1.6(a)
Launch Contingency Date
2.3(a)
Launch Contingent Payment
2.3(a)
Launch Milestone
2.3(a)
Lease Agreements
3.13(b)
Leased Real Property
3.13(b)
Letter of Transmittal
1.8(c)
Lien
1.6(a)
Liens
1.6(a)
Listener Count
2.2
Loss
8.2(a)
Losses
8.2(a)
Material Adverse Effect
1.6(a)
Material Contract
3.15(a)
Material Contracts
3.15(a)
Maximum Inventory Contingent Consideration
2.2
Maximum Revenue Contingent Consideration
2.2
Merger
Recitals
Merger Consideration
1.6(a)
Modified Agreements
6.13
Non-Competition Agreements
6.18
Non-Disclosure Agreement
1.6(a)
Notices
6.14
Objection Deadline
8.4(a)(iv)
Objection Notice
8.4(a)(iii)
Offer Letter
6.16(a)
Officer's Certificate
8.4(a)(i)
Officer Release Letter
6.20
Open Source Materials
3.14(t)
Parent
Preamble
Parent (for purposes of Article II)
2.2
Parent Charter Documents
4.3
Parent Disclosure Schedule
Article IV
Parties
2.2
Party
2.2
Payable Claim
8.5(c)
Payable Contingent Payment
8.5(b)
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-viii-
INDEX OF DEFINED TERMS
(continued)
Term
Section Reference
in Agreement
Payable Overage
2.6(e)
Payment Adjustment Fund
2.1(e)
Payment Dispute Report
2.6(a)
Payment Overage
2.4(b)(iii)
PBGC
3.22(a)
Pension Plan
3.22(a)
Person
1.6(a)
Plans
1.6(a)
Products
3.14(a)
Programming Automation Customer
3.26(a)
Pro Rata Portion
1.6(a)
Proxy
Recitals
PTO
3.14(b)
[***]
2.2
[***]
2.2
Radio Spot
2.2
Registered Intellectual Property
3.14(a)
Related Agreements
1.6(a)
Representative
2.5(b)
Requisite Stockholder Vote
3.4
Resolved Claims
8.4(b)(iii)
Returns
3.11(b)(i)
Revenue Contingency Payment
2.2
Revenue Contingency Report
2.4(b)(i)
Revenue Payment Period
2.2
Revenue Reference Amount
2.2
RevenueSuite Agreement
3.15(a)(xiv)
RevenueSuite Customer
3.26(a)
Review Request
2.5(a)
Ryan
2.7(e)(ii)
Securityholder Agreement
Recitals
Settled Claims
8.4(b)(i)
Settlement Memorandum
8.4(b)(i)
Shrink-Wrap Code
3.14(a)
Source Code
3.14(a)
Spreadsheet
6.23
Standard Form Agreements
3.14(i)
Statement of Expenses
6.22
Stockholder
1.6(a)
Stockholder Representative
Preamble
Stockholder Representative Expense
8.8(b)
Sub
Preamble
Subsidiaries
3.3
Subsidiary
3.3
Subsidiary Organizational Documents
3.3
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-ix-
INDEX OF DEFINED TERMS
(continued)
Term
Section Reference
in Agreement
Survival Date
8.1
Surviving Corporation
1.1
Tax
3.11(a)
Taxes
3.11(a)
Technology
3.14(a)
Terminated Agreements
6.12
Terrestrial Broadcast Radio
2.2
Third Party Claim
8.7
Third Party Expense Adjustment Amount
1.6(a)
Third Party Expenses
6.22
Third Party Expense Cap
1.6(a)
Total Outstanding Capitalization
1.6(a)
Unagreed Barter Transaction
2.2
Unobjected Claim
8.4(a)(iv)
Unresolved Claim
8.5(c)
WARN
3.22(a)
Warrantholder
1.6(a)
Written Consent
Recitals
Written Decision
8.4(b)(iii)
Year-End Financials
3.7
* * * * *
-x-
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered into as
of January 16, 2006 by and among Google Inc., a Delaware corporation ("Parent"),
Enumclaw, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent
("Sub"), dMarc Broadcasting, Inc., a Delaware corporation (the "Company"), and
with respect to Article VIII, Article IX and Article X hereof only, H. Richard
Dallas as stockholder representative (the "Stockholder Representative"), and
U.S. Bank, National Association as Escrow Agent.
RECITALS
A. The Boards of Directors of each of Parent, Sub and the Company believe