Exhibit 10.1

EXECUTION COPY

STOCK PURCHASE AGREEMENT

by and among

ROCKET GAMES, INC.,

the SELLERS party hereto,

SHAREHOLDER REPRESENTATIVE SERVICES LLC,
as SELLERS’ REPRESENTATIVE,

and

PENN INTERACTIVE VENTURES, LLC

Dated as of July 28, 2016

TABLE OF CONTENTS

i

ii

EXHIBITS AND SCHEDULES

Exhibits:

Schedules:

Key Employees Schedule

Third-Party Approvals Schedule

Specific Indemnity Schedule

Net Working Capital Schedule

Permitted Liens Schedule

2016/2017 Operating Budget

Open Positions Schedule

iii

STOCK PURCHASE AGREEMENT

This STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of July 28, 2016, by and among Rocket Games, Inc., a Delaware corporation (the “Company”), each of the Persons listed on the signature pages hereto (each a “Seller” and together, the “Sellers”), Shareholder Representative Services LLC, a Colorado limited liability company solely in its capacity as the representative of the  Sellers (the “Sellers’ Representative”), and Penn Interactive Ventures, LLC, a Delaware limited liability company (“Buyer”).  Capitalized terms used herein and not otherwise defined herein shall have the meaning given such terms in Article I.

A.            The Sellers are the record and beneficial owners of all the issued and outstanding shares of Capital Stock of the Company as of immediately prior to the Closing (collectively, the “Shares”).

B.            On the terms and subject to the conditions set forth in this Agreement, Buyer desires to purchase from the Sellers, and the Sellers desire to sell and transfer to Buyer, all of the Shares (the “Share Sale”).

C.            Simultaneously with the Share Sale, each outstanding Company Option shall terminate and be cancelled as of the Closing and each Option Holder who is a holder of In-the-Money Vested Options immediately prior to the Closing shall be entitled to payment in cash pursuant to the terms and subject to the conditions set forth in this Agreement (the “Option Payout”).  Each Option Holder who is a holder of a Company Option which is not an In-the-Money Vested Option immediately prior to the Closing shall not be entitled to receive any payment therefor, and each such Company Option shall be terminated and of no further effect (the “Option Cancellation”).

D.           The Board of Directors of the Company has approved the Share Sale, the Option Payout and the Option Cancellation.

E.            As a condition and material inducement to Buyer’s willingness to enter into this Agreement, concurrently with the execution and delivery of this Agreement, the employees of the Company listed on the Key Employees Schedule attached hereto (the “Key Employees”) have entered into and delivered a Key Employee Hire Package, each to become effective at the Closing.

F.             In consideration of the mutual covenants, agreements and understandings contained herein and intending to be legally bound, the parties hereto hereby agree as follows:

ARTICLE I

CERTAIN DEFINITIONS

1.1                    Definitions.  For purposes of this Agreement, the following terms have the following meanings set forth below:

“2014 Financial Statements” means the unaudited balance sheet and statement of profit and loss of the Company as of and for the year ended December 31, 2014.

“2015 Financial Statements” means the unaudited balance sheet and statement of profit and loss of the Company as of and for the year ended December 31, 2015.

“280G Approval” has the meaning set forth in Section 3.1(p).

“280G Shareholder Approval” has the meaning set forth in Section 4.11.

“409A Plan” has the meaning set forth in Section 5.19(e).

“Adjustment Calculation Time” means 11:59 p.m. (San Francisco, California time) on the day immediately preceding the Closing Date.

“Advisory Group” has the meaning set forth in Section 8.5(e).

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person.  For purposes of this definition, “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and such “control” will be presumed if any Person owns 10% or more of the voting capital stock or other ownership interests, directly or indirectly, of any other Person.  For purposes of this Agreement, the Sellers shall not be deemed to be an Affiliate of Buyer or the Company after the Closing.

“Affiliated Group” means any affiliated group as defined in Section 1504 of the Code (or any analogous or similar combined, consolidated or unitary group under state, local or non-U.S. Tax law).

“Aggregate Purchase Price” has the meaning set forth in Section 2.5(b)(iii).

“Agreement” has the meaning set forth in the Preamble.

“Assets” has the meaning set forth in Section 5.10(a).

“Basket Amount” has the meaning set forth in Section 8.2(c)(ii).

“Business Day” means any day, other than a Saturday, Sunday or other date on which banks located in San Francisco, California are closed for business as a result of federal, state or local holiday.

“Business Sale” has the meaning set forth in Section 2.5(k).

“Buyer” has the meaning set forth in the Preamble.

“Buyer Compliance Matters” means any matters relating to Buyer’s or any of its Affiliates’ (i) reporting obligations to and compliance with any Governmental Authority (including any and all of their respective regulators) or other compliance with law, rule, regulation or court or other governmental order, (ii) compliance in all material respects with social gaming industry norms followed by at least one-half of the Top 10 U.S. Social Casino companies by revenue (as defined by Eilers & Krejcik Gaming, LLC), (iii) compliance in all material respects with the then-current Best Practices Principles of the International Social Gaming Association, (iv) compliance with their respective code of ethics, internal written policies or employee handbook of Penn National Gaming, Inc. and (v) cooperation with, and responses, to their respective auditors or respective tax, finance and accounting departments.

“Buyer Employer” means Buyer or an Affiliate of Buyer.

2

“Buyer Indemnified Parties” means Buyer and its Affiliates (including, after the Closing, the Company, but excluding any Sellers or any of their respective Affiliates) and their respective stockholders, officers, directors, employees, agents, partners, members, representatives, successors and assigns.

“Buyer Parties” has the meaning set forth in Section 2.5(j)(iii).

“Cap” has the meaning set forth in Section 8.2(c)(i).

“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock or other ownership interests of a corporation and any and all ownership interests in a Person (other than a corporation), including membership interests, partnership interests, joint venture interests and beneficial interests, and any and all warrants, options or other rights to purchase any of the foregoing.

“Cause” has the meaning set forth in each Key Employee’s Key Employee Agreement.

“Claim” has the meaning set forth in Section 8.2(f)(i).

“Claim Dispute Notice” has the meaning set forth in Section 8.2(e)(iii)(A).

“Closing” has the meaning set forth in Section 2.2(a).

“Closing Date” has the meaning set forth in Section 2.2(a).

“Closing Company Cash” shall mean all Company Cash as of the Adjustment Calculation Time.

“Closing Indebtedness” means Indebtedness of the Company, which remains unpaid as of the Adjustment Calculation Time.

“Closing Net Working Capital” means Net Working Capital as of the Adjustment Calculation Time.

“Closing Net Working Capital Target” means $1,800,000.

“Closing Statement” has the meaning set forth in Section 2.4(a).

“Closing Statement Date” has the meaning set forth in Section 2.4(c).

“Closing Transaction Expenses” means the Transaction Expenses which remain unpaid as of the Closing.

“Code” means the Internal Revenue Code of 1986, as amended, and any reference to any particular Code section shall be interpreted to include any revision of or successor to that section regardless of how numbered or classified.

“Company” has the meaning set forth in the Preamble.

“Company Capital Stock” shall mean the Company’s Common Stock and any other shares of capital stock, if any, of the Company, taken together.

3

“Company Cash” shall mean all cash, cash equivalents and marketable securities of the Company.

“Company Intellectual Property” means any and all Intellectual Property that is owned, purported to be owned (in each case whether owned singularly or jointly with a third party or parties), or filed by, assigned to or held in the name of, or exclusively licensed to, the Company.

“Company Options” means any issued and outstanding options or other rights to purchase Company Capital Stock.

“Company Products” means all products (including Software, games and mobile applications) developed (including products and services for which development is ongoing), including any platforms, plugins, libraries and APIs, manufactured, deployed, made commercially available, marketed, distributed, provided, supported, sold, offered for sale, imported or exported for resale, or licensed out by or on behalf of the Company since its inception, or with respect to which the Company intends to do the same within twelve (12) months after the date hereof.

“Company Registered Intellectual Property” means all Registered Intellectual Property that is part of Company Intellectual Property.

“Company Sites” has the meaning set forth in Section 5.12(p).

“Company Stock Certificate” means a certificate representing shares of Company Capital Stock.

“Company Stock Plan” means the Company’s 2013 Stock Plan, as amended.

“Company Technology” means all Technology that is owned, purported to be owned (in each case whether owned singularly or jointly with a third party or parties), or filed by, assigned to or held in the name of, or exclusively licensed to, the Company.

“Company Transaction” has the meaning set forth in Section 4.7.

“Confidential Information” means all information of a confidential or proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium that relates to the Company or their respective business or operations.  Confidential Information includes (but is not limited to) the following:  (i) internal business information (including historical and projected financial information and budgets and information relating to strategic and staffing plans and practices, recruiting records and information, business, training, marketing, promotional and sales plans and practices, products, services, research or development, geographic expansion plans, cost, rate and pricing structures and accounting and business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, and other confidential or proprietary information about, any suppliers, distributors, vendors, customers, independent contractors or other business relations of the Company and their confidential or proprietary information; (iii) trade secrets, know how, compilations of data and analyses, techniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable); and (v) other Intellectual Property Rights.  Notwithstanding the foregoing, Confidential Information shall not include any information that is or becomes generally known to and available for use by the public other than as a result of any Seller Indemnifying Party’s acts or omissions.  Nothing contained herein shall prevent a Seller Indemnifying Party from making any disclosures to its legal counsel, accountants or

4

representatives of a Seller Indemnifying Party subject to confidentiality obligations or as required by law, rule, regulation or court or other governmental order.

“Consideration Fund” has the meaning set forth in Section 2.2(c)(i).

“Consultant Proprietary Information Agreement” has the meaning set forth in Section 5.12(k).

“Contaminants” has the meaning set forth in Section 5.12(s).

“Contingent Workers” has the meaning set forth in Section 5.16(c).

“Contributor” has the meaning set forth in Section 5.12(k).

“D&O Indemnified Parties” has the meaning set forth in Section 4.13(a).

“D&O Tail” has the meaning set forth in Section 4.13(a).

“Definitive Initial Purchase Price” has the meaning set forth in Section 2.4(c).

“Depository Agent” means Citibank, N.A., acting as depository agent for the Paying Agent.

“Disclosure Schedule” has the meaning set forth in Article V.

“Earnout Payment” and “Earnout Payments” have the meaning set forth in Section 2.5(a).

“Earnout Period” or “Earnout Periods” has the meaning set forth in Section 2.5(a).

“Earnout Statement” has the meaning set forth in Section 2.5(d).

“Electronic Delivery” has the meaning set forth in Section 9.9.

“Employee Hire Package” means the following: (i) Employment Offer Letter, (ii) Buyer’s form of proprietary information and inventions agreement and (iii) acknowledgment of and agreement with the Buyer’s employment policies from Buyer or its Affiliate’s employee handbook, together with other customary documents to be executed by new hires upon employment with Buyer as part of Buyer’s ordinary course process of onboarding new hires.

“Employee Proprietary Information Agreement” has the meaning set forth in Section 5.12(k).

“Employment Offer Letter” means the employment offer letter in substantially the form attached hereto as Exhibit D.

“Encumbrance” means any Lien (other than restrictions on transfer under the Securities Act and applicable state securities laws).

“Environmental and Safety Requirements” means all federal, state, local and foreign statutes, regulations, ordinances and other provisions having the force or effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law, in each case

5

concerning public health and safety, worker health and safety, exposure to hazardous substances or materials, pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of, or exposure to, any hazardous or otherwise regulated materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise, radiation or radon, each as amended and as now or hereafter in effect.

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

“Escrow Account” has the meaning set forth in the Escrow Agreement.

“Escrow Agent” means Citibank, N.A.

“Escrow Agreement” means the escrow agreement in substantially the form of Exhibit A attached hereto.

“Escrow Amount” means $7,000,000.

“Escrow Fund” has the meaning set forth in Section 2.2(c)(ii).

“Escrow Termination Date” has the meaning set forth in Section 8.3.

“Estimated Closing Company Cash” means an amount equal to the Closing Company Cash as estimated in good faith by the Company not more than five (5), or less than three (3), days prior to the Closing (with reasonable supporting detail).

“Estimated Closing Indebtedness” means an amount equal to the Closing Indebtedness as estimated in good faith by the Company not more than five (5), or less than three (3), days prior to the Closing (with reasonable supporting detail).

“Estimated Net Working Capital” means an amount equal to the Net Working Capital as estimated in good faith by the Company not more than five (5), or less than three (3), days prior to the Closing (which shall include estimated calculations of each component of the Net Working Capital with reasonable supporting detail).

“Estimated Initial Purchase Price” means an amount equal to the Initial Purchase Price as estimated in good faith by the Company not more than five (5), or less than three (3), days prior to the Closing (which shall include estimated calculations of each component of the Purchase Price with reasonable supporting detail).

“Estimated Transaction Expenses” means an amount equal to the Transaction Expenses as estimated in good faith by the Company not more than five (5), or less than three (3), days prior to the Closing (with reasonable supporting detail).

“Exempted Claims” has the meaning set forth in Section 8.2(d)(ii).

“Exempted Losses” has the meaning set forth in Section 8.2(c)(ii).

“Expense Fund” has the meaning set forth in Section 8.5(c).

“Expense Fund Amount” has the meaning set forth in Section 8.5(c).

6

“Expert” means PricewaterhouseCoopers LLP (“PwC”) (or if PwC is unable or unwilling to perform such services, then Deloitte Touche Tohmatsu Limited (“Deloitte”)).  If neither PwC nor Deloitte is able or willing to perform such services, then, unless the Sellers’ Representative and Buyer otherwise agree in writing, the American Institute of Certified Public Accounts shall select a firm to be the Expert hereunder.

“FCPA” has the meaning set forth in Section 5.14(c).

“First Earnout Payment” has the meaning set forth in Section 2.5(a).

“First Earnout Period” has the meaning set forth in Section 2.5(a).

“Form of Resignation Letter” has the meaning set forth in Section 4.12.

“Form of Seller Transmittal Letter” has the meaning set form in Section 2.2(c)(iv).

“Former In-the-Money Option Holder” has the meaning set forth in Section 2.3(b)(i).

“Fraud” has the meaning set forth in Section 8.2(c)(i).

“Fraud Claims” has the meaning set forth in Section 8.2(d)(iii).

“Fraud Losses” has the meaning set forth in Section 8.2(c)(ii).

“Fundamental Rep Survival Date” has the meaning set forth in Section 8.1(a).

“Fundamental Representations” has the meaning set forth in Section 8.1(a).

“Fully Diluted Number” means the sum of (a) the aggregate number of shares of Company Capital Stock outstanding as of immediately prior to the Closing and (b) the aggregate number of shares of Company Capital Stock issuable upon exercise of all In-the-Money Vested Options outstanding as of immediately prior to the Closing.

“Fully Diluted Pro Rata Percentage” means with respect to each Seller Indemnifying Party, that percentage equal to (x) the sum of (I) the aggregate number of shares of Company Capital Stock held by such Person, plus (II) the aggregate number of shares of Company Capital Stock issuable upon exercise of In-the-Money Vested Options held by such Person, in each case as of immediately prior to the Closing, divided by (y) the Fully Diluted Number, as set forth in the “Fully Diluted Pro Rata Percentage” column in the Securityholders Schedule.

“GAAP” means United States generally accepted accounting principles, as in effect on the date hereof and as may change from time to time in the future.

“Gaming Related Laws” means all applicable federal gaming and prize promotion laws, rules and regulations, including but not limited to, the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. § 5363; the Wire Act, 18 U.S.C. § 1084; the Interstate Transportation of Wagering Paraphernalia Act, 18 U.S.C. § 1953; and the Illegal Gambling Business Act, 18 U.S.C. § 1955; (ii) all applicable state gaming and prize promotion laws, rules and regulations; (iii) any opinions or directives relating to gaming, social gaming or prize promotions issued by a state attorney general or state gaming or other governmental regulatory authority; (iv) all applicable foreign laws, rules and regulations; and (v) any laws, rules or regulations of other any regulatory or self-regulatory entity.

7

“General Claims” has the meaning set forth in Section 8.2(d)(i).

“Good Reason” has the meaning set forth in each Key Employee’s Key Employee Agreement.

“Governmental Approvals” has the meaning set forth in Section 3.1(d).

“Governmental Authority” means any governmental agency or authority of the United States, any domestic state, any foreign country and any political subdivision or agency thereof (including any agency or authority having governmental or quasi-governmental powers), including any administrative agency or commission.

“Guaranty” means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable for the debt, obligation or other liability of any other Person (other than by endorsements of instruments in the ordinary course of collection).

“Indebtedness” means, with respect to any Person at any date, without duplication, (i) all liabilities and obligations for borrowed money, whether current, short-term, long-term, secured or unsecured; (ii) all liabilities and obligations evidenced by bonds, debentures, notes or other similar instruments or debt securities; (iii) all liabilities and obligations in respect of letters of credit and bankers’ acceptances issued for the account or benefit of such Person, (iv) all liabilities and obligations arising from bank overdrafts; (v) all liabilities and obligations created or arising under any conditional sale or other title retention agreement with respect to acquired property; (vi) all liabilities and obligations arising from deferred compensation arrangements and all liabilities and obligations under severance plans or arrangements, bonus plans or similar arrangements, in each case payable as a direct result of the consummation of the transactions contemplated hereby; (vii) all liabilities and obligations of such Person secured by a Lien; (viii) all Guaranties of such Person in connection with any of the foregoing; (ix) all liabilities and obligations required to be recorded as capital leases in accordance with GAAP as of the date of determination of such Indebtedness; (x) all liabilities and obligations for the deferred purchase price of property or services with respect to which a Person is liable, contingently or otherwise, as obligor or otherwise; (xi) any unpaid Taxes of the Company for all Pre-Closing Tax Periods, which shall include (A) the entire amount of the adjustment under Section 481(a) of the Code resulting from a change in the Company’s overall method of accounting from the cash receipts and disbursements method to the accrual method (regardless of when such adjustment under Section 481(a) of the Code is required to be, or is actually, taken into account), calculated by assuming that such change in method of accounting and an “eligible acquisition transaction election” described in Section 7.03(3)(d) of Rev. Proc. 2015-13, 2015-5 IRB 419 are effectively made for the Pre-Closing Tax Period ending on the Closing Date, and (B) any and all payroll and employment Taxes arising from payments made before or substantially contemporaneously with the Closing (including payments made with respect to the exercise, or the cancellation, of the Company Options, and amounts paid as Transaction Expenses or as bonus or incentive compensation); (xii) all obligations arising out of interest rate and currency swap arrangements and any other arrangements designed to provide protection against fluctuations in interest or currency rates; and (xiii) all accrued interest, fees and other expenses owed with respect or otherwise related to any of the foregoing, including principal, premium, accrued and unpaid interest, related expenses, prepayment penalties, termination fees, commitment and other fees, sale or liquidity participation amounts, reimbursements, indemnities, consent fees, “breakage” costs, “break fees” or similar payments or contractual charges.

“Indemnified Taxes” means, without duplication, (i) all Taxes (or the non-payment thereof) imposed on or with respect to the Company for all Pre-Closing Tax Periods (with Taxes

8

attributable to the portion of any Straddle Period up to and including the Closing Date calculated as described in Section 8.12(a)); (ii) any and all Taxes of any member of an Affiliated Group of which the Company (or any of its predecessors) is or was a member prior to the Closing, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or non-U.S. law; (iii) any and all Taxes of any Person (other than the Company) imposed on the Company, as a transferee or successor, by contract or pursuant to any law, which Taxes relate to an event or transaction occurring before the Closing; and (iv) any and all payroll and employment Taxes arising from payments made before or substantially contemporaneously with the Closing or otherwise pursuant to or in accordance with this Agreement (including payments made with respect to the exercise, or the cancellation, of the Company Options, and amounts paid as Transaction Expenses or as bonus or incentive compensation), but excluding any payments made to Former In-the-Money Option Holders with respect to any Earnout Payment or the release of the Escrow Amount; provided, however, Indemnified Taxes shall not include any Taxes attributable to any action taken by Buyer or its Affiliates (including the Company after the Closing) on the Closing Date after the Closing, unless such action is taken in the ordinary course of business, at the request of the Sellers’ Representative or as contemplated or required by this Agreement.

“Indemnity Pro Rata Percentage” means with respect to each Seller Indemnifying Party, that percentage equal to (x) the portion of the Estimated Initial Purchase Price that such Seller Indemnifying Party is entitled to receive pursuant Sections 2.3(a)(i) and 2.3(b)(i)(A), divided by (y) the aggregate Estimated Initial Purchase Price that all the Seller Indemnifying Parties are entitled to receive pursuant Sections 2.3(a)(i) and 2.3(b)(i)(A) as set forth in the “Indemnity Pro Rata Percentage” column in the Securityholders Schedule.

“Infringement” or “Infringe” means that a given item or activity directly or indirectly infringes, misappropriates, dilutes, constitutes unfair trade practices, false advertising or unauthorized use of, or otherwise violates the Intellectual Property Rights of, any Person.

“Initial Purchase Price” means an amount equal to (i) $60,000,000, minus (ii) the Estimated Closing Indebtedness, minus (iii) the Estimated Transaction Expenses, plus (iv) the amount (if any) by which the Estimated Closing Net Working Capital is greater than the Closing Net Working Capital Target, minus (v) the amount (if any) by which the Estimated Closing Net Working Capital is less than the Closing Net Working Capital Target, plus (vi) the Estimated Closing Company Cash (if any) plus (vii) the aggregate exercise price of all In-the-Money Vested Options outstanding as of immediately prior to the Closing.

“Initial Purchase Price Per Share” means an amount equal to (x) the Estimated Initial Purchase Price, divided by (y) the Fully Diluted Number.

“Insider” or “Insiders” has the meaning set forth in Section 5.22.

“Insurance Policies” has the meaning set forth in Section 5.18.

“Intellectual Property” means any and all Intellectual Property Rights and Technology.

“Intellectual Property Rights” means all intellectual property, industrial property, and proprietary rights worldwide, including rights in and to (i) patents, inventions, industrial designs and other governmental grants for the protection of inventions or industrial designs, including any patent applications, whether already filed or in preparation or contemplation of filing (“Patents”), (ii) copyrights and Moral Rights, (iii) publicity and privacy and other rights to use the names, likeness, image, photograph, voice, identity and personal information of individuals, (iv) trade secrets, know-how and confidential information, (v) trademarks, trade names, logos, service marks, trade dress, designs,

9

emblems, signs, insignia, slogans, other similar designations of source or origin and general intangibles of like nature, together with the goodwill of the Company or the Company’s business symbolized by or associated with any of the foregoing (“Trademarks”), (v) domain names, hash tags and web addresses, (vi) databases, data compilations and collections, and customer and technical data, (vii) Technology, (viii) any registrations or applications for registration for any of the foregoing, including any provisionals, divisions, continuations, continuations-in-part, renewals, reissuances, re-examinations and extensions (as applicable), (ix) analogous rights to those set forth above, and (x) sue for Infringement of the rights set forth above.

“In-the-Money Vested Option” means a Company Option which, as of the Closing, is vested in accordance with its terms (taking into account any accelerated vesting as set forth on the Securityholders Schedule) and has an exercise price per share that is less than the Initial Purchase Price Per Share.

“Investment” as applied to any Person means (i) any direct or indirect purchase or other acquisition by such Person of any notes, obligations, instruments, stock, securities or ownership interest (including limited liability company interests, partnership interests and joint venture interests) of any other Person and (ii) any capital contribution by such Person to any other Person.

“Key Employee Agreement” means a key employee agreement in substantially the form attached hereto as Exhibit G.

“Key Employees” has the meaning set forth in the Preamble.

“Key Employee Hire Package” means the following: (i) Employment Offer Letter, (ii) Key Employee Agreement, (iii) Restrictive Covenants Agreement, (iv) Buyer’s form of proprietary information and inventions agreement and (v) acknowledgment of, and agreement with, the Buyer’s employment policies from Buyer or its Affiliate’s employee handbook, together with other customary documents to be executed by new hires upon employment with Buyer as part of Buyer’s ordinary course of onboarding new hires.

“knowledge” or “known” means, with respect to any fact, circumstance, event or other matter in question, the knowledge of such fact, circumstance, event or other matter after reasonable inquiry of (A) an individual, if used in reference to an individual or (B) with respect to any Person that is not an individual, the officers of such Person (and in the case of the Company, the Key Employees); provided that any officer or Key Employee will be deemed to have knowledge of a particular fact, circumstance, event or other matter if  such knowledge could be obtained from reasonable inquiry of the persons charged with administrative or operational responsibility for such for such officer’s or Key Employee’s employer.

“Latest Balance Sheet” has the meaning set forth in Section 5.5(b).

“Leased Real Property” and “Leased Realty” have the respective meanings set forth in Section 5.10(b).

“Lien” means any mortgage, pledge, hypothecation, lien (statutory or otherwise), preference, priority, security interest, community property interest, security agreement, easement, covenant, restriction or other encumbrance of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any lease having substantially the same effect as any of the foregoing and any assignment or deposit arrangement in the nature of a security device).

10

“Losses” means any loss, liability, demand, claim, action, cause of action, cost, damage, royalty, deficiency, penalty, Tax, fine or expense of any kind or nature, whether or not arising out of third-party claims (including interest, penalties, reasonable attorneys’ fees and expenses and all reasonable amounts paid in investigation or defense, and all amounts paid in settlement, of any of the foregoing).

“Material Adverse Effect” means any event, circumstance, change, occurrence or effect that, individually or in the aggregate with all other events, circumstances, changes, occurrences or effects; (i) has or would reasonably be expected to have in the future a material and adverse effect or development upon the business, operations, assets, liabilities, or condition or position (financial or otherwise); or (ii) that would be reasonably expected to prevent or materially delay or impair the ability of the Sellers or the Company to consummate the transactions contemplated by this Agreement; provided, however, none of the following shall be deemed in and of themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Material Adverse Effect: (i) any adverse effect to the extent directly attributable to the execution of this Agreement or the announcement or pendency of the Closing; (ii) with respect to the Company, any adverse effect that results from changes attributable to conditions affecting the industries in which the Company participates (to the extent that such changes do not disproportionately adversely affect the Company), (iii) any adverse effect arising from, attributable to, or relating to the United States or foreign financial or securities markets or the United States or foreign economy in general or in the industry sectors in which the Company operates in general (to the extent that such changes do not disproportionately adversely affect the Company); (iv) any breach by Buyer of this Agreement, or any other action by Buyer or any of its Affiliates; (v) any change in accounting requirements or principles or any change in applicable laws, rules or regulations or the interpretation thereof (to the extent that such changes do not disproportionately adversely affect the Company); (vi) earthquakes, hostilities, acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts of war, sabotage or terrorism or military actions; (vii) any failure to meet financial projections, estimates or forecasts for any period (provided, that the underlying cause of such failure may nonetheless be, or contribute to, a Material Adverse Effect) or (viii) the taking of any action reasonably required to cause compliance with the terms of this Agreement or the failure to take any action prohibited by this Agreement or any action taken or failure to take action which Buyer has consented to and/or requested.

“Material Contract” or “Material Contracts” has the meaning set forth in Section 5.11(a).

“Moral Rights” means moral or equivalent rights in any Intellectual Property, including the right to the integrity of the work, the right to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

“Net Consideration Fund” has the meaning set forth in Section 2.2(c)(ii).

“Net Working Capital” shall be calculated based on the formula and example calculation set forth on the Net Working Capital Schedule attached hereto.

“Notice of Disagreement” has the meaning set forth in Section 2.4(a).

“Objection” has the meaning set forth in Section 2.5(d).

“Officer’s Claim Certificate” has the meaning set forth in Section 8.2(e)(i).

11

“Open Source Software” means any Software that is licensed, distributed or conveyed as “open source software”, “free software”, “copyleft” or under a similar licensing or distribution model, or under a Material Contract that requires as a condition of its use, modification or distribution that it, or other Software into which such Software is incorporated, integrated or with which such Software is combined or distributed or that is derived from or linked to such Software, be disclosed or distributed in source code form, delivered at no charge or be licensed, distributed or conveyed under the same terms as such Material Contract (including Software licensed under the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, Microsoft Shared Source License, Common Public License, Artistic License, Netscape Public License, Sun Community Source License (SCSL), Sun Industry Standards License (SISL), Apache License and any license listed at www.opensource.org).

“Option Cancellation” has the meaning set forth in the Preamble.

“Option Closing Payments” has the meaning set forth in Section 2.3(b)(i)(A).

“Option Holder” means any holder of Company Options.

“Option Holder Transmittal Letter” has the meaning set forth in Section 2.2(c)(iii)(A).

“Option Payout” has the meaning set forth in the Preamble.

“Paying Agent” has the meaning set forth in Section 2.2(c)(i).

“Permitted Liens” means (i) Liens for Taxes not yet due and payable; (ii) statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s or other similar Liens arising or incurred in the ordinary course of business for immaterial amounts which are not due and payable; (iii) Liens arising from zoning ordinances which are not material to the business of the Company as currently conducted thereon; (iv) Liens disclosed on the attached Permitted Liens Schedule attached hereto; (v) statutory or common law Encumbrances arising in the ordinary course of business that are not material to the businesses of the Company to secure obligations to landlords, lessors or renters under leases or rental agreements; (vi) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance, or similar programs mandated by other legal requirements (vii) non-exclusive licenses granted by the Company to Company Products in the ordinary course of business.

“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, other entity or governmental entity (whether foreign, federal, state, county, city or otherwise and including any instrumentality, division, agency or department thereof).

“Personally Identifiable Information” means any information that alone or in combination with other information held by the Company can be used to specifically identify an individual.

“Plan” has the meaning set forth in Section 5.17(a).

“Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and the portion of any Straddle Period up to and including the Closing Date.

“Product Sale” has the meaning set forth in Section 2.5(k).

12

“Purchase Price” means the Definitive Initial Purchase Price plus Earnout Payments payable pursuant to Section 2.5, if any.

“Realty Leases” has the meaning set forth in Section 5.10(c).

“Registered Intellectual Property” means Intellectual Property that has been registered, filed, certified or otherwise perfected or recorded with or by any governmental entity or quasi-public legal authority (including domain name registrars), or any applications for any of the foregoing.

“Releasees” has the meaning set forth in Section 8.13.

“Restrictive Covenants Agreement” means the restrictive covenants agreement in substantially the form of Exhibit E attached hereto.

“Second Base Earnout Payment” has the meaning set forth in Section 2.5(a).

“Second Earnout Period” has the meaning set forth in Section 2.5(a).

“Second Upside Earnout Payment” has the meaning set forth in Section 2.5(a).

“Second Upside Earnout Retention Pool” means the potential payout under the retention plan (i) to be established by the Company prior to the Closing, in the form attached hereto as Exhibit H (the “Company Retention Bonus Plan”), (ii) to be allocated to service providers of the Company continuing in employment with the Company or Buyer following the Closing, (iii) payable to those service providers of the Company who remain employed through the end of the Second Earnout Period and (iv) that will provide for the payment of cash bonuses equal to an aggregate payment of 50% of the Second Upside Earnout Payment, if any, up to a maximum amount of $10,000,000.

“Section 280G Payments” has the meaning set forth in Section 4.11.

“Securities Act” means the Securities Act of 1933, as amended, or any similar federal law then in force.

“Securityholders Schedule” means a spreadsheet in form reasonably acceptable to Buyer, which spreadsheet shall be dated as of the Closing Date and shall set forth, as of the Closing Date and immediately prior to the Closing, the following factual information relating to the Seller Indemnifying Parties:  (a) the names of all of the Sellers, and their respective last known addresses; (b) the number, type, date of issuance and cost basis of shares of Company Capital Stock held by each Seller and the respective certificate numbers (including a separate line entry for each certificate number); (c) the holder, grant date and exercise price of, and the number of shares of Company Capital Stock subject to, each Company Option; (d) the identification of a holder of Company Options as a current, former or non-employee of the Company; (e) the number of In-the-Money Vested Options and the number of Company Options that are not In-the-Money Vested Options, including a calculation of any acceleration of vesting with respect to any such Company Option; (f) the calculations of the Estimated Closing Company Cash, the Estimated Closing Indebtedness, the Estimated Closing Transaction Expenses, the Estimated Closing Net Working Capital, the Estimated Initial Purchase Price, the Initial Purchase Price Per Share and the Fully Diluted Number; (g) the amount of the Estimated Initial Purchase Price payable at the Closing to each Seller Indemnifying Party; (h) the Fully-Diluted Pro Rata Percentage and Indemnity Pro Rata Percentage of each Seller Indemnifying Party; (i) the Indemnity Pro Rata Percentage (expressed as a dollar amount) of each Seller Indemnifying Party in the Escrow Amount and the Expense Fund Amount at the Closing; and (j) the maximum amount of the Earnout Payments payable

13

to each Seller Indemnifying Party, in each case, in accordance with Section 2.3 and Section 2.5, as applicable.

“Seller Indemnifying Party” or “Seller Indemnifying Parties” has the meaning set forth in Section 8.2(a).

“Seller” or “Sellers” has the meaning set forth in the Preamble.

“Seller Group” has the meaning set forth in Section 9.11.

“Sellers’ Representative” has the meaning set forth in the Preamble.

“Sellers’ Representative Expenses” has the meaning set forth in Section 8.6(b).

“Share Sale” has the meaning set forth in the Preamble.

“Shares” has the meaning set forth in the Preamble.

“Shrink-Wrap Code” means any generally commercially available software in executable code form (other than development tools and development environments) that is available for a cost of not more than $5,000 for a perpetual license for a single user or workstation (or $50,000 in the aggregate for all users and work stations).

“Social Media Accounts” means, with respect to a Person, any and all accounts, profiles, pages, feeds, registrations and other presences on or in connection with any (a) social media or social networking website or online service, (b) blog or microblog, (c) mobile application, (d) photo, video or other content-sharing website, (e) virtual game world or virtual social world, (f) rating and review website, (g) wiki or similar collaborative content website or (h) message board, bulletin board, or similar forum, controlled or owned or managed by such Person.

“Social Media Account Names” has the meaning set forth in Section 5.12(u).

“Software” means software, firmware and computer programs and applications (including source code, executable or object code, architecture, algorithms, data files, computerized databases, plugins, libraries, subroutines, tools and APIs) and related documentation.

“Specific Indemnity Losses” has the meaning set forth in Section 8.2(c)(ii).

“Specific Indemnity Survival Date” means three (3) years following the Closing Date.

“Standard Form Agreements” has the meaning set forth in Section 5.12(f).

“Straddle Period” has the meaning set forth in Section 8.12(a).

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which (i) if a corporation, at least 50% of the total voting power of shares of stock entitled (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a partnership, limited liability company, association, joint venture or other business entity, at least 25% of the partnership, joint venture or other similar ownership

14

interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof.

“Surrendering Holder” has the meaning set forth in Section 2.2(c)(iv).

“Survival Date” has the meaning set forth in Section 8.1(b),

“Tax” means any (i) U.S. federal, state, local or non-U.S. income, gross receipts, franchise, escheat, abandoned or unclaimed property, estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, value added, ad valorem, excise, natural resources, severance, stamp, occupation, premium, windfall profit, environmental, customs, duties, real property, personal property, capital stock, capital gains, goods and services, profits, employment, social security, unemployment, disability, payroll, license, employee or other withholding, or other tax, charge, governmental fee, levy or assessment of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing; (ii) liability for the payment of any amounts of the type described in clause (i) above arising as a result of being (or ceasing to be) a member of any Affiliated Group (or being included (or required to be included) in any Tax Return relating thereto); and (iii) liability for the payment of any amounts of the type described in clause (i) above as a result of any express or implied obligation to indemnify or otherwise assume or succeed to the liability of any other Person.

“Tax Claim” has the meaning set forth in Section 8.12(f).

“Tax Returns” means returns, declarations, reports, claims for refund, information returns or other documents (including any related or supporting schedules, statements or information and any amendment thereof) filed or required to be filed in connection with the determination, assessment or collection of any Taxes of any Person or the administration of any laws, regulations or administrative requirements relating to any Taxes.

“Technology” means (i) Software, (ii) inventions (whether or not patentable), discoveries and improvements, (iii) proprietary and confidential information, trade secrets and know how, (iv) databases, data compilations and collections, and customer and technical data, (v) methods and processes, (vi) devices, prototypes, designs and schematics, and (vii) tangible items related to, constituting, disclosing or embodying any or all of the foregoing, including all versions thereof.

“Third-Party Approvals” has the meaning set forth in Section 3.1(c).

“Transaction Documents” has the meaning set forth in Section 3.1(u).

“Transaction Expenses” means (without duplication) (a) all professional advisory fees, costs and expenses (including, investment bankers’, financial advisors’, consultants’, attorneys’ and accountants’ fees, costs and expenses) incurred by the Sellers and/or the Company in connection with the transactions contemplated by this Agreement, and (b) 50% of the Transfer Taxes.  All Transaction Expenses shall be set forth on Transaction Expenses Schedule.

“Transfer” has the meaning set forth in Section 2.5(g).

“Transfer Taxes” has the meaning set forth in Section 8.12(e).

“TTM EBITDA” means, as of any given date, the earnings before interest, Taxes, depreciation and amortization of the Company for the previous trailing twelve (12) calendar months in accordance with GAAP, as applicable from the date hereof as may change in the future.  For the

15

avoidance of doubt, TTM EBITDA shall reflect the stand-alone operating performance of the Company and assumes that all expenses of the Company continue to be treated as operating expenses in accordance with past practices as of the date of this Agreement.

“User Documentation” means explanatory and informational materials concerning the Company Products and Company Technology, in printed or electronic form, which the Company has released for distribution to end users with such Company Products and Company Technology, which may include manuals, descriptions, user or installation instructions, diagrams, printouts, listings, flow-charts and training materials, contained on visual media such as paper or photographic film, or on other physical storage media in machine readable form.

“Working Capital Deficit Amount” has the meaning set forth in Section 2.4(c).

“Working Capital Deficit Payment” has the meaning set forth Section 2.4(c).

“Working Capital Surplus Amount” has the meaning set forth in Section 2.4(c).

“Working Capital Surplus Payment” has the meaning set forth in Section 2.4(c).

ARTICLE II

TRANSACTIONS

2.1                                                             Purchase and Sale.  On the terms and subject to the conditions set forth in this Agreement, at the Closing, Buyer shall purchase from the Sellers, and such Sellers shall sell, convey, assign, transfer and deliver to Buyer, all of the Shares, free and clear of all Encumbrances.

2.2                                                             Closing Transactions.

(a)                                 Closing.  The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place, and the parties hereto shall consummate the transactions contemplated hereby, at the offices of DLA Piper LLP (US), 2000 University Avenue, East Palo Alto, CA 94303-2215, or at such other place as is mutually agreeable to Buyer and the Company, at 10:00 a.m. local time on the first (1st) Business Day of the month following the satisfaction or waiver (by the Person entitled to the benefit thereof) of the conditions to Closing set forth in Article III (other than those conditions which by their terms or nature are to be performed or satisfied at the Closing; provided that in any event all conditions are satisfied (or waived by the Person entitled to the benefit thereof) at the Closing).  The date on which the Closing occurs is referred to herein as the “Closing Date”.

(b)                                 Deliveries.  At the Closing and subject to the satisfaction or waiver of the conditions set forth in this Agreement:

(i)                                     Buyer shall pay an amount equal to the Consideration Fund by wire transfer of immediately available funds, to the Depository Agent, and the Depository Agent and Paying Agent, respectively, shall disburse such amount in accordance with Section 2.2(c);

(ii)                                  Buyer shall pay the Expense Fund Amount by wire transfer of immediately available funds, to Sellers’ Representative; and

(iii)                               The Company shall cause to be delivered to Buyer all books and records and other property of the Company.

16

(c)                                  Exchange Procedures.

(i)                                     Deposit of Consideration Fund.  At the Closing, Buyer shall deliver, in trust, to the Depository Agent, as depository agent for Continental Stock Transfer & Trust Company, a New York corporation (in its capacity as paying agent) or another paying agent selected by Buyer (the “Paying Agent”) for the benefit of the Seller Indemnifying Parties, sufficient funds for timely payment of (x) the Estimated Initial Purchase Price, less (y) the Expense Fund Amount  and less (z) an amount equal to the aggregate exercise price of all In-the-Money Vested Options outstanding as of immediately prior to the Closing (such consideration being hereinafter referred to as the “Consideration Fund”).

(ii)                                  Deposit of Escrow Funds.  By virtue of this Agreement and as partial security for the indemnity obligations provided for in Section 8.2, promptly following the Closing (but no later than five (5) Business Days after the Closing Date), the Depository Agent shall deposit promptly, from the Consideration Fund, with the Escrow Agent, the Escrow Amount (the Escrow Account in which the Escrow Amount is deposited being the “Escrow Fund”, and the remaining balance of the Consideration Fund being the “Net Consideration Fund”).

(iii)                               Former In-the-Money Option Holders Transmittal.

(A)                               Promptly after the Closing, but no later than two (2) Business Days thereafter, Buyer shall cause the Paying Agent to mail to the Former In-the-Money Option Holders a transmittal letter, in substantially the form attached hereto as Exhibit F (the “Option Holder Transmittal Letter”), which shall include instructions to execute and deliver such letter to the Paying Agent.

(B)                               The Paying Agent shall promptly (but no later than two (2) Business Days following Depository Agent’s receipt of the Consideration Fund), wire the portion of the Net Consideration Fund to be paid to the Former In-the-Money Option Holders, who are current or former employees of the Company, pursuant to the calculation in Section 2.3(b) and as set forth in the Securityholders Schedule, and who have delivered an Option Holder Transmittal Letter, duly executed and properly completed to the Company (or any Affiliate thereof or successor thereto) for payment by the Company to such Former In-the-Money Option Holders in accordance with Section 2.3(b)(ii).  No interest will be paid or accrued on the consideration payable to such Former In-the-Money Option Holders.

(C)                               Upon surrender of an Option Holder Transmittal Letter, duly executed and property completed, each Former In-the-Money Option Holder who was not ever an employee of the Company shall be entitled to promptly receive from the Paying Agent such Former In-the-Money Option Holder’s portion of the Net Consideration Fund to be paid to such Former In-the-Money Option Holder pursuant to the calculation in Section 2.3(b) and as set forth in the Securityholders Schedule, after giving effect to any withholding tax required to be withheld pursuant to applicable law.   No interest will be paid or accrued on the consideration payable to such Former In-the-Money Option Holders.

(iv)                              Sellers Transmittal.  Promptly after the Closing, but no later than two (2) Business Days thereafter, Buyer shall cause the Paying Agent to mail to each Seller as of immediately prior to the Closing as set forth in the Securityholders Schedule, (i) a transmittal letter in substantially the form attached hereto as Exhibit B for the Sellers (the “Form of Seller Transmittal Letter”), and shall (A) specify that delivery of each Company Stock Certificate, shall be deemed to have occurred, and, with respect to Company Stock Certificates, risk of loss and title to the Company Stock Certificates shall pass, only upon proper delivery of the Company Stock Certificates to the Paying Agent, (B) include a

17

Substitute IRS Form W-9 and instructions on how to obtain IRS Form W-8BEN (or other applicable Form W-8), as applicable, and (C) include any other information required pursuant to any applicable law and (ii) instructions for use in effecting the surrender of the Company Stock Certificates in exchange for payment of the consideration to which such holder may be entitled pursuant to Section 2.3(a) and as set forth in the Securityholders Schedule.  Upon surrender of a Company Stock Certificate for cancellation to the Paying Agent, together with delivery of a Seller Transmittal Letter, duly executed and properly completed in accordance with the instructions thereto, the holder of such Company Stock Certificate (each such holder, a “Surrendering Holder”) shall be entitled to promptly receive in exchange therefor from the Paying Agent such Surrendering Holder’s pro rata portion of the Net Consideration Fund in respect of the Company Stock Certificate surrendered, pursuant to the calculation in Section 2.3(a) and as set forth in the Securityholders Schedule, after giving effect to any withholding tax required to be withheld pursuant to applicable law, and the instrument so surrendered or transferred shall forthwith be cancelled.  No interest will be paid or accrued on the consideration payable to the Sellers.

(v)                                 Investment of Consideration Fund.  The Net Consideration Fund shall be invested by the Depository Agent as directed by Buyer; provided, however, that no gain or loss thereon or income or loss generated thereby shall affect the amounts payable by Buyer to the Sellers and the Former In-the-Money Option Holders pursuant to this Section 2.2(c).  Earnings on the Net Consideration Fund shall be the sole and exclusive property of Buyer, and no part of such earnings shall accrue to the benefit of the Sellers or the Former In-the-Money Option Holders.

(vi)                              Transfers of Ownership.  If the cash payment or check evidencing the cash to be paid pursuant to Section 2.3 hereof is to be made to a Person other than the Person whose name is reflected on the Company Stock Certificate surrendered in exchange therefor, it will be a condition of the issuance thereof that the certificate so surrendered will be properly endorsed and otherwise in proper form for transfer and that the Person requesting such exchange will have paid to Buyer or any agent designated by it any transfer or other Taxes required by reason of the payment of any portion of the Estimated Initial Purchase Price in any name other than that of the registered holder of the certificate surrendered, or established to the satisfaction of Buyer or any agent designated by it that such Tax has been paid or is not payable.

(vii)                           Paying Agent to Return Consideration.  Any funds that have not been distributed to the Seller Indemnifying Parties within six (6) months after such funds were received by the Depository Agent shall be delivered to Buyer.  Any former Seller Indemnifying Party who has not theretofore complied with this Section 2.2 shall thereafter look only to the Company for any portion of the Estimated Initial Purchase Price, deliverable in respect of each share of Common Stock or each In—the-Money Vested Option such Person held, as determined pursuant to this Agreement, without any interest thereon.  If the holder of any Company Stock Certificates which formerly represented shares of Company Capital Stock shall not have surrendered such Company Stock Certificates, or any Seller Indemnifying Party shall not have complied with this Section 2.2(c), by the twenty-four (24) month anniversary of the Closing Date (or such earlier date as shall be immediately prior to such date as the applicable portion of the Total Consideration or any amounts payable from the Escrow Fund would otherwise escheat to or become property of any governmental entity), to the extent permitted by applicable law, the entitlement of such holder to such portion of the Estimated Initial Purchase Price under this Agreement shall be extinguished absolutely.

(viii)                        Lost, Stolen or Destroyed Certificates.  In the event any Company Stock Certificates shall have been lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed certificates or agreements, upon the making of an affidavit of that fact by the holder thereof, such consideration, if any, as may be required pursuant to Section 2.2(c) hereof; provided, however, that the Paying Agent shall, as a condition precedent to the issuance thereof, require

18

the Company Stockholder who is the owner of such lost, stolen or destroyed certificates to provide an affidavit of loss and deliver a bond in such amount as it may reasonably direct, indemnifying Buyer and the Paying Agent against any claim that may be made against Company or the Paying Agent with respect to the certificates or agreements alleged to have been lost, stolen or destroyed.

(ix)                              No Further Ownership Rights in Company Capital Stock.  The portion of the Estimated Initial Purchase Price paid or payable in respect of the surrender for exchange of the Shares in accordance with the terms hereof shall be deemed to be full satisfaction of all rights pertaining to such Shares, and there shall be no further registration of transfers on the records of the Company of the Shares that were outstanding immediately prior to the Closing.

(x)                                 No Liability.  None of the Paying Agent, Depository Agent, Buyer or its Affiliates, and following Closing, the Company, nor any other Person shall be liable to any Person in respect of any portion of the Estimated Initial Purchase Price delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.

2.3                                                             Purchase Price.

(a)                                 Treatment of Common Stock.

(i)                                     Promptly after receipt of each Seller’s Seller Letter of Transmittal, the Paying Agent shall pay to each such Seller who holds Shares in respect of such Shares an amount equal to (x) the Initial Purchase Price Per Share, multiplied by (y) the number of shares of Common Stock opposite such Seller’s name in the “Common Stock” column in the Securityholders Schedule.

(ii)                                  Following the Closing, each Seller holding Shares in respect of such Shares shall be entitled to receive an amount, if any, equal to:

(A)                               each such Seller’s Fully Diluted Pro Rata Percentage of a Working Capital Surplus Payment, if any, pursuant to Section 2.4;

(B)                               each such Seller’s Fully Diluted Pro Rata Percentage of an Earnout Payment, if any, pursuant to Section 2.5; and

(C)                               each such Seller’s Indemnity Pro Rata Percentage of the release of the remaining Escrow Amount and the Expense Fund Amount, in each case, if any, pursuant to Section 8.3 and Section 8.5, respectively.

(a)                                 Treatment of Company Options.

(i)                                     No outstanding Company Option (whether vested or unvested) shall be assumed by, continued in effect or replaced by Buyer pursuant to or in connection with the transactions contemplated by this Agreement.  The Company has taken or shall take all actions necessary so that, at the Closing, each Company Option (whether vested or unvested) that is unexpired, unexercised and outstanding immediately prior to the Closing shall terminate and be cancelled as of the Closing. Each Option Holder who is a holder of a Company Option which is not an In-the-Money Vested Option immediately prior to the Closing shall not be entitled to receive any payment therefor.  Each Option Holder who is a holder of an In-the-Money Vested Option immediately prior to the Closing (each a “Former In-the-Money Option Holder” and together, the “Former In-the-Money Option Holders”) shall be entitled to receive in exchange for the cancellation thereof, without interest, payment in cash in an amount equal to:

19

(A)                               At the time specified in Section 2.2(c)(iii), (x) the Initial Purchase Price Per Share, multiplied by (y) the aggregate number of shares of Common Stock issuable upon exercise of the In-the-Money Vested Option opposite such Former In-the-Money Option Holder’s name in the “In-the-Money Vested Options” column in the Securityholders Schedule, minus (z) the aggregate exercise price for all shares of Common Stock that would be issuable upon exercise of such Former In-the-Money Option Holder’s In-the-Money Vested Option(s) immediately prior to the Closing (the aggregate of all such payments being the “Option Closing Payments”);

(B)                               Following the Closing, each Former In-the-Money Option Holder shall be entitled to receive in respect of his or her In-the-Money Vested Option an amount, if any, equal to:

(1)                                 each such Former In-the-Money Option Holder’s Fully Diluted Pro Rata Percentage of a Working Capital Surplus Payment, if any, pursuant to Section 2.4;

(2)                                 each such Former In-the-Money Option Holder’s Fully Diluted Pro Rata Percentage of an Earnout Payment, if any, pursuant to Section 2.5; and

(3)                                 each such Former In-the-Money Option Holder’s Indemnity Pro Rata Percentage of the release of the remaining Escrow Amount and the Expense Fund Amount, in each case, if any, pursuant to Section 8.3 and Section 8.5, respectively.

(ii)                                  All payments to Option Holders holding In-the-Money Vested Options shall be made on the same schedule and on the same terms and conditions as applied to the Sellers generally and in all events in accordance with the requirements set forth in Treasury Regulation Section 1.409A-3(i)(5)(iv).  Each such payment to an Option Holder who is or was an employee of the Company (less applicable Tax withholdings) shall be paid through the employee payroll system of the Company (or any Affiliate thereof or successor thereto) no later than its next regularly scheduled payroll date immediately following the date on which such amount becomes payable to such Option Holder.  Each such payment to an Option Holder who is not, and was not previously, an employee of the Company shall be paid directly to such Option Holder by the Paying Agent promptly after receipt of such Option Holder’s Option Holder Transmittal Letter.

(iii)                               Prior to the Closing, the Company shall send a notice to all Option Holders (in a form acceptable to Buyer and at the time and in the manner required by the Company Stock Plan), which notice shall (A) notify the Option Holders of the transactions contemplated by this Agreement, and (B) describe the treatment of Company Options pursuant to this Agreement.  Prior to the Closing, the Company shall use reasonable efforts to cause each holder  of Company Options that are not In-the-Money Vested Options to execute and deliver an Option Cancellation Agreement in substantially the form attached hereto as Exhibit I.

2.4                                                             Post-Closing Working Capital Adjustment.

(a)                                 Within ninety (90) days following the Closing Date, Buyer shall prepare and deliver to the Sellers’ Representative a statement (the “Closing Statement”) setting forth the Closing Company Cash, the Closing Indebtedness, the Closing Transaction Expenses and the Closing Net Working Capital and Buyer’s resulting calculation of the Initial Purchase Price.  The Closing Statement shall be prepared in accordance with the applicable definitions set forth in this Agreement.  The Sellers’ Representative shall cooperate as reasonably requested in connection with the preparation of the Closing Statement.  During the thirty (30) days immediately following the Sellers’ Representative’s receipt of the Closing Statement and any period of dispute with respect thereto thereafter, Buyer shall provide the

20

Sellers’ Representative with reasonable access during normal business hours to the relevant books, records and documents supporting data for purposes of its review of the Closing Statement.  The Closing Statement and the resulting calculation of the Initial Purchase Price shall become final and binding on the parties thirty (30) days following the Sellers’ Representative’s receipt thereof unless the Sellers’ Representative gives written notice of its disagreement (a “Notice of Disagreement”) to Buyer prior to such date specifying in reasonable detail the nature and dollar amount of any disagreement so asserted; provided that the Closing Statement and the resulting calculation of the Initial Purchase Price shall become final and binding upon the parties upon the Sellers’ Representative’s delivery, prior to the expiration of the thirty (30) day period, of written notice to Buyer of its acceptance of the Closing Statement.

(b)                                 If a timely Notice of Disagreement is received by Buyer, then the Closing Statement (as revised in accordance with this Section 2.4), and the resulting calculation of the Initial Purchase Price, shall become final and binding upon the parties on the earlier of (i) the date any and all matters specified in the Notice of Disagreement are finally resolved in writing by the Sellers’ Representative and Buyer and (ii) the date any and all matters specified in the Notice of Disagreement not resolved by the Sellers’ Representative and Buyer are finally resolved in writing by the Expert.  The Closing Statement shall be revised to the extent necessary to reflect any resolution by the Sellers’ Representative and Buyer and any final resolution made by the Expert in accordance with this Section 2.4(b).  During the twenty (20) days immediately following the delivery of a Notice of Disagreement or such longer period as the Sellers’ Representative and Buyer may agree in writing, the Sellers’ Representative and Buyer shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in the Notice of Disagreement.  At the end of such twenty (20) day period, the Sellers’ Representative and Buyer shall submit to the Expert for review and resolution of any and all matters (but only such matters) which remain in dispute and which were included in the Notice of Disagreement.  Buyer and Sellers’ Representative shall instruct the Expert to make a final determination of the items included in the Closing Statement (to the extent such amounts are in dispute) in accordance with the terms of this Agreement.  Buyer and the Sellers’ Representative will cooperate (and Buyer shall cause the Company to cooperate) with the Expert during the term of its engagement.  Buyer and Sellers’ Representative shall instruct the Expert not to, assign a value to any item in dispute greater than the greatest value for such item assigned by Buyer, on the one hand, or the Sellers’ Representative, on the other hand, or less than the smallest value for such item assigned by Buyer, on the one hand, or the Sellers’ Representative, on the other hand.  Buyer and Sellers’ Representative shall also instruct the Expert to make its determination based solely on presentations by Buyer and Sellers’ Representative that are in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of an independent review).  The Closing Statement, the determination of the Closing Indebtedness, the Closing Transaction Expenses and the Closing Net Working Capital and the resulting calculation of the Initial Purchase Price shall become final and binding on the parties hereto on the date the Expert delivers its final resolution in writing to Buyer and the Sellers’ Representative (which final resolution shall be delivered not more than thirty (30) days following submission of such disputed matters), and such resolution by the Expert shall not be subject to court review or otherwise appealable.  The fees and expenses of the Expert pursuant to this Section 2.4(b) shall be borne by the Company, on the one hand, and the Seller Indemnifying Parties (based on each Seller Indemnifying Party’s Fully Diluted Pro Rata Percentages), on the other hand, based upon the percentage which the aggregate portion of the contested amount awarded to each party bears to the amount actually contested by such party, as determined by the Expert.  For example, if the Sellers’ Representative claims the Initial Purchase Price is $1,000 greater than the amount determined by Buyer, and Buyer contests only $500 of the amount claimed by the Sellers’ Representative, and if the Expert ultimately resolves the dispute by awarding the Seller Indemnifying Parties $300 of the $500 contested, then the costs and expenses of the Expert will be allocated 60% (i.e., 300 ÷ 500) to the Company and 40% (i.e., 200 ÷ 500) to the Seller Indemnifying Parties.

21

(c)                                  If the Initial Purchase Price as finally determined in accordance with this Section 2.4 (the “Definitive Initial Purchase Price”) is greater than the Estimated Initial Purchase Price (the positive amount by which the Definitive Initial Purchase Price exceeds the Estimated Initial Purchase Price, the “Working Capital Surplus Amount”), then Buyer, within ten (10) Business Days after the Closing Statement becomes final and binding in accordance with the terms hereof (the “Closing Statement Date”), shall make payment to the Paying Agent, by wire transfer of immediately available funds, an amount equal to the Working Capital Surplus Amount (a “Working Capital Surplus Payment”) for disbursement to the Seller Indemnifying Parties in accordance with each Seller Indemnifying Party’s Fully Diluted Pro Rata Percentage; provided, however, that the Paying Agent’s disbursement for the portion of such Working Capital Surplus Payment to be paid to the Former In-the-Money Option Holders in respect of their In-the-Money Vested Options who are or were employees of the Company be remitted directly to the Company (or any Affiliate thereof or successor thereto) for payment via payroll in accordance with Section 2.3(b)(ii).  If the Estimated Initial Purchase Price is greater than the Definitive Initial Purchase Price (the positive amount by which the Estimated Initial Purchase Price exceeds the Definitive Initial Purchase Price, the “Working Capital Deficit Amount”), then, Buyer may recover from the Escrow Fund an amount equal to the Working Capital Deficit Amount (a “Working Capital Deficit Payment”).  In the event the Escrow Fund is insufficient to pay a Working Capital Deficit Payment, the Seller Indemnifying Parties shall promptly (but no later than three (3) Business Days) wire, in immediately available funds, to Buyer the amount by which the Working Capital Deficit Amount exceeds the Escrow Fund in accordance with each Seller Indemnifying Party’s Fully Diluted Pro Rata Percentages.

(d)                                 Buyer shall have the right to offset against any Working Capital Surplus Payment any claims for which it is entitled to indemnification under this Agreement, subject to the limitations on such indemnification set forth in Section 8.2.

2.5                                                             Earnout.

(a)                                 Following the Closing, the Seller Indemnifying Parties shall be entitled to receive from Buyer (subject to the terms and conditions set forth in this Section 2.5) additional cash consideration based on the Company’s performance during the twelve month period beginning on the Closing Date (the “First Earnout Period”) and the twelve month period following the end of the First Earnout Period (the “Second Earnout Period” and the First Earnout Period each, an “Earnout Period” and collectively, the “Earnout Periods”).  The amount (if any) paid with respect to the First Earnout Period (the “First Earnout Payment”), the initial amount (if any) paid with respect to the Second Earnout Period (the “Second Base Earnout Payment”), the amount in addition to the Second Base Earnout Payment (if any) paid with respect to the Second Earnout Period (the “Second Upside Earnout Payment” together with the First Earnout Payment and the Second Base Earnout Payment, the “Earnout Payments” and each an “Earnout Payment”), each shall be determined in accordance with this Section 2.5.  Within ten (10) days after the amount of any such Earnout Payment has been finally determined pursuant to this Section 2.5, if any, Buyer shall make payment to the Paying Agent by wire transfer of immediately available funds an amount equal to any such Earnout Payment for disbursement to the Seller Indemnifying Parties in accordance with each Seller Indemnifying Party’s Fully Diluted Pro Rata Percentage; provided, however, that the Paying Agent’s disbursement of the portion of such amount, if any, to be paid to the Former In-the-Money Option Holders in respect of their In-the-Money Vested Options who are or were employees of the Company shall be distributed to the Company (or any Affiliate thereof or successor thereto) for payment via payroll in accordance with Section 2.3(b)(ii).

(b)                                 The amount of the Earnout Payments (if any) shall be determined as set forth in this Section 2.5.

22

(i)             The First Earnout Payment shall equal the positive amount by which (A) 6.25 times the TTM EBITDA for the First Earnout Period exceeds (B) the Definitive Initial Purchase Price, if any; provided, however, that the First Earnout Payment shall not exceed $40,000,000.

(ii)          The Second Base Earnout Payment shall equal the positive amount by which 6.25 times the TTM EBITDA for the Second Earnout Period exceeds the sum of (i) the First Earnout Payment, if any, and (ii) the Definitive Initial Purchase Price.

(iii)       The Second Upside Earnout Payment shall equal 2.0 times the positive difference, if any, between (A) the TTM EBITDA during the Second Earnout Period, and (B) $25,000,000 (the Second Upside Earnout, together with the Second Base Earnout Payment, the First Earnout Payment, in each case, if any, and the Definitive Initial Purchase Price, the “Aggregate Purchase Price”); provided, however, that the Second Upside Earnout Payment shall not exceed $20,000,000; and provided, further, that the actual amount of the Second Upside Earnout Payment, if any, payable to the Seller Indemnifying Parties shall be reduced by an amount equal to the amount payable under the Second Upside Earnout Retention Pool.

(c)                                  Conditions.  Notwithstanding anything to the contrary in this Section 2.5:

(i)             the First Earnout Payment shall only be paid if the Company earns at least a $12,000,000 TTM EBITDA during the First Earnout Period;

(ii)          both the Second Base Earnout Payment and the Second Upside Earnout Payment shall only be paid if the Company earns at least a $13,000,000 TTM EBITDA during the Second Earnout Period; and

(iii)       (A) the total sum of the First Earnout Payment, the Second Base Earnout Payment and the Definitive Initial Purchase Price shall not exceed $150,000,000, and (B) the Aggregate Purchase Price shall not exceed $170,000,000.

(d)                                 For each Earnout Payment, within thirty (30) days of the end of the Earnout Period relating thereto, Buyer shall deliver to the Sellers’ Representative a written statement used to calculate such Earnout Payment (each an “Earnout Statement”), and shall promptly supply to the Sellers’ Representative documentation and materials supporting the Earnout Statement upon request by Sellers’ Representative.  Within thirty (30) days after receipt of such Earnout Statement, the Sellers’ Representative may deliver to Buyer a written statement (an “Objection”) setting forth requests for further information and/or any disagreement with such calculation.  If the Sellers’ Representative does not submit an Objection within such 30-day period, then the Earnout Payment(s), as set forth in the Earnout Statement from Buyer and based on the written calculation provided, shall be final and deemed binding upon the parties.  If the Sellers’ Representative does not deliver an Objection, Buyer shall pay, or cause to be paid, to the Sellers in accordance with Section 2.5(a) after completion of the Objection period, but in no event later than forty-five (45) days thereafter.  If after endeavoring in good faith the parties are unable to resolve any disputed items, the parties shall resolve such disputed items in accordance with Section 9.10.

(e)                                  Notwithstanding anything herein to the contrary, Buyer’s obligation to make any Earnout Payment hereunder shall be suspended if any unresolved claim or dispute regarding or arising in connection with the Earnout Payments or this Section 2.5 between Buyer or the Company on the one hand, and the Sellers’ Representative (on behalf of the Sellers), on the other hand, remains unresolved.    Upon resolution thereof, Buyer shall promptly make such Earnout Payment or release the portion thereof

23

withheld, as applicable, and as adjusted pursuant to Section 2.5(f), subject to and as finally determined according to the procedures set forth in Article VIII.

(f)                                   Buyer shall have the right to offset against any Earnout Payment any claims for which it is entitled to indemnification under this Agreement, subject to the limitations on such indemnification set forth in Section 8.2.  Payments under the Company Retention Bonus Plan shall be considered an Earnout Payment, and thus subject to offset, for purposes of this Section 2.5(f) and Section 8.2.

(g)                                  The right of any Seller Indemnifying Party to receive any Earnout Payment (i) is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Seller Indemnifying Parties only the rights of a general unsecured creditor under applicable state law); (ii) will not be represented by any form of certificate or instrument; (iii) does not give any Seller Indemnifying Party any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of Buyer’s Capital Stock or any Capital Stock of Buyer’s Affiliates; (iv) are not redeemable; and (v) may not be sold, assigned, pledged, gifted, conveyed, transferred or otherwise disposed of (a “Transfer”), except (i) by operation of law or pursuant to the laws of descent and distribution or (ii) with the Buyer’s prior written consent (and any such Transfer in violation of this Section 2.5 shall be null and void).

(h)                                 Notwithstanding anything contrary in this Agreement, in the event that any Key Employee has not been continuously employed or engaged full-time (devoting at least forty (40) hours per week to such employment) as an employee of the Company through the date that any Earnout Payment would otherwise be payable by Buyer to such Key Employee pursuant to this Section 2.5, such Key Employee’s Pro Rata Fully-Diluted Percentage of such Earnout Payment, to the extent payable in respect of Shares pursuant Section 2.3(a), shall be payable to such Key Employee, by wire transfer of immediately available funds, without interest thereon, on the first (1st) anniversary of the date on which such portion of such Earnout Payment would have otherwise been payable by Buyer to such Key Employee; provided, however, that such deferral shall not apply if such Key Employee (i) is terminated without Cause, (ii) voluntarily resigns for Good Reason or (iii) dies.

(i)                                     The Seller Indemnifying Parties, the Company and Buyer intend that (i) no portion of an Earnout Payment, if any, to the extent payable in respect of Shares pursuant Section 2.3(a), shall be treated as compensation for any Tax purpose (and therefore shall not constitute deferred compensation to which Section 409A could apply), and (ii) each Earnout Payment, if any, to the extent payable in respect of Shares pursuant Section 2.3(a), shall qualify under the exception for transaction-based payments of deferred compensation under Treasury Regulations Section 1.409A-3(i)(5)(iv)(A).  All references in this Section 2.5 to Section 409A or any Treasury Regulations thereunder have been included solely for the purpose of ensuring that, in the event of a determination by a governmental entity that is contrary to the parties’ intention as described in the preceding sentence, each Earnout Payment, if any, shall comply with the requirements of Section 409A.

(j)                                    Earn-Out Related Covenants.

(i)                                     During the Earnout Periods, Buyer agrees to use commercially reasonable efforts consistent with sound business practice to (1) operate the Company in the ordinary course of business consistent with past practice (subject to the attached 2016/2017 Operating Budget and an operating budget of the Company for the remainder of the Second Earnout Period consistent with the 2016/2017 Operating Budget, to be mutually agreed upon by Buyer or its Affiliates, on the one hand, and the Sellers’ Representative or the then current Chief Executive Officer of the Company’s business, on

24

the other hand); and (2) avoid taking actions or failing to take actions the primary purposes of which is to prevent the Company from satisfying Earnout targets set forth in Section 2.5.

(ii)                                  Without limiting the foregoing, during the Earnout Periods without the consent of the Sellers’ Representative (which such consent shall not be unreasonably withheld, delayed or conditioned):  (A) Buyer shall allow the continuing employees of the Company who serve as management of the business following the Closing to make day to day operational decisions consistent with the Company’s past practice; (B) Buyer shall not require any continuing employee of the Company to spend a material amount of time on responsibilities unrelated to the business of the Company unless a negotiated reimbursement to the Company is agreed to by Buyer and Sellers’ Representative; and (C) Buyer shall continue to operate the Company as a going concern and shall not: (1) engage in discounting, promotional and refund practices that are materially inconsistent with those of the Company pre-Closing and whose primary purpose is to attempt to reduce the Earnout Payments, (2) materially and adversely change the base salary and bonus compensation structure for personnel of the Company from those in effect immediately following the Closing, or (3) other than with respect to a Product Sale or a Business Sale permit the sale of any material equipment or other assets of the Company outside the ordinary course of business.

(iii)                               During the Earn-Out Periods, the following guiding principles will govern joint marketing efforts between Buyer and its Affiliates (other than the Company), on the one hand (the “Buyer Parties”), and the Company, on the other hand, it being understood that any such marketing efforts shall be subject to the final approval of Buyer, on the one hand, and the Sellers’ Representative, on the other hand:  (i) the Buyer Parties and the Company will promote each other’s digital products in exchange for a 50/50 revenue share of promoted traffic to the other’s digital database, provided that the timing and extent of database promotion shall be mutually agreed upon; (ii) the parties shall mutually agree on any solicitation of the Company’s player database with regard to the Buyer Parties’ other digital products (such consent not to be unreasonably withheld) and vice versa; (iii) the Company will use commercially reasonable efforts to produce a Hollywood branded classic slots game; (iv) the Buyer Parties will use commercially reasonable efforts to promote the aforementioned Hollywood branded game to their digital and land based player databases; and (v) the Company will use commercially reasonable efforts to integrate loyalty programs of the Buyer Parties and promote Buyer Parties’ land based gaming facilities in exchange for an agreed upon affiliate marketing share of such revenue.

(iv)                              Notwithstanding anything in this Section 2.5(j) to the contrary, the parties recognize and agree that (x) neither Buyer’s Affiliates nor Buyer has any fiduciary duties to the Seller Indemnifying Parties or the Company to operate the business and operations of the Company to achieve or maximize achievement of the Earnout Payments, (y) Buyer’s and its Affiliates’ respective Boards, shall retain sole discretion over Company management with respect to the operations of the Company consistent with their fiduciary duties to their respective stockholders, as applicable and (z) Buyer and the Company shall be operated in a manner as is required to comply with the Buyer Compliance Matters, none of the covenants set forth in this Section 2.5(j) shall require the Company, Buyer or any of their respective Affiliates to operate in contravention of the Buyer Compliance Matters and to the extent there is any inconsistency between the Buyer Compliance Matters and the covenants set forth herein, the requirement to operate the Company and its business in a manner consistent with the Buyer Compliance Matters shall control.  In addition, the Company may be required to include a prominent disclaimer, which provision shall be reasonably acceptable to Buyer, to the effect that casino style social games are intended for use by those 21 or older and not or those on a patron excluded list.  To the extent that Buyer determines to require the Company to implement any meaningful compliance related requirements during the Earnout Period that are outside the scope of Buyer Compliance Matters and that would reasonably be expected to have any negative impact on TTM EBITDA, (x) the parties will work together in good faith to undertake commercially reasonable steps (not inconsistent with the Buyer Compliance Matters) to

25

minimize such negative impact at Buyer’s expense and (y) any remaining negative impact actually suffered by the Company during the Earnout Period shall be credited to TTM EBITDA to the extent such impact is tangible and verifiable.

(k)                                 In the event of any sale, exclusive license or other disposition of a product of the Company during the Earnout Periods by Buyer, any of its Affiliates or the Company to a third party (a “Product Sale”) or any acquisition of the business of the Company during such period by a third party, whether by an acquisition of all or substantially all of the capital stock of the Company (by merger, consolidation, stock sale or otherwise) or all or substantially all of the assets of the Company’s business (a “Business Sale”), Buyer shall cause the third party acquiring a Company product and/or the business of the Company, as applicable, to assume the obligations of Buyer under this Section 2.5 (and Buyer shall not by such assumption be relieved of its obligations under this Section 2.5) with respect to any such Company product acquired by such third party or the Business, as applicable.  In the event of any assumption of any obligations of Buyer under the preceding sentence, the third party assuming such obligations shall enter into an agreement with the Sellers’ Representative, on behalf of the Sellers and the Former In-the-Money Option Holders, in a form reasonably acceptable to the Sellers’ Representative, agreeing to be bound by the applicable provisions of this Agreement.  In the event of such Product Sale or Business Sale the Buyer and Sellers’ Representative will work in good faith to mutually determine the treatment of any proceeds of such Product Sale or Business Sale with respect to the calculation of TTM EBITDA under this Agreement.  If the Buyer and Sellers’ Representative are unable to determine treatment of such sale proceeds for purposes of the calculation of TTM EBITDA within twenty (20) days of the consummation of such sale,  the Sellers’ Representative and Buyer shall submit such matter to a mutually acceptable third party valuation expert.  Buyer and Sellers’ Representative shall instruct such valuation expert to make a final determination of such TTM EBITDA treatment, by reference to the proceeds from the sale and the then- current marketplace as well as the original terms and conditions of this Agreement.  Buyer and the Sellers’ Representative will cooperate (and Buyer shall cause the Company to cooperate) with the valuation expert during the term of its engagement.  The determination of the valuation expert shall become final and binding on the parties hereto on the date such expert delivers its final resolution in writing to Buyer and the Sellers’ Representative (which final resolution shall be delivered not more than thirty (30) days following submission of such matter), and such resolution by such expert shall not be subject to court review or otherwise appealable.

(l)                                     In the event that any Company Transaction involving Buyer (substituting references to “Buyer” for references to “the Company” in the definition thereof) occurs during such period, Buyer shall cause Buyer’s successor entity or surviving entity to assume the obligations of Buyer  under this Section 2.5 (and, if Buyer survives such transaction, Buyer shall not by such assumption be relieved of its obligations under this Section 2.5).  In the event of any assumption of any obligations of Buyer under the preceding sentence, Buyer’s successor entity or surviving entity shall enter into an agreement with the Sellers’ Representative, on behalf of the Sellers and the Former In-the-Money Option Holders, in a form reasonably acceptable to the Sellers’ Representative, agreeing to be bound by the applicable provisions of this Agreement.

(m)                             Notwithstanding anything to the contrary in this Agreement each Seller agrees not to intentionally take or omit to take any other action (including action or inaction through Affiliates) to artificially inflate the Company’s revenues during the Earnout Period.

2.6                                                             Withholding Rights.  Notwithstanding anything in this Agreement to the contrary, Buyer, the Company and the Escrow Agent shall be entitled to withhold and deduct from the consideration otherwise payable pursuant to this Agreement any amount that Buyer or the Company or the Escrow Agent, as applicable, is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local or non-U.S. Tax law.  To the extent that amounts

26

are so withheld and timely paid over to the appropriate Tax authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding were made.

2.7                                                             Securityholders Schedule.  The Company shall prepare and deliver to Buyer the Securityholders Schedule not later than three (3) Business Days prior to the scheduled Closing Date.

ARTICLE III
CONDITIONS TO CLOSING

3.1                                                             Conditions to Buyer’s Obligations.  The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions on or prior to the Closing Date:

(a)                                 Representation and Warranties.  The representations and warranties set forth in Article V that are qualified as to materiality or Material Adverse Effect shall be true and correct in all respects and as of the Closing and all other representations and warranties set forth in Article V that are not so qualified shall be true and correct in all material respects as of the Closing, in each case as though then made, other than those representations and warranties that address matters as of particular dates which shall be true and correct in all material respects as of such dates;

(b)                                 Covenants.  Each Seller and the Company shall have performed, in all material respects, all of the covenants and agreements required to be performed by them hereunder prior to the Closing;

(c)                                  Third-Party Approvals.  The Company shall have received or obtained all third-party consents and approvals that are identified on the attached Third-Party Approvals Schedule (collectively, the “Third-Party Approvals”), in each case on terms and conditions reasonably satisfactory to Buyer;

(d)                                 Governmental Approvals.  Buyer, the Sellers and the Company shall have received or obtained all governmental and regulatory consents, novations, approvals, licenses and authorizations that are necessary (i) for the consummation of the transactions contemplated hereby or (ii) for Buyer to own the Shares and to operate the businesses of and control the Company following the Closing (collectively, the “Governmental Approvals”);

(e)                                  Litigation.  No suit, action or other proceeding shall be pending or overtly threatened before any Governmental Authority or any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge could reasonably be expected to (i) prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby or declare unlawful any of the transactions contemplated hereby, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation; (iii) affect adversely, in any material respect, the right of Buyer to own the Shares or operate the business of or control the Company, or (iv) affect adversely, in any material respect, the right of the Company to own its  assets or control its business.

(f)                                   No Material Adverse Effect.  There shall have not have occurred a Material Adverse Effect that is continuing as of the Closing;

(g)                                  Escrow Agreement.  The Sellers’ Representative shall have executed and delivered the Escrow Agreement, and the Escrow Agreement shall be in full force and effect as of the Closing and shall not have been amended or modified;

27

(h)                                 Restrictive Covenants Agreement.  Each of the Key Employees shall have executed and not revoked or expressed an intent to revoke their respective Restrictive Covenant Agreements;

(i)                                     Key Employee Hire Package.  Each of the Key Employees shall have executed and delivered the documents set forth in their respective Key Employee Hire Package;

(j)                                    Employee Hire Package.  At least ninety percent (90%) of the employees of the Company other than the Key Employees shall have executed and delivered their respective Employee Hire Packages;

(k)                                 FIRPTA Certificate.  The Company shall have delivered to Buyer a certification, under penalties of perjury, stating that the Company is not and has not been a United States real property holding corporation, dated as of the Closing Date and in form and substance required under Treasury Regulations Section 1.897-2(h);

(l)                                     Termination of Company Options.  All Company Options shall have been exercised prior to the Closing or shall have been cancelled in accordance with Section 2.3(b);

(m)                             Capital Stock.  Buyer shall have acquired 100% of the Capital Stock of the Company;

(n)                                 D&O Tail.  The Company shall have provided Buyer with evidence reasonably satisfactory to Buyer of the purchase of the D&O Tail together with a successor-in-interest endorsement in accordance with Section 4.13;

(o)                                 Resignation Letters.  The Company shall have provided Buyer with copies of resignations, effective as of the Closing, of each director of the Company in accordance with Section 4.12;

(p)                                 280G Approval.  Prior to the Closing, the Company shall have delivered to Buyer evidence satisfactory to Buyer that either (i) any shareholder vote required pursuant to Section 4.11 was solicited in conformity with Section 280G of the Code and the regulations promulgated thereunder and the requisite shareholder approval was obtained with respect to any payments and/or benefits that were subject to the shareholder vote (the “280G Approval”) or (ii) the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the waivers of those payments and/or benefits which were executed by the affected individuals;

(q)                                 Officer’s Certificate.  At the Closing, the Company shall have delivered to Buyer: (i) a certificate signed by an officer of the Company, dated the date of the Closing, stating that the conditions in this Section 3.1(a) through (p) have been satisfied as of the Closing; (ii) copies of all Third-Party Approvals and Governmental Approvals, if any; and (iii) such other documents or instruments as are required to be delivered by the Sellers or the Company at the Closing pursuant to the terms hereof;

(r)                                    Secretary’s Certificate.  At the Closing, the Company shall have delivered to Buyer a certificate signed by the Secretary of the Company, providing copies of the resolutions of the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby;

28

(s)                                   Good Standing Certificates.  The Company shall have delivered to Buyer good standing certificates for the Company from its jurisdiction of organization and each jurisdiction in which the Company is qualified to do business as a foreign entity, in each case dated as of a recent date prior to the Closing Date; and

(t)                                    Other Transaction Documents.  All proceedings to be taken by the Sellers and the Company in connection with the consummation of the transactions contemplated hereby, and all agreements, certificates, instruments and other documents required to be delivered by the Sellers’ Representative (on behalf of the Sellers) or the Company to effect the transactions contemplated hereby (collectively, the “Transaction Documents”) shall be reasonably satisfactory in form and substance to Buyer.  Any condition specified in this Section 3.1 may be waived by Buyer if such waiver is set forth in a writing duly executed and delivered by Buyer.

3.2                                                             Conditions to the Company’s and the Sellers’ Obligations.  The obligation of the Company and the Sellers to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions at or prior to the Closing:

(a)                                 Representations and Warranties.  The representations and warranties set forth in Article VI that are qualified as to materiality or material adverse effect shall be true and correct in all respects as of the Closing and all other representations and warranties set forth in Article VI that are not so qualified shall be true and correct in all material respects as of the Closing, in each case, as though then made, other than those representations and warranties that address matters as of particular dates which shall be true and correct in all material respects as of such dates;

(b)                                 Covenants.  Buyer shall have performed, in all material respects, all the covenants and agreements required to be performed by it hereunder prior to the Closing;

(c)                                  Escrow Agreement.  Each of the parties to the Escrow Agreement other than the Sellers’ Representative shall have executed and delivered the Escrow Agreement, and the Escrow Agreement shall be in full force and effect as of the Closing and shall not have been amended or modified;

(d)                                 Litigation.  No suit, action or other proceeding shall be pending before any court or governmental or regulatory official, body or authority or any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge could reasonably be expected to (i) prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby or declare unlawful any of the transactions contemplated hereby or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such injunction, judgment, order, decree or ruling shall be in effect;

(e)                                  Closing Certificate.  At the Closing, Buyer shall have delivered to the Company (on behalf of the Sellers) (i) a certificate signed by an authorized officer of Buyer, dated the date of the Closing, stating that the conditions specified in Section 3.2(a) above have been satisfied, (ii) certified copies of the resolutions of Buyer’s board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby and (iii) a good standing certificate with respect to Buyer from the Secretary of State of the State of Delaware and from each other jurisdiction in which Buyer is qualified to do business as a foreign corporation, in each case dated as of a recent date prior to the Closing Date; and

29

(f)                                   Other Proceedings.  All proceedings to be taken by Buyer in connection with the consummation of the transactions contemplated hereby and all documents required to be delivered by Buyer to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Company (on behalf of the Sellers).  Any condition specified in this Section 3.2 may be waived if such waiver is set forth in a writing duly executed and delivered by the Company (on behalf of the Sellers).

ARTICLE IV

COVENANTS PRIOR TO CLOSING

Each of the parties agrees as follows with respect to the period between the date of this Agreement and the Closing:

4.1                                                             General.  Subject to the terms of this Agreement, each party shall use reasonable best efforts to take all actions and do all things necessary, proper or advisable in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the conditions set forth in ARTICLE III above).  Without limiting the foregoing, each of the parties shall execute and deliver all agreements and other documents required to be delivered by or on behalf of such party under ARTICLE III above.

4.2                                                             Third-Party Notices and Consents.  The Sellers and the Company shall use reasonable best efforts to give all required notices to third parties and obtain all required third-party consents, waivers, approvals, authorizations or permits in connection with the matters contemplated by this Agreement.  All such consents, waivers, approvals and notices shall be in writing and in form and substance reasonably satisfactory to Buyer, and executed counterparts of such consents, waivers and approvals shall be delivered to Buyer promptly after receipt thereof, and copies of such notices shall be delivered to Buyer promptly after the making thereof.  Notwithstanding anything to the contrary in this Agreement, neither Buyer nor any of its Affiliates (which for purposes of this sentence shall include the Company) shall be required to pay any amounts in connection with obtaining any consent, waiver or approval or provide any guarantees of the obligations of the Sellers or the Company.

4.3                                                             Governmental Notices and Consents.  Each of the parties shall give any notices to, make any filings with, and use reasonable best efforts to obtain, any authorizations, consents and approvals of all federal, state, local and foreign governments and governmental agencies in connection with the matters contemplated by this Agreement.

4.4                                                             Conduct and Operation of Business of the Company.  During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to Section 7.1 or the Closing Date, the Company and the Sellers shall operate the business of the Company in the ordinary course of business consistent with past practices, except (a) with the prior written consent of Buyer (such consent not to be unreasonably withheld) or (b) as specifically contemplated by this Agreement.  During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date, the Company agrees to (a) pay its Taxes when due (subject to the right of Buyer to review and approve any Tax Returns in accordance with this Agreement), (b) to use commercially reasonable efforts to pay or perform other obligations when due, (c) to use commercially reasonable efforts to preserve intact its present business, (d) to use commercially reasonable efforts to keep available the services of its present officers and employees, (e) to use commercially reasonable efforts to preserve its assets and Technology, (f) to pay its bills when due and (g) to use commercially reasonable efforts to preserve its relationships with others having business dealings with them; in each case, with the goal of preserving unimpaired their goodwill and ongoing businesses at the

30

Closing.  Without limiting the generality of the foregoing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to Section 7.1 or the Closing Date, except with the prior written consent of Buyer (such consent not to be unreasonably withheld), the Company shall not from and after the date of this Agreement:

(a)                                 make any expenditure or enter into any commitment or transaction exceeding $50,000 individually or $150,000 in the aggregate;

(b)                                 (i) sell or license or transfer to any Person or entity any rights to any Company Intellectual Property or Company Technology or enter into any agreement with respect to any Company Intellectual Property or Company Technology with any Person or with respect to any intellectual property rights or technology of any Person, (ii) buy or license any intellectual property rights or technology or enter into any agreement with respect to the intellectual property rights or technology of any Person or entity, or (iii) enter into any agreement with respect to the development of any intellectual property rights or technology with a third party, except in each case, in the ordinary course of business consistent with past practice;

(c)                                  terminate or extend, or materially amend, waive, modify, or violate the terms of, any Material Contract, except for extensions in the ordinary course of business consistent with past practice;

(d)                                 engage in or enter into any material transaction or commitment, or relinquish any material right;

(e)                                  enter into or amend, waive or modify the terms of any Material Contract pursuant to which any other party is granted marketing, distribution, development or similar rights of any type or scope with respect to any products or Company Technology;

(f)                                   initiate or settle any litigation, other than to enforce its rights under this Agreement, except in connection with collections actions with Company customers, in the ordinary course of business consistent with past practice;

(g)                                  declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of Company Capital Stock (or options, warrants or other rights exercisable therefor), other than with respect to the unvested shares of Company Capital Stock purchased at no more than cost;

(h)                                 issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of Company Capital Stock or any securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities, other than in connection with the exercise of Company Options outstanding as of the date hereof;

(i)                                     cause or permit any amendments to the Company’s certificate of incorporation, currently in effect, or other organizational documents of the Company (whether by merger or otherwise);

31

(j)                                    acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company’s business;

(k)                                 purchase or sell (or enter into any agreement to purchase or sell) any interest in real property, grant any security interest in real property, enter into any lease, sublease, license, grant any right to occupy or use, or enter into any lease, sublease, license, or other use or occupancy agreement with respect to any real property, or alter, amend, modify or terminate any of the terms of any Lease Agreements or other Material Contract with respect to real property, or sell or grant any security interest in, or lease, sublease, license or grant any right to use any of the Company’s tangible assets material to the conduct of the Company’s business;

(l)                                     incur or guarantee any Indebtedness or issue or sell any debt securities or guarantee any debt securities or other obligations of others or create a Lien over any of its assets, other than Permitted Liens;

(m)                             grant any loans to others or purchase debt securities;

(n)                                 grant any severance, change of control, retention or termination pay (in cash, property or otherwise) to any employee, including any officer, of the Company, except for (i) payments made pursuant to the Material Contracts or (ii) one-time cash bonuses paid by the Company to its service-providers out of Company Cash;

(o)                                 hire, offer to hire, adjust the service status, or terminate any employees, or encourage any employees to resign from the Company, except with respect to positions of the Company listed on the Open Positions Schedule attached hereto;

(p)                                 make any representations or issue any communications to employees that are inconsistent with this Agreement or the transactions contemplated thereby, including any representations regarding offers of employment from Buyer;

(q)                                 terminate, adopt, amend or fail to maintain any Company Plan, enter into any employment agreement, agree to pay any special bonus or special remuneration to any Employee, or increase or agree to increase the salaries, wage rates, or other compensation or benefits of Employees except (i) payments made pursuant to this Agreement and (ii) one-time cash bonuses paid by the Company to its service-providers out of Company Cash;

(r)                                    revalue any of its assets (whether tangible or intangible), including writing off notes or accounts receivable, settle, discount or compromise any accounts receivable, or reverse any reserves other than in the ordinary course of business and consistent with past practice, except as required by GAAP;

(s)                                   pay, discharge or satisfy, in an amount in excess of $50,000 in any one case, or $150,000 in the aggregate, any claim, Liability, loan or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise);

(t)                                    make, change or revoke any Tax election, change an annual accounting period, adopt or change any Tax accounting method, enter into any closing agreement or Tax ruling, settle or compromise any material Tax claim, assessment or proceeding, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment, surrender any right to claim a refund

32

of Taxes, file any income or other material Tax Return (including any amended Tax Return) unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Buyer has consented to such filing, or take any action that would have the effect of increasing a Tax liability of the Company for any taxable period ending after the Closing Date;

(u)                                 enter into any (i) license, distribution, reseller, OEM, joint venture or joint marketing or any similar arrangement or agreement or (ii) contract with any governmental entity;

(v)                                 adopt or change the Company’s accounting policies or procedures, including with respect to reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, billing and invoicing policies, or payment or collection policies or practices, except as required by GAAP; or

(w)                               take, commit or agree in writing or otherwise to take, any of the actions described in Sections 4.4(a) through 4.4(v), inclusive, or any other act or omission that would cause or result in any of its representations and warranties contained herein being untrue or incorrect.

Notwithstanding the foregoing, nothing in this Section 4.4 shall prohibit the Company or the Sellers from taking any action or omitting to take any action as required or as expressly contemplated by this Agreement.

4.5                                                             Access.  The Company shall (and the Sellers shall cause the Company to) afford officers, managers, directors, employees, attorneys, accountants and other agents to afford, to Buyer and its accounting, legal and other representatives and potential lenders, as well as their respective officers, employees, affiliates and other agents, full and complete access at all reasonable times and during normal business hours, upon reasonable notice, to the personnel of the Company and to business, financial, legal, Tax, compensation and other data and information concerning the affairs and operations of the Company.  The Company shall (and the Sellers shall cause Company to) report to Buyer, as and when requested, concerning the status of the operations, finances and affairs of the Company.

4.6                                                             Notice of Material Developments.  Each party shall give prompt written notice (but no later than three (3) Business Days) to the other parties of (i) the occurrence of any fact, circumstance, event or action that results in, or could reasonably be expected to result in a breach of any of its representations or warranties, in any material respect, contained in ARTICLE V or ARTICLE VI below, as the case may be; (ii) any fact, circumstance, event or action that would have been required to be set forth or described in the Schedules to this Agreement in order to make the representations and warranties true and correct at any time on or after the date hereof; (iii) any breach of any covenant, in any material respect, hereunder by such party, (iv) the occurrence or non-occurrence of any fact, circumstance, event or action that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (v) any other material development affecting the ability of such party to consummate the transactions contemplated by this Agreement and (vi) any and all material developments of each matter set forth on the attached Specific Indemnity Schedule and (vii) any and all material developments with regard to any disputes or litigation involving the Company or any settlements relating thereto.  No such disclosure shall serve to amend, modify or supplement this Agreement or any schedules hereto.

4.7                                                             Exclusivity.  Neither the Seller Indemnifying Parties nor the Company shall (and the Seller Indemnifying Parties and the Company shall cause their respective Affiliates, representatives, officers, managers, employees, directors and agents not to), directly or indirectly, (i) submit, solicit, initiate, knowingly encourage or discuss any proposal or offer from any Person (other than Buyer and its Affiliates in connection with the transactions contemplated hereby), or enter into any agreement or accept

33

any offer relating to, or consummate any (a) reorganization, liquidation, dissolution or recapitalization of the Company, (b) merger or consolidation involving the Company, (c) purchase or sale of any assets, or the sale of Capital Stock (or any rights to acquire, or securities convertible into or exchangeable for, any such Capital Stock) of the Company (other than the purchase and sale of inventory and the purchase of capital equipment in the ordinary course of business consistent with past custom and practice and except in connection with the exercise of options granted to Company service providers,) or (d) similar transaction or business combination involving the Company or their business or assets (each of the foregoing transactions described in clauses (a) through (d), a “Company Transaction”) or (ii) furnish any information with respect to, assist or participate in or facilitate in any other manner any effort or attempt by any Person (other than Buyer and its Affiliates) to do or seek to do any of the foregoing.  The Sellers and the Company agree to notify Buyer promptly (and in any event within 24 hours) if any Person makes any proposal, offer, inquiry or contact with respect to a Company Transaction and shall provide the name of such Person and the details of any such proposal or offer.

4.8                                                             [Reserved].

4.9                                                             Delivery of Interim Financial Statements.  Seller Indemnifying Parties shall deliver to Buyer copies of the Company’s interim monthly and year-to-date financial statements as soon as reasonably practicable (but not later than fifteen (15) days) following the end of each monthly accounting period during the period between the date of this Agreement and the Closing.  Such financial statements shall include balance sheets, profit and loss and other analyses, as well as such other matters as Buyer may reasonably request.

4.10                                                      Sellers’ Covenants.  Each Seller shall not sell, transfer, pledge, encumber or otherwise dispose of any of the Shares (other than pursuant to this Agreement or pursuant to the transfer of Shares for estate planning purposes, either during such Sellers’s lifetime or on death by will or intestacy to such Sellers’s spouse or other member of a Sellers’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor or other fiduciary for the account of the Sellers’s spouse or members of the Sellers’s immediate family, or to a trust for the Sellers’s own self, or a charitable remainder trust, subject to such transferee’s execution of this Agreement) and shall not enter into any other agreement to do the foregoing (except for any agreement Buyer reasonably requests that each Seller execute in connection herewith).  In addition, each Seller shall not grant any proxies, deposit any Shares into a voting trust or enter into any other voting agreement with respect to the Shares.  Each Seller agrees that the remedies at law for a breach of this Section 4.10 will be inadequate and that Buyer shall be entitled to specific performance and injunctive relief to enforce this Agreement and prevent any violation hereof (and shall have all other rights and remedies at law or equity).  Each Seller hereby waives any objection to the imposition of such relief and remedies.

4.11                        280G Shareholder Approval.  Promptly following the execution of this Agreement, the Company shall submit to the holders of Company Capital Stock for approval (in a manner satisfactory to Buyer), by such number of holders of Company Capital Stock as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments or benefits that may separately or in the aggregate, constitute “parachute payments” pursuant to Section 280G of the Code (“Section 280G Payments”) (which determination shall be made by the Company and shall be subject to review and approval by Buyer), such that such payments and benefits shall not be deemed to be Section 280G Payments, and prior to the Closing, the Company shall deliver to Buyer notification and evidence satisfactory to Buyer that (a) a vote of the holders of Company Capital Stock was solicited in conformance with Section 280G and the regulations promulgated thereunder and the requisite shareholder approval was obtained with respect to any payments or benefits that were subject to the shareholder vote (the “280G Shareholder Approval”), or (b) that the 280G Shareholder Approval was not obtained and as a consequence, that such payments or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section

34

280G Payments, pursuant to the waivers of those payments or benefits, which were executed by the affected individuals prior to the vote of the holders of Company Capital Stock pursuant to this Section 4.11.

4.12                        Resignation of Directors.  The Company shall cause each director of the Company to execute a resignation letter in substantially the form attached hereto as Exhibit C (the “Form of Resignation Letter”), effective as of the Closing.

4.13                        Directors’ and Officers’ Liability.

(a)                                 Prior to the Closing, the Company shall have purchased an extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage (the “D&O Tail”) for the Company’s directors and officers (the “D&O Indemnified Parties”) in a form reasonably acceptable to Buyer, which shall provide such directors and officers with coverage for six (6) years following the Closing and shall have a scope substantially similar to the existing coverage under, and have other terms not materially less favorable to the insured persons than the terms of, directors’ and officers’ liability insurance coverage currently maintained by the Company.  The D&O Tail shall be accompanied by an endorsement that names Buyer as a successor-in-interest thereto.  Buyer will not, nor will it cause the Company to, cancel or change the D&O Tail in any respect.

(b)                                 In addition, for a period of six (6) years following the Closing, Buyer and the Company agree to indemnify and hold harmless, reimburse, exculpate from liability, and advance expenses to all D&O Indemnified Parties to the same extent and on the same terms as such persons are entitled to indemnification, reimbursement, exculpation or expense advancement by the Company as of the date hereof, whether pursuant to applicable documents (including the certificate of incorporation or bylaws), individual indemnification agreements set forth on the Disclosure Schedule, by applicable law or otherwise, for acts or omissions or matters which occurred or arose at or prior to the Closing (regardless of whether any proceeding relating to any D&O Indemnified Party’s rights to indemnification, exculpation, or expense advancement with respect to any such matters, acts, or omissions is commenced before or after the Closing); provided that no D&O Indemnified Party may seek indemnification, reimbursement, exculpation, or advancement of expenses from Buyer or the Company for amounts such D&O Indemnified Party owes or may owe to Buyer or the Company in such D&O Indemnified Party’s capacity as a Seller Indemnifying Party under the provisions set forth in ARTICLE VIII. Any claims for indemnification made under this Section 4.13 on or prior to the sixth anniversary of the Closing shall survive until the final resolution thereof.

(c)                                  The Company shall, and Buyer shall cause the Company or its successors to, pay all costs and expenses (including reasonable attorneys’ fees) incurred by any D&O Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) in any legal action brought by such person that is successful to enforce the obligations of Buyer, the Company, or its successors under this Section 4.13. The obligations of Buyer, the Company, and its successors under this Section 4.13 shall not be terminated, amended, or otherwise modified in such a manner as to adversely affect any D&O Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) without the prior written consent of such D&O Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable).

35

ARTICLE V

REPRESENTATIONS AND WARRANTIES CONCERNING
THE COMPANY AND EACH SELLER

As a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated hereby, each of the Sellers (severally but not jointly) and the Company hereby represents and warrant to Buyer, subject to such exceptions as are specifically disclosed in the disclosure schedule (referencing the appropriate section and subsection numbers, provided, however, that any disclosures made therein shall apply to any other section or subsection without repetition where it is reasonably clear on the face of such disclosure that the disclosure is intended to apply to such other section or subsection) supplied by the Company and the Sellers to Buyer (the “Disclosure Schedule”) and dated as of the date hereof, on the date hereof and (except where a representation or warranty is made herein as of a specified date) as of the Closing, as though made at the Closing Date, as follows:

5.1                                                             Corporate Organization.  The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware and is qualified to do business in every jurisdiction in which its ownership of property or conduct of business requires it to qualify , except where the failure to be so qualified would not be material to the Company.  The Company possesses all requisite corporate power and authority necessary to own and operate its properties, to carry on its businesses as now conducted and presently proposed to be conducted and to carry out the transactions contemplated by this Agreement.  The copies of the Company’s certificate of incorporation and bylaws which have been furnished to Buyer’s counsel reflect all amendments made thereto at any time prior to the date of this Agreement and are correct and complete.  The minute books (containing the records of meetings of the stockholders, the board of directors and any committees of the board of directors), and the record books of the Company are correct and complete in all material respects.  The Company is not in default under or in violation of any provision of its certificate of incorporation or bylaws.

5.2                                                             Capital Stock and Related Matters; Title to Shares.

(a)                                 As of the date hereof, the entire authorized Capital Stock of the Company consists of 20,000,000 shares of Common Stock, par value $0.00001 per share, of which 13,433,749  shares are issued and outstanding and the Company has reserved 5,036,062 shares of Common Stock for issuance to officers, directors, employees and consultants of the Company pursuant to the Company Stock Plan duly adopted by the Company’s board of directors and approved by the Company stockholders.  Of such reserved shares of Common Stock, 75,000 shares have been issued pursuant to restricted stock purchase agreements, options to purchase 3,522,313 shares have been granted and are currently outstanding, and 5,000 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Company Stock Plan.  The Company has furnished to Buyer complete and accurate copies of the Company Stock Plan and forms of agreements used thereunder.

(b)                                 Schedule 5.2(b) of the Disclosure Schedule sets forth the capitalization of the Company as of the date hereof, including the number of shares of the following:  (i) issued and outstanding Common Stock, including, with respect to restricted Common Stock, vesting schedule and repurchase price; (ii) granted stock options, including vesting schedule and exercise price; (iii) shares of Common Stock reserved for future award grants under the Company Stock Plan; (iv) each series of Preferred Stock, if any; and (v) warrants or stock purchase rights, if any.  As of the Closing Date, each Seller shall sell to Buyer good and valid title to the Shares, free and clear of all Encumbrances and the Shares shall constitute 100% of the total Capital Stock of the Company.  Except as set forth in Schedule 5.2(b) of the Disclosure Schedule, as of the date hereof, the Company does not have outstanding any stock or securities convertible or exchangeable for any shares of its Capital Stock or containing any profit

36

participation features, nor any rights or options to subscribe for or to purchase its Capital Stock or any stock or securities convertible into or exchangeable for its Capital Stock or any stock appreciation rights or phantom stock plan.  Except as set forth in Schedule 5.2(b) of the Disclosure Schedule, the Company is not subject to any option or obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Capital Stock or any warrants, options or other rights to acquire its Capital Stock.  The Company has not violated any foreign, federal or state securities laws in any material respect in connection with the offer, sale or issuance of its Capital Stock.  All of the outstanding shares of the Company’s Capital Stock have been validly issued and are fully paid and non-assessable.  There are no agreements between the Company’s equityholders with respect to the voting or transfer of the Company’s Capital Stock or with respect to any other aspect of the Company’s affairs.  There are no bonds, debentures, notes or other indebtedness of the Company outstanding having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which any stockholders of the Company may vote.  All elections and notices under Section 83(b) of the Code have been or will be timely filed by all individuals who have acquired unvested shares of the Company’s Common Stock.

5.3                                                             Authorization; Non-Contravention.

(a)                                 The execution, delivery and performance of this Agreement and all of the other agreements and instruments contemplated hereby to which the Company or the Sellers are a party have been duly authorized by the Company, or the Sellers, as applicable, and no other act (corporate or otherwise) or other proceeding on the part of the Company, or the Sellers, is necessary to authorize the execution, delivery or performance of this Agreement or the other agreements contemplated hereby and the consummation of the transactions contemplated hereby or thereby.  This Agreement has been duly executed and delivered by the Company and the Sellers and constitutes a valid and binding obligation of the Company and the Sellers enforceable in accordance with its terms, and each of the other agreements and instruments contemplated hereby to which the Company or the Sellers are a party, when executed and delivered by the Company or the Sellers, as applicable, in accordance with the terms hereof and thereof, shall each constitute a valid and binding obligation of such Person, enforceable in accordance with its respective terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.  The assignments, endorsements, stock powers and other instruments of transfer delivered by the Sellers to Buyer at the Closing will be sufficient to transfer each Seller’s entire interest, legal and beneficial, in the Shares.  Each Seller has full power and authority to convey good and marketable title to all of the Shares and upon transfer to Buyer of the certificates representing such Shares, Buyer will receive good and marketable title to such Shares, free and clear of all Encumbrances.

(b)                                 Except as set forth on Schedule 5.3(b) of the Disclosure Schedule, the execution and delivery by the Company and the Sellers of this Agreement and all of the other agreements and instruments contemplated hereby to which the Company or any Seller are a party and the fulfillment of and compliance with the respective terms hereof and thereof by the Company and the Sellers do not and shall not (a) conflict with or result in a breach of the terms, conditions or provisions of, (b) constitute a default under (whether with or without the passage of time, the giving of notice or both), (c) result in the creation of any Lien, other than a Permitted Lien, upon the Capital Stock or assets of the Company pursuant to, (d) give any third party the right to modify, terminate or accelerate any obligation under, (e) result in a violation of, or (f) require any authorization, consent, approval, exemption or other action of or by or notice or declaration to, or filing with, any third party or any court or administrative or governmental body or agency pursuant to the charter documents, bylaws or other constituent documents (including trust instruments) of the Company, or any law, statute, rule or regulation to which the Company or a Seller is subject, or any Material Contract or any agreement, instrument, license, permit, order, judgment or decree to which any Seller is subject.  Neither the Company nor any Seller is a party to

37

or bound by any written or oral agreement or understanding with respect to a Company Transaction other than this Agreement, and each such Person has terminated all discussions with third parties (other than with Buyer and its Affiliates) regarding Company Transactions.

5.4                                                             Subsidiaries.  The Company does not own any interest in a Subsidiary.

5.5                                                             Financial Statements.  Attached hereto as the Schedule 5.5 of the Disclosure Schedule are the following financial statements:

(a)                                 The 2015 Financial Statements and the 2014 Financial Statements; and

(b)                                 the unaudited balance sheet of the Company as of May 31, 2016 (the “Latest Balance Sheet”), and the related statements of income and cash flows (or the equivalent) for the 5 month period then ended.

Each of the financial statements referenced above (including in all cases the notes thereto, if any), fairly presents the financial condition of the Company in all material respects as of the respective dates thereof and the operating results of the Company for the periods covered thereby and has been prepared in accordance with GAAP consistently applied throughout the periods covered thereby, subject in the case of the interim financial statements to the absence of footnote disclosures and changes resulting from normal year-end adjustments for recurring accruals (none of which footnote disclosures or changes would, alone or in the aggregate, be materially adverse to the business, operations, assets, liabilities financial condition or operating results of the Company taken as a whole).  All books, records and accounts of the Company are accurate and complete in all material respects and are maintained in all material respects in accordance with good business practice, all applicable laws and, to the extent applicable, GAAP.

5.6                                                             Accounts Receivable.  Except as set forth on Schedule 5.6 of the Disclosure Schedule, all accounts and notes receivable reflected on the Latest Balance Sheet and all accounts and notes receivable to be reflected on the Closing Statement (net of allowances for doubtful accounts as reflected thereon and as determined in accordance with GAAP consistently applied) are or shall be bona fide receivables arising in the ordinary course of business and are not subject to any counterclaim, or a claim for a chargeback, deduction, credit, set-off or other offset, other than as reflected by the reserve for planned allowances and bad debts.  Except as set forth on Schedule 5.6 of the Disclosure Schedule, no Person has any Lien, other than Permitted Liens, on such receivables or any part thereof, and no agreement for deduction, free goods, discount or other deferred price or quantity adjustment has been made with respect to any such receivables.

5.7                                                             Absence of Undisclosed Liabilities.  Except as set forth on Schedule 5.7 of the Disclosure Schedule, the Company does not and will not have any obligation or liability (whether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due and regardless of when or by whom asserted) arising out of any transaction entered at or prior to the date hereof, or any action or inaction at or prior to the date hereof, or any state of facts existing at or prior to the date hereof, other than (a) liabilities reflected on the Latest Balance Sheet (b) liabilities and obligations which have arisen after the date of the Latest Balance Sheet in the ordinary course of business consistent with past practice (none of which is a liability for breach of contract, breach of warranty, tort, infringement, violation of law, claim or lawsuit) and (c) Transaction Expenses.

5.8                                                             No Material Adverse Effect.  Since December 31, 2015, there has occurred no fact, event or circumstance which has had or would reasonably be expected to have a Material Adverse Effect.

38

Since December 31, 2015, the Company has conducted its business only in the ordinary course of business consistent with past practice.

5.9                                                             Absence of Certain Developments.  Except as set forth on Schedule 5.9 of the Disclosure Schedule, since the date of the Latest Balance Sheet, the Company has not:

(a)                                 issued any notes, bonds or other debt securities or any Capital Stock or other equity securities or any securities or rights convertible, exchangeable or exercisable into any Capital Stock or other equity securities;

(b)                                 borrowed any amount or incurred or become subject to any liabilities for borrowed money, except Indebtedness incurred in the ordinary course of business consistent with past practice;

(c)                                  discharged or satisfied any Lien or paid any obligation or liability, other than current liabilities paid in the ordinary course of business;

(d)                                 declared, set aside or made any payment or distribution of cash or other property to any of its stockholders with respect to its Capital Stock or otherwise, or purchased, redeemed or otherwise acquired any Capital Stock or other equity securities (including any warrants, options or other rights to acquire its Capital Stock or other equity), except for in connection with the forfeiture of options or the repurchase of unvested but issued Company Capital Stock on the termination of service of Company service providers;

(e)                                  mortgaged or pledged any of its material properties or assets or subjected them to any Lien, except for Permitted Liens;

(f)                                   sold, assigned, transferred, leased, licensed or otherwise encumbered any of its tangible or intangible assets, except in the ordinary course of business consistent with past practice, or canceled any material debts or claims;

(g)                                  sold, assigned, transferred, leased, licensed or otherwise encumbered any Intellectual Property Rights, disclosed any proprietary confidential information to any Person (other than to Buyer and its Affiliates), or abandoned or permitted to lapse any Intellectual Property Rights, except in the ordinary course of business consistent with past practice;

(h)                                 made or granted any bonus or any wage or salary increase to any employee or group of employees or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;

(i)                                     suffered any extraordinary losses or waived any rights of value (whether or not in the ordinary course of business or consistent with past practice);

(j)                                    made capital expenditures or commitments therefor that aggregate in excess of $150,000;

(k)                                 delayed or postponed the payment of any accounts payable or commissions or any other liability or obligation or agreed or negotiated with any party to extend the payment date of any accounts payable or commissions or any other liability or obligation or accelerated the collection of (or discounted) any accounts or notes receivable;

39

(l)                                     made any loans or advances to, guaranties for the benefit of, or any Investments in, any Person (other than advances to employees of the Company in the ordinary course of business consistent with past practice);

(m)                             made any charitable contributions or pledges;

(n)                                 suffered any damage, destruction or casualty loss exceeding in the aggregate $150,000, whether or not covered by insurance;

(o)                                 made any change in any method of accounting or accounting policies required to be set forth in accordance with GAAP or made any write-down in the value of its inventory that is other than in the usual, regular and ordinary course of business consistent with past practice or reversed any accruals (whether or not in the ordinary course of business or consistent with past practice);

(p)                                 made any Investment in or taken any steps to incorporate or organize any Subsidiary;

(q)                                 amended its certificate of incorporation, by-laws or other organizational documents;

(r)                                    entered into any agreement or arrangement prohibiting or restricting it from freely engaging in any business or otherwise restricting the conduct of its business anywhere in the world;

(s)                                   commenced any litigation or binding dispute resolution process or settled or compromised any pending or threatened suit, action or claim the settlement or compromise of which would require the payment by the Company, except in connection with collections actions with Company customers in the ordinary course of business consistent with past practice;

(t)                                    taken any action or failed to take any action that has had, or could reasonably be expected to have, the effect of accelerating to pre-Closing periods sales to the trade or other customers that would otherwise be expected to occur after the Closing (including any failure to market and sell its products in normal commercial quantities and through normal commercial channels prior to the Closing);

(u)                                 made any changes to its normal and customary practices regarding the solicitation, booking or fulfillment of orders or the shipment and delivery of goods;

(v)                                 entered into any contract other than in the ordinary course of business consistent with past practice, or changed in any significant respect any business practice (in anticipation of the transactions contemplated hereby or otherwise);

(w)                               made, changed or revoked any Tax election, changed an annual accounting period, adopted or changed any accounting method with respect to Taxes, filed any amended Tax Return, entered into any closing agreement, settled or compromised any Tax claim, assessment or proceeding relating to the Company, surrendered any right to claim a refund of Taxes, failed to pay any Tax when due and payable, incurred any Taxes outside the ordinary course of business, or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company;

(x)                                 engaged in any promotional sales or discount or other activity with customers that has or would reasonably be expected to have the effect of materially accelerating pre-Closing periods’ sales that would otherwise be expected to occur in post-Closing periods; or

40

(y)                                 agreed, whether orally or in writing, to do any of the foregoing.

5.10                                                      Assets.

(a)                                 Except as set forth on Schedule 5.10(a) of the Disclosure Schedule, the Company has good and marketable title to, or a valid leasehold interest in, all tangible properties and assets, used by it, located on its premises or shown on the 2015 Financial Statements and the Latest Balance Sheet or acquired after the dates thereof (the “Assets”), free and clear of all Liens (other than properties and assets disposed of for fair consideration in the ordinary course of business consistent with past practice since the dates of such balance sheets and except for Liens disclosed on such balance sheets (including any notes thereto) and Permitted Liens).  The Company owns, has a valid leasehold interest in or has the valid and enforceable right to use all tangible assets necessary for the conduct of its business as presently conducted and as presently proposed to be conducted.  Except as set forth on Schedule 5.10(a) of the Disclosure Schedule, all of the Company’s buildings (including all components of such buildings, structures and other improvements), equipment, machinery, fixtures, improvements and other tangible assets (whether owned or leased) are in good condition and repair (ordinary wear and tear excepted) and are fit for use in the ordinary course of the business of the Company as presently conducted.  All such tangible assets have been installed and maintained in all material respects in accordance with all applicable laws, regulations and ordinances and in accordance with industry standards.  Except as set forth on Schedule 5.10(a) of the Disclosure Schedule, the tangible Assets constitute all of the assets necessary to conduct the business of the Company as it is conducted as of the Closing.

(b)                                 Schedule 5.10(b) of the Disclosure Schedule contains a complete list of all real property leased or subleased by the Company (individually, the “Leased Real Property” and collectively, the “Leased Realty”).  The Company does not own any real property.  The Company has a valid leasehold interest in each Leased Real Property, subject only to Permitted Liens.

(c)                                  The Company has previously delivered to Buyer’s counsel complete and accurate copies of each of the leases for the Leased Realty (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) (the “Realty Leases”).  With respect to each Realty Lease:  (i) the Realty Lease is legal, valid, binding, enforceable and in full force and effect; (ii) none of the Company nor, to the knowledge of the Company, any other party to a Realty Lease is in breach or default, and no event has occurred which, with notice or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under a Realty Lease; (iii) no security deposit or portion thereof deposited with respect to a Realty Lease has been applied in respect of a breach or default under such Realty Lease which has not been redeposited in full; (iv) there are no forbearance programs in effect with respect to a Realty Lease; (v) the Company has not subleased, mortgaged, deeded in trust or otherwise transferred or encumbered a Realty Lease or any interest therein; (vi) the possession and quiet enjoyment of the Leased Real Property by the Company under the Realty Lease has not been disturbed; (vii) the Company does not owe, or will owe in the future, any brokerage commissions or finder’s fees with respect to any Realty Lease; (viii) the other parties to the Realty Leases are not an Affiliate of, and otherwise do not have any economic interest in, the Company; (ix) there are no Liens or Encumbrances on the estate or interest created by any Realty Lease; (x) the Realty Leases have not been modified, except to the extent that such modifications are disclosed by the documents delivered to Buyer; and (xi) the Company has not been assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in any Realty Lease.  To the Company’s knowledge, all buildings, improvements and other property on the Leased Realty have received all approvals of governmental authorities (including, without limitation, certificates of occupancy, permits and licenses) required in connection with the operation thereof and have been operated and maintained in accordance with applicable legal requirements and are not in violation of any applicable zoning, building code or subdivision ordinance, regulation, order or law or restrictions or covenants of record.

41

5.11                                                      Contracts and Commitments.

(a)                                 Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:

(i)                                     pension, profit sharing, stock option  (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;

(ii)                                  contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;

(iii)                               contract under which the Company has advanced or loaned any other Person amounts;

(iv)                              agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;

(v)                                 Guaranty;

(vi)                              lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;

(vii)                           lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;

(viii)                        contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;

(ix)                              assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;

(x)                                 contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;

42

(xi)                              contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;

(xii)                           warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;

(xiii)                        agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);

(xiv)                       sales, distribution, manufacturing, supply or franchise agreement;

(xv)                          agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;

(xvi)                       contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;

(xvii)                    contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;

(xviii)                 contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or

(xix)                       any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually.

To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement.  The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.

(b)                                 All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.  Except as set forth on Schedule  5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully

43

performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties.  The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect.  There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.

(c)                                  Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.

5.12                                                      Intellectual Property Rights.

(a)                                 Schedule 5.12(a) of the Disclosure Schedule lists all Company Products by name and version number, as applicable, and specifies whether such Company Product is owned or licensed by the Company or otherwise provided by third parties.

(b)                                 Schedule 5.12(b) of the Disclosure Schedule lists (i) all Company Registered Intellectual Property and all material unregistered Trademarks used by the Company, (ii) all invention disclosures, (iii) any actions that must be taken by the Company within ninety (90) days of the Closing Date with respect to any of the foregoing, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates, and (iv) any proceedings or actions pending, or to the knowledge of the Company, threatened before any court, arbiter or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere in the world) to which the Company is or was a party and in which claims are or were raised relating to the validity, enforceability, scope, ownership or Infringement of any of the Company Registered Intellectual Property.  With respect to each item of Company Registered Intellectual Property:  (A) all necessary registration, maintenance and renewal fees have been paid, and all necessary documents and certificates have been filed with the relevant Patent, copyright, trademark or other authorities or registrars in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining the Company’s Intellectual Property Rights; (B) each such item is currently in compliance with formal applicable legal requirements (including payment of filing, examination and maintenance fees and proofs of use); (C) each such item is subsisting, valid and enforceable; and (D) each such item is not subject to any unpaid maintenance fees or Taxes.  There are no facts, information, or circumstances, including any information or facts that would constitute prior art (with respect to Patents) or prior use (with respect to Trademarks), that would render any of the Company Registered Intellectual Property invalid or unenforceable, or would affect any pending application for any Company Registered Intellectual Property.  The Company has not misrepresented, or failed to disclose, any facts or circumstances in any application for any Company Registered Intellectual Property or in the prosecution of such application that would constitute fraud or a misrepresentation with respect to such application or that would otherwise affect the enforceability of any Company Registered Intellectual Property.

(c)                                  Following the Closing, all Company Intellectual Property will be fully transferable, alienable and licensable by each of the Company and Buyer without restriction and without payment of any kind, or any obligation, to any third party to the extent as in effect immediately prior to the Closing.

(d)                                 The Company is the sole and exclusive owner of each item of Company Intellectual Property (including all items listed in Schedule 5.12 of the Disclosure Schedule) and, except

44

as may be set forth in Schedule 5.12(d) of the Disclosure Schedule, of each Company Product, free and clear of any Liens, except Permitted Liens.  The Company has the sole and exclusive right to bring a claim or suit against a third party for Infringement of the Company Intellectual Property and to retain for itself any damages recovered in any such action.  The Company has not (i) granted any exclusive or non-exclusive license with respect to, any Company Intellectual Property to any other Person, or (ii) done any act or failed to take any action that would cause the rights of the Company in any Company Intellectual Property to enter into the public domain.

(e)                                  Schedule 5.12(e) of the Disclosure Schedule lists all Material Contracts under which a third party licenses or provides any Intellectual Property (including covenants not to sue, non-assertion provisions or releases or immunities from suit that relate to Intellectual Property) to the Company, excluding any licenses for Shrink-Wrap Code or for Open Source Software.  Other than Intellectual Property licensed to the Company under (i) licenses for the Open Source Software listed in Schedule 5.12(e) of the Disclosure Schedule, (ii) licenses for Shrink-Wrap Code and (iii) the licenses set forth in Schedule 5.12(e) of the Disclosure Schedule, no third party Intellectual Property is used in or necessary for the conduct of the business of the Company as it currently is conducted by the Company, including the design, development, manufacture, use, marketing, import for resale, distribution, licensing out and sale of all Company Products.

(f)                                   Copies of the Company’s standard form(s) of non-disclosure agreement and the Company’s standard form(s), including attachments, of non-exclusive licenses of the Company Products to end-users, including terms of use (collectively, the “Standard Form Agreements”) are attached to Schedule 5.12(f) of the Disclosure Schedule.  Other than non-disclosure agreements and non-exclusive licenses of the Company Products to end-users that do not materially differ in substance from the Standard Form Agreements and that have been entered into in the ordinary course of business, Schedule 5.12(e) of the Disclosure Schedule lists all Material Contracts under which the Company has granted, licensed, disclosed or provided any Company Intellectual Property to third parties (other than rights granted to contractors or vendors to use Company Intellectual Property for the sole benefit of the Company), including any Material Contracts containing covenants not to sue, non-assertion provisions, or releases or immunities from suit that relate to Intellectual Property, including in each case in this sentence, the option to do any of the foregoing.

(g)                                  The operation of the business of the Company as it has been conducted since the inception of the Company, as currently conducted, and the design, development, use, import, branding, advertising, promotion, marketing, manufacture, sale, offer for sale, provision, distribution and licensing out of any Company Product, has not, does not, and, when conducted in substantially the same manner by Buyer or the Company following the Closing, will not Infringe any Intellectual Property Rights of any Person.  The Company has not received notice from any Person claiming that such operation or any act, any Company Product, any Technology used by the Company or any Company Intellectual Property Infringes or Infringed any Intellectual Property Rights of any Person (nor does the Company have knowledge of any basis therefor or threat thereof).  No Company Product or Company Intellectual Property is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, provision, transfer, assignment or licensing thereof by the Company or may affect the validity, registrability, use or enforceability of such Company Product or Company Intellectual Property.  Except as set forth in this Section 5.12(g), no provision of this Agreement is a representation or warranty against noninfringement.

(h)                                 No third party that has licensed (including by means of covenant not to sue) or provided Intellectual Property to the Company has retained ownership of or license rights under any Intellectual Property in any modifications, improvements or derivative works made solely or jointly by the Company.

45

(i)                                     Neither this Agreement nor the transactions contemplated by this Agreement, including the assignment to Buyer by operation of law or otherwise of any Material Contracts to which the Company is a party, will cause:  (i) Buyer, any of its Affiliates or the Company  to grant to any third party any right to or with respect to any Intellectual Property owned by, or licensed to, any of them, or (ii) Buyer, any of its Affiliates or the Company to be bound by, or subject to, any non-compete, non-solicit or other restriction on the operation or scope of the business, or (iii) Buyer, any of its Affiliates or the Company to be obligated to pay any royalties or other fees or consideration with respect to Intellectual Property of any third party in excess of those payable by the Company in the absence of this Agreement or the transactions contemplated hereby.

(j)                                    To the Company’s knowledge, no Person has Infringed any Company Intellectual Property.

(k)                                 Copies of the Company’s standard form of proprietary information, confidentiality and assignment agreement for employees (the “Employee Proprietary Information Agreement”) and the Company’s standard form of consulting agreement containing proprietary information, confidentiality and assignment provisions for consultants or contractors (the “Consultant Proprietary Information Agreement”) are attached to Schedule 5.12(k) of the Disclosure Schedule.  Each (i) current and former employee of the Company, (ii) current and former consultant or contractor of the Company and (iii) individual who has been involved in the creation, invention or development of Intellectual Property or Company Products for or on behalf of the Company (each, a “Contributor”), has executed and delivered (and to the Company’s knowledge is in compliance with) the applicable form of Employee Proprietary Information Agreement or Consultant Proprietary Information Agreement that does not deviate in any material respect from such standard forms.  Without limiting the foregoing, no Contributor has made or asserted any right, claim, interest or option, including the right to further remuneration or consideration or to assert any Moral Rights, with respect to Company Products or Company Intellectual Property, nor has any Contributor made any assertions with respect to any alleged ownership or any such right, claim, interest or option, nor threatened any such assertion; and neither this Agreement nor the transactions contemplated by this Agreement, including the assignment to Buyer by operation of law or otherwise of any Material Contracts to which the Company is a party, will provide any Contributor with any such right, claim interest or option.  All Contributors that are or were, at the time of employment or engagement by the Company, residents of countries that recognize Moral Rights, or whose employment relationships are or were governed by applicable laws in countries that recognize Moral Rights, have executed written agreements with the Company that, to the fullest extent permitted under applicable law, waive for the benefit of the Company all Moral Rights relating to the business of the Company.

(l)                                     The Company has taken all commercially reasonable steps to protect the confidentiality of confidential information and trade secrets of the Company and any third party that has provided any confidential information or trade secrets to the Company.

(m)                             No funding, facilities or resources of any government, university, college, other educational institution, multi-national, bi-national or international organization or research center was used in the development of the Company Products or Company Intellectual Property.

(n)                                 Schedule 5.12(n) of the Disclosure Schedule lists all Open Source Software that has been incorporated into, integrated with, combined with or linked to any Company Product or Company Technology in any way, or from which any Company Product or Company Technology was derived, and identifies the Company Product in which each such Open Source Software was incorporated into, integrated with, combined with or linked to any such Company Product or Company Technology (such description shall include whether the Open Source Software was modified, distributed, conveyed or

46

licensed out by the Company ).   The Company has not used Open Source Software in any manner that would, with respect to any Company Product or any Company Intellectual Property, (i) require its disclosure or distribution in source code form, (ii) require the licensing thereof for the purpose of making derivative works, (iii) impose any restriction on the consideration to be charged for the distribution thereof, or (iv) create, or purport to create, obligations for the Company with respect to Company Technology or grant, or purport to grant, to any third party, any rights or immunities under Company Technology.  With respect to any Open Source Software that is or has been used by the Company in any way, the Company has been and is in compliance with all applicable licenses with respect thereto.

(o)                                 Neither the Company nor any other Person acting on its behalf has disclosed, delivered or licensed to any Person, agreed to disclose, deliver or license to any Person, or permitted the disclosure or delivery to any escrow agent or other Person of, any source code for any Company Product or Company Technology, except for disclosures to employees, contractors or consultants under binding written agreements that prohibit use or disclosure except in the performance of services to the Company.

(p)                                 Schedule 5.12(p) of the Disclosure Schedule identifies all categories of Personally Identifiable Information collected by the Company through Internet websites owned, maintained or operated by the Company (“Company Sites”), through any Company Products, or through any other means.  The Company has complied with all applicable laws, contractual and fiduciary obligations, and the Company’s privacy policies relating to (i) the privacy of users of Company Sites and (ii) the collection, storage, use, transfer and any other processing of any Personally Identifiable Information collected or used by the Company in any manner or maintained by third parties having authorized access to such information.  The execution, delivery and performance of this Agreement comply with all applicable laws relating to privacy and with the Company’s privacy policies.  Copies of all current and prior privacy policies of the Company that apply to the Company Sites or the Company Products are set forth on Schedule 5.12(p) of the Disclosure Schedule.  Each such privacy policy and all materials distributed or marketed by the Company have at all times made all disclosures to users or customers required by applicable laws, and none of such disclosures made or contained in any such privacy policy or in any such materials has been inaccurate, misleading or deceptive or in violation of any applicable laws.

(q)                                 The Company has taken at all times at least commercially reasonable steps (including implementing and monitoring compliance with adequate measures with respect to technical and physical security) to protect all Personally Identifiable Information and ensure it against loss and against unauthorized access, use, modification, disclosure or other misuse.  To the Company’s knowledge, there has been no unauthorized access to or loss, theft, or misuse of Personally Identifiable Information.

(r)                                    Schedule 5.12(r) of the Disclosure Schedule sets forth the Company’s current (as of the date hereof) list of known bugs maintained by its development or quality control groups with respect to the Company Products and Company Technology.  There have been, and are, no claims asserted against the Company or, to the Company’s knowledge, any of its customers or distributors related to the Company Products or Company Intellectual Property, nor have there been any threats thereof and (iii) the Company has not been or is not required to recall, or otherwise provide notices regarding the operation of, any Company Products.

(s)                                   Prior to general release of each Company Product (and Company Technology) the Company conducts industry standard testing to detect any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components that would permit unauthorized access or the unauthorized disablement or erasure of such Company Product, Company Technology or data or other software of users (“Contaminants”).  The Company has taken

47

commercially reasonable steps to prevent the introduction of Contaminants into Company Products or Company Technology.

(t)                                    The Company has taken commercially reasonable steps, including the steps and procedures specified in Schedule 5.12(t) of the Disclosure Schedule to protect the information technology systems used in connection with the operation of the Company.  There have been no material unauthorized intrusions or breaches of the security of such information technology systems.  The Company has the disaster recovery and security plans, procedures and facilities for the business specified in Schedule 5.12(t) of the Disclosure Schedule.

(u)                                 Schedule 5.12(u) of the Disclosure Schedule sets forth a true, correct and complete list of all Social Media Accounts that the Company utilizes, operates or maintains, including in connection with marketing or promoting any Company Products.  It also lists, for each such Social Media Account, any account name(s), user name(s), nickname(s), display name(s), handle(s), and other identifiers registered or used by or for the Company with respect to such Social Media Account (collectively, “Social Media Account Names”).  All use of the Social Media Accounts complies with and has complied with (a) all terms and conditions, terms of use, terms of service and other Material Contracts applicable to such Social Media Accounts and (b) applicable law.  Each current and former employee, contractor and consultant of the Company has entered into a Material Contract that provides that the Company, and not such employee, contractor or consultant, owns and controls the Social Media Accounts and Social Media Account Names (including all associated information and content and all relationships, interactions and communications with fans, followers, visitors, commenters, users and customers) and requires such employee, contractor or consultant to relinquish to the Company all Social Media Account Names, passwords, and other log-in information for the Social Media Accounts upon termination of employment or engagement or at any other time upon the Company’s request.

5.13                                                      Litigation.  Except as set forth on Schedule 5.13 of the Disclosure Schedule, there are no (and, during the three (3) years preceding the date hereof, there have not been any) actions, suits, proceedings (including any arbitration proceedings), orders, investigations or claims pending or, to the Company’s knowledge, threatened in writing against the Company (or to Company’s knowledge, pending or threatened in writing against any of the officers, directors or employees of the Company with respect to their business activities on behalf of the Company), or pending or threatened by the Company against any Person, at law or in equity, or before or by any governmental department, commission, board, bureau, agency or instrumentality (including any actions, suits, proceedings or investigations with respect to the transactions contemplated by this Agreement); and, to the Company’s knowledge, there is no reasonable basis for any of the foregoing.  As of the date hereof, the Company is not subject to any arbitration proceedings under collective bargaining agreements or otherwise or any governmental investigations or inquiries; and, to the Company’s knowledge, there is no reasonable basis for any of the foregoing.  The foregoing includes but is not limited to actions pending or threatened involving the prior or current employment or engagement of any of the current or former employees, contractors or consultants of the Company, their use in connection with the businesses of the Company of any information or techniques allegedly proprietary to any of their former employers or clients, including, but not limited to Zynga Inc. or its Affiliates, or their obligations under any agreements with prior employers or clients.  The Company is not subject to any judgment, order or decree of any court or other governmental agency, and the Company has not received any opinion or memorandum or written advice from legal counsel to the effect that it is exposed, from a legal standpoint, to any liabilities.  There are no actions, suits, proceedings (including any arbitration proceedings), orders, investigations or claims pending or, to Company’s knowledge, threatened against or affecting any Seller or the Company in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with the transactions contemplated hereby.

48

5.14                                                      Compliance with Laws.  Except as set forth on Schedule 5.14 of the Disclosure Schedule:

(a)                                 To the Company’s knowledge, the Company has complied in all material respects and is in compliance in all material respects with all applicable laws, ordinances, codes, rules, requirements and regulations of foreign, federal, state and local governments and all agencies thereof relating to the operation of its business and the maintenance and operation of its properties and assets.  As of the date hereof, no written notices have been received by and no material claims have been filed against the Company alleging a violation of any such laws, ordinances, codes, rules, requirements or regulations, and, to the knowledge of the Company, the Company has not been subject to any material adverse inspection, finding, investigation, penalty assessment, audit or other compliance or enforcement action.

(b)                                 The Company holds and is in compliance, in all material respects, with all permits, licenses, bonds, approvals, certificates, registrations, accreditations and other authorizations of all foreign, federal, state and local governmental agencies required for the conduct of its business and the ownership of its properties, and Schedule 5.14(b) of the Disclosure Schedule sets forth a list of all of such permits, licenses, bonds, approvals, certificates, registrations, accreditations and other authorizations.  No written notices have been received by the Company alleging the failure to hold any of the foregoing.  All of such permits, licenses, bonds, approvals, accreditations, certificates, registrations and authorizations will be available for use by the Company immediately after the Closing.

(c)                                  Neither the Company nor, to the Company’s knowledge, any of the directors, officers, or employees of the Company have directly or indirectly, made, offered, promised or authorized any payment or gift of any money or anything of value to or for the benefit of any “foreign official” (as such term is defined in the U.S. Foreign Corrupt Practices Act (the “FCPA”)), foreign political party or official thereof or candidate for foreign political office for the purpose of (i) influencing any official act or decision of such official, party or candidate, (ii) inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority or (iii) securing any improper advantage, in the case of (i), (ii) and (iii) above in order to assist the Company or Affiliates in obtaining or retaining business for or with, or directing business to, any person.  Neither the Company nor, to the Company’s knowledge any of the directors, officers or employees of the Company have made, authorized, or received any bribe, rebate, payoff, influence payment, kickback or other unlawful payment of funds in violation of any law.

(d)                                 There is no pending, nor has there ever been any, complaint, audit, proceeding, investigation, or claim against the Company initiated by (i) any person or entity; (ii) the United States Attorney General, any state attorney general or similar state or federal official or agency; (iii) any other governmental entity, foreign or domestic; or (iv) any regulatory or self-regulatory entity — alleging that the gaming offerings and/or activities of the Company are in violation of any Gaming Related Laws.

5.15                                                      Environmental and Safety Matters.  The Company has complied and is in compliance with all Environmental and Safety Requirements.

5.16                                                      Employees.

(a)                                 The Company has made available to Buyer a true and accurate copy of a table that sets forth the name, title, reporting manager, department, date of hire, name of employer, work location (state/city), exempt/non-exempt status (in terms of entitlement to overtime compensation), current annual salary (or hourly wages, as the case may be), type and on-target amount of any variable compensation or eligible bonus (including any accrued but unpaid amount), and accrued but unused

49

vacation or other leave entitlements of each of the employees of the Company, and whether any employees are absent from active employment, including leave of absence or disability, the basis for such absence or leave, and the anticipated return to work date.

(b)                                 Except as set forth on Schedule 5.16(b) of the Disclosure Schedule, (a) neither the Company nor any Seller has knowledge that any executive or Key Employee of the Company or any group of employees of the Company have any plans to terminate employment with the Company; (b) the Company has complied with all laws, rules and regulations relating to the employment of labor or the termination thereof (including but not limited to those relating to wages, hours, classification of employees and independent contractors, classification of exempt and nonexempt employees, equal employment opportunity, fair labor standards, nondiscrimination, employee leaves, workers compensation, immigration and employment verification, collective bargaining and the payment of social security, unemployment insurance, and other Taxes), and the Company has no knowledge that it has any labor relations problems (including any union organization activities, threatened or actual strikes or work stoppages or grievances); (c) neither the Company nor, to the best of the Company’s knowledge, any of its employees or Contingent Workers are subject to any non-compete, non-disclosure, confidentiality, employment, consulting or similar agreements relating to, or in conflict with the present business activities of the Company, except for agreements between the Company and their present and former employees; (d) the Company has provided all employees and Contingent Workers (as defined below) with all wages, salaries, payments, compensation and benefits that are due to be paid to such employees and Contingent Workers, and has withheld, paid and reported all amounts required by law or by agreement to be withheld, paid and reported with respect to wages, salaries, payments, compensation and benefits to such employees and Contingent Workers (including but not limited to unemployment insurance, social security and other Tax payments).  Employee Schedule sets forth the bonuses paid (or to be paid) to the officers and employees of the Company in respect of the fiscal year ended December 31, 2015, and the maximum bonus which may be earned by such officers and employees in respect of the fiscal year ending December 31, 2016.

(c)                                  Schedule 5.16(c) of the Disclosure Schedules contains a complete and accurate list of all of the independent contractors, consultants, advisory board members, temporary employees, leased employees or other agents engaged or used in the conduct of the business of the Company and classified by the Company as other than employees or compensated other than through wages or salaries paid by the Company through its payroll department (“Contingent Workers”), showing for each Contingent Worker such individual’s role in the business or nature of service, fee or compensation arrangements, length of engagement, whether the engagement is under written notice of termination by either party, and other contractual terms with the Company.  To the extent that any Contingent Workers are engaged or used, the Company has properly classified and treated them in accordance with applicable laws and for purposes of all wage and hour laws and employee benefit plans and perquisites.

(d)                                 The Company has correctly classified those individuals performing services as common law employees, leased employees, independent contractors or agents.

5.17                                                      Employee Benefit Plans.

(a)                                 Schedule 5.17(a) of the Disclosure Schedule sets forth an accurate and complete list of each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) and each other employee benefit plan, program, policy, agreement or arrangement (including any bonus, deferred compensation, retirement, severance, sick leave, retention, change in control, post-employment welfare, stock purchase, stock option or equity incentive, employee health or other welfare benefit plan, program, policy, agreement or other arrangement), at any time maintained, sponsored, or contributed to by the Company, or with respect to which the Company has any liability or potential liability.  Each such

50

item listed (or which should be listed, if such schedule were accurate and complete) on the Schedule 5.17(a) of the Disclosure Schedule is referred to herein as a “Plan.”

(b)                                 The Company has no obligation to contribute to, or any other liability, including current or potential withdrawal liability, with respect to any “multiemployer plan” (as defined in Section 3(37) of ERISA) or any employee benefit plan which is a “defined benefit plan” (as defined in Section 3(35) of ERISA), whether or not terminated.

(c)                                  The Company has no obligation under any Plan or otherwise to provide medical, health, life insurance or other welfare-type benefits to current or future retired or terminated employees (except for limited continued medical benefit coverage required to be provided under Section 4980B of the Code or as required under applicable state law).

(d)                                 For purposes of this Schedule 5.17(a) of the Disclosure Schedule, the term “Company” includes all entities that are or were, at a relevant time, treated as a single employer with the Company pursuant to Section 414 of the Code.

(e)                                  With respect to the Plans, all required payments, premiums, contributions, reimbursements or accruals for all periods ending prior to or as of the Closing shall have been made or properly accrued on the Latest Balance Sheet.  None of the Plans has any unfunded liabilities which are not reflected on the Latest Balance Sheet.

(f)                                   The Plans and all related trusts, insurance contracts and funds have been maintained, funded and administered in material compliance with their terms and with the applicable provisions of ERISA, the Code and other applicable laws.  None the Company nor, to the Company’s knowledge, any trustee or administrator of any Plan has engaged in any transaction with respect to the Plans which would subject the Company or any trustee or administrator of the Plans, or any party dealing with any such Plan, nor do the transactions contemplated by this Agreement constitute transactions which would subject any such party, to either a civil penalty assessed pursuant to Section 502(i) of ERISA or the tax or penalty on prohibited transactions imposed by Section 4975 of the Code.  No actions, suits or claims with respect to the assets of the Plans (other than routine claims for benefits) are pending or, to Company’s knowledge, threatened which could result in or subject the Company to any liability and there are no circumstances which would give rise to or be expected to give rise to any such actions, suits or claims.  No liability to the Pension Benefit Guaranty Corporation or otherwise under Title IV of ERISA has been or could be incurred by the Company.

(g)                                  Each of the Plans which is intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service that such plan is qualified under Section 401(a) of the Code or is entitled to rely upon an opinion or notification or advisory letter issued to the sponsor of an IRS-approved M&P or volume submitter plan document, and, to the Company’s knowledge, there are no circumstances which would adversely affect the qualified status of any such Plan.

(h)                                 The Company has provided Buyer with true and complete copies of all documents pursuant to which the Plans are maintained, funded and administered, and the most recent annual reports (Form 5500 and attachments) for the Plans.

(i)                                     Other than with respect to the Shares and Company Options as set forth on the Securityholders Schedule, neither the execution nor the delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise) accelerate the time of the payment or vesting of,

51

or increase the amount of, or result in the forfeiture of compensation or benefits under any Plan, except as required by applicable law.

5.18                                                      Insurance.  Schedule 5.18 of the Disclosure Schedule contains a true and complete list of all insurance policies to which the Company is a party or which provide coverage to or for the benefit of or with respect to the Company or any director or employee of the Company in his or her capacity as such (the “Insurance Policies”), indicating in each case the type of coverage, name of the insured, the insurer, the premium, the expiration date of each policy and the amount of coverage.  The Company has delivered to Buyer true and complete copies of all such Insurance Policies.  Schedule 5.18 of the Disclosure Schedule also describes any self-insurance or co-insurance arrangements by or affecting the Company, including any reserves established thereunder.  Each Insurance Policy is in full force and effect and shall remain in full force and effect in accordance with its terms following the Closing.  The Company is not in default with respect to its obligations under any insurance policy maintained by it.  To the Company’s knowledge, the insurance coverage of the Company is of a kind and type customarily carried by corporations of similar size engaged in similar lines of business.  The Company is current in all premiums or other payments due under the Insurance Policies and has otherwise complied with all of its obligations under each Insurance Policy.  The Company has given timely notice to the insurer of all claims that may be insured thereby.  To the knowledge of the Company, no Insurance Policy provides for any retrospective premium adjustment or other experience-based liability on the part of the Company.

5.19                                                      Tax Matters.

(a)                                 The Company has timely filed all income and other material Tax Returns required to be filed by it (after giving effect to any valid extensions of time in which to make such filings), each such Tax Return has been prepared in compliance with all applicable laws and regulations, and all such Tax Returns are true, complete and accurate in all material respects.  All Taxes due and payable by the Company, whether or not shown on any Tax Return, have been timely paid in full.  The Company has withheld and paid over to the appropriate taxing authority all Taxes required to have been withheld from amounts paid or owing to any employee, stockholder, creditor or other third party.  All Taxes accrued but not yet due as of the date hereof are accrued on the Latest Balance Sheet.  To the Company’s knowledge, the charges, accruals and reserves for Taxes with respect to the Company for any Tax period (or portion thereof) ending on or before the Closing Date (excluding any provision for deferred income Taxes) to be reflected on the Closing Statement will be adequate to cover such Taxes.

(b)                                 Except as set forth on Schedule 5.19(b) of the Disclosure Schedule:

(i)                                     the Company has not requested or been granted an extension of the time for filing any Tax Return which has not yet been filed (other than automatic extensions obtained in the ordinary course of business);

(ii)                                  the Company has not waived any statute of limitations with respect to Taxes or consented to extend the time in which any Tax may be assessed or collected by any taxing authority;

(iii)                               no deficiency or proposed adjustment which has not been settled or otherwise resolved for any amount of Tax has been proposed, asserted or assessed by any taxing authority against the Company;

52

(iv)                              there is no action, suit, examination, proceeding or audit now in progress, or to the Company’s knowledge, pending or threatened in writing against or with respect to the Company relating to Taxes;

(v)                                 no claim has ever been made in writing by a taxing authority in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by that jurisdiction;

(vi)                              the Company is not, and has not been, a party to any “reportable transaction” as defined in Code Section 6707A(c)(1) and Treasury Regulation Section 1.6011-4(b);

(vii)                           the Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in method of accounting or use of an improper accounting method for a taxable period ending on or prior to the Closing Date, (B) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law) executed on or prior to the Closing Date, (C) election by the Company under Section 108(i) of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax law), (D) installment sale or open transaction disposition made on or prior to the Closing Date or (E) prepaid amount received or deferred revenue accrued on or prior to the Closing Date;

(viii)                        the Company is not a party to or bound by, or has any obligation under, any Tax allocation, Tax sharing, or Tax indemnity agreement, other than customary commercial contracts that were entered into with third parties in the ordinary course of business and are not primarily related to Taxes;

(ix)                              the Company has not been a U.S. real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code;

(x)                                 the Company (A) has not been a member of an Affiliated Group, and (B) has no liability for the Taxes of any Person (other than the Company) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract (other than customary commercial contracts that were entered into with third parties in the ordinary course of business and are not primarily related to Taxes), or otherwise;

(xi)                              the Company is not a party to any agreement, contract, arrangement or plan that has resulted or would result, separately or in the aggregate, in the payment of any “excess parachute payment” within the meaning of Code Section 280G (or any corresponding provision of state, federal or foreign laws) or by which the Company (or any Affiliate) is bound to compensate any Person for excise taxes paid pursuant to Section 4999 of the Code or any similar Applicable Law; and

(xii)                           there are no Liens for Taxes upon any of the assets or properties of the Company, other than with respect to Permitted Liens.

(c)                                  Schedule 5.19(c) of the Disclosure Schedule lists all the jurisdictions with respect to which the Company is required to file any corporate, income or franchise Tax Returns.

(d)                                 The Company is not a partner or a member of any partnership, limited liability company or joint venture, or any other entity classified as a partnership for U.S. federal income tax purposes.

53

(e)                                  Each agreement, contract, plan, or other arrangement that is a “nonqualified deferred compensation plan” subject to Section 409A of the Code to which the Company is a party (each, a “409A Plan”) complies with and has been maintained in accordance with the requirements of Section 409A(a)(2), (3), and (4) of the Code and any U.S. Department of Treasury or Internal Revenue Service guidance issued thereunder and no amount under any such 409A Plan is or has been subject to the interest and additional Tax set forth under Section 409A(a)(1)(B) of the Code.  The Company has no obligation to reimburse or otherwise “gross-up” any Person for the interest or additional Tax set forth under Section 409A(a)(1)(B) or Section 4999 of the Code.

(f)                                   The Company has not used the cash receipts and disbursements method of accounting for income Tax purposes.

(g)                                  The Company has properly collected and remitted sales and use Taxes, goods and services Taxes, value added Taxes and similar Taxes with respect to sales made, or transfers of goods or services, to their customers, or has properly received and retained any appropriate Tax exemption certificates and other documentation for all sales or transfers made without charging or remitting sales and use Taxes, goods and services Taxes, value added Taxes or similar Taxes that qualify such sales as exempt from such Taxes.

(h)                                 The Company has not distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.

(i)                                     The Company does not have a permanent establishment (within the meaning of an applicable Tax treaty) or an office or other fixed place of business in a country outside the United States.

5.20                                                      Brokerage and Transaction Bonuses.  Except as set forth on Schedule 5.20 of the Disclosure Schedule, there are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement binding upon any Seller or the Company.  Except as set forth on Schedule 5.20 of the Disclosure Schedule, there are no special bonuses, severance or other similar compensation (discretionary or otherwise) payable to any employee of the Company in connection with or arising out of the transactions contemplated hereby.

5.21                                                      Bank Accounts; Names and Locations.  Schedule 5.21 of the Disclosure Schedule lists all of the bank accounts of each of the Company (designating each authorized signatory and the level of each signatory’s authorization).  Except as set forth on the Schedule 5.21 of the Disclosure Schedule, during the three (3) year period prior to the execution and delivery of this Agreement, neither the Company nor its predecessors has used any name or names under which it has invoiced account debtors, maintained records concerning its assets or otherwise conducted business.  All of the tangible assets and properties of the Company are located at the locations set forth on the Schedule 5.21 of the Disclosure Schedule.

5.22                                                      Affiliate Transactions.  Except as set forth on Schedule 5.22 of the Disclosure Schedule, none of any Seller or any officer, director, stockholder, employee, or Affiliate of any Seller or the Company or, to the Company’s knowledge, any individual related by blood, marriage or adoption to any such individual (collectively, “Insiders”, and each individually, and “Insider”) or any entity in which any such Person or individual owns any beneficial interest, is a party to any agreement, contract, commitment or transaction with the Company or any of the customers or suppliers of the Company or has any interest in any assets or property used by the Company (including any Intellectual Property Rights).

54

Schedule 5.22 of the Disclosure Schedule contains a description of all intercompany services provided to or on behalf of the Company by any Seller or his, her or its Affiliates (other than the Company) and the costs associated therewith.  Except as set forth and described on Schedule 5.22 of the Disclosure Schedule, none of the assets, tangible or intangible, or properties that are used by the Company are owned by any Seller or his, her or its Affiliates (other than the Company).  Except for employment relationships and compensation, benefits and travel advances (including in connection with the exercise of options or the grant of unvested but issued Company Capital Stock) and in the ordinary course of business, the Company is not a party to any agreement or arrangement with, or involving the making of any payment of transfer of assets to, any Insider.

5.23                                                      Export Controls and Economic Sanctions.  The Company has at all times been in compliance with all applicable trade laws, including import and export control laws, trade embargoes, and anti-boycott laws.

5.24                        Disclosure.  Neither this ARTICLE V nor any of the Exhibits or Schedules attached hereto contain any untrue statement of a material fact or omit a material fact necessary to make each statement contained herein or therein, in light of the circumstances in which they were made, not misleading.  There is no fact which any Seller or the Company have not disclosed to Buyer in writing and of which any of the stockholders, officers, directors or executive employees of the Company is aware which has had or would reasonably be expected to have a Material Adverse Effect.

ARTICLE VI

REPRESENTATIONS AND WARRANTIES CONCERNING BUYER

As an inducement to the Sellers and the Company to enter into this Agreement and consummate the transactions contemplated hereby, Buyer hereby represents and warrants to the Sellers and the Company as of the date hereof and as of the Closing that:

6.1                                                             Organization and Power.  Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.  Buyer has all requisite limited liability company power and authority to execute and deliver this Agreement and to perform its respective obligations hereunder.

6.2                                                             Authorization.  The execution, delivery and performance by Buyer of this Agreement and all of the other agreements and instruments contemplated hereby to which Buyer is a party and the consummation of the transactions contemplated hereby have been duly and validly authorized by Buyer, and no other corporate act or proceeding on the part of Buyer, its board of directors or stockholders is necessary to authorize the execution, delivery or performance of this Agreement and all of the other agreements and instruments contemplated hereby to which Buyer is a party and the consummation of the transactions contemplated hereby.  This Agreement has been duly executed and delivered by Buyer and constitutes a valid and binding obligation of Buyer, enforceable in accordance with its terms and each of the other agreements and instruments contemplated hereby to which Buyer is a party, when executed and delivered by Buyer in accordance with the terms hereof, shall each constitute a valid and binding obligation of Buyer enforceable with its respective terms.

6.3                                                             Non-Contravention.  Buyer is not subject to or obligated under its limited liability company operating agreement, or any applicable law, rule or regulation of any governmental authority, or any agreement, instrument, license or permit, or subject to any order, writ, injunction or decree, which

55

would be breached or violated by its execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby.

6.4                                                             Governmental Authorities and Consents.  No permit, consent, approval or authorization of, or declaration to or filing with, any governmental or regulatory authority or any other Person is required in connection with the execution, delivery or performance of this Agreement by Buyer or the consummation by Buyer of the transactions contemplated hereby.

6.5                                                             Litigation.  There are no actions, suits, proceedings, orders or investigations pending or, to Buyer’s knowledge, overtly threatened against or affecting Buyer, at law or in equity, or before or by any foreign, federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which would adversely affect Buyer’s performance under this Agreement or the consummation of the transactions contemplated hereby.

6.6                                                             Financial Capability.  Buyer (i) has, and at the Closing will have, sufficient internal funds (without giving effect to any unfunded financing regardless of whether any such financing is committed) available to pay the Aggregate Purchase Price and any expenses incurred by Purchaser in connection with the transactions contemplated by this Agreement, (ii) has, and at the Closing will have, the resources and capabilities (financial or otherwise) to perform its obligations hereunder, and (iii) has not incurred any obligation, commitment, restriction or Liability of any kind, which would impair or adversely affect such resources and capabilities.

ARTICLE VII

TERMINATION

7.1                                                             Termination.  This Agreement may be terminated at any time prior to the Closing only as follows:

(a)                                 by the mutual written consent of Buyer, on the one hand, and the Company (on behalf of the Sellers), on the other hand;

(b)                                 by Buyer, if there has been a violation or breach by the Company or any Seller Indemnifying Party of any covenant, representation or warranty of the Company or any Seller Indemnifying Party contained in this Agreement which would prevent the satisfaction of any condition to the obligation of Buyer at the Closing, and such violation or breach has not been waived by Buyer, or, in the case of a covenant breach, cured by the Company or the relevant Seller(s) to the reasonable satisfaction of Buyer within twenty (20) days after written notice thereof from Buyer to the Company;

(c)                                  by the Company (on behalf of the Sellers), if there has been a violation or breach by Buyer of any covenant, representation or warranty contained in this Agreement which would prevent the satisfaction of any condition to the obligations of the Company and the Sellers at the Closing, and such violation or breach has not been waived by the Company (on behalf of the Sellers), or, in the case of a covenant breach, cured by Buyer to the reasonable satisfaction of the Company (on behalf of the Sellers) within twenty (20) days after written notice thereof by the Company;

(d)                                 by either Buyer or the Company if the transactions contemplated hereby have not been consummated by the date which is 90 days following the date of this Agreement; or

(e)                                  by Buyer if any governmental entity shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, final and non-appealable

56

injunction, order or other restraint which has the effect of making the transactions contemplated hereby illegal or otherwise impermissible.

provided that the party electing termination pursuant to clause (b), (c) or (d) of this Section 7.1 is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement, and in the case of the Company’s election to terminate, neither the Company nor any Seller Indemnifying Party shall be in material breach of any of their respective representations, warranties, covenants or agreements contained in this Agreement.  In the event of termination pursuant to this Section 7.1, written notice thereof (describing in reasonable detail the basis therefor) shall forthwith be delivered to the other parties.

7.2                                                             Effect of Termination.  In the event of termination of this Agreement as provided above, this Agreement shall immediately terminate and have no further force and effect, except that (a) the covenants and agreements set forth in this Section 7.2 and Section 8.9 (Expenses), Section 8.9 (Equitable Remedies) and 8.12 (Confidentiality) and ARTICLE IX (Miscellaneous) shall survive such termination indefinitely and (b) nothing in Section 7.1 (Termination) or this Section 7.2 shall be deemed to release any party from any liability for any willful breach by such party of the terms and provisions of this Agreement prior to termination or to impair the right of any party to compel specific performance by another party of its obligations under this Agreement to the extent applicable to the surviving provisions.

ARTICLE VIII

ADDITIONAL AGREEMENTS

8.1                                                             Survival of Representations, Warranties and Covenants.  The representations and warranties in this Agreement and the Schedules and Exhibits attached hereto shall survive the Closing as follows:

(a)                                 the representations and warranties of the Company in Section 5.2 (Capital Stock and Related Matters; Title to Shares), Section 5.3(a) (Authorization), Section 5.19 (Tax Matters) (collectively, the “Fundamental Representations”) and the representations and warranties of Buyer in Section 6.2 (Authorization) and Section 6.6 (Financial Capability) shall terminate on the date that is forty-eight (48) months following the Closing Date (the “Fundamental Rep Survival Date”); and

(b)                                 all representations and warranties other than the Fundamental Representations in this Agreement shall terminate on the date that is eighteen months (18) months following the Closing Date (the “Survival Date”).

provided that any representation, warranty or matter in respect of which indemnity may be sought under Section 8.2 below, and the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Section 8.1 if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or potential right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time (regardless of when the Losses in respect thereof may actually be incurred).  The representations and warranties in this Agreement and the Schedules and Exhibits attached hereto or in any writing delivered by any party to another party in connection with this Agreement shall survive for the periods set forth in this Section 8.1, but only as to the matters set forth in such notice and shall in no event be affected by any investigation, inquiry or examination made for or on behalf of any party, or the knowledge of any party’s officers, directors, stockholders, employees or agents or the acceptance by any party of any certificate or opinion hereunder.  The indemnification obligations of the parties hereto with respect to the performance of any covenant or agreement herein shall survive the Closing in accordance with the respective terms of such covenant.  The

57

indemnification obligations under Section 8.2(a)(iv) shall survive the Closing until the expiration of the applicable statute of limitations plus sixty (60) days.

8.2                                                             Indemnification.

(a)                                 Indemnification.  Each Seller and Former In-the-Money Option Holder (each, a “Seller Indemnifying Party”, and collectively, the “Seller Indemnifying Parties”) (severally and not jointly) agrees to and shall indemnify the Buyer Indemnified Parties and save and hold each of them harmless against and pay on behalf of or reimburse such Buyer Indemnified Parties as and when incurred for any Losses which any such Buyer Indemnified Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of:

(i)                                     any breach by any Seller, the Sellers’ Representative or the Company of any representation or warranty made by any Seller, the Sellers’ Representative or the Company in this Agreement or any of the Schedules or Exhibits attached hereto, or in any of the certificates furnished by any Seller, the Sellers’ Representative (on behalf of the Sellers) or the Company pursuant to this Agreement (which (A) breach and (B) any Losses relating thereto shall each be determined for purposes of this Section 8.2 without regard to any qualification based on materiality or Material Adverse Effect contained in such representations and warranties, provided that any applicable matter or related series of applicable matters to which the foregoing ‘materiality scrape’ applies shall constitute a breach and be indemnifiable under this Section 8.2(a)(i), if and only if the aggregate Losses relating to any applicable matter or related series of applicable matters equals or exceeds $15,000);

(ii)                                  any breach of any covenant or agreement by any Seller Indemnifying Party or the Sellers’ Representative under this Agreement or any of the Schedules and Exhibits attached hereto, or in any of the certificates furnished by any Seller Indemnifying Party or the Sellers’ Representative (on behalf of the Seller Indemnifying Parties) pursuant to this Agreement;

(iii)                               any breach of any covenant or agreement by the Company prior to the Closing under this Agreement or any of the Schedules and Exhibits attached hereto, or in any of the certificates furnished by the Company pursuant to this Agreement;

(iv)                              any Indemnified Taxes to the extent the amount of such item of Indemnified Taxes exceeds the amount, if any, accrued for such item of Indemnified Taxes as part of the Closing Indebtedness (as finally determined under Section 2.4);

(v)                                 all Transaction Expenses to the extent not appearing on the Transaction Expenses Schedule; or

(vi)                              any payment or consideration arising under any consents, notices, waivers, terminations, modifications or approvals of any party under any agreement as are required in connection with the transactions contemplated hereby or for any such agreement to remain in full force or effect following the Closing;

(vii)                           any inaccuracy or omission in the Securityholders Schedule;

(viii)                        any claim by any former Option Holder that they are entitled to any additional compensation or payment of any kind in respect of their Company Option, other than as provided in this Agreement; or

58

(ix)                              any of the matters set forth on the Specific Indemnity Schedule attached hereto.

(b)                                 [Reserved].

(c)                                  Limitations.

(i)                                     Liability Cap.  Notwithstanding the foregoing, the Seller Indemnifying Parties’ aggregate liability under clause Section 8.2(a)(i) above (other than for Exempted Losses and the Specific Indemnity Losses, which shall not exceed the Definitive Initial Purchase Price, inclusive of the Escrow Amount) shall in no event exceed the Escrow Amount (the “Cap”) with it being understood, however, that nothing in this Agreement (including this Section 8.2(c)) shall limit or restrict any of the Buyer Indemnified Parties’ right to maintain or recover any amounts directly from the Seller Indemnifying Parties in accordance with each Seller Indemnifying Parties’ Indemnity Pro Rata Percentage in connection with any criminal activity of any Seller Indemnifying Party or the Company or action, inaction or claim based upon fraud, intentional misrepresentation, intentional breach or willful misconduct by any Seller Indemnifying Party or the Company (collectively, “Fraud”).

(ii)                                  Tipping Basket.  Notwithstanding any provision of this Agreement to the contrary, a Buyer Indemnified Party may not recover any Losses under Section 8.2(a)(i) unless and until such Losses under Section 8.2(a)(i) exceed $150,000 in the aggregate (the “Basket Amount”), in which case Buyer shall be entitled to recover the aggregate amount of all Losses from the first dollar.   Notwithstanding the foregoing, Buyer shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to Losses resulting from or arising out of (i) any breach or alleged breach of a Fundamental Representation, (ii) Section 8.2(a)(ii)-(viii) (collectively, the “Exempted Losses”), (iii) Section 8.2(a)(ix) (the “Specific Indemnity Losses”) and (iv) Fraud (the “Fraud Losses”).

(iii)                               Applicability of Limitations.  Notwithstanding anything to the contrary in this Agreement, the parties hereto agree and acknowledge that any Buyer Indemnified Party may bring a claim for indemnification for any Loss under this Section 8.2 notwithstanding the fact that such Buyer Indemnified Party had knowledge of the alleged breach or breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.  The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification under this Section 8.2 based on such representations, warranties, covenants and obligations.

(iv)                              [Reserved].

(v)                                 No Duplication of Recovery.  Notwithstanding anything contained in this Agreement to the contrary, (i) to the extent that any Losses resulting from any breach of any representation, warranty, covenant or agreement of the Company under this Agreement is taken into account (x) as a current liability, reserved or accrued, or otherwise accounted for, in determining Closing Net Working Capital, (y) in the calculation of the Closing Indebtedness or Estimated Closing Transaction Expenses, or (z) otherwise in the calculation of the Aggregate Purchase Price, in each case, only with respect to the Losses taken into account with respect to clauses (x) through (z) and, for the avoidance of doubt, not Losses which exceed the Losses taken into account with respect to clauses (x) through (z),  (A) no Buyer Indemnified Party may recover such Losses through a claim pursuant to ARTICLE VIII or otherwise and (B) such Losses will not be included in the determination of whether all Losses, in the aggregate, exceed the Basket Amount or the Cap; and (ii) no Buyer Indemnified Party may recover duplicative damages in respect of a single set of facts or circumstances under more than one

59

representation or warranty in this Agreement regardless of whether such facts or circumstances would give rise to a breach of more than one representation or warranty in this Agreement.

(vi)                              Calculation of Losses.  Any claim for Losses will be calculated:  (i) without regard to reductions or diminutions in value, lost opportunities or other speculative damages, and (ii) without regard to any punitive, exemplary, special, incidental, or consequential damages, provided; however that (x) Buyer Indemnified Parties shall be entitled to recover punitive damages to the extent punitive damages are actually awarded to a third party by a Governmental Authority, (y) Buyer Indemnified Parties shall be entitled to recover exemplary, special, incidental, or consequential damages to the extent such damages are actually paid to a third party in connection with a third party claim, and (z) Buyer Indemnified Parties shall be entitled to recover any special or consequential damages that are reasonably foreseeable under an objective standard.  Costs and expenses incurred by a Buyer Indemnified Party in investigating, defending or resolving any third party claim shall constitute Losses if and solely if other Losses arising from such third party claim are indemnifiable hereunder.

(vii)                           Insurance. The amount of any Losses payable under this ARTICLE VIII will be net of amounts actually received by the Buyer Indemnified Parties under applicable insurance policies issued by insurance companies with respect to such Losses (determined after giving effect to any deductible associated therewith, any increase in premiums (including retro premium obligations) resulting therefrom and net of Taxes or other liabilities incurred by such Indemnified Person and/or any of its Affiliates as a result of such claim and out-of-pocket costs of collecting such insurance proceeds) or third party indemnification or contribution payments.

(viii)                        Sole and Exclusive Remedy. Except in the case of Fraud Losses, the right of the parties to be indemnified pursuant to this ARTICLE VIII will be the sole and exclusive remedy with respect to all post-Closing monetary Losses under this Agreement and with respect to a particular Seller Indemnifying Party, under this Agreement or any other Transaction Document to which such Seller Indemnifying Party is a party.  Notwithstanding the foregoing, nothing in this ARTICLE VIII will limit any party’s right to seek and obtain specific performance or injunctive relief to which any party may be entitled or to seek any remedy on account of any party’s Fraud.

(ix)                              Independent Investigation; Non-Reliance.  Buyer has conducted its own independent investigation, review and analysis of the business, operations, assets, liabilities, results of operations, financial condition, software, technology and prospects of the Company, which investigation was conducted by Buyer and its Affiliates and representatives.   In entering into this Agreement, Buyer acknowledges that it has relied solely upon the aforementioned investigation, review and analysis and not on any factual representations or opinions of Company or its representatives (except for the representations and warranties contained in ARTICLE V).  Except for the representations and warranties contained in ARTICLE V, Buyer acknowledges and agree that none of the Company or their respective Affiliates or representatives nor any other Person makes any other express, implied or statutory representation or warranty with respect to the Company, the transactions contemplated by this Agreement or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, title, enforceability or non-infringement or with respect to any projections, estimates and budgets for Company.  None of the provisions of this Section 8.2(c)(ix) shall be construed as to limit a Buyer Indemnified Party’s ability to establish Fraud or recover Fraud Losses.

(d)                                 Satisfaction of Claims.

(i)                                     General Claims.  All claims other than Exempted Losses, Specific Indemnity Losses and Fraud (the “General Claims”) brought by a Buyer Indemnified Party for Losses shall be satisfied as follows:  (A) first, from the Escrow Fund (by reducing the amount of such Escrow

60

Amount therein) and (B) second, by offsetting such amounts against the Earnout Payments (resulting in a reduction of such Earnout Payments), if any, as such Earnout Payments become due and payable pursuant to Section 2.5; provided, however, the aggregate liability of the Seller Indemnifying Parties relating to the General Claims in the aggregate shall not exceed the Escrow Amount.

(ii)                                  Exempted Claims.  Claims by a Buyer Indemnified Party for Exempted Losses and Specific Indemnity Losses (the “Exempted Claims”), shall be satisfied:  (A) first, from the Escrow Fund (by reducing the amount of the Escrow Amount therein), (B) second, by offsetting such amounts due and owing against a Working Capital Payment, if any (C) third, by offsetting such amounts against the Earnout Payments, if any, as such Earnout Payments become due and payable pursuant to Section 2.5, and (D) finally, if the Escrow Amount, Working Capital Payment, the Earnout Payments then due and owing, if any, are insufficient, by the Seller Indemnifying Parties directly (severally and not jointly) based on their respective Indemnity Pro Rata Percentage; provided, however, the Exempted Claims in the aggregate shall not exceed the Definitive Initial Purchase Price (inclusive of the Escrow Amount).  Notwithstanding anything to the contrary in this Section 8.2(d)(ii), the Exempted Claims shall be satisfied only after, in each case, satisfying all the General Claims first.

(iii)                               Fraud Claims.  Claims by a Buyer Indemnified Party for Fraud committed by any Seller or the Company (prior to Closing) under this Agreement (“Fraud Claims”), shall be satisfied:  (A) first, from the Escrow Amount (by reducing the amount of such Escrow Amount), (B) second, by offsetting such amounts against the Earnout Payments (resulting in a reduction of such Earnout Payments), if any, as such Earnout Payments become due and payable pursuant to Section 2.5, and (C) and finally, if the Escrow Amount and the Earnout Payments then due and owing, if any, are insufficient to satisfy the Fraud Claims in full, by the Seller Indemnifying Parties directly (severally and not jointly) based on their respective Indemnity Pro Rata Percentage; provided, however, the Fraud Claims shall be satisfied only after, in each case, satisfying all the General Claims first and the Exempted Claims second pursuant to this Section 8.2(d).

(e)                                  Claims for Indemnification.

(i)                                     Officer’s Claim Certificate.  If at any time prior to the Survival Date, the Fundamental Rep Survival Date, or the Specific Indemnity Survival Date, as applicable, a Buyer Indemnified Party determines that it has a claim for indemnification pursuant to this Section 8.2, such Buyer Indemnified Party may deliver to the Sellers’ Representative a certificate signed by any officer of such Buyer Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.2(e), an “Officer’s Claim Certificate”) which includes the following:

(A)                               a statement that a Buyer Indemnified Party has a claim for indemnification pursuant to this Section 8.2;

(B)                               to the extent possible, a good faith non-binding, preliminary estimate of the amount of all indemnifiable Losses to which such Buyer Indemnified Party claims to be entitled to receive under this Section 8.2, which shall be the amount of Losses such Buyer Indemnified Party has so incurred or suffered or could reasonably be expected to incur or suffer in the future; and

(C)                               the material facts in reasonable detail (based upon the information then possessed by such Buyer Indemnified Party) known to such Buyer Indemnified Party giving rise to such claim.

(ii)                                  No delay or failure in providing such Officer’s Claim Certificate prior to the Survival Date, Fundamental Rep Survival Date or Specific Indemnity Survival Date, as applicable,

61

shall affect a Buyer Indemnified Party’s rights hereunder, unless the Sellers’ Representative demonstrates actual material damage caused by such delay or failure to the Seller Indemnifying Parties, and then only to the extent thereof.

(iii)                               Claim Dispute.

(A)                               If the Sellers’ Representative in good faith objects to any claim made by a Buyer Indemnified Party in any Officer’s Claim Certificate, then the Sellers’ Representative shall deliver a written notice (a “Claim Dispute Notice”) to such Buyer Indemnified Party during the 30-day period commencing upon receipt by the Sellers’ Representative of the Officer’s Claim Certificate.  The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by such Buyer Indemnified Party in the Officer’s Claim Certificate.  If the Sellers’ Representative does not deliver a Claim Dispute Notice to Buyer prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in Buyer’s favor for purposes of this Section 8.2 on the terms set forth in the Officer’s Claim Certificate, (ii) the amount of such Loss shall promptly be paid pursuant to Section 8.2(d).

(B)                               If the Sellers’ Representative delivers a Claim Dispute Notice, then Buyer and the Sellers’ Representative shall attempt in good faith to resolve any such objections raised by the Sellers’ Representative in such Claim Dispute Notice.  If Buyer and the Sellers’ Representative agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by Buyer and the Sellers’ Representative shall be prepared and signed by both parties and the amount of such Loss shall promptly be paid pursuant to Section 8.2(d).

(C)                               If no such resolution can be reached during the 45-day period following Buyer’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either Buyer or the Sellers’ Representative may bring suit to resolve the objection in accordance with Section 9.10.  The decision of the trial court as to the validity and amount of any claim in such Officer’s Claim Certificate shall be non-appealable, binding and conclusive upon Buyer, the Sellers’ Representative and the Seller Indemnifying Parties.  A judgment upon any award rendered by the trial court may be entered in any court having jurisdiction pursuant to Section 9.10.

(f)                                   Third Party Claims.

(i)                                     In the event of the assertion of any claim or the commencement by any Person of any action, suit, proceeding, claim, arbitration or investigation pending by or before any governmental entity (whether against the Company, against Buyer or against any other Person) with respect to which any of the Seller Indemnifying Parties may become obligated to hold harmless, indemnify, compensate or reimburse any Buyer Indemnified Party pursuant to Section 8.2 (each, a “Claim”), Buyer shall have the right, at its election, to proceed with the defense of such Claim on its own, including the right to assert counterclaims, and all reasonable costs associated therewith shall constitute indemnifiable Losses under Section 8.2 (to the extent the Buyer Indemnified Party is entitled to indemnification for such Claim under this Section 8.2 as ultimately determined by agreement of the Sellers’ Representative and such Buyer Indemnified Party or by a court of competent jurisdiction in accordance with Section 9.10).  If Buyer so proceeds with the defense of any such Claim:

(A)                               The Sellers’ Representative and the Seller Indemnifying Parties shall make available to Buyer any documents and materials in their possession or control that may be necessary to the defense of such Claim;

62

(B)                               Buyer shall keep the Sellers’ Representative informed of all material events and developments, including promptly providing copies of any non-material, privileged correspondence and court filings, with respect to such Claim; and

Buyer shall have the right to settle, adjust or compromise such action, suit, proceeding, claim, arbitration or investigation without the consent of the Sellers’ Representative; provided, however, that except with the consent of the Sellers’ Representative (which consent shall not be unreasonably withheld, conditioned or delayed) (it being understood and agreed that the Sellers’ Representative may only withhold such consent if the Sellers’ Representative believes in good faith that there is not any underlying basis for indemnification with respect to such settlement, adjustment or compromise), no settlement, adjustment or compromise of any such Claim with third party claimants shall be determinative or indicative of the right to indemnification for or the amount of Losses relating to such matter; provided further, however, the consent (which may be via e-mail) of the Sellers’ Representative with respect to any settlement, adjustment or compromise of any such Claim shall be deemed to have been given unless the Sellers’ Representative shall have objected in writing within fifteen (15) Business Days after a written request for such consent by a Buyer Indemnified Party.  Notwithstanding anything to the contrary in the preceding sentence, in the event that Buyer shall settle, adjust or compromise any Claim that, if adversely determined, would have given rise to a right of recovery for Losses and the Sellers’ Representative shall have unreasonably withheld, delayed or contested consent to such settlement, adjustment or compromise, subject to the terms of this 8.2(f), the Buyer Indemnified Parties shall be entitled to recover all Losses (including amounts in defense and settlement of such Claim) with respect to such Claim.

(ii)          In the event that Buyer or another Buyer Indemnified Party becomes aware of a Claim that Buyer believes may result in a claim for indemnification pursuant to this Section 8.2 by or on behalf of a Buyer Indemnified Party, Buyer will promptly notify the Sellers’ Representative of such Claim.  Notwithstanding the foregoing, no delay in providing such notice prior to the applicable Survival Date will affect a Buyer Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Seller Indemnifying Parties are materially prejudiced thereby.  Such notice must contain a reasonably detailed description of the basis of the claim and the nature and amount, if then reasonably ascertainable, of such Losses that may be indemnifiable.

(g)                                  Purchase Price Adjustment.  Buyer and the Seller Indemnifying Parties agree that any indemnification payment made pursuant to this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable law.

8.3                                                             Release of Escrow Amount.  Promptly (but no later than ten (10) Business Days) following the eighteen (18) month anniversary of the Closing Date (the “Escrow Termination Date”), Buyer and Sellers’ Representative, by joint written instruction, shall cause the Escrow Agent to wire to the Seller Indemnifying Parties each Seller Indemnifying Party’s Indemnity Pro Rata Percentage of the positive amount, if any, equal to the Escrow Amount, as reduced pursuant to the provisions herein, including Section 8.2, less an amount equal to a reserve for any claims for which Buyer has delivered an Officer’s Claim Certificate that remain outstanding (provided, that if no amount was specified in such Officer’s Claim Certificate, Buyer shall reasonably estimate the amount of any such claim).  After the Escrow Termination Date and upon the resolution of each outstanding claim, Buyer and the Sellers’ Representative, by joint written instruction, shall cause the Escrow Agent to wire the Seller Indemnifying Parties each Seller Indemnifying Party’s Indemnity Pro Rata Percentage of the amount reserved for such resolved claim, as adjusted pursuant to the provisions herein, including Section 8.2, less an amount equal to all amounts previously distributed to the Seller Indemnifying Parties pursuant to this Section 8.3 of the remaining Escrow Amount, if any.  Notwithstanding the foregoing, the portion of the Escrow Amount to be paid to the Former In-the-Money Option Holders in respect of their In-the-Money Vested Options who

63

are or were employees of the Company shall be distributed to the Company (or any Affiliate thereof or successor thereto) for payment in accordance with Section 2.3(b)(ii).

8.4                                                             No Contribution.  The Seller Indemnifying Parties shall not have, or be entitled to exercise or assert (or attempt to exercise or assert), any right of contribution, right of indemnity or other right or remedy against the Company in connection with any indemnification obligation or any other liability to which any of them may become subject under or in connection with this Agreement.

8.5                                                             Sellers’ Representative.

(a)                                 Each Seller Indemnifying Party hereby appoints Shareholder Representative Services LLC as his, her or its agent, attorney-in-fact and as the Sellers’ Representative for and on behalf of the Seller Indemnifying Parties to give and receive notices and communications, to authorize the reduction of the Escrow Fund in satisfaction of claims by any Buyer Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and bring suit and comply with orders of courts with respect to, any other claim by any Buyer Indemnified Party against the Company or the Seller Indemnifying Parties or any dispute between any Buyer Indemnified Party and any such Seller Indemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement, including under Section 2.5.  Such agency may be changed by the Seller Indemnifying Parties from time to time upon not less than thirty (30) days prior written notice to Buyer; provided, however, that the Sellers’ Representative may not be removed unless holders of a two-thirds interest of the Escrow Amount agree to such removal and to the identity of the substituted agent.  The Sellers’ Representative may resign at any time upon not less than thirty (30) days prior written notice in the event of circumstances rendering it impracticable for it to continue to effectively serve.  A vacancy in the position of Sellers’ Representative may be filled by the holders of a majority in interest of the Escrow Amount.  No bond shall be required of the Sellers’ Representative.  After the Closing, notices or communications to or from the Sellers’ Representative shall constitute notice to or from the Seller Indemnifying Parties.

(b)                                 The Sellers’ Representative shall not be liable to any Seller Indemnifying Party for any act done or omitted hereunder as Sellers’ Representative while acting in good faith and without gross negligence or willful misconduct (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith).  The Seller Indemnifying Parties shall, severally (in accordance with their Indemnity Pro Rata Percentage) and not jointly, indemnify the Sellers’ Representative and hold the Sellers’ Representative harmless against any loss, liability, damage, claim, penalty, fine, forfeiture, action, fee, cost or expense (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (“Sellers’ Representative Expenses”) arising out of or in connection with the Sellers’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Sellers’ Representative Expense is suffered or incurred; provided, that in the event that any such Sellers’ Representative Expense is finally adjudicated to have been directly caused by the gross negligence, bad faith or willful misconduct of the Sellers’ Representative, the Sellers’ Representative will reimburse the Seller Indemnifying Parties the amount of such indemnified Sellers’ Representative Expense to the extent attributable to such gross negligence, bad faith or willful misconduct..  If not paid directly to the Sellers’ Representative by the Seller Indemnifying Parties, such Sellers’ Representative Expenses may be recovered by the Sellers’ Representative first, from the Expense Fund, second, from the Escrow Amount at such time as such remaining amounts are otherwise distributable to the Seller Indemnifying Parties (and not distributed or distributable to a Buyer Indemnified Parties or subject to a pending

64

indemnification claim of a Buyer Indemnified Party) pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such recovery will be made from the Seller Indemnifying Parties according to their respective Indemnity Pro Rata Percentage; provided, that while this section allows the Sellers’ Representative to be paid from the aforementioned sources, this does not relieve the Seller Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Sellers’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Sellers’ Representative be required to advance its own funds on behalf of the Seller Indemnifying Parties or otherwise. The Seller Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Sellers’ Representative or the termination of this Agreement.   A decision, act, consent or instruction of the Sellers’ Representative shall constitute a decision of the Seller Indemnifying Parties and shall be final, binding and conclusive upon the Seller Indemnifying Parties; and Buyer may rely upon any such decision, act, consent or instruction of the Sellers’ Representative as being the decision, act, consent or instruction of the Seller Indemnifying Parties.  Buyer is hereby relieved from any liability to any person for any acts done by it in accordance with such decision, act, consent or instruction of the Sellers’ Representative.

(c)                                  At the Closing, Buyer shall, or shall cause the Paying Agent to, wire to the Sellers’ Representative $200,000 (the “Expense Fund Amount”).  The Expense Fund Amount shall be held by the Sellers’ Representative as agent and for the benefit of the Seller Indemnifying Parties in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Sellers’ Representative for any Sellers’ Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Sellers’ Representative  letter agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”).  The Seller Indemnifying Parties will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Sellers’ Representative any ownership right that they may otherwise have had in any such interest or earnings.  The Sellers’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct.  The Sellers’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations hereunder.  As soon as reasonably determined by the Sellers’ Representative that the Expense Fund is no longer required to be withheld, the Sellers’ Representative shall cause the remaining Expense Fund (if any) to be distributed to the to the Paying Agent for further distribution to the Seller Indemnifying Parties in accordance with their respective Indemnity Pro Rata Percentage.

(d)                                 The Sellers’ Representative shall have reasonable access to information about the Company and the reasonable assistance of the Company’s officers and employees for purposes of performing its duties and exercising its rights hereunder; provided, however, that neither Buyer nor the Company shall be obligated to provide such access or information if it determines, in its reasonable judgment, that doing so would jeopardize the protection of attorney-client privilege.

(e)                                  Certain Seller Indemnifying Parties (the “Advisory Group”) have concurrently herewith entered into a letter agreement with Sellers’ Representative regarding direction to be provided by the Advisory Group to Sellers’ Representative.  The Advisory Group shall incur no liability to the Seller Indemnifying Parties for any liability incurred by the members of the Advisory Group while acting in good faith and arising out of or in connection with the acceptance or administration of their duties (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith), even if such act or omission constitutes negligence on the part of the Advisory Group or one of its members.  This indemnification and exculpation shall survive the termination of this Agreement.

65

8.6                                                             Mutual Assistance.  Buyer, the Company, the Sellers’ Representative and the Seller Indemnifying Parties agree that they will mutually cooperate in the expeditious filing of all notices, reports and other filings with any federal, state, local or foreign governmental authority required to be submitted jointly by such Persons in connection with the execution and delivery of this Agreement and/or the other agreements contemplated hereby and the consummation of the transactions contemplated hereby or thereby.

8.7                                                             Public Disclosure.  No party shall issue any statement or communication to any third party (other than their respective agents that are bound by confidentiality restrictions) regarding the subject matter of this Agreement or the transactions contemplated hereby, including, if applicable, the termination of this Agreement and the reasons therefor, without the written consent of Buyer (provided, that Buyer, can determine the timing and content of any such statement or communication made on or after the date hereof), except that this restriction shall be subject to Buyer and its Affiliates’ obligation to comply with (i) applicable securities laws and the rules of the NASDAQ Stock Market and (ii) disclosures required and/or requested in dispute resolution proceedings.  Notwithstanding the foregoing, following Closing, the Sellers’ Representative shall be permitted to: (i) after the public announcement of the transactions contemplated by this Agreement, disclose that it has been engaged to serve as the Sellers’ Representative as long as such disclosure does not disclose any of the other terms of the transactions contemplated herein; and (ii) disclose information as required by law or to employees, advisors or consultants of the Sellers’ Representative and to the Seller Indemnifying Parties, in each case who have a need to know such information, provided that such persons are subject to confidentiality obligations with respect thereto.

8.8                                                             Expenses.  Except as otherwise expressly provided herein, Buyer shall pay all of its fees, costs and expenses incurred in connection with the negotiation of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby.  Except as otherwise expressly provided herein, the Seller Indemnifying Parties shall pay all of their and all of the Company’s and the Sellers’ Representative’s fees, costs and expenses incurred in connection with the negotiation of this Agreement, the performance of their obligations hereunder and the consummation of the transactions contemplated hereby.  Notwithstanding the foregoing, if any party hereto brings an action to enforce its rights under this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including without limitation reasonable legal fees, incurred in connection with such action, including any appeal of such action.

8.9                                                             Equitable Remedies.  Each of the Company, the Seller Indemnifying Parties, the Sellers’ Representative and Buyer acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached.  Accordingly, each of the Company, the Seller Indemnifying Parties, the Sellers’ Representative and Buyer agree that the other parties shall be entitled to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court in the United States or in any state having jurisdiction over the parties and the matter, in addition to any other remedy to which they may be entitled pursuant hereto or at law or in equity.

8.10                                                      Further Assurances.  In the event that at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement, each of the parties hereto will take such further action (including the execution and delivery of such further instruments and documents) as any other party hereto reasonably may request.  Each Seller Indemnifying Party acknowledges and agrees that, from and after the Closing, Buyer will be entitled to possession of, and each Seller Indemnifying Party shall deliver to Buyer, all documents, books, records (including Tax records), agreements and financial data of any sort relating to the Company.  In the event that Buyer reasonably

66

determines, in connection with any listing or proposed listing of the securities of Buyer or its Affiliates (including the Company) on an exchange, including upon advice of its independent accountants or upon request or requirement of the Securities and Exchange Commission, that it requires financial statements (audited or otherwise) for periods prior to the Closing with respect to the business of the Company, the Seller Indemnifying Parties shall use their commercially reasonable efforts to cooperate with Buyer to prepare any additional financial statements requested by Buyer.  Commercially reasonable efforts in this context shall include, but not be limited to:  (i) providing Buyer and its accountants and other agents access to the books and records of the Seller Indemnifying Parties (to the extent related to the business of the Company) and (ii) providing Buyer and its accountants and other agents access to accountants and employees of the Company to the extent reasonably required to facilitate preparation and audit of financial statements.  In such event, the cost and expense of preparing and auditing all such financial statements shall be borne by Buyer.

8.11                                                      Confidentiality.  Each Seller Indemnifying Party agrees not to disclose or use at any time (and shall cause each of his Affiliates not to use or disclose at any time) any Confidential Information.  Each Seller Indemnifying Party further agrees to take all commercially reasonable steps (and to cause each of his Affiliates to take all commercially reasonable steps) to safeguard such Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft.  In the event any Seller Indemnifying Party or any of his Affiliates is required by law, regulation or legal or judicial process, or dispute resolution process, to disclose any Confidential Information, such Seller Indemnifying Party shall promptly notify Buyer in writing, which notification shall include the nature of the requirement and the extent of the required disclosure, and such Seller Indemnifying Party shall cooperate with Buyer and the Company to preserve the confidentiality of such information consistent with applicable law.

8.12                                                      Tax Matters.  The following provisions shall govern the allocation of responsibility as between Buyer and the Seller Indemnifying Parties for certain Tax matters following the Closing Date:

(a)                                 In the case of any Taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), (i) the amount of any Taxes not described in clause (ii) below (including franchise Taxes, Taxes that are based on or measured by income, gross or net sales, payments or receipts, employment and payroll Taxes or Taxes that are imposed in connection with any sale or other transfer or assignment of property) for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date, except that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) other than with respect to property placed into service after the Closing, shall be allocated on a per diem basis, and (ii) the amount of Taxes imposed on a periodic basis (such as real or personal property Taxes) for a Straddle Period which relate to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire Taxable period multiplied by a fraction the numerator of which is the number of days in the Taxable period ending on and including the Closing Date and the denominator of which is the number of days in such Straddle Period.

(b)                                 (i) Buyer shall prepare or cause to be prepared and file or caused to be filed all Tax Returns required to be filed by the Company for Pre-Closing Tax Periods and Straddle Periods after the Closing Date, but only if not filed on or prior to the Closing Date.  Such Tax Returns shall be prepared in a manner consistent with past practices, unless otherwise required by applicable law or as otherwise provided in Section 8.12(b)(ii).  With respect to any such Tax Return that could reasonably be expected to increase the Seller Indemnifying Parties’ indemnification obligations under this Agreement with respect to Taxes, Buyer shall deliver a copy of such Tax Return to the Sellers’ Representative for its review and comment not less than fifteen (15) Business Days (or, in the case of any such Tax Return relating to non-income Taxes, five (5) Business Days) prior to the date on which such Tax Return is due

67

to be filed (taking into account any applicable extensions), and shall consider in good faith any changes reasonably requested by the Sellers’ Representative.

(i)                                     Buyer and the Seller Indemnifying Parties agree that Buyer shall prepare or cause to be prepared and file or cause to be filed an IRS Form 3115 (Application for Change in Accounting Method) to change the Company’s overall method of accounting from the cash receipts and disbursements method to the accrual method and make an “eligible acquisition transaction election” described in Section 7.03(3)(d) of Rev. Proc. 2015-13, 2015-5 IRB 419, in each case, with the Tax Returns filed for the Pre-Closing Tax Period ending on the Closing Date.

(c)                                  Buyer, the Company and each Seller Indemnifying Party shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the preparation and filing of Tax Returns pursuant to this Section 8.12 and any audit, litigation or other proceeding with respect to Taxes.  Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.  Buyer and each Seller Indemnifying Party further agree, upon request, to use commercially reasonable efforts to obtain any certificate or other document from any governmental authority or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed (including with respect to the transactions contemplated hereby). Except to the extent required by applicable law, Buyer shall not, and shall not cause the Company to amend any previously filed Tax Returns for a Pre-Closing Tax Period, file Tax Returns for a Pre-Closing Tax Period in a jurisdiction where the Company has not historically filed Tax Returns, or make or change any Tax election that has any retroactive effect on any Pre-Closing Tax Period of the Company, in each case, without the prior written consent of the Sellers’ Representative (which consent shall not be unreasonably withheld, conditioned or delayed), unless such election would not create or increase the Seller Indemnifying Parties’ indemnification obligations under this Agreement with respect to Taxes.

(d)                                 All Tax sharing agreements or similar agreements with respect to or involving the Company shall be terminated as of the Closing Date and, after the Closing Date, the Company shall not be bound thereby or have any liability thereunder.

(e)                                  All transfer, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) (“Transfer Taxes”) incurred in connection with the consummation of the transactions contemplated by this Agreement shall be borne fifty percent (50%) by the Seller Indemnifying Parties and such portion shall be Transaction Expenses, and shall be borne fifty percent (50%) by Buyer.  The party that is legally required to file a Tax Return relating to Transfer Taxes shall be responsible for preparing and timely filing such Tax Return.

(f)                                   Buyer shall promptly give written notice to the Sellers’ Representative of the receipt by Buyer or any of its Affiliates (including the Company after the Closing Date) of notice of any audit, claim, inquiry, examination or other proceeding relating to Taxes (a “Tax Claim”) attributable to any Pre-Closing Tax Period with respect to which Buyer intends to seek indemnification under Article VIII.  The Sellers’ Representative shall control all proceedings taken in connection with any Tax Claim relating to Taxes of the Company for a taxable period ending on or before the Closing Date, and may make all decisions in connection with such Tax Claim, provided, however, that (i) Buyer and counsel of its own choosing shall have the right to participate fully in all aspects of the prosecution or defense of such Tax Claim, (ii) the Sellers’ Representative shall keep Buyer reasonably informed, and consult in good faith with Buyer, with respect to the status and progress of such Tax Claim, and (iii) the Sellers’ Representative shall not settle any such Tax Claim without the prior written consent of Buyer, which

68

consent will not be unreasonably withheld, delayed or conditioned.  The Buyer shall control all proceedings taken in connection with any Tax Claim relating to Taxes of the Company for a Straddle Period and may make all decisions in connection with such Tax Claim, provided, however, that and the Buyer shall not settle any such Tax Claim without the written consent of the Sellers’ Representative, which consent will not be unreasonably withheld, delayed or conditioned.  Notwithstanding anything in Article VIII to the contrary, this Section 8.12(f), and not Section 8.2(f) shall govern the conduct of Tax Claims.

(g)                                  Any refunds (or credits for overpayment) of Taxes, including any interest received from a taxing authority thereon but net of any Taxes or reasonable costs incurred by the Buyer Indemnified Parties, attributable to any Pre-Closing Tax Period of the Company shall be for the account of the Seller Indemnifying Parties to the extent such refunds or credits are received prior to the Fundamental Rep Survival Date; provided that, notwithstanding the foregoing, any such refunds or credits shall be for the account of Buyer to the extent such refunds or credits are attributable to the carryback from a taxable period (or a portion thereof) beginning after the Closing Date of items of loss, deduction or credit, or other Tax items of the Buyer Indemnified Parties and the Company.  Promptly upon the Company’s (or any of its Affiliates’) receipt of any such refund (or credit for overpayment) to which the Sellers are entitled pursuant to the foregoing sentence, Buyer shall pay over, by wire transfer of immediately available funds, the amount of any such refund (or the amount of any such credit), including any interest received from a taxing authority thereon but net of any Taxes or reasonable costs incurred by the Buyer Indemnified Parties, to the Paying Agent, for distribution to the Sellers based on each Seller Indemnifying Party’s Pro Rata Percentage of such amounts.  The Seller Indemnifying Parties shall pay over, by wire transfer of immediately available funds, the amount of any such refunds (or the amount of any such credit), including any interest received relating thereto, to Buyer promptly upon the Buyer’s request if the Buyer is required to repay such refunds or credits to a taxing authority.

8.13                                                      Release of Claims.

(a)                                 Effective as of the Closing, each Seller Indemnified Party (on such Seller Indemnified Party’s own behalf and on behalf of his, her or its Affiliates) hereby irrevocably, unconditionally and completely releases, acquits and forever discharges Buyer, the Company (and the parents, successors and past, present and future assigns, directors, officers, agents, attorneys and representatives of the foregoing respective entities) (the “Releasees”) from any past, present and future disputes, claims, controversies, demands, rights, obligations, liabilities, actions and causes of action of every kind and nature involving, or that may be asserted by, the Seller Indemnified Party or any of the Seller  Indemnified Party’s Affiliates may have had in the past, may now have or may have in the future against any of the Releasees, directly or indirectly relating to or directly or indirectly arising out of:  (i) any written or oral agreement entered into by the Seller Indemnified Party with the Company, arrangement or plan of the Company occurring, existing, entered into or adopted by or in favor of the Seller Indemnified Party or any of the Seller Indemnified Party’s Affiliates at any time up to and including the date of the Closing;  or (ii) any event, matter, cause, thing, act, omission or conduct occurring or existing at any time up to and including the date of this letter agreement, including, without limitation, any claim  arising (directly or indirectly) out of or in any way connected with any employment or other relationship of the Seller Indemnified Party or any of the Seller Indemnified Party’s Affiliates with (I) any of the Releasees; provided, however, that the Seller Indemnified Party is not releasing any rights available to the Seller Indemnified Party to any rights to payment under this Agreement or any other agreement entered into by the Seller Indemnified Party with the Company in connection with the Closing, (II) any entitlement to salary, bonuses, other compensation or employment benefits under any other Material Contract appearing on the Disclosure Schedule earned or accrued by or for the benefit of any of the Seller Indemnifying Parties prior to the consummation of the transactions contemplated by this Agreement in respect of services performed by any of the Seller Indemnifying Parties as a director,

69

officer, or employee of the Company; and (III) any right to exculpation, indemnification or advancement of expenses from the Company pursuant to (w) the terms of any indemnification agreement between the Seller Indemnifying Parties and the Company, (x) the organizational documents of the Company, (y) applicable law or (z) the terms of this Agreement.

(b)                                 The Seller Indemnified Party (on the Seller Indemnified Party’s own behalf and on behalf of the Seller Indemnified Party’s Affiliates) hereby waives the benefits of, and any rights that the Seller Indemnified Party or any of the Seller Indemnified Party’s Affiliates may have under, any statute or common law regarding the release of unknown claims in any jurisdiction.  The Seller Indemnified Party acknowledges that the Seller Indemnified Party has read Section 1542 of the Civil Code of the State of California that provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

The Seller Indemnified Party waives any right or benefit that the Seller Indemnified Party has or may have under Section 1542 of the Civil Code, any similar law of any other jurisdiction, or any common law principles of similar effect, to the full extent that the Seller Indemnified Party may lawfully waive all such rights and benefits pertaining to the subject matter of this letter agreement.  The Seller Indemnified Party acknowledges that the Seller Indemnified Party or the Seller Indemnified Party’s representatives may hereafter discover claims or facts in addition to or different from those that the Seller Indemnified Party now knows or believes to exist with respect to the subject matter of this letter agreement, but that it is the Seller Indemnified Party’s intention in executing this letter agreement to fully, finally and forever settle and release all of the matters released herein.  In furtherance of this intention, the release herein granted shall be and remain in effect notwithstanding the discovery of any such additional or different claim or fact.

(c)                                  The Seller Indemnified Party:  (i) represents and warrants that the Seller Indemnified Party has taken all actions necessary or appropriate to give full effect to the release given by the Seller Indemnified Party (on the Seller Indemnified Party’s own behalf and on behalf of the Seller Indemnified Party’s Affiliates) in this Section 8.13 and (ii) agrees that the Seller Indemnified Party shall execute and deliver (and cause the Seller Indemnified Party’s Affiliates to execute and deliver) to the Company and the other Releasees such instruments and other documents, and shall take (and cause the Seller Indemnified Party’s Affiliates to take) such other actions, as the Company may reasonably request for the purpose of carrying out or evidencing the release given by the Seller Indemnified Party (on the Seller Indemnified Party’s own behalf and on behalf of the Seller Indemnified Party’s Affiliates) in this Section 8.13.  Without limiting the generality of the foregoing, the Seller Indemnified Party:  (a) agrees that the Seller Indemnified Party will not assert or attempt to assert, and will ensure that none of the Seller Indemnified Party’s Affiliates will assert or attempt to assert, any claim of the type described in Section 8.13(a) against any Releasee at any time after the execution and delivery of this letter agreement; (b) represents, warrants and covenants that the Seller Indemnified Party has not assigned and will not assign to any other person or entity any claim of the type described in Section 8.13(a); and (c) agrees and undertakes not to encourage or instigate any claims by other persons or entities against the Releases in connection with any claim of the type described in Section 8.13(a).

70

ARTICLE IX

MISCELLANEOUS

9.1                    Amendment and Waiver.  This Agreement may be amended, and any provision of this Agreement may be waived; provided that any such amendment or waiver will be binding upon the Company (prior to the Closing) and each Seller Indemnifying Party only if such amendment or waiver is set forth in a writing executed by the Company and the Sellers’ Representative (on behalf of the Seller Indemnifying Parties), and any such amendment or waiver will be binding upon the Company (after the Closing) and Buyer only if such amendment or waiver is set forth in a writing executed by the Company and Buyer.  No course of dealing between or among any Persons having any interest in this Agreement shall be deemed effective to modify, amend or waive any part of this Agreement or any rights or obligations of any Person under or by reason of this Agreement.  No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver.

9.2                    Notices.  All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) if personally delivered, on the date of delivery, (ii) if delivered by next-day courier service of national standing (with charges prepaid), on the Business Day following the date of delivery to such courier service for next day delivery, or (iii) if delivered by telecopy, provided the relevant transmission report indicates a full and successful transmission, (x) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party, on the date of such transmission, and (y) on the next Business Day following the date of transmission, if such transmission is completed after 5:00 p.m., local time of the recipient party, on the date of such transmission.  Notices, demands and communications shall, unless another address is specified in writing pursuant to the provisions hereof, be sent to the address indicated below:

Notices to the Company and the Seller Indemnifying Parties (prior to the Closing):

Rocket Games, Inc.

501 Folsom St.

San Francisco, CA 94105

Attn:  Niko Vuori

Email:  niko@rocketgames.com

with a copy to (which shall not constitute notice to the Company and the Seller Indemnifying Parties):

Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP

1200 Seaport Boulevard

Redwood City, CA 94063

Attn:  Jared B. Grauer

Email:  jgrauer@gunder.com

Notices to the Company (after the Closing) and Buyer:

Penn Interactive Ventures, LLC

c/o Penn National Gaming, Inc.

825 Berkshire Blvd., Suite 200

71

Wyomissing, PA 19610

Attn:  Chris Sheffield

Email:  Chris.Sheffield@pngaming.com

and

Attn:  Carl Sottosanti, General Counsel

Email: Carl.Sottosanti@pngaming.com

with a copy to (which shall not constitute notice to the Company and Buyer):

DLA Piper LLP (US)

555 Mission Street

Suite 2400

San Francisco, California 94105-2933

Attn:  Louis Lehot and Matthew Oshinsky

Email:  louis.lehot@dlapiper.com, matt.oshinsky@dlapiper.com

Notices to the Sellers’ Representative:

Shareholder Representative Services LLC

1614 15th Street, Suite 200

Denver, CO 80202

Attn:  Managing Director

Telecopy: (303) 623-0294

Email:  deals@srsacquiom.com

9.3                    Successors and Assigns.  This Agreement and all of the covenants and agreements contained herein and rights, interests or obligations hereunder, by or on behalf of any of the parties hereto, shall bind and inure to the benefit of the respective heirs, successors and assigns of the parties hereto whether so expressed or not, except that neither this Agreement nor any of the covenants and agreements herein or rights, interests or obligations hereunder may be assigned or delegated by the Seller Indemnifying Parties prior to or after the Closing, or assigned or delegated by the Company prior to the Closing, without the prior written consent of Buyer.  Buyer may assign its rights and obligations hereunder (including Buyer’s right to purchase the Shares), in whole or in part, to any of its Affiliates without the consent of any of the other parties hereto.  In addition, Buyer may assign its rights and obligations pursuant to this Agreement, in whole or in part, in connection with any disposition or transfer of all or any portion of the businesses of the Company in any form of transaction without the consent of any of the other parties hereto, subject to Sections 2.5(k)-(l).  Buyer and, following the Closing, the Company may assign any or all of its rights pursuant to this Agreement to any of their respective lenders as collateral security.

9.4                    Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

9.5                    Interpretation.  The headings and captions used in this Agreement, in any Schedule or Exhibit hereto, in the table of contents or in any index hereto are for convenience of reference only and

72

do not constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this Agreement or any Schedule or Exhibit hereto, and all provisions of this Agreement and the Schedules and Exhibits hereto shall be enforced and construed as if no caption or heading had been used herein or therein.  Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth in this Agreement.  Each defined term used in this Agreement shall have a comparable meaning when used in its plural or singular form.  The use of the word “including” (or definitions thereof) herein shall mean “including without limitation” and, unless the context otherwise required, “neither,” “nor,” “any,” “either” and “or” shall not be exclusive.  The parties hereto intend that each representation, warranty and covenant contained herein shall have independent significance.  If any party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party has not breached shall not detract from or mitigate the fact that such party is in breach of the first representation, warranty or covenant.  The parties have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

9.6                    No Third-Party Beneficiaries.  Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any Person (other than the parties hereto, the Former In-the-Money Option Holders, the D&O Indemnified Parties and their respective permitted successors and assigns), any rights or remedies under or by reason of this Agreement, such third parties specifically including employees and creditors of the Company.

9.7                    Complete Agreement.  This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings whether written or oral, relating to such subject matter in any way.

9.8                    Counterparts.  This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument.

9.9                    Electronic Delivery.  This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, to the extent delivered by means of a facsimile machine or Internet mail in portable document format or similar format (any such delivery, an “Electronic Delivery”), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re execute original forms thereof and deliver them (by means other than Electronic Delivery) to all other parties.  No party hereto or to any such agreement or instrument shall raise (a) the use of Electronic Delivery to deliver a signature or (b) the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery, as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.

9.10                  Governing Law; Jurisdiction; Waiver of Jury Trial.

(a)           The internal law (and not the law of conflicts) of the State of New York shall govern all questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement.

73

(b)           SUBJECT TO THE PROVISIONS OF SECTION 2.4 AND SECTION 2.5 (WHICH SHALL GOVERN ANY DISPUTE ARISING THEREUNDER), THE PARTIES AGREE THAT JURISDICTION AND VENUE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY ANY PARTY SEEKING RELIEF PURSUANT TO THIS AGREEMENT SHALL PROPERLY AND EXCLUSIVELY LIE IN ANY FEDERAL COURT (OR, IF SUCH FEDERAL COURT DOES NOT HAVE JURISDICTION OVER SUCH SUIT, ACTION OR PROCEEDING, IN A STATE COURT) LOCATED IN NEW YORK CITY, NEW YORK.  EACH PARTY ALSO AGREES NOT TO BRING ANY SUIT, ACTION OR PROCEEDING SEEKING RELIEF ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY OTHER COURT (OTHER THAN UPON THE APPEAL OF ANY JUDGMENT, DECISION OR ACTION OF ANY SUCH COURT LOCATED IN NEW YORK CITY, NEW YORK).  BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH COURTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY WITH RESPECT TO SUCH SUIT, ACTION OR PROCEEDING.  THE PARTIES IRREVOCABLY AGREE THAT VENUE WOULD BE PROPER IN SUCH COURT, AND HEREBY WAIVE ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH SUIT, ACTION OR PROCEEDING.  EACH PARTY AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING SO BROUGHT SHALL BE CONCLUSIVE AND MAY BE ENFORCED BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW OR AT EQUITY.  THE PARTIES FURTHER AGREE THAT THE MAILING BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED BY ANY SUCH COURT SHALL CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST THEM, WITHOUT NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE OR RULE OF COURT.

(c)           WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.

9.11                  Consent to Representation; Conflict of Interest.  If the Sellers’ Representative so desires, acting on behalf of the Seller Indemnifying Parties and without the need for any consent or waiver by Company or Buyer, Gunderson Dettmer Stough Villeneuve Franklin & Hachigian LLP (“Gunderson”) shall be permitted to represent the Seller Indemnifying Parties after the Closing in connection with any matter, including anything related to the transactions contemplated by this Agreement, any other agreements referenced herein or any disagreement or dispute relating thereto.  Without limiting the generality of the foregoing, after the Closing, Gunderson shall be permitted to represent the Seller Indemnifying Parties, any of their agents and Affiliates, or any one or more of them, in connection with any negotiation, transaction, or dispute (including any litigation, arbitration, or other adversary proceeding) with Buyer, the Company, or any of their agents or Affiliates under or relating to this Agreement, any transaction contemplated by this Agreement, and any related matter, such as claims or disputes arising under other agreements entered into in connection with this Agreement, including with respect to any indemnification claims.  Buyer and the Company further agree that, as to all communications among Gunderson and the Sellers’ Representative and the Seller Indemnifying Parties and their respective Affiliates (individually and collectively, the “Seller Group”) that relate in any way to the transactions contemplated by this Agreement, solely to the extent such communications are not in the possession of the Company, Buyer or their respective Affiliates (including on their servers or in their email systems) the attorney-client privilege and the exception of client confidence belongs to the Seller Group and may be controlled only by the Seller Group and shall not pass to or be claimed by Buyer and Company.

74

*     *     *     *     *

75

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above.

Signature Page to the Stock Purchase Agreement

EXHIBIT A

ESCROW AGREEMENT