exv10w1



 




Exhibit 10.1


ASSET PURCHASE AGREEMENT




Dated as of December 20, 2005




among




Unica Corporation,




MarketSoft Software Corporation




and




Robert G. Hiss, 




as Stockholder Representative




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE I. THE ASSET PURCHASE	 	 	1	 
	 
	 	1.1.	 	Purchase and Sale of Assets	 	 	1	 
	 
	 	1.2.	 	Assumption of Liabilities	 	 	1	 
	 
	 	1.3.	 	Purchase Price	 	 	1	 
	 
	 	1.4.	 	Escrow	 	 	1	 
	 
	 	1.5.	 	The Closing	 	 	2	 
	 
	 	1.6.	 	Allocation	 	 	3	 
	 
	 	1.7.	 	Further Assurances	 	 	3	 
	 
	 	1.8.	 	Withholding Obligations	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE SELLER	 	 	4	 
	 
	 	2.1.	 	Organization, Qualification and Corporate Power	 	 	4	 
	 
	 	2.2.	 	Capitalization	 	 	4	 
	 
	 	2.3.	 	Authorization of Transaction	 	 	5	 
	 
	 	2.4.	 	Noncontravention	 	 	5	 
	 
	 	2.5.	 	No Subsidiaries	 	 	5	 
	 
	 	2.6.	 	Financial Statements	 	 	5	 
	 
	 	2.7.	 	Absence of Certain Changes	 	 	6	 
	 
	 	2.8.	 	Tax Matters	 	 	6	 
	 
	 	2.9.	 	Ownership and Condition of Assets	 	 	6	 
	 
	 	2.10.	 	Real Property	 	 	7	 
	 
	 	2.11.	 	Intellectual Property	 	 	7	 
	 
	 	2.12.	 	Contracts	 	 	8	 
	 
	 	2.13.	 	Accounts Receivable	 	 	10	 
	 
	 	2.14.	 	Litigation	 	 	10	 
	 
	 	2.15.	 	Warranties	 	 	10	 
	 
	 	2.16.	 	Employees	 	 	10	 
	 
	 	2.17.	 	Employee Benefits	 	 	10	 
	 
	 	2.18.	 	Environmental Matters	 	 	11	 
	 
	 	2.19.	 	Legal Compliance	 	 	12	 
	 
	 	2.20.	 	Customers and Suppliers	 	 	12	 
	 
	 	2.21.	 	Permits	 	 	12	 
	 
	 	2.22.	 	Certain Business Relationships With Affiliates	 	 	12	 
	 
	 	2.23.	 	Brokers’ Fees	 	 	12	 
	 
	 	2.24.	 	Books and Records	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE BUYER	 	 	13	 
	 
	 	3.1.	 	Organization and Corporate Power	 	 	13	 
	 
	 	3.2.	 	Authorization of Transaction	 	 	13	 
	 
	 	3.3.	 	Noncontravention	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV. PRE-CLOSING COVENANTS	 	 	13	 
	 
	 	4.1.	 	Closing Efforts	 	 	13	 
	 
	 	4.2.	 	Governmental Notices and Consents	 	 	13	 
	 
	 	4.3.	 	Operation of Business	 	 	14	 
	 
	 	4.4.	 	Access to Information	 	 	15	 
	 
	 	4.5.	 	Exclusivity	 	 	15	 
	 
	 	4.6.	 	Bulk Transfers Laws	 	 	15	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.7.	 	FIRPTA Affidavit	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V. CONDITIONS TO CLOSING	 	 	16	 
	 
	 	5.1.	 	Conditions to Obligations of the Buyer	 	 	16	 
	 
	 	5.2.	 	Conditions to Obligations of the Seller	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI. POST-CLOSING COVENANTS	 	 	17	 
	 
	 	6.1.	 	Proprietary Information	 	 	17	 
	 
	 	6.2.	 	Cash Holdback	 	 	18	 
	 
	 	6.3.	 	M&T Agreement	 	 	18	 
	 
	 	6.4.	 	Tax Matters	 	 	19	 
	 
	 	6.5.	 	Sharing of Data	 	 	19	 
	 
	 	6.6.	 	Use of Name	 	 	20	 
	 
	 	6.7.	 	Cooperation in Litigation	 	 	20	 
	 
	 	6.8.	 	Collection of Accounts Receivable	 	 	20	 
	 
	 	6.9.	 	Employees	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII. INDEMNIFICATION	 	 	22	 
	 
	 	7.1.	 	Indemnification by the Seller	 	 	22	 
	 
	 	7.2.	 	Indemnification by the Buyer	 	 	22	 
	 
	 	7.3.	 	Indemnification Claims	 	 	23	 
	 
	 	7.4.	 	Survival of Representations and Warranties	 	 	25	 
	 
	 	7.5.	 	Limitations	 	 	26	 
	 
	 	7.6.	 	Treatment of Indemnity Payments	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII. TERMINATION	 	 	27	 
	 
	 	8.1.	 	Termination of Agreement	 	 	27	 
	 
	 	8.2.	 	Effect of Termination	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX. DEFINITIONS	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X. MISCELLANEOUS	 	 	36	 
	 
	 	10.1.	 	Press Releases and Announcements	 	 	36	 
	 
	 	10.2.	 	No Third Party Beneficiaries	 	 	36	 
	 
	 	10.3.	 	Entire Agreement	 	 	36	 
	 
	 	10.4.	 	Succession and Assignment	 	 	36	 
	 
	 	10.5.	 	Counterparts and Facsimile Signature	 	 	37	 
	 
	 	10.6.	 	Headings	 	 	37	 
	 
	 	10.7.	 	Notices	 	 	37	 
	 
	 	10.8.	 	Governing Law	 	 	38	 
	 
	 	10.9.	 	Amendments and Waivers	 	 	38	 
	 
	 	10.10.	 	Severability	 	 	38	 
	 
	 	10.11.	 	Expenses	 	 	38	 
	 
	 	10.12.	 	Submission to Jurisdiction	 	 	38	 
	 
	 	10.13.	 	Specific Performance	 	 	38	 
	 
	 	10.14.	 	Construction	 	 	39	 






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	Exhibits	 	 
	Exhibit A.
	 	Form of Escrow Agreement
	Exhibit B.
	 	Form of Bill of Sale
	Exhibit C.
	 	Form of Trademark Assignment
	Exhibit D.
	 	Form of Instrument of Assumption
	Exhibit E.
	 	Form of Opinion of Seller’s Counsel
	Exhibit F.
	 	Form of Opinion of Buyer’s Counsel






	 	 	 
	Schedules
	Schedule 1.1(a).
	 	Acquired Maintenance Renewals
	Schedule 1.1(b).
	 	Excluded Assets
	Schedule 6.9(a).
	 	Transferred Employees
	Schedule 6.9(b).
	 	Summary of Payments
	Schedule 6.9(c).
	 	COBRA Employees
	Disclosure Schedule






iii









 






     This Asset Purchase Agreement (this “Agreement”) is entered into as of December 20,
2005 among Unica Corporation, a Delaware corporation (the “Buyer”), MarketSoft Software
Corporation, a Delaware corporation (the “Seller”), and Robert G. Hiss, as Stockholder
Representative.



     This Agreement contemplates a transaction in which the Buyer will purchase substantially all
of the assets and assume certain of the liabilities of the Seller.



     Certain capitalized terms used in this Agreement have the meanings ascribed to them in Article
IX.



     In consideration of the representations, warranties and covenants herein contained, the Buyer
and the Seller agree as follows.



ARTICLE I. THE ASSET PURCHASE




     1.1. Purchase and Sale of Assets.




     (a) Upon and subject to the terms and conditions of this Agreement, the Buyer shall
purchase from the Seller, and the Seller shall sell, transfer, convey, assign and deliver to
the Buyer, at the Closing, for the consideration specified below in this Article I, all of the
Seller’s right, title and interest in, to and under the Acquired Assets.




     (b) Notwithstanding the provisions of Section 1.1(a), the Acquired Assets shall not
include the Excluded Assets.



     1.2. Assumption of Liabilities.




     (a) Upon and subject to the terms and conditions of this Agreement, the Buyer shall
assume, promptly perform and discharge in accordance with the terms thereof and otherwise
become responsible for, from and after the Closing, the Assumed Liabilities.




     (b) Notwithstanding the provisions of Section 1.2(a) or any other provision of this
Agreement to the contrary, the Buyer shall not assume or become responsible for, and the
Seller shall remain liable for, the Retained Liabilities.



     1.3. Purchase Price.




	 	(a)	 	The Purchase Price to be paid by the Buyer for the Acquired Assets at the
Closing shall be (i) $7,250,000 in cash, such amount to be paid in accordance with
the provisions of Section 1.5, and (ii) the assumption and the performance of the
Assumed Liabilities.
	 
	 	(b)	 	The Purchase Price shall be subject to decrease by the Purchase Price
Adjustment at the time of the Closing. The Purchase Price Adjustment shall equal
the aggregate amount of payments received by the Seller prior to the Closing with
respect to the maintenance renewals set forth on Schedule 1.1(a) hereto.





     1.4. Escrow. At the Closing, $1,925,000 of the Purchase Price payable by the Buyer at
the Closing shall be paid by the Buyer to the Escrow Agent for the following purposes:




	 	(a)	 	$800,000 shall be held by the Escrow Agent for the purpose of securing
the indemnification obligations of the Seller set forth in this Agreement
(“Indemnification Escrow Amount”); and




 









 






	 	(b)	 	$1,125,000 shall be held by the Escrow Agent in accordance with Section
6.3 (the “M&T Escrow Amount”).




The Escrow Agent shall hold the Escrow Fund under the Escrow Agreement pursuant to the terms of the
Escrow Agreement. The Escrow Fund shall be held as a trust fund and shall not be subject to any
lien, attachment, trustee process or any other judicial process of any creditor of any party, and
shall be held and disbursed solely for the purposes and in accordance with the terms of the Escrow
Agreement. The Escrow Agreement shall provide that the amounts deposited pursuant to clauses (a)
and (b) above shall be held in the Escrow Fund in separate accounts and shall not be intermingled.




     1.5. The Closing.




     (a) The Closing shall take place at the offices of Wilmer Cutler Pickering Hale and Dorr
LLP in Boston, Massachusetts (or remotely via the exchange of documents and signatures)
commencing at 9:00 a.m., local time, on the Closing Date. All transactions at the Closing
shall be deemed to take place simultaneously, and no transaction shall be deemed to have been
completed and no documents or certificates shall be deemed to have been delivered until all
other transactions are completed and all other documents and certificates are delivered.




     (b) At the Closing:




	 	(i)	 	the Seller shall deliver to the Buyer the various certificates,
instruments and documents referred to in Section 5.1;
	 
	 	(ii)	 	the Buyer shall deliver to the Seller the various certificates,
instruments and documents referred to in Section 5.2;
	 
	 	(iii)	 	the Seller shall execute and deliver to the Buyer a bill of
sale in substantially the form attached hereto as Exhibit B, one or
more trademark assignments in substantially the form attached hereto as
Exhibit C, and such other instruments of conveyance as the Buyer may
reasonably request in order to effect the sale, transfer, conveyance and
assignment to the Buyer of valid ownership of the Acquired Assets;
	 
	 	(iv)	 	the Buyer shall execute and deliver to the Seller an instrument
of assumption in substantially the form attached hereto as Exhibit D
and such other instruments as the Seller may reasonably request in order to
effect the assumption by the Buyer of the Assumed Liabilities;
	 
	 	(v)	 	the Buyer shall pay to the Seller, by wire transfer to an
account designated by the Seller, a total of $5,325,000, which shall represent
the Purchase Price set forth in Section 1.3 less the amount to be deposited in
escrow pursuant to Section 1.4;
	 
	 	(vi)	 	the Buyer shall pay to the Seller, by wire transfer to an
account designated by the Seller, a total of $28,030 for the payment of costs
and expenses incurred by the Seller in connection with the preparation, in
compliance with Regulation S-X promulgated by the Securities and Exchange
Commission, and delivery of the audited balance sheets and statements of
income, changes in stockholders’ equity and cash flows, including the footnotes
thereto, of the Seller as of, and for the fiscal years ended, June 30, 2004 and
2005, which payment shall be subject to the Buyer’s rights of set-off set forth
in Section 6.10(b);




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	 	(vii)	 	the Buyer, the Seller, the Stockholder Representative and the
Escrow Agent shall execute and deliver the Escrow Agreement and the Buyer shall
deposit a total of $1,925,000 with the Escrow Agent in accordance with Section
1.4; and
	 
	 	(viii)	 	the Seller shall deliver to the Buyer, or otherwise put the Buyer in
possession and control of, all of the Acquired Assets of a tangible nature.





     1.6. Allocation. For Tax and financial accounting purposes, the Buyer intends to
obtain a third-party appraisal of the Acquired Assets (the “Appraisal”). Within thirty days
following the finalization of the Appraisal, the Buyer shall prepare and deliver to the Seller an
allocation schedule allocating for Tax purposes the Purchase Price and Assumed Liabilities (and all
other capitalizable costs) among the Acquired Assets. Such allocation schedule shall be prepared
in accordance with the Appraisal and the rules under Section 1060 of the Code and the Treasury
Regulations promulgated thereunder, and any comparable provisions of state, local or other Tax law.
The Buyer and the Seller shall use good faith efforts to resolve any dispute regarding the
preparation of the allocation schedule. Except to the extent otherwise required by applicable
laws, the Buyer and the Seller will make all Tax Returns, reports, forms, declarations, claims and
other statements in a manner consistent with the allocation schedule and will not make any
inconsistent statement or adjustment on any returns or during the course of any Tax audit.



     1.7. Further Assurances. At any time and from time to time after the Closing, at the
request of the Buyer and without further consideration, the Seller shall execute and deliver such
other instruments of sale, transfer, conveyance and assignment and take such actions as the Buyer
may reasonably request to more effectively transfer, convey and assign to the Buyer, and to confirm
the Buyer’s rights to, title in and ownership of, the Acquired Assets and to place the Buyer in
actual possession and operating control thereof.



     1.8. Withholding Obligations. Each of the Buyer and the Escrow Agent shall be
entitled to deduct and withhold from the consideration otherwise payable to the Seller pursuant to
this Agreement such amounts as it is required to deduct and withhold with respect to the making of
any such payment under the Code or any other applicable Tax law. To the extent that amounts are so
withheld by the Buyer or the Escrow Agent, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the Seller.



     1.9. Stockholder Representative. The Stockholder Representative shall, by virtue of
the adoption of this Agreement and the resolutions adopted by the stockholders of the Seller with
respect to the appointment of the Stockholder Representative, be irrevocably appointed
attorney-in-fact and authorized and empowered (with full power of substitution in the premises) to
(a) act for an on behalf of any and all of the stockholders of the Seller in connection with the
indemnity provisions of Article VII as they relate to the Seller’s stockholders generally, the
Escrow Agreement, the notice provisions of this Agreement and such other matters as are reasonably
necessary for the consummation of the transactions contemplated hereby, including to act as the
representative of the Seller’s stockholders to review and authorize all setoffs, claims and other
payments authorized or directed by the Escrow Agreement and dispute or question the accuracy
thereof, to compromise on their behalf with the Buyer any claims asserted thereunder and to
authorize payments to be made with respect thereto,(b) exercise any and all rights of the Seller
under this Agreement following the Closing and (c) take such further actions as are authorized in
this Agreement. The Buyer and the Seller hereby agree that the exercise of any rights by the
Stockholder Representative pursuant to clause (b) of the preceding sentence shall have the same
effect as if such rights had been exercised by the Seller. The Stockholder Representative shall
not be liable to the Buyer, the Seller, any stockholder of the Seller or any other person with
respect to any action taken or omitted to be taken by the Stockholder Representative under or in
connection with this Agreement or the Escrow Agreement unless such action or omission results from
or arises out of fraud, gross negligence, willful



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misconduct or bad faith on the part of the Stockholder Representative. The stockholders of
the Seller shall severally indemnify the Stockholder Representative and hold the Stockholder
Representative harmless against any loss, liability or expense incurred without fraud, gross
negligence, willful misconduct or bad faith on the part of the Stockholder Representative and
arising out of or in connection with the acceptance or administration of the duties of the
Stockholder Representative hereunder, including the reasonable fees and expenses of any legal
counsel retained by the Stockholder Representative. The Buyer and its Affiliates shall be entitled
to rely on such appointment and treat the Stockholder Representative as the duly appointed
attorney-in-fact of each stockholder of the Seller. Each stockholder of the Seller who votes to
approve this Agreement, by such vote, without any further action, confirms such appointment and
authority and acknowledges and agrees that such an appointment is irrevocable and coupled with an
interest, it being understood that the willingness of the Buyer to enter into this Agreement is
based in part on the appointment of the Stockholder Representative to act on behalf of the
stockholders of the Seller.



ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE SELLER




     The Seller represents and warrants to the Buyer that, except as set forth in the Disclosure
Schedule (as defined below), the statements contained in this Article II are true and correct as of
the date of this Agreement except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations and warranties will
be true and correct as of such date). The Disclosure Schedule (the “Disclosure Schedule”) shall be
arranged in sections and subsections corresponding to the numbered and lettered sections and
subsections contained in this Article II, and shall qualify the representations and warranties set
forth in such sections and subsections regardless of whether or not such sections or subsections
(i) explicitly make reference to the Disclosure Schedule or (ii) are otherwise qualified by a
reference to the Disclosure Schedule. Furthermore, the disclosures in any section or subsection of
the Disclosure Schedule shall qualify other sections and subsections in this Article II only to the
extent it is reasonably apparent from a reading of the disclosure that such disclosure is
applicable to such other sections and subsections. For purposes of this Article II, the phrase “to
the knowledge of the Seller” or any phrase of similar import shall be deemed to refer to the actual
knowledge of any of the Seller Officers, as well as any other knowledge that any of the Seller
Officers would have possessed had they made reasonable inquiry of appropriate employees and agents
of the Seller with respect to the matter in question.



     2.1. Organization, Qualification and Corporate Power. The Seller is a corporation
duly organized, validly existing, and in corporate good standing under the laws of the State of
Delaware. The Seller is duly qualified to conduct business and is in corporate good standing under
the laws of each jurisdiction listed in Section 2.1 of the Disclosure Schedule, which jurisdictions
constitute the only jurisdictions in which the nature of the Seller’s businesses or the ownership
or leasing of its properties requires such qualification, except for those jurisdictions in which
the failure to be so qualified or in good standing, individually or in the aggregate, has not had
and would not reasonably be expected to have a Seller MAE. The Seller has all requisite corporate
power and authority to carry on the businesses in which it is engaged and to own and use the
properties owned and used by it. The Seller has furnished or otherwise made available to the Buyer
complete and accurate copies of its certificate of incorporation and by-laws. The Seller is not in
default under or in violation of any provision of its certificate of incorporation or by-laws.



     2.2. Capitalization. The authorized capital stock of the Seller consists of (a)
40,000,000 shares of common stock, $0.01 par value per share, of which, as of the date of this
Agreement, 1,047,252 shares were issued and outstanding and no shares were held in the treasury of
the Seller, and (b) 18,256,336 shares of preferred stock, $0.01 par value per share, of which (i)
1,544,240 shares have been designated as Series A redeemable convertible preferred stock, all of
which, as of the date of this Agreement, were issued and outstanding, (ii) 2,019,744 shares have
been designated as Series B redeemable convertible



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preferred stock, all of which, as of the date of this Agreement, were issued and outstanding,
(iii) 241,117 shares have been designated as Series C redeemable convertible preferred stock, of
which, as of the date of this Agreement, 183,778 shares were issued and outstanding, (iv) 5,746,834
shares have been designated as Series D redeemable convertible preferred stock, all of which, as of
the date of this Agreement, were issued and outstanding, and (v) 5,294,118 shares have been
designated as Series E redeemable convertible preferred stock, of which, as of the date of this
Agreement, 4,090,895 shares were issued and outstanding.



     2.3. Authorization of Transaction. The Seller has all requisite power and authority
to execute and deliver this Agreement and the Ancillary Agreements and to perform its obligations
hereunder and thereunder. The execution and delivery by the Seller of this Agreement and the
performance by the Seller of its obligations hereunder and thereunder have been duly authorized by
all necessary corporate action on the part of the Seller. Without limiting the generality of the
foregoing, the Board of Directors of the Seller, at a meeting duly called and held, by the
unanimous vote of all directors determined that the sale of assets contemplated by this Agreement
is expedient and in the best interests of the Seller, approved this Agreement in accordance with
the Delaware General Corporation Law, directed that such asset sale be submitted to the
stockholders of the Seller for their approval, and resolved to recommend that the stockholders of
the Seller vote in favor of the approval of such asset sale. The Requisite Stockholder Approval
was obtained at a meeting duly called and held or by a written consent duly executed and delivered
in accordance with the Delaware General Corporation Law. This Agreement has been duly and validly
executed and delivered by the Seller and constitutes, and each of the Ancillary Agreements, upon
its execution and delivery by the Seller, will constitute, a valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms except to the extent such
enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting
creditors’ rights generally or is subject to general principles of equity.



     2.4. Noncontravention. Neither the execution and delivery by the Seller of this
Agreement or the Ancillary Agreements, nor the performance by the Seller of its obligations
hereunder or thereunder, will (a) conflict with or violate any provision of the certificate of
incorporation or by-laws of the Seller, (b) require on the part of the Seller any notice to or
filing with, or any permit, authorization, consent or approval of, any Governmental Entity, (c)
conflict with, result in a breach of, constitute (with or without due notice or lapse of time or
both) a default under, result in the acceleration of obligations under, create in any Person the
right to terminate, modify or cancel, or require any notice, consent or waiver under, any contract
or instrument to which the Seller is a party or by which the Seller is bound or to which any of its
assets is subject, (d) result in the imposition of any Security Interest upon any assets of the
Seller or (e) violate any order, writ, injunction, decree, statute, rule or regulation applicable
to the Seller or any of its properties or assets.



     2.5. No Subsidiaries. The Seller does not control directly or indirectly or have any
direct or indirect equity participation or similar interest in any corporation, partnership,
limited liability company, joint venture or other business association or entity.



     2.6. Financial Statements. The Seller has provided or otherwise made available to the
Buyer the Financial Statements. The Financial Statements have been prepared in accordance with
Regulation S-X promulgated by the SEC and with GAAP applied on a consistent basis throughout the
periods covered thereby. The Financial Statements fairly present in all material respects the
financial condition, results of operations and cash flows of the Seller as of the respective dates
thereof and for the periods referred to therein and are consistent with the books and records of
the Seller; provided that the Financial Statements referred to in clause (b) of the definition of
such term are subject to normal year-end adjustments (which will not be material) and do not
include footnotes and other presentation materials required under GAAP.




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     2.7. Absence of Certain Changes. Since September 30, 2005, (a) there has occurred no
events or developments that, individually or in the aggregate, have had, or could reasonably be
expected to have in the future, a Seller MAE, and (b) the Seller has not taken any of the actions
set forth in clauses (a) through (p) of Section 4.3.



     2.8. Tax Matters.




     (a) The Seller has filed on a timely basis all material Tax Returns that it was required
to file, and all such Tax Returns were complete and accurate in all material respects. The
Seller has never been a member of a group of corporations with which it has filed (or been
required to file) consolidated, combined or unitary Tax Returns. The Seller has paid on a
timely basis all material Taxes that were due and payable. All material Taxes that the Seller
is or was required by law to withhold or collect have been duly withheld or collected and, to
the extent required, have been paid to the proper Governmental Entity.




     (b) The Seller has delivered or otherwise made available to the Buyer complete and
accurate copies of all federal income Tax Returns, examination reports and statements of
deficiencies assessed against or agreed to by the Seller since June 30, 2001. No examination
or audit of any Tax Return of the Seller by any Governmental Entity is currently in progress
or, to the knowledge of the Seller, threatened or contemplated. The Seller has not been
informed by any jurisdiction that the jurisdiction believes that the Seller was required to
file any Tax Return that was not filed. The Seller has not waived any statute of limitations
with respect to Taxes or agreed to an extension of time with respect to a Tax assessment or
deficiency.




     (c) The Seller has not made any payments, is not obligated to make any payments, and is
not a party to any agreement that could obligate it to make any payments that may be treated
as an “excess parachute payment” under Section 280G of the Code. The Seller does not have any
actual or potential liability for any Taxes of any person (other than the Seller) under
Treasury Regulation Section 1.1502-6 (or any similar provision of federal, state, local or
foreign law), or as a transferee or successor, by contract or otherwise. The Seller is not,
and has not been, required to make a basis reduction pursuant to Treasury Regulation Section
1.1502-20(b) or Treasury Regulation Section 1.337(d)-2(b).




     (d) None of the assets of the Seller: (i) is “tax-exempt use property” within the
meaning of Section 168(h) of the Code; or (ii) directly or indirectly secures any debt the
interest on which is tax exempt under Section 103(a) of the Code.




     (e) The Seller has not undergone a change in its method of accounting resulting in an
adjustment to its taxable income pursuant to Section 481 of the Code.



     2.9. Ownership and Condition of Assets.




     (a) The Seller has good and marketable title to, or in the case of leases or licenses,
valid leasehold interests or licenses in, all of the Acquired Assets, free and clear of all
Security Interests. Upon execution and delivery by the Seller to the Buyer of the instruments
of conveyance referred to in Section 1.5(b)(iii), the Seller shall convey to Buyer good and
marketable title to the Acquired Assets owned by the Seller, free and clear of all Security
Interests.




     (b) The Acquired Assets (together with the Excluded Assets) are sufficient in all
material respects for the conduct of the Seller’s business as presently conducted and
constitute all assets used by the Seller in such business.



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     (c) Section 2.9(c) of the Disclosure Schedule lists individually all Acquired Assets
having a book value greater than $10,000, indicating the cost, accumulated book depreciation
(if any) and the net book value of each such fixed asset as of September 30, 2005.




     (d) Each asset that is being transferred to the Buyer as part of the Acquired Assets and
that the Seller has possession of pursuant to a lease agreement or other contractual
arrangement is in such condition that, upon its return to its lessor or owner under the
applicable lease or contract, the obligations of the Seller to such lessor or owner will have
been discharged in full.



     2.10. Real Property.




     (a) The Seller does not own any real property.




     (b) Section 2.10(b) of the Disclosure Schedule lists all Leases and lists the term of
each Lease and the rent payable thereunder. The Seller has delivered or otherwise made
available to the Buyer complete and accurate copies of the Leases. Each Lease is a legal,
valid and binding obligation of the Seller, enforceable against the Seller in accordance with
its terms. The Seller is not in breach or violation of, or default under, any Lease, and no
event has occurred, is pending or, to the knowledge of the Seller, is threatened, that, after
the giving of notice, with lapse of time, or otherwise, would constitute a breach or default
by the Seller.



     2.11. Intellectual Property.




     (a) Section 2.11(a) of the Disclosure Schedule lists (i) each patent, patent application,
copyright registration or application therefor, and trademark, service mark and domain name
registration or application therefor of the Seller and (ii) each Customer Deliverable of the
Seller.




     (b) The Seller owns or has the right to use all Intellectual Property necessary (i) to
use, manufacture, have manufactured, market and distribute the Customer Deliverables and (ii)
to operate the Internal Systems. Upon execution and delivery by the Seller to the Buyer of
the instruments of conveyance referred to in Section 1.5(b)(iii), each item of Seller
Intellectual Property will be owned or available for use by the Buyer immediately following
the Closing on substantially similar terms and conditions as it was immediately prior to the
Closing. The Seller has taken commercially reasonable measures to protect the proprietary
nature of each item of Seller Intellectual Property, and to maintain in confidence all trade
secrets and confidential information, that it owns or uses. No other Person has any rights to
any of the Seller Intellectual Property owned by the Seller (except pursuant to agreements or
licenses specified in Section 2.11(d) of the Disclosure Schedule), and, to the knowledge of
the Seller, no Person is infringing, violating or misappropriating any of the Seller
Intellectual Property.




     (c) None of the Customer Deliverables, or the marketing, distribution, provision or use
thereof, infringes or violates, or constitutes a misappropriation of, any Intellectual
Property rights of any Person. To the knowledge of the Seller, none of the Internal Systems,
or the use thereof, infringes or violates, or constitutes a misappropriation of, any
Intellectual Property rights of any Person. Section 2.11(c) of the Disclosure Schedule lists
each complaint, claim or notice, or written threat thereof, received in writing by the Seller
alleging any such infringement, violation or misappropriation; and the Seller has provided or
otherwise made available to the Buyer complete and accurate copies of all written
documentation in the possession of the Seller relating to each such complaint, claim, notice
or threat. The Seller has provided or otherwise made available to the Buyer complete and
accurate copies of all written documentation in the Seller’s possession relating to claims or
disputes known to the Seller concerning any Seller Intellectual Property.



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     (d) Section 2.11(d) of the Disclosure Schedule identifies each license or other agreement
pursuant to which the Seller has (i) licensed or distributed, or otherwise granted any rights
to any Person with respect to, any Seller Intellectual Property or (ii) agreed to indemnify
any Person against any infringement, violation or misappropriation of any Intellectual
Property rights with respect to any Customer Deliverables.




     (e) Section 2.11(e) of the Disclosure Schedule identifies each item of Seller
Intellectual Property that is owned by any Person other than the Seller, and the license or
agreement pursuant to which the Seller uses it (excluding off-the-shelf software programs
licensed by the Seller pursuant to “shrink wrap” licenses).




     (f) Section 2.11(f) of the Disclosure Schedule lists all Open Source Materials that the
Seller currently uses, in any way and describes the manner in which such Open Source Materials
have been used by the Seller, including whether and how the Open Source Materials have been
modified and/or distributed by the Seller. The Seller has not (i) incorporated any Open
Source Materials into, or combined Open Source Materials with, any Customer Deliverables, (ii)
distributed Open Source Materials in connection with any Customer Deliverables, or (iii) used
Open Source Materials that (with respect to either clause (i) or (ii) above) (A) create, or
purport to create, obligations for the Seller with respect to software developed or
distributed by the Seller or (B) grant, or purport to grant, to any Person any rights or
immunities under intellectual property rights. Without limiting the generality of the
foregoing, the Seller has not combined any Open Source Materials with any Customer
Deliverables that require, as a condition of such combination, modification or distribution of
such Open Source Materials, that other software incorporated into, derived from or distributed
with such Open Source Materials be (1) disclosed or distributed in source code form, (2)
licensed for the purpose of making derivative works, or (3) redistributable at no charge.




     (g) The Seller has not disclosed the source code for the Software or other confidential
information constituting, embodied in or pertaining to the Software to any Person, except
pursuant to the agreements listed in Section 2.11(g) of the Disclosure Schedule, and the
Seller has taken commercially reasonable measures to prevent disclosure of such source code.




     (h) All of the copyrightable materials (including Software) incorporated in or bundled
with the Customer Deliverables have been created by employees of the Seller within the scope
of their employment by the Seller or by independent contractors of the Seller who have
executed agreements expressly assigning all right, title and interest in such copyrightable
materials and the copyrights therein to the Seller. No portion of such copyrightable
materials was jointly developed with any third party.




     (i) To the knowledge of the Seller, the Customer Deliverables and the Internal Systems
conform in all material respects to the written documentation and specifications therefor.



     2.12. Contracts.



     (a) Section 2.12 of the Disclosure Schedule lists the following agreements to which the
Seller is a party as of the date of this Agreement:




	 	(i)	 	any agreement (or group of related agreements) for the lease of
personal property from or to third parties providing for aggregate remaining
lease payments in excess of $10,000;
	 
	 	(ii)	 	any agreement (or group of related agreements) for the purchase
or sale of products or for the furnishing or receipt of services (A) that
involves more than the sum of




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	 	 	 	$10,000, (B) that calls for delivery of any products or product functionalities
not included in the price list included in Section 2.12 of the Disclosure
Schedule, or (C) in which the Seller has granted manufacturing rights, “most
favored nation” pricing provisions or marketing or distribution rights relating
to any products or territory or has agreed to purchase a minimum quantity of
goods or services or has agreed to purchase goods or services exclusively from
a certain Person;






	 	(iii)	 	any agreement providing for the payment of royalties by the
Seller;
	 
	 	(iv)	 	any agreement concerning the establishment or operation of a
partnership, joint venture or limited liability company;
	 
	 	(v)	 	any agreement (or group of related agreements) under which it
has created, incurred, assumed or guaranteed (or may create, incur, assume or
guarantee) indebtedness (including capitalized lease obligations) involving
more than $10,000 or under which it has imposed (or may impose) a Security
Interest on any of its assets, tangible or intangible;
	 
	 	(vi)	 	any agreement for the disposition of any significant portion of
the assets or business of the Seller (other than sales of products in the
Ordinary Course of Business) or any agreement for the acquisition of the assets
or business of any other entity (other than purchases of inventory or
components in the Ordinary Course of Business);
	 
	 	(vii)	 	any agreement concerning confidentiality or noncompetition
with any current or former employee or consultant;
	 
	 	(viii)	 	any employment or consulting agreement;
	 
	 	(ix)	 	any agreement involving any current or former officer, director
or stockholder of the Seller or an Affiliate thereof;
	 
	 	(x)	 	any agreement under which the consequences of a default or
termination would reasonably be expected to have a Seller MAE;
	 
	 	(xi)	 	any agreement that contains any provisions requiring the Seller
to indemnify any other Person (excluding indemnities contained in agreements
for the purchase, sale or license of products entered into in the Ordinary
Course of Business);
	 
	 	(xii)	 	any agreement purporting to restrict the Seller from operating
in any geographic area or from offering products or services of a specified
type or to a specified market; and
	 
	 	(xiii)	 	any other agreement (or group of related agreements) involving more than
$25,000.






     (b) The Seller has delivered or otherwise made available to the Buyer a complete and
accurate copy of each agreement listed in Section 2.11 or 2.12 of the Disclosure Schedule.
With respect to each agreement so listed: (i) the agreement is a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its terms; (ii)
for those agreements to which the Seller is a party, the agreement is assignable by the Seller
to the Buyer without the consent or approval of any Person (except as set forth in Section 2.4
of the Disclosure Schedule); and (iii) neither the Seller nor, to the knowledge of the Seller,
any other Person, is in material breach or material violation of, or material default under,
any such agreement, and no event has occurred, is



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pending or, to the knowledge of the Seller, is threatened, that, after the giving of
notice, with lapse of time, or otherwise, would constitute a material breach or material
default by the Seller or, to the knowledge of the Seller, any other Person under such
agreement.



     2.13. Accounts Receivable. All accounts receivable of the Seller reflected on the
Most Recent Balance Sheet (other than those paid since such date) are receivables recorded in the
Ordinary Course of Business of the Seller, subject to no setoffs or counterclaims and are current
and collectible, net of the applicable reserve for bad debts on the Most Recent Balance Sheet. All
accounts receivable of the Seller that have arisen since September 30, 2005 have been recorded in
the Ordinary Course of Business of the Seller subject to no setoffs or counterclaims and are
collectible, net of a reserve for bad debts in an amount proportionate to the reserve shown on the
Most Recent Balance Sheet. The Seller has not received any written notice from an account debtor
stating that any account receivable in an amount in excess of $10,000 is subject to any contest,
claim or setoff by such account debtor.



     2.14. Litigation. There is no Legal Proceeding that is pending or has been threatened
in writing against the Seller that (a) seeks either damages in excess of $10,000 or equitable
relief other than the Employee Claim or (b) in any manner challenges or seeks to prevent, enjoin,
alter or delay the transactions contemplated by this Agreement. To the Seller’s knowledge, there
are no judgments, orders or decrees outstanding against the Seller.



     2.15. Warranties. No product or service manufactured, sold, leased, licensed or
delivered by the Seller is subject to any guaranty, warranty, right of return, right of credit or
other indemnity other than (a) the applicable standard terms and conditions of sale or lease of the
Seller, which are set forth in Section 2.15 of the Disclosure Schedule, and (b) manufacturers’
warranties for which the Seller has any liability. Section 2.15 of the Disclosure Schedule sets
forth the aggregate expenses incurred by the Seller in fulfilling its obligations under its
guaranty, warranty, right of return and indemnity provisions during each of the fiscal years and
the interim period covered by the Financial Statements.



     2.16. Employees. Section 2.16 of the Disclosure Schedule contains a list of all
employees of the Seller, along with the position and the annualized base salary of each such
employee. Each current or past employee of the Seller has entered into a confidentiality and
assignment of inventions agreement with the Seller, a copy or form of which has previously been
delivered or otherwise made available to the Buyer. Section 2.16 of the Disclosure Schedule
contains a list of each of the current or past employees of the Seller who is a party to a
non-competition agreement with the Seller that has not expired by its terms; copies of such
agreements have previously been delivered or otherwise made available to the Buyer. Section 2.16
of the Disclosure Schedule contains a list of all employees of the Seller who are not citizens of
the United States. To the knowledge of the Seller, as of the date hereof, no key employee or group
of employees has any plans to terminate employment with the Seller (other than for the purpose of
accepting employment with the Buyer following the Closing) or not to accept employment with the
Buyer. Section 2.16 of the Disclosure Schedule sets forth a summary of the severance policy and
practices of the Seller currently in effect.



     2.17. Employee Benefits.




     (a) Section 2.17(a) of the Disclosure Schedule contains a complete and accurate list of
all Seller Plans. Complete and accurate copies of (i) all Seller Plans that have been reduced
to writing, (ii) written summaries of all unwritten Seller Plans and (iii) if applicable, all
related trust agreements and summary plan descriptions, have, in each case, been delivered or
otherwise made available to the Buyer. The Seller is not, and has never been, a member of (1)
a controlled group of corporations (as defined in Section 414(b) of the Code), (2) a group of
trades or businesses under common control (as defined in Section 414(c) of the Code), or (3)
an affiliated service group (as defined under Section 414(m) of the Code or the regulations
under Section 414(o) of the Code).



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     (b) Each Seller Plan has been administered in all material respects in accordance with
its terms and the Seller has in all material respects met its obligations with respect to each
Seller Plan and has made all required contributions thereto. The Seller and each Seller Plan
are in compliance in all material respects with the currently applicable provisions of ERISA
and the Code and the regulations thereunder (including Section 4980B of the Code, Subtitle K,
Chapter 100 of the Code and Sections 601 through 608 and Section 701 et seq. of ERISA).




     (c) To the knowledge of the Seller, there are no Legal Proceedings (except claims for
benefits payable in the normal operation of the Seller Plans and proceedings with respect to
qualified domestic relations orders) against or involving any Seller Plan or asserting any
rights or claims to benefits under any Seller Plan that could give rise to any material
liability.




     (d) All the Seller Plans that are intended to be qualified under Section 401(a) of the
Code have received determination letters from the Internal Revenue Service to the effect that
such Seller Plans are qualified and the plans and the trusts related thereto are exempt from
federal income taxes under Sections 401(a) and 501(a), respectively, of the Code. Each Seller
Plan that is required to satisfy Section 401(k)(3) or Section 401(m)(2) of the Code has been
tested for compliance with, and satisfies the requirements of Section 401(k)(3) and Section
401(m)(2) of the Code for each plan year ending prior to the Closing Date.




     (e) The Seller has never maintained an Employee Benefit Plan subject to Section 412 of
the Code or Title IV of ERISA.




     (f) At no time has the Seller been obligated to contribute to any “multiemployer plan”
(as defined in Section 4001(a)(3) of ERISA).




     (g) There are no unfunded obligations under any Seller Plan providing benefits after
termination of employment to any employee of the Seller (or to any beneficiary of any such
employee), including but not limited to retiree health coverage and deferred compensation, but
excluding continuation of health coverage required to be continued under Section 4980B of the
Code or other applicable law and insurance conversion privileges under state law.




     (h) No Seller Plan is funded by, associated with or related to a “voluntary employee’s
beneficiary association” within the meaning of Section 501(c)(9) of the Code.




     (i) Each Seller Plan is amendable and terminable unilaterally by the Seller at any time
without liability or expense to the Seller or such Seller Plan as a result thereof (other than
for benefits accrued through the date of termination or amendment and reasonable
administrative expenses related thereto).




     (j) Section 2.17(j) of the Disclosure Schedule sets forth the policy of the Seller with
respect to accrued vacation, accrued sick time and earned time off and the approximate amount
of such liabilities as of the date of this Agreement.



     2.18. Environmental Matters.




     (a) The Seller has complied with all applicable Environmental Laws in all material
respects, and has no material liabilities or obligations arising from the release of any
Materials of Environmental Concern into the environment. There is no pending or, to the
knowledge of the Seller, threatened civil or criminal litigation, written notice of violation,
formal administrative proceeding, or investigation, inquiry or information request by any
Governmental Entity, relating to any Environmental Law involving the Seller. The Seller is a
not party to or bound by any court



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order, administrative order, consent order or other agreement with any Governmental
Entity entered into in connection with any legal obligation or liability arising under any
Environmental Law.




     (b) Set forth in Section 2.18(b) of the Disclosure Schedule is a list of all documents
(whether in hard copy or electronic form) that contain any environmental reports,
investigations and audits relating to premises currently or previously owned or operated by
the Seller (whether conducted by or on behalf of the Seller or a third party, and whether done
at the initiative of the Seller or directed by a Governmental Entity or other third party)
that the Seller has possession of or access to. A complete and accurate copy of each such
document has been provided or otherwise made available to the Buyer.



     2.19. Legal Compliance. The Seller is currently conducting, and has at all times
since July 1, 2003 conducted, its business in compliance with each applicable law (including rules
and regulations thereunder) of any federal, state, local or foreign government, or any Governmental
Entity, except for any violations or defaults that, individually or in the aggregate, have not had
and would not reasonably be expected to have a Seller MAE. The Seller has not received any written
notice or communication from any Governmental Entity alleging noncompliance with any applicable
law, rule or regulation applicable to the Seller.



     2.20. Customers and Suppliers. Section 2.20 of the Disclosure Schedule sets forth a
list of (a) each customer that accounted for any portion of the revenues of the Seller since July
1, 2004 and the amount of revenues accounted for by such customer during each of the fiscal years
and the interim period covered by the Financial Statements and (b) each supplier that is the sole
supplier of any significant product or service to the Seller.



     2.21. Permits. Section 2.21 of the Disclosure Schedule sets forth a list of all
material Permits issued to or held by the Seller. Such listed Permits are the only Permits that
are required for the Seller to conduct its business as presently conducted. Each such Permit is in
full force and effect; the Seller is in compliance with the material terms of each such Permit;
and, to the knowledge of the Seller, no suspension or cancellation of such Permit is threatened.
Each such Permit is assignable by the Seller to the Buyer without the consent or approval of any
Person.



     2.22. Certain Business Relationships With Affiliates. No Affiliate of the Seller (a)
owns any property or right, tangible or intangible, that is used in the business of the Seller, (b)
has any claim or cause of action against the Seller relating to the conduct of the Seller’s
business, or (c) owes any money to, or is owed any money by, the Seller. Section 2.22 of the
Disclosure Schedule describes any commercial transactions or relationships between the Seller and
any Affiliate thereof that have occurred or have existed since July 1, 2003.



     2.23. Brokers’ Fees. Except with respect to the fees and commissions payable to
McNamee Lawrence & Co. LLC in connection with the transactions contemplated by this Agreement,
which fees and commissions shall be borne by the Seller, the Seller has no liability or obligation
to pay any fees or commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement.



     2.24. Books and Records. The minute books and other similar records of the Seller
contain complete and accurate records of all actions taken at any meetings of the Seller’s
stockholders, Board of Directors or any committee thereof and of all written consents executed in
lieu of the holding of any such meeting. The books and records of the Seller accurately reflect in
all material respects the assets, liabilities, business, financial condition and results of
operations of the Seller and have been maintained in all material respects in accordance with good
business and bookkeeping practices.



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ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE BUYER




     The Buyer represents and warrants to the Seller that the statements contained in this Article
III are true and correct as of the date of this Agreement and will be true and correct as to the
Closing as though made as of the Closing.



     3.1. Organization and Corporate Power. The Buyer is a corporation duly organized,
validly existing, and in corporate good standing under the laws of the State of Delaware. The
Buyer has all requisite corporate power and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by it.



     3.2. Authorization of Transaction. The Buyer has all requisite power and authority to
execute and deliver this Agreement and the Escrow Agreement and to perform its obligations
hereunder and thereunder. The execution and delivery by the Buyer of this Agreement and the Escrow
Agreement and the consummation by the Buyer of its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action on the part of the Buyer. Without limiting the
generality of the foregoing, the Board of Directors of the Buyer, at a meeting duly called and
held, by a unanimous vote approved this Agreement in accordance with the Delaware General
Corporation Law. This Agreement has been duly and validly executed and delivered by the Buyer and
constitutes a valid and binding obligation of the Buyer, enforceable against it in accordance with
its terms except to the extent such enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting creditors’ rights generally or is subject to general
principles of equity.



     3.3. Noncontravention. Neither the execution and delivery by the Buyer of this
Agreement or the Escrow Agreement, nor the performance by the Buyer of its obligations hereunder or
thereunder, will (a) conflict with or violate any provision of the certificate of incorporation or
by-laws of the Buyer, (b) require on the part of the Buyer any notice to or filing with, or any
permit, authorization, consent or approval of, any Governmental Entity, except as may be required
pursuant to the Securities Exchange Act of 1934, (c) conflict with, result in breach of, constitute
(with or without due notice or lapse of time or both) a default under, result in the acceleration
of obligations under, create in any Person the right to terminate, modify or cancel, or require any
notice, consent or waiver under, any contract or instrument to which the Buyer is a party or by
which the Buyer is bound or to which any of its assets is subject, except for (i) any conflict,
breach, default, acceleration, termination, modification or cancellation that would not adversely
affect the consummation of the transactions contemplated hereby or (ii) any notice, consent or
waiver the absence of which would not adversely affect the consummation of the transactions
contemplated hereby, or (d) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Buyer or any of its properties or assets.



ARTICLE IV. PRE-CLOSING COVENANTS




     4.1. Closing Efforts. Each of the Parties shall use its Reasonable Best Efforts to
take all actions and to do all things necessary, proper or advisable to consummate the transactions
contemplated by this Agreement, including using its Reasonable Best Efforts to ensure that (a) its
representations and warranties remain true and correct in all material respects through the Closing
Date and (b) the conditions to the obligations of the other Parties to consummate the transactions
contemplated by this Agreement are satisfied.



     4.2. Governmental Notices and Consents. Each Party shall use its Reasonable Best
Efforts to obtain, at its expense, all waivers, permits, consents, approvals or other
authorizations from Governmental Entities, and to effect all registrations, filings and notices
with or to Governmental Entities, as may be required for such Party to consummate the transactions
contemplated by this Agreement and to otherwise



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comply with all applicable laws and regulations in connection with the consummation of the
transactions contemplated by this Agreement.



     4.3. Operation of Business. Except as contemplated by this Agreement, during the
period from the date of this Agreement to the Closing, the Seller shall conduct its operations in
the Ordinary Course of Business and in compliance with all applicable laws and regulations and, to
the extent consistent therewith, use its Reasonable Best Efforts to preserve intact its current
business organization, keep its physical assets in good working condition (subject to normal wear
and tear), keep available the services of its current officers and employees and preserve its
relationships with customers, suppliers and others having business dealings with it. Without
limiting the generality of the foregoing, prior to the Closing, the Seller shall not, without the
written consent of the Buyer, which will not be unreasonably withheld, delayed or conditioned:




	 	(a)	 	issue or sell any stock or other securities of the Seller or any options,
warrants or other rights to acquire any such stock or other securities (except
pursuant to the conversion or exercise of options, warrants or other convertible
securities outstanding on the date hereof);
	 
	 	(b)	 	declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital stock,
other than the declaration of a cash dividend to be paid at or after the Closing in
an amount that shall not cause the Seller to violate the terms of Section 6.2;
	 
	 	(c)	 	create, incur or assume any indebtedness (including obligations in
respect of capital leases); assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of any
other Person; or make any loans, advances or capital contributions to, or
investments in, any other Person;
	 
	 	(d)	 	take any action in connection with the collection of receivables or the
payment of payables that is not consistent with past practice;
	 
	 	(e)	 	enter into any contract or agreement to assume, or otherwise agree to or
assume, any obligation in excess of $25,000;
	 
	 	(f)	 	enter into, adopt or amend any Employee Benefit Plan or any employment or
severance agreement or arrangement of the type described in Section 2.17(k) or
(except for normal increases in the Ordinary Course of Business for employees who
are not Affiliates) materially increase in any manner the compensation or fringe
benefits of, or materially modify the employment terms of, its directors, officers
or employees, generally or individually, or pay any bonus or other benefit to its
directors, officers or employees in excess of $10,000 (except for existing payment
obligations listed in Section 2.17 of the Disclosure Schedule) or hire any new
officers or (except in the Ordinary Course of Business) any new employees;
	 
	 	(g)	 	acquire, sell, lease, license or dispose of any assets or property, other
than purchases, sales, licenses or dispositions of assets or property in the
Ordinary Course of Business;
	 
	 	(h)	 	mortgage or pledge any of its property or assets or subject any such
property or assets to any Security Interest;
	 
	 	(i)	 	discharge or satisfy any Security Interest or pay any obligation or
liability other than in the Ordinary Course of Business;




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	 	(j)	 	amend its certificate of incorporation or by-laws in a manner that could
have an adverse effect on the transactions contemplated by this Agreement;
	 
	 	(k)	 	change its accounting methods, principles or practices, except insofar as
may be required by a generally applicable change in GAAP, or make any new elections,
or changes to any current elections, with respect to Taxes that affect the Acquired
Assets;
	 
	 	(l)	 	enter into, amend, terminate, take or omit to take any action that would
constitute a violation of or default under, or waive any rights under, any contract
or agreement of a nature required to be listed in Section 2.10(b), 2.11 or 2.12 of
the Disclosure Schedule;
	 
	 	(m)	 	make or commit to make any capital expenditures in excess of $10,000 per
item or $25,000 in the aggregate;
	 
	 	(n)	 	institute or settle any Legal Proceeding other than the Employee Claim;
	 
	 	(o)	 	take any action or fail to take any action permitted by this Agreement
with the knowledge that such action or failure to take action would result in (i)
any of the representations and warranties of the Seller set forth in this Agreement
becoming untrue or (ii) any of the conditions to the Closing set forth in Article V
not being satisfied; or
	 
	 	(p)	 	agree in writing or otherwise to take any of the foregoing actions.





     4.4. Access to Information. The Seller shall permit representatives of the Buyer to
have full access (at all reasonable times during the Seller’s normal business hours, and in a
manner so as not to interfere with the normal business operations of the Seller) to all premises,
properties, financial, tax and accounting records (including the work papers of the Seller’s
independent accountants), contracts, other records and documents, and personnel, of or pertaining
to the Seller for the purpose of performing such inspections and tests as the Buyer reasonably
determines to be necessary or appropriate.



     4.5. Exclusivity.




     (a) The Seller shall not, and the Seller shall require each of its officers, directors,
employees, representatives and agents not to, directly or indirectly, (i) initiate, solicit,
encourage or otherwise facilitate any inquiry, proposal, offer or discussion with any Person
(other than the Buyer) concerning any merger, reorganization, consolidation, recapitalization,
business combination, liquidation, dissolution, share exchange, sale of stock, sale of
material assets or similar business transaction involving the Seller, (ii) furnish any
non-public information concerning the business, properties or assets of the Seller to any
Person (other than the Buyer) or (iii) engage in discussions or negotiations with any Person
(other than the Buyer) concerning any such transaction.




     (b) If the Seller receives any inquiry, proposal or offer of the nature described in
paragraph (a) above, the Seller shall, within one business day after such receipt, notify the
Buyer of such inquiry, proposal or offer and the material terms of such inquiry, proposal or
offer.



     4.6. Bulk Transfers Laws. The Buyer and the Seller each hereby waive compliance with
the provisions of any and all applicable bulk transfers statutes that may be applicable to the
transfer of the Acquired Assets under this Agreement (subject to the indemnity provided for in
Sections 7.1 and Section 7.2).



     4.7. FIRPTA Affidavit. At or prior to the Closing, the Seller shall have delivered to
the Buyer a certificate, duly completed and executed pursuant to Section 1.1445-2(b)(2) of the
Treasury Regulations,



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certifying that the Seller is not a “foreign person” within the meaning of Section 1445 of the
Code (the “FIRPTA Affidavit”); provided that if the FIRPTA Affidavit required under this Section
4.7 is not provided, the Buyer may withhold any required Taxes as provided in Section 1.8 of this
Agreement.



ARTICLE V. CONDITIONS TO CLOSING




     5.1. Conditions to Obligations of the Buyer. The obligation of the Buyer to
consummate the transactions contemplated by this Agreement to be consummated at the Closing is
subject to the satisfaction of the following additional conditions:




	 	(a)	 	the representations and warranties of the Seller set forth in the first
sentence of Section 2.1 and in Section 2.3 and any representations and warranties of
the Seller set forth in this Agreement that are qualified as to materiality shall be
true and correct in all respects, and all other representations and warranties of
the Seller set forth in this Agreement shall be true and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing as
though made as of the Closing, except to the extent such representations and
warranties are specifically made as of a particular date (in which case such
representations and warranties shall be true and correct as of such date);
	 
	 	(b)	 	the Seller shall have performed or complied with in all material respects
its agreements and covenants required to be performed or complied with under this
Agreement as of or prior to the Closing;
	 
	 	(c)	 	no Legal Proceeding shall be pending or threatened wherein an unfavorable
judgment, order, decree, stipulation or injunction would (i) prevent consummation of
the transactions contemplated by this Agreement, (ii) cause the transactions
contemplated by this Agreement to be rescinded following consummation or (iii)
materially and adversely affect the right of the Buyer to own, operate or control
any of the Acquired Assets, or to conduct the business of the Seller as currently
conducted, following the Closing, and no such judgment, order, decree, stipulation
or injunction shall be in effect;
	 
	 	(d)	 	the Seller shall have delivered to the Buyer the Seller Certificate;
	 
	 	(e)	 	the Seller shall have delivered to the Buyer an update, as of the date
prior to the Closing Date, of each list contained in the Disclosure Schedule that
lists or describes Acquired Assets;
	 
	 	(f)	 	the Seller shall have delivered to the Buyer documents evidencing the
release or termination of all Security Interests on the Acquired Assets, and copies
of filed UCC termination statements with respect to all UCC financing statements
evidencing Security Interests, other than Security Interests which are listed in
Section 2.9 of the Disclosure Schedule under the heading “Permitted Security
Interests”;
	 
	 	(g)	 	the Buyer shall have received the written consent of Lexington Corporate
Center Associates, LLC to the assignment by the Seller to the Buyer of the Lease
dated December 2, 1999 between the Seller and Lexington Corporate Center Associates,
LLC;
	 
	 	(h)	 	the Buyer shall have received from the Seller the FIRPTA Affidavit;
	 
	 	(i)	 	the Buyer shall have received from counsel to the Seller an opinion in
substantially the form attached hereto as Exhibit E, addressed to the Buyer
and dated as of the Closing Date; and






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	 	(j)	 	the Buyer shall have received such other certificates and instruments
(including certificates of good standing of the Seller in Delaware and the various
foreign jurisdictions in which it is qualified, certified charter documents,
certificates as to the incumbency of officers and the adoption of authorizing
resolutions) as it shall reasonably request in connection with the Closing.





     5.2. Conditions to Obligations of the Seller. The obligation of the Seller to
consummate the transactions contemplated by this Agreement to be consummated at the Closing is
subject to the satisfaction of the following additional conditions:




	 	(a)	 	the representations and warranties of the Buyer set forth in the first
sentence of Section 3.1 and in Section 3.2 and any representations and warranties of
the Buyer set forth in this Agreement that are qualified as to materiality shall be
true and correct in all respects, and all other representations and warranties of
the Buyer set forth in this Agreement shall be true and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing as
though made as of the Closing, except to the extent such representations and
warranties are specifically made as of a particular date (in which case such
representations and warranties shall be true and correct as of such date);
	 
	 	(b)	 	the Buyer shall have performed or complied in all material respects with
its agreements and covenants required to be performed or complied with under this
Agreement as of or prior to the Closing;
	 
	 	(c)	 	no Legal Proceeding shall be pending or threatened wherein an unfavorable
judgment, order, decree, stipulation or injunction would (i) prevent consummation of
the transactions contemplated by this Agreement or (ii) cause the transactions
contemplated by this Agreement to be rescinded following consummation, and no such
judgment, order, decree, stipulation or injunction shall be in effect;
	 
	 	(d)	 	the Buyer shall have delivered to the Seller the Buyer Certificate;
	 
	 	(e)	 	the Seller shall have received from counsel to the Buyer an opinion in
substantially the form attached hereto as Exhibit F, addressed to the Seller
and dated as of the Closing Date; and
	 
	 	(f)	 	the Seller shall have received such other certificates and instruments
(including certificates of good standing of the Buyer in its jurisdiction of
organization, certificates as to the incumbency of officers and the adoption of
authorizing resolutions) as it shall reasonably request in connection with the
Closing.





ARTICLE VI. POST-CLOSING COVENANTS




     6.1. Proprietary Information. From and after the Closing, the Seller shall not
disclose or make use of (except to pursue its rights, under this Agreement or the Ancillary
Agreements), and shall use its commercially reasonable efforts to cause all of its Affiliates not
to disclose or make use of, any knowledge, information or documents of a confidential nature or not
generally known to the public with respect to Acquired Assets or the Seller’s business (including
the financial information, technical information or data relating to the Seller’s products and
names of customers of the Seller, as well as filings and testimony (if any) presented in the course
of any arbitration of a Dispute pursuant to Section 7.3 and the arbitral award and the Arbitrator’s
reasons therefor relating to the same), except to the extent that such knowledge, information or
documents shall have become public knowledge other than



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through improper disclosure by the Seller or an Affiliate or that is otherwise required to be
disclosed by law, statute, regulation or rule or judicial or governmental order or decree.




     6.2. Cash Holdback.




     (a) Subject to Section 6.2(b) below, from and after the Closing, the Seller shall
maintain cash in an amount sufficient to pay all of the Retained Liabilities. Without
limiting the foregoing, the Seller agrees, from and after the Closing, to maintain cash in an
amount equal to at least the aggregate of the following:




	 	(i)	 	$56,650 for payment of the Employee Claim;
	 
	 	(ii)	 	the aggregate amount of payments remaining prior to termination
under each of (A) the Lease dated December 24, 2003 between the Seller and
IL-Civic Opera Building, LLC and (B) the Lease dated September 19, 2000 between
the Seller and BRE/CBL, LLC;
	 
	 	(iii)	 	the aggregate amount of all outstanding expenses incurred in
connection with this Agreement and the transactions contemplated hereby that
are to be borne by the Seller pursuant to Section 10.11; and
	 
	 	(iv)	 	$1,200,000 (the “Reserve Amount”) to secure the indemnification
obligations of the Seller set forth in this Agreement that are in excess of the
Indemnification Escrow Amount, as contemplated by Article VII.






     (b) Notwithstanding anything to the contrary herein, in the event that any of the
liabilities set forth in Section 6.2(a) above has been satisfied in full (which, with respect
to the matter described in clause (i) of Section 6.2(a) shall mean payment in full of all
amounts required to be paid by the Seller pursuant to a final, binding settlement agreement or
a final, non-appealable court or administrative tribunal order or judgment), the amount of
cash required to be maintained by the Seller pursuant to Section 6.2(a) shall be decreased by
an amount equal to the amount set forth in the applicable provision of Section 6.2(a).




     (c) Notwithstanding anything to the contrary herein (including the provisions of this
Section 6.2), the Seller shall have the right to take any and all actions to cause the
dissolution and liquidation of the Seller and to take any and all other matters related to the
winding up of the Seller, including adopting a plan of complete liquidation and dissolution
(or any similar plan) and filing a certificate of dissolution with the Secretary of State of
the State of Delaware and other state agencies, as appropriate; provided that no such action
shall restrict or limit the Seller’s obligations under this Agreement, including this Section
6.2.



     6.3. M&T Agreement.




     (a) From and after the Closing Date through April 1, 2010, upon receipt by the Buyer
and/or any Affiliate thereof of any payments for the license fee portion of the M&T Agreement
in effect on the Closing Date, the Buyer shall instruct the Escrow Agent to release to the
stockholders of Seller (pursuant to and in accordance with the provisions of the Escrow
Agreement), within 30 days of Buyer’s and/or such Affiliate’s receipt of such license fee
payments, a portion of the M&T Escrow Amount equal to 50% of the amount of such license fee
payment received by the Buyer; provided that the amounts payable to the stockholders of the
Seller pursuant to this Section 6.3 shall not exceed the M&T Escrow Amount.



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     (b) Notwithstanding anything to the contrary herein, in the event that, on the second
anniversary of the Closing Date, the Buyer and/or any Affiliate thereof has received all
payments (including license fees maintenance, service and other payments due through the
second anniversary of the Closing Date under the M&T Agreement in effect on the Closing Date)
through the second anniversary of the Closing Date, the Buyer shall instruct the Escrow Agent
to release to the stockholders of Seller (pursuant to and in accordance with the provisions of
the Escrow Agreement), within 30 days of the second anniversary of the Closing Date, the
amount of the M&T Escrow Amount that has not been otherwise distributed (including accrued but
undistributed interest thereon).




     (c) Any portion of the M&T Escrow Amount (including accrued interest thereon) that has
not been otherwise distributed as of May 2, 2010 shall be released to the Buyer by the Escrow
Agent in accordance with the terms of the Escrow Agreement.




     (d) In connection with the matters contemplated by this Section 6.3, the Buyer
acknowledges and agrees that:




     (i) Neither the Buyer nor any Affiliate thereof shall amend, modify, terminate or
waive any provision of the M&T Agreement in a manner that would result in the delay,
deferral, reduction or elimination of any payment of license fees due under the M&T
Agreement as in effect as of the Closing unless the Buyer obtains the prior written
consent of the Seller, which consent shall not be unreasonably withheld, conditioned or
delayed.




     (ii) The Buyer shall, in good faith, use commercially reasonable efforts to perform
and discharge in all material respects all of its obligations under the M&T Agreement,
provided that M&T has performed and discharged in all material respects all of its
obligations under the M&T Agreement.




     (e) Any disagreement between the Parties relating to this Section 6.3, the M&T Agreement,
the M&T Escrow Amount and payments therefrom shall be resolved as follows:




     (i) The Buyer and the Seller shall first use reasonable efforts to resolve such
disagreement; and




     (ii) If the Buyer and the Seller do not resolve such disagreement within 30 days,
the Buyer and the Seller shall be submitted to the Arbitrator in accordance with the
provisions of Section 7.3(e).



     6.4. Tax Matters. All transfer taxes, deed excise stamps and similar charges related
to the sale of the Acquired Assets contemplated by this Agreement shall be borne 50% by the Buyer
and 50% by the Seller. The Buyer and the Seller agree to cooperate to file Tax Returns with
respect to such taxes and to file any certificates or forms as may be necessary or appropriate to
establish an exemption from (or otherwise reduce) such taxes.



     6.5. Sharing of Data.




     (a) The Seller shall have the right for a period of seven years following the Closing
Date to have reasonable access to such books, records and accounts, including financial and
tax information, correspondence, production records, employment records and other records that
are transferred to the Buyer pursuant to the terms of this Agreement (whether in paper or
electronic format) for the limited purposes of concluding its involvement in the business
conducted by the Seller prior to the Closing Date and for complying with its obligations under
applicable corporate, securities, tax,



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environmental, employment or other laws and regulations. The Buyer shall use reasonable
efforts to provide to the Seller and its representatives with electronic access to such books,
records and accounts retained by the Buyer as the Seller may reasonably request. The Buyer
shall have the right for a period of seven years following the Closing Date to have reasonable
access to those books, records and accounts, including financial and accounting records
(including the work papers of the Seller’s independent accountants), tax records,
correspondence, production records, employment records and other records that are retained by
the Seller pursuant to the terms of this Agreement (whether in paper or electronic format) to
the extent that any of the foregoing is needed by the Buyer for the purpose of conducting the
business of the Seller after the Closing and complying with its obligations under applicable
corporate, securities, tax, environmental, employment or other laws and regulations. Neither
the Buyer nor the Seller shall destroy any such books, records or accounts retained by it
without first providing the other with the opportunity to obtain or copy such books, records,
or accounts at such other Party’s expense.




     (b) Promptly upon request by the Buyer made at any time following the Closing Date, the
Seller shall authorize the release to the Buyer of all files pertaining to the Seller, the
Acquired Assets or the business or operations of the Seller held by any federal, state, county
or local authorities, agencies or instrumentalities.



     6.6. Use of Name. The Seller shall not use, and shall not permit any Affiliate to
use, the name “MarketSoft” or any name reasonably similar thereto after the Closing Date in
connection with any business related to, competitive with, or an outgrowth of, the business
conducted by the Seller on the date of this Agreement. Within 30 days following the Closing, the
Seller shall amend its certificate of incorporation and other corporate records, if necessary, to
comply with this provision.



     6.7. Cooperation in Litigation. From and after the Closing Date, each Party shall
fully cooperate with each of the Parties in the defense or prosecution of any litigation or
proceeding already instituted or that may be instituted hereafter against or by such other Party
relating to or arising out of the conduct of the business of the Seller or the Buyer prior to or
after the Closing Date (other than litigation among the Parties or their Affiliates arising out the
transactions contemplated by this Agreement). The Party requesting such cooperation shall pay the
reasonable out-of-pocket expenses incurred in providing such cooperation (including legal fees and
disbursements) by a Party providing such cooperation and by its officers, directors, employees,
representatives and agents, but shall not be responsible for reimbursing such Party or its
officers, directors, employees, representatives and agents, for their time spent in such
cooperation.



     6.8. Collection of Accounts Receivable. The Seller agrees that it shall forward
promptly to the Buyer any monies, checks or instruments received by the Seller after the Closing
Date with respect to the accounts receivable purchased by the Buyer from the Seller pursuant to
this Agreement. The Seller shall provide to the Buyer such reasonable assistance as the Buyer may
request with respect to the collection of any such accounts receivable, provided the Buyer pays the
reasonable out-of-pocket expenses of the Seller and its officers, directors, employees,
representatives and agents incurred in providing such assistance. The Seller hereby grants to the
Buyer a power of attorney to endorse and cash any checks or instruments payable or endorsed to the
Seller or its order that are received by the Buyer and that relate solely to the accounts
receivable purchased by the Buyer from the Seller hereunder.



     6.9. Employees; Benefits.




     (a) Effective as of the Closing, each of the Seller’s employees designated on
Schedule 6.9(a) attached hereto (which may be updated prior to the Closing by the
mutual agreement of the Buyer and the Seller) shall have resigned or otherwise terminated
their employment relationship with the



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Seller. The Buyer shall be permitted to offer employment to each such employee,
terminable at the will of the Buyer. The Seller hereby consents to the hiring of any such
employees by the Buyer.




     (b) The Seller shall be liable for and agrees to pay, in accordance with the Seller’s
severance policy and practices set forth on Section 2.16 of the Disclosure Schedule, its
accrued vacation payment policies, and any other applicable policies or laws, all costs
associated with the termination of employees of the Seller occurring prior to, as of, or after
the Closing Date, including all costs associated with or attributable to the Seller’s
reduction in force that occurred in July 2005 and the Employee Claim. Notwithstanding the
foregoing, the Buyer shall reimburse the Seller for any amounts paid by Seller under the
Seller’s severance policy and practices set forth on Schedule 2.16 of the Disclosure Schedule,
the severance costs (but not the accrued vacation or other payments) described on Schedule
6.9(b) attached hereto that are associated with the Seller’s termination of each employee
of the Seller, other than a Seller Officer, to whom (i) the Buyer does not extend an offer of
employment prior to the ninetieth day following the Closing Date or (ii) the Buyer extends
such an offer of employment but whose employment the Buyer subsequently terminates without
cause prior to the ninetieth day following the Closing Date. The aggregate amount payable by
the Buyer pursuant to the preceding sentence shall be payable as of the date that is the later
of (x) 105 days after the Closing Date and (y) 15 days after the Seller provides the Buyer
with a schedule, setting forth in reasonable detail, the computation of the amount payable.




     (c) Buyer shall cause its group health and dental plan to make continuation coverage
available to any M&A Qualified Beneficiary (as defined in Treasury Regulation Section
54.4980B-9) who is identified by the Seller in Schedule 6.9(c) as currently receiving
or eligible to receive such coverage under Code Section 4980B. Buyer also shall offer group
health and dental plan coverage to any employee (and his or her qualified beneficiaries) who
is terminated by the Seller on or before the Closing Date and is not hired by the Buyer under
the same terms and conditions as if such continued coverage had been required under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended and in effect;
provided, that any such continued coverage will be made available at the sole
cost and expense of such employee or qualified beneficiary.



     6.10. Lexington Office.




     (a) From and after the Closing until December 31, 2005, the Buyer shall allow Mark
Solitro to continue to occupy the office occupied by Mr. Solitro in the Lexington Office
immediately prior to the Closing. Such access shall be provided to Mr. Solitro during the
Buyer’s regular business hours and, with the prior consent of the Buyer, after regular
business hours. The Buyer shall provide no facilities or services to Mr. Solitro other than
office furniture and computer equipment in the manner and to the degree used by Mr. Solitro in
his capacity as an employee of the Seller immediately prior to the Closing, electricity,
telephone, email access and Internet access. Mr. Solitro shall be subject to and comply with
all reasonable security procedures established by the Buyer. The Seller agrees to indemnify
and hold harmless the Buyer for any damages caused by Mr. Solitro during such access.




     (b) The Buyer shall pay to Lexington Corporate Center Associates, LLC the rental fees due
for the period of December 1, 2005 through and including December 31, 2005 pursuant to the
terms of the Lease dated December 2, 1999 between the Seller and Lexington Corporate Center
Associates, LLC. The Seller shall be liable to the Buyer for the amount of such rental fees
that are attributable to the period from December 1, 2005 through and including the Closing
Date, and the Buyer shall be entitled to reduce the amount of the payment made by the Buyer to
the Seller pursuant to Section 1.5(b)(vi) to satisfy such liability of the Seller. In
addition, the Buyer shall pay any and all utility fees and expenses for electricity, gas,
sewer and water for the month of December 2005 with respect



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to the premises subject to the Lease. The Seller shall be liable to the Buyer for $4,667
of such fees and expenses, and the Buyer shall be entitled to reduce the amount of the payment
made by the Buyer to the Seller pursuant to Section 1.5(b)(vi) to satisfy such liability of
the Seller



ARTICLE VII. INDEMNIFICATION




     7.1. Indemnification by the Seller. The Seller shall indemnify the Buyer in respect
of, and hold the Buyer harmless against, Damages incurred or suffered by the Buyer or any Affiliate
thereof resulting from, relating to or constituting:




	 	(a)	 	any breach, as of the date of this Agreement or as of the Closing Date,
of any representation or warranty of the Seller contained in this Agreement, any
Ancillary Agreement or any other agreement or instrument furnished by the Seller to
the Buyer pursuant to this Agreement;
	 
	 	(b)	 	any failure to perform any covenant or agreement of the Seller contained
in this Agreement, any Ancillary Agreement or any agreement or instrument furnished
by the Seller to the Buyer pursuant to this Agreement;
	 
	 	(c)	 	any Retained Liabilities; or
	 
	 	(d)	 	the failure of the Buyer and the Seller, in connection with the sale of
the Acquired Assets by the Seller to the Buyer pursuant to this Agreement, to comply
with, and obtain for the Buyer the benefits afforded by compliance with, any
applicable bulk transfers laws; provided that the Seller shall not be obligated to
indemnify the Buyer in respect of any such failure to the extent such failure is
attributable to inaccurate information provided in writing by the Buyer to the
Seller.





     7.2. Indemnification by the Buyer. The Buyer shall indemnify the Seller in respect
of, and hold it harmless against, any and all Damages incurred or suffered by the Seller or any
Affiliate thereof resulting from, relating to or constituting:




	 	(a)	 	any breach, as of the date of this Agreement or as of the Closing Date,
of any representation or warranty of the Buyer contained in this Agreement, any
Ancillary Agreement or any other agreement or instrument furnished by the Buyer to
the Seller pursuant to this Agreement;
	 
	 	(b)	 	any failure to perform any covenant or agreement of the Buyer contained
in this Agreement, any Ancillary Agreement or any other agreement or instrument
furnished by the Buyer to the Seller pursuant to this Agreement;
	 
	 	(c)	 	any Assumed Liabilities; or
	 
	 	(d)	 	the failure of the Buyer and the Seller, in connection with the sale of
the Acquired Assets by the Seller to the Buyer pursuant to this Agreement, to comply
with, and obtain for the Buyer the benefits afforded by compliance with, any
applicable bulk transfers laws; provided that the Buyer shall not be obligated to
indemnify the Seller in respect of any such failure to the extent such failure is
attributable to inaccurate information provided in writing by the Seller to the
Buyer.




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     7.3. Indemnification Claims.




     (a) An Indemnified Party shall give written notification to the Indemnifying Party of the
commencement of any Third Party Action. Such notification shall be given within 20 days after
receipt by the Indemnified Party of notice of such Third Party Action, and shall describe in
reasonable detail (to the extent known by the Indemnified Party) the facts constituting the
basis for such Third Party Action and the amount of the claimed damages; provided that no
delay or failure on the part of the Indemnified Party in so notifying the Indemnifying Party
shall relieve the Indemnifying Party of any liability or obligation hereunder except to the
extent of any damage or liability caused by or arising out of such failure. Within 20 days
after delivery of such notification, the Indemnifying Party may, upon written notice thereof
to the Indemnified Party, assume control of the defense of such Third Party Action with
counsel reasonably satisfactory to the Indemnified Party; provided that (i) the Indemnifying
Party may only assume control of such defense if (A) it acknowledges in writing to the
Indemnified Party that any damages, fines, costs or other liabilities that may be assessed
against the Indemnified Party in connection with such Third Party Action constitute Damages
for which the Indemnified Party shall be indemnified pursuant to this Article VII and (B) the
ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is
liable under this Article VII and (ii) the Indemnifying Party may not assume control of the
defense of a Third Party Action involving criminal liability or in which equitable relief is
sought against the Indemnified Party. If the Indemnifying Party does not, or is not permitted
under the terms hereof to, so assume control of the defense of a Third Party Action, the
Indemnified Party shall control such defense. The Non-controlling Party may participate in
such defense at its own expense. The Controlling Party shall keep the Non-controlling Party
advised of the status of such Third Party Action and the defense thereof and shall consider in
good faith recommendations made by the Non-controlling Party with respect thereto. The
Non-controlling Party shall furnish the Controlling Party with such information as it may have
with respect to such Third Party Action (including copies of any summons, complaint or other
pleading that may have been served on such Party and any written claim, demand, invoice,
billing or other document evidencing or asserting the same) and shall otherwise reasonably
cooperate with and assist the Controlling Party in the defense of such Third Party Action.
The fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action
shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party
controls the defense of such Third Party Action pursuant to the terms of this Section 7.3(a)
or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party
reasonably concludes, after consulting with legal counsel that is reasonably satisfactory to
the Indemnifying Party, that the Indemnifying Party and the Indemnified Party have conflicting
interests or different defenses available with respect to such Third Party Action. The
Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising
from, any Third Party Action without the prior written consent of the Indemnified Party, which
shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not
agree to any settlement of, or the entry of any judgment arising from, any such Third Party
Action without the prior written consent of the Indemnifying Party, which shall not be
unreasonably withheld, conditioned or delayed.




     (b) In order to seek indemnification under this Article VII, an Indemnified Party shall
deliver a Claim Notice to the Indemnifying Party. If the Indemnified Party is the Buyer and
is seeking to enforce such claim pursuant to the Escrow Agreement, the Indemnifying Party
shall also deliver a copy of the Claim Notice to the Escrow Agent.




     (c) Within 20 days after delivery of a Claim Notice, the Indemnifying Party shall deliver
to the Indemnified Party a Response, in which the Indemnifying Party shall: (i) agree that
the Indemnified Party is entitled to receive all of the Claimed Amount (in which case the
Response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party
of the Claimed



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Amount, by check or by wire transfer; provided that if the Indemnified Party is the Buyer
and is seeking to enforce such claim from the Indemnification Escrow Amount pursuant to the
Escrow Agreement, the Indemnifying Party and the Indemnified Party shall deliver to the Escrow
Agent, within three days following the delivery of the Response, a written notice executed by
both the Indemnified Party and the Indemnifying Party instructing the Escrow Agent to disburse
from the Indemnification Escrow Amount the Claimed Amount to the Buyer), (ii) agree that the
Indemnified Party is entitled to receive the Agreed Amount (in which case the Response shall
be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed
Amount, by check or by wire transfer; provided that if the Indemnified Party is the Buyer and
is seeking to enforce such claim from the Indemnification Escrow Amount pursuant to the Escrow
Agreement, the Indemnifying Party and the Indemnified Party shall deliver to the Escrow Agent,
within three days following the delivery of the Response, a written notice executed by both
the Indemnified Party and the Indemnifying Party instructing the Escrow Agent to disburse from
the Indemnification Escrow Amount the Agreed Amount to the Buyer) or (iii) dispute that the
Indemnified Party is entitled to receive any of the Claimed Amount.




     (d) During the 30-day period following the delivery of a Response that reflects a
Dispute, the Indemnifying Party and the Indemnified Party shall use good faith efforts to
resolve the Dispute. If the Dispute is not resolved within such 30-day period, the
Indemnifying Party and the Indemnified Party shall discuss in good faith the submission of the
Dispute to binding arbitration, and if the Indemnifying Party and the Indemnified Party agree
in writing to submit the Dispute to such arbitration, then the provisions of Section 7.3(e)
shall become effective with respect to such Dispute. The provisions of this Section 7.3(d)
shall not obligate the Indemnifying Party and the Indemnified Party to submit to arbitration
or any other alternative dispute resolution procedure with respect to any Dispute, and in the
absence of an agreement by the Indemnifying Party and the Indemnified Party to arbitrate any
Dispute, such Dispute shall be resolved in a state or federal court sitting in the
Commonwealth of Massachusetts, in accordance with Section 10.12. If the Indemnified Party is
the Buyer and is seeking to enforce the claim that is the subject of the Dispute pursuant to
the Escrow Agreement, the Indemnifying Party and the Indemnified Party shall deliver to the
Escrow Agent, promptly following the resolution of the Dispute (whether by mutual agreement,
arbitration, judicial decision or otherwise), a written notice executed by both the
Indemnified Party and the Indemnifying Party instructing the Escrow Agent as to what (if any)
portion of the Indemnification Escrow Amount shall be disbursed to the Buyer and/or the Seller
(which notice shall be consistent with the terms of the resolution of the Dispute).




     (e) If, as set forth in Section 7.3(d), the Indemnified Party and the Indemnifying Party
agree to submit any Dispute to binding arbitration, the arbitration shall be conducted by a
single arbitrator (the “Arbitrator”) in accordance with the Commercial Rules in effect from
time to time and the following provisions.




     (i) In the event of any conflict between the Commercial Rules in effect from time to
time and the provisions of this Agreement, the provisions of this Agreement shall prevail
and be controlling.




     (ii) The Indemnified Party and the Indemnifying Party shall commence the arbitration
by jointly filing a written submission with the Boston, Massachusetts office of the AAA
in accordance with Commercial Rule 5 (or any successor provision).




     (iii) No depositions or other discovery shall be conducted in connection with the
arbitration.



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     (iv) Not later than 30 days after the conclusion of the arbitration hearing, the
Arbitrator shall prepare and distribute to the Indemnified Party and the Indemnifying
Party a writing setting forth the arbitral award and the Arbitrator’s reasons therefor.
Any award rendered by the Arbitrator shall be final, conclusive and binding upon the
Indemnified Party and the Indemnifying Party, and judgment thereon may be entered and
enforced in any court of competent jurisdiction (subject to Section 10.12), provided that
the Arbitrator shall have no power or authority to grant injunctive relief, specific
performance or other equitable relief.




     (v) The Arbitrator shall have no power or authority, under the Commercial Rules or
otherwise, to (x) modify or disregard any provision of this Agreement, including the
provisions of this Section 7.3(e), or (y) address or resolve any issue not submitted by
the Indemnified Party and the Indemnifying Party.




     (vi) In connection with any arbitration proceeding pursuant to this Agreement, each
of the Indemnified Party and the Indemnifying Party shall bear its own costs and
expenses, except that the fees and costs of the AAA and the Arbitrator, the costs and
expenses of obtaining the facility where the arbitration hearing is held, and such other
costs and expenses as the Arbitrator may determine to be directly related to the conduct
of the arbitration and appropriately borne jointly by the Indemnified Party and the
Indemnifying Party (which shall not include any attorneys’ fees or costs, witness fees
(if any), costs of investigation and similar expenses of either the Indemnified Party or
the Indemnifying Party) shall be shared equally by the Indemnified Party and the
Indemnifying Party.



     7.4. Survival of Representations and Warranties. All representations and warranties
that are covered by the indemnification agreements in Section 7.1(a) and Section 7.2(a) shall (a)
survive the Closing and (b) shall expire on the first anniversary of the Closing Date. If an
Indemnified Party delivers to an Indemnifying Party, before expiration of a representation or
warranty, either a Claim Notice based upon a breach of such representation or warranty, or an
Expected Claim Notice based upon a breach of such representation or warranty, then the applicable
representation or warranty shall survive until, but only for purposes of, the resolution of any
claims arising from or related to the matter covered by such notice. If the legal proceeding or
written claim with respect to which an Expected Claim Notice has been given is definitively
withdrawn, resolved in favor of the Indemnified Party or is otherwise resolved for an amount less
than the amount specified in such Expected Claim Notice, the Indemnified Party shall promptly so
notify the Indemnifying Party; and if the Indemnified Party has delivered a copy of the Expected
Claim Notice to the Escrow Agent and a portion of the Indemnification Escrow Amount has been
retained in escrow after the Termination Date (as defined in the Escrow Agreement) with respect to
such Expected Claim Notice, the Indemnifying Party and the Indemnified Party shall promptly deliver
to the Escrow Agent a written notice executed by both the Indemnified Party and the Indemnifying
Party instructing the Escrow Agent to disburse such retained funds to the Seller in accordance with
the terms of the Escrow Agreement. The rights to indemnification set forth in this Article VII
shall not be affected by (i) any investigation conducted by or on behalf of an Indemnified Party or
any knowledge acquired (or capable of being acquired) by an Indemnified Party, whether before or
after the date of this Agreement or the Closing Date, with respect to the inaccuracy or
noncompliance with any representation, warranty, covenant or obligation which is the subject of
indemnification hereunder or (ii) except as otherwise provided in Sections 7.1 and 7.2, any waiver
by an Indemnified Party of any closing condition relating to the accuracy of any representations
and warranties or the performance of or compliance with agreements and covenants.



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     7.5. Limitations.




     (a) Notwithstanding anything to the contrary herein, absent fraud on the part of the
Seller, (i) the aggregate liability of the Seller for Damages under Sections 7.1(a) and (b)
shall not exceed $2,000,000 and (ii) the Seller shall be not be liable under Sections 7.1(a)
and (b) unless and until the aggregate Damages for which it would otherwise be liable under
Sections 7.1(a) and (b) exceed $100,000 (at which point the Seller shall become liable for the
aggregate Damages under Sections 7.1(a) and (b), and not just amounts in excess of $100,000);
provided that the limitations set forth in clauses (i) and (ii) of this sentence shall not
apply to a claim pursuant to Section 7.1(a) relating to a breach of the covenants set forth in
Section 6.2(a). Notwithstanding anything to the contrary herein, the liability of the Seller
for Damages under Sections 7.1(a) and (b) shall expire and be of no further force and effect
as of the first anniversary of the Closing Date; provided that the Seller has paid to the
Buyer all such Damages required to be paid to the Buyer as of such date. For purposes solely
of this Article VII, all representations and warranties of the Seller in Article II (other
than Section 2.7) shall be construed as if the term “material” and any reference to “Seller
MAE” (and variations thereof) were omitted from such representations and warranties.




     (b) Notwithstanding anything to the contrary herein, absent fraud on the part of the
Buyer, (i) the aggregate liability of the Buyer for Damages under Sections 7.2(a) and (b)
shall not exceed $2,000,000, (ii) the Buyer shall be not be liable under Sections 7.2(a) and
(b) unless and until the aggregate Damages for which it would otherwise be liable under
Sections 7.2(a) and (b) exceed $100,000 (at which point the Buyer shall become liable for the
aggregate Damages under Sections 7.2(a) and (b), and not just amounts in excess of $100,000)
and (iii) the liability of the Buyer for Damages under Sections 7.2(a) and (b) shall expire
and be of no further force and effect as of the first anniversary of the Closing Date;
provided that the Buyer has paid to the Seller all such Damages required to be paid to the
Seller as of such date. Notwithstanding the foregoing, the limitations set forth in the
previous sentence shall not apply to any amounts that Buyer is required to pay or otherwise
reimburse under the terms of this Agreement, including any payments under Section 6.3 and the
reimbursements under Section 6.9(b). For purposes solely of this Article VII, all
representations and warranties of the Buyer in Article III shall be construed as if the term
“material” were omitted from such representations and warranties.




     (c) Except with respect to claims based on fraud and claims for equitable relief, after
the Closing, the liability of Seller and its Affiliates under this Article VII for Damages,
and the rights of the Buyer and its Affiliates to seek indemnification for Damages under this
Article VII shall, in each case, be limited solely and exclusively to the Indemnification
Escrow Amount and the Reserve Amount. Notwithstanding anything else to the contrary set forth
in this Agreement, the Buyer and its Affiliates shall not have the right or the ability to
collect any Damages from the Reserve Amount maintained by the Seller in accordance with
Section 6.2(a) unless and until there are no remaining funds held in the Indemnification
Escrow Amount pursuant to the Escrow Agreement.




     (d) Except with respect to claims based on fraud and claims for equitable relief, after
the Closing, the rights of the Indemnified Parties under this Article VII and the Escrow
Agreement shall be the sole and exclusive remedy of the Indemnified Parties with respect to
claims resulting from or relating to any misrepresentation, breach of warranty or failure to
perform any covenant or agreement contained in this Agreement, any Ancillary Agreement or any
other agreement or instrument furnished by one Party to another Party under this Agreement.




     (e) For the avoidance of doubt, the M&T Escrow Amount shall be used only in accordance
with the provisions of Section 6.3 and the provisions of the Escrow Agreement relating to the
M&T Agreement and the M&T Escrow Amount. Accordingly, the Parties acknowledge and agree that
the



-26-









 







Buyer and its Affiliates shall have no right to (i) make any claims against the M&T
Escrow Amount for claims against Seller and its Affiliates under this Article VII for Damages
and (ii) set-off any amounts payable from the M&T Escrow Amount against any claims against
Seller and its Affiliates under this Article VII for Damages.



     7.6. Treatment of Indemnity Payments. Any payments made to an Indemnified Party
pursuant to this Article VII or pursuant to the Escrow Agreement shall be treated as an adjustment
to the Purchase Price for tax purposes.



ARTICLE VIII. TERMINATION




     8.1. Termination of Agreement. The Parties may terminate this Agreement prior to the
Closing, as provided below:




	 	(a)	 	the Parties may terminate this Agreement by mutual written consent;
	 
	 	(b)	 	the Buyer may terminate this Agreement by giving written notice to the
Seller in the event the Seller is in breach of any representation, warranty or
covenant contained in this Agreement, and such breach (i) individually or in
combination with any other such breach, would cause the conditions set forth in
clauses (a) or (b) of Section 5.1 not to be satisfied and (ii) is not cured within
20 days following delivery by the Buyer to the Seller of written notice of such
breach;
	 
	 	(c)	 	the Seller may terminate this Agreement by giving written notice to the
Buyer in the event the Buyer is in breach of any representation, warranty or
covenant contained in this Agreement, and such breach (i) individually or in
combination with any other such breach, would cause the conditions set forth in
clauses (a) or (b) of Section 5.2 not to be satisfied and (ii) is not cured within
20 days following delivery by the Seller to the Buyer of written notice of such
breach;
	 
	 	(d)	 	the Buyer may terminate this Agreement by giving written notice to the
Seller if the Closing shall not have occurred on or before January 31, 2006 by
reason of the failure of any condition precedent under Section 5.1 (unless the
failure results primarily from a breach by the Buyer of any representation, warranty
or covenant contained in this Agreement); or
	 
	 	(e)	 	the Seller may terminate this Agreement by giving written notice to the
Buyer if the Closing shall not have occurred on or before January 31, 2006 by reason
of the failure of any condition precedent under Section 5.2 (unless the failure
results primarily from a breach by the Seller of any representation, warranty or
covenant contained in this Agreement).





     8.2. Effect of Termination. If any Party terminates this Agreement pursuant to
Section 8.1, all obligations of the Parties hereunder shall terminate without any liability of any
Party to any other Party (except for any liability of a Party for breaches of this Agreement prior
to such termination).



-27-









 





ARTICLE IX. DEFINITIONS




     For purposes of this Agreement, each of the following terms shall have the meaning set forth
below.



     “AAA” shall mean the American Arbitration Association.



     “Acquired Assets” shall mean all of the assets, properties and rights of the Seller
other than the Excluded Assets existing as of the Closing, including:




	 	(a)	 	all trade and other accounts receivable, including the accounts
receivable relating to the acquired maintenance renewals set forth on Schedule
1.1(a) hereto, and notes and loans receivable that are payable to the Seller, and
all rights to unbilled amounts for products delivered or services provided, together
with any security held by the Seller for the payment thereof;
	 
	 	(b)	 	all inventories of raw materials, work in process, finished goods,
supplies, packaging materials, spare parts and similar items, wherever located,
including consignment inventory and inventory held on order or in transit;
	 
	 	(c)	 	all computers, machinery, equipment, tools and tooling, furniture,
fixtures, supplies, leasehold improvements, motor vehicles and other tangible
personal property;
	 
	 	(d)	 	all Intellectual Property;
	 
	 	(e)	 	all rights under Assigned Contracts;
	 
	 	(f)	 	all prepaid royalties attributable to the Allaire Software OEM Agreement
dated March 30, 2000 to which the Company is a party, all prepaid maintenance, and
all claims, causes of action, choses in action, rights of recovery, rights of setoff
and rights of recoupment;
	 
	 	(g)	 	all Permits; and
	 
	 	(h)	 	all books, records, accounts, ledgers, files, documents, correspondence,
lists (including customer and prospect lists), manufacturing and procedural manuals,
Intellectual Property records, sales and promotional materials, studies, reports and
other printed or written materials, other than the items described in clause (b) of
the definition of Excluded Assets.





     “Affiliate” shall mean any affiliate, as defined in Rule 12b-2 under the Securities
Exchange Act of 1934.



     “Agreed Amount” shall mean part, but not all, of the Claimed Amount.



     “Ancillary Agreements” shall mean the Escrow Agreement, the bill of sale and other
instruments of conveyance referred to in Section 1.5(b)(iii), and the instrument of assumption and
other instruments referred to in Section 1.5(b)(iv).



     “Appraisal” shall have the meaning set forth in Section 1.6.



     “Arbitrator” shall have the meaning set forth in Section 7.3(e).



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     “Assigned Contracts” shall mean any contracts, agreements or instruments to which the
Seller is a party, including any agreements or instruments securing any amounts owed to the Seller,
any leases or subleases of real property, any employment contracts and any licenses or sublicenses
relating to Intellectual Property; provided that the term “Assigned Contracts” shall not include
(A) the Lease dated December 24, 2003 between the Seller and IL-Civic Opera Building, LLC, (B) the
Lease dated September 19, 2000 between the Seller and BRE/CBL, LLC or (C) any contracts, agreements
or instruments listed on Schedule 1.1(b) hereto.



     “Assumed Liabilities” shall mean all of the following liabilities of the Seller:




	 	(a)	 	all obligations of the Seller arising after the Closing under the
Assigned Contracts; and
	 
	 	(b)	 	all obligations of the Seller to its customers for the repair,
replacement or return of products manufactured or sold in the Ordinary Course of
Business prior to the Closing, but only to the extent that (i) such obligations are
not the subject of claims or litigation required to be disclosed in Section 2.14 of
the Disclosure Schedule and (ii) the cost to the Buyer of fulfilling such
obligations does not exceed the reserve therefor set forth in the Most Recent
Balance Sheet.





     “Buyer” shall have the meaning set forth in the first paragraph of this Agreement.



     “Buyer Certificate” shall mean a certificate, executed by the Chief Executive Officer
and President and the Vice President and Chief Financial Officer of the Buyer, to the effect that
each of the conditions specified in clauses (a) through (c) (insofar as clause (c) relates to Legal
Proceedings involving the Buyer) of Section 5.2 is satisfied in all respects.



     “Claimed Amount” shall mean the amount of any Damages incurred or reasonably expected
to be incurred by the Indemnified Party.



     “Claim Notice” shall mean written notification that contains (a) a description of the
Damages incurred or reasonably expected to be incurred by the Indemnified Party and the Claimed
Amount of such Damages, to the extent then known, (b) a statement that the Indemnified Party is
entitled to indemnification under Article VII for such Damages and a reasonable explanation of the
basis therefor, and (c) a demand for payment in the amount of such Damages.



     “Closing” shall mean the closing of the transactions contemplated by this Agreement.



     “Closing Date” shall mean the date two business days after the satisfaction or waiver
of all of the conditions to the obligations of the Parties to consummate the transactions
contemplated hereby (excluding the delivery at the Closing of any of the documents set forth in
Article V), or such other date as may be mutually agreeable to the Parties.



     “Code” shall mean the Internal Revenue Code of 1986, as amended.



     “Commercial Rules” shall mean the Commercial Arbitration Rules of the AAA.



     “Controlling Party” shall mean the Party controlling the defense of any Third Party
Action.



     “Customer Deliverables” shall mean (a) the products that the Seller (i) currently
manufactures, markets, sells or licenses, or (ii) has manufactured, marketed, sold or licensed
since July 1, 2003, or (iii) currently plans to manufacture, market, sell or license in the future
and (b) the services that the Seller (i) currently provides, (ii) has provided since July 1, 2003,
or (iii) currently plans to provide in the future.



-29-









 





     “Damages” shall mean any and all debts, obligations and other liabilities (whether
absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become
due or otherwise), diminution in value, monetary damages, fines, fees, penalties, interest
obligations, deficiencies, losses and expenses (including amounts paid in settlement, interest,
court costs, reasonable costs of investigators, reasonable fees and expenses of attorneys,
accountants, financial advisors and other experts, and other reasonable expenses of litigation,
arbitration or other dispute resolution proceedings relating to a Third Party Action or an
indemnification claim under Article VII), other than those costs and expenses of arbitration of a
Dispute which are to be shared equally by the Indemnified Party and the Indemnifying Party as set
forth in Section 7.3(e)(vi).



     “Disclosure Schedule” shall mean the disclosure schedule provided by the Seller to the
Buyer on the date hereof and accepted in writing by the Buyer.



     “Dispute” shall mean the dispute resulting if the Indemnifying Party in a Response
disputes its liability for all or part of the Claimed Amount.



     “Employee Benefit Plan” shall mean any “employee pension benefit plan” (as defined in
Section 3(2) of ERISA), any “employee welfare benefit plan” (as defined in Section 3(1) of ERISA),
and any other written or oral plan, agreement or arrangement involving direct or indirect
compensation, including insurance coverage, severance benefits, disability benefits, deferred
compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other
forms of incentive compensation or post-retirement compensation.



     “Employee Claim” shall mean the several claims against the Company filed with the
Equal Employment Opportunity Commission by Alice M. Preuninger.



     “Environmental Law” shall mean any federal, state or local law, statute, rule, order,
directive, judgment, Permit or regulation or the common law relating to the environment,
occupational health and safety, or exposure of Persons or property to Materials of Environmental
Concern, including any statute, regulation, administrative decision or order pertaining to: (a)
the presence of or the treatment, storage, disposal, generation, transportation, handling,
distribution, manufacture, processing, use, import, export, labeling, recycling, registration,
investigation or remediation of Materials of Environmental Concern or documentation related to the
foregoing; (b) air, water and noise pollution; (c) groundwater and soil contamination; (d) the
release, threatened release, or accidental release into the environment, the workplace or other
areas of Materials of Environmental Concern, including emissions, discharges, injections, spills,
escapes or dumping of Materials of Environmental Concern; (e) transfer of interests in or control
of real property that may be contaminated; (f) community or worker right-to-know disclosures with
respect to Materials of Environmental Concern; (g) the protection of wild life, marine life and
wetlands, and endangered and threatened species; (h) storage tanks, vessels, containers, abandoned
or discarded barrels and other closed receptacles; and (i) health and safety of employees and other
individuals. As used above, the term “release” shall have the meaning set forth in the federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.



     “Escrow Agreement” shall mean an escrow agreement in substantially the form attached
hereto as Exhibit A.



     “Escrow Agent” shall mean American Stock Transfer & Trust Company.



-30-









 





     “Escrow Fund” shall mean the fund established pursuant to the Escrow Agreement and
includes each of the Indemnification Escrow Amount and the M&T Escrow Amount paid by the Buyer to
the Escrow Agent at the Closing pursuant to Section 1.4.



     “Excluded Assets” shall mean the following assets of the Seller:




	 	(a)	 	all cash, short-term investments, deposits, interest receivable, bank
accounts and similar assets;
	 
	 	(b)	 	the general books of account and books of original entry that comprise
the Seller’s Tax records (including Tax returns), books and records that the Seller
is required to retain pursuant to any applicable law, books and records that relate
exclusively to the Excluded Assets and the Retained Liabilities, the personnel files
and all other materials relating to the Employee Claims and all books and records
relating to or comprising the Seller’s corporate charter, qualifications to conduct
business as a foreign corporation, arrangements with registered agents relating to
foreign qualifications, taxpayer and other identification numbers, seals, minute
books, stock transfer books and other documents relating to the organization and
existence of the Seller as a corporation;
	 
	 	(c)	 	all rights relating to refunds, recovery or recoupment of Taxes;
	 
	 	(d)	 	any of the rights of the Seller under this Agreement or under the
Ancillary Agreements;
	 
	 	(e)	 	the deposits associated with the Leases listed on Section 2.10(b) of the
Disclosure Schedule;
	 
	 	(f)	 	all prepaid items other than (i) prepaid royalties attributable to the
Allaire Software OEM Agreement dated March 30, 2000 to which the Company is a party
and (ii) prepaid maintenance;
	 
	 	(g)	 	all insurance policies of the Seller, as well as all proceeds that may be
payable thereunder;
	 
	 	(h)	 	all rights of the Seller in and with respect to the assets associated
with its Employee Benefit Plans;
	 
	 	(i)	 	the Lease dated December 24, 2003 between the Seller and IL-Civic Opera
Building, LLC;
	 
	 	(j)	 	the Lease dated September 19, 2000 between the Seller and BRE/CBL, LLC;
and
	 
	 	(k)	 	the other assets listed on Schedule 1.1(b) attached hereto.





     “Expected Claim Notice” shall mean a written notice that, as a result of a legal
proceeding instituted by or written claim made by a third party, an Indemnified Party reasonably
expects to incur Damages for which it is entitled to indemnification under Article VII, which
written notice shall also include (i) to the extent then known, a description of the Damages
reasonably expected to be incurred by such Indemnified Party in good faith and the Claimed Amount
of such Damages, to the extent then known, (ii) a brief explanation of the basis for such
indemnification under Article VII, and (iii) a copy of any documentation relating to such legal
proceeding or written claim.




-31-










 






     “Financial Statements” shall mean:




	 	(a)	 	the audited balance sheets and statements of income, changes in
stockholders’ equity and cash flows, including the footnotes thereto, of the Seller
as of, and for the fiscal years ended, June 30, 2004 and 2005, which shall be in
compliance with Regulation S-X promulgated by the Securities and Exchange
Commission, and
	 
	 	(b)	 	the Most Recent Balance Sheet and the unaudited statements of income,
changes in stockholders’ equity and cash flowsfor the three months ended as of
September 30, 2005.





     “FIRPTA Affidavit” shall have the meaning set forth in Section 4.7.



     “GAAP” shall mean United States generally accepted accounting principles.



     “Governmental Entity” shall mean any court, arbitrational tribunal, administrative
agency or commission or other governmental or regulatory authority or agency.



     “Indemnified Party” shall mean a Party entitled, or seeking to assert rights, to
indemnification under Article VII of this Agreement.



     “Indemnifying Party” shall mean the Party from whom indemnification is sought by the
Indemnified Party.



     “Intellectual Property” shall mean all:




	 	(a)	 	patents, patent applications, patent disclosures and all related
continuation, continuation-in-part, divisional, reissue, reexamination, utility
model, certificate of invention and design patents, patent applications,
registrations and applications for registrations;
	 
	 	(b)	 	trademarks, service marks, trade dress, Internet domain names, logos,
trade names and corporate names and registrations and applications for registration
thereof;
	 
	 	(c)	 	copyrights and registrations and applications for registration thereof;
	 
	 	(d)	 	computer software, data and documentation;
	 
	 	(e)	 	inventions, trade secrets and confidential business information, whether
patentable or nonpatentable and whether or not reduced to practice, know-how,
manufacturing and product processes and techniques, research and development
information, copyrightable works, financial, marketing and business data, pricing
and cost information, business and marketing plans and customer and supplier lists
and information;
	 
	 	(f)	 	other proprietary rights relating to any of the foregoing (including
remedies against infringements thereof and rights of protection of interest therein
under the laws of all jurisdictions); and
	 
	 	(g)	 	copies and tangible embodiments thereof.





     “Internal Systems” shall mean the internal systems of the Seller that are used in its
business or operations, including computer hardware systems, software applications and embedded
systems; provided, however, that, notwithstanding the foregoing, the term “Internal Systems” shall not
include off-the-shelf software programs licensed by the Seller pursuant to “shrink wrap” licenses.



-32-









 





     “Lease” shall mean any lease or sublease pursuant to which the Seller leases or
subleases from another Person any real property.



     “Legal Proceeding” shall mean any action, suit, proceeding, claim, arbitration or
investigation before any Governmental Entity or before any arbitrator.



     “Lexington Office” shall mean the premises leased by the Seller pursuant to the Lease
dated December 2, 1999 between the Seller and Lexington Corporate Center Associates, LLC.



     “M&T Agreement” shall mean the Master Software Term License Agreement between the
Seller and Manufacturers and Traders Trust Company, dated April 1, 2005, as the same is amended,
restated or otherwise modified on or after the Closing Date.



     “Materials of Environmental Concern” shall mean any: pollutants, contaminants or
hazardous substances (as such terms are defined under the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended), pesticides (as such term is defined
under the Federal Insecticide, Fungicide and Rodenticide Act), solid wastes and hazardous wastes
(as such terms are defined under the Resource Conservation and Recovery Act), chemicals, other
hazardous, radioactive or toxic materials, oil, petroleum and petroleum products (and fractions
thereof), or any other material (or article containing such material) listed or subject to
regulation under any law, statute, rule, regulation, order, Permit, or directive due to its
potential, directly or indirectly, to harm the environment or the health of humans or other living
beings.



     “Most Recent Balance Sheet” shall mean the unaudited balance sheet of the Seller as of
September 30, 2005.



     “Non-controlling Party” shall mean the Party not controlling the defense of any Third
Party Action.



     “Open Source Materials” shall mean all software or other material that is distributed
as “free software,” “open source software” or under a similar licensing or distribution model,
including the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla
Public License (MPL), BSD Licenses, the Artistic License, the Netscape Public License, the Sun
Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License.



     “Ordinary Course of Business” shall mean the ordinary course of business consistent
with past custom and practice (including with respect to frequency and amount).



     “Party” shall mean the Buyer, the Seller or the Stockholder Representative, and
“Parties” shall mean the Buyer, the Seller and the Stockholder Representative.



     “Permits” shall mean all permits, licenses, registrations, certificates, orders,
approvals, franchises, variances and similar rights issued by or obtained from any Governmental
Entity (including those issued or required under Environmental Laws and those relating to the
occupancy or use of owned or leased real property).



     “Person” shall mean any corporation, limited or general partnership, limited liability
company, trust, unincorporated association, any other entity or organization, Governmental Entity,
or an individual.



     “Purchase Price” shall mean the purchase price to be paid by the Buyer for the
Acquired Assets at the Closing, as set forth in Section 1.3.



     “Reasonable Best Efforts” shall mean best efforts, to the extent commercially
reasonable.



-33-









 





     “Requisite Stockholder Approval” shall mean the approval of the execution of this
Agreement by the Seller, including the sale of assets of the Seller as contemplated by this
Agreement, by such number of votes represented by the outstanding shares of capital stock of the
Seller entitled to vote thereon as is required under the Delaware General Corporation Law, the
Seller’s certificate of incorporation and by-laws and any other contract or agreement to which the
Seller is a party.



     “Response” shall mean a written response containing the information provided for in
Section 7.3(c).



     “Retained Liabilities” shall mean any and all liabilities or obligations (whether
known or unknown, absolute or contingent, liquidated or unliquidated, due or to become due and
accrued or unaccrued, and whether claims with respect thereto are asserted before or after the
Closing) of the Seller that are not Assumed Liabilities. The Retained Liabilities shall include
all liabilities and obligations of the Seller:




	 	(a)	 	for income, transfer, sales, use or other Taxes arising in connection
with the consummation of the transactions contemplated by this Agreement (including
any income Taxes arising as a result of (i) the transfer by the Seller to the Buyer
of the Acquired Assets or (ii) the Seller having deferred gain on any “deferred
intercompany transaction” (within the meaning of Treasury Regulation §1.1502-13)),
except for those Taxes borne by the Buyer pursuant to Section 6.4;
	 
	 	(b)	 	except as otherwise provided in Sections 1.5(b)(vi) and 10.11, for costs
and expenses incurred in connection with this Agreement or the consummation of the
transactions contemplated by this Agreement;
	 
	 	(c)	 	under this Agreement or the Ancillary Agreements;
	 
	 	(d)	 	for any Taxes (other than Taxes arising out of the Acquired Assets and
relating to any Tax period (or portion thereof) beginning after the Closing Date),
including deferred taxes or taxes measured by income of the Seller earned prior to
the Closing, any liabilities for federal or state income tax and FICA taxes of
employees of the Seller that the Seller is legally obligated to withhold, any
liabilities of the Seller for employer FICA and unemployment taxes incurred, and any
liabilities of the Seller for sales, use or excise taxes or customs and duties;
	 
	 	(e)	 	under any agreements, contracts, leases or licenses that are listed on
Schedule 1.1(b);
	 
	 	(f)	 	arising prior to the Closing under the Assigned Contracts, and all
liabilities for any breach, act or omission by the Seller prior to the Closing under
any Assigned Contract, except to the extent set forth in clause (b) of the
definition of Assumed Liabilities;
	 
	 	(g)	 	for repair, replacement or return of products manufactured or sold prior
to the Closing, except to the extent set forth in clause (b) of the definition of
Assumed Liabilities;
	 
	 	(h)	 	arising out of events, conduct or conditions existing or occurring prior
to the Closing that constitute a violation of or non-compliance with any law, rule
or regulation (including Environmental Laws), any judgment, decree or order of any
Governmental Entity, or any
Permit or that give rise to liabilities or obligations with respect to Materials of
Environmental Concern;
	 
	 	(i)	 	subject to the provisions of Section 6.9, to pay severance benefits to
any employee of the Seller whose employment is terminated (or treated as terminated)
in connection with the consummation of the transactions contemplated by this
Agreement, and all liabilities




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	 	 	 	resulting from the termination of employment of employees of the Seller prior to the
Closing that arose under any federal or state law or under any Employee Benefit Plan
established or maintained by the Seller;
	 
	 	(j)	 	to indemnify any Person by reason of the fact that such Person was a
director, officer, employee, or agent of the Seller or was serving at the request of
the Seller as a partner, trustee, director, officer, employee, or agent of another
Person (whether such indemnification is for judgments, damages, penalties, fines,
costs, amounts paid in settlement, losses, expenses, or otherwise and whether such
indemnification is pursuant to any statute, charter document, bylaw, agreement, or
otherwise);
	 
	 	(k)	 	injury to or death of individuals or damage to or destruction of property
occurring prior to the Closing (including any workers compensation claim); and
	 
	 	(l)	 	for medical, dental and disability (both long-term and short-term
benefits), whether insured or self-insured, owed to employees or former employees of
the Seller based upon (i) exposure to conditions in existence prior to the Closing
or (ii) disabilities existing prior to the Closing (including any such disabilities
that may have been aggravated following the Closing).





     “Security Interest” shall mean any mortgage, pledge, security interest, encumbrance,
charge or other lien (whether arising by contract or by operation of law), other than (a)
mechanic’s, materialmen’s, and similar liens, (b) liens arising under worker’s compensation,
unemployment insurance, social security, retirement, and similar legislation and (c) liens on goods
in transit incurred pursuant to documentary letters of credit, in each case arising in the Ordinary
Course of Business of the Seller and not material to the Seller.



     “Seller” shall have the meaning set forth in the first paragraph of this Agreement.



     “Seller Certificate” shall mean a certificate, executed by the President and Chief
Executive Officer, and the Vice President and Chief Financial Officer of the Seller, to the effect
that (i) each of the conditions specified in clauses (a) through (c) (insofar as clause (c) relates
to Legal Proceedings involving the Seller) of Section 5.1 is satisfied in all respects and (ii) the
Seller has not received any payment with respect to any of the amounts set forth on Schedule 1.1(a)
hereto.



     “Seller Intellectual Property” shall mean the Intellectual Property owned by or
licensed to the Seller and covering, incorporated in, underlying or used in connection with the
Customer Deliverables or the Internal Systems.



     “Seller MAE” shall mean any material adverse change or event with respect to, or
material adverse effect on, (a) the business, assets, liabilities, condition (financial or other),
or results of operations of the Seller or (b) the ability of the Seller to consummate the
transactions contemplated by this Agreement. For the avoidance of doubt, the Parties agree that
the terms “material,” “materially” or “materiality” as used in this Agreement with an initial lower
case “m” shall have their respective customary and ordinary meanings, without regard to the meaning
ascribed to Seller MAE.



     “Seller Officers” shall mean the President and Chief Executive Officer, the Vice
President and Chief Financial Officer, the Vice President, Financial Services and Chief Marketing
Officer, the Vice President of Engineering and Chief Technology Officer, the Vice President of
Business Development and the Vice President of Professional Services of the Seller, and any
officers of the Seller succeeding to the responsibilities of such officers after the date hereof.




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     “Seller Plan” shall mean any Employee Benefit Plan maintained, or contributed to, by
the Seller.



     “Software” shall mean any of the software owned by the Seller.



     “Stockholder Representative” shall mean Robert G. Hiss or any subsequent
representative of the stockholders of the Seller (a) appointed by Mr. Hiss or by any other
Stockholder Representative or (b) after the death or incapacity of a Stockholder Representative,
elected by individuals and entities that held a majority of the Seller’s capital stock (on an
as-converted-to-common-stock-basis) immediately prior to the Closing.



     “Taxes” shall mean all taxes, charges, fees, levies or other similar assessments or
liabilities, including income, gross receipts, ad valorem, premium, value-added, excise, real
property, personal property, sales, use, transfer, withholding, employment, unemployment,
insurance, social security, business license, business organization, environmental, workers
compensation, payroll, profits, license, lease, service, service use, severance, stamp, occupation,
windfall profits, customs, duties, franchise and other taxes imposed by the United States of
America or any state, local or foreign government, or any agency thereof, or other political
subdivision of the United States or any such government, and any interest, fines, penalties,
assessments or additions to tax resulting from, attributable to or incurred in connection with any
tax or any contest or dispute thereof.



     “Tax Returns” shall mean all reports, returns, declarations, statements or other
information required to be supplied to a taxing authority in connection with Taxes.



     “Third Party Action” shall mean any suit or proceeding by a person or entity other
than a Person for which indemnification may be sought by a Party under Article VII.



ARTICLE X. MISCELLANEOUS




     10.1. Press Releases and Announcements. No Party shall issue any press release or
public announcement relating to the subject matter of this Agreement without the prior written
approval of both the Seller and the Buyer, provided that any Party may make any public disclosure
it believes in good faith is required by applicable law, regulation or stock market rule (in which
case the disclosing Party shall use reasonable efforts to advise the other Parties and provide each
of them with a copy of the proposed disclosure prior to making the disclosure).



     10.2. No Third Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any Person other than the Parties and their respective successors and permitted
assigns.



     10.3. Entire Agreement. This Agreement (including the documents referred to herein)
constitutes the entire agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, with respect to the
subject matter hereof, including the letter agreement dated as of October 31, 2005 between the
Buyer and the Seller, as amended. The Non-Disclosure Agreement between the Buyer and the Seller,
dated as of October 12, 2005, shall survive the execution of this Agreement.



     10.4. Succession and Assignment. This Agreement shall be binding upon and inure to
the benefit of the Parties named herein and their respective successors and permitted assigns. No
Party may assign any of its rights or delegate any of its performance obligations hereunder without
the prior written approval of the other Party; provided that (i) the Buyer may assign this
Agreement and some or all of its rights, interests or obligations hereunder to one or more
Affiliates of the Buyer so long as, in each case, the Buyer remains bound by the terms and
conditions of this Agreement; and (ii) the Seller may assign this Agreement and some or all of its
rights, interests or obligations hereunder to a liquidating trust whereby



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the liquidating trustee shall exercise the rights of the Seller pursuant to this Agreement and
the liquidating trust shall be bound by the Seller’s rights and obligations hereunder. Any
purported assignment of this Agreement and/or the rights or delegation of performance obligations
in violation of this Section 10.4 is void.




     10.5. Counterparts and Facsimile Signature. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. This Agreement may be executed by facsimile signature.



     10.6. Headings. The Section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.



     10.7. Notices. All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder
shall be deemed duly delivered four business days after it is sent by registered or certified mail,
return receipt requested, postage prepaid, or one business day after it is sent for next business
day delivery via a reputable nationwide overnight courier service, in each case to the intended
recipient as set forth below:



	 	 	 
	If to the Seller:

	 	Copy to:
	 
	 	 
	MarketSoft Software Corporation

13 Corcoran Road

Burlington MA 01803

Fax: 781.750.8776

Attn: Mark Solitro

	 	Goodwin Procter LLP

Exchange Place

53 State Street

Boston, MA 02109

Fax: 617.523.1231

Attention: Kenneth J. Gordon
	 
	 	 
	If to the Stockholder Representative:

	 	Copy to:
	 
	 	 
	Robert G. Hiss

273 Adams Street

Milton, MA 02186

Fax: 617.696.4121

	 	Goodwin Procter LLP

Exchange Place

53 State Street

Boston, MA 02109

Fax: 617.523.1231

Attention: Kenneth J. Gordon
	 
	 	 
	If to the Buyer:

	 	Copy to:
	 
	 	 
	Unica Corporation

Reservoir Place North

170 Tracer Lane

Waltham, MA 02451

Fax: 781. 646.5384

Attn: General Counsel

	 	Wilmer Cutler Pickering

Hale and Dorr LLP

60 State Street

Boston, MA 02109

Fax: 617.526.5000

Attention: Mark L. Johnson






     Any Party may give any notice, request, demand, claim or other communication hereunder using
any other means (including personal delivery, expedited courier, messenger service, facsimile,
ordinary mail, or electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it actually is received by
the Party for whom it is intended. Any Party may change the address to which notices, requests,
demands, claims and other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.



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     10.8. Governing Law. All matters arising out of or relating to this Agreement and the
transactions contemplated hereby (including its interpretation, construction, performance and
enforcement) shall be governed by and construed in accordance with the internal laws of the
Commonwealth of Massachusetts, without giving effect to any choice or conflict of law provision or
rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the Commonwealth of Massachusetts.



     10.9. Amendments and Waivers. The Parties may mutually amend any provision of this
Agreement at any time (either before or after the Closing); provided that any amendment shall be
subject to any restrictions contained in the Delaware General Corporation Law. No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing and signed by all of
the Parties. No waiver by any Party of any right or remedy hereunder shall be valid unless the
same shall be in writing and signed by the Party giving such waiver. No waiver by any Party with
respect to any default, misrepresentation, or breach of warranty or covenant hereunder shall be
deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.



     10.10. Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Parties agree that the court making the determination of invalidity or
unenforceability shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a term or provision that
is valid and enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so modified.



     10.11. Expenses. Except as set forth in Section 1.5(b)(vi), Section 1.9, Article VII
and the Escrow Agreement, each Party shall bear its own costs and expenses (including legal fees
and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.



     10.12. Submission to Jurisdiction. Each Party (a) submits to the jurisdiction of any
state or federal court sitting in Boston, Massachusetts in any action or proceeding arising out of
or relating to this Agreement or the Ancillary Agreements (including any action or proceeding for
the enforcement of any arbitral award made in connection with any arbitration of a Dispute
hereunder), (b) agrees that all claims in respect of such action or proceeding may be heard and
determined in any such court, (c) waives any claim of inconvenient forum or other challenge to
venue in such court, and (d) agrees not to bring any action or proceeding arising out of or
relating to this Agreement or the Ancillary Agreements in any other court; provided in each case
that, solely with respect to any arbitration of a Dispute, the Arbitrator shall resolve all
threshold issues relating to the validity and applicability of the arbitration provisions of this
Agreement, contract validity, applicability of statutes of limitations and issue preclusion, and
such threshold issues shall not be heard or determined by such court. Each Party agrees to accept
service of any summons, complaint or other initial pleading made in the manner provided for the
giving of notices in Section 10.7, provided that nothing in this Section 10.12 shall affect the
right of any Party to serve such summons, complaint or other initial pleading in any other manner
permitted by law.



     10.13. Specific Performance. Each Party acknowledges and agrees that the other
Parties would be damaged irreparably in the event any of the provisions of this Agreement
(including Section 6.1) are not performed in accordance with their specific terms or otherwise are
breached. Accordingly, each Party agrees that the other Parties shall be entitled to an injunction
or other equitable relief to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and



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provisions hereof in any action instituted in any court of the United States or any state
thereof having jurisdiction over the Parties and the matter, in addition to any other remedy to
which it may be entitled, at law or in equity. Notwithstanding the foregoing, the Parties agree
that if a Dispute is submitted to arbitration in accordance with Section 7.3(d) and Section 7.3(e),
then the foregoing provisions of this Section 10.13 shall not apply to such Dispute, and the
provisions of Section 7.3(d) and Section 7.3(e) shall govern availability of injunctive relief,
specific performance or other equitable relief with respect to such Dispute.




     10.14. Construction.




     (a) The language used in this Agreement shall be deemed to be the language chosen by the
Parties to express their mutual intent, and no rule of strict construction shall be applied
against any Party.




     (b) Any reference to any federal, state, local, or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless the context requires
otherwise.




     (c) Any reference herein to “including” shall be interpreted as “including without
limitation.”




     (d) Any reference to any Article, Section, paragraph or clause shall be deemed to refer
to an Article, Section, paragraph or clause of this Agreement, unless the context clearly
indicates otherwise.



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     In Witness Whereof, the Parties have executed this Agreement as of the date first
above written.



	 	 	 	 	 	 	 
	 	 	Unica Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Yuchun Lee	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Yuchun Lee	 	 
	 

	 	 	 	Title: Chief Executive Officer and
President	 	 
	 
	 	 	 	 	 	 
	 	 	MarketSoft Software Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Robert G. Hiss	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Robert G. Hiss	 	
	 

	 	 	 	Title: President & Chief Executive
Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Robert G. Hiss	 	 
	 
	 	 	 	 	 	 
	 	 	/s/
Robert G. Hiss	 	 






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