’ Equity Adjustment, plus
(E) the lesser of (i) the sum of the Company’s investment cost for all of its equity
interests in Trade Settlement, Inc. and The Clearing Corporation and (ii) the sum of
the fair market value of such equity interests as of close of business on March 31,
2008 as established pursuant to Section 2.5(a) (to the extent such equity interests
are not sold by the Company prior to the Closing), minus (F) the amount of
Indebtedness for Borrowed Money outstanding as of the close of business on March 31,
2008, minus (G) the amount of the Company Transaction Expenses (as defined
in Section 2.4) accrued as of March 31, 2008, minus (H) if the Estimated
Stockholders’ Equity Adjustment is a negative number, the absolute value of such
Estimated Stockholders’ Equity Adjustment, minus (I) the deferred revenue of
the Company and its Subsidiaries as of the close of business on March 31, 2008,
minus (J) the sum of the “Second Payment” and the “Tax Amount” (each as
defined in the Agreement and Plan of Merger among the Company, ICE Merger Sub Inc.,
CreditTrade Inc., ICG Holdings, Inc. dated as of July 24, 2006) relating to the
Company’s CreditTrade acquisition as of the close of business on March 31, 2008,
minus (K) the amount of the accounts receivable of the Company and its
Subsidiaries that are more than one hundred and twenty (120) days past due and
uncollected as of the close of business on March 31, 2008, minus (L) the
Expense Amount deposited into the Stockholder’s Representative Expense Fund pursuant
to Section 2.6, minus (M) an amount equal to 7.5% of Nominal Net Merger
Consideration.




     (xvi) “Nominal Net Merger Consideration” shall mean the
amount that is equal to the result of the calculations described in subsections (A)
through (K) of Section 2.1(e)(xv).




     (xvii) “Option Exchange Consideration” shall mean that number (rounded
to six decimal points) of shares of Buyer Stock as is determined by the Company
Board equal to the sum of (A) the Common Stock Merger



7









 






Consideration per Share and (B) the value (measured in shares of Buyer Stock)
of the payments per Share that may be released and distributed pursuant to subclause
(ii)(y) of Section 2.1(c) determined immediately prior to the Effective Time (after
giving effect to any discount for amounts that may not be released and distributed
pursuant to subclause (y) of Section 2.1(c)). This value determination by the
Company Board shall be based on a valuation report provided by a nationally
recognized independent third party appraisal firm; provided,
however, that if the Company Board cannot obtain such a valuation report
after using its reasonable best efforts to secure such a valuation report, after
consultation with Buyer, the Company Board may make such determination in its
reasonable good faith discretion taking into account all facts and circumstances. It
is understood and agreed that the Option Exchange Consideration shall under no
circumstances (1) be less than the amount of the Common Stock Merger Consideration
per Share or (2) exceed the sum of (x) the Common Stock Merger Consideration per
Share and (y) the Escrow Funds per Share.




     (xviii) “Pro Rata Portion” shall mean, with respect to a Stockholder,
the quotient obtained by dividing (A) the aggregate number of shares of
Common Stock held by such Stockholder as of immediately prior to the Effective Time
(assuming the conversion of all outstanding shares of Convertible Preferred Stock
immediately prior to the Effective Time), but excluding all Forfeited Shares (as
defined in Section 2.2(b)) of such Stockholder as of the relevant date that Pro Rata
Portion is calculated, by (B) the aggregate number of shares of Common Stock held by
all Stockholders as of immediately prior to the Effective Time (assuming the
conversion of all outstanding shares of Convertible Preferred Stock immediately
prior to the Effective Time), but excluding all Forfeited Shares of all Stockholders
as of the relevant date that Pro Rata Portion is calculated.




     (xix) “Restricted Cash” shall mean the sum of all cash security
deposits and cash required to collateralize outstanding letters of credit, in each
case, as required by any real property lease agreement which the Company or any of
its Subsidiaries is a lessee or sublessee under.




     (xx) “Stockholders’ Equity” shall mean the consolidated stockholders’
equity of the Company and the Subsidiaries as of a particular date, calculated based
on the applicable balance sheet for such date in accordance with GAAP;
provided, that notwithstanding the foregoing, if at the Effective Time (A)
the Company has purchased and paid for the D&O Tail Policy referred to in Section
7.7(c), then Stockholders’ Equity shall be increased by the amount paid for such
policy, but not to exceed the amount of the Premium Limit or (B) the Company has
purchased but not paid for such D&O Tail Policy, then the accrual relating to the
cost for such policy, not to exceed the amount of the Premium Limit, shall be
disregarded for purposed of calculating Stockholders’ Equity.




     (xxi) “Stock Plan” shall mean any plan, agreement or arrangement
providing for the issuance of Common Stock, or any rights of any kind,



8









 







contingent or accrued, to acquire or receive shares of Common Stock or benefits
measured by the value of shares of Common Stock.




     (xxii) “Subsidiary” shall mean any corporation more than one-half (50%)
of whose outstanding voting securities, or any partnership, joint venture or other
entity more than one-half (50%) of whose total equity interest, is directly or
indirectly owned by Buyer or the Company, as the case may be.



     Section 2.2 Company Stock Options and Related Matters.


          (a) Treatment of Options.




     (i) Company Options. The Company currently has outstanding options to
purchase shares of Common Stock granted under the Stock Plans listed on Schedule
2.2(a), and each option which is outstanding and vested on or prior to the date
which is the earlier of (i) ninety (90) days after the date of this Agreement and
(ii) the Closing Date shall be deemed to be “Vested Company Option” for all
purposes of this Agreement, and any such option which is outstanding but unvested on
or prior to the date which is the earlier of (i) ninety (90) days after the date of
this Agreement and (ii) the Closing Date shall be deemed to be an “Unvested
Company Option” for all purposes of this Agreement. The aggregate Unvested
Company Options and the aggregate Vested Company Options shall sometimes be referred
to, collectively, as the “Company Options,” and each individually, a
“Company Option”. For purposes of this Agreement, a holder of Vested
Company Options shall be referred to as a “Vested Optionholder,” and the
holders of Company Options shall be referred to as “Optionholders”.




     (ii) Assumption of Company Options. At the Effective Time, each
outstanding Company Option under the Stock Plans listed on Schedule 2.2(a)
shall be converted into an option to acquire the number of shares of Buyer Stock
(the “New Option”) equal to the product of (rounded down to the nearest
whole number) (x) the number of shares of Common Stock subject to the Company Option
immediately prior to the Effective Time multiplied by (y) the Option
Exchange Consideration, at an exercise price per share (rounded up to the nearest
whole cent) equal to (A) the exercise price per share of Common Stock of such
Company Option immediately prior to the Effective Time divided by (B) the
Option Exchange Consideration; provided, however, that the exercise
price applicable and the number of shares of Common Stock purchasable pursuant to
each New Option shall be determined in a manner consistent with the requirements of
Sections 409A and 424(a) of the Code. Following the Effective Time, each New Option
shall continue to be governed by the same terms and conditions (including vesting
schedule, reacquisition rights and repurchase rights) as were applicable to the
applicable Company Option immediately prior to the Effective Time, including but not
limited to terms contained in any Notice of Grant, Stock Option Agreement, Stock
Issuance Agreement or Stock Purchase Agreement, as appropriate, applicable to such
Unvested Company Option. For



9









 






the avoidance of doubt, the foregoing conversion of Company Options shall be
deemed to be an assumption of such option by Buyer and an assignment of the
Company’s repurchase rights with respect thereto, if applicable, as contemplated by
the Company’s Stock Plans.


          (b) Company Restricted Stock. At the Effective Time, each outstanding share of Common
Stock subject to any vesting restrictions, repurchase rights or forfeiture rights, that may be
held, awarded, outstanding, payable or reserved for issuance under the Stock Plans (the
“Company Restricted Stock”), shall be converted into the right to receive the number of
shares of Buyer Stock equal to the product of (x) the number of shares of Company Restricted Stock
multiplied by (y) the Common Stock Merger Consideration per Share (“Buyer Restricted
Stock”). Following the Effective Time, each such share of Buyer Restricted Stock will be
subject to the same terms and conditions as were applicable to the rights under the relevant Stock
Plan and Company Restricted Stock agreement immediately prior to the Effective Time, and any
vesting restrictions, repurchase rights or forfeiture rights will remain applicable to such share
of Buyer Restricted Stock and will be assigned to Buyer as applicable. Each such share of Company
Restricted Stock shall also be converted into the contingent right to share in and receive,
following the Closing Date at the applicable time of payment, to the extent that such share of
Buyer Restricted Stock has not previously been forfeited, (x) in the event that the Final Closing
Adjustment is a positive amount as provided in Section 2.5(d), the portion of such Final Closing
Adjustment to be delivered in respect of a share of Common Stock in the form and at the time
determined pursuant to Section 2.5(d), (y) each time, if at all, there is a release and
distribution to the Stockholders of Escrow Shares and Escrow Cash from the Escrow Funds, the
portion of such Escrow Shares and Escrow Cash to be delivered in respect of a share of Common Stock
in the form and at the times determined pursuant to the Escrow Agreement, and (z) in the event that
there is a release and distribution of any amount held in the Stockholders’ Representative Expense
Fund, the portion of such distribution allocated in respect of a share of Common Stock. For
purposes of this Agreement, the shares of Company Restricted Stock that have been converted into
Buyer Restricted Stock and that have been forfeited following such conversion are collectively
referred to in this Agreement as “Forfeited Shares”. After the Closing and not less than
five (5) Business Days prior to the date any contingent merger consideration may be paid to the
Stockholders as contemplated in Section 2.1(c) hereof, or otherwise promptly following the
reasonable request of the Stockholders’ Representative, the Buyer shall provide the Stockholders’
Representative with a schedule of all recipients of Buyer Restricted Stock, which schedule shall
evidence a true and correct statement on the portion of each recipient’s Buyer Restricted Stock
that have become Forfeited Shares, if any.


          (c) Other Incentive Plan Awards. At the Effective Time, each award outstanding under
the T-Zero Long-Term Incentive Plan (“T-Zero LTIP Awards”) will remain outstanding and will
remain subject to the same terms and conditions as were applicable to the T-Zero LTIP Awards
immediately prior to the Effective Time. At the Effective Time, each award outstanding under the
Q-Wixx Long-Term Incentive Plan (“Q-Wixx LTIP Awards”) will remain outstanding and will
remain subject to the same terms and conditions as were applicable to the Q-Wixx LTIP Awards
immediately prior to the Effective Time.



10









 







          (d) Corporate Actions. At or prior to the Effective Time, the Company, the Board of
Directors and the compensation committee, as applicable, shall adopt any resolutions and take any
actions which are necessary to effectuate the provisions of Section 2.2(a) and Section 2.2(b),
including without limitation determining the Option Exchange Consideration amount and making any
associated amendments, interpretations or valuations.


          (e) No Right to Acquire Shares. The Company shall take all actions necessary to
ensure that from and after the Effective Time neither Buyer nor the Surviving Corporation will be
required to deliver Common Stock or other capital stock of the Company to any Person pursuant to or
in settlement of Company Options, shares of Company Restricted Stock or any similar rights.



     Section 2.3 Payments at Closing for Indebtedness. As of the Closing Date, Buyer and
MergerCo shall provide sufficient funds to the Surviving Corporation to enable the Surviving
Corporation to repay all Indebtedness for Borrowed Money then outstanding. The Company shall, not
less than two (2) Business Days prior to the Closing, secure payoff letters with respect to all
such outstanding Indebtedness for Borrowed Money. Buyer and MergerCo will cooperate in arranging
for such repayment and shall take such reasonable actions as may be necessary to facilitate such
repayment and to facilitate the release, in connection with such repayment, of any Encumbrance
securing such Indebtedness for Borrowed Money.



     Section 2.4 Payments at Closing for Expenses. At the Closing, Buyer shall cause the
Surviving Corporation to pay all outstanding fees and expenses of the Company, its Subsidiaries and
the Stockholders’ Representative in connection with the negotiation and the consummation of the
transactions contemplated by this Agreement, including, without limitation, those expenses which
are payable to Goodwin and to Evercore Partners Inc., and which have not been paid on or prior to
the Closing Date. All such fees and expenses, whether paid on or prior to the Closing Date, shall
be hereinafter referred to as the “Company Transaction Expenses”.



     Section 2.5 Closing and Post-Closing Adjustments.


          (a) At least two (2) Business Days prior to the Closing Date, the Company shall deliver to
Buyer (i) an estimated unaudited consolidated balance sheet of the Company and its Subsidiaries as
of the close of business on the Closing Date (the “Estimated Closing Balance Sheet”)
prepared in accordance with GAAP and on a basis consistent with the accounting practices and
policies used in the preparation of the Company’s Financial Statements, together with a certificate
based on such Estimated Closing Balance Sheet setting forth the Company’s calculation of its
Stockholders’ Equity as of such date (the “Estimated Closing Date Stockholders’ Equity”),
(ii) to the extent that the Company’s equity interests in Trade Settlement, Inc. and The Clearing
Corporation have not been sold by the Company prior to the Closing, independent appraisals or other
documentation sufficient to establish to the reasonable satisfaction of Buyer the sum of the fair
market value of such equity interests as of close of business on March 31, 2008, and (iii) a
certificate setting forth the Company’s calculation of the amount of the accounts receivable of the
Company and its Subsidiaries that are more than one hundred and twenty (120) days past due and
uncollected as of the close of business on March 31, 2008. At the Closing, the Net Merger
Consideration shall be calculated to give effect to any



11









 







increase or decrease in the Company’s Stockholders’ Equity from the close of business on March
31, 2008 through the Closing as provided in Section 2.1(e)(xv) and the related definitions.


          (b) As promptly as practicable, but no later than one hundred and twenty (120) days after the
Closing Date, Buyer will cause to be prepared and delivered to the Stockholders’ Representative a
proposed final consolidated balance sheet of the Company and its Subsidiaries as of the close of
business on March 31, 2008 (the “Reference Date Balance Sheet”) and on the Closing Date
(the “Closing Balance Sheet”), and a certificate based on such Reference Date Balance Sheet
and Closing Balance Sheet setting forth Buyer’s calculation of the Company’s Stockholders’ Equity
as of the close of business on March 31, 2008 (the “Reference Date Stockholders’ Equity”)
and on the Closing Date (the “Closing Date Stockholders’ Equity,” and together with the
Reference Date Balance Sheet, the Closing Balance Sheet and the Reference Date Stockholders’
Equity, the “True-up Statement”). Each of the Reference Date Balance Sheet and the Closing
Balance Sheet (i) shall be prepared in accordance with GAAP applied on a basis that is consistent
with the preparation of the Company’s Financial Statements, including, without limitation, the use
of the same accounting principles, practices, procedures, policies and methods, with consistent
classifications, judgments, inclusions, exclusions and valuation and estimation methodologies, that
were employed in the preparation of the Estimated Reference Date Balance Sheet, and (ii) shall
include the same line items reflected in the Estimated Reference Date Balance Sheet. The
Stockholders’ Representative shall have thirty (30) days following its receipt of the True-up
Statement and all supporting documentation requested by it (the “Review Period”) to review
the same. On or before the expiration of the Review Period, the Stockholders’ Representative shall
deliver to Buyer a written statement accepting or objecting to the True-up Statement. In the event
that the Stockholders’ Representative objects to the True-up Statement, such objection shall
include an itemization of the Stockholders’ Representative’s disputed items and the reasons
therefor. If the Stockholders’ Representative does not deliver an objection to Buyer within the
Review Period, the Stockholders’ Representative shall be deemed to have accepted the True-up
Statement, and the calculations set forth therein shall be final and binding for purposes of making
the adjustments to merger consideration, if any, as contemplated below.


          (c) In the event that the Stockholders’ Representative objects to the True-up Statement within
the Review Period, Buyer and the Stockholders’ Representative shall promptly meet and in good faith
attempt to resolve such objections. Any such objections which cannot be resolved between Buyer and
the Stockholders’ Representative within thirty (30) days following Buyer’s receipt of the
Stockholders’ Representative’s statement of objections shall be resolved in accordance with this
Section 2.5(c). Should the Stockholders’ Representative and Buyer not be able to resolve such
objections as may be raised with respect to the True-up Statement within the thirty (30) day period
described above, either party may submit the matter to a firm of independent certified public
accountants as to which the Company and Buyer shall mutually agree prior to the Closing Date, (the
“Accounting Referee”) for review and resolution, with instructions to complete the same as
promptly as practicable, but in any event within thirty (30) days of its engagement, and to make
any calculations strictly in accordance with the accounting methodologies and principles provided
for in this Agreement. If following the Closing Date the agreed Accounting Referee is unwilling or
unable to act in this role, the Stockholders’ Representative and Buyer shall cooperate and work
together in good faith to mutually agree



12









 







another firm of certified public accountants or another reputable and experienced firm or
person to act in this role. Based solely on such accounting methodologies and principles, and the
presentations provided to the Accounting Referee by each of Buyer and the Stockholders’
Representative, the Accounting Referee shall prepare and deliver to Buyer and the Stockholders’
Representative a statement setting forth its own calculations of the Company’s Reference Date Cash
Amount, the Reference Date Stockholders’ Equity and the Closing Date Stockholders’ Equity, which
calculations, absent manifest error, shall be binding and conclusive on the parties and not subject
to appeal. The Accounting Referee shall be instructed that in making its determination, it shall
make revised calculations only with respect to those items or amounts which are in dispute between
Buyer and the Stockholders’ Representative and, further, it must select a position with respect to
any such disputed items or amounts that is equal to the final position of Buyer or the final
position of the Stockholders’ Representative, or in between the final position of Buyer and the
final position of the Stockholders’ Representative. No appeal of the Accounting Referee’s
determination shall be permitted, except in the event of manifest error or a failure by the
Accounting Referee to comply with the principles and methods set forth in this Agreement. The fees
and costs of the Accounting Referee, if one is required, shall be payable (i) fifty percent (50%)
out of the Stockholders’ Representative Expense Fund (as defined in Section 2.6), on the one hand,
and (ii) fifty percent (50%) by Buyer, on the other hand.


          (d) In the event that the Final Closing Adjustment (as defined below) is a negative amount,
the parties shall cause the Escrow Agent to release to Buyer (out of the Escrow Funds) the number
of Escrow Shares (rounded to the nearest whole number) and Escrow Cash having an aggregate value
equal to the absolute value of the Final Closing Adjustment (as determined in accordance with the
Escrow Agreement). In the event that the Final Closing Adjustment is a positive amount then,
subject to Section 2.9 hereof, Buyer shall deliver to the Exchange Agent (as defined in Section
3.2(a)) the number of shares of Buyer Stock (rounded to the next whole number) or, with respect to
the entitlements of Non-Accredited Investors and Electing Employee Stockholders among the
Stockholders, cash in lieu thereof (in the case of an Electing Employee Stockholder, in the same
proportion that the cash received by him or her represents to the aggregate merger consideration
received by such Electing Employee Stockholder), having an aggregate value equal to such Final
Closing Adjustment (as determined in accordance with the Escrow Agreement), and the Exchange Agent
shall distribute such shares or cash proportionally to the Stockholders based on each such
Stockholder’s Pro Rata Portion of such Final Closing Adjustment, subject to all applicable federal,
state and local Tax withholdings. Any delivery, release or distribution made under this Section
2.5(d) shall be made within five (5) Business Days of the final determination of the True-up
Statement. Such additional shares of Buyer Stock and cash, if any, are intended to be treated for
Tax purposes as consideration for the Company Stock purchased by Buyer in the Merger and shall be
treated as such consideration (subject to any requirement to treat a portion as imputed interest)
for all Tax purposes except to the extent otherwise required by a final determination of a Taxing
Authority. For purposes of this Section 2.5(d), the terms used herein shall be defined as follows:




     (i) “Closing Date Stockholders’ Equity Adjustment” shall mean an amount
equal to (i) the Closing Date Stockholders’ Equity, minus (ii) the Reference
Date Stockholders’ Equity, in each case, as finally determined in accordance with
the provisions of this Section 2.5 above.



13









 






     (ii) “Final Cash Adjustment” shall mean an amount equal to (i) the
aggregate amount of the Company’s and its Subsidiaries’ cash and cash equivalents as
of the close of business on March 31, 2008, as reflected on the Reference Date
Balance Sheet (as finally determined in accordance with the provisions of this
Section 2.5 above), minus (ii) the Estimated Reference Date Cash Amount.




     (iii) “Final Closing Adjustment” shall mean an amount equal to the sum
of (i) the Final Stockholders’ Equity Adjustment, plus (ii) the Final Cash
Adjustment.




     (iv) “Final Stockholders’ Equity Adjustment” shall mean an amount equal
to (i) the Closing Date Stockholders’ Equity Adjustment, minus (ii) the
Estimated Stockholders Equity Adjustment.


          (e) The parties hereto agree that normal algebraic principles shall be applied in the case of
all calculations to be made under this Agreement. By way of example, in the event this Agreement
called for a calculation that involved the subtraction of a negative amount, such calculation would
result in the addition of the absolute value of such negative amount. For illustration purposes
only, the equation below would be computed as follows:


(A) negative $10,000,000, minus (B) negative $2,000,000 = negative $8,000,000.



     Section 2.6 Expense Amount. Notwithstanding anything herein to the contrary, at the
Closing Buyer shall deliver into an account designated by the Stockholder’s Representative (the
“Stockholders’ Representative Expense Fund”) an amount in cash equal to $205,000 (the
“Expense Amount”). The Stockholders’ Representative Expense Fund shall be held, and may be
used at any time, by the Stockholders’ Representative to fund any expenses incurred by it in the
performance of its duties and obligations hereunder, including but not limited to, those duties and
obligations listed in Section 11.2. The Stockholders’ Representative Expense Fund will be held by
the Stockholders’ Representative until the date on which no Escrow Shares or Escrow Cash remain in
the Escrow Funds. Any portion of the Stockholders’ Representative Expense Fund remaining after
such date shall be paid by the Stockholders’ Representative to each Stockholder based on such
Stockholder’s Pro Rata Portion. All of the obligations to administer and maintain the
Stockholders’ Representative Expense Fund (and the amounts held in the Stockholders’ Representative
Expense Fund), and to distribute amounts out of the Stockholders’ Representative Expense Fund,
shall be borne exclusively by Stockholders’ Representative out of the Stockholders’ Representative
Expense Fund. None of Buyer, MergerCo or the Company shall have any obligation or liability of any
nature whatsoever with respect to the administration and maintenance of the Stockholders’
Representative Expense Fund or the distribution of any amounts out of the Stockholders’
Representative Expense Fund.



     Section 2.7 Escrow Funds. Immediately following the Effective Time, Buyer shall
deliver to the custody of The Bank of New York Mellon Corporation (the “Escrow Agent”),
without any act of the Stockholders, the following:



14









 






     (i) a number of Shares of Buyer Stock (such shares, the “Escrow
Shares”), rounded to the nearest whole number, equal to the following product:
(A) 7.5% multiplied by (B) the Nominal Net Merger Consideration
multiplied by (C) a fraction, the numerator of which is the Nominal Net
Merger Consideration, minus the amounts of cash paid pursuant to Section
2.10 and Section 2.11 in lieu of Buyer Stock that would have otherwise been
delivered pursuant to clause (i) of Section 2.1(c) and clause (i) of Section 2.1(d),
and the denominator of which is the Nominal Net Merger Consideration; and




     (ii) an amount in cash (such cash, the “Escrow Cash”) equal to the
following product: (A) 7.5% multiplied by (B) the Nominal Net Merger
Consideration multiplied by (C) the Closing Price multiplied by (D)
a fraction, the numerator of which is the cash paid pursuant to Section 2.10 and
Section 2.11 in lieu of shares of Buyer Stock that would have otherwise been
delivered pursuant to clause (i) of Section 2.1(c) and clause (i) of Section 2.1(d)
and the denominator of which is the Nominal Net Merger Consideration.



          The Escrow Shares and the Escrow Cash shall comprise the “Escrow Funds”, which shall
be held by the Escrow Agent pursuant to, and shall be governed by, the terms of the Escrow
Agreement to be entered into by and among Buyer, the Stockholders’ Representative and the Escrow
Agent. The Escrow Funds shall be held in escrow and shall be available to settle certain
contingencies as provided in Section 2.5 and compensate the Buyer Indemnified Parties for any
Losses suffered or incurred by them and for which they are entitled to recovery under Article IX of
this Agreement, and will be allocated among and released and distributed to the Stockholders and/or
Buyer in accordance with the Escrow Agreement (the Escrow Shares and Escrow Cash released or
distributed from the Escrow Funds to the Stockholders under this Agreement, if any, being the
“Released Escrow Consideration”). The Released Escrow Consideration is intended to be
treated for Tax purposes as consideration for the Company Stock purchased by Buyer from the
Stockholders in the Merger and shall be treated as such consideration (subject to any requirement
to treat a portion as imputed interest) for all Tax purposes except to the extent otherwise
required by a final determination of a Governmental Body. Notwithstanding anything to the contrary
in this Agreement, Buyer makes no representations or warranties to the Company or the Stockholders
regarding the Tax treatment of the transactions contemplated in this Agreement or any of the Tax
consequences to any Stockholders relating to those transactions. Each of the Company and each
Stockholder must rely solely on his, her or its own Tax advisors in connection with such
transactions. No Stockholder may, directly or indirectly, sell, exchange, transfer or otherwise
dispose of his, her or its right to receive any portion of the Escrow Funds (except by will or by
operation of the Laws of intestate succession). Any such purported sale, exchange, transfer or
disposition shall be null and void.



     Section 2.8 Other Adjustments. The Aggregate Merger Consideration, as well as any New
Options issuable to holders of Company Options and shares of Buyer Stock issuable to holders of
Company Restricted Stock, shall be adjusted to reflect fully the effect of any stock split, reverse
split, stock dividend (including any dividend or distribution of securities convertible into shares
of Buyer Stock or Company Stock), reorganization, recapitalization or



15









 




other like change with respect to Buyer Stock or Company Stock occurring after the date hereof
and prior to the Effective Time.



     Section 2.9 Fractional Shares. Notwithstanding anything herein to the contrary, no
fractional shares of Buyer Stock shall be issued to any Person in the Merger. In lieu thereof,
each Person entitled to a fraction of a share of Buyer Stock (after taking into account all
Certificates surrendered by such Person in accordance with Section 3.1 and Section 3.2, the
aggregate number of shares of Company Stock represented thereby and any Company Options held by
such Person immediately prior to the Effective Time) shall receive, at the time that the merger
consideration provided for in Section 2.1(c), Section 2.1(d) or Section 2.2(b), as applicable, is
delivered to such Person, an amount in cash equal to the Closing Price multiplied by the fraction
of a share of Buyer Stock to which such Person otherwise would be entitled. No such Person shall
be entitled to dividends, voting rights, interest on the value of, or any other rights in respect
of a fractional share. Fractional shares shall be determined on an aggregate basis for each Person
and not on a per share or per Certificate basis.



     Section 2.10 Private Placement; Non-Accredited Investors.


          (a) The parties understand and agree that the Aggregate Merger Consideration is intended to be
issued and transferred as contemplated in this Agreement pursuant to a “private placement” exempt
from registration under the Securities Act of 1933, as amended (the “Securities Act”) by
virtue of Regulation D thereof. The shares of Buyer Stock comprising the Aggregate Merger
Consideration will be characterized as “restricted securities” under the Securities Act and,
consequently, such shares may not be resold within first being registered under the Securities Act,
unless they are sold pursuant to an exemption therefrom. Any book entries recording the record
ownership of shares of Buyer Stock (it being understood and agreed by the parties that the Buyer
Stock is uncertificated) shall bear such annotations as Buyer may reasonably deem necessary and
desirable in connection therewith. Each party represents and warrants to the other parties that, as
of the Closing Date, assuming the truth of the representations and warranties made herein, such
party has taken no action without the prior written consent of the other parties hereto that would
cause the issuance and transfer of the Aggregate Merger Consideration to become subject to the
registration requirements of the Securities Act.


          (b) Notwithstanding any other provision hereof, the shares of Buyer Stock comprising the
Aggregate Merger Consideration shall only be issued to Accredited Investors. Each Stockholder to
whom shares of Buyer Stock are issued in the Merger shall make to Buyer in writing all such
representations and warranties as may be reasonably required by Buyer in connection therewith. No
shares of Buyer Stock shall be issued in the Merger to a Non-Accredited Investor. In lieu thereof,
a Non-Accredited Investor shall be entitled, upon surrender of the Certificate or Certificates
representing (i) such Person’s Common Stock, to receive (A) at the Effective Time an amount in cash
for each share held by such Person equal to the Common Stock Merger Consideration per Share
provided for in clause (i) of Section 2.1(c) multiplied by the Closing Price and (B)
thereafter, the contingent right to receive the consideration provided for in clauses (x), (y) and
(z) of Section 2.1(c), provided that if any such consideration would consist of Buyer
Stock, such Person will receive instead an amount in cash in lieu thereof equal



16









 







to the number of shares of Buyer Stock such Person would have received multiplied by
the Closing Price and (ii) such Person’s Convertible Preferred Stock, to receive (A) at the
Effective Time an amount in cash for each share of Preferred Convertible Stock held by such Person
equal to the applicable Preferred Stock Merger Consideration per Share provided for in clause (i)
of Section 2.1(d) multiplied by the Closing Price and (B) thereafter, the contingent right
to receive the consideration provided for in clauses (x), (y) and (z) of Section 2.1(d),
provided that if any such consideration would consist of Buyer Stock, such Person will
receive instead an amount in cash in lieu thereof equal to the number of shares of Buyer Stock such
Person would have received multiplied by the Closing Price. For the purposes of this
Agreement, “Non-Accredited Investor” means a Person who is not an Accredited Investor, and
“Accredited Investor” means a Person that is an “accredited investor” as such term is
defined in Rule 501 promulgated under the Securities Act, or would otherwise be excluded under Rule
501(e)(1) under the Securities Act from any calculation of the number of purchasers of shares of
Buyer Stock in the Merger; provided, that Buyer shall have a sole and absolute discretion
to determine whether each such Stockholder is an Accredited Investor or a Non-Accredited Investor
for the purposes of this Agreement.



     Section 2.11 Cash Election.


          (a) Notwithstanding any other provision of this Agreement, as acknowledged in Section 2.1(c),
any holder of Common Stock as of the Effective Time that is not a Non-Accredited Investor and who
is listed on Schedule 2.11 may elect, in respect of some or all of the shares of Common
Stock (excluding shares of Company Restricted Stock) held by him or her to convert each such share
of Common Stock into (i) the right to receive an amount in cash equal to the Common Stock Merger
Consideration per Share multiplied by the Closing Price, without interest (the “Cash
Consideration Per Share”) in lieu of the Common Stock Merger Consideration per Share provided
for in clause (i) of Section 2.1(c), subject to the terms and conditions of this Section 2.11 and
Section 3.1 (the “Cash Election” referenced in Section 2.1(c)) and (ii) the contingent right to
receive the consideration provided for in clauses (x), (y) and (z) of Section 2.1(c), which
amounts, if any, would be payable in cash. Each such holder of Common Stock that is eligible to
make a Cash Election is hereinafter referred to as an “Electing Employee Stockholder”. In
order to qualify for the Cash Election, an Electing Employee Stockholder must make a valid election
as provided for in Section 3.1 and not revoke such election within the time period provided in
Section 3.1.


          (b) The maximum aggregate amount of cash payable in respect of all Cash Elections shall not
exceed the lesser of (i) $50,000,000 and (ii) the maximum amount of cash that may be paid in
respect of Cash Elections, when considered together with (x) all other cash that may be paid as
part of the merger consideration under this Agreement and (y) all cash that may be paid in respect
of Dissenting Shares, that would still allow Buyer to acquire control (within the meaning of
section 368(c) of the Code) of the Company with the remainder of the Aggregate Merger Consideration
that consists of Buyer Stock (the lesser of (i) and (ii), the “Maximum Cash
Consideration”). If the total number of shares of Common Stock with respect to which Cash
Elections have been validly made and not revoked would require aggregate cash payments in excess of
the Maximum Cash Consideration, then each Electing Employee Stockholder who has made a Cash
Election shall be entitled to maintain such Cash Election with respect to an amount



17









 







equal to the lesser of (i) the amount of such Electing Employee Stockholder’s Cash Election,
or (ii) an amount equal to the Electing Employee Stockholder’s pro rata portion (as described
below) of the Maximum Cash Consideration, and with respect to those Electing Employee Stockholders
who have made Cash Elections in amounts in excess of their respective Pro Rata Portions of the
Maximum Cash Consideration (an “Oversubscription Amount”), the Oversubscription Amounts of
such Electing Employee Stockholders shall be reduced, pro rata (based on stock ownership relative
to other Electing Employee Stockholders with Oversubscription Amounts), until the aggregate Cash
Elections for all Electing Employee Stockholders equals the Maximum Cash Consideration. All shares
of Common Stock for which a valid Cash Election has been made, but which cannot be converted into
cash as a result of the limitations described above, shall instead be converted into the right to
receive the Common Stock Merger Consideration per Share and contingent consideration described in
Section 2.1(c).



ARTICLE III




EXCHANGE FOR SHARES; DISSENTING SHARES




     Section 3.1 Cash Election Procedure.


          (a) As soon as reasonably practicable following the date of this Agreement, the Company and
Buyer shall agree upon a form of election to be used in connection with a Cash Election (the
“Form of Election”). The Form of Election shall permit an Electing Employee Stockholder to
specify the number of shares of Common Stock (other than Company Restricted Stock) held by him or
her with respect to which such Electing Employee Stockholder makes a Cash Election and shall
otherwise be in such form and contain such provisions as the Company and Buyer shall mutually agree
and consistent with this Agreement. The Company shall deliver the Form of Election to those of its
Stockholders that are Electing Employee Stockholders as soon as reasonably practicable following
agreement as to its form and content, and use commercially reasonable endeavors to deliver the Form
of Election together with the Information Statement to be delivered by the Company pursuant to
Section 7.1(b).


          (b) Any Cash Election shall be properly made by an Electing Employee Stockholder only if the
Company shall have received at its designated office, on or before the Election Deadline, a Form of
Election properly completed and signed. For purposes of this Agreement, “Election Deadline”
means 5:00 p.m., Eastern Standard Time, on the date that is sixty (60) days after the date the Form
of Election is mailed to the Electing Employee Stockholders (or on such other date as the parties
hereto mutually agree).


          (c) A properly made Cash Election may be revoked with respect to all or any portion of the
shares of Common Stock subject thereto (but only in whole share amounts) by the Electing Employee
Stockholder who submitted the applicable Form of Election submitting to the Company a written
notice of such revocation received by the Company at or prior to the Election Deadline. In
addition, all Cash Elections shall automatically be revoked if this Agreement is terminated in
accordance with its terms.



18









 







          (d) The Company shall promptly provide copies of all Forms of Election received by the Company
pursuant to this Section 3.1 to Buyer. The good faith determination of the Company and Buyer shall
be conclusive and binding as to whether or not Cash Elections shall have been properly made or
revoked pursuant to this Section 3.1 and as to when Forms of Election and notices of revocation
were received by the Company pursuant to this Section 3.1. The Company and Buyer shall have
reasonable discretion to disregard immaterial defects in the Forms of Election. The Company and
Buyer shall jointly make all computations as to the proration contemplated by Section 2.11 and,
absent manifest error, such computations shall be conclusive and binding on the parties and all
holders of Company Stock.



     Section 3.2 Exchange for Shares of Buyer Stock or Cash.


          (a) As soon as practicable following the date of this Agreement and in any event not less than
fifteen (15) Business Days before the Closing Date, Buyer shall appoint Computershare Trust
Company, N.A. or such other national exchange agent, bank or trust company as is reasonably
acceptable to the Company (the “Exchange Agent”) to act as exchange agent for the purposes
of this Agreement. At the Effective Time, Buyer shall (i) deposit with the Exchange Agent, for the
benefit of the holders of shares of Company Stock outstanding immediately prior to the Effective
Time, such Buyer Stock as represents the portion of the Net Merger Consideration payable in shares
of Buyer Stock and the portion of the Net Merger Consideration consisting of cash payable pursuant
to Section 2.10 and Section 2.11 (such cash, together with the deposited Buyer Stock, the
“Exchange Fund”), and (ii) deposit with the Escrow Agent the amount of Escrow Cash and the
number of Escrow Shares to be deposited into the Escrow Funds pursuant to Section 2.7 hereof.
Subject to Section 2.5, Buyer shall also deposit in the Exchange Fund such additional shares of
Buyer Stock, if any, as may be issuable pursuant to Section 2.5(d). The Exchange Agent shall,
pursuant to irrevocable instructions, make the payments and distributions provided for in this
Section 3.2 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose,
except as provided in this Agreement.


          (b) As soon as reasonably practicable following the date of this Agreement and in any event
not less than five (5) Business Days before the Closing Date, Buyer shall cause the Exchange Agent
to make available upon request a form of letter of transmittal reasonably acceptable to the Company
(which shall specify that delivery shall be effected, and risk of loss and title to the Common
Stock Certificates and the Convertible Preferred Stock Certificates (each, “Certificates”)
shall pass, only upon proper delivery of the Certificates to the Exchange Agent, and which shall
include all such representations and warranties as may be reasonably required by Buyer in
connection with a Stockholder’s qualification as an Accredited Investor) and instructions for use
in effecting the surrender of a Certificate in exchange for, subject to Section 2.10 and Section
2.11, the merger consideration provided for in Section 2.1(c), Section 2.1(d) or Section 2.2(b), as
applicable, with respect to each share formerly represented by such Certificate. As soon as
reasonably practicable after the Effective Time, Buyer shall, or shall cause the Surviving
Corporation to, cause the Exchange Agent to mail to each record holder, as of the Effective Time,
of an outstanding Certificate, who has not previously submitted a duly executed letter of
transmittal, such form of letter of transmittal and instructions.



19









 







          (c) Upon the surrender of a Certificate (or an affidavit of loss in lieu of such Certificate
as provided in Section 3.2(d)) to the Exchange Agent in accordance with the terms of the letter of
transmittal and instructions provided by the Exchange Agent, the holder of such Certificate shall
be entitled to receive in exchange therefor (i) subject to Section 2.10 and Section 2.11, the
merger consideration provided for in Section 2.1(c), Section 2.1(d) or Section 2.2(b), as
applicable (after giving effect to required Tax withholdings as provided in Section 3.2(f)) that
such holder is entitled to receive pursuant to this Agreement and (ii) a check in the amount (after
giving effect to required Tax withholdings as provided in Section 3.2(f), including with respect to
the entitlements of Non-Accredited Investors to cash in lieu of any shares of Buyer Stock) of (A)
any cash in lieu of fractional shares thereof plus (B) any unpaid non-stock dividends and
any other dividends or other distributions that such holder has the right to receive pursuant to
this Agreement, and the Certificate so surrendered shall forthwith be cancelled. No interest will
be paid or accrued on any amount payable upon due surrender of a Certificate. If a delivery or
payment is to be made to a Person other than the Person in whose name a Certificate surrendered is
registered, it shall be a condition of delivery or payment that the Certificate so surrendered
shall be properly endorsed or otherwise in proper form for transfer and delivered to the Exchange
Agent with all documents required to evidence and effect such transfer and that the Person
requesting such delivery or payment pay any transfer or other Taxes required by reason of the
delivery or payment to a Person other than the registered holder of the Certificate surrendered or
establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not
applicable. All shares of Buyer Stock to be issued pursuant to the Merger (including the Escrow
Shares) shall be deemed issued and outstanding as of the Effective Time and whenever a dividend or
other distribution is declared by Buyer in respect of Buyer Stock, the record date for which is at
or after the Effective Time, that declaration shall include dividends or other distributions in
respect of all shares issuable pursuant to this Agreement. No dividends or other distributions in
respect of Buyer Stock shall be paid to any holder of any unsurrendered Certificate until such
Certificate (or an affidavit of loss in lieu of the Certificate as provided in Section 3.2(d)) is
surrendered for exchange in accordance with this Section 3.2. Subject to the effect of applicable
Laws, following surrender of any such Certificate (or affidavits of loss in lieu of the Certificate
as provided in Section 3.2(d)), there shall be issued and/or paid to the holder of the whole shares
of Buyer Stock issued in exchange therefor, without interest, (x) at the time of such surrender,
the dividends or other distributions with a record date after the Effective Time theretofore
payable with respect to such whole shares of Buyer Stock and not paid and (y) at the appropriate
payment date, the dividends or other distributions payable with respect to such whole shares of
Buyer Stock with a record date after the Effective Time but with a payment date subsequent to
surrender. Until surrendered as contemplated by this Section 3.2(c), each Certificate (other than
Certificates representing shares of Company Stock to be cancelled in accordance with Section 2.1(b)
and Dissenting Shares) shall at any time after the Effective Time represent solely the right to
receive upon such surrender, subject to Section 2.10 and 2.11, the merger consideration provided
for in Section 2.1(c), Section 2.1(d) or Section 2.2(b), as applicable, allocable to the shares
represented by such Certificate, as contemplated by Article II and this Article III.
Notwithstanding any provision of this Agreement to the contrary, the number of shares of Buyer
Stock comprised in the portion of the Aggregate Merger Consideration to be received by any
Stockholder pursuant to the Merger, and/or any cash amount to be received by each Stockholder
pursuant to this Agreement (with such Buyer Stock being valued at the Closing Price), shall be
reduced by the outstanding principal and accrued interest



20









 







payable by such Stockholder to the Company pursuant to the terms of such Stockholder’s
promissory notes in favor of the Company, and the Company shall deliver to Buyer at least five (5)
Business Days prior to the Closing a schedule providing correct and complete details of all such
promissory notes and all such amounts payable by any Stockholder as of the Closing;
provided, that such Stockholder has delivered to the Company prior to the Closing a written
consent, in form reasonably satisfactory to Buyer, authorizing such reduction.


          (d) If any Certificate shall have been lost, stolen or destroyed, upon the making and delivery
of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or
destroyed, the Exchange Agent will deliver in exchange for such lost, stolen or destroyed
Certificate, subject to Section 2.10 and Section 2.11, the merger consideration provided for in
Section 2.1(c), Section 2.1(d) or Section 2.2(b), as applicable, with respect to the shares
formerly represented thereby. No Stockholder shall be required to deliver any bond or other
security in connection with the delivery of an affidavit as contemplated by this Section 3.2(d).


          (e) To the extent permitted by applicable Law, none of Buyer, MergerCo, the Company, the
Surviving Corporation or the Exchange Agent shall be liable to any Person in respect of any Common
Stock Consideration per Share or Preferred Stock Merger Consideration per Share or any cash amounts
to be paid in lieu thereof from the Exchange Fund properly delivered to a public official pursuant
to any applicable abandoned property, escheat or similar Law. If any Certificate shall not have
been surrendered prior to six (6) months after the Effective Time, any such shares, cash, dividends
or distributions in respect of such Certificate shall, to the extent permitted by applicable Law,
become the property of the Surviving Corporation, free and clear of all claims or interest of any
Person previously entitled thereto.


          (f) Each of the Exchange Agent, the Surviving Corporation, Stockholders’ Representative and
Buyer shall deduct and withhold from any amounts payable or consideration deliverable by them
pursuant to this Agreement to any holder of Company Stock, such amounts or such consideration as
are required to be withheld by them with respect to the making of such payment or delivery of such
consideration under the Code and the rules and regulations promulgated thereunder, or any provision
of United States federal, state or local Tax Laws. To the extent that amounts or consideration are
so withheld, such withheld amounts (or the cash equivalent of such consideration) shall be (i)
remitted by the Exchange Agent, the Surviving Corporation, Stockholders’ Representative or Buyer,
as the case may be, to the applicable governmental agency and (ii) treated for all purposes of this
Agreement as having been paid or delivered to the holder of the Company Stock in respect of which
such deduction and withholding was made.


          (g) All the merger consideration provided for in Section 2.1(c), Section 2.1(d) or Section
2.2(b), as applicable, or cash paid in lieu thereof in accordance with this Agreement, paid upon
the surrender of a Certificate in accordance with the terms of this Article III shall be deemed to
have been paid in full satisfaction of all rights pertaining to the shares of Company Stock
formerly represented by such Certificate. At the Effective Time, the stock transfer books of the
Company shall be closed and no further registration of transfers of shares shall thereafter be made
on the records of the Company. If, after the Effective Time, Certificates are presented



21









 







to the Surviving Corporation for transfer, they shall be cancelled and exchanged for the
merger consideration provided for in Section 2.1(c), Section 2.1(d) or Section 2.2(b), as
applicable, or cash paid in lieu thereof, as provided in this Article III, subject to applicable
Law in the case of Dissenting Shares.


          (h) The Exchange Agent shall invest any cash included in the Exchange Fund as directed by
Buyer in direct obligations of the U.S. Treasury, on a daily basis. Any interest and other income
resulting from such investments shall be the property of and will be promptly paid to Buyer. If
for any reason (including losses) the cash in the Exchange Fund shall be insufficient to fully
satisfy all of the payment obligations to be made by the Exchange Agent hereunder, Buyer shall
promptly deposit cash into the Exchange Fund in an amount that is equal to the deficiency in the
amount of cash required to fully satisfy such payment obligations.


          (i) Promptly following the date that is thirty (30) months after the Effective Time, the
Exchange Agent shall deliver to the Surviving Corporation all cash, Certificates and other
documents in its possession relating to the Merger. Any former Stockholders who have not complied
with this Section 3.2 prior to the end of such thirty (30) month period shall thereafter look only
to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) for
payment of their claim for the merger consideration provided for in Section 2.1(c), Section 2.1(d)
or Section 2.2(b), as applicable, or any cash or cash paid in lieu thereof, without any interest
thereon. If any Certificates shall not have been surrendered immediately prior to the date that
such unclaimed funds would otherwise become subject to any abandoned property, escheat or similar
Law unclaimed funds payable with respect to such Certificates shall, to the extent permitted by
applicable Law, become the property of Surviving Corporation, free and clear of all claims or
interest of any Person previously entitled thereto.



     Section 3.3 Appraisal Rights.


          (a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock
that are issued and outstanding immediately prior to the Effective Time and that are held by
Stockholders who, in accordance with Section 262 of the DGCL (the “Appraisal Rights
Provisions”) (i) have not consented in the Stockholder Written Consent (as defined in the
Recitals) to adopt and approve this Agreement and (ii) shall have demanded properly in writing on
or before the Demand Date appraisal for such shares and complied in all respects with the Appraisal
Rights Provisions and (iii) shall not have effectively withdrawn, lost or failed to perfect their
rights to appraisal (collectively, the “Dissenting Shares”), will not be converted as
described in Section 2.1, but at the Effective Time, by virtue of the Merger and without any action
on the part of the holder thereof, shall be cancelled and shall cease to exist and shall represent
the right to receive only those rights provided under the Appraisal Rights Provisions;
provided, however, that all shares of Company Stock held by Stockholders who shall
have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of
such shares of Company Stock under the Appraisal Rights Provisions shall thereupon be deemed to
have been cancelled and retired and to have been converted, as of the Effective Time, into the
right to receive, subject to Section 2.10 and Section 2.11, the merger consideration provided for
in Section 2.1(c), Section 2.1(d) or Section 2.2(b), as applicable, or any cash in lieu of
fractional shares, without interest, in the manner provided in Article II. For purposes of this
Agreement,



22









 







the “Demand Date” shall be the twentieth (20th) day after the date of the
mailing by the Company to the Stockholder of notice of the approval of the Merger and of such
Stockholder’s rights to appraisal in accordance with the Appraisal Rights Provisions. Persons who
have perfected statutory rights with respect to Dissenting Shares as aforesaid will not be paid by
the Surviving Corporation as provided in this Agreement and will have only such rights as are
provided by the Appraisal Rights Provisions with respect to such Dissenting Shares. The Company
shall give Buyer and MergerCo prompt notice of any demands received by the Company for the exercise
of appraisal rights with respect to shares of Company Stock and Buyer shall have the right to
participate in all negotiations and proceedings with respect to such demands. The Company shall
not, except with the prior written consent of Buyer (which consent may be withheld by Buyer for any
reason whatsoever or for no reason, in Buyer’s sole and absolute discretion), make any payment with
respect to, or settle or offer to settle, any such demands.


          (b) Each dissenting Stockholder who becomes entitled under the Appraisal Rights Provisions to
payment for Dissenting Shares shall receive payment therefor after the Effective Time from the
Surviving Corporation (but only after the amount thereof shall have been agreed upon or finally
determined pursuant to the Appraisal Rights Provisions), and such shares of Company Stock shall be
cancelled.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF THE COMPANY



          The Company hereby makes to Buyer and MergerCo the representations and warranties contained in
this Article IV.



     Section 4.1 Existence; Good Standing; Authority.


          (a) The Company is a corporation duly incorporated, validly existing and in good standing
under the Laws of the State of Delaware. The Company has all requisite corporate power and
authority to own, operate and lease its properties and assets and carry on its business as
currently conducted. The Company is duly licensed or qualified to do business as a foreign
corporation under the Laws of each jurisdiction listed on Schedule 4.1(a) and each other
jurisdiction in which the character of its properties or assets or in which the transaction of its
business makes such qualification necessary, except where the failure to be so licensed or
qualified, individually or in the aggregate, has not had and would not reasonably be expected to
result in a Company Material Adverse Effect (as defined below). The Company has made available to
Buyer’s counsel a complete and correct copy of the Company’s Amended and Restated Certificate of
Incorporation (the “Certificate of Incorporation”) and by-laws (the “By-laws”),
each as amended to date, and each of the Certificate of Incorporation and the By-laws is in full
force and effect and no amendments thereto are pending.


          For the purposes hereof, “Company Material Adverse Effect” means a material adverse
effect on the business, financial condition, assets, properties, liabilities or results of
operations of the Company and its Subsidiaries, taken as a whole; provided,
however, that none



23









 







of the following shall constitute, or will be considered in determining whether there has
occurred, a Company Material Adverse Effect: (i) any change, effect or circumstance that the
Company establishes was the proximate result of any action or omission of a party required under
this Agreement or the pendency or announcement of the transactions contemplated by this Agreement;
(ii) any effect arising from or relating to any change in GAAP or any change in applicable Laws
unrelated to the Merger, or the interpretation thereof, and of general applicability after the date
of this Agreement; (iii) any failure of the Company to meet any financial projection or forecast,
other than by reason of a breach or violation of any representation or warranty of the Company
pursuant to this Agreement (provided that for the avoidance of doubt, and as provided in Section
4.24, no representations or warranties are being made by the Company with respect to financial
projections or forecasts); and (iv) any change or development in economic, political, business or
credit derivative market conditions generally (whether as a result of acts of terrorism, war
(whether or not declared), armed conflicts or otherwise); provided, however, that (ii) and
(iv) above shall operate only to the extent that such effect, change or development does not affect
the Company and its Subsidiaries, taken as a whole, in a disproportionate manner.


          (b) The Company has all requisite corporate power and authority and has taken all corporate
action necessary in order to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby, subject only to receipt of the
Stockholder Written Consent from holders of Company Stock constituting (i) at least a majority of
the outstanding shares of the voting capital stock of the Company representing at least a majority
of the outstanding voting power of the Company and (ii) at least a majority of the outstanding
shares of the Series D Convertible Preferred Stock (collectively, the “Required Stockholder
Approval”). This Agreement has been duly executed and delivered by the Company and, assuming
the due authorization, execution and delivery of this Agreement by each of Buyer and MergerCo,
constitutes a legal, valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms.



     Section 4.2 Capitalization.


          (a) The authorized capital stock of the Company consists of (i) 382,630 shares of Series A
Convertible Preferred Stock, par value $.001 per share, of which 153,400 shares are issued and
outstanding; (ii) 2,000,000 shares of Series C Convertible Preferred Stock, par value $.001 per
share, of which 1,200,000 shares are issued and outstanding; (iii) 35,000,000 shares of Series D
Convertible Preferred Stock, par value $.001 per share, of which 19,035,560 shares are issued and
outstanding; and (iv) 65,000,000 shares of Common Stock, par value $.001 per share, of which
20,101,514 shares are issued and outstanding. All of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued, and are fully paid and
non-assessable. Schedule 4.2(a) sets forth a correct and complete list as of the date of
this Agreement of (i) the number of shares of Common Stock and Convertible Preferred Stock that
each current Stockholder of the Company holds of record, (ii) each outstanding Vested Company
Option, Unvested Company Option and share of Company Restricted Stock, including the holder, date
of grant exercise price (if applicable), number of shares of Common Stock subject thereto, number
of shares of Common Stock vested of such date, vesting schedule, the type of Company Option, share
of Company Restricted Stock and the Stock Plan under which such



24









 







Company Option or share of Company Restricted Stock was granted, and (iii) each outstanding
T-Zero LTIP Award and Q-Wixx LTIP Award (together, the “LTIP Awards”), including the
holder, date of grant exercise price (if applicable), number of shares of Common Stock (if
applicable) subject thereto, number of such LTIP Awards vested of such date, vesting schedule, the
type of LTIP Award the Stock Plan under which such LTIP Award was granted. Except as set forth on
Schedule 4.2(a), there are no outstanding subscriptions, options, warrants, commitments,
preemptive rights, deferred compensation rights, agreements, arrangements or commitments of any
kind to which the Company is a party relating to the issuance of, or outstanding securities
convertible into or exercisable or exchangeable for, any shares of capital stock of any class or
other equity interests of the Company. The Company does not have outstanding any bonds,
debentures, notes or other obligations the holders of which have the right to vote (or convertible
into or exercisable for securities having the right to vote) with the Stockholders on any matter.
Except as set forth on Schedule 4.2(a), there are no agreements to which the Company is a
party with respect to the voting of any shares of capital stock of the Company or which restrict
the transfer of any such shares. Except as set forth on Schedule 4.2(a), there are no
outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any
shares of capital stock, other equity interests or any other securities of the Company.


          (b) Each Company Option and share of Company Restricted Stock (i) was granted in compliance in
all material respects with all applicable Laws and all of the terms and conditions of the Stock
Plan pursuant to which it was issued, (ii) except as set forth on Schedule 4.2(b), has an
exercise price (if applicable) per share of Common Stock equal to or greater than the fair market
value of a share of Common Stock on the grant date, (iii) has a grant date identical to the date on
which the Company Board or compensation committee actually awarded such Company Option and share of
Company Restricted Stock, and (iv) qualifies for the Tax and accounting treatment afforded to such
Company Option and share of Company Restricted Stock in the Company’s Tax returns and the Company’s
Financial Statements, respectively, and (v) except as set forth on Schedule 4.2(b), is
exempt from Section 409A of the Code.



     Section 4.3 Subsidiaries.


          (a) The Company’s Subsidiaries are listed on Schedule 4.3(a). Except as set forth on
Schedule 4.3(a), the Company owns directly or indirectly all of the outstanding shares of
capital stock or other equity interest of each of the Company’s Subsidiaries. Except as set forth
on Schedule 4.3(a), neither the Company nor any of its Subsidiaries owns, directly or
indirectly, any capital stock, equity or other ownership interest in any other Person. Each of the
outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is
duly authorized, validly issued, fully paid and non-assessable.


          (b) Each of the Company’s Subsidiaries is an entity of the type set forth on Schedule
4.3(b), duly incorporated, organized or otherwise formed, validly existing and in good standing
under the Laws of its jurisdiction of organization and has all requisite corporate or similar power
and authority to own, operate and lease its properties and assets and to carry on its business as
currently conducted. Each such Subsidiary is duly licensed or qualified to do business as a
foreign corporation under the Laws of each jurisdiction listed on Schedule 4.3(b)



25









 







and each other jurisdiction in which the character of its properties or assets or in which the
transaction of its business makes such qualification necessary, except where the failure to be so
licensed or qualified, individually or in the aggregate, has not had and would not reasonably be
expected to result in a Company Material Adverse Effect. The Company has made available to Buyer’s
counsel a complete and correct copy of the organizational documents of each such Subsidiary, in
each case as amended to date, and each of those organizational documents is in full force and
effect and no amendments thereto are pending.



     Section 4.4 No Conflict; Consents.


          (a) Subject to the adoption and approval of the Merger by the Stockholders, the execution,
delivery and performance by the Company of this Agreement, and the consummation by the Company of
the transactions contemplated hereby in accordance with the terms hereof, will not, except as set
forth on Schedule 4.4(a), (i) violate, conflict with or result in a default (whether after
the giving of notice, lapse of time or both) under, give rise to a right of termination of or
acceleration of any obligations under or the creation of an Encumbrance on any of the assets of the
Company or any of its Subsidiaries pursuant to any agreement, lease, license, contract, note,
mortgage, indenture, arrangement or other obligation (each a “Contract”) to which the
Company or any of its Subsidiaries is a party or by which the Company’s or any of its Subsidiaries’
assets are bound, (ii) conflict with, or result in, any violation of any provision of the
Certificate of Incorporation or By-laws or the comparable organizational documents of any of the
Company’s Subsidiaries; or (iii) violate or result in a violation of, or constitute a default
(whether after the giving of notice, lapse of time or both) under, any provision of any Law, or any
order of, or any restriction imposed by, any court or other Governmental Body applicable to the
Company or any of its Subsidiaries, except, in the case of clauses (i) and (iii) of this Section
4.4(a), for any such conflicts, defaults, violations, terminations and any waivers if not obtained
that would not, individually or in the aggregate, reasonably be expected to result in a Loss that
would exceed $1,000,000 or otherwise reasonably be expected to result in a Company Material Adverse
Effect.


          (b) Except as set forth in Schedule 4.4(b), no notice, or report to, declaration or
filing with, or consent or approval of (i) any United States federal, state or local, or any
supra-national or non-U.S., government, political subdivision, governmental, regulatory or
administrative authority, instrumentality, agency body or commission, Self-Regulatory Organization,
court, tribunal or judicial or arbitral body, including the Securities and Exchange Commission (the
“SEC”), the Financial Industry Regulatory Authority, Inc. (“FINRA”) and the FSA
(each a “Governmental Body”), or (ii) any other third party pursuant to any Material
Contract, is required by or with respect to the Company or any of its Subsidiaries in connection
with the execution and delivery by the Company of this Agreement, and the performance by the
Company or any of its Subsidiaries under, or the consummation by the Company and its Subsidiaries
of the transactions contemplated by, this Agreement in accordance with the terms hereof, except
for: (A) the filing of a pre-merger notification and report form by the Company under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and the
expiration or termination of the applicable waiting period thereunder; and (B) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware. For purposes of this
Agreement, “Self-Regulatory Organization” shall mean any U.S. or foreign commission,



26









 







board, agency or body that is not a Governmental Body but is charged with the supervision or
regulation of brokers, dealers, securities underwriting or trading, stock exchanges, commodities
exchanges, ECNs, insurance companies or agents, investment companies or investment advisers.


          (c) Schedule 4.4(c) sets forth a correct and complete list of all claims currently
held by the Company or any of its Subsidiaries, as creditors or claimants, with respect to debtor
or debtor-in-possession subject to proceedings under Chapter 11 of Title 11 of the United States
Code, together with a correct and complete list of all orders entered by the applicable United
States Bankruptcy Court with respect to each such proceeding. None of such orders would,
individually or in the aggregate, reasonably be expected to involve $1,000,000 or more or otherwise
result in a Company Material Adverse Effect.



     Section 4.5 Financial Statements.


          (a) The Company has delivered to Buyer the following financial statements, copies of which are
attached hereto as Schedule 4.5(a) (collectively, the “Company’s Financial
Statements”):




     (i) the audited consolidated balance sheets of the Company and its Subsidiaries
as of December 31, 2006 and December 31, 2007, and consolidated statements of income
and cash flows for each of the years then ended (such December 31, 2007 audited
consolidated balance sheet being hereinafter referred to as the “Latest Audited
Balance Sheet”); and




     (ii) the Estimated Reference Date Balance Sheet, and the unaudited,
unconsolidated statements of income and cash flows for the three-month period then
ended.


Subject to, in the case of any of the Company’s Financial Statements that are unaudited, the
absence of footnotes and the need to make normal, recurring year-end adjustments with respect to
any of the Company’s Financial Statements that are unaudited, the Company’s Financial Statements
have been prepared in accordance with GAAP consistently applied and present fairly in all material
respects the consolidated financial condition of the Company and consolidated results of the
Company’s operations, changes in stockholders’ equity and cash flows, respectively, at and for the
periods presented.


          (b) Neither the Company nor any of its Subsidiaries has any indebtedness or liabilities of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become
due) that would, individually or in the aggregate, reasonably be expected to result in a Loss that
would exceed $1,000,000 or otherwise reasonably be expected to result in a Company Material Adverse
Effect, other than those (i) fully reflected in or reserved against in the Latest Audited Balance
Sheet, or (ii) set forth on Schedule 4.5(b).



     Section 4.6 Absence of Certain Changes. Except as set forth on Schedule 4.6,
since the date of the Latest Audited Balance Sheet, the Company and its Subsidiaries have operated
their business only in the ordinary course of business consistent with past practices, and, without
limiting the generality of the foregoing, (i) there has not been any change, event or effect that,



27









 




individually or in the aggregate, would reasonably be expected to result in a Company Material
Adverse Effect, and (ii) the Company and its Subsidiaries have not taken any action that would be
prohibited by Section 6.1, if such provisions had been in effect since the date of the Latest
Audited Balance Sheet.



     Section 4.7 Litigation. Except as set forth on Schedule 4.7(a), as of the
date hereof (a) there is no litigation, action, suit, claim, arbitration, investigation or other
proceeding pending or, to the Knowledge of the Company, threatened, against the Company or any of
its Subsidiaries, and (b) neither the Company nor any of its Subsidiaries is a party to or subject
to any provision of any outstanding writ, order, judgment, injunction, decree or award of any
Governmental Body. Neither the Company nor any of its Subsidiaries is a party to any litigation,
action, suit, claim, arbitration, investigation or other proceeding, or subject to any provision of
any outstanding writ, order, judgment, injunction, decree or award of any Governmental Body that
would, individually or in the aggregate, reasonably be expected to result in a Loss that would
exceed $1,000,000 or otherwise reasonably be expected to result in a Company Material Adverse
Effect.



     Section 4.8 Taxes.


          (a) Except as set forth on Schedule 4.8 :




     (i) Neither the Company nor any of its Subsidiaries has taken or agreed to take
any action to, nor to the Knowledge of the Company is there any fact or circumstance
that would, prevent the Merger and other transactions contemplated by this Agreement
from qualifying as a “reorganization” within the meaning of Section 368(a) of the
Code; provided, that the representations and warranties in this Section
4.8(a)(i) shall not be considered breached if the Merger and other transactions
contemplated by this Agreement do not qualify as a “reorganization” within the
meaning of Section 368(a) of the Code because of cash paid to the Stockholders with
respect to Dissenting Shares;




     (ii) The Company and its Subsidiaries have timely filed or been included in, or
will timely file or be included in, all Tax Returns (as defined below) required to
be filed by them or in which they are to be included, taking into account any
extension of time to file granted to or obtained on behalf of the Company or any of
its Subsidiaries, and all such Tax Returns are or will be true, correct and complete
in all material respects;




     (iii) The Company and its Subsidiaries have timely paid or caused to be timely
paid all Taxes due and owing or have made provision, in accordance with GAAP, for
all Taxes owed or accrued, whether current or deferred;




     (iv) Neither the Internal Revenue Service (the “IRS”) nor any other
Taxing Authority has proposed, asserted or assessed any deficiency or claim for any
amount of additional Taxes with respect to the Company or any of its Subsidiaries;



28









 






     (v) No waiver, extension or comparable consent regarding the application of the
statute of limitations with respect to any Taxes of the Company or any Subsidiary is
outstanding, nor is any request for any such waiver or consent pending. To the
Knowledge of the Company, no federal, state, local or foreign audits or other
administrative proceedings or court proceedings are pending with regard to any Taxes
or Tax Returns of the Company or any of its Subsidiaries and neither the Company nor
any of its Subsidiaries has received a written notice of any actual or threatened
audits or proceedings or is otherwise aware of any such audits or proceedings;




     (vi) The Company and its Subsidiaries have complied with all applicable Laws
relating to the withholding of Taxes, the payment thereof and any information
reporting requirements;




     (vii) Neither the Company nor any of its Subsidiaries has ever been a member of
an affiliated group of corporations filing a consolidated federal income Tax Return
(other than a group the common parent of which is or was the Company) nor does the
Company or any of its Subsidiaries have any liability for Taxes of any other Person
(other than the Company or any of its Subsidiaries) under Treasury Regulations
Section 1.1502-6 (or any similar provision of foreign, state or local Law) or
otherwise. Neither the Company nor any of its Subsidiaries is a party to any
agreement or arrangement requiring the indemnification, sharing or allocation of
Taxes;




     (viii) Neither the Company nor any of its Subsidiaries will be required to
include any item of income in, or exclude any item of deduction from, taxable income
for any taxable period (or portion thereof) ending after the Closing Date as a
result of any:




     (A) Change in method of accounting for a taxable period ending on or
prior to the Closing Date;




     (B) “Closing agreement” as described in Section 7121 of the Code (or
any corresponding or similar provision of state, local or foreign income Tax
law) executed on or prior to the Closing Date;




     (C) Intercompany transaction or excess loss account described in
Treasury Regulations under Section 1502 of the Code (or any corresponding or
similar provision of state, local or foreign income Tax law);




     (D) Installment sale or open transaction disposition made on or prior
to the Closing Date; or




     (E) Prepaid amount received on or prior to the Closing Date;



29









 






     (ix) Neither the Company nor any of its Subsidiaries has distributed the stock
of another entity or had its stock distributed by another entity in a transaction
that was purported or intended to be governed in whole or in part by Code Sections
355 or 361;




     (x) Neither the Company nor any of its Subsidiaries has participated in a
reportable transaction within the meaning of Treasury Regulation Section 1.6011-4(b)
or (c)(3);




     (xi) Neither the Company nor any of its Subsidiaries has participated in a
transaction for which disclosure was provided in order to avoid penalties;




     (xii) Neither the Company nor any of its Subsidiaries has been a United States
real property holding corporation within the meaning of Section 897(c)(2) of the
Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code;




     (xiii) Neither the Company nor any of its Subsidiaries is a party to any
agreement, contract, arrangement or plan that has resulted or could result,
separately or in the aggregate, in the payment of any “excess parachute payment”
within the meaning of Section 280G of the Code (or any corresponding or similar
provision of state, local or foreign Tax law);




     (xiv) There are no liens for Taxes upon the assets of the Company or its
Subsidiaries, except for Permitted Liens and for which adequate reserves have been
established in accordance with GAAP; and




     (xv) To the Knowledge of the Company, there are no unresolved questions, claims
or disputes concerning the liability for Taxes of the Company or any Subsidiary that
would exceed the estimated reserves therefor established on its books and records.
No written claim has ever been made by a Taxing Authority in a jurisdiction where
the Company or a Subsidiary does not file Tax Returns that the Company or such
Subsidiary may be subject to taxation by that jurisdiction.


          (b) For the purposes of this Agreement:




     (i) “Taxes” shall mean any and all taxes, charges, fees, levies or
other assessments, imposed by the IRS or any other Taxing Authority, including,
without limitation, all federal, state, local and foreign income, profits, franchise
gross receipts, environmental, customs duty, capital stock, severances, stamp,
payroll, sales, employment, unemployment, disability, use, property, withholding,
excise, production, value added, occupancy and other taxes, or other amounts payable
under unclaimed property, escheatment or similar common law concepts, and such term
shall include any interest whether paid or received, fines, penalties or additional
amounts attributable to, or imposed upon, or with respect to, any such taxes,
charges, fees, levies or other assessments, whether disputed or not and



30









 






including any obligations to indemnify or otherwise assume or succeed to any
such liabilities of any other person;




     (ii) “Taxing Authority” shall mean any Governmental Body, or any
lawfully authorized third-party, responsible for the audit, assessment, collection,
adjudication, arbitration, competent authority or other dispute resolution, or other
administration of Taxes, including without limitation the legislation of Laws, or
promulgation of rules or regulations, with respect to Taxes; and




     (iii) “Tax Returns” shall mean any report, return, estimate,
information return, statement, document or other filing (together with all schedules
and other information included therewith) required to be supplied to any Taxing
Authority with respect to Taxes.



     Section 4.9 Employee Benefit Plans.


          (a) Schedule 4.9(a)(1) sets forth all benefit and compensation plans, contracts,
policies or arrangements covering current or former employees (to the extent there are any
continuing obligations with respect thereto) of the Company and its Subsidiaries, including but not
limited to, “employee benefit plans,” as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), currently maintained by the Company or any of
its Subsidiaries, and deferred compensation, severance, change in control, termination stock
option, stock purchase, stock appreciation rights, stock based, incentive and bonus plans (the
“Company Plans”), other than plans maintained outside of the United States primarily for
the benefit of Employees working outside of the United States (the “Company Non-U.S.
Plans”, which are set forth on Schedule 4.9(a)(2) (the Company Plans and Company
Non-U.S. Plans, together, the “Benefit Plans”). True and complete copies of all Benefit
Plans listed on Schedules 4.9(a)(1) and 4.9(a)(2), including but not limited to,
any trust instruments, insurance contracts and loan agreements forming a part of any Company Plans,
and all amendments thereto have been provided or made available to Buyer. Neither the Company nor
any of its Subsidiaries nor any entity which is considered one employer with the Company under
Section 4001 of ERISA or Section 414 of the Code (an “ERISA Affiliate”), sponsors,
maintains or contributes to (or is obligated to contribute to) or has within the past six years
sponsored, maintained or contributed to any “employee pension plan,” as defined in Section 3(2) of
ERISA, that is subject to Title IV of ERISA or Section 412 of the Code (a “Pension Plan”),
or any “multiemployer plan,” as defined in Section 3(37) of ERISA, or any “multiple employer” plan
within the meaning of Sections 210(a), 4063 or 4064 of ERISA. Except as set forth on Schedule
4.9(a)(3), none of the Company Plans provides for post-employment life or health insurance
benefits for any participant or any beneficiary of a participant, except as may be required under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (or similar state law), and
at the expense of the participant or the participant’s beneficiary, and the Company or its
Subsidiaries may amend or terminate any such plan at any time without incurring any liability
thereunder other than in respect of claims incurred prior to such amendment or termination.


          (b) The Company Plans have been administered substantially in accordance with and are in
substantial compliance with the applicable provisions of ERISA and the Code,



31









 







including but not limited to the Pension Protection Act of 2006, Section 502(i) of ERISA and
Section 4975 of the Code, and neither the Company nor any of its Subsidiaries has incurred or
reasonably expects to incur a material Tax or material penalty imposed by Section 502 of ERISA or
Section 4980F of the Code. Each Company Plan that is intended to qualify under Section 401(a) of
the Code has received a favorable determination or opinion letter from the IRS regarding its
qualification thereunder, covering all Tax Law changes through and including the Economic Growth
and Tax Relief Reconciliation Act of 2001, or has applied to the IRS for such favorable
determination letter within the applicable remedial amendment period under Section 401(b) of the
Code, such plan was timely adopted and no circumstances exist that could reasonably be expected to
result in loss of the qualification of such Company Plan under Section 401(a) of the Code. All
Company Plans that are “nonqualified deferred compensation plans” (within the meaning of Section
409A of the Code) have been maintained and administered in good faith compliance with the
requirements of Section 409A of the Code and any regulations or other guidance issued thereunder.
As of the date hereof, there is no pending or, to the Company’s knowledge threatened, litigation
relating to the Company Plans that would, individually or in the aggregate, reasonably be expected
to result in a Loss that would exceed $1,000,000 or that would otherwise have a Company Material
Adverse Effect.


          (c) All contributions required to be made under each Benefit Plan, as of the date hereof, have
been timely made and all obligations in respect of each Benefit Plan have been, in all material
respects, properly accrued and reflected in the Company’s Financial Statements.


          (d) All Company Non-U.S. Plans comply in all material respects with applicable local Law. The
Company and its Subsidiaries have no unfunded liabilities with respect to any such Company Non-U.S.
Plan that would, individually or in the aggregate, reasonably be expected to result in a Loss that
would exceed $1,000,000 or that would otherwise have a Company Material Adverse Effect. As of the
date hereof, there is no pending or, to the Knowledge of the Company, threatened litigation
relating to Company Non-U.S. Plans that would, individually or in the aggregate, reasonably be
expected to result in a Loss that would exceed $1,000,000 or that would otherwise have a Company
Material Adverse Effect.


          (e) Except as set forth in Schedule 4.9(e), there has been no amendment to,
announcement by the Company or any of its Subsidiaries relating to, or change in employee
participation or coverage under, any Benefit Plan which would increase materially the expense of
maintaining such plan above the level of the expense incurred therefor for the most recent fiscal
year.


          (f) Except as expressly contemplated by this Agreement or as set forth on Schedule
4.9(f), neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in any payment becoming due or result in an
increase in any payment to any employee of the Company or any of its Subsidiaries, (ii) increase
any compensation or benefits (including without limitation severance or termination pay) otherwise
payable under any Benefit Plan, (iii) result in the acceleration of the time of payment or vesting
or result in any payment or funding (through a grantor trust or otherwise) of any such compensation
or benefits or increase the amount payable or result in any other obligation pursuant to any such
plan, (iv) limit or restrict the right of the Company or, after the



32









 







consummation of the transactions contemplated hereby, Buyer to merge, amend or terminate any
of the Company Plans, (v) result in payments under any of the Company Plans which would not be
deductible under Section 280G of the Code, (vi) result in any actual or potential obligation to
reimburse or otherwise “gross up” any Person for the interest or additional Tax set forth under
Section 409A(a)(1)(B) of the Code or (vii) result in any obligation on the Company or any of its
Subsidiaries to account to Her Majesty’s Revenue & Customs for income Tax on behalf of any employee
or former employee or pay National Insurance contributions (either employer or employee) pursuant
to Chapter 2 of Part 7 of the Income Tax (Earnings and Pensions) Act 2003.


          (g) The Company undertakes that all holders of Company Restricted Stock (as defined in clause
2.2(b) of this Agreement) who are subject to taxation in the United Kingdom will join with their
relevant employing company in executing valid taxation elections pursuant to section 431(1) of
Chapter 2 of Part 7 of the Income Tax (Earnings and Pensions) Act 20 within the relevant time limit
set by such section in respect of their acquisition of Buyer Stock if no election has previously
been entered into in respect of the related Company Restricted Stock.


          (h) The Company undertakes that it shall procure the assignment of its rights to Buyer
pursuant to all deeds of indemnities and undertakings entered into by employees or former employees
in relation to indemnification for secondary class 1 National Insurance liabilities arising in the
United Kingdom in respect of Company Restricted Stock and Company Options awarded pursuant to the
Stock Plan and shall if necessary to give effect to the continuation and survival of such
indemnities and undertakings with respect to New Options or Buyer Stock issued to such employee or
former employee in relation to their Company Restricted Stock, procure that new deeds or amendments
to the existing deeds are entered into by the relevant parties.



     Section 4.10 Real and Personal Property.


          (a) Except as set forth on Schedule 4.10(a), neither the Company nor any of its
Subsidiaries owns any real property.


          (b) Schedule 4.10(b) sets forth a list of all real property leased or sub-leased by
the Company or any of its Subsidiaries (the “Leased Real Property”). All leases or
sub-leases relating to Leased Real Property are identified on Schedule 4.10(b) (each a
“Lease” and collectively, the “Leases”) and the Company has made available to
Buyer’s counsel a correct and complete copy of each Lease, as amended to date. With respect to
each Lease listed on Schedule 4.10(b ):




     (i) such Lease is legal, valid, binding and enforceable against each party
thereto, subject to applicable bankruptcy, insolvency, moratorium or other similar
Laws relating to creditors’ rights and general principles of equity;




     (ii) each Lease listed on Schedule 4.10(b) has been duly authorized and
executed by the Company or such Subsidiary, as applicable;




     (iii) neither the Company nor any Subsidiary, nor any other party to any Lease,
is in default in any material respect under any of said Leases, and no



33









 






event has occurred which, with notice or lapse of time, would constitute a
material default or permit termination, material modification or acceleration under
any of said Leases;




     (iv) neither the Company nor any Subsidiary has any obligation or right to
purchase or acquire the property subject to said Lease or any other real estate
interest; and




     (v) neither the Company nor any Subsidiary has granted to any Person or entity,
and, to the Knowledge of the Company, no Person or entity has, any option, right of
first refusal or other contractual right or obligation to acquire title to any of
such property or any portion thereof or interest therein.


          (c) Except as set forth on Schedule 4.10(c ) or as specifically disclosed in the Latest
Audited Balance Sheet, and except with respect to leased personal property, the Company and each of
its Subsidiaries have good title to all of the tangible personal property and assets shown on the
Latest Audited Balance Sheet or acquired after the date of the Latest Audited Balance Sheet, free
and clear of any Encumbrances, except for Permitted Liens. For the purposes of this Agreement, (i)
“Encumbrance” shall mean any lien, pledge, charge, mortgage, easement, encroachment,
imperfection of title, title exception, title defect, right of possession, lease, security
interest, encumbrance, adverse claim, interference or restriction on transfer (except for
restrictions arising under applicable securities Laws), including a Permitted Lien; and (ii)
“Permitted Lien” shall mean (A) Encumbrances securing Indebtedness for Borrowed Money that
is specifically disclosed in the Latest Audited Balance Sheet, (B) Encumbrances for Taxes, fees,
assessments or other governmental charges which are not delinquent or remain payable without
penalty or which are being contested in good faith and which in any event do not exceed $1,000,000,
individually or in the aggregate, (C) carriers’, warehousemens’, mechanics’, landlords’,
materialmens’, repairmens’ or other similar Encumbrances arising in the ordinary course of business
relating to obligations as to which there is no default on the part of Company and which in any
event do not exceed $1,000,000, individually or in the aggregate, (D) Encumbrances consisting of
pledges or deposits required in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation or to secure liability
to insurance carriers and which in any event do not exceed $1,000,000, individually or in the
aggregate, (E) Encumbrances set forth on Schedule 4.10(c) and (F) Encumbrances of record or
imperfections of title which are not material in character, amount or extent and which do not
materially detract from the value or materially interfere with the present use of the assets or
specific parcel of Leased Real Property to which they relate.


          (d) The Company and its Subsidiaries are the lessees of, and hold valid leasehold interests in
all material assets shown as leased on the Latest Audited Balance Sheet and all Leased Real
Property disclosed on Schedule 4.10(b). Except as would not be material to the Company and
its Subsidiaries as a whole, the assets owned, licensed or leased by the Company and its
Subsidiaries constitute all the assets used in the business of the Company and its Subsidiaries
(including all books, records, computers and computer programs and data processing systems), are in
good condition (subject to normal wear and tear and immaterial impairments of value and damage) and
are generally suitable for the uses for which they are used



34









 







in the operation of the business of such Persons. As of the Effective Time, the Company and
its Subsidiaries will have sufficient property, assets and rights to engage in the business of the
Company and its Subsidiaries in substantially the same manner as on the date hereof.



     Section 4.11 Labor and Employment Matters.


          (a) Except as set forth on Schedule 4.11(a), (i) the Company and each of its
Subsidiaries are in compliance in all material respects with all applicable Laws relating to
employment and employment practices including, without limitation, all applicable Laws relating to
taxation, employment standards, workers’ compensation, terms and conditions of employment,
occupational health and safety, disability benefits, wages and hours, termination of employment,
human rights, immigration, pay equity, employment equity, and, where applicable, the Worker
Adjustment and Retraining Notification Act, (ii) in the three (3) years before the date of this
Agreement, there has been no harassment, discrimination, retaliatory act or similar claim, action
or proceeding against the Company or any of its Subsidiaries or any of their officers, directors or
employees (in their capacities as such), and (iii) no employee of the Company or any of its
Subsidiaries is owed or has filed an administrative complaint or action alleging the employee is
owed any material wages, benefits or other compensation for past services (other than wages,
benefits and compensation accrued in the ordinary course of business during the current pay period
and accrued vacation). None of the matters identified on Schedule 4.11(a) would,
individually or in the aggregate, reasonably be expected to result in a Loss that would exceed
$1,000,000 or otherwise reasonably be expected to result in a Company Material Adverse Effect.


          (b) None of the employees of the Company or any Subsidiary is represented by a labor union and
neither the Company nor any Subsidiary of the Company is a party to or otherwise bound by any
collective bargaining agreement, contract or other agreement or understanding with a labor union or
labor organization. There is no organizational effort currently being made or, to the Knowledge of
the Company, threatened by or on behalf of any labor organization or trade union to organize any
employees of the Company or any Subsidiary, and neither the Company nor any Subsidiary of the
Company is subject to any charge, demand, petition or representation proceeding seeking to compel,
require or demand it to bargain with any labor union or labor organization; nor is there pending
or, to the Knowledge of the Company, threatened in writing, any material labor dispute, picketing,
strike, walkout, work stoppage, slow-down or lockout involving the Company or any Subsidiary of the
Company, nor has there been any such action, dispute or proceeding within the last three years.


          (c) Schedule 4.11(c) contains in respect of each employee of any UK Subsidiary of the
Company at the date of this Agreement, details of name, age, position, gender, length of
employment, annual salary, annual bonus, other remuneration or benefits and notice period required
to be served by the employing company to terminate the employment. Such information is correct and
complete is all respects.


          (d) The data room maintained by the Company in connection with the transactions contemplated
by this Agreement contains true, up-to-date and complete copies of



35









 







standard contracts of employment between any UK Subsidiary of the Company and any employees.



     Section 4.12 Contracts. Except as set forth in Schedule 4.12, neither the
Company nor any Subsidiary of the Company is a party to:


          (a) any partnership, joint venture or other similar Contract relating to the formation,
operation, management or control of any partnership or joint venture;


          (b) any Contract that is reasonably likely to require annual payments to or from the Company
or any of its Subsidiaries in excess of $500,000 in any calendar year;


          (c) any employment, severance or consulting Contract with any director, officer or employee
requiring an annual payment of cash compensation in excess of $200,000 for each Person;


          (d) any Contract that (i) purports to limit or restrict in any material respect the ability of
the Company or any Subsidiary or Affiliate (as defined below in subsection (e)) of the Company to
enter into or engage in any market or line of business, (ii) could require the disposition of any
material assets or line of business of the Company or any Subsidiary of the Company or, after the
Effective Time, Buyer or its Subsidiaries, (iii) grants “most favored nation” status that, after
the Effective Time, would apply to Buyer and its Subsidiaries, including the Company and its
Subsidiaries, or (iv) prohibits or limits the rights of the Company or any of its Subsidiaries to
make, sell, perform or distribute any products or services or use, transfer, license, distribute or
enforce any of their respective Intellectual Property rights;


          (e) any Contract with any current officer, director or Affiliate of the Company or any of its
Subsidiaries (an “Affiliate” of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or is under common
control with, such first Person) or any Person owning of record or, to the Knowledge of the
Company, beneficially owning five percent or more of the outstanding shares of Common Stock or, to
the Knowledge of the Company, any family member of any of the foregoing or any entity that is an
Affiliate of any such family member;


          (f) any Contract for the sale of any of the assets of the Company or any of its Subsidiaries
other than in the ordinary course of business consistent with past practice;


          (g) any Contract relating to the incurrence, assumption, surety or guarantee of any
indebtedness (excluding any agreement to guarantee lease payments);


          (h) any Contract under which the Company or any of its Subsidiaries has made advances or loans
to any other Person (which shall not include routine travel advances, not to exceed $10,000, made
to an employee of the Company or any of its Subsidiaries in the ordinary course of business
consistent with past practice);



36









 







          (i) any Contract providing for indemnification by the Company or any of its Subsidiaries of
any Person, except for any such Contract that is (x) not material to the Company or any of its
Subsidiaries and (y) entered into in the ordinary course of business;


          (j) any Contract that contains a put, call or similar right pursuant to which the Company or
any of its Subsidiaries could be required to purchase or sell, as applicable, any assets that have
a fair market value or purchase price of more than $500,000 or any equity securities of any Person;
and


          (k) any other material Contract (or group of related Contracts) not described (or required to
be disclosed on Schedule 4.12 ) pursuant to Section 4.12(a) through Section 4.12(j) and the
performance of which requires aggregate payments to or from the Company in excess of $500,000 in
any instance, other than Contracts entered into in the ordinary course of business consistent with
past practice.



     A correct and complete copy of each of the Contracts set forth on Schedule 4.12
(together with each Lease, each Intellectual Property License and each license with respect to
Company Software, collectively, the “Material Contracts”) has been made available to
Buyer’s counsel and each such Material Contract is in full force and effect and represents legally
valid and binding obligations of the Company and/or its Subsidiaries party thereto and of each
other counterparty thereto, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors’ rights generally and by general
equitable principles (regardless of whether enforcement is sought in a proceeding at law or in
equity). Except as expressly stated on Schedule 4.12, each of the agreements listed on
Schedule 4.12 is in full force and effect, and neither the Company nor any of its
Subsidiaries is and no other party thereto is, in default or breach in any material respect under
the terms of any such Contract.



     Section 4.13 Intellectual Property.


          (a) The Company or its Subsidiaries solely own all right and title to, free and clear of any
lien, or, has licenses (sufficient for the conduct of its business as currently conducted) to each
item of Company Intellectual Property used in connection with the operation or conduct of its
business as currently conducted, including in connection with the sale of any products or the
provision of any services by the Company or its Subsidiaries. Neither the Company nor its
Subsidiaries are subject to any proceeding or outstanding decree, order, judgment or stipulation
resulting from the resolution of a dispute restricting in any manner the use, enforceability,
transfer or licensing by the Company or its Subsidiaries of any of the Company Intellectual
Property.


          (b) Schedule 4.13(b) contains a list of all Intellectual Property Licenses. All
Intellectual Property Licenses are valid, binding and in full force and effect. The Company or its
Subsidiaries have taken all necessary action to maintain each Intellectual Property License. No
loss or expiration of any Intellectual Property License is pending or threatened (other than
expiration upon the expiration of any term thereof).


          (c) Schedule 4.13(c) contains a list of all Registered Intellectual Property owned by,
or filed by or on behalf of, the Company or its Subsidiaries. Each item of Registered



37









 







Intellectual Property owned by, or filed on behalf of, the Company or its Subsidiaries is
valid and subsisting. All necessary registration, maintenance and renewal fees currently due in
connection with said Registered Intellectual Property have been paid and all necessary documents,
recordations and certifications in connection with such Registered Intellectual Property have been
filed with the relevant patent, copyright, trademark or other authorities in the United States or
foreign jurisdictions, as the case may be, for the purpose of maintaining such Registered
Intellectual Property, except for such Registered Intellectual Property which the Company has
permitted to expire or has cancelled or abandoned in its reasonable business judgment prior to the
Effective Date.


          (d) The Company’s or its Subsidiaries’ licensing of any of their trademarks, trade names, and
service marks has been subject to commercially reasonable quality control by the Company or its
Subsidiaries and the Company or its Subsidiaries have exercised such quality control in a
consistent and commercially reasonable manner. Schedule 4.13(d) lists all unregistered and
common law trademarks, service marks and trade names of the Company or its Subsidiaries currently
used in the conduct of the business of the Company or its Subsidiaries and recognized by the
Company or its Subsidiaries as marks or trade names.


          (e) All Registered Intellectual Property that the Company or its Subsidiaries purport to own,
which was developed by an employee of a Company or its Subsidiaries, (i) has been assigned to the
Company or its Subsidiaries by said employee through a valid assignment document or (ii) was
developed by said employee working within the scope of his or her employment at the time of such
development so that such Registered Intellectual Property became the exclusive property of Company
or its Subsidiaries pursuant to a valid, executed agreement. All Company Intellectual Property
(excluding any Registered Intellectual Property) that the Company or its Subsidiaries purport to
own, which was developed by an employee of a Company or its Subsidiaries, was (A) developed by said
employee working within the scope of his or her employment at the time of such development or (B)
assigned to the Company or its Subsidiaries by said employee through a valid assignment document.
All employees working for the Company or its Subsidiaries as of the date of this Agreement, or
employees who have previously worked for the Company or its Subsidiaries, are or were under an
obligation, pursuant to a valid executed employment agreement, to assign all rights and interest in
any Intellectual Property, developed by said employee while working within the scope of his or her
employment at the time of such development, to the Company or appropriate Subsidiary.


          (f) Schedule 4.13(f) lists all agreements pursuant to which Company Intellectual
Property has been developed or created by a third party for the Company or its Subsidiaries. To
the extent that any Company Intellectual Property has been developed or created by a third party
for the Company or its Subsidiaries, the Company or its Subsidiaries either (i) have obtained
ownership of and are the exclusive owner of, or (ii) have obtained a license (sufficient for the
conduct of the business of the Company or its Subsidiaries as currently conducted) to, all of such
third party’s Intellectual Property developed or created for the Company or its Subsidiaries, by
operation of Law or through execution of a valid assignment or license agreement.



38









 







          (g) The operation of the business of the Company or its Subsidiaries including the design,
development, marketing and sale of the products or services (including products currently under
development), has not and does not infringe or misappropriate in any manner the Intellectual
Property of any third party or constitute unfair competition or trade practices under the Laws of
any jurisdiction.


          (h) Neither the Company nor its Subsidiaries have received written notice of any claim from
any third party that either the Company Intellectual Property or the operation of the business of
the Company or its Subsidiaries or any act, product or service of the thereof, infringes or
misappropriates the Intellectual Property of any third party or constitutes unfair competition or
trade practices under the Laws of any jurisdiction. Except as set forth in Schedule
4.13(h), to the Knowledge of the Company, no Person has or is currently infringing or
misappropriating any Company Intellectual Property. Except as set forth in Schedule
4.13(h), as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a
party to any suit, action or proceeding which involves a claim of infringement, unauthorized use,
or violation of any Intellectual Property used or owned by any Person against the Company or its
Subsidiaries, or challenging the ownership, use, validity or enforceability of any Intellectual
Property owned or used by the Company or its Subsidiaries.


          (i) Except as set forth in Schedule 4.13(i), the Company has taken reasonable steps to
protect the rights of the Company or its Subsidiaries in the Confidential Information used by the
Company or its Subsidiaries of any Confidential Information which has not been intentionally
dedicated to the public domain through the commercially reasonable conduct of the business of the
Company and its Subsidiaries.


          (j) For the purposes of this Agreement:




     (i) “Company Intellectual Property” means any Intellectual Property
that is owned by or licensed to the Company or any of its Subsidiaries, including
the Company Software.




     (ii) “Confidential Information” means any data or information
concerning the Company or its Subsidiaries (including trade secrets), without regard
to form, regarding (for example and including) (a) business process models; (b)
proprietary software, including source code; (c) research, development, products,
services, marketing, selling, business plans, budgets, unpublished financial
statements, licenses, prices, costs, contracts, suppliers, customers, and customer
lists; (d) the identity, skills and compensation of employees, contractors, and
consultants; (e) specialized training; and (f) discoveries, developments, trade
secrets, processes, formulas, data, lists, and all other works of authorship, mask
works, ideas, concepts, know how, designs, and techniques, whether or not any of the
foregoing is or are patentable, copyrightable, or registrable under any intellectual
property Laws or industrial property Laws in the United States or elsewhere.




     (iii) “Intellectual Property” means any and all of the following,
throughout the world, and all rights arising out of or associated therewith: (a) all



39









 






patents and applications therefor and all reissues, divisions, renewals,
extensions, provisionals, continuations and continuations in part thereof
(“Patents”); (b) all inventions (whether patentable or not), invention
disclosures, improvements, proprietary information, know how, technology, technical
data and customer lists, and all documentation relating to any of the foregoing; (c)
all copyrights, copyright registrations and applications therefor, and all
derivative works thereof; (e) all rights in internet uniform resource locators,
domain names, trade names, logos, slogans, designs, common law trademarks and
service marks, trademark and service mark registrations and applications therefor;
(f) all software; (g) all rights in databases and data collections; and (h) all
moral and economic rights of authors and inventors, however denominated.




     (iv) “Intellectual Property Licenses” shall mean licenses (i) with
respect to Company Intellectual Property licensed to any third party (other than end
user licenses in the ordinary course of business) (“Intellectual Property
License Out”) or (ii) pursuant to which a third party has licensed any Company
Intellectual Property to the Company or its Subsidiaries (other than licenses of
commercially available shrink wrap software or off the shelf software (by way of
example only, Adobe Acrobat or Microsoft Word) have a per user license fee of less
than $2,000 or a total acquisition cost of less than $10,000).




     (v) “Registered Intellectual Property” means, throughout the world, any
and all: (a) patents and patent applications (including provisional applications);
(b) registered trademarks and service marks, applications to register trademarks and
service marks, and intent to use applications to register trademarks and service
marks; (c) registered copyrights and applications for copyright registration; (d)
domain name registrations; and (e) any other Intellectual Property that is the
subject of an application, registration or corresponding right issued by, filed
with, or recorded with any Governmental Body.



     Section 4.14 Software.


          (a) Schedule 4.14(a) sets forth a true, correct and complete list of: (i) the Company
Proprietary Software and (ii) the Company Licensed Software (other than commercially available
shrink wrap software or off the shelf software (by way of example only, Adobe Acrobat or Microsoft
Word) having a per user license fee of less than $2,000 or a total acquisition cost of less than
$10,000).


          (b) Neither the Company nor its Subsidiaries use open source software, freeware, GNU or Linux
systems, or any modification thereof that has resulted in any (i) restriction on the use, licensing
or disclosure of any Software, that would prevent the operation of the business of the Company or
its Subsidiaries; or (ii) requirement that the Company or its Subsidiaries deliver or otherwise
disclose to any third party any source code for any Company Proprietary Software or permit any
licensee to modify any such source code. Any open source



40









 







software, freeware, GNU or Linux systems, used in connection with or embedded in the products
of the Company or its Subsidiaries, or any modification thereof is set forth on Schedule
4.14(b).


          (c) To the extent that the Company Proprietary Software was developed by consultants,
contractors or other Persons other than employees of the Company or its Subsidiaries, such Persons
have executed appropriate instruments of assignment in favor of the Company or its Subsidiaries
that have conveyed to the Company or its Subsidiaries ownership of all of its Intellectual Property
rights in the Company Proprietary Software. The Company or its Subsidiaries have not received
written notice from any third party claiming any right, title or interest in the Company
Proprietary Software.


          (d) Except as detailed in the agreements listed in Schedule 4.14(b), the Company has
not granted any rights in the Company Software to any third party (other than end user licenses in
the ordinary course of business).


          (e) For the purposes of this Agreement:




     (i) “Company Licensed Software” means all Software licensed to the
Company or any of its Subsidiaries.




     (ii) “Company Proprietary Software” means all Software owned by the
Company or its Subsidiaries, including, all current and prior versions of any
Software owned by the Company or its Subsidiaries used to operate the internal
computers and systems of the Company or its Subsidiaries or used in products and
services marketed, licensed, sold or distributed to customers of the Company or its
Subsidiaries.




     (iii) “Company Software” means the Company Licensed Software and the
Company Proprietary Software.




     (iv) “Software” means any computer software program, together with any
error corrections, updates, modifications, or enhancements thereto, in both machine
readable form and human readable form, including all comments and any procedural
code.



     Section 4.15 Environmental Matters. Except as set forth on Schedule 4.15 :


          (a) the Company and its Subsidiaries have at all times been in material compliance with all
applicable Environmental Laws (as defined below) including with respect to their operations and use
of the Leased Real Property;


          (b) neither the Company nor any of its Subsidiaries generates, transports, treats, stores, or
disposes of any Hazardous Material (as defined below), except in material compliance with all
applicable Environmental Laws, and there has been no Release (as defined below) of any Hazardous
Material by the Company or the Subsidiaries at or on the Leased Real Property or at any other
location that requires remediation by or would result in liability to the Company or any of its
Subsidiaries pursuant to any applicable Environmental Law;



41









 







          (c) neither the Company nor the Subsidiaries have (i) received written notice under the
citizen suit provisions of any Environmental Law; (ii) received any written request for
information, notice, demand letter, administrative inquiry or written complaint or claim under any
Environmental Law; (iii) been subject to or threatened in writing with any governmental or private
action with respect to any Environmental Law or (iv) received written notice of any unsatisfied
liability under any Environmental Law and to the Knowledge of the Company there is no such
liability;


          (d) the Company has made available to Buyer’s counsel copies of all environmental reports,
studies, assessments, sampling data and memoranda in its or its Subsidiary’s possession relating to
the Company and its Subsidiaries or any of their current or former properties or operations.


          For the purposes of this Agreement:




     (i) “Environment” means soil, surface waters, groundwater, land, stream
sediments, surface or subsurface strata and ambient air.




     (ii) “Environmental Laws” means all Laws relating to protection of the
Environment or health or safety, including, without limitation, the federal
Comprehensive Environmental Response, Compensation and Liability Act, the Resource
Conservation and Recovery Act, the Clean Air Act, the Clean Water Act, the Toxic
Substances Control Act, the Endangered Species Act, the Occupational Safety and
Health Act and similar federal, state and local Laws as in effect on the Closing
Date.




     (iii) “Hazardous Material” means any pollutant, toxic substance,
hazardous waste, hazardous materials, hazardous substances, petroleum or
petroleum-containing products regulated under or as defined in, or listed under, any
Environmental Law.




     (iv) “Release” means any releasing, disposing, discharging, injecting,
spilling, leaking, pumping, dumping, emitting, escaping or emptying of a Hazardous
Material into the Environment.



     Section 4.16 Insurance. Schedule 4.16 sets forth a correct and complete list
of all the insurance policies held by, or for the benefit of, the Company and its Subsidiaries (the
“Insurance Policies”), and any pending and unresolved claims made against the Insurance
Policies. Except as set forth on Schedule 4.16, the Insurance Policies are sufficient for
the Company’s compliance in all material respects with all applicable Laws, all Contracts to which
the Company or its Subsidiary is a party or by which it is bound, and generally for the Company and
its Subsidiaries to conduct their business in the normal and ordinary course consistent with
prevailing industry practices. With respect to any pending claims, neither the Company nor any of
its Subsidiaries has been advised in writing of any defense to coverage in connection with any
claim to coverage asserted under or in connection with any of the Insurance Policies. Each of the
Company and its Subsidiaries is in compliance with the provisions of each Insurance Policy under
which it is the insured party, except where any failure to comply would not, individually or



42









 




in the aggregate, reasonably be expected to be material and adverse to the Company and its
Subsidiaries. No insurer under any Insurance Policy has cancelled or generally disclaimed
liability under any Insurance Policy or indicated any intent to do so or not to renew any such
Insurance Policy.



     Section 4.17 No Brokers. Neither the Company nor any of its Subsidiaries or
Affiliates has entered into any contract, arrangement or understanding with any Person or firm that
may result in the obligation of such entity or Buyer or MergerCo to pay any finder’s fees,
brokerage or agent’s commissions or other like payments in connection with the negotiations leading
to this Agreement or consummation of the Merger, except that the Company has retained and will owe
fees to Evercore Partners Inc. as its financial advisor in connection with the Merger.



     Section 4.18 Compliance with Laws. Except as set forth in Schedule 4.18, the
businesses of the Company and each of its Subsidiaries have been, and are currently being,
conducted in compliance with all federal, state, local and foreign Laws, statutes or ordinances,
the common law and all rules, regulations, standards, judgments, orders, writs, injunctions,
decrees, arbitration awards, agency requirements, licenses and permits of any Governmental Body
(collectively, “Laws”), except for such violations as would not, individually or in the
aggregate, reasonably be expected to result in a Loss that would exceed $1,000,000 or otherwise
reasonably be expected to result in a Company Material Adverse Effect. Except as set forth in
Schedule 4.18, no investigation or review by any Governmental Body with respect to the
Company or any of its Subsidiaries is pending or, to the Knowledge of the Company, threatened, nor
has any Governmental Body indicated in writing an intention to conduct the same. Except as set
forth in Schedule 4.18, the Company has not received any written notice or written
communication of any material noncompliance with any such Laws that has not been cured as of the
date of this Agreement.



     Section 4.19 Government Regulation.


          (a) All licenses, registrations, qualifications, memberships, permits, approvals and other
authorizations from a Governmental Body held by the Company and its Subsidiaries are listed in
Schedule 4.19(a) (collectively, the “Governmental Permits”). Except as would not,
individually or in the aggregate, reasonably be expected to result in a Loss that would exceed
$1,000,000 or otherwise reasonably be expected to result in a Company Material Adverse Effect, the
Governmental Permits constitute all the licenses, registrations, certifications, qualifications,
memberships, permits, consents, approvals, exemptions, orders and other authorizations from or
issued by a Governmental Body required by the Company and its Subsidiaries to conduct their
businesses in the three years before the date of this Agreement.


          (b) Except as set forth on Schedule 4.19(b) and as would not, individually or in the
aggregate, reasonably be expected to result in a Loss that would exceed $1,000,000 or otherwise
reasonably be expected to result in a Company Material Adverse Effect:




     (i) the Company and its Subsidiaries have timely filed (and, where applicable,
obtained approval of) all registrations, qualifications, memberships, applications,
reports and permit declarations required to be filed by it with any Governmental
Body, and all amendments or supplements to any of the foregoing;



43









 






     (ii) the Company and its Subsidiaries are not subject to any restrictions or
limitations imposed by any Governmental Body which are continuing and which
materially limit such entities’ ability to conduct their businesses, and there are
no circumstances which will cause any of the Governmental Permits to be suspended,
varied, limited, revoked or not renewed, or otherwise materially affected, in whole
or in part;




     (iii) in the three years before the date of this Agreement the business of each
Authorized Group Company (as defined in Section 7.4(b)(ii)) has been conducted in
all respects in compliance with the requirements of FSMA and the regulatory system
(as that expression is defined for the purposes of the FSA’s Handbook of Rules and
Guidance) (together, “Regulatory Requirements”);




     (iv) the current employees of the Company and its Subsidiaries have, and the
former employees, while employed by the Company and its Subsidiaries, had, at all
requisite times while employed by the Company or any Subsidiary held all necessary
regulatory, licenses, approvals and authorizations required to enable them to carry
out their respective functions within each Authorized Group Company;




     (v) in the three years before the date of this Agreement, each Authorized Group
Company has complied with its own compliance policies and procedures, as disclosed
to Buyer;




     (vi) in the three years before the date of this Agreement, each Authorized
Group Company has ensured that all of its promotional and advertising material
complies with Regulatory Requirements;




     (vii) to the Knowledge of the Company, no investigation or enquiry is being or
has been conducted or is being contemplated by any Governmental Body with respect to
an Authorized Group Company;




     (viii) no regulatory or disciplinary proceedings or actions have been brought
and no fine or other penalty has been imposed by any Governmental Body, whether
against any Authorized Group Company, or, to the Knowledge of the Company, a
director, officer or any employee or former employee of any Authorized Group
Company;




     (ix) in the three years before the date of this Agreement, no court orders or
warrants under the United Kingdom Proceeds of Crime Act 2002, the United Kingdom
Terrorism Act 2000 or any analogous legislation or regulatory requirement in any
jurisdiction have been made in relation to any material or information held by any
Authorized Group Company;




     (x) there are valid client agreements in place between each Authorized Group
Company and its clients to the extent required by the Regulatory Requirements;



44









 






     (xi) each Authorized Group Company complies with its obligations under Rule 2.3
of the FSA’s new Conduct of Business sourcebook in relation to the payment and
acceptance of fees, commissions and non-monetary benefits; and




     (xii) the complaints register relating to the business of each Authorized Group
Company has been maintained in accordance with Regulatory Requirements, is
up-to-date and accurate, and there are, to the Knowledge of the Company, no material
regulatory complaints or allegations concerning any Authorized Group Company
currently in existence.


          (c) Except as disclosed on SEC Form BD of any Subsidiary of the Company filed prior to the
date of this Agreement, copies of which have been made available to Buyer, neither the Company nor
any Subsidiary has been the subject of any disciplinary proceedings or orders of any Governmental
Body arising under applicable Laws which would be required to be disclosed on such Form BD. No
such disciplinary proceeding or order is pending or, to the Knowledge of the Company, threatened.
Except as disclosed on such Form BD filed prior to the date of this Agreement, neither the Company
nor any Subsidiary has been permanently enjoined by the order of any Governmental Body from
engaging or continuing any conduct or practice in connection with any activity or in connection
with the purchase or sale of any security.


          (d) Each Authorized Group Company materially meets the current requirements of the FSA in
relation to its Treating Customers Fairly initiative (TCF), and has taken appropriate steps to
ensure that it will meet the future requirements of the FSA in relation to TCF as published by the
FSA prior to the date of this Agreement.


          (e) All material correspondence between each Authorized Group Company and the FSA for the last
three years has been disclosed.


          (f) All binding recommendations (if any) suggested by a Governmental Body to which each
Authorized Group Company is subject have been materially implemented to the satisfaction of the
relevant Governmental Body.


          (g) All fines and levies (if any) imposed on each Authorized Group Company by any Governmental
Body have been paid.


          (h) Each Authorized Group Company has sufficient regulatory capital to meet the capital
adequacy requirements of the FSA as at the date of this Agreement and will have sufficient
regulatory capital to meet such requirements at all times up to 31 December 2008.


          (i) Without limiting any other provisions of this Section 4.19, except as disclosed on
Schedule 4.19(i), the Company and its Subsidiaries are not required to be registered with
the SEC as a broker-dealer or a national securities exchange, or with the Commodity Futures Trading
Commission (“CFTC”) as a designated contract market and are not subject to the provisions
of the Commodity Exchange Act and CFTC regulations governing exempt commercial markets.




45











 





     Section 4.20 Books and Records. Except as set forth on Schedule 4.20, the
books of account and other financial records of the Company and its Subsidiaries are complete and
correct in all material respects, represent actual, bona fide transactions, as applicable, and have
been maintained in accordance with sound business practices and all applicable requirements of Law.
The minute books of the Company and its Subsidiaries contain accurate and complete records of all
meetings held, and all corporate actions taken by, the Stockholders, the Board of Directors and
committees of the Board of Directors of the Company and each of its Subsidiaries, and no meeting of
any Stockholders, Board of Directors or committee has been held for which minutes have not been
prepared or are not contained in such minute books.



     Section 4.21 Related Party Transactions. Except for employment arrangements
(including employee benefit plan matters) conducted in the ordinary course of business or as set
forth on Schedule 4.21(a), neither the Company nor any of its Subsidiaries is party to any
contract, lease or commitment with any Stockholder, director, officer or employee of the Company or
any of its Subsidiaries or, to the Knowledge of the Company, any member of the immediate family,
grandparents, grandchildren or first cousins of such stockholder, director, officer or employee.
Contracts, leases or commitments set forth on Schedule 4.21(a) comply with all Laws
applicable to the relevant related party transaction. Except for this Agreement and any liability
arising under this Agreement and except for employment arrangements (including employee benefit
plans) in effect as of the date of this Agreement or entered into or established after the date of
this Agreement in compliance with Article VI, from and after the Closing, neither the Company nor
any of its Subsidiaries shall be bound by any Contract or any other arrangement of any kind
whatsoever with, or have any liability to, any of the Stockholders. Except as set forth on
Schedule 4.21(b), all Contracts concluded between the Company and its Subsidiaries or
between any of its Subsidiaries were made at arms’ length.



     Section 4.22 Foreign Assets Control. Neither the Company nor any of its Subsidiaries
does business with, sponsors, or provides assistance or support to, the government of, or any
person located in, any country, or with any other person, targeted by any of the economic sanctions
of the United States administered by the United States Treasury Department’s Office of Foreign
Assets Control (“OFAC”); the Company is not owned or controlled (within the meaning of the
regulations promulgating such sanctions or the Laws authorizing such promulgation) by, any such
government or person.



     Section 4.23 AML Standards. The Company has made available to Buyer copies of the
policies and procedures used by the Company and its Subsidiaries for verification of the identity
of new and existing customers of the Company and its Subsidiaries and compliance with Title III of
the United and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 and similar Laws. The Company and its Subsidiaries have each been
and are in compliance in all material respects with all such Laws and all “know your client” Laws
applicable to the Company or any of its Subsidiaries or to their respective employees in any
jurisdiction. Set forth on Schedule 4.23 is a description of the policies and procedures
of the Company and its Subsidiaries with respect to such Laws.



46









 





     Section 4.24 No Other Representations and Warranties; Knowledge.


          (a) NONE OF THE COMPANY, ANY OF ITS SUBSIDIARIES OR ANY OR ITS REPRESENTATIVES, DIRECTORS,
OFFICERS, OPTIONHOLDERS OR STOCKHOLDERS, HAS MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, OF ANY NATURE WHATSOEVER RELATING TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR THE
BUSINESS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES OR REPRESENTATIVES OR OTHERWISE IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED HEREBY, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES
EXPRESSLY SET FORTH IN THIS ARTICLE IV (INCLUDING THE ACCOMPANYING SCHEDULES) OR AS PROVIDED
PURSUANT TO ARTICLE VIII.


          (b) Without limiting the generality of the foregoing, neither the Company, nor any
representative of the Company, nor any of its employees, officers, directors, Optionholders or
Stockholders, has made, and shall not be deemed to have made, any representations or warranties in
the materials relating to the business of the Company and its Subsidiaries made available to Buyer
and MergerCo, including due diligence materials, or in any presentation of the business of the
Company and its Subsidiaries by management of the Company or others in connection with the
transactions contemplated hereby, and no statement contained in any of such materials or made in
any such presentation shall be deemed a representation or warranty hereunder or otherwise or deemed
to be relied upon by Buyer or MergerCo in executing, delivering and performing this Agreement and
the transactions contemplated hereby. It is understood that any cost estimates, projections or
other predictions, any data, any financial information or any memoranda or offering materials or
presentations, including but not limited to, any offering memorandum or similar materials made
available by the Company and its representatives are not and shall not be deemed to be or to
include representations or warranties of the Company, and are not and shall not be deemed to be
relied upon by Buyer or MergerCo in executing, delivering and performing this Agreement and the
transactions contemplated hereby.


          (c) Whenever a representation or warranty made by the Company herein refers to the
“Knowledge of the Company”, such knowledge shall be deemed to consist only of the actual
knowledge of the Persons listed in Schedule 4.24(c), after due inquiry (which due inquiry
the Company hereby confirms has been made).


          (d) For the avoidance of doubt, this Section 4.24 shall not apply, or otherwise be deemed in
any manner, to limit any Person from seeking any available remedy for fraud.



ARTICLE V




REPRESENTATIONS AND WARRANTIES OF BUYER AND MERGERCO




     Except as disclosed in any form, statement, certification, report or document filed or
furnished by Buyer with the SEC under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) or the Securities Act (collectively, the “Buyer Reports”), Buyer
and MergerCo



47









 




hereby jointly and severally make to the Company the representations and warranties contained
in this Article V.



     Section 5.1 Existence; Good Standing. Each of Buyer and MergerCo is a corporation
duly incorporated, validly existing and in good standing under the Laws of the State of Delaware.
Each of Buyer and MergerCo has all requisite corporate power and authority to own, operate, lease
and encumber its properties and assets and carry on its respective business as currently conducted.
Each of Buyer and MergerCo is duly licensed or qualified to do business as a foreign corporation
under the Laws of each jurisdiction in which the character of its properties or assets or in which
the transaction of its business makes such qualification necessary, except where the failure to be
so licensed or qualified, individually or in the aggregate, has not had and would not reasonably be
expected to result in a Buyer Material Adverse Effect. For the purposes hereof, “Buyer
Material Adverse Effect” means a material adverse effect on the business, financial condition,
assets, properties, liabilities or results of operations of Buyer and its Subsidiaries, taken as a
whole; provided, however, that none of the following shall constitute, or will be
considered in determining whether there has occurred, a Buyer Material Adverse Effect: (i) any
change, effect or circumstance that Buyer establishes through specific evidence was the proximate
result of any action or omission of a party required under this Agreement or the pendency or
announcement of the transactions contemplated by this Agreement; (ii) any effect arising from or
relating to any change in GAAP or any change in applicable Laws unrelated to the Merger, or the
interpretation thereof, and of general applicability after the date of this Agreement; (iii) any
failure of Buyer to meet any financial projection or forecast, other than by reason of a breach or
violation of any representation or warranty of Buyer pursuant to this Agreement; and (iv) any
change or development in economic, political, business or commodities trading market conditions
generally (whether as a result of acts of terrorism, war (whether or not declared), armed conflicts
or otherwise); provided, however, that (ii) and (iv) above shall operate only to
the extent that such effect, change or development does not affect Buyer and its Subsidiaries,
taken as a whole, in a disproportionate manner.



     Section 5.2 Formation and Ownership of MergerCo; No Prior Activities.




     (i) MergerCo was formed solely for the purpose of engaging in the transactions
contemplated by this Agreement. All of the issued and outstanding capital stock of
MergerCo is validly issued, fully paid and non-assessable and owned, beneficially
and of record, by Buyer free and clear of all claims, stockholder agreements,
limitations on Buyer’s voting rights, and Encumbrances of any nature whatsoever.




     (ii) As of the date hereof and as of the Effective Time, except for (A)
liabilities incurred in connection with its incorporation and organization, and (B)
this Agreement and any other agreements or arrangements contemplated by this
Agreement or in furtherance of the transactions contemplated pursuant to this
Agreement, MergerCo has not incurred, directly or indirectly, through any of its
Subsidiaries, any liabilities or engaged in any business activities of any type or
kind whatsoever.



48









 





     Section 5.3 Capitalization. As of the date of this Agreement, the authorized capital
stock of Buyer consists of (i) 194,275,000 shares of Common Stock, of which, as of March 31, 2008,
71,464,750 shares were issued and 70,504,211 shares were outstanding (960,539 shares being held as
treasury stock), and (ii) 25,000,000 shares of Preferred Stock of which zero shares, as of March
31, 2008, were issued and outstanding.



     Section 5.4 Authority; Validity of Agreement; Necessary Action. Each of Buyer and
MergerCo has all requisite corporate power and authority and has taken all corporate action
necessary in order to execute and deliver this Agreement and to perform its respective obligations
hereunder and the consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by each of Buyer and MergerCo and, assuming the due authorization, execution
and delivery of this Agreement by the Company, constitutes a legal, valid and binding obligation of
each of Buyer and MergerCo, as the case may be, enforceable against each of them in accordance with
its terms.



     Section 5.5 No Conflicts. The execution, delivery and performance by each of Buyer
and MergerCo of this Agreement, and the consummation by each of Buyer and MergerCo of the
transactions contemplated hereby in accordance with the terms hereof, will not, (i) violate,
conflict with or result in a default (whether after the giving of notice, lapse of time or both)
under, give rise to a right of termination of or acceleration of any obligations under or the
creation of an Encumbrance on any of the assets of Buyer or any of its Subsidiaries pursuant to any
Contract to which Buyer or any of its Subsidiaries is a party or by which Buyer or any of its
Subsidiaries’ assets are bound, (ii) conflict with, or result in, any violation of any provision of
the Certificate of Incorporation or By-laws of Buyer or the comparable organizational documents of
any of Buyer’s Subsidiaries; or (iii) violate or result in a violation of, or constitute a default
(whether after the giving of notice, lapse of time or both) under, any provision of any Law, or any
order of, or any restriction imposed by, any court or other Governmental Body applicable to Buyer
or any of its Subsidiaries, except, in the case of clauses (i) and (iii) of this Section 5.5, for
any such conflicts, defaults, violations, terminations and any waivers if not obtained that would
not, individually or in the aggregate, reasonably be expected to result in a Buyer Material Adverse
Effect.



     Section 5.6 Governmental Approvals and Consents. No notice or report to, declaration
or filing with, or consent or approval of any Governmental Body is required by or with respect to
Buyer or any of its Subsidiaries in connection with the execution and delivery by Buyer and
MergerCo of this Agreement, and the performance by Buyer or any of its Subsidiaries of any of its
obligations under, and the consummation by Buyer or any of its Subsidiaries of the transactions
contemplated by, this Agreement in accordance with the terms hereof, except for: (A) the filing of
a pre-merger notification and report form by Buyer and MergerCo under the HSR Act, and the
expiration or termination of the applicable waiting period thereunder; (B) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware, and (C) such filings
and notices as may be required of Buyer or its Subsidiaries under the Exchange Act or the
Securities Act.



     Section 5.7 Buyer Reports; Financial Statements. Buyer has since December 31, 2007
filed or furnished, as applicable, on a timely basis all Buyer Reports required by Law. Each of



49









 




such Buyer Reports filed or furnished since December 31, 2007, at the time of its filing or
being furnished complied in all material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Sarbanes-Oxley Act of 2002 (as amended, the
“Sarbanes-Oxley Act”), and any rules and regulations promulgated thereunder applicable to
such Buyer Reports. As of their respective dates (or, if amended prior to the date hereof, as of
the date of such amendment) such Buyer Reports did not, and any Buyer Reports filed or furnished
with the SEC subsequent to the date hereof will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made, not misleading.
Each of the consolidated balance sheets included in the financial statements included in such Buyer
Reports (including the related notes and schedules) fairly presents the consolidated financial
position of Buyer and its Subsidiaries as of its date and each of the consolidated statements of
income, retained earnings, and cash flows and of changes in financial position included in the
financial statements included in Buyer Reports (including any related notes and schedules) fairly
presents the results of operations, retained earnings, members’ equity, cash flows and changes in
financial position, as the case may be, of Buyer and its Subsidiaries for the periods set forth
therein, in each case in conformity with GAAP consistently applied during the periods involved,
except as may be indicated in such statements or in the notes thereto or, in the case of unaudited
financial statements, as permitted by the regulations and rules promulgated under the Exchange Act.
Except for liabilities and obligations incurred in the ordinary course of business since December
31, 2007, neither Buyer nor any of its Subsidiaries has any liabilities or obligations of any
nature which, individually or in the aggregate, could reasonably be expected to have a Buyer
Material Adverse Effect.



     Section 5.8 Absence of Certain Changes. Since December 31, 2007, Buyer and its
Subsidiaries have operated their business only in the ordinary course of business consistent with
past practices, and without limiting the foregoing, there has not been any change, event or effect
that, individually or in the aggregate, would reasonably be expected to result in a Buyer Material
Adverse Effect.



     Section 5.9 Compliance. The businesses of each of Buyer and its Subsidiaries have
been, and are being, conducted in compliance in all material respects with all Laws. Without
limiting the foregoing, Buyer is in compliance in all material respects with the applicable listing
and corporate governance rules and regulations of the New York Stock Exchange.



     Section 5.10 Brokers. Neither Buyer nor any of its Subsidiaries or Affiliates has
entered into any contract, arrangement or understanding with any Person or firm that may result in
the obligation of such entity or the Company to pay any finder’s fees, brokerage or agent’s
commissions or other like payments in connection with the negotiations leading to this Agreement or
consummation of the Merger, except that Buyer has retained Morgan Stanley & Co. Incorporated to
deliver a fairness opinion to Buyer’s Board of Directors and will owe fees to Morgan Stanley & Co.
Incorporated for delivering that fairness opinion.



     Section 5.11 Litigation. There is no litigation, action, suit, claim, arbitration,
investigation or other proceeding pending or, to the knowledge of Buyer or MergerCo, threatened,
against Buyer or any of its Subsidiaries, that, individually or in the aggregate, has had



50









 




or would reasonably be expected to have a Buyer Material Adverse Effect, and neither Buyer nor
any of its Subsidiaries is a party to or subject to any provision of any outstanding writ, order,
judgment, injunction, decree or award of any Governmental Body that, individually or in the
aggregate, would reasonably be expected to result in a Buyer Material Adverse Effect.



     Section 5.12 Inspection. Buyer is an informed and sophisticated Person, and has
engaged expert advisors experienced in the evaluation and acquisition of companies such as the
Company and its Subsidiaries as contemplated hereunder. Buyer has undertaken such investigation
and has been provided with and has evaluated such documents and information as it has deemed
necessary to enable it to make an informed and intelligent decision with respect to the execution,
delivery and performance of this Agreement and the transactions contemplated hereby. Buyer
acknowledges that (a) the Company does not make any representation or warranty with respect to (i)
any projections, estimates or budgets delivered to or made available to Buyer or MergerCo of future
revenues, future results of operations (or any component thereof), future cash flows or future
financial condition (or any component thereof) of the Company and its Subsidiaries or the future
business and operations of the Company and its Subsidiaries or (ii) any other information or
documents made available to Buyer or MergerCo or their counsel, accountants or advisors with
respect to the Company, its Subsidiaries or any of their respective businesses, assets, liabilities
or operations, except as expressly set forth in Article IV of this Agreement (including the
accompanying Schedules) or made pursuant to Article VIII of this Agreement, and (b) neither Buyer
nor MergerCo has relied or will rely upon any of the information described in subclauses (i) and
(ii) of clause (a) above or any other information, representation or warranty except those
representations or warranties set forth in Article IV of this Agreement or made pursuant to Article
VIII of this Agreement in negotiating, discussing, executing, delivering and performing this
Agreement and the transactions contemplated hereby.



     Section 5.13 No other Representations and Warranties; Knowledge.


          (a) NONE OF BUYER OR ANY OF ITS SUBSIDIARIES (INCLUDING MERGERCO) OR ANY OF ITS
REPRESENTATIVES, DIRECTORS, OFFICERS OR STOCKHOLDERS, HAS MADE ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER RELATING TO BUYER OR ANY OF ITS SUBSIDIARIES
(INCLUDING MERGERCO) OR THE BUSINESS OF BUYER OR ANY OF ITS SUBSIDIARIES (INCLUDING MERGERCO) OR
REPRESENTATIVES OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, OTHER THAN
THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS ARTICLE V OR AS PROVIDED PURSUANT
TO ARTICLE VIII.


          (b) Without limiting the generality of the foregoing, neither Buyer, nor MergerCo, nor any
representative of Buyer or MergerCo, nor any of their respective employees, officers, directors or
stockholders, has made, and shall not be deemed to have made, any representations or warranties in
any materials relating to the business of Buyer and its Subsidiaries (including MergerCo) and
stockholders made available to the Company and its Subsidiaries and Stockholders, including due
diligence materials, or in any presentation of the business of Buyer and its Subsidiaries
(including MergerCo) by management of Buyer, MergerCo or others in connection with the transactions
contemplated hereby, and no statement



51









 







contained in any of such materials or made in any such presentation shall be deemed a
representation or warranty hereunder or otherwise or deemed to be relied upon by Company or the
Stockholders in executing, delivering and performing this Agreement and the transactions
contemplated hereby. It is understood that any cost estimates, projections or other predictions,
any data, any financial information or any memoranda or offering materials or presentations,
including but not limited to, any offering memorandum or similar materials made available by Buyer,
MergerCo and their representatives are not and shall not be deemed to be or to include
representations or warranties of Buyer or MergerCo, and are not and shall not be deemed to be
relied upon by Company in executing, delivering and performing this Agreement and the transactions
contemplated hereby.


          (c) For the avoidance of doubt, this Section 5.13 shall not apply, or otherwise be deemed in
any manner, to limit any Person from seeking any available remedy for fraud.



ARTICLE VI




CONDUCT OF BUSINESS PENDING THE MERGER




     Section 6.1 Conduct of Business Prior to Closing. Except as expressly permitted in
this Section 6.1, set forth in Schedule 6.1 or as consented to in writing by Buyer, during
the period commencing on the date of this Agreement and ending at the Effective Time or such
earlier date as this Agreement may be terminated in accordance with its terms (the “Pre-Closing
Period”), the Company shall, and shall cause each of its Subsidiaries to, (a) act and carry on
its business in the ordinary course of business consistent with past practice and comply with all
applicable Laws, (b) use commercially reasonable efforts to maintain and preserve its and each of
its Subsidiaries’ business organization, assets and properties and existing relationships and
goodwill with customers, suppliers, creditors, lessor, sub-lessees and employees and (c) use
commercially reasonable efforts to protect, defend and maintain the ownership, validity and
registration of the Company Intellectual Property. Without limiting the generality of the
foregoing, except as expressly permitted herein or as set forth in Schedule 6.1 and except
that the Company may renew or extend its existing revolving credit facility with JPMorgan Chase
Bank N.A. (but may not borrow under such facility without the prior written consent of Buyer),
during the Pre-Closing Period, the Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, do any of the following without the prior written consent of Buyer
(which consent shall not be unreasonably withheld):


          (a) except as set forth in Schedule 6.1(a), split, subdivide, combine, redeem or
reclassify, purchase or otherwise acquire, directly or indirectly, any of its capital stock or
securities convertible or exchangeable into or exercisable for any shares of its capital stock or
issue or authorize the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock or any of its other securities (it being understood
that the foregoing will not apply to the forfeiture of Company Restricted Stock or the acquisition
of Company Restricted Stock for nominal or de minimis consideration, in each case in accordance
with the terms of the applicable outstanding Company Restricted Stock agreement as in effect on the
date of this Agreement);



52









 







          (b) except as set forth in Schedule 6.1(b), authorize for issuance, issue, sell,
pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge,
disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its
capital stock or of any its Subsidiaries (other than the issuance of shares by its wholly-owned
Subsidiary to it or another of its wholly-owned Subsidiaries), or securities convertible or
exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or
other rights of any kind to acquire any shares of such capital stock or such convertible or
exchangeable securities (other than the issuance of shares of Common Stock upon the exercise of
outstanding Company Options, in accordance with their terms or upon the conversion of any shares of
Convertible Preferred Stock, in each case, that are outstanding on the date of this Agreement);


          (c) make any change to the Certificate of Incorporation or By-laws or the organizational
documents of its Subsidiaries, or change the authorized capital stock or equity interests of the
Company or any Subsidiary;


          (d) declare, set aside, make or pay any dividend or other distribution, payable in cash,
stock, property or otherwise, with respect to any of its capital stock (except for dividends paid
by any direct or indirect wholly-owned Subsidiary to it or to any other direct or indirect
wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its capital
stock;


          (e) merge or consolidate itself or any of its Subsidiaries with any other Person, except for
any such transactions among its wholly-owned Subsidiaries, or restructure, reorganize or completely
or partially liquidate;


          (f) except as set forth in Schedule 6.1(f), (i) incur any Indebtedness for Borrowed Money, or
guarantee any indebtedness of another Person, (ii) issue, sell or amend any debt securities of the
Company or any of its Subsidiaries, guarantee any debt securities of another Person, or enter into
any “keep well” or other agreement to maintain any financial statement condition of another Person,
(iii) make any loans, advances (other than routine travel advances, not to exceed $10,000, to
employees of the Company and its Subsidiaries in the ordinary course of business consistent with
past practice) or capital contributions to, or investment in, any other Person, other than the
Company or any of its direct or indirect wholly owned Subsidiaries; provided,
however, that the Company may, in the ordinary course of business and consistent with prior
practices, continue to invest in debt securities maturing not more than 365 days after the date of
investment, or (iv) mortgage, pledge or otherwise encumber any assets, or create or suffer any
material lien thereupon, except, in each case, in the ordinary course of business and consistent
with prior practices pursuant to credit facilities in existence on the date hereof (or any
extensions, renewals or refinancings thereof);


          (g) (i) prepay any loans (if any) from its Stockholders, officers or directors or any Person
affiliated with any of the foregoing, or (ii) make any change in its borrowing arrangements, or
(iii) knowingly waive, release or assign any rights or claims (including any write-off or other
compromise of any accounts receivable of the Company or any of its Subsidiaries), other than any
such immaterial waiver, release, assignment, write-off or compromise made in the ordinary course of
business consistent with past practice; provided,



53









 







however, that, for the avoidance of doubt, the Company shall not be prohibited from
paying any Indebtedness for Borrowed Money or any expenses in connection with the Merger and
related transactions;


          (h) make any changes with respect to accounting policies or procedures, except as required by
changes in Law or by GAAP;


          (i) except as required pursuant to existing written, binding agreements in effect prior to the
date of this Agreement and set forth in Schedule 6.1(i) or as otherwise required by
applicable Law:




     (i) increase the rates of direct compensation or bonus compensation, severance
benefits, welfare benefits or any other benefits payable or to become payable to any
officer, management level employee, agent or consultant of the Company or any
Subsidiary;




     (ii) establish, adopt, amend or terminate any Benefit Plans (including but not
limited to any change in the character of any 401(k) plan from single-employer to
multiple-employer status) or amend the terms of any outstanding equity-based awards
grant or provide any severance or termination payments or benefits to any director,
officer or employee of the Company or any of its Subsidiaries;




     (iii) forgive any loans to directors, officers or employees of the Company or
any of its Subsidiaries; and




     (iv) change any actuarial or other assumptions used to calculate funding
obligations with respect to any Benefit Plan or to change the manner in which
contributions to such plans are made or the basis on which such contributions are
determined, except as may be required by GAAP.


          (j) acquire assets other than in the ordinary course of business consistent with past practice
or as set forth in the 2008 annual forecast of the Company that has been provided to Buyer (the
“Annual Budget”) and consistent therewith from any Person in any transaction or series of
transactions;


          (k) except as set forth in the Annual Budget and consistent therewith, make or authorize any
capital expenditure in excess of $100,000 individually or $1,000,000 in the aggregate;


          (l) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel,
abandon or allow to lapse or expire (except in accordance with the current terms of any agreement
of the Company or any of its Subsidiaries that is currently in effect) or otherwise dispose of any
material properties or material assets of the Company or its Subsidiaries (including product lines
or businesses and capital stock of any of its Subsidiaries), except (i) in connection with services
provided in the ordinary course of business consistent with past practice



54









 







or (ii) pursuant to Contracts in effect prior to the date of this Agreement, and other than
the sale of the assets listed on Schedule 6.1(l) ;


          (m) except for Company Transaction Expenses and contractual obligations in effect on the date
of this Agreement and disclosed in Schedule 6.1 that the Company and its Subsidiaries are required
to perform or discharge, expend, disburse or advance any cash or cash equivalents outside the
ordinary course of business consistent with past practice;


          (n) except in the ordinary course of business consistent with past practice or as expressly
provided in this Agreement, materially amend or terminate any Material Contract to which the
Company or any of its Subsidiaries is party;


          (o) except as set forth in Schedule 6.1(o) and other than in the ordinary course of
business consistent with past practice, enter into any Contract that would have been a Material
Contract had it been entered into prior to this Agreement;


          (p) make or change any Tax election, change any annual Tax reporting period, adopt or change
any Tax accounting method, file any amended Tax Return, enter into any closing agreement, settle
any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right
to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable
to any Tax claim or assessment, or take any other similar action related to the filing of any Tax
Return or the payment of any Tax, if such election, adoption, change, amendment, agreement,
settlement, surrender, consent or other action would have the effect of increasing the Tax
liability of the Company or any of its Subsidiaries for any Tax period ending after the Closing
Date or decreasing any Tax attribute of the Company or any of its Subsidiaries existing on the
Closing Date;


          (q) except as set forth in Schedule 6.1(q), settle or compromise any litigation,
investigations or other disputes (whether or not commenced prior to the date of this Agreement)
other than settlements or compromises for litigation or other disputes where the amount paid in
settlement or compromise does not exceed $100,000 individually or $1,000,000 in the aggregate, for
all such litigation or other disputes;


          (r) take any action that could reasonably be foreseen to result in any of the conditions to
the Merger set forth in Article VIII not being satisfied;


          (s) except as set forth in Schedule 6.1(s), dispose of or permit to lapse any
ownership and/or right to the use of any patent, trademark, trade name, service mark, or copyright
owned by the Company or its Subsidiaries (including any of the Company Intellectual Property owned
by the Company or its Subsidiaries), or dispose of or disclose to any Person, any Confidential
Information (except, for the avoidance of doubt, expiration of patents at the end of their full
statutory term), except in accordance with the terms of an agreement in effect on the date hereof;


          (t) allow any of the Registered Intellectual Property to be abandoned, forfeited, cancelled,
expunged and/or dedicated to the public (except, for the avoidance of doubt, expiration of patents
at the end of their full statutory term);



55









 







          (u) amend, modify or supplement the Annual Budget; or


          (v) enter into any executory agreement, commitment or undertaking (whether in writing or
orally) to do any of the activities prohibited by the foregoing provisions.



     Section 6.2 Communications. Notwithstanding the foregoing, prior to making any
written or material broad-based oral communications to the directors, officers or employees of the
Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected
by the transactions contemplated by this Agreement, the Company shall provide Buyer with a copy of
the intended communication, Buyer shall have a reasonable period of time to review and comment on
the communication, and Buyer and the Company shall cooperate in providing any such mutually
agreeable communication.



ARTICLE VII




ADDITIONAL AGREEMENTS




     Section 7.1 Stockholders Consent.


          (a) The Company shall use its reasonable best efforts to promptly obtain and deliver to Buyer
a true, correct and complete copy of the irrevocable and unconditional Stockholder Written Consent,
executed and delivered by the Stockholders named on Exhibit A hereto, evidencing the
adoption of this Agreement and the approval of the Merger, including (i) the deposit of the Escrow
Shares and Escrow Cash into the Escrow Funds, (ii) the right of the Buyer Indemnified Parties,
subject to the terms and conditions of this Agreement and the Escrow Agreement, to set off the
amount of any Losses with respect to which the Indemnified Parties are entitled to indemnification
against the Escrow Funds in accordance with and subject to the limitations set forth herein, and
(iii) the appointment of the Stockholders’ Representative as the agent and attorney-in-fact for the
Stockholders, having the powers and rights to limited liability and indemnification set forth
herein.


          (b) In accordance with this Agreement, the DGCL, and the Certificate of Incorporation, the
Company shall use its commercially reasonable efforts to obtain a written consent in the same form
as the irrevocable and unconditional Stockholder Written Consent from all of its other Stockholders
who are not signatories to the Stockholder Written Consent. In furtherance thereof, the Company
shall promptly, but in no event later than ten (10) Business Days after the date hereof, deliver to
its Stockholders a form of written consent together with notice and a description of the adoption
of this Agreement and approval of the Merger and the other matters approved in the Stockholder
Written Consent. The document containing such information (the “Information Statement”)
shall be prepared by the Company, shall, subject to Section 7.1(c), include the Board
Recommendation (defined in Section 7.1(c)) and the notice required by Section 228 of the DGCL, and
shall be reasonably satisfactory to Buyer. The Information Statement shall not, as of the date of
mailing, contain any untrue statement of a material fact, or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances under which they were
made, not misleading. The Company shall also



56









 







deliver such notices and take such other actions as are required prior to the Closing to
comply with the provisions of Section 262 of the DGCL, and if the Merger is approved pursuant to
Section 228 of the DGCL shall promptly give any notice required of it under Section 262(d)(2), such
that any Stockholder entitled under the Appraisal Rights Provisions to demand appraisal for its
shares of Company Stock must do so on or before the Demand Date in order to perfect its statutory
rights to such appraisal.


          (c) The Board of Directors of the Company shall not withdraw, alter, modify, change or revoke
(i) its recommendation to the Stockholders to vote in favor of adoption and approval of this
Agreement (the “Board Recommendation”) nor (ii) its approval of this Agreement, the Merger
and the other transactions contemplated by this Agreement.


          (d) Promptly, but in any event within one (1) Business Day following execution of this
Agreement by the parties hereto, MergerCo shall deliver to the Company a true, correct and complete
copy of an action by written consent, executed and delivered by Buyer evidencing the adoption of
this Agreement and the approval of the Merger.



     Section 7.2 Access to Information.


          (a) Without unreasonable disruption of its or its Subsidiaries’ businesses, and subject to
Section 7.2(b) below, between the date of this Agreement and the Closing Date, the Company shall,
and shall cause each of its Subsidiaries and each of the Company’s and its Subsidiaries’ officers,
employees and agents to, give Buyer and MergerCo and their representatives reasonable access upon
reasonable notice and during times mutually convenient to Buyer and MergerCo and senior management
of the Company and its Subsidiaries to the facilities, properties, employees, books and records of
the Company and its Subsidiaries as from time to time may be reasonably requested.


          (b) Buyer and MergerCo shall use commercially reasonable efforts so that any such
investigation does not unreasonably interfere with any of the businesses or operations of the
Company or its Subsidiaries. All requests by Buyer or MergerCo for access or information shall be
submitted or directed exclusively to an individual or individuals to be designated by the Company.
In the event that Buyer desires to contact any partner, lender, lessor, vendor, customer, supplier,
employee or consultant of the Company or any of its Subsidiaries with respect to the Company or its
Subsidiaries or with respect to the transactions contemplated by this Agreement, Buyer shall first
inform the Company of such fact and the Company shall cooperate reasonably with Buyer to facilitate
such contact and, if requested by the Company, to contact any of the foregoing jointly with Buyer.


          (c) The Company will prepare and furnish to Buyer as soon as they become available, and in any
event, not later than thirty (30) days after the end of each month (commencing with the month ended
April 30, 2008; provided that the Company shall have until June 10 to deliver the
statements for the month ended April 30, 2008) an unaudited consolidated balance sheet and
unaudited unconsolidated statements of income and cash flows for the Company and its Subsidiaries
for each such full monthly period prior to the Closing. The Company will prepare each of the
foregoing financial statements on a basis consistent with the Estimated Reference Date Balance
Sheet.



57









 








     Section 7.3 Confidentiality. The parties shall adhere to the terms and conditions of
that certain confidentiality and non-disclosure agreement, by and between the Company and Buyer,
dated November 6, 2007 (the “Confidentiality Agreement”).



     Section 7.4 Regulatory and Other Authorizations; Consents.


          (a) Prior to the Closing Date, the Company and its Subsidiaries, as necessary, shall use
commercially reasonable efforts to obtain the consent or approval (or waiver thereof) of any Person
that is necessary for the execution and delivery, and the performance of their obligations pursuant
to this Agreement, subject to the other provisions of this Section 7.4; provided,
however, that neither the Company nor any Subsidiary shall have any obligation to offer or
pay any consideration in order to obtain any such consents or approvals, other than filing fees and
similar payments it may be required to make and the fees and expenses of advisors and agents it
engages in connection with obtaining such consents or approvals. During the period prior to the
Closing Date, Buyer shall use commercially reasonably efforts to cooperate with the Company and its
Subsidiaries in attempting to obtain the consents, approvals and waivers contemplated by this
Section 7.4(a).


          (b) The parties hereto shall use commercially reasonable efforts, and shall cooperate with
each other, in attempting to obtain any consents and approvals (or waivers thereof) of any
Governmental Body required to permit the consummation of the transactions contemplated by this
Agreement. Buyer and the Company (and its Subsidiaries) shall advise each other as to material
developments with respect to the status of receipt of approvals. Without limitation of the
foregoing:




     (i) each party hereto agrees to make an appropriate filing of a Pre-Merger
Notification and Report Form under the HSR Act with respect to the transactions
contemplated by this Agreement within ten (10) Business Days after the date hereof,
and to supply promptly any additional information and documentary material that may
be requested pursuant to the HSR Act. The parties hereto will not unreasonably take
any action that will have the effect of delaying, impairing or impeding the receipt
of any required approvals and shall promptly respond to any requests for additional
information from any Governmental Body or other third party in respect thereof.
Buyer shall pay all filing and related fees in connection with any such filings that
must be made by any of the parties under the HSR Act. Subject to Section 7.4(c)
below, Buyer hereby covenants and agrees to use its commercially reasonable efforts
to secure termination of any waiting periods under the HSR Act or any other
applicable Law and to obtain the approval of the Federal Trade Commission (the
“FTC”), the Antitrust Division of the United States Department of Justice
(the “DOJ”) or any other Governmental Body, as applicable, for the Merger
and the other transactions contemplated hereby;




     (ii) the Company agrees to make, within thirty (30) days after the date hereof,
all appropriate filings with FINRA pursuant to NASD Rule 1017 in relation to the
change in ownership of Creditex Securities Corp. resulting from the



58









 






transactions contemplated by this Agreement, and each of the parties hereto
agrees to provide such information as is reasonably necessary to enable the Company
to make such filing and to cooperate with the Company and FINRA to enable the
approval of FINRA to be obtained; and




     (iii) promptly, but in no event later than 15 Business Days after the date
hereof, Buyer and MergerCo agree to make all appropriate filings with the United
Kingdom Financial Services Authority (“FSA”) in relation to the proposed
acquisition of control (as defined for the purposes of Part XII of the United
Kingdom Financial Services and Markets Act 2000 (“FSMA”)) of each of
Creditex Brokerage LLP, T-Zero International Limited and Q-Wixx International
Limited (the “Authorized Group Companies”) with a view to obtaining from the
FSA an indication, in terms satisfactory to Buyer (acting reasonably) that the FSA
has no objection to Buyer, MergerCo and each of their controllers acquiring control
of each of the Authorized Group Companies, or the relevant three month period for
consideration by the FSA having elapsed with no warning notice having been given
under Section 183(3) of FSMA, and each of the parties hereto agrees to provide such
information about the business of the parties and to co-operate with each other and
the FSA, as is reasonably necessary, to prepare and submit such filings and to
obtain any necessary consent from the FSA in relation to the proposed acquisition of
control.


          (c) Notwithstanding anything herein to the contrary, neither the Company nor any Subsidiary
nor Buyer shall be obligated to contest any final action or decision taken by any Governmental Body
challenging the consummation of the transactions contemplated by this Agreement, and nothing in
this Agreement, including without limitation, this Section 7.4, shall require, or be construed to
require, Buyer or the Company nor any of their Affiliates to proffer to, or agree to, sell, divest,
lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to sell,
divest, lease, license, transfer, dispose of or otherwise encumber before or after the Effective
Time, any assets, licenses, operations, rights, product lines, businesses or interest therein of
Buyer, the Company or any of their respective Affiliates (or to consent to any sale, divestiture,
lease, license, transfer, disposition or other encumberment by the Company of any of its assets,
licenses, operations, rights, product lines, businesses or interest therein or to any agreement by
the Company to take any of the foregoing actions) or to agree to any material changes (including,
without limitation, through a licensing arrangement) or restriction on, or other impairment of
Buyer’s ability to own or operate, any such assets, licenses, product lines, businesses or
interests therein or Buyer’s ability to vote, transfer, receive dividends or otherwise exercise
full ownership rights with respect to the stock of the Surviving Corporation.



     Section 7.5 Press Releases. The initial press release regarding the Merger shall be a
joint press release. Thereafter Buyer and the Company shall use commercially reasonable efforts to
develop a joint communications plan and each party shall use commercially reasonable efforts to
ensure that all press releases and other public statements with respect to the transactions
contemplated hereby shall be consistent with such joint communications plan. In addition to the
foregoing, neither Buyer or its Subsidiary on the one hand or the Company or its Subsidiary on



59









 




the other hand shall issue any press release or otherwise make any public statement or
disclosure concerning the other party or the other party’s business, financial condition or results
of operations without the consent of the other party, which consent shall not be unreasonably
withheld or delayed, except for any such release, statement or disclosure that may be required by
applicable Law.



     Section 7.6 No Solicitations.


          (a) The Company will not, and will not permit any of its Subsidiaries or any of the directors,
officers, employees, advisors, representatives or agents of the Company or any of its Subsidiaries
to, (i) discuss, negotiate, undertake, authorize, recommend, propose or enter into, either as the
proposed surviving, merged, acquiring or acquired corporation, any transaction involving a merger,
consolidation, business combination, purchase or disposition of any amount of the assets of the
Company (other than in the ordinary course of business) or any of its Subsidiaries or any capital
stock of the Company or any of its Subsidiaries other than the transactions contemplated by this
Agreement (an “Acquisition Transaction”), (ii) facilitate, encourage, solicit or initiate
discussions, negotiations or submissions of proposals or offers in respect of an Acquisition
Transaction, (iii) furnish or cause to be furnished, to any Person or entity, any information
concerning the business, operations, properties or assets of the Company or its Subsidiaries in
connection with an Acquisition Transaction, or (iv) otherwise cooperate in any way with, or assist
or participate in, facilitate or encourage, any effort or attempt by any other Person or entity to
do or seek any of the foregoing.


          (b) The Company shall, and shall cause its Subsidiaries, and their respective directors,
officers, employees, advisors, representatives and agents to, immediately cease and cause to be
terminated any existing discussions or negotiations with any Persons or entities (other than Buyer
and MergerCo) conducted heretofore with respect to any other Acquisition Transaction.



     Section 7.7 Officers’ and Directors’ Indemnification.


          (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation,
whether civil, criminal or administrative, including, without limitation, any such claim, action,
suit, proceeding or investigation in which any Person who is now, or has been at any time prior to
the date hereof, or who becomes prior to the Effective Time, a director, officer, employee,
fiduciary or agent of the Company or any of its Subsidiaries (the “Specified Indemnified
Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in
whole or in part out of, or pertaining to (i) the fact that he or she is or was a director,
officer, employee, fiduciary or agent of the Company or any of its Subsidiaries, or is or was
serving at the request of the Company or any of its Subsidiaries as a director, officer, employee,
fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise or
(ii) the negotiation, execution or performance of this Agreement or any of the transactions
contemplated hereby, whether in any case asserted or arising before or after the Effective Time,
the Company agrees to defend against and respond thereto. It is understood and agreed that the
Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation
shall indemnify and hold harmless, as and to the full extent permitted by applicable



60









 







Law, each Specified Indemnified Party against any losses, claims, damages, liabilities, costs,
expenses (including reasonable attorneys’ fees and expenses), judgments, fines and amounts paid in
settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding
or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding
or investigation (whether asserted or arising before or after the Effective Time), (A) the Company,
and the Surviving Corporation and Buyer after the Effective Time, shall promptly pay expenses
incurred by each Specified Indemnified Party as the same are incurred in advance of the final
disposition of any claim, suit, proceeding or investigation to such Specified Indemnified Party;
provided, that the Specified Indemnified Party to whom expenses are advanced shall first
provide an undertaking to repay such advances if it is ultimately determined that such Specified
Indemnified Party is not entitled to have its expenses paid or to be indemnified in the manner
contemplated hereby, and (B) the Company and the Surviving Corporation will cooperate in a
reasonable manner to assist in the defense of any such matter; provided, however,
that none of the Company, the Surviving Corporation or Buyer shall be liable for any settlement
effected without its prior written consent; and provided further that the Company,
Surviving Corporation and Buyer shall have no obligation hereunder to any Specified Indemnified
Party when and if a court of competent jurisdiction shall ultimately determine, and such
determination shall have become final and non-appealable, that the payment of expenses to or the
indemnification of such Specified Indemnified Party in the manner contemplated hereby is prohibited
by applicable Law. Any Specified Indemnified Party wishing to claim indemnification under this
Section 7.7, upon learning of any such claim, action, suit, proceeding or investigation, shall
notify the Company and, after the Effective Time, the Surviving Corporation and Buyer thereof;
provided, however, that the failure to so notify shall not affect the obligations
of the Company, the Surviving Corporation and Buyer except to the extent such failure to notify
prejudices such party.


          (b) Buyer and MergerCo agree that all rights to indemnification or exculpation existing in
favor of, and all limitations on the personal liability of, each present and former director,
officer, employee, fiduciary and agent of the Company and its Subsidiaries provided for in their
respective charters or by-laws or otherwise in effect as of the date hereof shall continue in full
force and effect for a period of six (6) years from the Effective Time; provided,
however, that all rights to indemnification in respect of any claims (each a
“Claim”) asserted or made within such period shall continue until the disposition of such
Claim. Without limiting the general indemnification rights of the Indemnified Parties under this
Section 7.7, from and after the Effective Time, the Surviving Corporation also agrees to indemnify
and hold harmless the present and former officers and directors of the Company and its Subsidiaries
in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any
written indemnification agreements between the Company and/or one or more of its Subsidiaries.


          (c) At the Effective Time, the Surviving Corporation shall purchase (at Buyer’s expense) an
extended reporting period endorsement under the Company’s existing directors’ and officers’
liability insurance coverage (the “D&O Tail Policy”) for the Company’s and its
Subsidiaries’ directors and officers in a form acceptable to the Company that shall provide such
directors and officers with coverage for six (6) years following the Effective Time of not less
than the existing coverage and have other terms not materially less favorable to, the insured
persons than the directors’ and officers’ liability insurance coverage presently



61









 







maintained by the Company; provided, however, that the aggregate cost of such
policy shall not exceed $500,000 (the “Premium Limit”), and in the event that the Premium
Limit is insufficient for such coverage, Buyer shall purchase the maximum amount of coverage that
is available for such amount. Buyer shall, and shall cause the Surviving Corporation to, maintain
such policy in full force and effect, and continue to honor the obligations thereunder.


          (d) The obligations under this Section 7.7 shall not be terminated or modified in such a
manner as to adversely affect any Specified Indemnified Party to whom this Section 7.7 applies
without the consent of such Specified Indemnified Party (it being expressly agreed that the
Specified Indemnified Parties to whom this Section 7.7 applies shall be third party beneficiaries
of this Section 7.7 and shall be entitled to enforce the covenants contained herein).


          (e) In the event Buyer or the Surviving Corporation or any of their respective successors or
assigns (i) consolidates with or merges into any other Person and shall not be the continuing or
surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or
substantially all of its properties and assets to any Person, then, and in each such case, to the
extent necessary proper provision shall be made so that the successors and assigns of Buyer or the
Surviving Corporation, as the case may be, assume the obligations set forth in this Section 7.7.



     Section 7.8 Employee Benefit Arrangements.


          (a) Buyer agrees that, during the period commencing at the Effective Time and ending on the
first anniversary thereof, the employees of the Company and its Subsidiaries will continue to be
provided with pension and welfare benefits under employee benefit plans that are substantially
comparable in the aggregate than those currently provided by the Company and its Subsidiaries to
such employees or substantially comparable in the aggregate to those provided to similarly situated
employees of Buyer and its Subsidiaries, as elected by Buyer in its sole discretion. Buyer will
cause any employee benefit plans which the employees of the Company and its Subsidiaries are
eligible to participate in to take into account for purposes of eligibility and vesting thereunder,
except for purposes of qualifying for subsidized early retirement benefits or to the extent it
would result in a duplication of benefits, service by employees of the Company and its Subsidiaries
as if such service were with Buyer, to the same extent such service was credited under a comparable
plan of the Company and its Subsidiaries and to the extent that such time period is recognized
under the terms of such plan of Buyer.


          (b) Each of Buyer and the Company acknowledges that, for the Benefit Plans listed on
Schedule 7.8(b), the consummation of the transactions contemplated by this Agreement will
constitute a change in control of the Company. Each of Buyer and the Company further acknowledge
that, for the avoidance of doubt, the consummation of the transactions contemplated by this
Agreement will not constitute a “Transaction Event” for purposes of the T-Zero Long-Term Incentive
Plan and the Q-Wixx Long-Term Incentive Plan.


          (c) Prior to the Effective Time, if requested by Buyer in writing, to the extent permitted by
applicable Law and the terms of the applicable plan or arrangement, the Company shall (1) cause to
be amended the Benefit Plans and arrangements of it and its Subsidiaries to the extent necessary to
provide that no employees of Buyer and its Subsidiaries shall commence



62









 







participation therein following the Effective Time unless the Surviving Corporation or such
Subsidiary explicitly authorizes such participation and (2) cause the Company’s 401(k) Plan to be
terminated effective immediately prior to the Effective Time.


          (d) To the same extent that such service was recognized by the Company for purposes of the
Benefit Plans, Buyer shall, and shall cause the Surviving Corporation to, treat, and cause the
applicable benefit plans to treat, the service of Surviving Corporation employees with the Company
or the Subsidiaries of the Company attributable to any period before the Effective Time as service
rendered to Buyer or the Surviving Corporation for all purposes (except for purposes of qualifying
for subsidized early retirement benefits, for purposes of benefit accrual under any defined benefit
pension plans or to the extent that it would result in a duplication of benefits), including but
not limited to, eligibility to participate, vesting and applicability of any minimum waiting
periods for participation. Without limiting the foregoing, to the extent reasonably practicable
under the Company’s contracts with its insurance carrier(s), Buyer shall not, and shall cause the
Surviving Corporation not to, treat any Surviving Corporation employee as a “new” employee for
purposes of any exclusions under any health or similar plan of Buyer or the Surviving Corporation
for a pre-existing medical condition, and any deductibles and co-pays paid under any of the
Company’s or any of its Subsidiaries’ health plans shall be credited towards deductibles and
co-pays under the health plans of Buyer or the Surviving Corporation to the extent recognized under
the analogous Benefit Plans. Notwithstanding the foregoing, nothing contained herein shall (1) be
treated as an amendment of any particular Benefit Plan, (2) give any third party any right to
enforce the provisions of this Section 7.8, or (3) obligate Buyer, the Surviving Corporation or any
of its Affiliates to (i) maintain any particular Benefit Plan or (ii) retain the employment of any
particular employee.



     Section 7.9 Tax Matters.


          (a)   (i) Preparation and Filing of Tax Returns. Buyer shall timely prepare and file,
or shall cause to be timely prepared and filed, all Tax Returns of the Company and its Subsidiaries
with respect to any taxable year or period that ends on or before the Closing Date, and, with
respect to any taxable year or period beginning on or before and ending after the Closing Date
(each, a “Straddle Tax Period”), the portion of such taxable year or period ending on and
including the Closing Date (each, a “Pre-Closing Tax Period”) which are due after the
Closing Date; provided, however, that Buyer shall provide each such Tax Return to
the Stockholders’ Representative for its review and comment at least twenty (20) Business Days
prior to the date on which such Tax Return is to be filed, and Buyer shall make changes to each
such Tax Return as are reasonably requested by Stockholders’ Representative. Buyer shall cause any
amounts shown to be due on such Tax Returns to be timely remitted to the applicable Taxing
Authority. If any portion of the Taxes due with respect to such Tax Return is allocable to a
Pre-Closing Tax Period, then to the extent the applicable Tax liability has not already been taken
into account in the calculation of Stockholders Equity through an accrual or reserve, the Buyer
shall be indemnified against such Pre-Closing Tax Period Tax liabilities pursuant to Article IX
herein.


               (ii) Apportionment of Tax Liabilities. All Taxes imposed on and Tax liabilities with
respect to the income, property or operations of the Company or its Subsidiaries that relate to a
Straddle Tax Period shall be apportioned to the Pre-Closing Tax Period as



63









 







follows: (i) in the case of Taxes that are either (A) based upon or related to income or
receipts, capital or net worth, or (B) imposed in connection with any sale or other transfer or
assignment of property (real or personal, tangible or intangible) (other than conveyances pursuant
to this Agreement, as provided under Section 7.9(c)), such Taxes shall be deemed equal to the
amount which would be payable if the Tax year ended with the Closing Date (provided, however, that
exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction
for depreciation, shall be apportioned on a time basis); and (ii) in the case of Taxes imposed on a
periodic basis other than those described in clause (i), including property Taxes and similar ad
valorem obligations, such Taxes shall be deemed to be the amount of such Taxes for the entire
Straddle Tax Period (or, in the case of such Taxes determined on an arrears basis, the amount of
such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which
is the number of calendar days in the period ending on the Closing Date and the denominator of
which is the number of calendar days in the entire period. Section 7.9(c) shall control the
allocation of Transfer Taxes thereunder. Subject to the terms of this Agreement, Buyer shall be
held harmless and indemnified from the Escrow Funds for all Taxes of the Company or any of its
Subsidiaries that are attributable to any Pre-Closing Tax Period, whether shown on any original Tax
Return or amended Tax Return for the period therein, and Buyer shall be liable for all Taxes that
are attributable to any Tax period that begins after the Closing Date, and, with respect to any
taxable period beginning on or before and ending after the Closing Date, the portion of such
taxable year or period that begins immediately after the Closing Date (each, a “Post-Closing
Tax Period”).


               (iii) Tax Return Amendments; Disputes. Buyer (and its Subsidiaries and Affiliates)
shall not amend any Tax Returns of the Company or any Subsidiary of the Company for any Pre-Closing
Tax Period without the prior written consent of the Stockholders’ Representative, such consent not
to be unreasonably withheld. If there is a dispute with respect to whether the written consent of
the Stockholders’ Representative is being unreasonably withheld with respect to the amendment of a
Tax Return pursuant to this Section 7.9(a)(iii) and the Buyer and the Stockholders Representative
are unable to resolve such dispute, the parties shall jointly request the Accounting Referee to
resolve such dispute as promptly as possible. The Accounting Referee will make its determination of
whether or not the Stockholder Representative’s consent was unreasonably withheld on the basis of
whether or not the relevant position on the Tax Return with respect to which the Buyer seeks to
make an amendment satisfies the “reasonable basis” standard set forth in Treasury Regulations
Section 1.6662-3(b)(3). If the Accounting Referee is unable to make a determination with respect
to any disputed issue prior to the due date (including extensions) for the filing of the Tax Return
in question, the Buyer may file such Tax Return without the consent of the Stockholders’
Representative, subject, however, to the obligation thereafter to file an amended Tax Return
reflecting the final decision of the Accounting Referee (which decision shall be rendered prior to
the expiration of the period during which an amended Tax Return may validly be filed with respect
to the applicable taxable period), and provided that no claim for indemnification may be made by
the Buyer in respect of such disputed Tax Return until the Accounting Referee has rendered its
decision in respect of such dispute. Any decision rendered by the Accounting Referee in accordance
with this Section 7.9(a)(iii) shall be binding and conclusive, and any expenses relating to the
engagement of the Accounting Referee shall be shared equally by the Stockholders and the Buyer.



64









 







               (iv) Tax Contests. The Stockholders Representative shall have the right, at its own
expense, to participate in and to jointly (with the Buyer) control and settle the portion of any
audit, examination, or other administrative or judicial proceeding, contest, assessment, notice of
deficiency, or other adjustment or proposed adjustment relating to any and all Taxes (a “Tax
Contest”) for which Buyer may have a right to be indemnified for and held harmless from the
Escrow Funds pursuant to this Agreement. Buyer and Surviving Corporation shall give prompt written
notice of any such Tax Contest to the Stockholders Representative and shall execute appropriate
powers of attorney so as to allow the Stockholders Representative to participate in and jointly
control and settle any such Tax Contest as described above. In the event of a conflict between the
provisions set forth in Section 9.5 and this Section 7.9, the provisions of this Section 7.9 shall
control.


          (b) Cooperation on Tax Matters. Buyer, the Surviving Corporation and the
Stockholders’ Representative shall cooperate fully, as and to the extent reasonably requested by
the other parties, in connection with the filing of Tax Returns, the filing of any amended Tax
Return for a period prior to (or including) the Closing Date, any Tax audits, Tax proceedings or
other Tax-related claims, and the authorization and execution of any appropriate powers of attorney
to accomplish the foregoing. Such cooperation shall include providing records and information that
are reasonably relevant to any such matters, making employees available on a mutually convenient
basis to provide additional information, and explaining any materials provided pursuant to this
Section 7.9. Buyer, the Surviving Corporation and their respective Subsidiaries and Affiliates
shall not destroy or dispose of any Tax workpapers, schedules or other materials and documents
supporting Tax Returns of the Company and its Subsidiaries for Pre-Closing Tax Periods until the
latter of (i) the Indemnification Cut-Off Date, or (ii) the tenth anniversary of the Closing Date,
without the prior written consent of Stockholders’ Representative, and before any disposition or
destruction of such materials at any time, Buyer shall give thirty (30) days prior written notice
of any such proposed disposition or destruction to the Stockholders’ Representative, and the
Stockholders’ Representative shall have the right, in its sole discretion, to take possession of
such materials and documents.


          (c) Transfer Taxes. The Buyer, on the one hand, and all of the Stockholders, on the
other hand, shall each be liable for fifty percent (50%) of any transfer, value added, excise,
stock transfer, stamp, recording, registration and any similar Taxes (“Transfer Taxes”)
that become payable in connection with the Merger and other transactions contemplated hereby. The
applicable parties shall cooperate in filing such forms and documents as may be necessary to permit
any such Transfer Tax to be assessed and paid on or prior to the Closing Date in accordance with
any available pre-sale filing procedure, and to obtain any exemption or refund of any such Transfer
Tax.


          (d) Reorganization. Neither Buyer nor the Company shall take or cause to be taken any
action, whether before or after the Effective Time, that would disqualify the Merger as a
“reorganization” within the meaning of Section 368(a) of the Code.


          (e) Tax Representation Letter. The Company shall deliver to Sullivan & Cromwell LLP
and to Goodwin Procter LLP a “Tax Representation Letter,” dated as of the Closing Date and
signed by an officer of the Company, containing representations of the



65









 







Company, and Buyer shall deliver to Sullivan & Cromwell LLP and Goodwin Procter LLP a “Tax
Representation Letter,” dated as of the Closing Date and signed by an officer of Buyer, containing
representations of Buyer, in each case as shall be reasonably necessary or appropriate to enable
Goodwin Procter LLP to render the opinion described in Section 8.3(g) and Sullivan & Cromwell LLP
to render an opinion substantially similar to the opinion described in Section 8.3(g) to Buyer.


          (f) Stockholder Vote Concerning Code Section 280G. On or before the thirtieth (30th)
day following the date of this Agreement, the Company shall provide Buyer with a document stating:
(i) the estimated maximum amount that could be paid to each disqualified individual (as such term
is defined in Treasury Regulation Section 1.280G-1, and hereafter referred to as a
“Disqualified Individual”) in connection with the Merger and the other transactions
contemplated by this Agreement under all employment, severance and termination agreements, other
compensation arrangements and Benefit Plans currently in effect, assuming that the individual’s
employment with the Company is terminated immediately after the Effective Time, (ii) the grant
dates, exercise prices and vesting schedules applicable to each Company Option granted to the
individual, (iii) the “base amount” (as defined in Section 280G(b)(3) of the Code) for each such
individual as of the date of this Agreement, and (iv) the maximum additional amount that the
Company is estimated to have an obligation to pay to each Disqualified Individual to reimburse the
Disqualified Individual for any excise Tax imposed under Section 4999 of the Code with respect to
the Disqualified Individual’s “excess parachute payments” (as defined in Section 280G(b)(3) of the
Code) (including any Taxes, interest or penalties imposed with respect to the excise Tax). Prior
to the Effective Time and to the extent that Buyer determines necessary prior to the date that the
Company distributes to its Stockholders the information statement relating to the 280G Stockholder
Vote (as hereinafter defined), the Company shall conduct a Stockholder vote in a manner that
complies with the stockholder vote requirements needed to avail itself of the exemption for small
business corporations contained in Section 280G(b)(5) of the Code and the applicable regulations
promulgated thereunder (the “280G Stockholder Vote”), and shall, prior to the 280G
Stockholder Vote, use commercially reasonable efforts to cause its Disqualified Individuals to
waive any payments in respect of the Merger that would not be deductible pursuant to Section 280G
of the Code if the 280G Stockholder Vote fails the approval requirements set out in Section
280G(b)(5) of the Code and the applicable regulations promulgated thereunder. Prior to providing
the Company’s Stockholders with any materials necessary to comply with such requirements, the
Company shall provide a copy of such materials to Buyer in sufficient time (but in no event less
than five (5) Business Days prior to such 280G Stockholder Vote) to allow Buyer to comment thereon
and shall consider any such comments in good faith. If the 280G Stockholder Vote fails to achieve
the requisite approval in respect of any Disqualified Individual, the Company shall provide to
Buyer the name of such Disqualified Individuals and amounts waived.



     Section 7.10 Section 16(b) Matters. Prior to Closing, the Board of Directors of Buyer
shall adopt resolutions substantially in the form attached to this Agreement as Exhibit E
with respect to acquisitions pursuant to the Merger and the other transactions contemplated by this
Agreement of Buyer Stock and New Options by any officer of the Company that may, at the Effective
Time, be regarded as an individual subject to the reporting requirements of Section 16(a) of the
Securities Exchange Act of 1934, as amended, by virtue of his position with Buyer.



66









 





     Section 7.11 Further Action. Each of the parties hereto shall use its respective
commercially reasonable efforts to take or cause to be taken all appropriate action, do or cause to
be done all things necessary, proper or advisable and execute and deliver such documents and other
papers, as may be required to carry out the provisions of this Agreement and consummate and make
effective the transactions contemplated by this Agreement.



ARTICLE VIII




CONDITIONS TO THE MERGER




     Section 8.1 Conditions to the Obligations of Each Party to Effect the Merger. The
respective obligations of each party to effect the Merger are subject to the fulfillment or waiver
by consent of the other party, where permissible, at or prior to the Effective Time, of each of the
following conditions:


          (a) Stockholder Approval. This Agreement shall have been adopted and approved by a
Stockholder Written Consent representing the Required Stockholder Approval, in accordance with the
DGCL, the Certificate of Incorporation and the By-laws, and by the stockholder of MergerCo in
accordance with the DGCL, such adoption and approval shall represent the requisite approval
required by the Company’s Stockholders to consummate the Merger, and such adoption and approval
shall remain in full force and effect.


          (b) Hart-Scott-Rodino Act. The waiting period (and any extension thereof) applicable
to the consummation of the Merger under the HSR Act shall have expired or been terminated.


          (c) Governmental Consents. All licenses, permits, consents, authorizations,
approvals, qualifications and orders of Governmental Bodies required to consummate the Merger or
otherwise set forth in Schedule 8.1(c) of this Agreement shall have been obtained and shall
remain in full force and effect.


          (d) No Injunctions, Orders or Restraints; Illegality. No temporary, preliminary or
permanent injunction or other order, decree or ruling issued by a court or other Governmental Body
of competent jurisdiction nor any statute, rule, regulation or executive order promulgated or
enacted by any Governmental Body of competent jurisdiction shall be in effect which would have the
effect of (i) making the consummation of the Merger illegal or (ii) otherwise prohibiting the
consummation of the Merger, and no Governmental Body shall have instituted any proceeding or
proposed the enactment of any statute, rule, regulation or executive order that would reasonably be
expected to have any such effect.



     Section 8.2 Additional Conditions to Obligations of Buyer and MergerCo. The
obligations of Buyer and MergerCo to effect the Merger are further subject to the satisfaction of
the following conditions, any one or more of which may be waived by Buyer and MergerCo at or prior
to the Effective Time:



67









 




          (a) Representations and Warranties. Each of the representations and warranties of the
Company set forth in this Agreement shall be true and correct as of the date of this Agreement and
as of the Closing Date as though made on and as of such date and time (except to the extent that
any such representation and warranty speaks of a specified date, in which case such representation
and warranty shall be true and correct as of such specified date), except where the failure to be
so true and correct, individually or in the aggregate, has not had and would not reasonably be
expected to have a Company Material Adverse Effect.


          (b) Performance and Obligations of the Company. The Company shall have performed or
complied in all material respects with all agreements and covenants required by this Agreement to
be performed or complied with by it on or prior to the Effective Time.


          (c) Officer’s Certificate. Buyer shall have received a certificate executed and
delivered by the Company’s Chief Executive Officer or Chief Financial Officer, dated as of the
Closing Date, stating therein that the conditions set forth in Section 8.2(a), Section 8.2(b) and
Section 8.2(f) have been satisfied.


          (d) Secretary’s Certificate. The Company shall have delivered a certificate of an
authorized officer of the Company, dated as of the Closing Date, certifying as to (i) the
incumbency of officers of the Company executing documents executed and delivered in connection
herewith, (ii) the copies of the Certificate of Incorporation and By-laws, each as in effect from
the date of this Agreement until the Closing Date, and (iii) a copy of the resolutions of the
Company Board authorizing and approving the applicable matters contemplated hereunder.


          (e) Escrow Agreement. The Escrow Agreement shall remain in full force and effect as
between the Stockholders’ Representative and Buyer, and the Escrow Agent shall have executed and
delivered the Escrow Agreement.


          (f) No Material Adverse Effect; Preservation of Business. Since the date of this
Agreement, there shall not have occurred any change, event, circumstances or development that has
had, or is reasonably likely to have, a Company Material Adverse Effect. In addition, as of the
Closing Date:




     (i) The Persons employed by the Company and its Subsidiaries in the United
States and identified on Schedule 8.2(f)(i), to the extent described on such
Schedule, shall be full-time employees of the Company or one of its Subsidiaries as
of the Closing Date and shall not have provided to the Company or any of its
Subsidiaries notice of their intention to terminate such employment or retire
following the Closing;




     (ii) The Persons employed by the Company and its Subsidiaries in the United
Kingdom and identified on Schedule 8.2(f)(ii), to the extent described on
such Schedule, shall be full-time employees of the Company or one of its
Subsidiaries as of the Closing Date and shall not have provided to the Company or
any of its Subsidiaries any notice of their intention to terminate such employment
or retire following the Closing; and



68









 






     (iii) If there is a reduction in the aggregate trading volume in credit
derivatives generated by the Company and its Subsidiaries during the period
beginning on the first (1st) Business Day following the date of this
Agreement and continuing through, and including, the last Business Day prior to the
Closing Date, then (x) if the aggregate trading volumes in credit derivatives
generated over the same period by GFI Group, Inc., ICAP plc, Tullett Prebon plc and
Tradition (UK) Limited and their respective Subsidiaries, considered together, and
as reported by research firms, industry associations, equity research analysts, The
International Swaps and Derivatives Association, The British Bankers Association and
Fitch Ratings, Inc. for the credit derivatives industry generally (collectively, the
“Credit Derivatives Industry Group”) have increased, such aggregate trading
volumes shall not have increased in a manner that represents a material difference
in performance relative to the Company and its Subsidiaries and (y) if such
aggregate trading volumes of the Credit Derivatives Industry Group over the same
period shall have decreased, then the reduction experienced by the Company and its
Subsidiaries shall not be a materially greater reduction, in percentage terms, than
the reduction experienced by the Credit Derivatives Industry Group.


          (g) Consents Under Contracts. The Company shall have obtained the consents or
approvals required in respect of those Contracts as set forth on Schedule 8.2(g).


          (h) Company Financial Statements. All historical financial statements and information
regarding the Company and its Subsidiaries required to be filed by Buyer with the SEC following the
Closing pursuant to a Current Report on Form 8-K shall have been prepared and, as applicable,
audited and reported on or reviewed by the Company’s independent auditor, and all pro forma
financial statements and information regarding Buyer and the Company, and their respective
subsidiaries, required to be filed by Buyer with the SEC following the Closing pursuant to a
Current Report on Form 8-K shall have been prepared, in each of the foregoing cases in form and
substance satisfactory, in Buyer’s judgment, to be filed with the SEC on the next Business Day
immediately following the Closing Date on which the SEC is accepting filings. Buyer acknowledges
and confirms that it will not require the Company’s or its independent auditors to re-audit or
restate the Company’s audited financial statements for the fiscal year ended December 31, 2007,
except as may be required to comply with GAAP, the rules and regulations of the SEC, or other
applicable laws, regulations or rules, or as it may be advised to do so by Deloitte & Touche.



     Section 8.3 Additional Conditions to Obligations of the Company. The obligation of
the Company to effect the Merger is further subject to the satisfaction of the following
conditions, any one or more of which may be waived by the Company at or prior to the Effective
Time:


          (a) Representations and Warranties. Each of the representations and warranties of
Buyer and MergerCo set forth in this Agreement shall be true and correct as of the date of this
Agreement and as of the Closing Date as though made on and as of such date and time (except to the
extent that any such representation and warranty speaks of a specified date, in



69









 







which case such representation and warranty shall be true and correct as of such specified
date) except where the failure to be so true and correct, individually or in the aggregate, has not
had and would not reasonably be expected to have an Buyer Material Adverse Effect.


          (b) Performance of Obligations of Buyer and MergerCo. Each of Buyer and MergerCo
shall have performed or complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by it on or prior to the Effective
Time.


          (c) Officer’s Certificate. The Company shall have received a certificate executed and
delivered by Buyer’s Chief Executive Officer or Chief Financial Officer, dated as of the Closing
Date, stating therein that the conditions set forth in Section 8.3(a) and Section 8.3(b) have been
satisfied.


          (d) Secretary’s Certificate. Each of Buyer and MergerCo shall have delivered a
certificate of an authorized officer, dated as of the Closing Date, certifying as to (i) the
incumbency of officers executing documents executed and delivered in connection herewith, (ii)
copies of their respective incorporation documents, each as in effect from the date of this
Agreement until the Closing Date, and (iii) a copy of the votes of their respective Boards of
Directors authorizing and approving the applicable matters contemplated hereunder.


          (e) Escrow Agreement. The Escrow Agreement shall remain in full force and effect as
between the Stockholders’ Representative and Buyer, and the Escrow Agent shall have executed and
delivered the Escrow Agreement.


          (f) Registration Rights Agreement. The Registration Rights Agreement shall be in full
force and effect.


          (g) Tax Opinion. The Company and its Stockholders shall have received the opinion of
Goodwin Procter LLP, counsel to the Company, dated the Closing Date, to the effect that the merger
will be treated for federal income Tax purposes as a reorganization within the meaning of Section
368(a) of the Code and that each of Buyer, MergerCo and the Company will be a party to that
reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion,
counsel to the Company shall be entitled to rely upon assumptions, representations, warranties and
covenants, including those contained in this Agreement and in the Tax Representation Letters
described in Section 7.9(e) of this Agreement


          (h) Listing of Buyer Stock. The Buyer Stock to be issued in the Merger shall have
been approved for listing on the New York Stock Exchange, subject to official notice of issuance,
prior to the Effective Time.



70









 








ARTICLE IX




SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION




     Section 9.1 Survival. Subject to the limitations and other provisions of this
Agreement: (a) the representations and warranties of the parties hereto contained in this Agreement
or in any certificate or in any letter agreement between Buyer and the Company delivered by or on
behalf of a party hereto pursuant to or in connection with this Agreement, as the case may be,
shall survive the Closing and shall remain in full force and effect until the eighteen (18) month
anniversary of the Closing Date, except for the representations and warranties set forth in Section
4.8 (Taxes) which shall survive the Closing and remain in full force and effect until the fourth
(4th) anniversary of the Closing Date, and except, in all cases, with respect to any
Loss (as defined below), claim or breach of any such representation or warranty of which any
Indemnified Party shall have provided written notice to the Stockholders’ Representative or Buyer,
as applicable, prior to such expiry, in which case the representations and warranties that are
subject to such claim shall survive solely for purposes of, and only until, the resolution of such
claims; and (b) the respective covenants, agreements and obligations of the parties hereto
contained in this Agreement or in any certificate delivered or on behalf of a party hereto pursuant
to or in connection with this Agreement, as the case may be, shall survive the Closing and shall
remain in full force and effect in accordance with their terms. For the purposes of this
Agreement, “Losses” of a Person means any and all losses, liabilities, damages, claims,
awards, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees)
actually suffered or incurred by such Person; provided, that “Losses” shall not include any
claim by an Indemnified Party for consequential, incidental, indirect, punitive, special or
exemplary damages. Furthermore, (i) for purposes of calculating Losses after a breach has been
established, the terms “material,” “in all material respects,” “Company Material Adverse Effect”
and any similar qualification, and any $1,000,000 qualification or threshold to any representation
or warranty, shall be disregarded, and (ii) solely for purposes of determining if there has been a
breach of any of the representations and warranties made by the Company or the Buyer on the Closing
Date (but not on the date of this Agreement) for purposes of this Article IX, and not for purposes
of determining the satisfaction of any closing condition, the term “Material Adverse Effect” that
is used in the Officer’s Certificates delivered pursuant to Section 8.2(c) and Section 8.3(c) shall
be disregarded.



     Section 9.2 Buyer/MergerCo Indemnification. Subject to the other terms and conditions
of this Agreement, from and after the Closing, Buyer and MergerCo (each a “Buyer Indemnified
Party”) shall be held harmless and indemnified from the Escrow Funds to the extent of any
Losses (as defined in Section 9.1) resulting from: (a) the breach or inaccuracy of any
representation or warranty of the Company contained in this Agreement or in any certificate or in
any letter agreement between Buyer and the Company delivered by or on behalf of the Company
pursuant to or in connection with this Agreement, as the case may be; or (b) any failure of the
Company to fully perform, fulfill or comply with any covenant of the Company contained in this
Agreement; (c) any and all unpaid Company Transaction Expenses exceeding the amount accrued or
reserved for in the calculation of Stockholders Equity and which was not taken into account in
connection with the true-up procedure described in Section 2.5 herein; (d) all costs arising from
the Company’s failure to execute a valid 280G Stockholder Vote, including, without



71









 




limitation (1) the total cost of any Section 280G or Section 4999 gross-up payments made to
Disqualified Individuals (including the value of any federal, state or local income Taxes on such
gross-up payments), (2) the value of the lost Tax deduction for any payments that become
non-deductible pursuant to Section 280G of the Code, (3) the value of any amounts that should have
been waived by Disqualified Individuals in connection with the 280G Stockholder Vote to the extent
that such amounts are treated as deductions in the calculation of Net Merger Consideration and (4)
any claims from employees arising in connection with clauses (1) or (3) hereof, in each case as the
amounts in (1) through (4) hereof arise in connection with the transactions contemplated by this
Agreement; (e) that certain FINRA investigation referenced in paragraph number 3 of Schedule
4.5(b) ; and (f) matters set forth on Schedule 4.8 ; and (g) Pre-Closing Tax Period Tax
liabilities for which Buyer is entitled to indemnification to the extent described in Section 7.9,
except for Pre-Closing Tax Period Tax liabilities attributable to matters set forth on Schedule
4.8, which shall be addressed solely under Section 9.2(f).



     Section 9.3 Company Indemnification. Subject to the other terms and conditions of
this Agreement, from and after the Closing, the Stockholders, the Vested Optionholders and their
respective officers and directors (each a “Stockholder Indemnified Party”) shall be held
harmless and indemnified by Buyer to the extent of any Losses resulting from (a) the breach or
inaccuracy of any representation or warranty of Buyer or MergerCo contained in this Agreement or in
any certificate delivered by or on behalf of Buyer or MergerCo pursuant to or in connection with
this Agreement, as the case may be; and (b) any failure of Buyer or the Surviving Corporation to
fully perform, fulfill or comply with any covenant of Buyer or the Surviving Corporation contained
in this Agreement.



     Section 9.4 Limitations.


          (a) A Buyer Indemnified Party’s indemnification rights pursuant to Section 9.2 and a
Stockholder Indemnified Party’s indemnification rights pursuant to Section 9.3, respectively, shall
be limited as follows:




     (i) Indemnified Parties shall not be entitled to indemnification pursuant to
Section 9.2(a), Section 9.2(e) or Section 9.3(a) except to the extent that the
aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant
to Section 9.2(a) or Section 9.3(a) exceeds $2,500,000 (the “Deductible”),
and then only to the extent that such Losses exceed the Deductible.




     (ii) Buyer Indemnified Parties shall not be entitled to any indemnification
hereunder for any Losses (individually or in the aggregate) in excess of the deemed
value of the Escrow Shares (as provided in the Escrow Agreement) and Escrow Cash
constituting the Escrow Funds and the right of the Buyer Indemnified Parties to
recover for all their indemnifiable Losses shall be limited solely to the Escrow
Shares and the Escrow Cash then remaining in escrow pursuant to the terms of the
Escrow Agreement.




     (iii) Stockholder Indemnified Parties shall not be entitled to any
indemnification hereunder for any Losses (individually or in the aggregate) in



72









 






excess of the value of the shares of Buyer Stock and Escrow Cash constituting
the Escrow Funds as of the date the Escrow Funds are employed to indemnify the
Stockholder Indemnified Parties for such Losses and the Stockholder Indemnified
Parties’ right to recover for all their indemnifiable Losses shall be limited solely
to that value.




     (iv) All claims for indemnification by an Indemnified Party must be made on or
before the eighteen (18) month anniversary of the Closing Date (except for claims by
Buyer Indemnified Parties for indemnification pursuant to Section 9.2(f) and Section
9.2(g) and claims by Buyer Indemnified Parties for indemnification with respect to
the representations and warranties set forth in Section 4.8, which claims must be
made on or before the fourth (4th) anniversary of the Closing Date) (the
“Indemnification Cut-Off Date”). No indemnification shall be payable to an
Indemnified Party with respect to claims asserted by such Indemnified Party after
the applicable Indemnification Cut-Off Date, regardless of when the claim accrued or
the circumstances that resulted in the claim being asserted after the
Indemnification Cut-Off Date. In the event a claim has been properly made on or
prior to the applicable Indemnification Cut-Off Date and such claim is unresolved as
of such applicable Indemnification Cut-Off Date, then the right to indemnification
with respect to such claim shall remain in effect until such matter shall have been
finally determined.




     (v) Buyer Indemnified Parties shall not be entitled to indemnification for any
Losses pursuant to Section 9.2(f) until the aggregate amount of indemnifiable Losses
under such section exceeds $1,000,000 (“Threshold”), whereupon Buyer
Indemnified Parties shall then be entitled to be indemnified for all indemnifiable
Losses pursuant to Section 9.2(f), without regard to the Threshold, but subject to
the other terms of this Article IX.


          (b) The amount of any Losses subject to indemnification under this Article IX shall be
calculated net of (i) any insurance proceeds actually received by the Indemnified Party on account
of such Losses under insurance policies of the Company and its Subsidiaries in effect prior to the
Closing, and (ii) any amounts actually recovered by the Indemnified Party under other indemnity
agreements (excluding insurance policies), or from any other Person alleged to be responsible
therefor, without duplication. The Indemnified Party shall take all steps as the Indemnifying
Party may reasonably request (at the Indemnifying Party’s expense) to enforce recovery of such
amounts available under such insurance coverage or other indemnity agreement.


          (c) No Indemnified Party shall be entitled to duplicate or multiple indemnification under this
Article IX for any Loss.


          (d) The Surviving Corporation shall not be liable to any Stockholder Indemnified Party,
whether jointly, severally, pursuant to contribution or otherwise, in respect of any matter for
which a Buyer Indemnified Party may seek indemnification pursuant to this Agreement.



73









 







          (e) No Buyer Indemnified Party shall be entitled to indemnification under this Agreement for
any Loss arising from a breach of any representation, warranty or covenant set forth herein (and
the amount of any Loss incurred in respect of such breach shall not be included in the calculation
of any limitations on indemnification set forth herein) if and to the extent such Loss was
expressly taken into account in the calculation of Stockholders’ Equity (including, without
limitation, any accruals or reserves relating to tax liabilities) or to the extent expressly
included as a liability or expense on the Financial Statements (including the footnotes thereto).


          (f) The limitations set forth in this Section 9.4(a)(i) shall not apply to the Buyer
Indemnified Parties’ indemnification rights with respect to Losses related to Taxes, including
without limitation Losses pursuant to Section 9.2(a) with respect to representations and warranties
set forth in Section 4.8 (Taxes) and Losses pursuant to Section 9.2(f) and Section 9.2(g).



     Section 9.5 Notice; Defense of Claims.


          (a) Any Buyer Indemnified Party or Stockholder Indemnified Party (each individually, an
“Indemnified Party”) may make claims for indemnification hereunder by giving prompt written
notice thereof to the Stockholders’ Representative, in the case of claims made against the Company,
or to Buyer, in the case of claims made against Buyer or the Surviving Corporation, prior to the
Indemnification Cut-Off Date. If indemnification is sought for a claim, assertion, event or
proceeding by or in respect of any third party (a “Third Party Claim”), the Indemnified
Party shall also give the Stockholders’ Representative or Buyer, as applicable, written notice of
such Third Party Claim as to which such Indemnified Party may request indemnification hereunder, as
soon as reasonably practicable after the time that such Indemnified Party learns of such Third
Party Claim, and in any event within thirty (30) days thereafter. Any notice given pursuant to
this Section 9.5 shall state all material information then available regarding the amount and
nature of such claim, assertion, event or proceeding and shall specify the representation, warranty
or covenant in this Agreement under which the liability or obligation is asserted. The failure of
the Indemnified Party to give notice as provided in this Section 9.5 shall not relieve any party
with an indemnification obligation hereunder (each an “Indemnifying Party” and
collectively, the “Indemnifying Parties”) from any liability except to the extent that it
is actually prejudiced by the failure or delay in giving such notice and then only to the extent of
such prejudice.


          (b) In the event that an Indemnifying Party shall object in good faith to the indemnification
of an Indemnified Party in respect of any claim or claims specified in a notice given pursuant to
this Section 9.5, the Indemnifying Party shall, within thirty (30) days after receipt by the
Indemnifying Party of such notice, deliver to the Indemnified Party a notice to such effect,
setting forth in reasonable detail the basis for such objection, and the Indemnifying Party and the
Indemnified Party shall, within the thirty (30) day period beginning on the date of receipt by the
Indemnified Party of such objection, attempt in good faith to agree upon the rights of the
respective parties with respect to each of such claims to which the Indemnifying Party shall have
so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching
agreement on their respective rights with respect to any of such claims, the Indemnified Party and
the Indemnifying Party shall promptly prepare and sign a memorandum setting forth



74









 







such agreement and, if applicable, an instruction to the Escrow Agent. Should the Indemnified
Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or
amounts, then each party shall be entitled to pursue its available remedies for resolving the claim
for indemnification.


          (c) In the event that a Third Party Claim gives rise to an indemnification claim, the
Indemnifying Party may elect to assume and control the defense of such Third Party Claim and any
litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld or delayed), and the
Indemnified Party may participate in such defense at the Indemnified Party’s expense, which shall
include counsel of its choice; provided further that the Indemnified Party shall
have the right to employ, at the Indemnifying Party’s expense, one counsel of its choice in each
applicable jurisdiction (if more than one jurisdiction is involved) to represent the Indemnified
Party if, in the Indemnified Party’s reasonable judgment, there exists an actual or potential
conflict of interest between the Indemnified Party and the Indemnifying Party; and provided
further that, if the Indemnifying Party (i) elects not to defend, compromise or settle a
Third Party Claim or (ii) having elected to defend a Third Party Claim, fails to retain counsel to
prosecute the action within twenty (20) days of such election, then in such case the Indemnified
Party shall have the right to defend such Third Party Claim on behalf of and for the account and
risk of the Indemnifying Party. Neither the Indemnifying Party nor the Indemnified Party shall
settle or compromise any Third Party Claim without the prior written consent of the Indemnified
Party or the Indemnifying Party, as applicable, which consent shall not be unreasonably withheld.
No Indemnified Party shall be deemed to have unreasonably withheld its consent to any such proposed
settlement or compromise that contains any term that does not consist entirely of a monetary
payment and that does not include an unconditional release from all liability without future
obligation or liability on the part of the Indemnified Party and its Affiliates. If an Indemnified
Party refuses to consent to a bona fide offer of settlement which the Indemnifying Party wishes to
accept and which provides solely for monetary payment and includes an unconditional release from
all liability without future obligation or prohibition on the part of the Indemnified Party and
does not contain an admission of guilt or liability on the part of the Indemnified Party and, in
the case of Buyer being the Indemnified Party, such settlement has no adverse effect on the
reputation of Buyer, the Indemnified Party may continue to pursue such matter, free of any
participation by the Indemnifying Party, at the expense of the Indemnified Party. However, in such
event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of
settlement which the Indemnified Party refused to accept plus the reasonable costs and expenses of
the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified
Party of the offer of settlement. The Indemnifying Party and the Indemnified Party shall cooperate
with each other in all reasonable respects in connection with the defense of any claim, including
making available records relating to such claim and furnishing, at the expense of the Indemnifying
Party, such employees of the Indemnified Party as may be reasonably necessary for the preparation
of the defense of any such claim or for testimony as witnesses in any proceeding relating to such
claim.



     Section 9.6 Agreed Claims. Claims (i) for Losses specified in any notice of
indemnification claim to which the recipient did not object in writing within 30 days, (ii) for



75









 




Losses covered by a memorandum of agreement of the nature described in Section 9.5(b), and
(iii) for Losses the validity and amount of which have been the subject of resolution by binding
arbitration or of a final non-appealable judicial determination are hereinafter referred to,
collectively, as “Agreed Claims”. The Indemnified Party shall be entitled to payment from
the Indemnifying Party for all Agreed Claims, subject to all of the terms and limitations set forth
in this Article IX, within 10 Business Days of the determination of the amount of any such Agreed
Claims. In the case of an Agreed Claim requiring payment to a Buyer Indemnified Party, if payment
is not made by the Indemnifying Party within such period, Buyer shall be entitled to give notice to
the Escrow Agent in accordance with the Escrow Agreement (which notice the Stockholders’
Representative shall countersign promptly on request) instructing the Escrow Agent, who shall
promptly comply with such instruction, to release to Buyer from the Indemnity Escrow Account the
number of Escrow Shares and amount of Escrow Cash having an aggregate value (as calculated pursuant
to the Escrow Agreement) equal to the amount of such Agreed Claim.



     Section 9.7 Remedies Exclusive. After the Closing, the rights of the parties hereto
and the Indemnified Parties to indemnification relating to this Agreement or the transactions
contemplated hereby shall be strictly limited to those contained in this Article IX, and such
indemnification rights shall be the sole and exclusive remedies of the parties hereto and the
Indemnified Parties subsequent to the Closing Date with respect to any matter in any way relating
to this Agreement or its subject matter or arising in connection herewith. To the maximum extent
permitted by Law, the parties hereto and the Indemnified Parties hereby waive all other rights and
remedies with respect to any matter in any way relating to this Agreement or arising in connection
herewith, whether under any Laws at common law, in equity or otherwise. Except as provided in this
Article IX, no claim, action or remedy shall be brought or maintained by any party against any
other party, and no recourse shall be brought or granted against any of them, by virtue of or based
upon any alleged misstatement or omission respecting an inaccuracy in or breach of any of the
representations, warranties, covenants or agreements of any of the parties hereto set forth or
contained in this Agreement. However, notwithstanding anything in this Article IX to the contrary,
nothing in this Agreement shall limit any right or remedy of a party with respect to fraud.



     Section 9.8 Treatment of Indemnity Payments. All payments made pursuant to this
Article IX are intended to be treated for Tax purposes as consideration for the Company Stock
purchased by Buyer in the Merger and shall be treated as such consideration (subject to any
requirement to treat a portion as imputed interest) for all Tax purposes except to the extent
otherwise required by a final determination or a Taxing Authority.



ARTICLE X




TERMINATION




     Section 10.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time, whether before or after the execution of the Stockholder Written Consent:



76









 




          (a) by the written consent of Buyer (on behalf of itself and MergerCo) and the Company;


          (b) by either of the Company, on the one hand, or Buyer or MergerCo, on the other hand, by
written notice to the other:




     (i) if any governmental agency of competent jurisdiction shall have issued an
injunction or taken any other action (which injunction or other action the parties
hereto shall use their best efforts to lift) that permanently restrains, enjoins or
otherwise prohibits the consummation of the Merger, and such injunction shall have
become final and non-appealable; or




     (ii) if the consummation of the Merger shall not have occurred on or before
December 12, 2008 (the “Termination Date”); provided,
however, that (A) the right to terminate this Agreement under this Section
10.1(b)(ii) shall not be available to any party whose failure to comply with any
provision of this Agreement has been the cause of, or resulted in, the failure of
the Merger to occur on or before such date; (B) if on December 12, 2008, all of the
conditions set forth in Article VIII (other than those conditions which by their
nature are required to be satisfied at Closing) have been satisfied or waived, other
than the FINRA approval for a change in control, then the Termination Date shall be
January 9, 2009 instead; and (C) the parties may mutually agree to extend the period
before termination if such failure to consummate the Merger is due to regulatory or
antitrust issues;


          (c) by the Company, if the Company is not then in material breach of any term of this
Agreement, upon written notice to Buyer, upon a material breach of any representation, warranty or
covenant of Buyer or MergerCo contained in this Agreement, provided, however, that
such breach is not capable of being cured or has not been cured within thirty (30) days after the
giving of notice thereof by the Company to Buyer, such that the conditions set forth in Section
8.3(a) or (b) cannot be satisfied or cured prior to the date set forth in Section 10.1(b)(ii);


          (d) by Buyer or MergerCo, if neither Buyer nor MergerCo is then in material breach of any term
of this Agreement, upon written notice to Company, upon a material breach of any representation,
warranty or covenant of the Company contained in this Agreement, provided, however,
that such breach is not capable of being cured or has not been cured within thirty (30) days after
the giving of notice thereof by Buyer or MergerCo to the Company, such that the conditions set
forth in Section 8.2(a) or (b) cannot be satisfied or cured prior to the date set forth in Section
10.1(b)(ii); or


          (e) by Buyer or MergerCo, if the Company fails to obtain and deliver to Buyer the Stockholder
Written Consent representing the Required Stockholder Approval within one (1) Business Day of the
date of this Agreement or if at any time following such delivery of the Stockholder Written Consent
such Stockholder Written Consent is not in full force and effect.



77









 








     Section 10.2 Effect of Termination. In the event of the termination of this Agreement
pursuant to Section 10.1, this Agreement shall forthwith become null and void and have no effect,
without any liability on the part of Buyer, MergerCo, the Company, any Stockholder or any
Optionholder (collectively with the Stockholders, the “Common Equity Holders,” or each
individually, a “Common Equity Holder”) or the Stockholders’ Representative or any of their
respective directors, officers, employees, partners, managers, members or stockholders and all
rights and obligations of any party hereto shall cease, except for the agreements contained in
Section 7.3, this Article X and Article XII; provided, however, that no such
termination shall relieve any party hereto of any liability or damage resulting from any willful or
intentional breach of this Agreement.



ARTICLE XI




STOCKHOLDERS’ REPRESENTATIVE




     Section 11.1 Appointment. TA Associates, Inc. shall have full power and authority to
take all actions under this Agreement and the Escrow Agreement that are to be taken by the
Stockholders’ Representative. The Stockholders’ Representative shall take any and all actions
which it believes are necessary or appropriate under this Agreement and the Escrow Agreement,
including, without limitation, executing the Escrow Agreement as Stockholders’ Representative,
giving and receiving any notice or instruction permitted or required under this Agreement or the
Escrow Agreement by the Stockholders’ Representative, interpreting all of the terms and provisions
of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or
thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and
other obligations of or incurred by the Stockholders’ Representative in connection with this
Agreement and the Escrow Agreement, defending all indemnity claims against the Escrow Funds
pursuant to Section 9.2 of this Agreement (an “Indemnity Claim”), consenting to,
compromising or settling all Indemnity Claims, conducting negotiations with Buyer, the Surviving
Corporation and their respective agents regarding such claims, dealing with Buyer, the Surviving
Corporation and the Escrow Agent under this Agreement, taking any other actions specified in or
contemplated by this Agreement and the Escrow Agreement, and engaging counsel, accountants or other
representatives in connection with the foregoing matters. Without limiting the generality of the
foregoing, the Stockholders’ Representative shall have the full power and authority to interpret
all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any
amendment hereof or thereof in its capacity as Stockholders’ Representative.



     Section 11.2 Authorization. The Company hereby authorizes the Stockholders’
Representative to, and by accepting the merger consideration provided for in Section 2.1(c),
Section 2.1(d) or Section 2.2(b), as applicable (subject to Section 2.10 and Section 2.11), each
Common Equity Holder shall be deemed to ratify and confirm all that the Stockholders’
Representative shall do or cause to be done by virtue of such Stockholders’ Representative’s
appointment as Stockholders’ Representative of such Common Equity Holder and to authorize the
Stockholders’ Representative to:



78









 




          (a) Receive all notices or documents given or to be given to the Common Equity Holders
pursuant hereto or to the Escrow Agreement or in connection herewith or therewith and to receive
and accept services of legal process in connection with any suit or proceeding arising under this
Agreement or the Escrow Agreement;


          (b) Engage counsel, and such accountants and other advisors and incur such other expenses in
connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby or
thereby as the Stockholders’ Representative may in its sole discretion deem appropriate; and


          (c) Take such action as the Stockholders’ Representative may in its sole discretion deem
appropriate in respect of: (i) waiving any inaccuracies in the representations or warranties of
Buyer or MergerCo contained in this Agreement or in any document delivered by Buyer or MergerCo
pursuant hereto; (ii) taking such other action as the Stockholders’ Representative is authorized to
take under this Agreement or the Escrow Agreement; (iii) receiving all documents or certificates
and making all determinations, in its capacity as Stockholders’ Representative, required under this
Agreement or the Escrow Agreement; and (iv) all such actions as may be necessary to carry out any
of the transactions contemplated by this Agreement and the Escrow Agreement, including, without
limitation, the defense and/or settlement of any claims for which indemnification is sought
pursuant to Article IX and any waiver of any obligation of Buyer or the Surviving Corporation.



     Section 11.3 Agency. Notwithstanding any provision herein to the contrary, the
Stockholders’ Representative is not an agent of the Common Equity Holders, and shall have no duties
to the Common Equity Holders or liability to the Common Equity Holders with respect to any action
taken, decision made or instruction given by the Stockholders’ Representative in connection with
the Escrow Agreement or this Agreement



     Section 11.4 Indemnification and Exculpation. The Stockholders’ Representative shall
be indemnified by the Common Equity Holders for and shall be held harmless against any loss,
liability or expense incurred by the Stockholders’ Representative or any of its Affiliates and any
of their respective partners, directors, officers, employees, agents, stockholders, consultants,
attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case
relating to the Stockholders’ Representative’s conduct as Stockholders’ Representative, other than
losses, liabilities or expenses resulting from the Stockholders’ Representative’s willful
misconduct in connection with its performance under this Agreement and the Escrow Agreement. This
indemnification shall survive the termination of this Agreement. The costs of such indemnification
(including the costs and expenses of enforcing this right of indemnification) shall be paid
exclusively from the Stockholders’ Representative Expense Fund. The Stockholders’ Representative
may, in all questions arising under this Agreement, rely on the advice of counsel and for anything
done, omitted or suffered in good faith by the Stockholders’ Representative in accordance with such
advice, the Stockholders’ Representative shall not be liable to the Common Equity Holders. Neither
Buyer, MergerCo, the Company nor the Surviving Corporation shall be in any way responsible to any
Common Equity Holder for any Loss suffered by reason of the performance by the Stockholders’
Representative of such Stockholders’ Representative’s duties under this Agreement or the Escrow
Agreement.



79









 





     Section 11.5 Access to Information. The Stockholders’ Representative shall have
reasonable access to all information of and concerning any Indemnity Claim and which is in the
possession, custody or control of Buyer or the Surviving Corporation and the reasonable assistance
of Buyer’s and the Surviving Corporation’s officers and employees for purposes of performing the
Stockholders’ Representative’s duties under this Agreement or the Escrow Agreement and exercising
its rights under this Agreement and the Escrow Agreement, including for the purpose of evaluating
any Indemnity Claim against the Escrow Funds by any Buyer Indemnified Party; provided,
however, that the Stockholders’ Representative shall treat confidentially and not, except
in connection with enforcing its rights under this Agreement and the Escrow Agreement, disclose any
nonpublic information from or concerning any Indemnity Claim to anyone (except to the Stockholders’
Representative’s attorneys, accountants or other advisers, to Stockholders and on a need-to-know
basis to other individuals who agree to keep such information confidential), and provided,
further, that the foregoing shall not require Buyer or the Surviving Corporation (i) to
permit any inspection, or to disclose any information, that in the reasonable judgment of Buyer or
the Surviving Corporation, as the case may be, would result in the disclosure of any trade secrets
of third parties or violate any of its obligations with respect to confidentiality, (ii) to
disclose any information developed or discovered with respect to any period or date following the
Closing Date, or (iii) to disclose any privileged information of Buyer or the Surviving
Corporation, as the case may be, or any of its Subsidiaries.



     Section 11.6 Reasonable Reliance. In the performance of its duties hereunder, the
Stockholders’ Representative shall be entitled to rely upon any document or instrument reasonably
believed to be genuine, accurate as to content and signed by any Common Equity Holders or any party
hereunder and assume that any Person purporting to give any notice in accordance with the
provisions hereof has been duly authorized to do so. By accepting the merger consideration
provided for in Section 2.1(c), Section 2.1(d), or Section 2.2(b), as applicable (subject to
Section 2.10 and Section 2.11), each of the Common Equity Holders hereby expressly acknowledges and
agrees that Buyer, MergerCo and the Company shall be entitled to rely on, and enforce, any and all
actions, agreements, understandings or commitments taken or entered into, as the case may be, by
the Stockholders’ Representative under this Agreement and the Escrow Agreement without liability
to, or obligation to inquire of, any of the Common Equity Holders, and notwithstanding any dispute
or disagreement among the Common Equity Holders.



     Section 11.7 Orders. The Stockholders’ Representative is authorized, in its sole
discretion, to comply with final, nonappealable orders or decisions issued or entered by any court
of competent jurisdiction or arbitrator with respect to the Escrow Funds. If any portion of the
Escrow Funds is disbursed to the Stockholders’ Representative and is at any time attached,
garnished or levied upon under any court order, or in case the payment, assignment, transfer,
conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in
case any order, judgment or decree shall be made or entered by any court affecting such property or
any part thereof, then and in any such event, the Stockholders’ Representative is authorized, in
its sole discretion, but in good faith, to rely upon and comply with any such order, writ, judgment
or decree which it is advised by legal counsel selected by it is binding upon it without the need
for appeal or other action; and if the Stockholders’ Representative complies with any such order,
writ, judgment or decree, he shall not be liable to any Common Equity Holders or to any other



80









 




Person by reason of such compliance even though such order, writ, judgment or decree may be
subsequently reversed, modified, annulled set aside or vacated.



     Section 11.8 Removal of Stockholders’ Representative; Authority of Stockholders’
Representative. A majority in interest of the Stockholders, voting together as a single class,
shall have the right at any time during the term of the Escrow Agreement to remove the then-acting
Stockholders’ Representative and to appoint a successor Stockholders’ Representative;
provided, however, that neither such removal of the then acting Stockholders’
Representative nor such appointment of a successor Stockholders’ Representative shall be effective
until the delivery to the Escrow Agent of executed counterparts of a writing signed by such
majority in interest of the Stockholders with respect to such removal and appointment, together
with an acknowledgement signed by the successor Stockholders’ Representative appointed in such
writing that he, she or it accepts the responsibility of successor Stockholders’ Representative and
agrees to perform and be bound by all of the provisions of this Agreement applicable to the
Stockholders’ Representative. For all purposes hereunder, a majority in interest of the
Stockholders shall be determined on the basis of each Stockholder’s Pro Rata Portion. Each
successor Stockholders’ Representative shall have all of the power, authority, rights and
privileges conferred by this Agreement upon the original Stockholders’ Representative, and the term
“Stockholders’ Representative” as used herein and in the Escrow Agreement shall be deemed to
include any interim or successor Stockholders’ Representative. Neither the removal of a, nor the
appointment of a successor, Stockholders’ Representative shall affect in any manner the validity or
enforceability of any actions taken or agreements, understandings or commitments entered into by
the prior Stockholders’ Representative, which shall continue to be effective and binding upon the
Stockholders, and Buyer, the Surviving Corporation and any other relevant counterparty shall
continue to have the right to rely on, and enforce, all such actions, agreements, understandings
or commitments taken or entered into, as the case may be, by the prior Stockholders’ Representative
and their rights with respect thereto shall not be affected, waived or discharged by any such
removal or appointment.



     Section 11.9 Expenses of the Stockholders’ Representative. The Stockholders’
Representative Expense Fund shall be used to reimburse the out of pocket fees and expenses
(including legal, accounting and other advisors’ fees and expenses, if applicable) incurred by the
Stockholders’ Representative in performing all of its duties and obligations under this Agreement
and the Escrow Agreement.



     Section 11.10 Irrevocable Appointment. Subject to Section 11.8, the appointment of
the Stockholders’ Representative hereunder is irrevocable and any action taken by the Stockholders’
Representative pursuant to the authority granted in this Article IX shall be effective and
absolutely binding as the action of the Stockholders’ Representative under this Agreement or the
Escrow Agreement.



81









 





ARTICLE XII




GENERAL PROVISIONS




     Section 12.1 Notices. All notices, requests, claims, demands and other communications
under this Agreement will be in writing and will be deemed given if delivered personally, sent by
overnight courier (providing proof of delivery) or via facsimile (providing proof of receipt) to
the parties at the following addresses (or at such other address for a party as specified by like
notice):



          if to the Company, to:



Creditex Group Inc.

875 Third Avenue, 29th Floor

New York, NY 10022

Attn: Chief Executive Officer

Facsimile: (212) 323-7466



          with copy to:



Goodwin Procter LLP

New York Times Building

620 Eighth Avenue

New York, NY 10018

Attn: John R. LeClaire, Esq. and

Stuart L. Rosenthal, Esq.

Facsimile: (212) 355-3333



          if to Buyer or MergerCo, to:



IntercontinentalExchange, Inc.

2100 RiverEdge Pkwy, 5th Floor

Atlanta, GA 30328

Attn: Johnathan Short, Senior Vice President and General Counsel

Facsimile: (770) 857-4755



          with a copy to:



Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004

Attn: John Evangelakos, Esq.

Facsimile: (212) 558-3588



          If to Stockholders’ Representative, to:



TA Associates, Inc.




82









 





25 Knightsbridge, 2nd Floor

London, England

SW1X 7RZ

Attn: Jonathan W. Meeks

Facsimile: +44 0 20 7823 0201





with a copy to:





Goodwin Procter LLP

New York Times Building

620 Eighth Avenue

New York, NY 10018

Attn: John R. LeClaire, Esq. and

Stuart L. Rosenthal, Esq.

Facsimile: (212) 355-3333




     Section 12.2 Disclosure Schedules. Certain information set forth in the schedules to
this Agreement (the “Schedules”) is included solely for informational purposes and may not
be required to be disclosed pursuant to this Agreement. The disclosure of any information in the
Schedules shall not be deemed to constitute an acknowledgment that such information is required to
be disclosed in connection with the representations and warranties made by Buyer, MergerCo or the
Company, as applicable, in this Agreement or that such information is material, nor shall such
information be deemed to establish a standard of materiality, nor shall it be deemed an admission
of any liability of, or concession as to any defense available to, Buyer, the Company or the
Stockholders’ Representative on behalf of the Common Equity Holders, as applicable. Further, for
the avoidance of doubt, the references throughout Article IV to $1,000,000 worth of liabilities,
damages or payments shall in no event, in and of itself, be deemed a standard for establishing the
existence of a “Material Adverse Effect” as such term is used throughout this Agreement. The
section number headings in the Schedules correspond to the section numbers in this Agreement.
Disclosures included in any Schedule shall be considered to qualify only the corresponding Section
of this Agreement which expressly indicates that such section is to be qualified by a particular
Disclosure Schedule except to the extent that it is reasonably apparent, given the nature and
content of such disclosure, that the disclosure of such matter is intended to qualify a further
Section of this Agreement which expressly indicates that such section is to be qualified by a
particular Disclosure Schedule.



     Section 12.3 Entire Agreement; No Third Party Beneficiaries. This Agreement, together
with the Schedules and Exhibits hereto, any documents executed by the parties simultaneously
herewith or pursuant hereto and the Confidentiality Agreement, constitute the entire agreement of
the parties hereto with respect to the subject matter hereof and supersede all prior agreements and
understandings, written and oral, among the parties with respect to the subject matter hereof,
other than the Confidentiality Agreement (excluding the provisions of this Agreement), which shall
survive the execution of this Agreement and any termination of this Agreement. Buyer and the
Company hereby agree that their respective representations, warranties and covenants set forth
herein are solely for the benefit of the other party hereto or any other Person entitled to
indemnification (whether pursuant to Section 7.7 or Article IX



83









 




herein), in accordance with and subject to the terms of this Agreement, and this Agreement
(with the exception of Section 7.7 and Article IX) is not intended to, and does not, confer upon
any Person other than the parties hereto any rights or remedies hereunder, including, without
limitation, the right to rely upon the representations and warranties set forth herein.



     Section 12.4 Assignment. Except as expressly permitted by the terms hereof, neither
this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto without the prior written consent of the other parties. Any such assignment
which is purported to be made without such prior written consent shall be null and void.



     Section 12.5 Severability. If any provision of this Agreement, or the application
thereof to any Person or circumstance, is held invalid or unenforceable, the remainder of this
Agreement, and the application of such provision to other Persons or circumstances, shall not be
affected thereby, and to such end, the provisions of this Agreement are agreed to be severable.



     Section 12.6 Interpretation. When a reference is made in this Agreement to an
Article, Section, Schedule or Exhibit, such reference will be to an Article or Section of, or a
Schedule or Exhibit to, this Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement are for reference purposes only and will not affect in any way
the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they will be deemed to be followed by the words “without
limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in
this Agreement will refer to this Agreement as a whole and not to any particular provision of this
Agreement. All terms used herein with initial capital letters have the meanings ascribed to them
herein and all terms defined in this Agreement will have such defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise defined therein.
The definitions contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter genders of such
term. For the purposes of this Agreement, “Person” shall mean an individual, corporation,
partnership, limited liability company, joint venture, association, trust, unincorporated
organization or other entity or group (as defined in Section 13(d) of the Exchange Act).
References to a Person are also to its permitted successors and assigns.



     Section 12.7 Fees and Expenses. Except as otherwise expressly provided for in this
Agreement, whether or not the Merger is consummated, each of Buyer (on behalf of Buyer and
MergerCo), on the one hand, and the Company, on the other hand, shall bear its own expenses in
connection with the negotiation and the consummation of the transactions contemplated by this
Agreement.



     Section 12.8 Choice of Law/Consent to Jurisdiction. All disputes, claims or
controversies arising out of or relating to this Agreement, or the negotiation, validity or
performance of this Agreement, or the transactions contemplated hereby shall be governed by and
construed in accordance with the Laws of the State of New York (or the Laws of the State of
Delaware solely with respect to those matters addressed herein which are, by their nature, governed
by the DGCL), without regard to its rules of conflict of Laws. Each of the Company, Buyer,
MergerCo and the Stockholders’ Representative hereby irrevocably and unconditionally



84









 




consents to submit to the sole and exclusive jurisdiction of the state or federal courts of
the State of New York located in New York County, New York (the “Chosen Courts”) for any
litigation arising out of or relating to this Agreement, or the negotiation, validity or
performance of this Agreement, or the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to the laying of venue
of any such litigation in the Chosen Courts and agrees not to plead or claim in any Chosen Court
that such litigation brought therein has been brought in any inconvenient forum. The parties
hereby agree that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 12.1, or in such other manner as may be permitted by
Law, shall be valid to the fullest extent permitted by applicable Law and sufficient service
thereof and hereby waive any objections to service accomplished in the manner herein provided.



     Section 12.9 Amendment. This Agreement may be amended by the parties hereto by an
instrument in writing signed on behalf of each of the parties hereto at any time before or after
any approval hereof by the Stockholders of the Company and MergerCo; provided,
however, that after the execution of the Stockholder Written Consent, no amendment shall be
made that by Law requires further approval by the Stockholders without obtaining the approval of
the Stockholders’ Representative.



     Section 12.10 Extension; Waiver. At any time prior to the Effective Time, the parties
hereto may, to the extent legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any document delivered
pursuant hereto, and (c) waive compliance by the other party with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in a written instrument signed on behalf of the party
against which such waiver or extension is to be enforced. Waiver of any term or condition of this
Agreement by a party shall not be construed as a waiver of any subsequent breach or waiver of the
same term or condition by such party, or a waiver of any other term or condition of this Agreement
by such party.



     Section 12.11 Conflicts and Privilege. It is acknowledged by each of the parties
hereto that the Stockholders’ Representative has retained Goodwin to act as its counsel in
connection with the transactions contemplated hereby. Buyer and MergerCo hereby agree that, in the
event that a dispute arises after the Closing between Buyer and its Subsidiaries on the one hand,
and the Stockholders’ Representative and the Common Equity Holders on the other hand, Goodwin may
represent the Stockholders’ Representative and Common Equity Holders in such dispute even though
the interests of the Stockholders’ Representative and Common Equity Holders may be directly adverse
to Buyer, and its Subsidiaries, and even though Goodwin may have represented the Company or its
Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters
for the Surviving Corporation or its Subsidiaries; provided, however, that the
foregoing waiver shall not relieve or excuse Goodwin from its obligation to keep confidential
non-public information of the Company and its Subsidiaries and to preserve and protect all
privileges or the Company and its Subsidiaries.



85









 





     Section 12.12 Mutual Drafting. The parties hereto are sophisticated and have been
represented by attorneys throughout the transactions contemplated hereby who have carefully
negotiated the provisions hereof. As a consequence, the parties do not intend that the
presumptions of Laws or rules relating to the interpretation of contracts against the drafter of
any particular clause should be applied to this Agreement or any agreement or instrument executed
in connection herewith, and therefore waive their effects.



     Section 12.13 Specific Performance. The parties hereby acknowledge and agree that a
material breach by any party of its agreements and covenants hereunder (including, without
limitation, the failure of a party to consummate the transactions contemplated hereby following the
satisfaction or waiver of all applicable conditions to closing, other than those conditions that by
their nature are to be performed at the Closing) will cause irreparable injury to the other
parties, for which damages, even if available, will not be an adequate remedy. Accordingly, each
party hereby consents to the issuance of injunctive relief by any court of competent jurisdiction
to compel performance of such party’s obligations and to the granting by any court of the remedy of
specific performance of such party’s obligations hereunder if it established that any such material
breach has occurred.



     Section 12.14 Miscellaneous. This Agreement shall be binding upon and inure to the
benefits of the parties hereto and their respective successors and assigns and is not intended to
confer upon any other Person any rights or remedies hereunder and may be executed in two or more
counterparts which together shall constitute a single agreement.



[Remainder of page intentionally left blank.]





86









 








     IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to be signed by their
respective officers thereunto duly authorized, all as of the date first written above.



	 	 	 	 	 
	 	COMPANY:



CREDITEX GROUP INC.

 	 
	 	By:  	/s/ Sunil Hirani
 	 
	 	 	Name:  	Sunil Hirani 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	BUYER:



INTERCONTINENTALEXCHANGE, INC.

 	 
	 	By:  	/s/ Scott A. Hill
 	 
	 	 	Name:  	Scott A. Hill 	 
	 	 	Title:  	Senior Vice President & CFO 	 
	 
	 	MERGERCO:



COLUMBIA MERGER CORPORATION

 	 
	 	By:  	/s/ Scott A. Hill
 	 
	 	 	Name:  	Scott A. Hill 	 
	 	 	Title:  	President & Treasurer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	STOCKHOLDERS’ REPRESENTATIVE:





TA ASSOCIATES, INC.

 	 
	 	By:  	/s/ Johnathan Meeks
 	 
	 	 	Name:  	Johnathan Meeks 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



ANNEX A

DEFINED TERMS




	 	 	 
	Term	 	Section
	280G Stockholder Vote

	 	Section 7.9(f)
	Accounting Referee

	 	Section 2.5(c)
	Accredited Investor

	 	Section 2.10(b)
	Acquisition Transaction

	 	Section 7.6(a)
	Affiliate

	 	Section 4.12(e)
	Aggregate Merger Consideration

	 	Section 2.1(e)(i)
	Aggregate Promissory Note Proceeds

	 	Section 2.1(e)(ii)
	Agreed Claims

	 	Section 9.6
	Agreement

	 	Preamble
	Annual Budget

	 	Section 6.1(j)
	Appraisal Rights Provisions

	 	Section 3.3(a)
	Authorized Group Companies

	 	Section 7.4(b)(iii)
	Benefit Plans

	 	Section 4.9(a)
	Board Recommendation

	 	Section 7.1(c)
	Business Day

	 	Section 1.4
	Buyer

	 	Preamble
	Buyer Indemnified Party

	 	Section 9.2
	Buyer Material Adverse Effect

	 	Section 5.1
	Buyer Reports

	 	Article V
	Buyer Restricted Stock

	 	Section 2.2(b)
	Buyer Stock

	 	Section 2.1(c)
	By-laws

	 	Section 4.1(a)
	Cash Consideration per Share

	 	Section 2.11(a)
	Cash Election

	 	Section 2.1(c)
	Certificate of Incorporation

	 	Section 4.1(a)
	Certificate of Merger

	 	Section 1.2
	Certificates

	 	Section 3.2(b)
	CFTC

	 	Section 4.19(i)
	Chosen Courts

	 	Section 12.8
	Claim

	 	Section 7.7(b)
	Closing

	 	Section 1.4
	Closing Balance Sheet

	 	Section 2.5(b)
	Closing Date

	 	Section 1.4
	Closing Date Stockholders’ Equity

	 	Section 2.5(b)
	Closing Date Stockholders’ Equity Adjustment

	 	Section 2.5(d)(i)
	Closing Price

	 	Section 2.1(e)(iii)
	Code

	 	Recitals
	Common Equity Holder

	 	Section 10.2
	Common Stock

	 	Section 2.1(c)
	Common Stock Certificate

	 	Section 2.1(c)






 









 






	 	 	 
	Term	 	Section
	Common Stock Merger Consideration per Share

	 	Section 2.1(e)(iv)
	Company

	 	Preamble
	Company Board

	 	Recitals
	Company’s Financial Statements

	 	Section 4.5(a)
	Company Intellectual Property

	 	Section 4.13(j)(i)
	Company Licensed Software

	 	Section 4.14(e)(i)
	Company Material Adverse Effect

	 	Section 4.1(a)
	Company Non-U.S. Plans

	 	Section 4.9(a)
	Company Options

	 	Section 2.2(a)(i)
	Company Plans

	 	Section 4.9(a)
	Company Proprietary Software

	 	Section 4.14(e)(ii)
	Company Restricted Stock

	 	Section 2.2(b)
	Company Software

	 	Section 4.14(e)(iii)
	Company Stock

	 	Section 2.1(e)(v)
	Company Transaction Expenses

	 	Section 2.4
	Confidential Information

	 	Section 4.13(j)(ii)
	Confidentiality Agreement

	 	Section 7.3
	Contract

	 	Section 4.4(a)
	Conversion Ratio

	 	Section 2.1(d)
	Convertible Preferred Stock

	 	Section 2.1(d)
	Convertible Preferred Stock Certificate

	 	Section 2.1(d)
	Credit Derivatives Industry Group

	 	Section 8.2(f)(iii)
	D&O Tail Policy

	 	Section 7.7(c)
	Deductible

	 	Section 9.4(a)(i)
	Demand Date

	 	Section 3.3(a)
	DGCL

	 	Recitals
	Disqualified Individual

	 	Section 7.9(f)
	Dissenting Shares

	 	Section 3.3(a)
	DOJ

	 	Section 7.4(b)(i)
	Effective Time

	 	Section 1.2
	Electing Employee Stockholder

	 	Section 2.11(a)
	Election Deadline

	 	Section 3.1(b)
	Encumbrance

	 	Section 4.10(c)
	Environment

	 	Section 4.15(d)(i)
	Environmental Laws

	 	Section 4.15(d)(ii)
	ERISA

	 	Section 4.9(a)
	ERISA Affiliate

	 	Section 4.9(a)
	Escrow Agent

	 	Section 2.7
	Escrow Agreement

	 	Section 2.7
	Escrow Cash

	 	Section 2.7(ii)
	Escrow Funds

	 	Section 2.7
	Escrow Funds per Share

	 	Section 2.1(e)(vi)
	Escrow Shares

	 	Section 2.7(i)
	Estimated Closing Balance Sheet

	 	Section 2.5(a)
	Estimated Closing Date Stockholders’ Equity

	 	Section 2.5(a)
	Estimated Reference Date Balance Sheet

	 	Section 2.1(e)(vii)






 









 






	 	 	 
	Term	 	Section
	Estimated Reference Date Cash Amount

	 	Section 2.1(e)(viii)
	Estimated Reference Date Stockholders’ Equity

	 	Section 2.1(e)(ix)
	Estimated Stockholders’ Equity Adjustment

	 	Section 2.1(e)(x)
	Exchange Act

	 	Article V
	Exchange Agent

	 	Section 3.2(a)
	Exchange Fund

	 	Section 3.2(a)
	Expense Amount

	 	Section 2.6
	Final Cash Adjustment

	 	Section 2.5(d)(ii)
	Final Closing Adjustment

	 	Section 2.5(d)(iii)
	Final Stockholders’ Equity Adjustment

	 	Section 2.5(d)(iv)
	FINRA

	 	Section 4.4(b)
	Forfeited Shares

	 	Section 2.2(b)
	Form of Election

	 	Section 3.1(a)
	FSA

	 	Section 7.4(b)(iii)
	FSMA

	 	Section 7.4(b)(iii)
	FTC

	 	Section 7.4(b)(i)
	Fully Diluted Shares Outstanding

	 	Section 2.1(e)(xi)
	GAAP

	 	Section 2.1(e)(xii)
	Goodwin

	 	Section 1.4
	Governmental Body

	 	Section 4.4(b)
	Governmental Permits

	 	Section 4.19(a)
	Hazardous Material

	 	Section 4.15(d)(iii)
	HSR Act

	 	Section 4.4(b)
	Indebtedness for Borrowed Money

	 	Section 2.1(e)(xiii)
	Indemnification Cut-Off Date

	 	Section 9.4(a)(iv)
	Indemnified Party

	 	Section 9.5(a)
	Indemnifying Parties

	 	Section 9.5(a)
	Indemnifying Party

	 	Section 9.5(a)
	Indemnity Claim

	 	Section 11.1
	Information Statement

	 	Section 7.1(b)
	Insurance Policies

	 	Section 4.16
	Intellectual Property

	 	Section 4.13(j)(iii)
	Intellectual Property Licenses

	 	Section 4.13(j)(iv)
	Intellectual Property License Out

	 	Section 4.13(j)(iv)
	IRS

	 	Section 4.8(a)(iv)
	Knowledge of the Company

	 	Section 4.24(c)
	Latest Audited Balance Sheet

	 	Section 4.5(a)(i)
	Laws

	 	Section 4.18
	Lease

	 	Section 4.10(b)
	Leased Real Property

	 	Section 4.10(b)
	Leases

	 	Section 4.10(b)
	Losses

	 	Section 9.1
	LTIP Awards

	 	Section 4.2(a)
	Material Contracts

	 	Section 4.12
	Maximum Cash Consideration

	 	Section 2.11(b)
	Merger

	 	Recitals






 









 






	 	 	 
	Term	 	Section
	Merger Consideration

	 	Section 2.1(e)(xiv)
	MergerCo

	 	Preamble
	Net Merger Consideration

	 	Section 2.1(e)(xv)
	New Option

	 	Section 2.2(a)(ii)
	Nominal Net Merger Consideration

	 	Section 2.1(e)(xvi)
	Non-Accredited Investor

	 	Section 2.10(b)
	OFAC

	 	Section 4.22
	Option Exchange Consideration

	 	Section 2.1(e)(xvii)
	Optionholders

	 	Section 2.2(a)(i)
	Oversubscription Amount

	 	Section 2.11(b)
	Patents

	 	Section 4.13(j)(iii)
	Pension Plan

	 	Section 4.9(a)
	Permitted Lien

	 	Section 4.10(c)
	Person

	 	Section 12.6
	Post-Closing Tax Period

	 	Section 7.9(a)(ii)
	Pre-Closing Period

	 	Section 6.1
	Pre-Closing Tax Period

	 	Section 7.9(a)(i)
	Preferred Stock Merger Consideration per Share

	 	Section 2.1(d)
	Premium Limit

	 	Section 7.7(c)
	Pro Rata Portion

	 	Section 2.1(e)(xviii)
	Q-Wixx LTIP Awards

	 	Section 2.2(c)
	Reference Date Balance Sheet

	 	Section 2.5(b)
	Reference Date Stockholders’ Equity

	 	Section 2.5(b)
	Registered Intellectual Property

	 	Section 4.13(j)(v)
	Regulatory Requirements

	 	Section 4.19(b)(iii)
	Required Stockholder Approval

	 	Section 4.1(b)
	Review Period

	 	Section 2.5(b)
	Release

	 	Section 4.15(d)(iv)
	Released Escrow Consideration

	 	Section 2.7
	Restricted Cash

	 	Section 2.1(e)(xix)
	Sarbanes-Oxley Act

	 	Section 5.7
	Schedules

	 	Section 12.2
	SEC

	 	Section 4.4(b)
	Securities Act

	 	Section 2.10(a)
	Self-Regulatory Organization

	 	Section 4.4(b)
	Series A Convertible Preferred Stock

	 	Section 2.1(d)
	Series C Convertible Preferred Stock

	 	Section 2.1(d)
	Series D Convertible Preferred Stock

	 	Section 2.1(d)
	Software

	 	Section 4.14(e)(iv)
	Specified Indemnified Parties

	 	Section 7.7(a)
	Stock Plan

	 	Section 2.1(e)(xxi)
	Stockholder

	 	Section 2.1
	Stockholder Indemnified Party

	 	Section 9.3
	Stockholder Written Consent

	 	Recitals
	Stockholders

	 	Section 2.1
	Stockholders’ Equity

	 	Section 2.1(e)(xx)






 









 






	 	 	 
	Term	 	Section
	Stockholders’ Representative

	 	Preamble
	Stockholders’ Representative Expense Fund

	 	Section 2.6
	Straddle Tax Period

	 	Section 7.9(a)(i)
	Subsidiary

	 	Section 2.1(e)(xxii)
	Surviving Corporation

	 	Section 1.1
	Tax Representation Letter

	 	Section 7.9(e)
	Tax Returns

	 	Section 4.8(b)(iii)
	Taxes

	 	Section 4.8(b)(i)
	Taxing Authority

	 	Section 4.8(b)(ii)
	Tax Contest

	 	Section 7.9(a)(iv)
	Termination Date

	 	Section 10.1(b)(ii)
	Third Party Claim

	 	Section 9.5(a)
	Threshold

	 	Section 9.4(a)(v)
	Transfer Taxes

	 	Section 7.9(c)
	True-up Statement

	 	Section 2.5(b)
	T-Zero LTIP Awards

	 	Section 2.2(c)
	Unvested Company Option

	 	Section 2.2(a)(i)
	Vested Company Option

	 	Section 2.2(a)(i)
	Vested Optionholder

	 	Section 2.2(a)(i)