exv10w8



 










EXHIBIT 10.8




CONFIDENTIAL TREATMENT REQUESTED




A.Prot. 2006/35

dated March 30, 2006 of the Notary

Dr. Dieter Gränicher, Basel (Switzerland)




NOTARIAL DEED




AGREEMENT



FOR THE SALE AND PURCHASE AND TRANSFER OF ALL



SHARES IN SIGOS SYSTEMINTEGRATION GMBH



Negotiated at Basel/Switzerland this 30th (thirtieth) day of March 2006 (two thousand and six).



Before me, the undersigned Notary Public




Dr. Dieter Gränicher



at Basel/Switzerland appeared today:





	1.	 	Dr. Matthias Müller, born XXXXXXXXXX, German citizen, attorney at law, with business address
at DE 70469 Stuttgart, Maybachstrasse 6 and privat domicile at DE 60594 Frankfurt am Main,
Grosse Rittergasse 13, identified by his identity card,
	 
	 	 	according to his declarations acting not in his own name, but released from the restrictions
imposed by § 181 German Civil Code in the name and on behalf of






	 	a)	 	Keynote Germany Holding GmbH, with its seat in Stuttgart and registered office at
Stresemannstrasse 79, DE 70469 Stuttgart, registered with the Commercial Register at the
Local Court (Amtsgericht) of Stuttgart under HRB 720574,





 — hereinafter referred to as “Purchaser” –



The symbol
“XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portion.










 



2





	 	 	 	with reference to a certified print-out of the Commercial Register of March 24,
2006 and with reference to a written power of attorney (with signature certified) of
March 27, 2006 as well as a Shareholders’ Resolution of March 26, 2006 including a
written power of attorney (with signatures certified) of March 6, 2006 and a
Secretary’s Certificate of March 3, 2006, all the originals of which have been
submitted to the Notary and hereby certified copies of which are attached to this Deed,
	 
	 	b)	 	Keynote Systems Inc., a corporation established under the laws of Delaware, with
its registered office at 15 East North Street, City of Dover, County of Kent, Delaware,
USA,





 — hereinafter referred to as “Keynote” -





with reference to a written power of attorney (with signature certified) of March 27,
2006, the original of which has been submitted to the Notary and a hereby certified
copy of which is attached to this Deed,




	2.	 	Mr. Helmut Friedel, management consultant, born XXXXXXXXXX, German citizen, with private
domicile at XXXXXXXXXX, identified by his identity card,





 — hereinafter referred to as “Seller 2” -





	3.	 	Mr. Johannes Reis, Dipl.-Ingenieur, born XXXXXXXXXX, German citizen, with private domicile at
XXXXXXXXXX, identified by his passport,






according to his declarations acting




	 	3.1	 	in his own name,





 — hereinafter referred to as “Seller 1” -, and





	 	3.2	 	released from the restrictions imposed by § 181 German Civil Code in the name and
on behalf of






	 	a)	 	Mr. Erich Weikert, Dipl.-Kaufmann, born XXXXXXXXXX, with private
domicile at XXXXXXXXXX,





 — hereinafter referred to as “Seller 3” -,



A.Prot. 2006/35 GrD



The symbol
“XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



3



	 	 	 	with reference to a power of attorney (with signature certified) dated March 27,
2006, the original of which has been submitted to the Notary and a hereby
certified copy of which is attached to this Deed,
	 
	 	b)	 	Mr. Johann Banken, Dipl.-Informatiker, born XXXXXXXXXX, with private
domicile at XXXXXXXXXX,





 — hereinafter referred to as “Seller 4” -,





	 	 	 	with reference to a power of attorney (with signature certified) dated March 24,
2006, the original of which has been submitted to the Notary and a hereby
certified copy of which is attached to this Deed,
	 
	 	c)	 	Mr. Adil Kaya, born XXXXXXXXXX, with private domicile at XXXXXXXXXX,





 — hereinafter referred to as “Seller 5” -,





	 	 	 	with reference to a power of attorney (with signature certified) dated March 27,
2006, the original of which has been submitted to the Notary and a hereby
certified copy of which is attached to this Deed,
	 
	 	d)	 	Mr. Martin Löhlein, Dipl.-Ingenieur, born XXXXXXXXXX, with private
domicile at XXXXXXXXXX,





 — hereinafter referred to as “Seller 6” -,





	 	 	 	with reference to a power of attorney (with signature certified) dated March 27,
2006, the original of which has been submitted to the Notary and a hereby
certified copy of which is attached to this Deed,
	 
	 	e)	 	Mr. Norbert Neumeister, born XXXXXXXXXX, with private domicile at
XXXXXXXXXX,





 — hereinafter referred to as “Seller 7” -,





with reference to a power of attorney (with signature certified) dated March 27,
2006, the original of which has been submitted to the Notary and a hereby
certified copy of which is attached to this Deed,


A.Prot. 2006/35 GrD



The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



4


 — Seller 1 through Seller 7 jointly and severally, the “Sellers”  —




— each of the Sellers and the Purchaser individually




hereinafter also refer to as “Party” and, jointly, the “Parties” —



The acting Notary advised the persons appearing that a notary who or whose partners in the law firm
have formerly acted as legal advisors to one of the parties involved in the matter to be notarized
would not be entitled to take office as a notary in the matter at hand pursuant to § 233 Sect. 1(4)
of the Introductory Act of the Canton Basel-City relating to the Swiss Civil Code which provision
corresponds with the so-called “Vorbefassungsverbot” under the German Act of Notarization (§ 3
Sect. 1(7)). The acting Notary states that he himself and his firm have not been involved in the
matter at hand in the meaning of said provisions. By approving the present Agreement, the parties
hereto shall confirm such statement of the acting Notary.



The persons appearing requested this Deed including some of its Schedules to be recorded in the
English language. The acting Notary Public who is in sufficient command of the English language
ascertained that the persons appearing are also in command of the English language. After having
been instructed by the acting Notary, the persons appearing waived the right to obtain the
assistance of a sworn interpreter and to obtain a certified translation of this Deed including the
English Schedules hereto into their German mother tongue.



Then the persons appearing, acting as indicated, declared with request for notarial recording the
following:




Table of Contents




	 	 	 	 	 
	A. PREAMBLE
	 	 	7	 
	 
	 	 	 	 
	B. Share PURCHASE AND TRANSFER AGREEMENT
	 	 	8	 
	 
	 	 	 	 
	1.Definitions
	 	 	8	 
	 
	 	 	 	 
	2.Object of this Purchase Agreement; Sale Shares
	 	 	8	 
	 
	 	 	 	 
	2.1 Share of Seller 1
	 	 	8	 
	2.2 Share of Seller 2
	 	 	9	 
	2.3 Share of Seller 3
	 	 	9	 
	2.4 Share of Seller 4
	 	 	9	 
	2.5 Share of Seller 5
	 	 	9	 





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The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



5


	 	 	 	 	 
	
	 	 	 	 
	2.6 Share of Seller 6
	 	 	9	 
	2.7 Share of Seller 7
	 	 	9	 
	 
	 	 	 	 
	3. Sale and Purchase of the Sale Shares
	 	 	9	 
	 
	 	 	 	 
	3.1 Sale and Purchase of the Seller 1 Share
	 	 	9	 
	3.2 Sale and Purchase of the Seller 2 Share
	 	 	10	 
	3.3 Sale and Purchase of the Seller 3 Share
	 	 	10	 
	3.4 Sale and Purchase of the Seller 4 Share
	 	 	10	 
	3.5 Sale and Purchase of the Seller 5 Share
	 	 	10	 
	3.6 Sale and Purchase of the Seller 6 Share
	 	 	10	 
	3.7 Sale and Purchase of the Seller 7 Share
	 	 	10	 
	3.8 Right to Dividends
	 	 	10	 
	 
	 	 	 	 
	4. Total Purchase Price
	 	 	11	 
	 
	 	 	 	 
	4.1 Total Purchase Price
	 	 	11	 
	4.2 Purchase Price Adjustment
	 	 	11	 
	4.3 Initial Purchase Price
	 	 	11	 
	4.4 Holdbacks
	 	 	12	 
	4.5 Payment Mode
	 	 	12	 
	4.6 Payment of Adjustment Amount
	 	 	13	 
	4.7 Determination of Total Earnout Price
	 	 	13	 
	4.8 Total Consideration
	 	 	14	 
	4.9 Escrow Account
	 	 	14	 
	 
	 	 	 	 
	5. Assignment of the Sale Shares
	 	 	14	 
	 
	 	 	 	 
	5.1 Assignment of Seller 1 Share
	 	 	14	 
	5.2 Assignment of Seller 2 Share
	 	 	14	 
	5.3 Assignment of Seller 3 Share
	 	 	14	 
	5.4 Assignment of Seller 4 Share
	 	 	15	 
	5.5 Assignment of Seller 5 Share
	 	 	15	 
	5.6 Assignment of Seller 6 Share
	 	 	15	 
	5.7 Assignment of Seller 7 Share
	 	 	15	 
	5.8 Condition precedent
	 	 	15	 
	5.9 Consent of SIGOS and Sellers
	 	 	15	 
	 
	 	 	 	 
	6. Closing Date; Conditions to Closing
	 	 	16	 
	 
	 	 	 	 
	6.1 Condition precedent; Closing Date
	 	 	16	 
	6.2 Conditions to Closing for the Sellers
	 	 	16	 
	6.3 Conditions to Closing for the Purchaser
	 	 	17	 
	6.4 Cut-Off Date
	 	 	18	 
	 
	 	 	 	 
	7. Pre-Closing Actions
	 	 	18	 
	 
	 	 	 	 
	8. Closing Financial Statements
	 	 	19	 
	 
	 	 	 	 
	8.1 Preparation of the Closing Financial Statements
	 	 	19	 
	8.2 Review and Acceptance or Rejection
	 	 	19	 
	8.3 Dispute Resolution Procedure
	 	 	19	 
	8.4 Co-operation and Access
	 	 	20	 
	 
	 	 	 	 
	9. Representations and Warranties of the Sellers
	 	 	20	 
	 
	 	 	 	 
	9.1 Execution of and Performance under the Purchase Agreement by Sellers
	 	 	21	 
	9.2 Legal Matters regarding SIGOS
	 	 	21	 





A.Prot. 2006/35 GrD



The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



6


	 	 	 	 	 
	
	 	 	 	 
	9.3 The Sale Shares
	 	 	22	 
	9.4 Equity interests of SIGOS
	 	 	22	 
	9.5 Financial Statements; no undisclosed liabilities
	 	 	22	 
	9.6 Absence of Certain Changes
	 	 	24	 
	9.7 Environmental Matters
	 	 	25	 
	9.8 Material Contracts and Commitment/Licenses and Permits
	 	 	26	 
	9.9 Other Contracts
	 	 	28	 
	9.10 Critical Contracts
	 	 	28	 
	9.11 Intellectual Property Rights
	 	 	29	 
	9.12 Assets of SIGOS
	 	 	36	 
	9.13 Employees and Pensions
	 	 	37	 
	9.14 No Brokers
	 	 	41	 
	9.15 Authorizations
	 	 	41	 
	9.16 Compliance
	 	 	41	 
	9.17 Litigation
	 	 	42	 
	9.18 Real Property Lease Contracts
	 	 	43	 
	9.19 Certain Transactions and Agreements
	 	 	43	 
	9.20 Insurance
	 	 	43	 
	9.21 Tax and Tax Returns
	 	 	44	 
	9.22 Full Disclosure
	 	 	45	 
	 
	 	 	 	 
	10. Remedies for Breach of Representations and Guarantees
	 	 	46	 
	 
	 	 	 	 
	10.1 Remedies
	 	 	46	 
	10.2 Maximum Amount
	 	 	46	 
	10.3 Exclusion of Further Remedies and Further Liability
	 	 	47	 
	 
	 	 	 	 
	11. Survival of Representations and Warranties and Statute of Limitations (Verjährung)
	 	 	47	 
	 
	 	 	 	 
	11.1 General
	 	 	47	 
	11.2 Specific Legal Matters
	 	 	47	 
	11.3 Intellectual Property Matters
	 	 	47	 
	11.4 Tax Matters
	 	 	47	 
	11.5 Suspension of the Limitation Period
	 	 	48	 
	 
	 	 	 	 
	12. Tax Indemnifications
	 	 	48	 
	 
	 	 	 	 
	12.1 Indemnification
	 	 	48	 
	12.2 Due date
	 	 	48	 
	12.3 Tax and Balance Sheet Treatment of Payments
	 	 	49	 
	12.4 Time Limitation
	 	 	49	 
	12.5 Tax Assessments and Tax Audits
	 	 	49	 
	12.6 Defense
	 	 	49	 
	12.7 Limitation of Liability
	 	 	50	 
	 
	 	 	 	 
	13. Other Indemnifications
	 	 	50	 
	 
	 	 	 	 
	13.1 Environmental
	 	 	50	 
	13.2 Excluded Liabilities
	 	 	51	 
	 
	 	 	 	 
	14. Claims
	 	 	51	 
	 
	 	 	 	 
	14.1 Notice of Claims
	 	 	51	 
	14.2 Resolution of Notice of Claim
	 	 	51	 
	 
	 	 	 	 
	15. Reduction of Holdback Amount and Total Earnout Price
	 	 	52	 





A.Prot. 2006/35 GrD



The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



7


	 	 	 	 	 
	
	 	 	 	 
	16. Release of Holdback Amount and Total Earnout Price.
	 	 	53	 
	 
	 	 	 	 
	16.1 Release of Remaining Holdback Amount on Release Date
	 	 	53	 
	16.2 Second Release Date
	 	 	53	 
	16.3 Release after the Final Determination of Revenue and Contribution Margin
	 	            53
	16.4 Release of any Remaining Amounts
	 	 	54	 
	 
	 	 	 	 
	17. Parent Guarantee
	 	 	54	 
	 
	 	 	 	 
	18. Appointment of Representative
	 	 	54	 
	 
	 	 	 	 
	19. [intentionally left blank]
	 	 	55	 
	 
	 	 	 	 
	20. Other Covenants
	 	 	55	 
	 
	 	 	 	 
	20.1 Further Co-operation
	 	 	55	 
	20.2 Announcements
	 	 	55	 
	20.3 Right to the Name “SIGOS”
	 	 	55	 
	 
	 	 	 	 
	21. Dispute Resolution
	 	 	56	 
	 
	 	 	 	 
	21.1 Dispute Resolution
	 	 	56	 
	21.2 Provisional Relief
	 	 	57	 
	 
	 	 	 	 
	22. General Provisions
	 	 	57	 
	 
	 	 	 	 
	22.1 Language
	 	 	57	 
	22.2 Governing Law
	 	 	57	 
	22.3 Liability of Sellers
	 	 	58	 
	22.4 Expenses
	 	 	58	 
	22.5 Partial invalidity
	 	 	58	 
	22.6 Amendments
	 	 	58	 
	22.7 Business Day
	 	 	58	 
	22.8 List of Schedules
	 	 	59	 
	22.9 Entire Agreement
	 	 	59	 
	22.10 Notices and Communications
	 	 	59	 
	 
	 	 	 	 
	C. COUNTERPARTS (AUSFERTIGUNGEN) OF THIS DEED / COPIES
	 	 	60	 






A.




PREAMBLE





	1.	 	Purchaser is a German company with limited liability (Gesellschaft mit beschränkter Haftung,
GmbH), with its registered office in DE 70469 Stuttgart, Stresemannstrasse 79, Germany, and
duly registered in the commercial register of the Local Court (Amtsgericht) of Stuttgart under
no. HRB 720574.




A.Prot. 2006/35 GrD



The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



8



	2.	 	SIGOS Systemintegration GmbH is a German limited liability company, with its registered
office in Nuremberg, Germany, and duly registered in the commercial register of the Local
Court (Amtsgericht) of Nuremberg under HRB 9323 (“SIGOS”). SIGOS is engaged in the provision
of services and the realization of software and hardware solutions, in particular test
solutions for, among other things, planning, specification and integration of
telecommunications and other infrastructures (Erbringung von Dienstleistungen und die
Realisierung von Soft- und Hardwarelösungen, insbesondere Testlösungen unter anderem für
Planung, Spezifikation und Integration von Telekommunikations- und anderen Infrastrukturen).
	 
	3.	 	The Sellers are the sole shareholders in SIGOS. They intend to sell and to transfer title to
all shares in SIGOS to the Purchaser and the Purchaser intends to acquire all shares in SIGOS.




NOW, THEREFORE, the Parties hereby agree to the following share purchase and transfer agreement
(the “Purchase Agreement”):




B.




SHARE PURCHASE AND TRANSFER AGREEMENT





	1.	 	Definitions
	 
	 	 	Schedule 1 sets forth the definitions of the capitalized terms used in this Purchase
Agreement.
	 
	2.	 	Object of this Purchase Agreement; Sale Shares
	 
	 	 	SIGOS has a nominal share capital in the amount of XXXXXXXXXX. The Sellers are the sole shareholders in SIGOS.
	 
	2.1	 	Share of Seller 1
	 
	 	 	Seller 1 holds one share in the nominal amount of XXXXXXXXXX (“Seller 1 Share”).




A.Prot. 2006/35 GrD



The symbol
“XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



9



	2.2	 	Share of Seller 2
	 
	 	 	Seller 2 holds one share in the nominal amount of XXXXXXXXXX (“Seller 2 Share”).
	 
	2.3	 	Share of Seller 3
	 
	 	 	Seller 3 holds one share in the nominal amount of XXXXXXXXXX (“Seller 3 Share”).
	 
	2.4	 	Share of Seller 4
	 
	 	 	Seller 4 holds one share in the nominal amount of XXXXXXXXXX (“Seller 4 Share”).
	 
	2.5	 	Share of Seller 5
	 
	 	 	Seller 5 holds one share in the nominal amount of XXXXXXXXXX (“Seller 5 Share”).
	 
	2.6	 	Share of Seller 6
	 
	 	 	Seller 6 holds one share in the nominal amount of XXXXXXXXXX (“Seller 6 Share”).
	 
	2.7	 	Share of Seller 7
	 
	 	 	Seller 7 holds one share in the nominal amount of XXXXXXXXXX (“Seller 7 Share” and Seller 1 Share through Seller 7
Share together, the “Sale Shares”).
	 
	3.	 	Sale and Purchase of the Sale Shares
	 
	3.1	 	Sale and Purchase of the Seller 1 Share
	 
	 	 	Seller 1 hereby sells to the Purchaser and the Purchaser
hereby purchases from Seller 1 the Seller 1 Share with economic
effect as of April 3, 2006, (the “Effective Date”).




A.Prot. 2006/35 GrD



The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



10



	3.2	 	Sale and Purchase of the Seller 2 Share
	 
	 	 	Seller 2 hereby sells to the Purchaser and the Purchaser
hereby purchases from Seller 2 the Seller 2 Share with economic
effect as of the Effective Date.
	 
	3.3	 	Sale and Purchase of the Seller 3 Share
	 
	 	 	Seller 3 hereby sells to the Purchaser and the Purchaser
hereby purchases from Seller 3 the Seller 3 Share with economic
effect as of the Effective Date.
	 
	3.4	 	Sale and Purchase of the Seller 4 Share
	 
	 	 	Seller 4 hereby sells to the Purchaser and the Purchaser
hereby purchases from Seller 4 the Seller 4 Share with economic
effect as of the Effective Date.
	 
	3.5	 	Sale and Purchase of the Seller 5 Share
	 
	 	 	Seller 5 hereby sells to the Purchaser and the Purchaser
hereby purchases from Seller 5 the Seller 5 Share with economic
effect as of the Effective Date.
	 
	3.6	 	Sale and Purchase of the Seller 6 Share
	 
	 	 	Seller 6 hereby sells to the Purchaser and the Purchaser
hereby purchases from Seller 6 the Seller 6 Share with economic
effect as of the Effective Date.
	 
	3.7	 	Sale and Purchase of the Seller 7 Share
	 
	 	 	Seller 7 hereby sells to the Purchaser and the Purchaser
hereby purchases from Seller 7 the Seller 7 Share with economic
effect as of the Effective Date.
	 
	3.8	 	Right to Dividends
	 
	 	 	The sale of the Sale Shares includes all rights attached to
the Sale Shares, including but not limited to, the right to the
profits of SIGOS of the current fiscal year 2006 and any
non-distributed profits of previous fiscal years.




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The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



11



	4.	 	Total Purchase Price
	 
	4.1	 	Total Purchase Price
	 
	 	 	The purchase price for all Sale Shares shall amount to EUR 25
million (in words: Euro twenty-five million), subject to
adjustments as provided in Section 4.2 of this Purchase Agreement
(the “Total Purchase Price”) plus the Total Earnout Price, if any.
The Total Purchase Price will be allocated to each of the Sellers
according to their quota of the Sale Shares as set forth in
Section 2.1 through 2.7.
	 
	4.2	 	Purchase Price Adjustment
	 
	 	 	The purchase price shall be adjusted as follows:
If the total assets according to Section 266 para.2 lit A. and B.
German Commercial Code (Handelsgesetzbuch, HGB) reflected on the
balance sheet of the Closing Financial Statement (the “Total SIGOS
Assets”), do not equal or not exceed the total liabilities
according to Section 266 para.3 lit. B and C. German Commercial
Code (Handelsgesetzbuch, HGB)) reflected on the balance sheet of
the Closing Financial Statement (the “Total SIGOS Liabilities”),
the purchase price for all Shares shall be reduced by an amount
equal to the negative difference between such Total SIGOS Assets
and such Total SIGOS Liabilities (the “Adjustment Amount”).
	 
	4.3	 	Initial Purchase Price
	 
	 	 	The initial purchase price for the Sale Shares shall amount
to EUR 20 million (in words: Euro twenty million) (the “Initial
Purchase Price”) and will be allocated to the Sellers as follows:






	 	a.	 	XXXXXXXXXX shall be paid to Seller 1 (the “Principal Amount 1”).
	 
	 	b.	 	XXXXXXXXXX shall be paid to Seller 2 (the “Principal Amount 2”).
	 
	 	c.	 	XXXXXXXXXX shall be paid to Seller 3 (the “Principal Amount 3”).
	 
	 	d.	 	XXXXXXXXXX shall be paid to Seller 4 (the “Principal Amount 4”).




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The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



12



	 	e.	 	XXXXXXXXXX shall be paid to Seller 5 (the “Principal Amount 5”).
	 
	 	f.	 	XXXXXXXXXX shall be paid to Seller 6 (the “Principal Amount 6”).
	 
	 	g.	 	XXXXXXXXXX shall be paid to Seller 7 (the “Principal Amount 7”) (and Principal
Amount 1 through Principal Amount 7, the “Principal Amounts”)






	 	 	At the Closing Date, Purchaser shall transfer the Initial Purchase
Price into a joint bank account of the Sellers as per Section 4.5
(the “Sellers Bank Account”).
	 
	4.4	 	Holdbacks
	 
	 	 	Purchaser will withhold an amount of EUR 4 million (the
“Holdback Amount”) and an amount of EUR 1 million (the “Second
Holdback Amount”). At the Closing Date, the Holdback Amount and
the Second Holdback Amount shall be paid by Purchaser into a newly
established escrow account to be jointly opened and held
(‘Und-Konto’) by the Sellers or the Representative on the one hand
and the Purchaser on the other hand (the “Escrow Account”) at a
German bank (the “Escrow Agent”). The details of the Escrow
Account are dealt with in Section 4.9 of this Agreement.
	 
	4.5	 	Payment Mode
	 
	 	 	All payments owed by Purchaser to Sellers under this
Agreement shall be paid by Purchaser to the Sellers Bank Account.
The credit made to the Sellers Bank Account shall have the effect
of discharging (schuldbefreiende Wirkung) the Purchaser’s
obligation in relation to each and all Sellers.
	 
	 	 	The payments under this Purchase Agreement of the Initial Purchase
Price, the Adjustment Amount and the Earnout Amount shall be made
by wire transfer of the relevant amount in EUR to the receiving
party’s bank accounts as per Section 4.5 or to any other bank
accounts of the receiving party, provided that the receiving party
has designated such other bank account and notified the paying
party of it in writing no later than five Business Days prior to
the date of the relevant transfer.




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The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.










 



13



	 	a.	 	Sellers Bank Account
	 
	 	 	 	XXXXXXXXXX.
	 
	 	b.	 	Purchaser Bank Account
	 
	 	 	 	XXXXXXXXXX.






	4.6	 	Payment of Adjustment Amount
	 
	 	 	In the event that the Adjustment Amount exceeds the aggregate
of the Holdback Amount and the Second Holdback Amount, the
Holdback Amount and the Second Holdback Amount shall be released
within ten (10) Business Days after the finalization of the
Closing Financial Statements, as per Section 7 and paid to the
Purchaser. The amount equal to the difference of the Adjustment
Amount exceeding the aggregate of the Holdback Amount and the
Second Hold Back Amount, if any, shall be paid by the Sellers to
the Purchasers within ten (10) Business Days after the
finalization of the Closing Financial Statements, as per Section
7. In the event that the Adjustment Amount does not exceed the
aggregate of the Holdback Amount and the Second Holdback Amount,
an amount equal to the Adjustment Amount shall be taken from the
Holdback Amount first, and then the Second Holdback Amount, and
shall be released within ten (10) Business Days after
the finalization of the Closing Financial Statements, as per Section 7 and paid
to the Purchaser. The Adjustment Amount shall bear interest as of the Closing
Date; the interest rate applicable shall be 5 % p.a..
	 
	4.7	 	Determination of Total Earnout Price
	 
	 	 	If both (i) Revenues (as defined on Schedule 4.7
hereto) during the Earnout Period (as defined on
Schedule 4.7 hereto) is XXXXXXXXXX and (ii)
Contribution Margin during the Earnout Period is
XXXXXXXXXX then the total earnout price shall equal
XXXXXXXXXX (the “Total Earnout Price”); provided that
(a) if the Contribution Margin for the Earnout Period
is XXXXXXXXXX, the Total Earnout Price shall be
XXXXXXXXXX; and (b) if, for XXXXXXXXXX financial
quarters during the Earnout Period, the Contribution
Margin is XXXXXXXXXX, the Total




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	 	 	Earnout Price shall
be XXXXXXXXXX. Such amount shall be calculated and
paid as provided in Sections 15 and 16 hereof and
Schedule 4.7 hereto.
	 
	4.8	 	Total Consideration
Notwithstanding anything to the contrary
contained in this Agreement, in no event shall the
aggregate consideration paid by Purchaser to the
Sellers exceed the Total Purchase Price plus the
Total Earnout Price.
4.9 Escrow Account
Any dispositions over the Escrow Account as well
as over any monies held in the Escrow Account shall
be made jointly by the Sellers or the Representative
(as the case may be) and the Purchaser by giving
written instruction to the Escrow Agent. The Parties
shall instruct the Escrow Agent accordingly. If
monies are to be released from the Escrow Account to
the Sellers or the Purchaser, as the case may be, the
respective amount shall be transferred together with
any and all interest accrued on such amount until it
is released, less any costs related to the Escrow
Account attributable to such amount.
	 
	5.	 	Assignment of the Sale Shares
	 
	5.1	 	Assignment of Seller 1 Share
	 
	 	 	Seller 1 hereby assigns the Seller 1 Share to the Purchaser who accepts such assignment.
	 
	5.2	 	Assignment of Seller 2 Share
	 
	 	 	Seller 2 hereby assigns the Seller 2 Share to the Purchaser who accepts such assignment.
	 
	5.3	 	Assignment of Seller 3 Share
	 
	 	 	Seller 3 hereby assigns the Seller 3 Share to the Purchaser who accepts such assignment.




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	5.4	 	Assignment of Seller 4 Share
	 
	 	 	Seller 4 hereby assigns the Seller 4 Share to the Purchaser who accepts such assignment.
	 
	5.5	 	Assignment of Seller 5 Share
	 
	 	 	Seller 5 hereby assigns the Seller 5 Share to the Purchaser who accepts such assignment.
	 
	5.6	 	Assignment of Seller 6 Share
	 
	 	 	Seller 6 hereby assigns the Seller 6 Share to the Purchaser who accepts such assignment.
	 
	5.7	 	Assignment of Seller 7 Share
	 
	 	 	Seller 7 hereby assigns the Seller 7 Share to the Purchaser who accepts such assignment.
	 
	5.8	 	Condition precedent
	 
	 	 	The assignments pursuant to Sections 5.1 through 5.7 are subject to the condition precedent (aufschiebende
Bedingung) set forth in Section 6.1.
	 
	5.9	 	Consent of SIGOS and Sellers






	 	a.	 	The Sellers have unanimously approved in writing the assignment of the Sale Shares to
the Purchaser as set forth in Section 5 in the form of the attached Schedule 5.9a.
	 
	 	b.	 	SIGOS has approved in writing the assignment of the Sale Shares to the Purchaser
as set forth in Section 5 in the form of the attached Schedule 5.9b.




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	6.	 	Closing Date; Conditions to Closing
	 
	6.1	 	Condition precedent; Closing Date
	 
	 	 	The assignments of the Sale Shares pursuant to Section 5.1
through 5.7 are subject to the condition precedent (aufschiebende
Bedingung) of the Parties having executed the declaration set
forth in Schedule 6.1 (the “Closing Declaration”; the date at
which such condition precedent has been fulfilled, the “Closing
Date—; and the execution of the Closing Declaration by the
Parties, the “Closing”).
	 
	6.2	 	Conditions to Closing for the Sellers
	 
	 	 	The obligation of the Sellers to close the transaction under
this Purchase Agreement and to execute the Closing Declaration
shall be subject to the satisfaction and fulfilment, or waiver by
the Representative, of the following conditions:






	 	a.	 	The Initial Purchase Price has been transferred to the Sellers Bank Account per
Section 4.5.
	 
	 	b.	 	The Holdback Amount and the Second Holdback Amount have been transferred to the
Escrow Account.
	 
	 	c.	 	A certificate of the Secretary of Keynote’s substantively in the form as set
forth in Schedule 6.2c (without Exhibits A-C) evidencing that this Agreement has been
duly and validly approved by Keynote’s Board of Directors in accordance with applicable
Legal Requirements, Keynote’s certificate of incorporation and bylaws.
	 
	 	d.	 	Documentation evidencing Keynote’s grant of options to purchase shares of its
common stock, at the then fair market value, to the persons and in the amounts set forth
in Schedule 6.2d.
	 
	 	e.	 	Delivery of a copy of an excerpt from the Commercial Register of the Purchaser
or, if such excerpt should not yet be available, a copy of the notification regarding
the registration of the Purchaser with the Commercial Register (Eintragungsnachricht).




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	6.3	 	Conditions to Closing for the Purchaser
	 
	 	 	The obligation of the Purchaser to close the transaction
under this Purchase Agreement and to execute the Closing
Declaration shall be subject to the satisfaction and fulfillment,
or waiver by Purchaser, of the following conditions:






	 	a.	 	The Sellers shall have issued a certificate in the form attached hereto as
Schedule 6.3a to the Purchaser that they have performed and complied with all of their
covenants and obligations under this Purchase Agreement which are to be performed or
complied with by them prior to or on the Closing Date in all material respects.
	 
	 	b.	 	There shall not exist any injunctions or decrees in any jurisdiction that may
restrain or prohibit the consummation of the transactions contemplated hereby.
	 
	 	c.	 	The Purchaser shall have been furnished a certificate by the Sellers stating that
there has been no Material Adverse Change to the SIGOS Business occurred, except as set
forth in Schedule 9.6 under no 9.6a).
	 
	 	d.	 	The Sellers shall have provided duly executed copies of all consents, approvals,
assignments, notices, waivers, authorizations or other certificates
from, or provided to, the third parties set forth in Schedule 6.3d as may be necessary
and appropriate to (i) keep in full force and effect and avoid the breach, violation
of, termination of, or adverse change to any and all Material Contracts after the
Transfer, (ii) provide for the preservation of SIGOS’ IP Rights and other assets and
properties after the Transfer, (iii) to enable Purchaser to carry on the business of
SIGOS immediately after the Effective Date and (iv) consummate the Transfer, the
Purchaser Ancillary Agreements and the SIGOS Ancillary Agreements, in each case, in
form and substance satisfactory to the Purchaser.
	 
	 	e.	 	Purchaser has received from the persons listed in Schedule 6.3e:






	 	aa.	 	executed employment agreements between such persons and SIGOS in the
form attached hereto as Schedule 6.3eaa (the “Employment Agreements”), and




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	 	bb.	 	executed non-competition agreements between such persons and SIGOS in
the form attached hereto as Schedule 6.3ebb (the “Non Competition Agreements”).






	 	f.	 	Delivery by the Sellers of resignations of the managing directors
(Geschäftsführer), Helmut Friedel and Erich Weikert, specified in Schedule 6.3f of SIGOS
prior to the Closing Date.
	 
	 	g.	 	Evidence reasonably satisfactory to Purchaser of the repayment or satisfaction in
full of the obligations to the creditors and release of liens listed on Schedule 6.3g.






	6.4	 	Cut-Off Date
	 
	 	 	If the conditions to Closing pursuant to Section 6.2 have not
been fulfilled on or prior to April 15, 2006, the Sellers may
cancel (aufheben) this Purchase Agreement with immediate effect by
giving notice in writing to the other party. If the conditions to
Closing pursuant to Section 6.3 have not been fulfilled on or
prior to April 15, 2006, the Purchaser may cancel (aufheben) this
Purchase Agreement with immediate effect by giving notice in
writing to the other party. In case of a cancellation of this
Purchase Agreement pursuant to this Section 6.4, each Party
will bear its respective costs incurred in connection with this Purchase Agreement, waiving
any claims thereunder or under any other agreement with respect to the transactions
contemplated by this Purchase Agreement against the other Party.
	 
	7.	 	Pre-Closing Actions
	 
	 	 	The Sellers shall between the date hereof and the Closing Date procure that SIGOS and its
Business is operated in the ordinary course, consistent with past practice and not incur any
material liabilities.




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	8.	 	Closing Financial Statements
	 
	8.1	 	Preparation of the Closing Financial Statements
	 
	 	 	The Parties shall cause (i) SIGOS to prepare the financial
statements (Jahresabschluss) in the English language consisting of
the balance sheet (Bilanz) as of the Closing Date in accordance
with the German Commercial Code (HGB) and the German generally
accepted accounting principles (Grundsätze ordnungsgemäßer
Buchführung und Bilanzierung, GoB - “German GAAP”) consistently
applied, (ii) Baumgartner und Kollegen, the auditors of SIGOS, to
audit such financial statements (“Baumgartner und Kollegen Audit
Report”), and (iii) to deliver such audited statements (the “Draft
Closing Financial Statements”) to the Sellers and the Purchaser
without any undue delay but in no case no later than forty-five
(45) days after the Closing Date.
	 
	8.2	 	Review and Acceptance or Rejection
	 
	 	 	Following receipt of the Draft Closing Financial Statements,
the Sellers and the Purchaser will be afforded a period of
forty-five (45) days to review such draft. During this period, the
Sellers and the Purchaser will have the right, if they so elect,
to have their independent certified accountants and/or internal
auditors inspect any work papers generated by SIGOS and/or
Baumgartner und Kollegen, their accountants, in preparation of the
Draft Closing Financial Statements. At or before the end of such
period, the Sellers and the Purchaser may either (i) ac
cept the Draft Closing Financial Statements or (ii) deliver to the other Party
written notice of those items in the Draft Closing Financial Statements which
the so notifying Party disputes, in which case only these items identified by
the Parties shall be deemed to be in dispute. Any such notice shall specify in
reasonable detail the basis of the Party’s reason for such dispute.
	 
	8.3	 	Dispute Resolution Procedure
	 
	 	 	If items in the Draft Closing Financial
Statements have been disputed pursuant to Section 8.2
and the Parties have been unable to resolve any such
dispute and/or if the Parties have been unable to
agree on the Adjustment Amount, if




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	 	 	any, within a
period ending sixty (60) days after the receipt of
the Draft Closing Financial Statements, the Parties
will refer the unresolved dispute for final and
binding resolution to a German partner of Ebner,
Stolz & Partner, Stuttgart, (the “Neutral
Accountant”). The Parties shall instruct the Neutral
Accountant to deliver its written opinion (including
reasons for the Neutral Accountant’s decision on each
disputed item) to them not later than 1 (one) month
after the remaining differences have been referred to
it. The decision of the Neutral Accountant shall be
in writing and shall, absent manifest error, be
final, binding and conclusive on the Parties (within
the limits set forth in Section 319 para. (1) German
Civil Code (Bürgerliches Gesetzbuch, BGB)) and shall
not be subject of any appeal. Before issuing a
decision on the matter, the Neutral Accountant shall
grant the Parties opportunity to deliver a statement
of opinion. The fees and expenses of the Neutral
Accountant, if any, shall be borne by the Sellers and
the Purchaser in equal shares, notwithstanding the
Neutral Accountant’s decision. For the purposes of
this Purchase Agreement, the financial statements
(Jahresabschluss) of SIGOS for the period between
January 1, 2006 and the Closing Date shall be deemed
to be (i) agreed by the Parties or (ii) determined by
the Neutral Accountant (the “Closing Financial
Statements”).
	 
	8.4	 	Co-operation and Access
	 
	 	 	The Sellers and the Purchaser and their
representatives and advisors shall be granted such
reasonably requested access to any books, records or
other infor
mation in the possession of SIGOS or the other Party that may be used or useful in evaluating
the (Draft) Closing Financial Statements.
	 
	9.	 	Representations and Warranties of the Sellers
	 
	 	 	The Sellers hereby represent and warrant jointly and severally (je einzeln und gesamtschuldnerisch) by way of an
independent guarantee (selbständiges Garantieversprechen) as of the date hereof and as of the Closing Date the
following:




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	9.1	 	Execution of and Performance under the Purchase Agreement by Sellers
	 
	 	 	Each Seller has all necessary legal power and authority to execute this Purchase Agreement and to perform fully
its respective obligations thereunder. The execution and performance of this Purchase Agreement and any other agreement
provided for in this Purchase Agreement by the Sellers will not violate (i) any contracts to which any of them is a
party or (ii) any law, judgement or ruling to which any of them may be subject.
	 
	9.2	 	Legal Matters regarding SIGOS






	 	a.	 	The statements made in item 2 of the preamble and Section 2 are true. SIGOS is a duly
organized company with limited liability, validly existing under the laws of Germany in
accordance with its articles of association as currently registered with the respective
competent German commercial register. The excerpt of the competent German commercial
register which is attached as Schedule 9.2a is true and complete and there is neither
any registration in the commercial register pending nor any fact existing which is to be
filed for registration with the commercial register.
	 
	 	b.	 	SIGOS is neither under a commercial law perspective nor under an insolvency law
perspective overindebted (überschuldet) or insolvent (zahlungsunfähig) and to the
Sellers’ Knowledge no such situation is threatening. No petition to initiate insolvency
proceedings over the assets of SIGOS has been filed and to the Sellers’ Knowledge no
such petition is threatening.
Neither the Sellers nor any other competent body have resolved to dissolve SIGOS.
	 
	 	c.	 	There are no supplementary or side agreements with respect to the articles of
association of SIGOS, no inter-company agreements (Unternehmensverträge) within the
meaning of §§ 291 et seq. of the German Stock Corporation Act (Aktiengesetz, AktG),
voting trusts, proxies, sub-participation agreements (Unterbeteiligungsverträge), silent
participation agreements (stille Beteiligungsverträge) or other similar agreements with
respect to SIGOS.




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	 	d.	 	Except for the silent participations (stille Beteiligungen) of BayBG Bayerische
Beteiligungsgesellschaft mbH (“BayBG”), BayernKapital Risikokapitalbeteiligungs GmbH
(“BayernKapital”) and tgb Technologie-Beteiligungsgesellschaft mbH (“TBG”), there were
no silent participations with respect to SIGOS. The silent participations with BayBG,
BayernKapital and TBG were terminated in June/July 2003 and all claims in connection
with the silent participations are settled and satisfied.






	9.3	 	The Sale Shares
	 
	 	 	The Sale Shares are legally existing. Sellers are the sole
legal and economical owner of the Sale Shares free of any third
party rights and are free to sell and assign the Sale Shares (free
of any third party rights) without the consent of any person which
is not a Party to this Purchase Agreement. All initial capital
contributions (Stammeinlagen) with respect to the Sale Shares have
been paid in and have neither directly nor indirectly been repaid;
in particular no equity replacing debt (eigenkapitalersetzendes
Darlehen) nor any other equity replacing performance of any
shareholder (eigenkapitalersetzende Gesellschafterleistung) has
been repaid.
	 
	9.4	 	Equity interests of SIGOS
	 
	 	 	SIGOS does not hold any equity interest in any other company,
undertaking or legal entity and is not member of any association
(Verein oder Verband), except as set forth in Schedule 9.4.
	 
	9.5	 	Financial Statements; no undisclosed liabilities
	 
	 	 	The Sellers have handed over to the Purchaser a complete and
true copy of the audited financial statements of SIGOS for the
period ending on 31 December 2005 (the “Financial Statements
2005”).
	 
	 	 	The Financial Statements 2005 have been prepared in accordance
with and comply in all respects with the statutory provisions of
the German Commercial Code (HGB) and German GAAP consistently
applied, and, according to the German Commercial Code and German
GAAP, present a true and fair view of the assets




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and liabilities,
financial position and earnings position (Vermögens-, Finanz- und
Ertragslage) of SIGOS as of 31 December 2005.




Without limiting the generality of the preceding subparagraph,




	 	a.	 	the Financial Statements 2005 are based on a duly prepared inventory;
	 
	 	b.	 	all known liabilities of SIGOS as of 31 December 2005 are completely shown in the
Financial Statements 2005 and SIGOS does not have any liabilities or obligations,
whether accrued, absolute, contingent or otherwise, except as (i) disclosed in the
Financial Statements 2005 or (ii) incurred in the ordinary course of business since the
date of the Financial Statements 2005;
	 
	 	c.	 	all assets shown in the Financial Statements 2005 existed on 31 December 2005
with the respective value shown;
	 
	 	d.	 	SIGOS is free to dispose of the assets shown in the Financial Statements 2005
without any restriction;
	 
	 	e.	 	all legally required depreciations, value adjustments and provisions have been
made;
	 
	 	f.	 	no contingent liabilities existed which have not been shown in the Financial
Statements 2005 though it was legally required to disclose such contingent liabilities
in the Financial Statements 2005 and to the Sellers’ Knowledge, no other contingent
liabilities existed as of 31 December 2005; and
	 
	 	g.	 	the accounting principles applied at SIGOS have not been altered between 2000 and
today;
	 
	 	h.	 	all reserves established by SIGOS that are set forth on or reflected in the
Financial Statements 2005 are adequate; and
	 
	 	i.	 	the equity of SIGOS in the meaning of section 272 of the German Commercial Code
(HGB) as of 31 December 2005 amounted to XXXXXXXXXX.




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	9.6	 	Absence of Certain Changes
	 
	 	 	Except as disclosed in Schedule 9.6, since January 1, 2006,
SIGOS has operated its business in the ordinary course consistent
with its past practice, and since such date there has not been
with respect to SIGOS any:






	 	a.	 	Material Adverse Change in SIGOS;
	 
	 	b.	 	amendment or change of SIGOS’ articles of association;
	 
	 	c.	 	incurrence, creation or assumption by SIGOS of (i) any material liability or any
indebtedness for borrowed money, or (ii) any contingent liability as a guarantor or
surety with respect to the obligations of others;
	 
	 	d.	 	payment or discharge by SIGOS of any encumbrance on any asset or property of
SIGOS, or the payment or discharge of any liability of SIGOS, in each case that was not
either shown on the Financial Statements 2005 or incurred in the ordinary course of
SIGOS’ business after January 1, 2006 in an amount not in excess of XXXXXXXXXX for any
single liability to a particular creditor;
	 
	 	e.	 	purchase, license, sale, assignment or other disposition or transfer, or any
agreement or other arrangement for the purchase, license, sale, assignment or other
disposition or transfer, of any of the assets, properties or goodwill of SIGOS other
than a license of any product or products of, or in connection with services of, SIGOS
made in the ordinary course of SIGOS’s business consistent with its past practice;
	 
	 	f.	 	damage, destruction or loss of any material property or asset, whether or not
covered by insurance;
	 
	 	g.	 	declaration, setting aside or payment of any dividend on, or the making of any
other distribution in respect of, the capital stock of SIGOS;
	 
	 	g.	 	change or increase in the compensation payable or to become payable to any of the
managing directors (Geschäftsführer) or employees of SIGOS, or in any bonus or pension,
insurance or other benefit payment or arrangement made to or with any of such managing
directors, employees or




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	 	 	 	agents except in connection with normal employee salary or
performance reviews or otherwise in the ordinary course of SIGOS’ business consistent
with its past practice;
	 
	 	h.	 	obligation or liability incurred by SIGOS to any of its managing directors or
shareholders, except for normal and customary compensation and expense allowances
payable to managing directors in the ordinary course of SIGOS’s business consistent with
its past practice;
	 
	 	i.	 	any cancellation or non-renewal of any material customer contract or any material
change in the manner in which SIGOS extends discounts, credits or warranties to
customers or otherwise deals with its customers;
	 
	 	j.	 	SIGOS has not made any profit distributions for the financial year 2005, any
distribution of profits with regard to the financial year 2006, any hidden distribution
of profits (verdeckte Gewinnausschüttungen); or
	 
	 	k.	 	material increases or changes in salaries and/or in SIGOS Benefit Arrangement and
any leased employee arrangement, consultancy or freelancer arrangement, membership in a
professional employers association, and group severance (such as social plan),
separation, retention, change-of-control, and salary continuation plans, programs or
arrangements, and/or pension plans.






	9.7	 	Environmental Matters
	 
	 	 	SIGOS is in material compliance with all applicable
Environmental Laws. SIGOS has not received any notice, or other
communication (in writing or otherwise) that alleges that SIGOS or
any current or prior owner of any property leased by SIGOS is not
in compliance with any Environmental Law, and there are no
circumstances that may prevent or interfere with the compliance by
SIGOS with any current Environmental Law in the future. To the
Sellers’ Knowledge, no current or prior owner of any property
leased or possessed by SIGOS has received any notice or other
communication (in writing or otherwise).




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	9.8	 	Material Contracts and Commitment/Licenses and Permits






	 	a.	 	Schedule 9.8 sets forth a list of each of the following written or oral contracts to
which SIGOS is a party or to which SIGOS or any of its assets or properties is bound and
true and complete copies of which have been made available to the Purchaser (the
“Material Contracts”):






	 	aa.	 	any contract providing for payments (whether fixed, contingent or
otherwise) (i) by SIGOS in an aggregate amount of XXXXXXXXXX or more or (ii) to
SIGOS in an aggregate amount of XXXXXXXXXX or more;
	 
	 	bb.	 	any dealer, distributor, OEM, reseller, sales representative or
similar agreement under which any third party is authorized to sell, sublicense,
lease, distribute, market or take orders for, any product, service or technology
of SIGOS;
	 
	 	cc.	 	any contract providing for the development of any software, hardware,
content, technology or intellectual property for (or for the benefit or use of)
SIGOS, or providing for the purchase or license of any software, hardware,
content, technology or intellectual property to (or for the benefit or use of)
SIGOS, which software, hardware, content, technology or intellectual property is
in any manner used or incorporated (or is contemplated by SIGOS to be used or
incorpo
rated) in connection with any aspect or element of any product, service or
technology of SIGOS;
	 
	 	dd.	 	any joint venture or partnership contract or other similar agreement;
	 
	 	ee.	 	any contract or commitment in which SIGOS has granted or received
preferential customer pricing provisions, rights of first refusal, rights of first
negotiation, or exclusive license, marketing or distribution rights relating to
any product, service, market or geographic territory;
	 
	 	ff.	 	any contract or commitment for or relating to the employment of any
managing director (Geschäftsführer), employee or consultant of SI-




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	 	 	 	GOS or any other
type of contract or understanding with any managing director, employee or
consultant of SIGOS that is not immediately terminable by SIGOS without cost or
other liability;
	 
	 	gg.	 	any indenture, mortgage, trust deed, promissory note, loan agreement,
security agreement, guarantee or other agreement or commitment for the borrowing
of money;
	 
	 	hh.	 	any lease or other agreement under which SIGOS is lessee of or holds
or operates any items of tangible personal property or real property owned by any
third party;
	 
	 	ii.	 	any agreement that restricts SIGOS from: engaging in any aspect of
its business; participating or competing in any line of business or market; freely
setting prices for SIGOS’s products, services or technologies (including but not
limited to most favored customer pricing provisions); engaging in any business in
any market or geographic area; or soliciting potential employees, consultants,
contractors or other suppliers or customers;
	 
	 	jj.	 	any SIGOS IP Rights Agreement;
	 
	 	kk.	 	any co-location, co-branding or website hosting agreements; and
	 
	 	ll.	 	any agreement relating to the sale, issuance, grant, exercise, award,
purchase, repurchase or redemption of any shares of SIGOS or other securities of
SIGOS or any options, warrants or other rights to purchase or otherwise acquire
any such shares of SIGOS, other securities or options, warrants or other rights
therefor.






	 	b.	 	All Material Contracts are in full force and effect and unamended. SIGOS has not
breached any Material Contract and is not in default with any material obligation under
any Material Contract. Neither SIGOS nor any Seller has received any notice from or
given any notice to any other party indicating (i) that SIGOS is in material default
under or in material breach of any Material Contract in any respect or (ii) the
intention to cease trading or to terminate any Material Contract. No event has occurred,
and no circum-




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stance or condition exists, that (with or without notice or lapse of time)
will, or would reasonably be expected to,




	 	aa.	 	result in a violation or breach of any of the material provisions of
any Material Contract, or
	 
	 	bb.	 	give any third party (i) the right to declare a default or exercise
any material remedy under any Material Contract, (ii) the right to a rebate,
chargeback, penalty or change in delivery schedule or term under any Material
Contract, (iii) the right to accelerate the maturity or performance of any
obligation of SIGOS under any Material Contract, or (iv) the right to cancel,
terminate or modify any Material Contract or require the payment of a refund or
repayment.






	9.9	 	Other Contracts
	 
	 	 	SIGOS has not materially breached any contract other than a
Material Contract (the “Other Contract”) and is not in default
(in Verzug) with any material obligation under any Other
Contract.
	 
	9.10	 	Critical Contracts






	 	a.	 	SIGOS is not a party to any of the following contracts (the “Critical Contracts”):






	 	aa.	 	contracts which exclude or restrict the right of SIGOS to engage in
specific business activities or specific geographical areas except as listed in
Schedule 9.10aaa;
	 
	 	bb.	 	contracts which oblige SIGOS to acquire equity interests in or
participate in the formation of other companies, undertakings, associations
(Vereine und Verbände) or other legal entities; or
	 
	 	cc.	 	contracts with any Sellers except as listed in Schedule 9.10acc.






	 	b.	 	SIGOS is not a party to any of the following contracts:




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29







	 	aa.	 	contracts with sales representatives (Handelsvertreter), distributors (Eigen-
bzw. Vertragshändler), commission agents (Kommissionäre), and the like other than
the contracts listed and described in Schedule 9.10.baa.
	 
	 	bb.	 	contracts which, by virtue of the assignment of the Sale Shares to
the Purchaser, may be terminated or re-negotiated by the other party or which
provide, in the case of the assignment of the Sale Shares for any disadvantages
for SIGOS other than the contracts listed and described in Schedule 9.10.bbb.





9.11 Intellectual Property Rights





	 	a.	 	SIGOS (i) owns and has independently developed, or (ii) has the valid right or
license to use and/or dispose of any and all Intellectual Property (as defined in
Schedule 1) to the extent necessary or required for the conduct of the SIGOS Business
(such Intellectual Property being hereinafter collectively referred to as the “SIGOS IP
Rights”). Such SIGOS IP Rights are sufficient for the conduct of the SIGOS Business. As
used herein, the term “SIGOS Business” means the business of SIGOS as presently
conducted and proposed to be conducted.
	 
	 	b.	 	Schedule 9.11b identifies each patent or registration that has been issued to
SIGOS with respect to any of its Intellectual Property, identifies each pending patent
application or application for registration that SIGOS has made with respect to any of
its Intellectual Property, and identifies each material license, agreement, or other
permission (other than licenses granted to customers in the ordinary course of business)
that SIGOS has granted to any third party with respect to any of its Intellectual
Property (together with any exceptions). SIGOS has made available to Purchaser correct
and complete copies of all such patents, registrations, applications, licenses,
agreements, and permissions (as amended to date). Schedule 9.11b also identifies each
material trade name or unregistered trademark, service mark, corporate name, Internet
domain name, copyright, and material computer software item used by SIGOS in connection
with the SIGOS Business. With respect to each item, including the SIGOS IP Rights, and





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	 	 	 	the agreements listed on Schedule 9.11b (the “SIGOS IP Rights Agreements”):






	 	aa.	 	SIGOS possess all right, title, and interest in and to the SIGOS IP
Rights, including all Intellectual Property rights therein, free and clear of any
Encumbrance, license, or other restriction;
	 
	 	bb.	 	the SIGOS IP Rights are not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge;
	 
	 	cc.	 	no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand is pending or, to Sellers’ Knowledge, is threatened
that challenges the legality, validity, enforceability, use, or ownership of the
SIGOS IP Rights; and
	 
	 	dd.	 	SIGOS has never agreed to indemnify any person for or against any
interference, infringement, misappropriation, or other conflict with respect to
the SIGOS IP Rights except as listed in Schedule 9.11bdd.






	 	 	 	No Intellectual Property, other than the SIGOS IP Rights, are necessary for the conduct
of the SIGOS Business as currently conducted and proposed to be conducted, including
the design, development, manufacture, use, import and sale of products and technology
and the performance of services.
	 
	 	c.	 	Schedule 9.11c identifies each item of Intellectual Property that any third party
owns and that SIGOS uses pursuant to license, sublicense, agreement, or permission.
SIGOS has made available to Purchaser correct and complete copies of all such licenses,
sublicenses, agreements, and
permissions (as amended to date). With respect to each such item of used Intellectual
Property required to be identified in Schedule 9.11c:






	 	aa.	 	the license, sublicense, agreement, or permission covering the item
is legal, valid, binding, enforceable, and in full force and effect in all
material respects;
	 
	 	bb.	 	no party to the license, sublicense, agreement, or permission is in
material breach or default, and no event has occurred that with no-





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	 	 	 	tice or lapse of time would constitute a material breach or default
or permit termination, modification, or acceleration thereunder;
	 
	 	cc.	 	no party to the license, sublicense, agreement, or permission has
repudiated any material provision thereof;
	 
	 	dd.	 	SIGOS has not granted any sublicense or similar right with respect to
the license, sublicense, agreement, or permission except as listed in Schedule
9.11cdd;
	 
	 	ee.	 	no loss or expiration of the item is threatened, pending, or
reasonably foreseeable, except for patents expiring at the end of their statutory
terms (and not as a result of any act or omission by SIGOS, including without
limitation, a failure by SIGOS to pay any required maintenance fees); and
	 
	 	ff.	 	the consummation of the transactions contemplated by this Agreement
will not trigger or constitute a default under any such license, sublicense,
agreement or permission, nor result in the
modification, cancellation, termination, suspension of, or acceleration of any
payments under such agreements.






	 	d.	 	Schedule 9.11d(1) sets forth a complete list (by name and version number) of each
of the products, including without limitation software products, and services currently
made, manufactured, marketed, licensed, sold or distributed by SIGOS and each product,
enhancement, derivative, technology and service currently under development by SIGOS
(each a “SIGOS Product or Service”). Use, development, manufacture, marketing, license,
sale, distribution, or disposition of any SIGOS Product or Service as part of the SIGOS
Business (i) does not violate any SIGOS IP Rights Agreement or other license, contract,
agreement, arrangement, commitment or undertaking between SIGOS and any third party,
(ii) does not infringe or misappropriate, and will not infringe or misappropriate, any
Intellectual Property right of any third party, or (iii) does not and will not
constitute unfair competition or unfair trade practices under the laws of any
jurisdiction. SIGOS has not received any notice (except from Acterna pursu-





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	 	 	 	ant to that letter dated October 21, 2002) asserting that the exercise of any SIGOS IP Right or the
current or proposed use, development, manufacture, marketing, license, sale,
distribution, or disposition of any SIGOS Product or Service infringes or
misappropriates, or will infringe or misappropriate, any Intellectual Property right of
any third party or conflicts or will conflict with the rights of any third party, nor,
to the Sellers’ Knowledge, is there any basis for any such assertion. Except as listed
in Schedule 9.11d(2), SIGOS has not received any written notice from any third party
requesting that SIGOS enter into a license under any third-party Intellectual Property
rights. SIGOS has secured valid written assignments from all of SIGOS’s current and
former officers, managing directors, employees, consultants, freelancers and independent
contractors who were involved in, or who contributed to, the creation or development of
any SIGOS-Owned IP Rights, of the rights to such contributions that may be owned by such
persons or that SIGOS does not already own by operation of law. No current or former
officer, managing director, employee, consultant, freelancer or independent contractor
of SIGOS has any right, license, claim or interest whatsoever in or with respect to any
SIGOS IP Rights, in particular claims under the German Act on Employee Inventions
(Arbeitnehmererfindungsgesetz) or any comparable act under other jurisdictions which
remains unsettled. No current or former officer, managing director, employee,
consultant, freelancer or independent contractor of SIGOS can claim the transfer of any
rights whatsoever (such as the ownership in Intellectual Property or applications for
Intellectual Property) with respect to inventions made by the respective person under
the German Act on Employee Inventions or under any other applicable law or agreement.
	 
	 	e.	 	No current or former officer, managing director, employee, consultant, freelancer
or independent contractor of SIGOS: (i) is in material violation of any term or covenant
of any employment contract, patent disclosure agreement, invention assignment agreement,
non-disclosure agreement, noncompetition agreement or any other contract or agreement
with any other party by virtue of such employee’s, consultant’s, freelancer’s or
independent contractor’s being employed by, or performing services for, SIGOS or using
trade secrets or proprietary information of others without permis-





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	 	 	 	sion; or (ii) has
developed any technology, software or other copyrightable, patentable, or otherwise
proprietary work for SIGOS that is subject to any agreement under which such employee,
consultant, freelancer or independent contractor has assigned or otherwise granted to
any third party any rights (including without limitation Intellectual Property) in or to
such technology, software or other copyrightable, patentable or otherwise proprietary
work. Neither the employment of any officer or managing director of SIGOS and, the
employment of any other employee of SIGOS nor the use by SIGOS of the services of any
consultant, freelancer or independent contractor subjects SIGOS to any liability to any
third party for improperly soliciting such employee or consultant, freelancer or
independent contractor to work for SIGOS, whether such liability is based on contractual
or other legal obligations to such third party.
	 
	 	f.	 	SIGOS has not interfered with, infringed upon, misappropriated, or violated any
Intellectual Property of third parties, which interference, infringement,
misappropriation or violation would result in a material liability, and none of the
Sellers or the directors and officers of SIGOS has ever received any charge, complaint,
claim, demand, or notice alleging any such interference, infringement,
misappropriation, or violation (including any claim that SIGOS must license or refrain
from using any Intellectual Property of any third party). To Sellers’s Knowledge, no
third party has interfered with, infringed upon, misappropriated, or violated any
Intellectual Property of SIGOS.
	 
	 	g.	 	SIGOS has taken all necessary and appropriate steps to protect and preserve the
confidentiality of all confidential or proprietary information included in SIGOS IP
Rights (“Confidential Information”). All use, disclosure or appropriation of material
Confidential Information owned by SIGOS by or to a third party has been pursuant to the
terms of a written agreement between SIGOS and such third party.
	 
	 	h.	 	SIGOS Products sold, licensed, leased or delivered by SIGOS to customers and all
services provided by or through SIGOS to customers on or prior to the Closing Date
conform in all material respects to applicable contractual commitments, express and
implied warranties, product or service specifica-





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	 	 	 	tions, documentation, packaging,
advertising and marketing materials and to any representations provided to customers.
SIGOS has documented all material bugs, errors and defects that it is aware of in all
SIGOS Products, and such documentation is retained and is available internally at SIGOS.
	 
	 	i.	 	Except as disclosed in Schedule 9.11i, no government funding, facilities of a
university, college, other educational institution or research center, or funding from
third parties (other than funds received in consideration for capital stock of SIGOS)
was used in the development of the SIGOS Products or Services. No current or former
employee, consultant or independent contractor of SIGOS, who was involved in, or who
contributed to, the creation or development of any SIGOS IP Rights, has performed
services for the government, university, college, or other educational institution or
research center during a period of time during which such
employee, consultant or independent contractor was also performing services for SIGOS.
	 
	 	j.	 	Except as disclosed in Schedule 9.11j(1), SIGOS has not collected any personally
identifiable information from any third parties. SIGOS has provided adequate notice of
its privacy practices in its privacy policy or policies, which policy or policies (and
the periods such policy or policies have been in effect) are set forth in Schedule
9.11j(2). SIGOS’s privacy policy is and has been available on the SIGOS Website (as
defined below) at all times during the periods indicated on Schedule 9.11j(3). SIGOS’s
privacy practices conform, and at all times have conformed, in all material respects to
its privacy policy. SIGOS has complied with all Applicable Laws relating to (i) the
privacy of users of the SIGOS Products and Services and all internet websites owned,
maintained or operated by SIGOS (the “SIGOS Websites"), and (ii) the collection, storage
and transfer of any personally identifiable information collected by SIGOS or by third
parties having authorized access to SIGOS’ records. SIGOS’s privacy policy conforms, and
at all times has conformed, to all of SIGOS’ contractual commitments to its customers
and the viewers of the SIGOS Websites. Each SIGOS Website and all materials distributed
or marketed by SIGOS have at all times made all disclosures to users or customers
required by applicable law, and none of such disclosures made or contained in any SIGOS
Website or in any such





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	 	 	 	materials have been inaccurate, misleading or deceptive or in
violation of any applicable law. No claims have been asserted or, to the Sellers’
Knowledge, are threatened against SIGOS by any person or entity alleging a violation of
such person’s or entity’s privacy, personal or confidentiality rights under the privacy
policies of SIGOS. With respect to all personal and user information described in this
Section 9.11j, SIGOS has at all times taken all steps reasonably necessary (including,
without limitation, implementing and monitoring compliance with adequate measures with
respect to technical and physical security) to ensure that the information is protected
against loss and against unauthorized access, use, modification, disclosure or other
misuse. To the Sellers’ Knowledge, there has been no unauthorized access to or other
misuse of that information.
	 
	 	k.	 	Except as listed in Schedule 9.11k(1), neither SIGOS nor any other person acting
on their behalf has disclosed, delivered or licensed to any person, or agreed to
disclose, deliver or license to any person, any SIGOS Source Code (except for the
delivery and disclosure of SIGOS Source Code to a person for such person’s internal use
only). No event has occurred, and no circumstance or condition exists, that (with or
without notice or lapse of time, or both) will, or would reasonably be expected to,
result in the disclosure, delivery or license by SIGOS or any person acting on their
behalf to any person of any SIGOS Source Code (except for the delivery and disclosure of
SIGOS Source Code to a person for such person’s internal use only). Schedule 9.11k(2)
identifies each contract pursuant to which SIGOS has deposited, or is or may be required
to deposit, with an escrowholder or any other person, any of SIGOS Source Code, and
describes whether the execution of this Agreement or any of the transactions
contemplated by this Agreement, in and of itself, would reasonably be expected to result
in the release from escrow of any SIGOS Source Code. As used in this Section 9.11k,
“SIGOS Source Code” means, collectively, any human readable software source code, or any
material portion or aspect of the software source code, or any material proprietary
information or algorithm contained in or relating to any software source code, that
constitutes any SIGOS-Owned IP Rights or any other product marketed or currently
proposed to be marketed by SIGOS.





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	 	l.	 	Schedule 9.11l sets forth all software or other material that is distributed as
“free software,” “open source software,” or under a similar licensing or distribution
model (including but not limited to 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) (the
“Open Source Materials”)
used by SIGOS in any way in the SIGOS Business, and describes the manner in which such
Open Source Materials were used (such description shall include whether (and, if so,
how) the Open Source Materials were modified and/or distributed by SIGOS.
	 
	 	m.	 	SIGOS has not (i) incorporated Open Source Materials into, or combined Open
Source Materials with, the SIGOS IP Rights or SIGOS Products or Services; (ii)
distributed Open Source Materials in conjunction with any SIGOS IP Rights or SIGOS
Products or Services except as listed in Schedule 9.11m; or (iii) used Open Source
Materials that create, or purport to create, obligations for SIGOS with respect to any
SIGOS IP Rights or grant, or purport to grant, to any third party, any rights or
immunities under any SIGOS IP Rights (including, but not limited to, using any Open
Source Materials that require, as a condition of use, modification and/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) be licensed for the purpose of making derivative works, or (3) be
redistributable at no charge).





9.12 Assets of SIGOS





	 	a.	 	SIGOS is the sole and unrestricted owner (free of any third party rights) of






	 	aa.	 	all fixed assets (Anlagevermögen) which are reflected in the
Financial Statements 2005 (except for those sold in the ordinary course of
business since 01 January 2006), and all fixed assets (Anlagevermögen) which have
been acquired since 1 January 2006 (except as disclosed in Schedule 9.12a.aa); and





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	 	bb.	 	all current assets (Umlaufvermögen) except for customary retention of
title agreements (Eigentumsvorbehalte) securing the claims of suppliers of SIGOS
and except as disclosed in Schedule 9.12a.bb; and
	 
	 	cc.	 	all other assets used in the SIGOS Business but not reflected in
financial statements (other than those used on the basis of customary lease or
rental agreements).






	 	b.	 	Except as set forth in Schedule 9.12b, the assets owned and/or used by SIGOS are
in orderly and usable operating condition (except for ordinary
wear and tear) and have been properly and regularly repaired and serviced, and SIGOS
may freely dispose of such assets.





9.13 Employees and Pensions





	 	a.	 	SIGOS is in compliance in all material respects with all applicable laws, agreements
and Contracts relating to employment, employment practices, lease of employment
regulations, immigration, wages, social security, hours, and terms and conditions of
employment.
	 
	 	b.	 	A complete list of the names of all employees, officers, freelancers and
consultants of SIGOS and their current title and/or job description and base
compensation is set forth in Schedule 9.13b (1). Unless specifically mentioned in
Schedule 9.13b (2), all of the employees, officers, freelancers and consultants of SIGOS
may subject to a termination at will (i.e. there are no statutory or contractually
agreed limitations to a termination other than applicable notice period which does not
exceed 12 months). Unless specifically mentioned in Schedule 9.13b (3), none of the
employees, officers, freelancers and consultants of SIGOS is entitled to a severance
scheme, partial old-age retirement, maternity leave, parental leave. Unless specifically
mentioned in Schedule 9.13b (4), none of the employees, officers, freelancers and
consultants of SIGOS is entitled to company pension benefits, pension commitments,
bonuses, deferred compensation, profit sharing and stock options. SIGOS has completely
and properly fulfilled all contractual and statutory payments relating to pension
benefits and the





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	 	 	 	aforementioned other benefits and has properly made the necessary
provisions in full in the Financial Statements 2005.
	 
	 	c.	 	A list of all arrangements with works councils, written, implied or oral, is set
forth in Schedule 9.13c. There is no social plan or other collective severance
arrangement.
	 
	 	d.	 	SIGOS (i) is not subject to any collective bargaining agreement with respect to
any of its employees, and (ii) is not subject to any other contract, written or oral,
with any trade or labor union, employees’ association or similar organization, or (iii)
has any current labor disputes.
	 
	 	e.	 	Sellers have no knowledge that any of SIGOS’ key employees intends to leave their
employ.
	 
	 	f.	 	All of the employees of SIGOS are legally permitted to be employed by SIGOS in
Germany in their current job capacities.
	 
	 	g.	 	Except as disclosed in Schedule 9.13g, there were neither strikes by, nor
lockouts of, the employees at SIGOS in the past nor are there any at present, neither
are there legal disputes with trade unions, the works council or any other employees
representatives. This likewise applies to conciliation committee proceedings and other
legal disputes with the employees or former employees of SIGOS.
	 
	 	h.	 	Apart from the staff list and who are listed under old age part time or early
retirement schemes (“Altersteilzeit, Vorruhestand, Ruhezeit") in the list in Schedule
9.13h, there are currently no other old age part time or early retirement schemes.
	 
	 	i.	 	SIGOS has fulfilled all material regulations and provisions relating to
industrial safety.
	 
	 	j.	 	SIGOS has not used personnel leasing in a way violating current law. There are no
employment relationships with external providers of services, freelancers, consultants
or similar relationships relating to whom there is an





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	 	 	 	apparent risk of there existing an
employment relationship relevant to social insurance.
	 
	 	k.	 	There are no obligations or promises relating to an increase in remuneration or
other amendments to the contractual conditions deviating from the employment contracts
which are listed in Schedule 9.13b(1) through (4).
	 
	 	l.	 	There are no claims on the part of the Federal Labor Office (Bundesagentur für
Arbeit) relating to payment of substitute wage payments pursuant to Sec. 147a Social
Code III (SGB III).
	 
	 	m.	 	There are no claims to remuneration or other disputes with regard to employee
inventions.
	 
	 	n.	 	There are no claims arising from social plans or in-court or out-of-court
settlements with the exception of the compensation claims stated in Schedule 9.13n.
	 
	 	o.	 	 There are no claims on the part of the Federal Insurance Institution for Salaried
Employees (Bundesversicherungsanstalt für Angestellte) or health insurance funds
(Krankenkassen) to subsequent payments (Nachzahlungen) under social insurance law.
	 
	 	p.	 	SIGOS Benefit Arrangements






	 	aa.	 	Each employment, severance or other similar contract, arrangement or
policy, each employee benefit plan and each plan or arrangement (written, implied
or oral) providing for claims against SIGOS including, but not limited to
insurance coverage (including any self-insured arrangements), workers’
compensation benefits, vacation benefits, severance benefits, disability benefits,
death benefits, hospitalization benefits, retirement benefits, deferred
compensation, profit-sharing, bonuses, pensions, stock options, stock purchase or
other forms of incentive compensation or post-retirement insurance, compensation
or benefits for employees, consultants or directors that is entered into,
maintained or contributed to by SIGOS and covers any current,





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	 	 	 	or former, employee,
consultant, freelancer or director of SIGOS (hereinafter collectively referred to
as “SIGOS Benefit Arrangements”) has been maintained in compliance with its terms
and with the requirements prescribed by any and all statutes, orders, rules and
regulations that are applicable to such SIGOS Benefit Arrangement. To the Sellers’
Knowledge, there are no pending investigations by any Governmental Authority
involving a SIGOS Benefit Arrangement, and no pending claims (except for claims
for benefits payable in the normal course of operation), suits or proceedings
against any SIGOS Benefit Arrangement or asserting any rights or claims to
benefits under any SIGOS Benefit Arrangement.
	 
	 	bb.	 	No suit, administrative proceeding, action or other litigation has
been brought, or to the Sellers’ Knowledge, is threatened against or with respect
to any SIGOS Benefit Arrangement.
	 
	 	cc.	 	All contributions due from SIGOS with respect to any of SIGOS Benefit
Arrangements have been made or have been accrued on SIGOS’s financial statements
(including without limitation the Closing Financial Statements), and no further
contributions will be due and owing or will have accrued thereunder as of the
Closing Date.
	 
	 	dd.	 	All individuals who, pursuant to the terms of any SIGOS Benefit
Arrangement, are entitled to participate in any such SIGOS Benefit Arrangement,
are currently participating in such SIGOS Benefit Arrangement or have been timely
offered an opportunity to do so in writing and have failed to accept such offer.
	 
	 	ee.	 	No SIGOS Benefit Arrangement (other than life insurance arrangements
and bonus-systems) provides post-termination or retiree welfare benefits to any
person for any reason.
	 
	 	ff.	 	There has been no amendment to, written interpretation or
announcement (whether or not written) by SIGOS relating to, or change in employee
participation or coverage under, any SIGOS Benefit Arrangement that would increase
materially the expense of maintaining





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	 	 	 	such SIGOS Benefit Arrangement above the
level of the expense incurred in respect thereof during 2005.






	9.14	 	No Brokers
	 
	 	 	Neither SIGOS nor any affiliate of SIGOS is obligated for
the payment of any fees or expenses of any investment banker,
broker, finder or similar party in connection with the origin,
negotiation or execution of this Agreement or in connection with
the Acquisition or any other transaction contemplated by this
Agreement, and Purchaser will not incur any liability, either
directly or indirectly, to any such investment banker, broker,
finder or similar party as a result of, this
Agreement, the Acquisition or any act or omission of SIGOS, any of its
employees, officers, directors, shareholders, agents or affiliates.
	 
	9.15	 	Authorizations
	 
	 	 	SIGOS holds all authorizations (Genehmigungen)
of public authorities which are necessary for the
SIGOS Business as carried on as of the date hereof
and as of the Closing Date (the “Authorizations").
All Authorizations are valid and in full force
subsisting and the assignment of the Sale Shares
contemplated in this Purchase Agreement will have no
effect on the existence, duration and validity of the
Authorizations nor will it result in the cancellation
or amendment of the Authorizations. There are no
facts or circumstances that could give rise to the
amendment, cancellation, non-prolongation or
non-renewal of the Authorizations. All products and
services offered by SIGOS have been approved by any
competent public or private authority if such
approval is legally required for the production, sale
or lease of such products or the rendering of such
services, and the validity and effectiveness of such
approvals is not adversely affected by the assignment
of the Sale Shares contemplated in this Purchase
Agreement.
	 
	9.16	 	Compliance
	 
	 	 	Except as set forth in Schedule 9.16, (i) SIGOS
has always complied with all applicable domestic and
foreign laws, regulations and other legal
requirements to the extent that any violation causes
any material adverse change on the SIGOS Business it
being understood that any penalty or fine shall have
such a ma-





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	 	 	 	terial adverse change, and (ii) there have
been in the past 2 (two) years no investigations,
orders or formal decisions of any public authority
which have determined that the SIGOS Business has not
been carried on in accordance with all applicable
domestic and foreign laws, regulations and other
legal requirements, and (iii) no inquiries,
investigations or proceedings by a governmental
authority are pending or have been threatened against
SIGOS which may have a material adverse effect upon
the SIGOS Business. There are no outstanding
agreements, orders, decrees, judgements of, or
consensual arrangements with, or notices, requests or
demands from any governmental
and/or administrative, regulatory (including self-regulatory) or other authority or body
relating to SIGOS.






	 	a.	 	To the Sellers’ Knowledge, within the last 5 (five) years prior to the date
hereof, neither SIGOS nor any managing director (Geschäftsführer), any other employee of
SIGOS or any other person associated with or acting on behalf of SIGOS, has offered,
proposed, promised or made any bribe, rebate, payoff, influence payment, kickback, or
any other direct or indirect unlawful payment or other performance to officers or
employees of any governmental or public authority, customers, representatives of
customers, suppliers, representatives of suppliers, or other persons, or engaged in any
illegal reciprocal practices with customers or suppliers.
	 
	 	b.	 	Except as set forth in Schedule 9.16b SIGOS has not (i) received any governmental
subsidies or similar contributions or commitments therefor or (ii) entered into any
agreements relating to subsidies with public authorities.






	9.17	 	Litigation
	 
	 	 	SIGOS is not a party to any litigation, including labor and
arbitration proceedings, regulatory proceedings or governmental
investigation. Except as set forth in Schedule 9.17, to the
Sellers’ Knowledge, there is no such litigation or investigation
threatened or any claim (including, without being limited to,
product liability claims) asserted and, to the Sellers’
Knowledge, there is no basis for any claims not yet asserted or
governmental investigations which could, individually or in the
aggregate, reasonably be expected to have a material adverse
effect on the business, prospects, assets, condition or results
of operations of SIGOS.





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	9.18	 	Real Property Lease Contracts
	 
	 	 	Schedule 9.18 contains a true and complete list and brief description of all real property
lease contracts to which SIGOS is a party (either as lessee or as lessor)
(the “Real Property Lease Contracts") specifying the lease object (type and
location of the premises), the parties to the contract (including information
whether SIGOS is the lessee or the lessor), the annual total rent (including ancillary costs), and the notice periods with respect
to the termination of the contracts by SIGOS on the one hand and by the parties to the contracts on the other hand. SIGOS has
performed all material obligations under the Real Property Lease Contracts and is not in default with any rent or other payment
under the Real Property Lease Contracts. The terms and conditions of all Real Property Lease Contracts are at arms length.
	 
	9.19	 	Certain Transactions and Agreements
	 
	 	 	None of the managing directors (Geschäftsführer) of SIGOS or its shareholders, nor any member of
their immediate families, has any direct or indirect ownership interest (except public stock shares,
provided, however, that such holdings do not exceed five percent (5%) of the voting rights of such
publicly-held company) in any firm or corporation that competes with, or does business with, or has any
contractual arrangement with, SIGOS. None of said officers, directors or Sellers or any member of their
immediate families, is a party to, or otherwise directly or indirectly interested in, any contract (except
employment contracts) or informal arrangement with SIGOS.
	 
	9.20	 	Insurance
	 
	 	 	Schedule 9.20 lists all
insurance policies of SIGOS
effective as of the date hereof
indicating the contract parties,
the insured risk, the insurance
coverage and whether or not the
insurance will be terminated at
Closing and whether any
notification requirements upon
Closing exist. The insurance
policies listed in Schedule 9.20
have been in full force and effect, all insurance premiums due
thereon have been paid in full when due and no notice of
cancellation or termination has been issued or received by SIGOS
or the Sellers. SIGOS and the Sell-





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	 	 	ers do not have knowledge of
any threatened termination of, or material premium increase with
respect to, any of such policies.
	 
	9.21	 	Tax and Tax Returns






	 	a.	 	Filings and Payments






	 	aa.	 	All returns, documents and information which SIGOS has been required
by law to make or provide for Tax purposes have been properly prepared in
accordance with applicable laws and regulations and punctually made or provided to
the appropriate Tax authority and all such information that SIGOS has at any time
supplied to any Tax authority has been complete and true in all material respects;
	 
	 	bb.	 	SIGOS has at all times punctually paid all Taxes which have become
due and is not liable to pay any interest or penalty in connection with any claim
for Tax. SIGOS has made all payments under deduction of Tax which were required by
law to have been so made and has (if so required) accounted to the appropriate
authority for the amounts deducted;
	 
	 	cc.	 	to the extent that Taxes which relate to events that have occurred on
or before December 31, 2005 and which have not yet been due on December 31, 2005,
full provision has been made in the Financial Statements 2005; and
	 
	 	dd.	 	except as listed in Schedule 9.21a.dd, all returns which SIGOS has
made for the purposes of Tax and which relate to any period ending on or before
the Closing Date have been submitted to the appropriate Tax authority and there is
no ongoing or announced audit, review, material disagreement or dispute between it
and any taxing authority with regard to any returns or otherwise in connection
with Tax; and SIGOS is not nor has been the subject of an investigation (other
than regular routine inquiries) by any Tax authority.





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	 	b.	 	Handling of Value Added Tax.
	 
	 	 	 	SIGOS has complied in all material respects with value added Tax (Umsatzsteuer)
legislation and has made and maintained complete, correct
and up-to-date records, invoices and other documents appropriate or required for the
purpose of such legislation.
	 
	 	c.	 	Notices, Appeals etc.
	 
	 	 	 	Schedule 9.21c sets forth details of:






	 	aa.	 	all Tax returns filed concerning Taxes that have not yet been finally
assessed (nicht endgültige Steuerveranlagung) by the Tax authorities as well as
all appeals, applications, claims, disclaimers or elections made by SIGOS in
relation to any Tax;
	 
	 	bb.	 	any legal action or election vis-à-vis the Tax authorities SIGOS has
or on the Closing Date will or may have (whether alone or jointly with any other
person or persons); and
	 
	 	cc.	 	any notices, directions, consents or clearances received by SIGOS in
relation to any Tax.






	 	d.	 	Constructive Dividends (verdeckte Gewinnausschüttung)
	 
	 	 	 	SIGOS has not caused any Constructive Dividend or departure from the arm’s length
standard.






	9.22	 	Full Disclosure
	 
	 	 	None of the documents or other information (notwithstanding
whether provided in writing or orally) which have been furnished
to the Purchaser or any of its representatives or advisers in
connection with the preparation and performance of this Purchase
Agreement by the Sellers, SIGOS, its representatives or advisers
(the “Information Provided”) is false or contains any relevant
misstatement of fact or omits any relevant fact which should have
been stated in order to make the statements therein not
misleading. The Information Provided represents all the
information which has to be disclosed by a seller who is acting
in good faith





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	 	 	(keine Verletzung der Aufklärungspflicht nach Treu
und Glauben). There is no fact known to the Sellers or SIGOS
which adversely affects, or
insofar as the Sellers or SIGOS can reasonably foresee will adversely affect the business,
operations, earnings, assets, liabilities or condition of SIGOS.
	 
	10.	 	Remedies for Breach of Representations and Guarantees
	 
	10.1	 	Remedies
	 
	 	 	If and to the extent that the Sellers breach the independent
guarantees (selbständige Garantieversprechen) given in Section 9
of this Purchase Agreement, the Sellers shall be obliged (being
jointly and severally liable -Gesamtschuldner), at the Purchasers
option, either (i) to put the (1) Purchaser and/or (2) SIGOS
and/or their (3) representatives officers, directors, agents,
representatives, stockholders and employees and each person, if
any, who controls or may control the Purchaser or SIGOS ((1)
through (3) the “Indemnified Persons”) in the position in which
the Indemnified Persons would have been had the independent
guarantee (selbständiges Garantieversprechen) not been breached
(including, indemnification (Freistellung) from claims of third
parties), or (ii) to pay to the Purchaser monetary compensation
for the damages incurred by the Indemnified Persons because of
the breach of the guarantees given (Schadensersatz in Geld) and
to indemnify (freistellen) the Indemnified Persons form claims of
third party resulting from such breach.
	 
	10.2	 	Maximum Amount
	 
	 	 	The Purchaser shall be entitled to claim damages for
non-performance in the event of any breach of the provisions of
this Purchase Agreement up to a total amount in the aggregate of
the Holdback Amount, the Second Holdback Amount and the Total
Earnout Price (the “Maximum Amount”); provided, that, damages
must be satisified first through amounts specifically reserved in
the Financial Statements 2005.





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	10.3	 	Exclusion of Further Remedies and Further Liability






	 	a.	 	Except as provided otherwise herein and legally permissible, any other claims of the
Purchaser for rescission (Rücktritt), the reduction of the
Purchase Price (Minderung) and under Sections 434, 435 or 311 (2), 280 German Civil
Code (BGB) shall be excluded.
	 
	 	b.	 	The provision of Section 10.3a shall not apply to any rights and remedies for
fraud or wilful misconduct (Vorsatz).






	11.	 	Survival of Representations and Warranties and Statute of Limitations (Verjährung)
	 
	11.1	 	General
	 
	 	 	Except as otherwise provided in this Purchase Agreement, any
claim by Purchaser based on breaches of the provisions of this
Purchase Agreement shall be time-barred (verjährt) 1 year after
the Closing Date.
	 
	11.2	 	Specific Legal Matters
	 
	 	 	Claims based on a breach of Section 9.2 (Legal Matters
regarding SIGOS) or Section 2 (The Sale Shares) shall be
time-barred according to statutory law.
	 
	11.3	 	Intellectual Property Matters
	 
	 	 	All claims based on a breach of Section 9.11 (Intellectual
Property Rights) shall be limited to the Maximum Amount for one
(1) year after the Closing Date and shall be limited for an
additional eleven (11) years to the amount of the Second
Holdback.
	 
	11.4	 	Tax Matters
	 
	 	 	Claims based on a breach of Section 9.21 (Taxes and Tax
Returns) shall be time-barred (verjährt) 6 (six) months after the
respective tax assessment has become final and binding.





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	11.5	 	Suspension of the Limitation Period
	 
	 	 	The limitation of claims under Sections 11.1 to 11.2 shall
be suspended (gehemmt) for a further period of three (3) months
(commencing on the dates referred to in Sections 11.1 to 11.2
respectively) if the party from whom compensation is sought
receives a Note of Claim as set forth in Section 14.1 asserting
such claim and a justification of the claim on or prior to the
dates referred to in Sections 11.1 to 11.2 respectively. The
notice of claim must set forth a substantiated description of the
claim and an estimate of the amount involved.
	 
	12.	 	Tax Indemnifications
	 
	12.1	 	Indemnification
	 
	 	 	Notwithstanding any other provision of this Purchase
Agreement, from and after the Closing Date, the Sellers shall be
obliged (being jointly and severally liable -Gesamtschuldner), at
the Purchasers option, to idemnify the Purchaser, SIGOS and/or
any of their respective affiliates (each a “Tax Indemnified
Party” and collectively the “Tax Indemnified Parties”) against
and hold harmless from any and all liabilities, losses, damages,
claims, costs, expenses, interest, awards, judgments and
penalties (including, without limitation, reasonable fees for
counsel, accountants and other appropriate consultants) suffered
or incurred (each a “Tax Loss” and collectively, the “Tax
Losses”) arising out of Taxes of any of the Sellers, and/or SIGOS
for periods or portions thereof ending on or before the Closing
Date in excess of the amount of Taxes which are included as
current liabilities or specific tax accruals
(Steuerrückstellungen) in the Financial Statements 2005 or the
Closing Financial Statements by paying to Purchaser or, at
Purchaser’s election, any other Tax Indemnified Party, an amount
equal the respective Tax.
	 
	12.2	 	Due date.
	 
	 	 	Seller’s payment obligation pursuant to Section 12.1 shall
become due and payable on the date on which Purchaser and/or
SIGOS have effectively paid the respective Taxes or otherwise
incurred a Tax Loss.





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	12.3	 	Tax and Balance Sheet Treatment of Payments
	 
	 	 	Any payment under Section 12.1 shall be deemed and treated,
among the Parties, as repayment of the Purchase Price for tax and
balance sheet purposes.
	 
	12.4	 	Time Limitation
	 
	 	 	Any claims of any Tax Indemnified Party under Section 12.1
shall be time-barred (verjähren) 6 (six) months after the final
and binding and un-appealable assessment (endgültig
bestandskräftige Festsetzung) of the relevant Tax.
	 
	12.5	 	Tax Assessments and Tax Audits
	 
	 	 	Purchaser shall procure that the Representative is informed
in a timely manner of all tax assessments (Steuerbescheide) and
announcements of tax audits (Betriebsprüfungen) which may give
rise to a claim of any Tax Indemnified Party under Section 12.1.
Purchaser shall procure that the Representative is provided with
all relevant documents and other information reasonably required
by the Sellers to evaluate the tax assessments or tax audits and
the potential liability of the Sellers in connection therewith.
If and to the extent that tax audits of SIGOS relate to Taxes for
which the Sellers may be liable under Section 12.1, the
Representative shall at its request be given the opportunity to
instruct, at its own expense, counsel, accountants or auditors in
relation to such tax audits and to participate in meetings with
tax authorities in relation to such tax audits.
	 
	12.6	 	Defense
	 
	 	 	Purchaser shall take, and shall procure that SIGOS take,
such action as the Representative may reasonably require by
written notice to Purchaser to avoid, dispute, resist, appeal or
otherwise defend against any claim for Taxes for which
the Sellers may be liable under Section 12.1. Purchaser shall procure that any such defense
will be controlled by the Representative and that the Representative will be provided with
all relevant documents, other information and assistance reasonably required by the
Representative for the defense. The Representative shall (i) keep Purchaser informed to a
reasonable extent of the status of the defense, and (ii) comply with any reasonable requests
of Purchaser with re-





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	 	 	spect to any defense necessary to avoid a material adverse effect on
significant business interests of Purchaser or SIGOS. Purchaser and SIGOS shall
be given the opportunity to participate in the defense at their own expense
with their own counsel. No concession shall be made by Purchaser or SIGOS, and
no claim for Taxes shall be acknowledged, without the prior consent of the
Representative, which consent shall not be unreasonably withheld or delayed.
	 
	12.7	 	Limitation of Liability
	 
	 	 	Purchaser shall not have a claim under Section
12.1 to be indemnified for a Tax Loss if and to the
extent that:






	 	(i)	 	Purchaser has failed to comply with its obligations under Section 12.5 and 12.6
and such failure has affected the ability of the Representative to avoid or mitigate the
relevant Tax Loss;
	 
	 	(ii)	 	SIGOS is, as the result of an adjustment or payment giving rise to the Tax Losses
for which indemnification is sought, entitled to any benefits by refund, set-off or a
reduction of Taxes in periods after the Closing Date (e.g. in the case of a lengthening
of amortization or depreciation periods or higher depreciation allowances); or
	 
	 	(iii)	 	the relevant Taxes result from any change in the accounting or taxation
principles or practices of SIGOS (including methods of submitting tax returns)
introduced voluntarily by Purchaser or SIGOS after the Closing Date.






	13.	 	Other Indemnifications
	 
	13.1	 	Environmental
	 
	 	 	The Sellers shall be obliged (being jointly and severally
liable -Gesamtschuldner), at the Purchaser’s option, to indemnify
(freistellen) and hold harmless any Indemnified Person from an
amount equal any Environmental Liability incurred by the
Indemnified Person, respectively, which arise out of any
Environmental Contamination on the properties owned, leased or
operated by





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	 	 	SIGOS on or before the Closing Date, except if such Environmental Contamination has been caused after the Closing Date.
	 
	13.2	 	Excluded Liabilities
	 
	 	 	Schedule 13.2 sets forth the liabilities for
which neither the Purchaser nor SIGOS nor Indemnified
Persons shall be liable (the “Excluded Liabilities”).
Sellers fully indemnify (freistellen) and hold
harmless Purchaser and, at the Purchaser’s request,
the Indemnified Persons from such Excluded
Liabilities.
	 
	14.	 	Claims
	 
	14.1	 	Notice of Claims






	 	a.	 	Prior to the Release Date, Purchaser will give written notice of any claim regarding
a Damage under this Purchase Agreement (a “Notice of Claim") which Purchaser knows at
such point of time.
	 
	 	b.	 	Each Notice of Claim given pursuant to Section 14.1a will contain the
information:






	 	aa.	 	on the kind of remedy as set forth in Section 10.1 and Section 12
sought;
	 
	 	bb.	 	the amount of such Damage, which does, however, not preclude
Purchaser to increase or decrease, as the case may be, the amount of the Damage
after the delivery of such Notice of Claim; and
	 
	 	cc.	 	a brief description (to the extent reasonably available to
Indemnified Persons), of the facts, circumstances or events giving rise to the
alleged Damages.






	14.2	 	Resolution of Notice of Claim
	 
	 	 	Any Notice of Claim received by Sellers pursuant to Section
14.1 above will be resolved as follows:





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	 	a.	 	In the event that, within sixty (60) calendar days after a Notice of Claim is
received by Sellers pursuant to Section 14.1 and Sellers do not contest such Notice of
Claim in writing to Purchaser as provided in Section 14.2b (the “Uncontested Claim"),
the Sellers will be conclusively deemed to have consented to the recovery by the
Purchaser/SIGOS, Indemnified Person of the full amount of Damages specified in the
Notice of Claim in accordance with this Section 14.
	 
	 	b.	 	In the event that Sellers give the Purchaser written notice contesting all or any
portion of a Notice of Claim (the “Contested Claim"), within the sixty (60)-day period
specified in Section 14.2a, then such Contested Claim will be resolved by either (i) a
written settlement agreement executed by Indemnified Persons and the Sellers or (ii) in
the absence of such a written settlement agreement, by the dispute resolution procedures
set forth in Section 21.






	15.	  Reduction of Holdback Amount and Total Earnout Price
	 
	 	 	After an Uncontested Claim is made or a Contested Claim is resolved, each in accordance with
Section 14.2 of this Purchase Agreement, such Claim (if not cured by the Sellers prior to the
Release Date) shall be satisfied






	 	(i)	 	first by a reduction in the Holdback Amount, then by a reduction in the Second
Holdback Amount in an amount equal to the Damages; and
	 
	 	(ii)	 	if the Holdback Amount and the Second Holdback Amount are not sufficient to
satisfy the entire amount of such Damages (such unsatisfied amount of such Damages, the
“Unsatisfied Amount"), such Unsatisfied Amount shall be satisfied by a reduction in the
amount, if any, of the Total Earnout Price,






provided, however, that the amount of such satisfaction of claims is subject to the
limitations as set forth in Section 10.2.



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	16.	 	Release of Holdback Amount and Total Earnout Price.
	 
	16.1	 	Release of Remaining Holdback Amount on Release Date
	 
	 	 	On the first anniversary of the Closing Date (the “Release Date”), the Escrow Agent shall release the remaining
Holdback Amount (reduced by the amount of any entitled claims for Damages resolved prior to the Release Date), less
any amount as may be necessary to satisfy any unsatisfied or disputed entitled claims for Damages specified in any
Notice of Claim delivered to the Sellers before the Release Date.
	 
	16.2	 	Second Release Date
	 
	 	 	On the date that is 12 years following the Closing Date (the “Second Release Date”), Purchaser shall release the
Second Holdback Amount in excess of such amount thereof as may be necessary to satisfy any unsatisfied or disputed
entitled claims for Damages specified in any Notice of Claim relating to (1) infringement claims relating to remote
SIM multiplexor technology delivered to the Sellers and (2) the German patent XXXXXXXXXX.
The Second Holdback Amount may be released sooner if the Sellers provide the Purchaser, at the Sellers’ cost, with (1)
a written legal opinion of a German patent-lawyer (Patentanwalt), which is addressed to and reasonably acceptable to
the Purchaser, to the effect that the remote SIM multiplexor technology using Internet connections to be developed
after the Closing Date does not infringe published patents and (2) evidence reasonably acceptable to Purchaser that
SIGOS has the right to conduct the SIGOS Business (including the right to use the XXXXXXXXXX without limitation as to
scope or fields of use) without payment to XXXXXXXXXX. The amounts held as the Second Holdback Amount shall bear
interest at prevailing “money market” or similar bank account rates.
	 
	16.3	 	Release after the Final Determination of Revenue and Contribution Margin
	 
	 	 	Within ten (10) days after the final determination of Revenue and Contribution Margin as provided in Schedule 4.7
hereto, Purchaser shall release and pay to





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	 	 	the Sellers an aggregate amount equal to the Total Earnout Price in excess of such amount thereof as may be necessary to satisfy any unsatisfied or disputed claims for Damages specified in any Notice of Claim delivered to the Sellers.
	 
	16.4	 	Release of any Remaining Amounts
	 
	 	 	As soon as all such claims have been resolved in
accordance with the provisions of Section 16,
Purchaser shall release, if any, all remaining
Holdback and/or Total Earnout Price, and/or the
Second Holdback Amount, not required to satisfy such
Claims.
	 
	17.	 	Parent Guarantee
	 
	 	 	Keynote hereby irrevocably guarantees by way of an independent promise of guarantee pursuant
to Section 311 para. 1 BGB (selbständiges Garantieversprechen) to the Sellers any and all
obligations of the Purchaser under this Agreement. Under such guarantee, Keynote and the
Purchaser shall be jointly and severally liable (Gesamtschuldner) for any and all such
obligations of the Purchaser under this Purchase Agreement. For the avoidance of doubt, with
respect to any claim of the Sellers, Keynote shall be entitled to the same rights and
objections as the Purchaser.
	 
	18.	 	Appointment of Representative
	 
	 	 	The Sellers hereby grant to Seller 1 power of attorney to represent each of them in
connection with this Purchase Agreement (the “Representative"). Therefore, the Representative
is entitled to take all measures and to make or receive all declarations which he deems
necessary or appropriate in connection with this Purchase Agreement or any other agreement in
connection with this Purchase Agreement, including any declaration with respect to the Escrow
Account, in the name of each and all Sellers. Any action or declaration of the Representative
in connection with this Purchase Agreement shall be deemed to be made in the name of each and
all Sellers. This power of attorney of the Representative can be revoked by a joint
declaration of the Sellers only and provided that at the






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	 	 	same time the Sellers grant power of attorney with the scope as set forth in this Section 18
to another person.
	 
	19.	 	[intentionally left blank]
	 
	20.	 	Other Covenants
	 
	20.1	 	Further Co-operation
	 
	 	 	The Parties agree to co-operate fully after the date hereof
in order to consummate all the transactions intended by and/or
envisaged in the Purchase Agreement. Each Party shall take such
further actions and execute such documents as are reasonably
necessary to consummate the transactions intended by and/or
contemplated in the Purchase Agreement.
	 
	20.2	 	Announcements
	 
	 	 	After the Closing Date, Purchaser or Keynote may issue a
press release approved by both Parties announcing the
transaction. Purchaser or Keynote may issue such press releases,
and make such other disclosures regarding the transaction, as it
determines are required under applicable securities laws or
regulatory rules. Prior to the publication of such mutually
agreed press release, neither Party or Keynote will make any
public announcement relating to this Agreement or the
transactions contemplated hereby (except as may be required by
law).
	 
	20.3	 	Right to the Name “SIGOS”
	 
	 	 	All rights of Sellers with respect to the company name
“SIGOS”, if any, are sold and transferred to the Purchaser under
this Purchase Agreement. The Sellers hereby undertake to refrain
from using the name “SIGOS” in the future.





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	21.	 	Dispute Resolution
	 
	21.1	 	Dispute Resolution
	 
	 	 	If the Parties and Keynote ever have a dispute involving
their respective rights and obligations under this Purchase
Agreement other than disputes to be resolved pursuant to Section
8.3, then the Parties and Keynote will resolve such dispute as
provided for in this Section 21.






	 	a.	 	Dispute Notice
	 
	 	 	 	Either party may at any time deliver to the other a written dispute notice setting
forth a brief description of the issues for which such notice initiates the dispute
resolution mechanism set forth in this Section 21. Such dispute notice shall also
specify the provision or provisions of this Purchase Agreement and the facts or
circumstances that are the subject matter of the dispute.
	 
	 	b.	 	Informal Negotiations
	 
	 	 	 	During the 60-day period following delivery of a dispute notice described in Section
21.1a, the parties will cause their representatives to meet and seek to resolve the
disputed items cordially through informal negotiations.
	 
	 	c.	 	Arbitration
	 
	 	 	 	If representatives of the parties are unable to resolve disputed items through the
informal negotiations within the 60-day period described in Section 21.1b then the
parties will refer the disputed issues to arbitration for final resolution as follows:
	 
	 	 	 	Any disputes under this Purchase Agreement or any ancillary agreement be submitted to
binding arbitration by a panel of three arbitrators under the rules of the
International Chamber of Commerce, ICC International Court of Arbitration, 1212 Avenue
of the Americas, New York, NY 10036-1689, USA with such arbitration to be heard in New
York, USA. Each party shall be permitted to select one arbitrator, and the third
arbitrator shall be se-





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filed separately with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portion.










 



57


	 	 	 	lected by the arbitrators chosen by the parties. Any disputes based on alleged
fraudulent conduct or willful misrepresentation on behalf of SIGOS or any of its
stockholders that seek a recovery of amounts that exceed the amount of the Holdback and
the amount of the Earnout Payment not yet paid shall be brought in the courts of
Germany, located in Frankfurt or Munich. Any disputes based on alleged fraudulent
conduct or willful misrepresentation on behalf of Purchaser that seek a recovery of
amounts that exceed the amount of the Holdback and the amount of the Earnout Payment
not yet paid shall be brought in the courts of the State of California.






	21.2	 	Provisional Relief
	 
	 	 	Nothing contained in this Section 21 shall be construed to
limit or preclude a party from bringing any action in any court
of competent jurisdiction for injunctive or other provisional
relief to compel the other party to comply with its obligations
hereunder at any time.
	 
	22.	 	General Provisions
	 
	22.1	 	Language
	 
	 	 	This Purchase Agreement is made in, and shall be construed
in accordance with, the English language (other than the
Schedules 5.9a, 5.9b and 6.3f and those Schedules in German with
respect to which English translations are not attached hereto).
In the event of a conflict between English terms and German terms
immediately following in italics and in parenthesis in this
Purchase Agreement, the German terms shall prevail.
	 
	22.2	 	Governing Law
	 
	 	 	This Purchase Agreement shall be governed by and interpreted
exclusively in accordance with the laws of the Federal Republic
of Germany to the exclusion of its conflict-of-laws provisions
and the Convention on Contracts for the International Sale of
Goods.






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filed separately with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portion.










 



58


	22.3	 	Liability of Sellers
	 
	 	 	The Sellers are jointly and severally liable for their
obligations under this Purchase Agreement (gesamtschuldnerische
Haftung).
	 
	22.4	 	Expenses
	 
	 	 	Except as otherwise specifically set forth in this Purchase
Agreement, the Parties hereto shall bear their respective
expenses incurred with the preparation, execution and performance
of the Purchase Agreement and the transactions contemplated
therein, including all fees and expenses of their advisors (the
“Transaction Expenses"), however, if the transaction contemplated
herein closes any unpaid Transaction Expenses of SIGOS shall be
paid by the Sellers. The Purchaser shall bear the costs for the
notarization of this Purchase Agreement provided such cost does
not exceed EUR 40,000.00; any amount in excess of EUR 40,000.00
shall be borne by the Sellers.
	 
	22.5	 	Partial invalidity
	 
	 	 	If one of the provisions of the Purchase Agreement is or
becomes invalid or unimplementable, this shall not affect the
validity of the remaining provisions. The Parties shall modify to
the extent necessary or replace the invalid or unimplementable
provision so that the effect of the modified or new provision
corresponds as closely as possible with the intended effect of
the invalid or unimplementable provision.
	 
	22.6	 	Amendments
	 
	 	 	Any amendment or addition to the Purchase Agreement must be
executed in writing, unless notarization is required. This also
applies regarding the amendment of this clause.
	 
	22.7	 	Business Day
	 
	 	 	“Business Day” shall be the days on which banks are open for
business in Frankfurt am Main, Germany.





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filed separately with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portion.










 



59


	22.8	 	List of Schedules
	 
	 	 	The List of Schedules in Schedule 22.8 sets forth all
Schedules to this Purchase Agreement, each of which forms an
integral part of this Purchase Agreement.
	 
	22.9	 	Entire Agreement
	 
	 	 	This Purchase Agreement sets out the entire agreement and
understanding between the Parties and Keynote with respect to the
subject matter hereof and supersedes any and all earlier and
contemporaneous agreements, either orally or in writing, between
the Parties and Keynote.
	 
	22.10	 	Notices and Communications
	 
	 	 	Any notice or other communication under the Agreement shall be effected in the English
language and in writing and shall be (i) delivered personally against confirmation of receipt
or (ii) sent by “registered mail return receipt requested” or (iii) by internationally
recognized courier service or (iv) transmitted by telefax to the parties at the following
addresses (or to such other party or person and/or such other address as shall be specified
by like notice from the party to which notice or other communication shall be given
originally, provided, however, that such notice or a change of party and/or address shall be
effective only upon receipt thereof):






	 	a.	 	if to the Sellers or any individual Seller




Seller 1, Johannes Reis

XXXXXXXXXX


with a copy to:


Rechtsanwälte Billmann & Schneider

Attn: Dieter Billmann

Sigmundstr. 155

90431 Nürnberg

Fax: +49 911 6106938



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filed separately with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portion.











 



60





	 	b.	 	if to Purchaser




Keynote Germany Holding GmbH

Attention: Umang Gupta, Managing Director

Stresemannstrasse 79

70469 Stuttgart



with a copy to:



Rechtsanwälte Gleiss Lutz

Attn: Dr. Christian Cascante

Maybachstr. 6

70469 Stuttgart

Fax: +49 71 855096




***




C.

COUNTERPARTS (AUSFERTIGUNGEN)

OF THIS DEED / COPIES



It is requested that there be issued of this deed:





	a)	 	for the Sellers nine counterparts,
	 
	b)	 	for the Purchaser four counterparts,




in each case to be provided to the respective person appearing.



Each party may at any time request the issuance of further counterparts and copies.




(continued on next page)




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61



IN WITNESS THEREOF this Notarial Deed including the Schedules and Exhibits hereto — with the
exception of certain balance sheets and other financial statements, lists of items, titles, rights
and obligations contained in Schedules 9.4, 9.6, 9.8, 9.10.a.aa, 9.10.a.cc, 9.10.b.aa, 9.10.b.bb,
9.11.b, 9.11.b.dd, 9.11.c, 9.11.d(1), 9.11.l, 9.13.b(1), 9.13.b(2), 9.13.b(3), 9.13.b.(4), 9.13.c,
9.18, 9.20, 9.21.a.dd and 9.21.c in respect of which the persons appearing waived the right to have
them read aloud and which instead have been presented to the persons appearing, were acknowledged
and signed on each page by the persons appearing — has been read aloud to the persons appearing
(but Schedules 5.9.a, 5.9.b and 6.3.f only in the German language) and this Notarial Deed including
its Schedules and Exhibits was confirmed and approved by the persons appearing. The persons
appearing then signed this Deed. All this was done at the day herebelow written in the presence of
me, the Notary Public, who also signed this Deed and affixed my official Seal.



Basel, this 30th (thirtieth) day of March 2006 (two thousand and six)




	 	 	 
	 

	 	  /Matthias Muller/
	 

	 	 
	 
	 	 
	 

	 	  /Helmut Friedel/
	 

	 	 
	 
	 	 
	 

	 	  /Johannes Reis/
	 

	 	 
	 
	 	 
	 

	 	  /s/ Dr. Dieter Gränicher/
	 

	 	 





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filed separately with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portion.





A. Prot. 2006/35









 







Schedule 1

Definitions



The terms listed hereinafter in alphabetical order shall have the following meaning:




	 	 	 
	Baumgartner und Kollegen Audit Report

	 	Shall have the meaning set out
in Section B.8.1
	 
	 	 
	Adjustment Amount

	 	Shall have the meaning set out
in Section B.4.2
	 
	 	 
	Authorizations

	 	Shall have the meaning set out
in Section B.9.15
	 
	 	 
	Business Day

	 	Shall have the meaning set out
in Section B.22.7
	 
	 	 
	Closing

	 	Shall have the meaning set out
in Section B.6.1
	 
	 	 
	Closing Date

	 	Shall have the meaning set out
in Section B.6.1
	 
	 	 
	Closing Declaration

	 	Shall have the meaning set out
in Section B.6.1
	 
	 	 
	Closing Financial Statements

	 	Shall have the meaning set out
in Section B.8.3
	 
	 	 
	Confidential Information

	 	Shall have the meaning set out
in Section B.9.11g
	 
	 	 
	Constructive Dividend (verdeckte

Gewinnausschüttung)

	 	has the meaning provided for in
Section 8 para 3 of the German
Corporate Income Tax Act
(Körperschaftssteuergesetz) and
as interpreted by the relevant
case law of the German Tax
courts (Finanzgerichte) and the
Federal Fiscal Court
(Bundesfinanzhof) and the
practice of the German Tax
authorities as from time to time
amended and modified






 









 






	 	 	 
	Contested Claim

	 	Shall have the meaning set out
in Section B.14.2b
	 
	 	 
	Contribution Margin

	 	Shall have the meaning set out
in Schedule B.4.7
	 
	 	 
	Critical Contracts

	 	Shall have the meaning set out
in Section B.9.10
	 
	 	 
	Damage

	 	shall mean any damage in the
common meaning.
	 
	 	 
	Draft Closing Financial Statement

	 	Shall have the meaning set out
in Section B.8.1
	 
	 	 
	Earnout Period

	 	Shall have the meaning set out
in Schedule B.4.7
	 
	 	 
	Earnout Price

	 	Shall have the meaning set out
in Section B.4.7
	 
	 	 
	Effective Date

	 	Shall have the meaning set out
in Section B.3.2
	 
	 	 
	Employment Agreements

	 	Shall have the meaning set out
in Section B.6.3e.aa
	 
	 	 
	Environmental Contamination

	 	Means any pollutants,
contaminants or other hazardous
materials that are existing in
the soil, groundwater, surface
water or in buildings and are
required to be cleaned up or
contained pursuant to any
Environmental Law applicable to
the relevant property.
	 
	 	 
	Environmental Law

	 	Means any legal requirements
relating to pollution or
protection of human health or
the environment including any
law or regulation relating to
emissions, discharges, releases
or threatened releases of
materials or environmental
concern or otherwise relating to
the manufacturing, processing,






 









 






	 	 	 
	 

	 	distribution, use, treatment,
storage, disposal, transport or
handling of materials of
environmental concern
	 
	 	 
	Escrow Agent

	 	Shall have the meaning set out
in Section B.4.4
	 
	 	 
	Excluded Liabilities

	 	Shall have the meaning set out
in Section B.13.2
	 
	 	 
	German GAAP

	 	Shall have the meaning set out
in Section B.8.1
	 
	 	 
	Hazardous Materials

	 	Means any pollutant, contaminant, waste or chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substance or material
	 
	 	 
	Holdback Amount

	 	Shall have the meaning set out
in Section B.4.4
	 
	 	 
	Indemnified Persons

	 	Shall have the meaning set out
in Section B.10.1
	 
	 	 
	Initial Purchase Price

	 	Shall have the meaning set out
in Section B.4
	 
	 	 
	Intellectual Property

	 	shall mean any intellectual
property in the common meaning.
	 
	 	 
	Keynote

	 	Keynote Systems Inc., a
corporation established under
the laws of Delaware, USA,
registered office at 15 East
North Street, City of Dover,
County of Kent, Delaware, USA
	 
	 	 
	Material Adverse Change

	 	The business has been conducted
in the ordinary course with the
due care of a prudent business
man and no events, conditions or
circumstances have occurred
which individually or in the
aggregate have






 









 






	 	 	 
	 

	 	had or will have
a material adverse effect on the
conditions (financial or
otherwise), business activities
and operations, the assets
(including intangible assets
such as intellectual property),
the net worth or the financial
and earnings position and
prospects of SIGOS.
	 
	 	 
	Material Contracts

	 	Shall have the meaning set out
in Section B.9.8a
	 
	 	 
	Materials of Environmental Concern

	 	Include chemicals, pollutants,
contaminants, wastes, asbestos,
toxic substances, petroleum and
petroleum products and any other
substance that is currently
regulated by an environmental
law or that is otherwise a
danger to health, reproduction
or the environment
	 
	 	 
	Non-Competition Agreements

	 	Shall have the meaning set out
in Section B.6.3e.bb
	 
	 	 
	Non-Disclosure Agreement

	 	Shall have the meaning set out
in Section B.19
	 
	 	 
	Notice of Claims

	 	Shall have the meaning set out
in Section B.14.1
	 
	 	 
	Other Contracts

	 	Shall have the meaning set out
in Section B.9.9
	 
	 	 
	Party/Parties

	 	Shall mean Sellers and/or Purchaser individually or jointly
	 
	 	 
	Principal Amount 1

	 	Shall have the meaning set out
in Section B.4.3a
	 
	 	 
	Principal Amount 2

	 	Shall have the meaning set out
in Section B.4.3b






 









 






	 	 	 
	Principal Amount 3

	 	Shall have the meaning set out
in Section B.4.3c
	 
	 	 
	Principal Amount 4

	 	Shall have the meaning set out
in Section B.4.3d
	 
	 	 
	Principal Amount 5

	 	Shall have the meaning set out
in Section B.4.3e
	 
	 	 
	Principal Amount 6

	 	Shall have the meaning set out
in Section B.4.3f
	 
	 	 
	Principal Amount 7

	 	Shall have the meaning set out
in Section B.4.3g
	 
	 	 
	Principal Amounts

	 	Shall have the meaning set out
in Section B.4.3g
	 
	 	 
	Purchase Agreement

	 	Shall have the meaning set out
in the Preamble
	 
	 	 
	Purchaser

	 	Shall mean Keynote Germany Holding GmbH
	 
	 	 
	Purchaser Bank Account

	 	Shall have the meaning set out
in Section B.4.5b
	 
	 	 
	Real Property Lease Contracts

	 	Shall have the meaning set out
in Section B.9.18
	 
	 	 
	Release Date

	 	Shall have the meaning set out
in Section B.16.1
	 
	 	 
	Representative

	 	Shall have the meaning set out
in Section B.17.
	 
	 	 
	Revenue

	 	Shall have the meaning set out
in Schedule B.4.7.
	 
	 	 
	Sale Shares

	 	Shall have the meaning set out
in Section B.2






 









 






	 	 	 
	Second Holdback Amount

	 	Shall have the meaning set out
in Section B.4.4
	 
	 	 
	Second Release Date

	 	Shall have the meaning set out
in Section B.16.2
	 
	 	 
	Seller 1

	 	Shall mean Johannes Reis
	 
	 	 
	Seller 2

	 	Shall mean Helmut Friedel
	 
	 	 
	Seller 3

	 	Shall mean Erich Weikert
	 
	 	 
	Seller 4

	 	Shall mean Johann Banken
	 
	 	 
	Seller 5

	 	Shall mean Adil Kaya
	 
	 	 
	Seller 6

	 	Shall mean Martin Löhlein
	 
	 	 
	Seller 7

	 	Shall mean Norbert Neumeister
	 
	 	 
	Sellers Bank Account

	 	Shall have the meaning set out
in Section B.4.5B.4.5a
	 
	 	 
	Sellers’ Knowledge

	 	Shall mean he actual knowledge
of each Seller after reasonable
inquiry by such Seller.
	 
	 	 
	Shareholder Damage

	 	Shall have the meaning set out
in Section B.14.1
	 
	 	 
	SIGOS IP Rights Agreements

	 	Shall have the meaning set out
in Section B.9.11b
	 
	 	 
	SIGOS-Licensed IP Rights

	 	means SIGOS IP Rights that are
not SIGOS-Owned IP Rights and
that are licensed to SIGOS by a
third party on a non-exclusive
basis.
	 
	 	 
	SIGOS-Owned IP Rights

	 	means SIGOS IP Rights that are
owned or exclusively licensed to
SIGOS






 









 






	 	 	 
	Tax

	 	shall mean any tax in the common
meaning.
	 
	 	 
	Total Earnout Price

	 	Shall have the meaning set out
in Section B.4.7
	 
	 	 
	Total Purchase Price

	 	Shall have the meaning set out
in Section B.4
	 
	 	 
	Total SIGOS Assets

	 	Shall have the meaning set out
in Section B.4.2
	 
	 	 
	Total SIGOS Liabilities

	 	Shall have the meaning set out
in Section B.4.2
	 
	 	 
	Transaction Expenses

	 	Shall have the meaning set out
in Section B.22.4
	 
	 	 
	Transfer

	 	Shall mean the transfer and
acquisition of the Sale Shares
from the Sellers to the
Purchaser.
	 
	 	 
	Uncontested Claim

	 	Shall have the meaning set out
in Section B.14.2a
	 
	 	 
	Unsatisfied Amount

	 	Shall have the meaning set out
in Section B.15







 










 







CONFIDENTIAL TREATMENT REQUESTED




Schedule 4.7




Earnout Schedule




     1. Certain Definitions. As used in this Schedule A, the following terms have the
meanings set forth below. Capitalized terms used herein and not otherwise defined herein shall
have the meanings given such terms in that certain Agreement for the Sale and Purchase and Transfer of All Shares in
SIGOS Systemintegration GmbH (the “Agreement”), dated March 30, 2006, by and among Keynote
Germany Holding GmbH, a German limited liability company (“Keynote”) and the Sellers (as defined in
the Agreement).



     “Business Unit” means the business unit of Keynote that will, after the Closing, consist of
the business SIGOS.



     “Contribution Margin” means, with respect to any applicable period, XXXXXXXXXX.



     “Direct Expenses” means, the expenses related to the Business Unit, including




	 	(i)	 	All compensation-related expenses, including payroll taxes,
insurance costs and commissions/bonuses, if any, of all employees working
directly in the Business Unit;
	 
	 	(ii)	 	All facilities-related expenses incurred by Keynote for housing
employees and/or data center equipment in Germany or elsewhere, which are
specifically a part of the Business Unit;
	 
	 	(iii)	 	Sales commissions paid out to Keynote field salespeople (NAMs)
for selling the Business Unit’s products and services, which for this
calculation shall be XXXXXXXXXX;
	 
	 	(iv)	 	Cost of revenues of the Business Unit associated with its
products and services including but not limited to XXXXXXXXXX, and including
any value-added taxes;
	 
	 	(v)	 	Miscellaneous operating expenses incurred directly by the
Business Unit including but not limited to on-going travel and entertainment
expenses, marketing programs, trade shows, sales collateral development etc;
and
	 
	 	(vi)	 	Other costs that are mutually agreed to by both parties.





     Direct Expenses shall not include:




     (A) expenses related to amortization of intangible assets required to be
incurred by Keynote that is associated with the acquisition of SIGOS by Keynote;



 









 






     (B) allocations of Keynote corporate overhead expenses such as XXXXXXXXXX not
directly attributable to the Business Unit;




     (C) Direct Expenses, described above, for Keynote Wireless Perspective, and
other mobile/wireless business units acquired by Keynote during the Earnout Period;
and




     (D) corporate taxes and trade taxes on pre-tax income, as defined by German
GAAP.



     “Earnout Period” means XXXXXXXXXX.



     “Revenue” means, revenue that is attributable to the products and services of the SIGOS
Business Unit that could be XXXXXXXXXX and subject to the following:




     (i) Revenues shall not include XXXXXXXXXX;




     (ii) Revenues shall not include XXXXXXXXXX;




     (iii) Revenues shall not include XXXXXXXXXX;




     (iv) Revenues will not include XXXXXXXXXX; and




     (v) Revenues will not include XXXXXXXXXX.



     2. Payment of Earnout. If both (A) Revenue for the Earnout Period is XXXXXXXXXX, and
(B) Contribution Margin for the Earnout Period is XXXXXXXXXX, then the total Earnout Payment shall
equal XXXXXXXXXX, subject to the following:



          (a) If the Contribution Margin for the Earnout Period is XXXXXXXXXX, the Total Earnout amount
shall be XXXXXXXXXX; and




          (b) If, for XXXXXXXXXX financial quarters during the Earnout Period, the Contribution Margin
is XXXXXXXXXX, the Total Earnout Amount shall be XXXXXXXXXX.



The symbol “XXXXXXXXXX” is used to indicate that a portion of the exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.