agreement and plan of merger - health...

4849-7753-4746.9

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

by and among

HEALTH ADVOCATE, INC.,

MERION MERGER CORPORATION,

DANIEL S. MESSINA,

as Equity Holders’ Representative

and

WEST CORPORATION

Dated as of May 16, 2014

TABLE OF CONTENTS

Page

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ARTICLE I DEFINITIONS

Section 1.01. Definitions........................................................................................................ 2

Section 1.02. Certain Interpretive Matters ........................................................................... 15

ARTICLE II THE MERGER

Section 2.01. Merger ............................................................................................................ 15

Section 2.02. Actions at Closing and at the Effective Time ................................................ 15

Section 2.03. Effect of Merger ............................................................................................. 16

Section 2.04. Options ........................................................................................................... 17

Section 2.05. Procedure for Target Share and Certain Other Payments .............................. 17

Section 2.06. Equity Holders’ Representative ..................................................................... 19

Section 2.07. Estimated Closing Statement ......................................................................... 19

Section 2.08. Closing of Transfer Records .......................................................................... 19

Section 2.09. Dissenting Shares ........................................................................................... 20

Section 2.10. No Further Ownership Rights in Target Shares ............................................. 20

Section 2.11. Lost, Stolen or Destroyed Certificates ........................................................... 20

Section 2.12. Taking of Necessary Action; Further Action ................................................. 20

Section 2.13. Withholding ................................................................................................... 21

ARTICLE III POST-CLOSING PAYMENTS

Section 3.01. Post-Closing Working Capital Determination ............................................... 21

Section 3.02. Post-Closing Working Capital Adjustment ................................................... 22

ARTICLE IV CLOSING

Section 4.01. Closing ........................................................................................................... 23

ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Section 5.01. Organization and Qualification ...................................................................... 23

Section 5.02. Capitalization ................................................................................................. 23

Section 5.03. Subsidiaries .................................................................................................... 24

Section 5.04. Authority; Required Vote of Stockholders .................................................... 24

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Section 5.05. Noncontravention ........................................................................................... 25

Section 5.06. Government Approvals; Required Consents ................................................. 25

Section 5.07. Compliance With Laws.................................................................................. 25

Section 5.08. Financial Statements ...................................................................................... 26

Section 5.09. Undisclosed Liabilities................................................................................... 26

Section 5.10. Absence of Certain Changes or Events .......................................................... 26

Section 5.11. Absence of Litigation ..................................................................................... 27

Section 5.12. Title to Property and Assets ........................................................................... 28

Section 5.13. Condition of Assets ........................................................................................ 28

Section 5.14. Employees ...................................................................................................... 29

Section 5.15. Employee Benefit Plans ................................................................................. 30

Section 5.16. Contracts ........................................................................................................ 32

Section 5.17. Environmental Matters................................................................................... 34

Section 5.18. Intellectual Property ....................................................................................... 35

Section 5.19. Taxes .............................................................................................................. 38

Section 5.20. Related Party Transactions ............................................................................ 40

Section 5.21. Insurance Policies .......................................................................................... 40

Section 5.22. No Brokers ..................................................................................................... 40

Section 5.23. Customers; Brokers and Vendors .................................................................. 41

Section 5.24. Permits ........................................................................................................... 41

Section 5.25. Operations ...................................................................................................... 41

Section 5.26 Books and Records; Internal Controls ........................................................... 41

Section 5.27. Bank Accounts; Powers of Attorney.............................................................. 41

Section 5.28. No Other Representations or Warranties ....................................................... 42

Section 5.29. Receivables .................................................................................................... 42

Section 5.30. Disclosure ...................................................................................................... 42

ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE MERGER SUB

Section 6.01. Corporate Organization .................................................................................. 42

Section 6.02. Authorization and Validity of Agreement ..................................................... 42

Section 6.03. Governmental Consents and Approvals......................................................... 43



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ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE BUYER

Section 7.01. Corporate Organization .................................................................................. 44

Section 7.02. Authorization and Validity of Agreement ..................................................... 44

Section 7.03. Governmental Consents and Approvals......................................................... 44



Section 7.06. Financial Ability ............................................................................................ 45

Section 7.07. Independent Investigation .............................................................................. 45

ARTICLE VIII COVENANTS OF THE COMPANY

Section 8.01. Conduct of Business Before the Closing ....................................................... 45

Section 8.02. Consents and Approvals ................................................................................ 47

Section 8.03. Access to Properties and Records .................................................................. 47

Section 8.04. No Solicitations; Negotiations ....................................................................... 48

Section 8.05. Commercially Reasonable Efforts ................................................................. 48

Section 8.06. Limit on Obligations ...................................................................................... 49

Section 8.07. Notification .................................................................................................... 49

Section 8.08. Further Assurances......................................................................................... 50

Section 8.09. Collection of Receivables .............................................................................. 50

Section 8.10. Confidentiality ............................................................................................... 50

Section 8.11. 401(k) Plan Termination ................................................................................ 50

Section 8.12. Termination of Liens...................................................................................... 51

Section 8.13. Information Statement; Stockholders’ Consent ............................................. 51

Section 8.14. State Takeover Laws ...................................................................................... 51

Section 8.15. Directors and Officers Liability ..................................................................... 52

Section 8.16. Tax Study Update .......................................................................................... 53

ARTICLE IX COVENANTS OF THE BUYER

Section 9.01. Actions Before Closing .................................................................................. 53

Section 9.02. Commercially Reasonable Efforts ................................................................. 53


Section 9.04. Notification .................................................................................................... 53

Section 9.05. Confidentiality ............................................................................................... 54

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Section 9.06. Post-Merger Employee Matters ..................................................................... 54

ARTICLE X TAXES

Section 10.01. Tax Returns and Related Matters ................................................................... 55

Section 10.02. Cooperation on Tax Matters .......................................................................... 56

Section 10.03. Straddle Period ............................................................................................... 57

Section 10.04. Transfer Taxes ............................................................................................... 58

Section 10.05. Refunds .......................................................................................................... 58

Section 10.06. Miscellaneous ................................................................................................ 59

ARTICLE XI INDEMNIFICATION

Section 11.01. Indemnification of the Buyer Group Members .............................................. 60

Section 11.02. Indemnification of the Equity Holder Group Members ................................. 62

Section 11.03. Notice and Adjudication of Claims................................................................ 63

Section 11.04. Third-Party Claims......................................................................................... 64

Section 11.05. Satisfaction of Escrow Deposit ...................................................................... 65

Section 11.06. Sole and Exclusive Remedy ........................................................................... 65

Section 11.07. Other Limitations ........................................................................................... 65

Section 11.08. Mitigation ....................................................................................................... 65

Section 11.09. Indemnification Exception ............................................................................. 66

Section 11.10. Subrogation Rights......................................................................................... 66

ARTICLE XII CONDITIONS PRECEDENT TO PERFORMANCE BY THE COMPANY

Section 12.01. Representations and Warranties of the Buyer and the Merger Sub ............... 66

Section 12.02. Performance of the Obligations of the Buyer and the Merger Sub ................ 66

Section 12.03. No Violation of Orders .................................................................................. 66

Section 12.04. Escrow Agreement ......................................................................................... 67

Section 12.05. HSR Approval ................................................................................................ 67

Section 12.06. Stockholder Approval .................................................................................... 67

ARTICLE XIII CONDITIONS PRECEDENT TO PERFORMANCE BY THE BUYER

Section 13.01. Representations and Warranties of the Company .......................................... 67

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Section 13.02. Performance of the Obligations of the Company .......................................... 67


Section 13.04. HSR Approval ................................................................................................ 67

Section 13.05. Stockholder Approval .................................................................................... 68

Section 13.06. No Violation of Orders .................................................................................. 68

Section 13.07. No Material Adverse Effect ........................................................................... 68

Section 13.08. Escrow Agreement ......................................................................................... 68

Section 13.09. Paying Agent Agreement ............................................................................... 68

Section 13.10. Conversion of Preferred Shares ..................................................................... 68

Section 13.11. Non-Competition Agreements ....................................................................... 68

Section 13.12. Voting and Joinder Agreement ...................................................................... 68

Section 13.13. Employment Agreements............................................................................... 68

Section 13.14. Resignations ................................................................................................... 68

Section 13.15. Company Debts; Transaction Expenses ......................................................... 69

Section 13.16. Dissenting Shares ........................................................................................... 69

Section 13.17. Option Termination Letters............................................................................ 69

Section 13.18. Termination of Stockholder Agreement ........................................................ 69

ARTICLE XIV TERMINATION

Section 14.01. Conditions of Termination ............................................................................. 69

Section 14.02. Effect of Termination ..................................................................................... 70

ARTICLE XV EQUITY HOLDERS’ REPRESENTATIVE

Section 15.01. Appointment; Acceptance .............................................................................. 70

Section 15.02. Authority ........................................................................................................ 70

Section 15.03. Actions ........................................................................................................... 71

Section 15.04. Effectiveness .................................................................................................. 72

Section 15.05. Indemnification; Fees and Expenses .............................................................. 72

Section 15.06. Successor........................................................................................................ 72

Section 15.07. Survival of Authorizations ............................................................................. 72

ARTICLE XVI MISCELLANEOUS

Section 16.01. Successors and Assigns.................................................................................. 73

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Section 16.02. Governing Law; Jurisdiction.......................................................................... 73

Section 16.03. Expenses ........................................................................................................ 73

Section 16.04. Severability .................................................................................................... 73

Section 16.05. Notices ........................................................................................................... 73

Section 16.06. Amendments; Waivers ................................................................................... 74

Section 16.07. Public Announcements .................................................................................. 74

Section 16.08. Access to Records and Employees After Closing .......................................... 75

Section 16.09. Entire Agreement ........................................................................................... 75

Section 16.10. Parties in Interest............................................................................................ 75

Section 16.11. Section, Article and Paragraph Headings ...................................................... 75

Section 16.12. Interpretation .................................................................................................. 75

Section 16.13. Schedules ....................................................................................................... 76

Section 16.14. Conflicts; Continuing Representation ............................................................ 76

Section 16.15. Counterparts ................................................................................................... 77

EXHIBIT A VOTING AND JOINDER AGREEMENT EXHIBIT B NONCOMPETITION AGREEMENT EXHIBIT C ESCROW AGREEMENT EXHIBIT D SAMPLE CALCULATION OF WORKING CAPITAL EXHIBIT E CERTIFICATE OF MERGER EXHIBIT F OPTION TERMINATION LETTER EXHIBIT G LETTER OF TRANSMITTAL EXHIBIT H EMPLOYMENT AGREEMENT EXHIBIT I RESIGNATION LETTER

4849-7753-4746.9

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), is dated as of May 16, 2014, by and among HEALTH ADVOCATE, INC., a Delaware corporation; MERION MERGER CORPORATION, a Delaware corporation (the “Merger Sub”); Daniel

S. Messina, as the Equity Holders’ Representative (the “Equity Holders’ Representative”); and WEST CORPORATION, a Delaware corporation (or an Affiliate of West Corporation, as assignee pursuant to Section 16.01), as Buyer (the “Buyer”).

W I T N E S S E T H :

WHEREAS, the board of directors of each of the Buyer and Merger Sub has determined that the merger of the Merger Sub with and into the Company (as defined below) on the terms and subject to the conditions set forth herein, with the Company as the surviving corporation, is advisable and in the best interests of, such corporation and its stockholders and, accordingly, has approved this Agreement and agreed to effect the merger provided for herein upon the terms and subject to the conditions set forth herein;

WHEREAS, the board of directors of the Company has determined that the merger of the Company with and into the Merger Sub on the terms and subject to the conditions set forth herein, with the Company as the surviving corporation is advisable and in the best interests of, such corporation and its stockholders, and, accordingly, has approved this Agreement and agreed to effect the merger provided for herein upon the terms and subject to the conditions set forth herein;

WHEREAS, concurrently with the execution and delivery of this Agreement and as a condition to Buyer’s willingness to enter into this Agreement, each of Michael J. Cardillo, Arthur N. Leibowitz, M.D., Thomas A. Masci, Jr. and Daniel S. Messina (each a “Named Target Stockholder”) is entering into a voting and joinder agreement, in the form attached hereto as Exhibit A (the “Voting and Joinder Agreement”), pursuant to which, among other things, each such Named Target Stockholder will agree to vote his Target Shares in favor of approval and adoption of this Agreement and the transactions contemplated hereby (including the Merger and certain other matters) and to fulfill their respective indemnification obligations hereunder, upon the terms and subject to the conditions set forth in the Voting and Joinder Agreement;

WHEREAS, concurrently with the execution and delivery of this Agreement and as a condition to the Buyer’s willingness to effect the transaction contemplated by this Agreement, each of the Named Target Stockholders and the other persons set forth on Schedule 1(a) attached hereto is entering into a noncompetition agreement, in the form attached hereto as Exhibit B (the “Non-Competition Agreement”), pursuant to which, among other things, each will agree not to compete with the Surviving Corporation, upon the terms and subject to the conditions set forth in the Non-Competition Agreement; and concurrently with the execution and delivery of this Agreement and as a condition to the Buyer’s willingness to effect the transaction contemplated by this Agreement, each of the persons set forth on Schedule 1(b) attached hereto is entering into an employment agreement with the Surviving Corporation to be effective on the Closing Date (the “Employment Agreements”) ; and

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WHEREAS, a portion of the Merger Consideration (as defined herein) will be deposited into an escrow fund to secure the obligations of the Equity Holders to indemnify the Buyer Group Members for breaches (if any) of any representations, warranties, or covenants of the Company or the Equity Holders, and to fund any deficit in the target working capital of the Company.

NOW, THEREFORE, in consideration of the foregoing premises and the respective covenants and agreements hereinafter contained, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01. Definitions. As used in this Agreement, the following terms shall have the following meanings:

“Acquisition Proposal” has the meaning set forth in Section 8.04(d).

“Affected Employee” has the meaning set forth in Section 9.06.

“Affiliate” shall have the meaning set forth in Rule 405 promulgated under the Securities Act of 1933, as amended.

“Aggregate Basket” has the meaning set forth in Section 11.01(b).

“Aggregate Exercise Price” means an amount equal to the aggregate exercise price of the Options outstanding at the Effective Time.

“Agreed Accounting Principles” shall mean GAAP as applied in the preparation of the Financial Statements; and, for the avoidance of doubt, Agreed Accounting Principles shall include the accounting policies described in Schedule 1.01 attached hereto.

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

“Allocable Share” means, with respect to any Equity Holder, the percentage of the aggregate Merger Consideration receivable by such Equity Holder pursuant to the terms and conditions of this Agreement following payment of the Payment Fund pursuant to Section 2.05(a)(i) and the Option Holder Merger Consideration payable pursuant to Section 2.05(a)(ii); provided that with respect to the Allocable Share as to any Option Holders, such Allocable Share will be prior to any withholdings required by Law.

“Antitrust Division” has the meaning set forth in Section 5.06.

“Business” means the business of providing consumer-focused healthcare advocacy services and ancillary products and services, including employee assistance programs, wellness coaching and biometric screening.

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“Business Day” shall mean any day other than a Saturday, Sunday or other day that is a legal public holiday in the United States pursuant to 5 U.S.C. § 6103(a).

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

“Buyer Group Members” means the Buyer and any Affiliates thereof, and their respective successors and assigns, which shall include, following the Closing, the Company.

“Bylaws” means the Bylaws of the applicable Party, as the same may be amended from time to time.

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

“Certificate” has the meaning set forth in Section 2.03(e).

“Certificate of Merger” has the meaning set forth in Section 2.02.

“Charter” means the Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware, as the same may be amended from time to time.

“Claim Notice” has the meaning set forth in Section 11.03(a).

“Closing” has the meaning set forth in Section 4.01.

“Closing Balance Sheet” has the meaning set forth in Section 3.01.

“Closing Date” has the meaning set forth in Section 4.01.

“Closing Date Indebtedness” means the Indebtedness of the Company outstanding on the Closing Date, as set forth by the Company by delivery to the Buyer of the Estimated Closing Statement.

“Closing Working Capital” has the meaning set forth in Section 3.01.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated pursuant thereto.

“Collection Period” has the meaning set forth in Section 8.09.

“Code Section 409A Plan” has the meaning set forth in Section 5.15(m).

“Commercially Reasonable Efforts” means the commercially reasonable efforts that a similarly situated prudent Person desirous of achieving a result would use in similar circumstances (based on the totality of the circumstances) to achieve that result as expeditiously as is commercially practicable.

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“Common Per Share Amount” means an amount equal to (i) (A) the Merger Consideration, plus (B) the Aggregate Exercise Price, divided by (ii) the Common Share Amount.

“Common Share Amount” means the number of Common Shares outstanding at the Effective Time (after giving effect to the conversion of the Preferred Shares) plus the number of Options outstanding at the Effective Time.

“Common Shares” means the shares of the Company’s common stock, par value $0.001 per share.

“Company” means Health Advocate, Inc., a Delaware corporation, and its Subsidiaries, taken together, unless the context requires otherwise.

“Company Board” has the meaning set forth in Section 8.04(c).

“Company Counsel” has the meaning set forth in Section 16.14.

“Company Group” means any affiliated group within the meaning of Code Section 1504(a) or any similar group defined under a similar provision of state, local or foreign law.

“Company Software” means Software (other than Third-Party Software that is commercially available without customization that has general applicability to businesses and which has an aggregate purchase price of less than $10,000): (a) used in the operation of the Business, including all such computer software and databases operated by the Company, on behalf of the Company, or used by the Company in connection with the collection, analysis, processing, storing, transfer, posting, or archiving of Company, customer, vendor, or end user orders or information, or (b) manufactured, distributed, sold, licensed to third parties, or marketed by the Company.

“Confidentiality Agreement” has the meaning set forth in Section 8.10.

“Contract” means any contract, agreement, instrument, commitment or undertaking of any nature (including leases, licenses, mortgages, notes, guarantees, sublicenses, subcontracts, letters of intent and purchase orders), whether written or oral.

“Copyrights” means copyrightable material, whether or not fixed in a tangible media, and United States and foreign copyrights, and mask works, whether registered or unregistered, and pending applications to register the foregoing.

“DGCL” means the Delaware General Corporation Law, as amended.

“D&O Claim” has the meaning set forth in Section 8.15.

“Disputed Amounts” has the meaning set forth in Section 3.01.

“Dissenting Share” means any Target Share held of record by any Target Stockholder who or that has exercised his, her or its appraisal rights under the DGCL.

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“Effective Time” has the meaning set forth in Section 2.03(a).

“Enforceability Exceptions” has the meaning set forth in Section 5.12(c).

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

“Equity Holders’ Representative Fund” means an amount equal to Two Hundred Thousand Dollars ($200,000), deposited into a fund to be governed by the terms of the Escrow Agreement.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated pursuant thereto.

“ERISA Affiliate” has the meaning set forth in Section 5.15(l).

“Escrow Agent” means First National Bank of Omaha.

“Escrow Agreement” means that certain Escrow Agreement, substantially in the form attached hereto as Exhibit C, to be executed at or prior to the Closing by the Buyer, the Equity Holders’ Representative, and the Escrow Agent.

“Escrow Deposit” means the deposit of Twenty Million Dollars ($20,000,000) into an escrow fund to be governed by the terms of the Escrow Agreement.

“Estimated Closing Statement” has the meaning set forth in Section 2.07.

“Estimated Closing Working Capital” has the meaning set forth in Section 2.07.

“Estimated Merger Consideration” has the meaning set forth in Section 2.07.

“Estimated Working Capital Deficit” means, if the Target Working Capital exceeds the Estimated Closing Working Capital, the amount of such excess.

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“Estimated Working Capital Surplus” means, if the Estimated Closing Working Capital exceeds the Target Working Capital, the amount of such excess.

“Equity Holders” means the Target Stockholders and Option Holders.

“Equity Holder Group Members” means the Target Stockholders and Option Holders and any Affiliates thereof, and their respective successors and assigns.

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

“Equity Holders’ Representative Rights” has the meaning set forth in Section 10.02(b).

“Expenses” means any and all expenses incurred in connection with investigating, defending, or asserting any claim, action, suit, or proceeding incident to any matter indemnified against hereunder (including court filing fees, court costs, arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants, and other professionals).

“FIFRA” means the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq.

“Financial Statements” has the meaning set forth in Section 5.08.

“First-tier, Downstream or Related Entities” has the meaning set forth in 42 C.F.R. § 423 Subpart K of the Medicare regulations.

“FTC” has the meaning set forth in Section 5.06.

“GAAP” means the generally accepted accounting principles in the United States, consistently applied.

“General Cap” has the meaning set forth in Section 11.01(d).

“Governmental Entity” means any governmental, regulatory, or administrative authority or any court, tribunal, or judicial body with competent jurisdiction.

“Hazardous Material” has the meaning set forth in Section 5.17(b).

“HSR Act” has the meaning set forth in Section 5.06.

“Income Tax” means, with respect to a Person, a Tax imposed on all or part of the net income, net profits or net gains of that Person.

“Income Tax Return” means any Tax Return in respect of Income Tax.

“Indebtedness” means, with respect to any Person, without duplication, (a) any obligation of any Person (i) constituting the principal amount, plus any related accrued and unpaid interest, fees, expenses and prepayment premiums or penalties, of indebtedness for borrowed money; (ii) evidenced by any note, bond, debenture, bankers acceptance, letters of credit or other instrument,

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facility or debt security (including a purchase money obligation); (iii) upon which interest charges (other than late payment charges) are customarily paid or owed; (iv) issued or assumed as the deferred purchase price of property or services, conditional sale obligations and obligation under any title retention agreement (other than trade payables and deferred revenues incurred in the Ordinary Course of Business); or (v) under any lease or similar arrangement that would be required to be accounted for by the lessee as a capital lease in accordance with GAAP other than the mail machine lease described on Schedule 1.1; (b) any synthetic lease obligations, sale-leaseback obligations and other similar indebtedness obligations, whether secured or unsecured; (c) any direct or indirect guarantee (or keepwell agreement) by such Person of any indebtedness of any other Person described in the preceding clause (a); (d) any obligation to reimburse any bank or other Person for amounts paid under a letter of credit or similar instrument (other than those issued in respect of the performance obligations in the ordinary course); (e) any obligations under interest rate, currency and other derivative Contracts; and (f) any preferred stock or similar security or equity interest having a preference over the common equity of such Person in a liquidation, dissolution, or winding-up of such Person or otherwise.

“Indemnification Provisions” has the meaning set forth in Section 8.15.

“Indemnified Party” has the meaning set forth in Section 11.03(a).

“Indemnified Person” has the meaning set forth in Section 8.15.

“Indemnifying Party” has the meaning set forth in Section 11.03(a).

“Indemnity Notice Period” has the meaning set forth in Section 11.04.

“Independent Accounting Firm” has the meaning set forth in Section 3.01.

“Intellectual Property” means all (a) Patent Rights and statutory invention registrations, (b) Trademarks, (c) Copyrights, including any Software and other works of authorship, (d) confidential and proprietary information, including Trade Secrets, (e) rights of privacy, publicity, and endorsement, and all other rights associated therewith in any jurisdiction, (f) any data and information of any nature or form, including any databases, formulae, processes, systems, and any other intangible assets, including, in each such case, any goodwill associated therewith; and (g) all income, royalties, proceeds, and rights to damages and other payments now or hereafter due or payable or able to be asserted under and with respect to any of the foregoing, including all rights to sue and recover at law or in equity for any past, present, and future infringement, misappropriation, dilution, violation, or other impairment thereof.

“Interim Balance Sheet” has the meaning set forth in Section 5.08.

“IRS” means the United States Internal Revenue Service.

“Knowledge of the Company” means the actual knowledge of the Named Target Stockholders, David S. Rocchino, Martin B. Rosen and Iris Brownstein, and such knowledge as each would be expected to have after reasonable inquiry.

“Labor Laws” has the meaning set forth in Section 5.14(b).

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“Law” means any United States federal, state, and local, and any non-U.S., laws, statutes, regulations, rules, codes, or ordinances enacted, adopted, issued, or promulgated by any Governmental Entity (including those pertaining to electrical, building, zoning, environmental, and occupational safety and health requirements) or common law.

“Letter of Transmittal” has the meaning set forth in Section 2.05(a).

“License Information” has the meaning set forth in Section 5.18(b).

“Licensed Intellectual Property” means all Third-Party Software or other Intellectual Property licensed to the Company.

“Liens” means liens, claims, charges, encumbrances, security interests, mortgages, deeds of trust, pledges, easements, or restrictions of a similar kind (including liens with respect to Taxes).

“Loss” and “Losses” mean any and all losses, costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, diminutions in value (of a particular asset and not as to the Company or the value of the Company as a whole), deficiencies, or other charges.

“Material Adverse Effect” means any change or effect (each, an “Effect” and collectively, “Effects”) that has or is reasonably likely to have, individually or in the aggregate, a material adverse effect on the Purchased Companies, or to the Business, operations, results of operations, prospects, condition (financial or otherwise), assets, or liabilities of the Purchased Companies, taken as a whole; provided, however, that in no event shall any of the following, either alone or in combination, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been or will be, a Material Adverse Effect: (i) any Effect as a result of the execution of this Agreement and the announcement of the transactions contemplated hereby; (ii) any Effect that results from changes in general economic, business conditions, acts of war or terrorism or other force majeure events, which changes do not disproportionately adversely affect the operations, results of operations, prospects, condition (financial or otherwise), assets, or liabilities of the Business or the Purchased Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Purchased Companies operate; (iii) any Effect that results from changes affecting the industry in which any Purchased Company operates generally, which changes do not disproportionately adversely affect the operations, results of operations, prospects, condition (financial or otherwise), assets, or liabilities of the Business or the Purchased Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Purchased Companies operate; (iv) the failure by any Purchased Company to meet internal or other estimates, predictions, projections or forecasts of revenue, net income or any other measure of financial performance for any period (excluding any Event or set of facts or circumstances which led to such failure); (v) the taking of any action approved or consented to by Buyer; (vi) any Effect that results from any action required to be taken under applicable Law or any Effect that results from any change in accounting principles or requirements or the

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interpretation or enforcement thereof, in each case, which changes do not disproportionately adversely affect the operations, results of operations, prospects, condition (financial or otherwise), assets, or liabilities of the Business or the Purchased Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Purchased Companies operate, (vii) any action by any Governmental Entity related to antitrust review of the transaction contemplated by this Agreement; and (viii) any Effect that results from any breach by Buyer or Merger Sub of this Agreement; provided, further, that any Effect that is cured prior to the Closing Date shall not be considered a Material Adverse Effect.

“Material Contracts” has the meaning set forth in Section 5.16.

“Material Customers” has the meaning set forth in Section 5.23.

“Materials of Environmental Concern” means any pollutants, contaminants, or hazardous substances (as such terms are defined under CERCLA), pesticides (as such term is defined under FIFRA), solid wastes, and hazardous wastes (as such terms are defined under RCRA), chemicals, other hazardous, radioactive or toxic materials, oil, petroleum, and petroleum products (and fractions thereof), or any other material (or article containing such material) listed or subject to regulation under any Law, statute, rule, regulation, Order, Permit, or directive due to its potential, directly or indirectly, to harm the environment or the health of humans or other living beings.

“Material Vendors” has the meaning set forth in Section 5.23.

“Medicare and Medicaid Services” shall be defined as those services provided under or in connection with a contract or agreement between a healthcare provider or healthcare provider entity and Medicare or any Medicaid agency (or their respective First-tier, Downstream or Related Entities).

“Merger” has the meaning set forth in Section 2.01.

“Merger Consideration” means (a) $265,000,000 plus the Total Working Capital Surplus or minus the Total Working Capital Deficit, as applicable, minus (b) the sum of (i) Closing Date Indebtedness and (ii) Transaction Expenses (except to the extent such Transaction Expenses are included in the calculation of Closing Working Capital).

“Messina Bonus Payment” means that certain bonus payment payable by the Company to Daniel S. Messina as provided in that certain Compensation Agreement dated May 15, 2006 between the Company and Daniel S. Messina (the “Messina Agreement”).

“Multiemployer Plan” has the meaning set forth in Section 5.15(d).

“Multiple Employer Plan” has the meaning set forth in Section 5.15(d).

“Named Target Stockholder” has the meaning set forth in the Recitals hereof.

“Noncompetition Agreements” has the meaning set forth in the Recitals hereof.

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“Objection Notice” has the meaning set forth in Section 3.01.

“Offshore Subcontractor” shall be as defined by the Department of Health & Human Services Centers for Medicare and Medicaid Services (“CMS”), but is generally defined as an individual or entity that performs services under or in connection with the provision of Medicare or Medicaid services or services in support of the delivery of Medicare or Medicaid services if the services are performed or the individual or entity is physically located outside of one of the fifty (50) United States or one of the United States territories (i.e., American Samoa, Guam, Northern Marianas, Puerto Rico, and Virgin Islands), regardless of whether the workers are employees of American or foreign companies.

“Option” means a stock option to purchase one Common Share issued pursuant to the Health Advocate, Inc. Amended and Restated Year 2002 Equity Incentive Plan, and/or the Health Advocate, Inc. Amended and Restated Year 2012 Equity Incentive Plan, in each case, as amended from time to time.

“Option Holder” means each holder of an Option.

“Option Holder Merger Consideration” means the aggregate amount of the portion of the Estimated Merger Consideration to be paid to the Option Holders in respect of their Options, excluding (a) the portion of the Escrow Deposit being deposited with the Escrow Agent on behalf of the Option Holders and (b) the portion of the Equity Holders’ Representative Fund being deposited with the Escrow Agent on behalf of the Option Holders.

“Option Payment” with respect to each Option, means an amount equal to the Common Per Share Amount less the exercise price per Common Share of the applicable Option as set forth on Schedule 5.02.

“Order” means any decree, judgment, injunction, or other order, whether temporary, preliminary, or permanent.

“Ordinary Course of Business” means the ordinary course of business consistent with past custom and practice.

“Owned Intellectual Property” means all Intellectual Property owned by the Company.

“Party” or “Parties” means a party or the parties to this Agreement, as applicable.

“Patent Rights” means United States and foreign patents, issuances, registrations, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, provisionals, revisions, extensions, renewal applications and reexaminations thereof, inventions (whether or not patentable or reduced to practice), and improvements thereto and any patents issuing on any of the foregoing.

“Paying Agent” means First National Bank of Omaha.

“Paying Agent Agreement” means that certain Paying Agent Agreement to be executed at or prior to the Closing by the Buyer and the Paying Agent.

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“Payment Fund” has the meaning set forth in Section 2.05(a).

“Permits” has the meaning set forth in Section 5.24.

“Permitted Liens” means: (a) the Liens of current Taxes arising in the Ordinary Course of Business not yet due and payable, or being contested in good faith and for which adequate reserves have been established on the Financial Statements, (b) statutory Liens arising in the Ordinary Course of Business for amounts not yet delinquent or that are being contested in good faith, including Liens securing the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords, and other like Persons for labor, materials, supplies, or rentals, if any, in each case which do not materially interfere with the transferability or use of the applicable property, and (c) Liens disclosed on Schedule 1.1.

“Person” means an individual, corporation, partnership, limited partnership, syndicate, person (including a “person” as defined in Section 13(d)(3) of the United States Securities Exchange Act of 1934), trust, association, entity, government, political subcompany, agency, or instrumentality of a government.

“Plans” has the meaning set forth in Section 5.15(a).

“Plan Sponsor Agreements” has the meaning set forth in Section 5.16(a).

“Post-Closing Tax Period” means any taxable period that begins after the Closing Date and the portion of any Straddle Period that begins on the day after the Closing Date and ends after the Closing Date.

“Post-Closing Working Capital Adjustment” has the meaning set forth in Section 3.02.

“Pre-Closing Tax Period” has the meaning set forth in Section 10.02(a).

“Preferred Shares” means the 400,000 shares of the Company’s preferred stock, par value $0.001 per share, designated as “Series A Preferred Stock.”

“Proceeding” means any action, arbitration, audit, claim, dispute, hearing, investigation, voluntary disclosure program, litigation, proceeding, or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity or arbitrator.

“Protected Health Information” or “PHI” shall be as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as amended by the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (“HITECH”).

“Purchased Company” or “Purchased Companies” has the meaning set forth in Section 8.15.

“RCRA” means the Resources Conservation and Recovery Act, 42 U.S.C. § 6901, et seq.

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“Release” shall have the meaning set forth in Section 9601(22) of CERCLA.

“Representative Dispute” has the meaning set forth in Section 16.14(a).

“Requisite Stockholder Approval” has the meaning set forth in Section 5.04(b).

“Schedules” means the schedules attached to this Agreement.

“Severance Period” means, for any Affected Employee, a period of time equal to the product of (i) two weeks, multiplied by (ii) the number of years such Affected Employee has been employed by the Company or the Surviving Corporation, as applicable, pro-rated for partial years.

“Software” means any computer program, operating system, applications systems, firmware or software of any nature, whether operational, under development, or inactive, including all object code, source code, data files, rules, databases, compilations, tool sets, compilers, higher level or “proprietary” languages, definitions, or methodology derived from the foregoing and any derivations, updates, enhancements, and customization of any of the foregoing, processes, know-how, operating procedures, methods, and all other intellectual property embodied with or in the foregoing, technical manuals, user manuals, and other documentation and materials related thereto, whether in machine-readable form, programming language, or any other language or symbols and whether stored, encoded, recorded, or written on disk, tape, film, memory device, paper, or other media of any nature.

“Special Representations” has the meaning set forth in Section 11.01(e).

“Stockholder Agreement” means that certain Stockholders’ Agreement among the Company and certain stockholders of the Company, dated November 14, 2001.

“Stockholder Merger Consideration” means the aggregate amount of the portion of the Estimated Merger Consideration to be paid to the Target Stockholders for the Target Shares, excluding (a) the portion of the Escrow Deposit being deposited with the Escrow Agent on behalf of the Target Stockholders and (b) the portion of the Equity Holders’ Representative Fund being deposited with the Escrow Agent on behalf of the Target Stockholders.

“Straddle Period” means any taxable year or period beginning on or before and ending after the Closing Date.

“Straddle Period Contest” has the meaning set forth in Section 10.02(b).

“Subsidiary” means another Person, a majority of the equity interests of which are beneficially owned (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by the Company.

“Surviving Corporation” has the meaning set forth in Section 2.01.

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“Target Share” means, collectively, any share of the Common Shares and the Preferred Shares which are to be converted into Common Shares prior to the Effective Time, but shall not include any Treasury Share.

“Target Stockholders” means any Person who or that holds any Target Shares that has not exercised appraisal rights under the DGCL.

“Target Working Capital” shall mean an amount equal to negative Five Million Four Hundred Thousand Dollars (-$5,400,000).

“Tax” (and, with correlative meaning, “Taxes”) means (a) any and all taxes and other levies or charges of similar kind (together with any and all interest, penalties, additions to tax, assessments, and additional amounts imposed with respect thereto) imposed by any Taxing Authority, including income and franchise, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unclaimed property, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value-added, goods and services, or capital gains taxes; license, registration, and documentation fees; and customs duties and similar charges, (b) any liability for the payment of any amounts of any of the foregoing types as a result of being a member of a Company Group (including without limitation, Taxes for which liability is incurred pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group), (c) any liability for the payment of any amounts of any of the foregoing types as a result of being a party to any tax sharing, allocation or indemnification agreements or arrangements, and (d) any liability for the payment of any of the foregoing types as a successor, transferee or otherwise.

“Taxing Authority” means any Governmental Entity having jurisdiction with respect to Taxes.

“Tax Proceeding” means any Proceeding involving Taxes.

“Tax Return” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity with respect to any Tax (including any schedules), including any information return, claim for refund, amended return, or declaration of estimated Tax, and any amendments of the foregoing.

“Third-Party Claim” has the meaning set forth in Section 11.03(a).

“Third-Party Software” means all Software owned by third parties that is either: (a) offered or provided to customers of the Company concurrently with the license of the Owned Intellectual Property to such customers, (b) used by the Company to provide services to customers, (c) used by the Company in the development of the Owned Intellectual Property or other Intellectual Property, or (d) otherwise used by the Company in connection with the Business as currently conducted or contemplated by the Company, including any open source software.

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“Total Working Capital Deficit” means the amount, if any, by which the Closing Working Capital calculated in accordance with Section 3.01 is less than the Target Working Capital.

“Total Working Capital Surplus” means the amount, if any, by which the Closing Working Capital calculated in accordance with Section 3.01 exceeds the Target Working Capital.

“Trademarks” means United States, state and foreign trademarks, service marks, trademark rights, product names, domain names, logos, trade dress, brand names, and trade names, and other source identifiers (including all assumed or fictitious names under which the applicable Person is conducting business or within the past five years has conducted business), including all associated goodwill, whether registered or unregistered, and pending applications to register the foregoing.

“Trade Secrets” means confidential ideas, trade secrets, know-how, concepts, methods, processes, formulae, reports, data, customer lists, mailing lists, or business plans.

“Transaction Documents” means this Agreement, the Escrow Agreement, the Noncompetition Agreements and the Employment Agreements. “Transaction Expenses” means all fees and expenses incurred by the Company in conjunction with the negotiation, preparation, execution, and performance of this Agreement and the transactions contemplated hereby, including fees and expenses of attorneys and accountants, and all bonuses or other incentives payable by the Company and its Affiliates to any employee or other Person (including the consideration payable as contemplated by this Agreement in respect of the Options) in connection with the transactions contemplated hereby (including the Taxes to be paid by the Company in connection with such payments, if any, and, for the avoidance of doubt, any such Taxes shall include amounts, if any, required to be withheld at the time deposited into the Escrow Deposit on behalf of the Equity Holders, with the balance of such Taxes to be withheld at the time of release from the Escrow Deposit).

“Treasury Share” means any Target Share held by the Company as treasury stock.

“Working Capital” shall mean all “current assets” (excluding deferred income Taxes) minus all “current liabilities” (excluding deferred income Taxes) (as such “current assets” and “current liabilities” are properly accrued and reflected on the books and records of the Company in accordance with the Agreed Accounting Principles). For illustration purposes, Exhibit D provides a sample calculation of the Working Capital based upon the December 31, 2013 balance sheet.

“Working Capital Deficit” means the amount, if any, by which the Closing Working Capital calculated in accordance with Section 3.01 is less than the Estimated Closing Working Capital.

“Working Capital Surplus” means the amount, if any, by which the Closing Working Capital calculated in accordance with Section 3.01 exceeds the Estimated Closing Working Capital.

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Section 1.02. Certain Interpretive Matters.

(a) Unless the context otherwise requires, (i) all references to sections, articles, annexes or exhibits are to be sections, articles, annexes and exhibits of this Agreement unless specifically referring to another contract, agreement, document or instrument; (ii) words in the singular include the plural and vice versa; (iii) the term “including” and variations thereof means “including without limitation”; (iv) the term “ordinary course of business” and variations thereof means “ordinary course of business consistent with past practice”; (v) all references to $ or dollar amounts are to lawful currency of the United States; (vi) unless otherwise indicated, to the extent the term “day” or “days” is used, it shall mean calendar days; (vii) the pronoun “his” refers to the masculine, feminine and neuter; and (viii) the words “herein,” “hereto” “hereby,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular article, section, paragraph or other subdivision of this Agreement.

(b) No information hereunder shall be considered “made available,” “furnished,” or “provided” to the Buyer unless (i) if such information is not already in written form, such information shall have been reduced to writing and (ii) in any case, the written form of such information shall have been placed in the electronic Project Merion data room maintained by Triple Tree in respect of the transactions contemplated hereby and made accessible to Buyer.

ARTICLE II

THE MERGER

Section 2.01. Merger. Subject to the terms and conditions of this Agreement and in accordance with the provisions of, and with the effect provided in, the DGCL, the Merger Sub will merge with and into the Company (the “Merger”) at the Effective Time. As a result of the Merger, the separate corporate existence of the Merger Sub shall cease at the Effective Time and the Company shall continue as the surviving corporation of the Merger and as a wholly owned Subsidiary of the Buyer (the “Surviving Corporation”) and shall continue to be governed by the laws of the State of Delaware.

Section 2.02. Actions at Closing and at the Effective Time.

(a) At the Closing, (i) the Company will deliver to the Buyer the various certificates, instruments and documents referred to in Article XIII hereof, (ii) the Buyer will deliver to the Company the various certificates, instruments and documents referred to in Article XII hereof, and (iii) the Buyer will file with the Secretary of State of the State of Delaware a Certificate of Merger in the form attached hereto as Exhibit E (the “Certificate of Merger”).

(b) At the Effective Time, Buyer will:

(i) deposit with the Paying Agent, via wire transfer or other immediately available funds, the Payment Fund for payment to the Target Stockholders of their Stockholder Merger Consideration in accordance with the terms and conditions of the Paying Agent Agreement; and

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(ii) pay to the Surviving Corporation, via wire transfer or other immediately available funds, an amount necessary to satisfy the Option Holder Merger Consideration and to pay to Daniel S. Messina the portion of the Messina Bonus Payment to which he is entitled as of the Closing Date pursuant to the terms of the Messina Agreement, to the extent such portion of the Messina Bonus Payment has been approved by the Target Stockholders prior to the Closing;

(iii) deposit, via wire transfer or other immediately available funds, the Escrow Deposit and the Equity Holders’ Representative Fund, with the Escrow Agent to be held in accordance with the Escrow Agreement;

(iv) pay by wire transfer of immediately available funds on behalf of the Company the Closing Date Indebtedness as set forth on the Estimated Closing Statement; and

(v) pay by wire transfer of immediately available funds on behalf of the Company the Transaction Expenses as set forth on the Estimated Closing Statement.

Section 2.03. Effect of Merger.

(a) General. The Merger shall become effective at the time (the “Effective Time”) that the Buyer files the Certificate of Merger with the Secretary of State of the State of Delaware, or at such later time as is agreed upon by the Parties and set forth in the Certificate of Merger. The Merger shall have the effects set forth in the applicable provisions of the DGCL. The Surviving Corporation may, at any time after the Effective Time, take any action (including executing and delivering any document) in the name and on behalf of either the Company or the Merger Sub in order to carry out and effectuate the transactions contemplated by this Agreement.

(b) Certificate of Incorporation. The certificate of incorporation of the Surviving Corporation shall be amended and restated at and as of the Effective Time to read as did the certificate of incorporation of the Merger Sub immediately prior to the Effective Time until thereafter amended as provided therein or by applicable law (except that the name of the Surviving Corporation will remain unchanged).

(c) Bylaws. The bylaws of the Surviving Corporation shall be amended and restated at and as of the Effective Time to read as did the bylaws of the Merger Sub immediately prior to the Effective Time until thereafter amended as provided therein or by applicable law (except that the name of the Surviving Corporation will remain unchanged).

(d) Directors and Officers. The directors and officers of the Merger Sub shall become the directors and officers of the Surviving Corporation at and as of the Effective Time (retaining their respective positions and terms of office) until the earlier of their resignation or removal or otherwise ceasing to be a director or officer or until their respective successors are duly elected and qualified, as the case may be.

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(e) Conversion of Target Shares. At and as of the Effective Time by virtue of the Merger and without any action on the part of the Parties or any Target Stockholder and upon the terms and subject to conditions set forth in this Section 2.03 and throughout this Agreement:

(i) each issued and outstanding Target Share (other than any Dissenting Share) (A) shall be converted into the right to receive pursuant to the terms of this Agreement the Common Per Share Amount; and (B) shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist as of the Effective Time, and each certificate previously representing any such Company Share (the “Certificate”) shall thereafter represent only the right to receive the portion of the Merger Consideration to which it is entitled pursuant to this Agreement, and each holder thereof shall cease to have any rights with respect thereto except as otherwise provided herein or by applicable Law

(ii) each Dissenting Share shall be converted into the right to receive payment from the Surviving Corporation with respect thereto in accordance with the provisions of the DGCL; and

(ii) each Treasury Share issued immediately prior to the Effective Time and each Target Share issued and held by any direct or indirect Subsidiary of the Company immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist and no consideration shall be delivered or deliverable in exchange therefor.

(f) Conversion of the Merger Sub’s Capital Stock. At and as of the Effective Time, each share of the Merger Sub’s common stock issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of the Surviving Corporation’s common stock. Each stock certificate of Merger Sub evidencing ownership of any such shares shall continue to evidence ownership of such shares of capital stock of the Surviving Corporation.

Section 2.04. Options. Immediately prior to the Closing, the Company shall cancel each outstanding Option and convert such cancelled Option into the right to receive from the Surviving Corporation, as soon as practicable following the Effective Time, cash in an amount equal to the Option Payment (subject to any tax withholding). Notwithstanding the foregoing, an amount equal to the Allocable Share of the Option Payment shall be withheld with respect to each cancelled Option to fund the Option Holders’ portion of the Escrow Deposit. As a condition to receipt of the Option Payment, the applicable Option Holder will be required to execute and deliver to the Buyer an option termination letter in the form attached hereto as Exhibit F (“Option Termination Letter”).

Section 2.05. Procedure for Target Share and Certain Other Payments.

(a) At the Effective Time, the Buyer will:

(i) pay to the Paying Agent, via wire transfer or other immediately available funds, a cash amount equal to the sum sufficient in the aggregate for the Paying Agent to make payment of the Stockholder Merger Consideration to the

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holders of all of the issued and outstanding Target Shares (other than any Dissenting Shares) (such sum being referred to herein as the “Payment Fund”); and

(ii) cause the Surviving Corporation (A) to pay to each Option Holder, such Option Holder’s share of the Option Holder Merger Consideration (less applicable withholdings) to the holders of outstanding Options through the Surviving Corporation’s regular payroll system, subject to receipt of an Option Termination Letter from the applicable Option Holder and (B) provided that the Messina Bonus Payment has been approved by the Target Stockholders prior to the Closing, to pay to Messina such portion of the Messina Bonus Payment to which he is entitled as of the Closing Date pursuant to the terms of the Messina Agreement, through the Surviving Corporation’s regular payroll system.

If not delivered by the applicable Target Stockholder prior to the Effective Time, the Paying Agent shall deliver a letter of transmittal (with instructions for its use) in the form attached hereto as Exhibit G (the “Letter of Transmittal”) to each record holder of issued and outstanding Target Shares for the holder to use in surrendering the Certificates against payment of the Merger Consideration pursuant to the terms of this Agreement. The Letter of Transmittal shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of such Certificates to the Paying Agent. Upon the surrender of a Certificate (or effective affidavit of loss in lieu thereof) as provided below to the Paying Agent in accordance with the terms of such Letter of Transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor via a check the amount (after giving effect to any required Tax withholdings) of the Merger Consideration to be paid with respect thereto as provided for in this Article II, Article III and the Escrow Agreement, and the Certificate so surrendered shall forthwith be canceled. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Paying Agent, the posting by such Person of a bond in such reasonable amount as the Paying Agent may direct as indemnity against any claim that may be made against the Company with respect to such Certificate, the Paying Agent shall, in exchange for the Target Shares represented by such lost, stolen or destroyed Certificate, pay or cause to be paid the amounts, if any, deliverable in respect to the Target Shares formerly represented by such Certificate pursuant to this Agreement. Any portion of the Payment Fund that remains unclaimed by the holders of Target Shares for twelve (12) months after the Effective Time may, at the election of Buyer, be returned to the Buyer, and the Target Stockholders who have not theretofore surrendered a Certificate in accordance with this Section 2.05(a) shall thereafter look only to the Buyer for satisfaction of their claims for any Merger Consideration payable with respect to the Target Shares previously represented by such Certificate. No interest will accrue or be paid to the holder of any outstanding Target Shares. Notwithstanding anything to the contrary in this Article II, neither the Paying Agent, the Surviving Corporation, nor any Party hereto shall be liable to a holder of Target Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.

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(b) Notwithstanding anything set forth in this Agreement, at the Effective Time, the portion of the Merger Consideration otherwise payable to any Equity Holder which is such Equity Holder’s Allocable Share of the Escrow Deposit and Equity Holders’ Representative Fund, shall be deposited with the Escrow Agent by the Buyer on behalf of the Equity Holder to fund each Equity Holder’s respective portion of the Escrow Deposit and Equity Holders’ Representative Fund, as applicable. The Escrow Deposit shall be held and disbursed by the Escrow Agent in accordance with the terms and conditions of the Escrow Agreement and shall secure the Equity Holders’ applicable indemnification obligations set forth in Article XI. The Equity Holders’ Representative Fund shall be held and disbursed by the Escrow Agent in accordance with the terms and conditions of the Escrow Agreement and shall be utilized by the Equity Holders’ Representative pursuant to Article XV.

Section 2.06. Equity Holders’ Representative. In accordance with the provisions of Article XV, the Equity Holders’ Representative shall make any and all determinations and calculations on behalf of each Equity Holder set forth in this Agreement, which determinations and calculations shall be binding upon each Equity Holder as if made by such Equity Holder.

Section 2.07. Estimated Closing Statement. In order to facilitate payment of the amounts referenced in this Article II, the Company will deliver to Buyer, not less than two (2) Business Days prior to the Closing Date, a memorandum (the “Estimated Closing Statement”) setting forth the Company’s good faith estimates of (a) the amount of Closing Date Indebtedness, if any, (b) the amount of Transaction Expenses outstanding as of the Closing, (c) the balance sheet of the Company as of the Closing Date, which shall include a good faith estimate of the Working Capital as of the Closing Date, (the “Estimated Closing Working Capital”) and whether there is an Estimated Working Capital Surplus or an Estimated Working Capital Deficit, (d) the Aggregate Exercise Price, (e) the number of shares of Common Stock that will be outstanding immediately prior to the Closing (including shares of Common Stock issuable upon conversion of Preferred Shares), (f) the number of shares of Common Stock underlying Options that will be outstanding immediately prior to the Closing, and (g) based on such estimates and amounts and the Estimated Closing Working Capital, calculations of (i) the Merger Consideration, including any initial increase or decrease to the Merger Consideration paid at Closing based upon an Estimated Working Capital Surplus or Estimated Working Capital Deficit (the “Estimated Merger Consideration”), (ii) the Common Per Share Amount, (iii) the Option Payment with respect to each Option Holder, (iv) the Allocable Share of each Equity Holder and (v) with respect to each Equity Holder, the portion of Merger Consideration to be withheld and deposited with the Escrow Agent. The Estimated Closing Statement shall include the name of each Person to whom Transaction Expenses are to be paid or to whom amounts in repayment of Company Indebtedness are to be paid, the amount of each such payment and the payment instructions for each such Person. The Estimated Closing Statement shall be subject to review and approval by Buyer. The Estimated Closing Statement shall be prepared (and the estimates, determinations and calculations contained therein shall be made) in accordance with this Agreement and the Charter, and shall be true, complete and correct in all material respects.

Section 2.08. Closing of Transfer Records. At the Effective Time, the stock transfer books of the Company shall be closed and transfers of Target Shares issued and outstanding prior to the Effective Time shall not be made or recognized on the stock transfer books of the

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Surviving Corporation thereafter. Until surrendered for exchange in accordance with the provisions of this Article II, each Certificate (other than Certificates representing Dissenting Shares) shall from and after the Effective Time represent for all purposes only the right to receive the Merger Consideration, if applicable, in exchange therefor.

Section 2.09. Dissenting Shares.

(a) Notwithstanding any other provisions of this Agreement to the contrary, any Dissenting Shares held by a holder who has not effectively withdrawn or lost such holder’s appraisal rights under the DGCL shall not be converted into or represent a right to receive the applicable consideration for Target Shares set forth in Section 2.03 hereof, but the holder thereof shall only be entitled to such rights as are provided by the DGCL.

(b) Notwithstanding the provisions of Section 2.09(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights under the DGCL, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares shall automatically be converted into and represent only the right to receive the consideration for Target Shares, as applicable, set forth in Section 2.03, without interest thereon, and subject to the provisions of Article II, upon surrender of the Certificate representing such shares.

(c) The Company shall give the Buyer (i) prompt notice of any written demand for appraisal received by the Company pursuant to the applicable provisions of the DGCL, and (ii) the opportunity to participate in all negotiations and proceedings with respect to such demands. The Company shall not, except with the prior written consent of the Buyer, make any payment with respect to any such demands or offer to settle or settle any such demands.

Section 2.10. No Further Ownership Rights in Target Shares. The Merger Consideration paid in respect of the surrender for exchange of Target Shares in accordance with the terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such Target Shares, and there shall be no further registration of transfers on the records of the Surviving Corporation of Target Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged, if applicable, as provided in this Article II.

Section 2.11. Lost, Stolen or Destroyed Certificates. In the event any Certificates shall have been lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, such amount, if any, as may be required pursuant to Section 2.03; provided, however, that the Buyer may, in its discretion and as a condition precedent to the issuance thereof, require any Target Stockholder to provide an indemnification agreement in a form and substance acceptable to the Buyer, against any claim that may be made against the Buyer or the Paying Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.

Section 2.12. Taking of Necessary Action; Further Action. If at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets,

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property, rights, privileges, powers and franchises of the Company, the Buyer, Merger Sub and the officers and directors of the Company, the Buyer and Merger Sub, are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action.

Section 2.13. Withholding. Notwithstanding anything in this Agreement to the contrary: (i) the Buyer, the Company and the Surviving Corporation shall each be entitled to deduct and withhold from any payment otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable Law; and (ii) to the extent that amounts so deducted and withheld are properly deposited with the applicable Governmental Entity, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person with respect to which such deduction and withholding were made by Parent, the Company or the Surviving Corporation, as applicable.

ARTICLE III

POST-CLOSING PAYMENTS

Section 3.01. Post-Closing Working Capital Determination. As promptly as practicable and in any event within ninety (90) days after the Closing Date, the Buyer shall prepare and deliver to the Equity Holders’ Representative the balance sheet of the Company as of the Closing (the “Closing Balance Sheet”) prepared in accordance with the Agreed Accounting Principles. The Closing Balance Sheet shall set forth a calculation of the Working Capital as of the Closing (the “Closing Working Capital”). During the preparation of the Closing Balance Sheet by the Buyer and the period of any dispute with respect to the application of this Section 3.01, each of the Parties shall cooperate with the other Party to the extent reasonably requested to prepare the Closing Balance Sheet or to investigate the basis for any dispute, including, with respect to any potential dispute, by providing the Equity Holders’ Representative or his authorized designee, access to the Company’s books and records, on reasonable advance notice and during normal business hours, used to prepare the Closing Balance Sheet and calculate Closing Working Capital. The Closing Balance Sheet shall be examined by the Equity Holders’ Representative, and the Equity Holders’ Representative shall, no later than sixty (60) days after receipt of the Closing Balance Sheet, render a report thereon (the “Objection Notice”). The Objection Notice shall list those items, if any, to which the Equity Holders’ Representative takes exception and the Equity Holders’ Representative’s proposed adjustment. If the Equity Holders’ Representative does not deliver an Objection Notice within sixty (60) days following receipt of the Closing Balance Sheet, the Equity Holders’ Representative shall be deemed to have accepted the Closing Balance Sheet for the purposes of determining the Closing Working Capital and any Post-Closing Working Capital Adjustment under Section 3.02. If the Equity Holders’ Representative gives notice of objections to the Closing Balance Sheet by timely delivering the Objection Notice, the Buyer and the Equity Holders’ Representative shall, during the twenty (20) days following such delivery, use their Commercially Reasonable Efforts to reach agreement on the disputed items or amounts (the “Disputed Amounts”). If the Buyer and Equity Holders’ Representative reach a settlement on the Disputed Amounts, the agreed upon amount shall constitute the agreed upon Closing Working Capital. If the Buyer and the Equity Holders’ Representative are unable, within twenty (20) days after delivery by the Equity Holders’ Representative of the Objection Notice, to resolve the Disputed Amounts, such

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Disputed Amounts shall be referred to a firm of independent certified public accountants (the “Independent Accounting Firm”) mutually acceptable to the Buyer and the Equity Holders’ Representative. Each of the Buyer and the Equity Holders’ Representative shall be permitted to present a supporting brief to the Independent Accounting Firm (which supporting brief shall also be concurrently provided to the other party) within five (5) Business Days of its appointment. Within five (5) Business Days of receipt of a supporting brief, the receiving party may present a responsive brief to the Independent Accounting Firm (which responsive brief shall also be concurrently provided to the other party). Each party may make an oral presentation to the Independent Accounting Firm (in which case, such presenting party shall notify the other party of such presentation, though the other party shall have no right to be present at such presentation, unless the Independent Accounting Firm otherwise determines) within twenty (20) days of the appointment of the Independent Accounting Firm. The Independent Accounting Firm shall consider the briefs and oral presentations of the parties, but shall not conduct an independent review, in determining those items and amounts disputed by the parties. The Independent Accounting Firm may select the position of the Buyer or the Equity Holders’ Representative or may render its own decision as a resolution in an amount that is between the positions of the Parties for each item or amount disputed. The Independent Accounting Firm shall, within thirty (30) days following its selection, deliver to the Buyer and the Equity Holders’ Representative a written report determining the proper treatment of such disputed exceptions, and its determinations shall be conclusive and binding upon the Parties thereto for the purposes of determining the Closing Working Capital and any Post-Closing Working Capital Adjustment under Section 3.02. The fees and disbursements of the Independent Accounting Firm acting under this Section 3.01 shall be borne 50% by the Company, with the remaining 50% to be borne by the Target Stockholders. The Equity Holders’ Representative shall pay any such fees to be borne by the Target Stockholders from the Escrow Deposit. In the event that the remaining amount of the Escrow Deposit is less than any such fees, the excess of such fees over the Escrow Deposit shall be borne severally and not jointly by the Equity Holders (in proportion to their Allocable Share).

Section 3.02. Post-Closing Working Capital Adjustment. As promptly as practicable, and in any event within five (5) Business Days, after the preparation, computation, and final determination pursuant to Section 3.01 of the Closing Balance Sheet: (a) if there is a Working Capital Surplus, then the Buyer shall deposit to the Escrow for the benefit of the Target Stockholders as additional Merger Consideration an amount equal to the Working Capital Surplus (without deduction); and (b) if there is a Working Capital Deficit (without deduction), then the Equity Holders’ Representative shall pay to the Buyer an amount equal to the Working Capital Deficit from the Escrow Deposit; provided, however, if the remaining amount of the Escrow Deposit is less than the Working Capital Deficit, then the amount of the Working Capital Deficit in excess of the remaining Escrow Deposit shall be borne severally and not jointly by the Equity Holders (in proportion to their Allocable Share); or (c) if there is no Working Capital Surplus and no Working Capital Deficit, then neither Party shall make a payment pursuant to this Section 3.02 (in each case, such payment being referred to as the “Post-Closing Working Capital Adjustment”). All payments required under this Section 3.02 shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the recipient(s).

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ARTICLE IV

CLOSING

Section 4.01. Closing. The closing (the “Closing”) of the transactions contemplated by this Agreement shall be deemed to be effective as of the Effective Time on a date to be specified by the Parties which shall be no later than the third (3rd) Business Day after the satisfaction or waiver of the last of the conditions to the obligations of the Parties hereunder set forth in Articles XII and XIII hereof to be satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), or at such other time and date as may be mutually agreed upon by the Parties hereto (such date, the “Closing Date”). The Closing shall take place by the delivery and exchange of all required closing deliverables by FedEx or another recognized overnight courier and/or by facsimile and/or by the electronic transmission of deliverables in PDF or a comparable format, or through such other method or at such other place as may be mutually agreed upon by the Parties hereto.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

OF THE COMPANY

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

Section 5.01. Organization and Qualification. The Company is a corporation duly organized and validly existing under the Laws of the State of Delaware. The Company has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as it is now being conducted. The Company is not in violation of any provision of its Charter or Bylaws. The Company is duly qualified or licensed to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature of its business or ownership or leasing of properties makes such qualification or licensing necessary, except where the failure to be qualified, licensed or in good standing would not have a Material Adverse Effect. No other jurisdiction has demanded, requested, or otherwise indicated in writing that the Company is required to so qualify. Schedule 5.01 contains a true and complete list of all states in which the Company maintains any employees and a true and complete list of all states in which the Company is duly qualified or licensed to transact business.

Section 5.02. Capitalization. The authorized capital stock of the Company consists of (i) 78,000,000 shares of Common Stock, of which 37,896,664 shares are issued and outstanding, and (ii) 2,000,000 shares of authorized Preferred Stock, of which (A) 400,000 shares are designated as Series A Preferred Stock, 400,000 of which shares are issued and outstanding. The Company holds no shares of Common Stock or Preferred Stock in its treasury. Schedule 5.02 sets forth the names of the beneficial and record owners of the Target Shares and the number and class of the Target Shares held by each such owner. Except as described in Schedule 5.02, there are no outstanding options, warrants or other rights to purchase or acquire from the Company, or exchangeable for or convertible into, any shares of Common Stock or Preferred Stock. Other

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than as set forth in this Section 5.02, no shares of capital stock of the Company are issued or outstanding or will be issued and outstanding as of Effective Time. All of the issued and outstanding Target Shares have been duly authorized, are validly issued, fully paid and nonassessable and are held of record by the respective Target Stockholders with the respective percentages as set forth in Schedule 5.02. No bonds, debentures, notes or other indebtedness of the Company confers on the holders thereof any right to vote on any matters on which the stockholders of the Company may or are required to vote. None of the issued or outstanding Target Shares have been issued in violation of any preemptive or contractual rights of the current or past stockholders of the Company. At the Effective Time, all of the Options shall automatically terminate. The Company is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of capital stock or other equity interests.

Section 5.03. Subsidiaries.

(a) Except as set forth on Schedule 5.03, the Company does not, directly or indirectly, own, and has never, directly or indirectly, owned, of record or beneficially, any outstanding voting securities or other equity interests in or control in any corporation, limited liability company, partnership, trust, joint venture, or other entity.

(b) The Company owns, of record and beneficially, all outstanding securities or other interests in each of its Subsidiaries, free and clear of any adverse claims. No Subsidiary has outstanding any securities convertible into or exchangeable for any shares of capital stock or other equity interests, any rights to subscribe for or to purchase or any options for the purchase of, or any oral or written agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments, or claims of any other character relating to the issuance of, any shares of capital stock or other equity interests, or any securities convertible into or exchangeable for any shares of capital stock or other equity interests.

Section 5.04. Authority; Required Vote of Stockholders.

(a) The Company has the requisite corporate power and corporate authority to execute and deliver this Agreement, the other Transaction Documents, and all other agreements, documents, certificates, and instruments delivered to the Buyer in connection with the transactions contemplated under this Agreement to which it is a party, and, subject to obtaining the Requisite Stockholder Approval and filing the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL, to consummate the transactions contemplated hereby and thereby. Subject to obtaining the Requisite Stockholder Approval and filing the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL, the execution and delivery by the Company of this Agreement and the Transaction Documents, and the consummation by it of the transactions contemplated hereby and thereby, have been duly authorized by its directors, stockholders, trustees, or owners, as applicable, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement or the other Transaction Documents and the consummation by it of the transactions contemplated hereby and thereby. This Agreement, the other Transaction Documents, and all other agreements, documents, certificates, and instruments delivered to the Buyer in connection with the transactions contemplated under this Agreement to which it is a party, have been duly executed and delivered

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by the Company and (assuming due authorization, execution and delivery by the counterparties thereto) each of them constitutes a valid and binding agreement of the Company and is enforceable against the Company in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions.

(b) The affirmative vote or written consent of the holders of a majority of the Common Shares and Preferred Shares voting together as a single class is required to approve the Merger, this Agreement and other transactions contemplated hereby (collectively, the “Requisite Stockholder Approval”). No other vote or consent of the Target Stockholders is required by Law (including the DGCL), the Company’s Charter or Bylaws or otherwise in order for the Company to consummate the Merger and the transactions contemplated by this Agreement, and no state takeover statutes are applicable to the Merger, this Agreement or the transactions contemplated hereby.

Section 5.05. Noncontravention. Except as set forth in Schedule 5.05, the execution and delivery by the Company of this Agreement and the other Transaction Documents does not, and the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof by the Company will not, conflict with or result in any breach of the terms, conditions, or provisions of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, amendment, cancellation, or acceleration of any obligation or to the loss of rights or benefits, or result in the creation of any Lien upon any of the properties or assets of the Company under (a) any Material Contract or Permit binding upon the Company, (b) assuming the receipt of the Requisite Stockholder Approval, any provision of the Charter or Bylaws of the Company, or (c) any judgment, Order, decree, or Law applicable to the Company or its material properties or assets.

Section 5.06. Government Approvals; Required Consents. Except (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (ii) those consents, approvals, orders, authorizations, notifications, registrations, declarations and filings with or by Governmental Entities listed on Schedule 5.06 and (iii) the notification and report forms required to be filed under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “Antitrust Division”), no filing or registration with, or authorization, consent, or approval of, any Governmental Entity is required by or with respect to the Company in connection with the execution and delivery of this Agreement or any other Transaction Document by the Company or is necessary for the consummation of the transactions contemplated hereby or thereby.

Section 5.07. Compliance With Laws. Except as set forth in Schedule 5.07, the Business is being conducted, and has during the past three years been conducted, and the Company is and has, during the past three years, been in compliance in all material respects with, all applicable Laws (other than with respect to (i) compliance with Labor Laws and other Laws relating to employment, in which case the compliance with such Laws is exclusively addressed in Section 5.14; (ii) compliance with Environmental Laws, in which case the compliance with such Laws is exclusively addressed in Section 5.17; (iii) compliance with Laws relating to Company Plans, ERISA and Company benefits matters, in which case the compliance with such Laws is exclusively addressed in Section 5.15; and (iv) Laws relating to Taxes, in which case the

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compliance with such Laws is exclusively addressed in Section 5.19), and no investigation or review by any Governmental Entity with respect to the Company or the Business is pending or, to the Knowledge of the Company, threatened. The Company has not been excluded from participation in government funded health care programs nor is any such exclusion, to the Knowledge of the Company, pending.

Section 5.08. Financial Statements. The Company has previously furnished or made available to the Buyer its consolidated audited balance sheet as of December 31, 2012 and December 31, 2013, together with the related statements of income and cash flows for the fiscal periods then ended, and its unaudited consolidated balance sheet as of March 31, 2014, together with the related statements of income and summary of cash flows for the fiscal periods then ended (the March 31, 2014 balance sheet is referred to as the “Interim Balance Sheet” and all the financial statements referred to above are collectively referred to as the “Financial Statements”), copies of which are included as Schedule 5.08. The Financial Statements: (a) have been prepared in conformity with GAAP (subject, in the case of any unaudited Financial Statements, to normal and recurring year-end adjustments and the absence of footnotes), (b) present fairly, in all material respects, the financial position, results of operations, and changes in financial position of the Company as of such dates and for the periods then ended, (c) are complete, correct, and in accordance with the books of account and records of the Company in all material respects, (d) can be reconciled with the financial statements and the financial records maintained and the accounting methods applied by the Company for financial accounting and federal income tax purposes, and (e) accurately reflect all costs and expenses of the Company in all material respects.

Section 5.09. Undisclosed Liabilities. The Company has no liabilities or obligations (whether known or unknown, accrued, absolute, or contingent, liquidated or unliquidated or due or to become due), except for: (a) liabilities shown on the Interim Balance Sheet, (b) liabilities that have arisen since March 31, 2014 in the Ordinary Course of Business, and (c) contractual liabilities incurred in the Ordinary Course of Business not required by GAAP to be reflected on a balance sheet or the notes thereto.

Section 5.10. Absence of Certain Changes or Events. Since December 31, 2013, the Company has conducted its business in the Ordinary Course of Business, and, except as set forth on Schedule 5.10, the Company has not:

(a) suffered any material damage, destruction, or loss, whether or not covered by insurance;

(b) declared any direct or indirect redemption, retirement, purchase, or other acquisition by the Company of shares of its capital stock or other equity interests in the Company other than in the Ordinary Course of Business;

(c) issued any equity of the Company or any warrants, rights or options, or entered into any commitment relating to the equity of the Company;

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(d) except as required by applicable Law or GAAP, made any material change in the accounting methods or practices it follows, whether for general, financial, or Tax purposes, or any change in depreciation or amortization policies or rates adopted therein;

(e) sold, leased, abandoned, or otherwise disposed of any machinery, equipment, or other operating property with an individual book value in excess of $25,000, or an aggregate book value in excess of $100,000;

(f) sold, assigned or transferred any Owned Intellectual Property;

(g) permitted or allowed any of its property or assets to be subjected to any mortgage, deed of trust, pledge, Lien, security interest, or other encumbrance of any kind (except Permitted Liens);

(h) made any capital expenditure or commitment individually in excess of $25,000 or in the aggregate in excess of $100,000;

(i) paid, loaned, or advanced any amount to, or sold, transferred, or leased any tangible properties or assets to, or entered into any Contract or arrangement with, any Affiliate;

(j) incurred any debt for borrowed money;

(k) made any changes in its policies, practices, or methodology of collecting accounts receivable or paying accounts payable or accrued liabilities, and all such collections and payments have been made in the Ordinary Course of Business;

(l) settled or paid any claims or litigation against the Company or any of its directors or officers (in their capacities as such);

(m) instituted any increase in excess of 3% in any compensation payable to any officer or employee of the Company or in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare, or other benefits made available to officers or employees of the Company;

(n) prepared or filed any Tax Return inconsistent with past practice or, on such Tax Return, except as required by applicable Law, taken any position, made any election, or adopted any method inconsistent with positions taken, elections made, or methods used in preparing or filing similar Tax Returns in prior periods;

(o) written off any accounts receivable or issued any credit to a customer individually in excess of $25,000 or in the aggregate in excess of $100,000; or

(p) experienced a Material Adverse Effect.

Section 5.11. Absence of Litigation. Except as set forth on Schedule 5.11, neither the Company nor the directors or officers of the Company, in their capacities as such: (a) is subject to any outstanding or, to the Knowledge of the Company, threatened injunction, judgment,

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Order, decree, ruling, or charge, and (b) is a party or, to the Knowledge of the Company, threatened to be made a party, to any Proceeding in, or before any Governmental Entity. There is no Proceeding pending, or to the Knowledge of the Company, threatened, that questions the legality or propriety of the transactions contemplated by this Agreement.

Section 5.12. Title to Property and Assets.

(a) The Company has valid and marketable title to all of the assets (whether fixed or intangible) reflected on the Interim Balance Sheet (or acquired since the date of the Interim Balance Sheet), free and clear of all Liens, except for Permitted Liens, other than assets disposed of since the date of the Interim Balance Sheet in the Ordinary Course of Business, and other than with respect to title to any Intellectual Property, which is addressed exclusively in Section 5.18.

(b) Schedule 5.12(b) contains a true and complete list of all real property owned, leased, or subleased by the Company. The Company is in compliance and during the last three years has been in compliance, in all material respects, with all such leases and subleases, and, to the Knowledge of the Company, no event has occurred that, with or without notice or the lapse of time, would constitute a breach or default in any material respect, or that would permit termination, modification, or acceleration thereunder. To the Knowledge of the Company, the lessor under all such leases is not in default thereunder and, in the case where the Company is the sublessor under any such lease, to the Knowledge of the Company, the sublessee under all such subleases is not in default thereunder. The leasehold or other interest of the Company is not subject to or subordinate to any Lien except for Permitted Liens. An accurate and complete copy of all lease documents, including amendments and modifications thereto, has been made available to the Buyer. The Company has not assigned, transferred, conveyed, mortgaged, deeded in trust, sublet or encumbered any interest in the leaseholds except for Permitted Liens or as set forth on Schedule 5.12(b).

(c) All real and personal property leases to which the Company is a party are valid, binding, enforceable against the parties thereto, and in effect in accordance with their respective terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, or other Laws affecting the enforcement of creditors’ rights generally and by principles of equity, regardless of whether such enforceability is considered in a Proceeding at law or in equity (collectively, the “Enforceability Exceptions”). The Company has the right to possess and quiet enjoyment of all the real property described in Schedule 5.12(b) as set forth in the lease or similar Contract made available to the Buyer. Neither the whole nor any part of the real property leased or used or occupied by the Company is subject to a pending Proceeding for condemnation or taking by any Governmental Entity, and, to the Knowledge of the Company, no such condemnation or taking is threatened or contemplated.

Section 5.13. Condition of Assets. The assets owned, leased, or licensed by the Company: (a) constitute all the assets and properties used in, or necessary for, the operation of the Business of the Company (including all books, records, computers and data processing systems) as currently conducted, (b) are sufficient and adequate for the Business as currently conducted (and for disaster recovery purposes), and (c) are in good (subject to normal wear and tear) and serviceable condition and are suitable for the uses for which they are currently used.

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Except as set forth on Schedule 5.13, no portion of the Company’s leased real property has suffered any material damage that has not been in each case repaired or restored to a functional condition, and the real property and improvements are in sufficient good condition and repair to conduct the Business. There are no assets used in the Business that will not be owned or available for use by the Company immediately after the Closing on the same terms as the date of this Agreement other than assets disposed of in the Ordinary Course of Business. This Section 5.13 shall not apply to any Intellectual Property assets of the Company.

Section 5.14. Employees.

(a) Schedule 5.14(a) contains the following information for each full-time, part-time, or temporary employee, or officer of the Company, including for each such employee on leave of absence or layoff status: name, employer company (if not the Company), job title, current employment status, date of hire, current base cash compensation, 2013 bonuses paid or accrued, and accrued vacation and time off as of May 2, 2014. The Company has made available to the Buyer true and complete copies of each employment Contract, including any amendments thereto, that exists for each employee listed in Schedule 5.14(a). Schedule 5.14(a) also contains a list of the following information for each former employee, officer, or director of the Company, or their dependents, receiving benefits or scheduled to receive benefits from the Company in the future: name, pension benefit, pension option election, retiree medical insurance coverage, retiree life insurance coverage, and other welfare benefits. The Company is not a party to any collective bargaining Contract. There is no strike, labor dispute, slowdown, or stoppage pending or, to the Knowledge of the Company, threatened against the Company. To the Knowledge of the Company, no union-organizing activities have taken place in the past or are taking place presently with respect to the Business of the Company.

(b) Except as set forth on Schedule 5.14(b), the Company is in material compliance and during the last three years has been in material compliance with all applicable Laws respecting labor, employment, industrial relations, employment practices, terms and conditions of employment, and wages and hours, including Laws regarding terms and conditions of employment, wages, and hours, equal employment opportunity, affirmative action, employee benefits, plant closing, and mass layoff, occupational safety and health, immigration, and workers’ compensation (collectively, the “Labor Laws”) other than noncompliance with Labor Laws that has been corrected prior to the date hereof and for which the Company shall have, individually or in the aggregate, no further material liability.

(c) There are no charges, complaints or Proceedings before the Equal Employment Opportunity Commission, Department of Labor or any other Governmental Entity responsible for regulating employment practices, pending or, to the Knowledge of the Company, threatened against the Company.

(d) The Company is in material compliance and during the last three years has been in material compliance with all Laws relating to the employment of Persons who are not citizens of the country in which they are employed, and all Laws relating to the documentation and recordkeeping of employees’ work authorization status.

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(e) Within the past twelve (12) months, the Company has reviewed the Department of Health & Human Services Office of Inspector General and General Services Administration exclusion lists and lists of excluded contractors, and can confirm that none of its employees has been excluded from participation in government funded health care programs.

(f) The Company’s employees have participated in and completed fraud, waste, and abuse training as required by and in accordance with CMS requirements. The Company maintains (i) certifications from each employee attesting to the individual’s participation in and completion of such fraud, waste, and abuse training; (ii) training logs showing the date and attendance of such fraud, waste, and abuse training, and (iii) copies of the fraud, waste, and abuse training materials.

Section 5.15. Employee Benefit Plans.

(a) Schedule 5.15(a) lists (i) all material bonus, equity incentive, phantom equity, profit-sharing, deferred compensation, change of control, pension, retirement, health, welfare, medical, retiree medical, disability, or life insurance, supplemental retirement, severance, or other benefit plans, programs, or arrangements, and all employment, termination, severance, or other Contracts to which the Company is a party, with respect to which the Company has any obligation or that are maintained, contributed to, or sponsored by the Company for the benefit of any current or former employee, officer, or director of the Company, and (ii) any Contracts, arrangements, or understandings between the Company or any of its Affiliates and any current or former employee of the Company relating to a sale of the Company (collectively, the “Plans”). Except as disclosed in Schedule 5.15(a), there are no other employee benefit plans, or material programs, arrangements, or Contracts, whether formal or informal, whether in writing or not, to which the Company is a party, with respect to which the Company has any obligation or that are maintained, contributed to, or sponsored by the Company for the benefit of any current or former employee, officer, or director of the Company.

(b) Except as disclosed in Schedule 5.15(b), neither the Company nor an ERISA Affiliate has (i) a Plan for which the Company or an ERISA Affiliate could incur liability under Section 4069 of ERISA in the event such Plan has been or were to be terminated; or (ii) a Plan in respect of which the Company or an ERISA Affiliate could incur liability under Section 4212(c) of ERISA.

(c) Except as disclosed in Schedule 5.15(a), there are no other employee benefit plans, or material programs, arrangements, or Contracts, whether formal or informal, whether in writing or not, to which the Company is a party, with respect to which the Company has any obligation or that are maintained, contributed to, or sponsored by the Company for the benefit of any current or former employee, officer, or director of the Company. Except as disclosed in Schedule 5.15(c), the Company has no express or implied commitment (i) to create, incur liability with respect to, or cause to exist, any other employee benefit plan, program, or arrangement, except with respect to the Plans, (ii) to enter into any Contract to provide compensation or benefits to any individual, except with respect to the Plans and Contracts set forth in Schedules 5.14(a) or 5.15(a), or (iii) to modify, change, or terminate any Plan, except as required by Law.

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(d) None of the Plans are multiemployer plans (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (each, a “Multiemployer Plan”) or a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which the Company could incur liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). None of the Plans provide for or promise to provide, and the Company is not obligated to provide, retiree medical, disability life insurance or other post-retirement welfare benefits to any current or former employee, officer or director of the Company, except as required by Law.

(e) Except as set forth in Schedule 5.15(e), none of the Plans provide for, and the Company has no obligation with respect to, the payment of separation, severance, termination, or similar-type benefits to any Person or obligate the Company to pay separation, severance, termination, or similar-type benefits solely or partially as a result of any transaction contemplated by this Agreement or as a result of a “change in control,” within the meaning of such term under Section 280G of the Code. Except as set forth in Schedule 5.15(e), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, either alone or together with another event, will (i) result in any payment (including severance, unemployment compensation, golden parachute, forgiveness of indebtedness, or otherwise) becoming due under any Plan, (ii) increase any benefits otherwise payable under any Plan or other arrangement, (iii) result in the acceleration of the time of payment, vesting, or funding of any benefits, or (iv) affect in any respect any Plan’s current treatment under any Laws, including any Tax or social contribution Law.

(f) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, regulations, and rules promulgated thereunder, including ERISA and the Code. The Company has performed all obligations required to be performed by it under, and are not in default under or in violation of, any Plan. No Proceeding is pending or, to the Knowledge of the Company, threatened with respect to any Plan (other than claims for benefits in the Ordinary Course of Business) and, to the Knowledge of the Company, no fact or event exists that could give rise to any such Proceeding. The Company is not subject to any penalty or Tax with respect to any Plan under Section 402(i) of ERISA or Sections 4975 through 4980 of the Code.

(g) Each Plan that is intended to be qualified under Section 401(a) or Section 401(k) of the Code has timely received a favorable determination or opinion letter from the IRS covering all of the provisions applicable to the Plan for which determination letters are currently available that the Plan is so qualified and each trust established in connection with any Plan that is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination or opinion letter from the IRS that it is so exempt, and, to the Knowledge of the Company, no fact or event has occurred since the date of such letter or letters from the IRS to adversely affect the qualified status of any such Plan or the exempt status of any such trust.

(h) The Company has not incurred any liability under, arising out of, or by operation of Title IV of ERISA, including any liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan or Multiple Employer Plan, and no fact or event exists that could give rise to any such liability.

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(i) Except as set forth in Schedule 5.15(i), all contributions, premiums, or payments required to be made with respect to any Plan have been made on or before their due dates. All such contributions have been fully deducted for income Tax purposes and no such deduction has been challenged or disallowed by any Governmental Entity, and, to the Knowledge of the Company, no fact or event exists that could give rise to any such challenge or disallowance.

(j) With respect to each Plan, the Company has furnished to the Buyer a correct and complete copy of each of the following: (i) all plan documents and amendments, trust agreements, and insurance and annuity contracts and policies, (ii) the most recent favorable IRS determination or opinion letter with respect to each Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code, (iii) materials submitted to the IRS in support of any pending determination letter request, (iv) the three most recently filed Forms 5500 plus all schedules and attachments, if applicable, (v) the most recent summary plan description and any subsequent summaries of material modifications thereto otherwise provided to employees or former employees that describes the terms of the Plan, if applicable, (vi) any correspondence and other materials submitted to or received from the IRS or U.S. Department of Labor in connection with any correction program with respect to any Plan, and (vii) any nondiscrimination tests performed during the last two (2) plan years.

(k) Neither the Company nor any party in interest (as such term is defined in Section 3(14) of ERISA) nor any disqualified person (as such term is defined in Section 4975(e)(2) of the Code) has engaged in any non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975(c) of the Code with respect to any Plan.

(l) There is no Proceeding pending or, to the Knowledge of the Company, threatened, alleging any breach of the terms of any Plan or of any fiduciary duties thereunder or violation of any applicable Law with respect to any Plan. Neither the Company nor any ERISA Affiliate nor any of their respective managers, officers, employees, or other fiduciaries (as such term is defined in Section 3(21) of ERISA) has any material liability for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of any Plan. For purposes of this Agreement, a Person is an “ERISA Affiliate” if such Person qualifies as an “affiliate” as set forth pursuant to ERISA Section 407(d)(7).

(m) Except as set forth in Schedule 5.15(m), each Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (each a “Code Section 409A Plan”) has been operated in compliance with Section 409A of the Code and the final regulations promulgated thereunder to the extent such plan is subject to Section 409A of the Code. No participant in such a Code Section 409A Plan will incur any Taxes on any benefit under such Code Section 409A Plan before the date as of which such benefit is actually paid to such participant. No Code Section 409A Plan requires the Company or any of its Subsidiaries to gross up a payment to any former or current employee, officer, director, or contractor of the Company or any of its Subsidiaries for Tax-related payments under Section 409A of the Code.

Section 5.16. Contracts. Except as set forth (and specifically identified by reference to the applicable categories set forth in (a) through (p) below) on Schedule 5.16, the Company is not a party to or bound by:

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(a) any Contracts, excluding Plan Sponsor Agreements with customers generally in the form attached to Schedule 5.16 (the “Plan Sponsor Agreements”), which provide for: (i) the transfer of ownership of any of its Intellectual Property, (ii) the exclusive license of any Intellectual Property, either in-license or out-license, or (iii) the license of Trademarks of the Company;

(b) any employment Contract;

(c) any written independent contractor, sales broker or similar written Contract that is not terminable on thirty (30) days’ notice or less without penalty, liability, or premium of any type;

(d) any Contracts that (i) restrict the ability of the Company to engage in any line or type of business or from competing with any Person; (ii) commit the Company to an exclusive purchase relationship with any vendor; (iii) commit the Company to provide any product or service exclusively to a particular customer; (iv) prohibit the Company from soliciting any Person to become a customer of the Company; or (v) grant to any Person a right of first refusal or right of first offer on the sale of any part of the Business of the Company;

(e) any currently effective or prior collective bargaining or union Contract with respect to its employees;

(f) any surety bonds and any Contracts involving a guarantee of any obligations of other Persons by the Company or any Contracts to acquire or guarantee any obligations of other Persons by the Company;

(g) any lines of credit, standby financing, revolving credit, or other similar financing arrangements of any sort, other than trade payables incurred in the Ordinary Course of Business;

(h) any Contracts with a remaining obligation for the purchase of materials, supplies, goods, services, equipment, or other assets that provided for payments by the Company of $100,000 or more in 2013 or that are expected to provide for payments of $100,000 or more in 2014;

(i) any Contracts, other than this Agreement and the other Transaction Documents, that provide for the acquisition or disposition of any business or assets of the Company, including Intellectual Property, with a fair market value of $25,000 or more (whether by merger, sale of stock, sale of assets, exclusive license, or otherwise), but excluding standard off-the-shelf end-user license agreements;

(j) any Contracts under which the Company has advanced, other than reimbursable expenses or similar advances, or loaned money to any (i) officer, director, stockholder, or employee of the Company, (ii) Affiliate of any such officer, director, stockholder, or employee of the Company, or (iii) to any other Person;

(k) any Contracts providing for notice, the payment of compensation or other benefits, or creating or triggering any rights of acceleration, consent, termination, modification,

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cancellation, loss of rights, or other rights or obligations in the event of a sale or change in control of the Company or its assets;

(l) any leases of real estate, or is a party to any other lease with lease payments by the Company in excess of $25,000 per annum;

(m) any Contracts for the purchase, licensing, or development of Company Software with payments by the Company in excess of $10,000, except standard end-user license agreements with customers in the form made available to the Buyer and Plan Sponsor Agreements;

(n) any Contracts that provide for a most-favored pricing provision for any customer of the Company;

(o) any other Contracts or instruments that are material to the Company, the Business, or the assets of the Company; or

(p) any Contract between the Company and any Material Customer, Material Broker and/or Material Vendor.

The Contracts, documents, and instruments set forth or required to be set forth on any of Schedules 5.12(b), 5.16, and 5.18 are referred to herein collectively as the “Material Contracts.” True and correct copies of each Material Contract have been provided or made available to the Buyer or its representatives. Each of the Material Contracts is valid, binding, in full force and effect, and enforceable by the Company in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions. To the Knowledge of the Company, none of the Company’s First Tier, Downstream and Related Entities perform any activities at any location physically located outside of one of the fifty (50) United States or one of the United States territories (i.e., American Samoa, Guam, Northern Marianas, Puerto Rico, and Virgin Islands) under or in connection with the provision of Medicare or Medicaid Services that involves receiving, processing, transferring, handling, storing, or accessing Protected Health Information. Except as set forth on Schedule 5.16, the Company has not received any written notice of termination and, to the Knowledge of the Company, no party to any such Material Contract intends to cancel, withdraw, modify, or amend such Material Contract. The Company is not in default under or in breach or violation of nor, to the Knowledge of the Company, is there any valid basis for any claim of default by the Company under, or breach or violation by the Company of, any provision of any Material Contract. To the Knowledge of the Company, no other party is in default under, or in breach or violation of, nor is there any valid basis for any claim of default by any other party under or any breach or violation by any other party of, any Material Contract. Except as set forth on Schedule 5.16, the Company is not currently renegotiating any of the Material Contracts or paying liquidated damages in lieu of performance thereunder.

Section 5.17. Environmental Matters.

(a) The Company is in material compliance with all applicable Environmental Laws. There is no pending or, to the Knowledge of the Company, threatened Proceeding, or

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inquiry or information request, by any Governmental Entity relating to any Environmental Law involving the Company.

(b) The Company has not: (i) operated any underground storage tanks at any property that the Company has at any time owned, operated, occupied or leased, or (ii) Released any substance that has been designated by any Governmental Entity or by applicable federal, state or local law to be radioactive, toxic, hazardous or otherwise a danger to health, reproduction or the environment, including PCBs, asbestos, petroleum, and urea-formaldehyde and all substances listed as hazardous substances pursuant to CERCLA, or defined as a hazardous waste pursuant to RCRA, and the regulations promulgated pursuant to said laws (a “Hazardous Material”) in violation of Environmental Laws, but excluding office and janitorial supplies properly and safely used, stored and maintained. As of the Closing, except in compliance with Environmental Laws and in a manner that could not reasonably be expected to subject the Company to liability, to the Knowledge of the Company, no Hazardous Materials are present in, on or under any property, including the land and the improvements, ground water and surface water thereof, that the Company has at any time owned, operated, occupied or leased.

(c) The Company currently holds all material environmental approvals, permits, licenses, clearances and consents necessary for the conduct of the Business and other activities of the Company as the Business and such other activities are currently being conducted. Schedule 5.17(c) accurately describes all of the environmental Permits currently held by the Company.

(d) The Company is not a party to or bound by any Order, including any court order, administrative order, consent order, or other Contract between the Company and any Governmental Entity entered into in connection with any legal obligation or liability arising under any Environmental Law.

(e) Correct and complete copies of all documents that contain any environmental reports, investigations, and audits relating to premises currently owned or operated by the Company (whether conducted by or on behalf of the Company or a third party, and whether done at the initiative of the Company or directed by a Governmental Entity or other third party) that were issued or conducted during the past three (3) years and that are in the possession of the Company have been provided or made available to the Buyer.

Section 5.18. Intellectual Property.

(a) Schedule 5.18(a) sets forth a true and complete list of: (i) all registrations and applications for registration of Trademarks in all countries of the world that are now owned by the Company; and (ii) all registered Copyrights that are now owned by the Company. The Company has previously disclosed to the Buyer all work in progress and material Trade Secrets owned by the Company. The Company does not own any active foreign or U.S. patents and/or patent applications.

(b) Schedule 5.18(b) sets forth a true and complete list of all Licensed Intellectual Property (other than Third-Party Software that is commercially available without customization that has general applicability to businesses and which has an aggregate purchase

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price of less than $10,000). Company will attempt to provide in Schedule 5.18(b) any product, device, process, service, business, or publication covered by such Licensed Intellectual Property, the licensor, or licensee, and expiration date (“License Information”), if any, associated with such Licensed Intellectual Property; provided, however, that Company shall not be deemed to be in breach of this Section 5.18(b) or this Agreement to the extent Company fails to list any License Information, particularly given the truncated timetable of this transaction.

(c) Schedule 5.18(c) identifies all material licenses, sublicenses, assignments, license fees, royalties and other charges and other Contracts (oral or written) to which the Company is a party or by which the Company or any of its property is in any way bound or affected relating to the Owned Intellectual Property or the Licensed Intellectual Property, other than Third-Party Software that is commercially available without customization that has general applicability to businesses and which has an aggregate purchase price of less than $10,000 and Plan Sponsor Agreements.

(d) Except as otherwise set forth in Schedule 5.18(b), the Company is the exclusive owner of the entire and unencumbered right, title, and interest, including beneficial interest, in and to, and has good and marketable title to, each item of the Owned Intellectual Property, free and clear of any Liens (except Permitted Liens), and has the right to use the Owned Intellectual Property in the conduct of its business as presently conducted and as contemplated or planned to be conducted. The Company has the right or license to use the Licensed Intellectual Property in the conduct of its business as presently conducted.

(e) Except as disclosed in Schedule 5.18(e), the Owned Intellectual Property and Licensed Intellectual Property include all of the material Intellectual Property developed by the Company and/or used in the Business of the Company. There are no other items of material Intellectual Property that are used by the Company other than Third-Party Software that is commercially available without customization that has general applicability to businesses and which has an aggregate purchase price of less than $10,000.

(f) Except as disclosed in Schedule 5.18(f): (i) all registrations for Copyrights and Trademarks owned by the Company are valid and in force, and all applications by the Company to register any unregistered Copyrights and Trademarks are pending and in good standing; (ii) to the Knowledge of the Company, the Company has the sole and exclusive right to bring actions for infringement or unauthorized use of the Owned Intellectual Property, and to the Knowledge of the Company, there is no basis for any such action; (iii) the Company has taken actions reasonably necessary to protect, and where necessary to register, its Owned Intellectual Property; and (iv) the Company has not taken any action that would materially impair or otherwise materially adversely affect its rights in such Owned Intellectual Property.

(g) Except as disclosed in Schedule 5.18(g), there are no pending or, to the Knowledge of the Company, threatened interferences, reexaminations, oppositions, or cancellation Proceedings involving any Owned Intellectual Property.

(h) There are no pending or, to the Knowledge of the Company, threatened Proceedings contesting the validity, ownership or right to use, sell, license, distribute, or dispose of the Owned Intellectual Property.

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(i) There is no breach or violation by the Company under, and to the Knowledge of the Company, there is no breach or violation by any other party to, any (i) Contract, license or other document required to be listed in Schedule 5.18(b), or (ii) Licensed Intellectual Property.

(j) To the Knowledge of the Company, there has been no unauthorized disclosure or use of (i) the Licensed Intellectual Property by the Company, or (ii) the Owned Intellectual Property by any other Person, whether or not the value of which to the Company is dependent upon the maintenance of the confidentiality thereof.

(k) Except as provided in Schedule 5.18(k), the operations, activities, products, Software, equipment, machinery, or processes of the Company, the Business and the Owned Intellectual Property and, to the Knowledge of the Company, the Licensed Intellectual Property do not infringe on any Intellectual Property of any other Person.

(l) The execution and consummation of this Agreement will not (i) result in the granting of, or obligate the Buyer or any of its Affiliates to grant any new licenses under any Owned Intellectual Property; or (ii) result in any loss or impairment of any Owned Intellectual Property or Licensed Intellectual Property or any right, title, or interest thereto.

(m) Except as disclosed in Schedule 5.18(m): (i) the Company Software is not subject to any transfer (except for Licensed Intellectual Property to which the Company does not have a perpetual license), assignment, reversion (except for Licensed Intellectual Property to which the Company does not have a perpetual license), site, equipment, or other limitations, all of the foregoing excluding system requirements, firmware requirements or other limitations that do not materially affect the use or intra-company transfer of the Software in the Company, to which the Company is subject; and (ii) to the Knowledge of the Company, the Company Software has not been and will not be on or prior to the Closing exported or reexported in violation of any Law.

(n) Except as disclosed in Schedule 5.18(n), all consultants and contractors who have contributed to or participated in the creation or development of any Owned Intellectual Property on behalf of the Company or any predecessor in interest thereto either: (i) is a party to a Contract, including any “work-for-hire” agreement, under which the Company is deemed to be the original owner/author of all Intellectual Property rights therein; or (ii) has executed an assignment or a Contract to assign in favor of the Company (or such predecessor in interest, as applicable) of all right, title, and interest in such Owned Intellectual Property, and a list of each such Contract or assignment is set forth in Schedule 5.18(n). The Company has Contracts or policies in place with all such Persons reasonably sufficient to maintain the confidentiality of the Owned Intellectual Property and Company Software (to the extent such items are confidential in nature), and each such Contract related to the confidentiality of the Owned Intellectual Property and Company Software is listed in Schedule 5.18(n).

(o) Any Owned Intellectual Property that is Software includes the source code, any system documentation, any statements of principles of operation, and any schematics for such Owned Intellectual Property. All other Company Software, including Licensed Intellectual Property, does not include the source code, any system documentation, any

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statements of principles of operation, or any schematics, except as disclosed in Schedule 5.18(o) or as generally made available to the Company by its licensors.

(p) Except as disclosed in Schedule 5.18(p), the Company Software does not contain any open source software, freeware, or other software distributed under similar licensing or distribution models (including software licensed or distributed under GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), the Artistic License, the Mozilla Public License, the Netscape Public License, the Sun Community License (SCSL), the Sun Industry Standards License (SISL), the BSD License, or the Apache License), and no such software has been incorporated into the Company Software in such a way that would in any way obligate the Company to disclose to any third party the source code for any such Company Software. The Company is in material compliance with the open source license for each of the open source software programs set forth in Schedule 5.18(p).

Section 5.19. Taxes. Except as set forth on Schedule 5.19:

(a) (i) the Company has filed or caused to be filed, when due, all Income Tax Returns and all other material Tax Returns required by applicable Law to be filed by it; (ii) the information contained in such Tax Returns is true, complete, and accurate in all material respects; (iii) the Company has paid, or will have paid, all material Taxes owed by it (whether or not shown on any Tax Return) that are required to be paid on or prior to the Closing Date; (iv) any liability of the Company for Taxes attributable to the Pre-Closing Tax Period not due and payable as of the Closing Date will be reflected as a liability in the calculation of Working Capital; (v) there is no Proceeding for additional Tax or assessment for which the Company has received written notice or that, to the Knowledge of the Company, is now pending or threatened against, or with respect to, the Company in respect of any Tax; (vi) none of the assets, properties, or rights of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the Code; (vii) there are no material Liens for Taxes affecting any of the assets, properties, or rights of the Company, except for Permitted Liens and Liens relating to Taxes being contested in good faith and described on Schedule 5.19; (viii) there has been no waiver or extension of any applicable statute of limitation for the assessment or collection of any Taxes of the Company, which waiver or extension is still outstanding or effective; and no power of attorney granted by or with respect to the Company relating to Taxes is currently in force; (ix) the Company is not a party to any Tax sharing, allocation or similar agreement, whether written or unwritten, the principal purpose of which is to provide for the payment of Taxes of another Person, payment of amounts for the use of another Person’s Tax losses, or the payment for the right to receive another Person’s entitlement to refunds of Taxes, in each case, other than the Company; (x) the Company has withheld and paid all Taxes required to be withheld by it in connection with any amount paid or owing to any employee, creditor, independent contractor, or other Person; and (xi) no claim has been made against the Company by any Taxing Authority in a jurisdiction where the Company does not currently file a Tax Return that the Company is or may be subject to Tax by such jurisdiction or Taxing Authority, nor to the Knowledge of the Company is any such assertion threatened.

(b) The Company is not currently the beneficiary of any extension of time within which to file any Tax Return.

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(c) The Company is not a party to any Contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of an “excess parachute payment” for purposes of Section 280G of the Code or the corresponding Tax Laws of any state, locality or other jurisdiction.

(d) No Taxing Authority is conducting or, to the Knowledge of the Company, threatening to conduct a Tax Proceeding with respect to the Company. Schedule 5.19(d) lists all federal, state, local, and foreign Income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2010, indicates those Income Tax Returns on such list that have been audited, and indicates those Income Tax Returns on such list that are currently being audited. The Company has made available to Buyer correct and complete copies of all federal Income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by the Company filed or received since December 31, 2010.

(e) The Company has never been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. The Company has never (i) been a member of an Affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), or (ii) had any liability for the Taxes of any Person (other than the Company) under Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign Law), as a transferee or successor, by Contract, or otherwise.

(f) The unpaid Taxes of the Company (i) did not, as of March 31, 2014, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Interim Balance Sheet (rather than in any notes thereto), and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns. Since the date of the Interim Balance Sheet, the Company has not incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the Ordinary Course of Business.

(g) 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 (i) change in method of accounting for a taxable period ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Income Tax Law) executed on or prior to the Closing Date, (iii) intercompany transaction or excess loss account described in treasury regulations promulgated under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Income Tax Law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date, or (v) prepaid amount received on or prior to the Closing Date.

(h) The Company has not distributed stock of another Person, or has had its stock distributed by another Person within the ten (10) year period preceding the date of this

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Agreement, 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.

Section 5.20. Related Party Transactions. Except as set forth in Schedule 5.20 or pursuant to employment Contracts set forth on Schedule 5.16, there are no Contracts or other arrangements (other than related to the ownership of Target Shares or Options) between the Company and any (a) officer or director of the Company, (b) Target Stockholder or Option Holder, or (c) Affiliate of any such officer, director, Target Stockholder, or Option Holder. Except as set forth in Schedule 5.20, no director or officer of the Company, directly or indirectly: (i) owns any shares of stock or other securities (other than ownership of publicly traded securities) of, or has any other direct or indirect interest in, any Person that has a business relationship (as creditor, lessor, lessee, supplier, dealer, distributor, franchisee, customer, or otherwise) with the Company, (ii) owns or has any direct or indirect interest in any of the assets of the Company (other than to the extent, if any, in their capacity as equity owners of the Company), including any Intellectual Property or other right, property, or asset that is used in the ownership or operation by the Company of its properties and assets, or to otherwise carry on and conduct the Business, or (iii) has any material business relationship (other than as an owner, director or officer) with the Company. All officers, directors, Equity Holders or any Affiliates of any such officer, director or Equity Holder of the Company who are responsible for the administration or delivery of a Medicare or Medicaid Service are free from any conflict of interest in administering or delivering Medicare or Medicaid Services and have attested to their lack of conflict of interest. Schedule 5.20 sets forth a list of all services provided by any Target Stockholder or any Affiliate of any Target Stockholder to the Company utilizing either (A) assets not owned or leased by the Company, or (B) individuals not listed in Schedule 5.14(a) and the amount paid by the Company during the twelve (12) months ended December 31, 2013 with respect to such services.

Section 5.21. Insurance Policies. Schedule 5.21(a) sets forth a true and complete list of all insurance policies held by the Company and all pending claims thereunder, including all policies of life, title, liability, fire, casualty, business interruption, workers’ compensation, and other forms of insurance insuring the Company and its directors and officers (in their capacities as such), assets, properties, and operations. The Company has furnished or made available to the Buyer true and complete copies of all such policies. All premiums due as of the date hereof on such policies have been paid. During the past three (3) years, the Company has not failed to give any notice or present any material claim under any such policy in a timely fashion. Except as set forth on Schedule 5.21(b), the Company has not received any notice of cancellation or other indication that any insurance policy is no longer in full force or effect or will not be renewed or that the issuer of any policy is not willing or able to perform its obligations thereunder. The Company is not in material default under any provisions of any such policy of insurance. Schedule 5.21(a) lists the aggregate coverage amount and type and generally applicable deductibles of all such policies. Except as set forth in Schedule 5.21(c), all such policies and any bonds are in full force and effect and will not in any material respect be affected by or terminated or lapsed by reason of the consummation of the transactions contemplated by this Agreement.

Section 5.22. No Brokers. Except as set forth on Schedule 5.22, the Company is not obligated for the payment of fees or expenses of any broker or finder in connection with the

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origin, negotiation, or execution of this Agreement or the other Transaction Documents or in connection with any transaction contemplated hereby or thereby.

Section 5.23. Customers; Brokers and Vendors. Schedule 5.23(a) sets forth a list, as of the date of this Agreement, of the top 100 customers, the top 20 sales brokers/resellers and the top 25 vendors of the Company on a revenues-or-billings-generated (as to customers or brokers/resellers) and expenditures (as to vendors) basis during the twelve (12) months ended December 31, 2013 (the “Material Customers,” “Material Brokers” and “Material Vendors,” respectively). Except as set forth on Schedule 5.23(b), no such Material Customer, Material Broker or Material Vendor has within the past year provided written notice to the Company to the effect that, or, to the Knowledge of the Company, otherwise indicated it will stop or materially decrease its level of business with the Company or otherwise materially and adversely modify its relationship with the Company.

Section 5.24. Permits. Schedule 5.24 sets forth a list of all material licenses, permits, franchises, approvals, authorizations, consents, clearances, or Orders of, or filings with, any Governmental Entity, whether foreign, federal, state, or local, or any other Person, necessary for the conduct of, or relating to, the operation of the Business, excluding Intellectual Property-related licenses, permits, franchises, approvals, authorizations, consents, clearances, Orders or filings (the “Permits”) issued to or held by the Company. Other than the professional licenses required to be obtained by the Company’s employees or independent contractors in order to perform the professional services provided by the Company, such listed Permits are the only Permits that are required for the Company to conduct business as presently conducted in any material respect. Each such Permit is, and following the consummation of the transactions contemplated herein, shall be, in full force and effect; the Company is in material compliance with and has during the past three (3) years been in material compliance with the terms of each such Permit; and, to the Knowledge of the Company, no suspension or cancellation of such Permits is threatened and, to the Knowledge of the Company, there is no basis for believing that such Permits will not be renewable upon expiration.

Section 5.25. Operations. The Company does not perform any activities at any location physically located outside of one of the fifty (50) United States or one of the United States territories (e.g., American Samoa, Guam, Northern Marianas, Puerto Rico, and Virgin Islands) under or in connection with the provision of Medicare or Medicaid Services that involves receiving, processing, transferring, handling, storing, or accessing Protected Health Information.

Section 5.26. Books and Records; Internal Controls. The books and records of the Company accurately reflect in all material respects the assets, liabilities, business, financial condition, and results of operations of the Company and have been maintained in accordance with generally accepted business and bookkeeping practices. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (a) transactions are executed in accordance with management’s general or specific authorizations, and (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with historical practice and to maintain asset accountability.

Section 5.27. Bank Accounts; Powers of Attorney. Schedule 5.27 sets forth a complete and correct list of all bank accounts and safe deposit boxes of the Company and

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Persons authorized to sign or otherwise act with respect thereto as of the date hereof and a complete and correct list of all Persons holding a general or special power of attorney granted by the Company and a complete and correct copy thereof.

Section 5.28. No Other Representations or Warranties. Except for the representations and warranties made by the Company that are expressly set forth in this Article V, neither the Company nor any Equity Holder, nor any of their respective Affiliates or representatives makes or has made, nor shall any of the foregoing be deemed to have made, to any of Buyer, Merger Sub, or any of their Affiliates or representatives, any representation or warranty of any kind pertaining to the Company, either oral or written, including a representation or warranty as to the accuracy or completeness of any information regarding the Company furnished or made available to Buyer or any of its Affiliates or representatives (including any information memorandum or presentation pertaining to the Company, and any information, documents or materials made available to Buyer in the data room, management presentations or in any other form in expectation of the transactions contemplated hereby) or as to the future revenue, profitability or success of the Company, or any representation or warranty arising from statute or otherwise in Law.

Section 5.29. Receivables. All receivables of the Business have arisen from bona fide transactions in the Ordinary Course of Business and are recorded in accordance with GAAP.

Section 5.30. Disclosure. To the Knowledge of the Company, none of the representations or warranties of the Company contained herein and none of the information contained in the Schedules referred to in this Agreement are false or misleading in any material respect or fail to state a fact herein or therein necessary to make the statements herein or therein not misleading in any material respect.

ARTICLE VI


OF THE MERGER SUB

The Merger Sub hereby represents and warrants to the Company as of the date hereof and as of the Closing Date as follows:

Section 6.01. Corporate Organization. The Merger Sub is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has all requisite power and authority to own its properties and assets and to conduct its business as now conducted.

Section 6.02. Authorization and Validity of Agreement.

(a) The Merger Sub has all requisite corporate power and authority to enter into this Agreement, any Transaction Documents, and all other agreements, documents, certificates, and instruments delivered to the Company in connection with the transactions contemplated under this Agreement to which it is a party and to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement, each Transaction Document, and all other agreements, documents, certificates, and instruments delivered to the

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Company in connection with the transactions contemplated under this Agreement to which it is a party and the performance of the Merger Sub’s obligations hereunder and thereunder have been duly authorized by all necessary corporate action of the Merger Sub. This Agreement, each Transaction Document, and all other agreements, documents, certificates, and instruments delivered to the Company in connection with the transactions contemplated under this Agreement to which the Merger Sub is a party have been duly executed by the Merger Sub and constitute the Merger Sub’s valid and binding obligation, enforceable against the Merger Sub, in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions.

(b) The execution, delivery, and performance by the Merger Sub of this Agreement, any Transaction Documents, and all other agreements, documents, certificates, and instruments delivered to the Company in connection with the transactions contemplated under this Agreement to which it is a party do not and will not conflict with, result in a breach of the terms, conditions, or provisions of, or default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, amendment, cancellation, or acceleration of any obligation or to the loss of rights or benefits, or result in the creation of any Lien upon any of the properties or assets of the Merger Sub under (i) any loan, guarantee of indebtedness, or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, Permit, concession, franchise, right, or license binding upon the Merger Sub, (ii) any provision of the Certificate of Incorporation or Bylaws of the Merger Sub, or (iii) any judgment, Order, decree, or Law applicable to the Merger Sub or its properties or assets.

Section 6.03. Governmental Consents and Approvals. Except the notification and report forms required to be filed under the HSR Act with the FTC and the Antitrust Division, no filing or registration with, or authorization, consent, or approval of, any Governmental Entity is required by or with respect to the Merger Sub in connection with the execution and delivery of this Agreement or any other Transaction Document by the Merger Sub or is necessary for the consummation of the transactions contemplated hereby or thereby.

Section 6.04. No Brokers. No broker, finder, or similar intermediary has acted for or on behalf of, or is entitled to any broker’s, finder’s, or similar fee or other commission from, the Merger Sub in connection with this Agreement or the transactions contemplated hereby.

Section 6.05. Absence of Litigation. There is no Proceeding pending, or to the knowledge of the Merger Sub, threatened, that questions the legality or propriety of the transactions contemplated by this Agreement or that would reasonably be expected to prevent, hinder or delay the consummation of the transactions contemplated hereby.

ARTICLE VII


OF THE BUYER

The Buyer hereby represents and warrants to the Company as of the date hereof and as of the Closing Date as follows:

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Section 7.01. Corporate Organization. The Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has all requisite power and authority to own its properties and assets and to conduct its businesses as now conducted.

Section 7.02. Authorization and Validity of Agreement.

(a) The Buyer has all requisite corporate power and authority to enter into this Agreement, any Transaction Documents, and all other agreements, documents, certificates, and instruments delivered to the Company in connection with the transactions contemplated under this Agreement to which it is a party and to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement, each Transaction Document, and all other agreements, documents, certificates, and instruments delivered to the Company in connection with the transactions contemplated under this Agreement to which it is a party and the performance of the Buyer’s obligations hereunder and thereunder have been duly authorized by all necessary corporate action of the Buyer. This Agreement, each Transaction Document, and all other agreements, documents, certificates, and instruments delivered to the Company in connection with the transactions contemplated under this Agreement to which the Buyer is a party have been duly executed by the Buyer and constitute the Buyer’s valid and binding obligation, enforceable against the Buyer, in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions.

(b) The execution, delivery, and performance by the Buyer of this Agreement, any Transaction Documents, and all other agreements, documents, certificates, and instruments delivered to the Company in connection with the transactions contemplated under this Agreement to which it is a party do not and will not conflict with, result in a breach of the terms, conditions, or provisions of, or default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, amendment, cancellation, or acceleration of any obligation or to the loss of rights or benefits, or result in the creation of any Lien upon any of the properties or assets of the Buyer under: (i) any loan, guarantee of indebtedness, or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, Permit, concession, franchise, right, or license binding upon the Buyer, (ii) any provision of the Certificate of Incorporation or Bylaws of the Buyer, or (iii) any judgment, Order, decree, or Law applicable to the Buyer or its properties or assets.

Section 7.03. Governmental Consents and Approvals. Except the notification and report forms required to be filed under the HSR Act with the FTC and the Antitrust Division, no filing or registration with, or authorization, consent, or approval of, any Governmental Entity is required by or with respect to the Buyer in connection with the execution and delivery of this Agreement or any other Transaction Document by the Buyer or is necessary for the consummation of the transactions contemplated hereby or thereby.

Section 7.04. No Brokers. No broker, finder, or similar intermediary has acted for or on behalf of, or is entitled to any broker’s, finder’s, or similar fee or other commission from, the Buyer in connection with this Agreement or the transactions contemplated hereby.

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Section 7.05. Absence of Litigation. There is no Proceeding pending, or to the knowledge of the Buyer, threatened, that questions the legality or propriety of the transactions contemplated by this Agreement or that would reasonably be expected to prevent, hinder or delay the consummation of the transactions contemplated hereby.

Section 7.06. Financial Ability. The Buyer will have at Closing sufficient immediately available funds in cash or cash equivalents to pay the Merger Consideration payable pursuant to this Agreement and to effect the transactions contemplated hereby.

Section 7.07. Independent Investigation. The Buyer has conducted its own independent investigation, review and analysis of the Business, results of operations, prospects, condition (financial or otherwise) or assets of the Purchased Companies, and acknowledges that it has the necessary knowledge and experience in financial and business matters as to be able to evaluate the merits and risks of its participation in the transactions contemplated by this Agreement.

ARTICLE VIII

COVENANTS OF THE COMPANY

Section 8.01. Conduct of Business Before the Closing. The Company hereby covenants as follows:

(a) Except as set forth on Schedule 8.01, without the prior written consent of the Buyer, between the date hereof and the earlier to occur of the termination of this Agreement pursuant to Article XIV or the Closing, the Company shall not:

(i) make any change in the conduct of the Business or enter into any transaction other than in the Ordinary Course of Business or as required by applicable Law;

(ii) make any change in its Charter or Bylaws; issue any equity securities, or grant any option, warrant, or right to acquire any equity securities, or issue any security convertible into or exchangeable for such securities; or alter in any way any of its outstanding securities, whether by reason of a reclassification, recapitalization, combination, exchange, or readjustment of its equity securities or otherwise redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of its equity securities, or declare, set aside, or pay any dividends or other distribution in respect of such equity securities;

(iii) make any sale, assignment, transfer, abandonment, or other conveyance of any of the Company’s assets or rights or any part thereof other than in the Ordinary Course of Business;

(iv) subject any of the Company’s assets or rights or any part thereof to any Lien (other than in the Ordinary Course of Business);

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(v) acquire or lease any assets, raw materials, or properties, other than in the Ordinary Course of Business;

(vi) enter into any new (or amend any existing) employee benefit plan, program, or arrangement or any new (or amend any existing) employment, severance, or consulting Contract, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) or grant any increase in the compensation payable or to become payable to any employee, in accordance with preexisting contractual provisions in the Ordinary Course of Business or as contemplated by this Agreement;

(vii) other than expenditures made on employee labor and contractors related to internally developed software in the Ordinary Course of Business within the amounts projected for such expenditures in the information furnished to the Buyer, make or commit to make any capital expenditure greater than $25,000 individually or $100,000 in the aggregate;

(viii) pay, lend, or advance any amount to, or sell, transfer, or lease any assets, or enter into any Contract or arrangement with, any of its Affiliates, other than the payment of salary, bonus, and benefits to the officers, directors, and employees of the Company pursuant to existing arrangements or as otherwise contemplated herein;

(ix) fail to keep in full force and effect insurance comparable in amount and scope to coverage maintained on the date hereof;

(x) take any other action that would cause the conditions in Article XIII to not be satisfied fully;

(xi) make any change in any method of accounting or accounting period, principle, method, estimate, or practice, or write off as uncollectible any accounts receivable, except as required by GAAP or applicable law;

(xii) make, change, or revoke any election or method of accounting with respect to Taxes, except as required by GAAP or applicable law;

(xiii) file any amended Tax Return, enter into any closing agreement, settle any material Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment (without the written consent of the Buyer which consent shall not be unreasonably withheld or delayed), or take any other similar action relating to the filing of any Tax Return or the payment of any such Tax;

(xiv) settle, release, or forgive any claim or litigation or waive any right thereto;

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(xv) make, enter into, modify, or amend in any material respect or terminate any Material Contract or any other Contract (A) entailing annual payments in excess of $25,000, or (B) that is not terminable within ninety (90) days, except in the Ordinary Course of Business;

(xvi) make, enter into, modify, amend, or terminate any Contract or understanding with a Material Customer or Material Vendor;

(xvii) enter into any Contract or understanding that would otherwise be required to be disclosed or listed on Schedule 5.16 if such Contract or understanding had existed on the date of this Agreement; or

(xviii) agree to do any of the foregoing.

(b) From and after the date hereof and until the earlier of the termination of this Agreement pursuant to Article XIV or the Closing, the Company shall:

(i) continue to maintain the Company’s assets in accordance with present practice in a condition suitable for their current use;

(ii) continue to conduct the Business in the Ordinary Course of Business;

(iii) keep its books of account, files, and records in the Ordinary Course of Business; and

(iv) use Commercially Reasonable Efforts to preserve intact the operations and organization of the Business and use its and their Commercially Reasonable Efforts to keep available the services of the Company’s present officers and key employees and preserve the goodwill and business relationships of the Company’s customers.

Section 8.02. Consents and Approvals. Subject to Section 8.06, the Company shall, at the cost and expense of the Company: (a) use its Commercially Reasonable Efforts to obtain all necessary consents, waivers, authorizations, and approvals of all Governmental Entities and all other Persons (including any customers, vendors, or landlords) required by it in connection with the execution, delivery, and performance by the Company of this Agreement, and (b) diligently assist and cooperate with the Buyer, the Merger Sub, and the Equity Holders’ Representative in preparing and filing all documents required to be submitted by the Buyer and the Merger Sub to any Governmental Entities in connection with such transactions and in obtaining any consents, waivers, authorizations, or approvals that may be required to be obtained by the Buyer and the Merger Sub in connection with such transactions (which assistance and cooperation shall include timely furnishing to the Buyer and the Merger Sub all information concerning the Company that the Buyer or the Merger Sub determines is required to be included in such documents or would be helpful in obtaining any such required consent, waiver, authorization or approval).

Section 8.03. Access to Properties and Records. The Company shall afford to the Buyer, and to the accountants, counsel, and representatives of the Buyer, at the Buyer’s expense,

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reasonable access during normal business hours throughout the period prior to the Closing Date (or the earlier termination of this Agreement pursuant to Article XIV) to all properties, books, Material Contracts, and other Contracts, commitments, files, and records (including Tax Returns and correspondence with accountants) of the Company and, during such period, shall furnish promptly to the Buyer all other information concerning the Company and its properties and personnel (subject to restrictions imposed by applicable Law) as the Buyer may reasonably request. No investigation or receipt of information pursuant to this Section 8.03 shall qualify any representation or warranty of the Company or the conditions to the obligations of the Buyer.

Section 8.04. No Solicitations; Negotiations.

(a) Effective upon the execution and delivery of this Agreement, the Company will immediately cease any and all existing activities, discussions or negotiations commenced with any parties prior to the execution of this Agreement with respect to any Acquisition Proposal (as defined below).

(b) From and after the date hereof and until the earlier to occur of the Closing Date or the termination of this Agreement pursuant to Article XIV, the Company will not, and will cause its officers, directors, employees, Affiliates and investment bankers, attorneys or other advisors or agents retained by or acting on behalf of the Company or any of such Persons not to, (i) directly or indirectly, initiate, solicit or encourage any inquiries or the making of any Acquisition Proposal, (ii) engage in negotiations or discussions with, or furnish any information or data to, any third party relating to any Acquisition Proposal, (iii) enter into any letter of intent or similar document or any Contract with respect to any Acquisition Proposal or approve, resolve to approve or recommend any Acquisition Proposal or (iv) participate in any discussions regarding, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to any Acquisition Proposal.

(c) The Board of Directors of the Company (“Company Board”) (i) will not withdraw or modify or propose to withdraw or modify, in any manner adverse to Buyer, the approval of the Company Board of this Agreement or the transactions contemplated hereby or (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.

(d) For purposes of this Agreement, “Acquisition Proposal” will mean any offer, proposal or indication of interest, whether in writing or otherwise, (i) for a merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving the Company (other than the transactions contemplated hereby), (ii) to acquire or lease in any manner, directly or indirectly, all or any substantial portion of the assets or equity of the Company or (iii) for any other similar transaction, except as contemplated by this Agreement.

(e) The Company shall promptly (in any case within one (1) Business Day) notify Buyer of any inquiries or communications concerning any Acquisition Proposal that it may receive or of which it may become aware.

Section 8.05. Commercially Reasonable Efforts.

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(a) Subject to Section 8.06, upon the terms and subject to the conditions of this Agreement, the Company shall use its Commercially Reasonable Efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable consistent with applicable Law to consummate and make effective in the most expeditious manner practicable the transactions contemplated hereby.

(b) In furtherance and not in limitation of the terms of Section 8.05(a) and subject to Section 8.06, to the extent required by applicable Law, each of the Buyer and the Company shall file, or cause to be filed, a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable after the date of this Agreement, shall supply promptly any additional information and documentary material that may be requested by any Governmental Entity (including the Antitrust Division and the FTC) pursuant to the HSR Act, and shall cooperate in connection with any filing under applicable antitrust Laws and in connection with resolving any investigation or other inquiry concerning the transactions contemplated by this Agreement commenced by any Governmental Entity, including the FTC or Antitrust Division, or the office of any state attorney general; provided, however, that the Buyer shall not be required to consent to any divestiture or other structural or conduct relief in order to obtain clearance from any Governmental Entity. Subject to Section 8.06, in the event that any Proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging any of the transactions contemplated by this Agreement or in the event that any Governmental Entity shall otherwise object to any of the transactions contemplated by this Agreement, each of the Parties shall cooperate with each other and use its respective reasonable best efforts: (1) to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.

Section 8.06. Limit on Obligations. Notwithstanding any other provision of this Agreement, including Section 8.02, Section 8.05, and Section 9.02, the Company covenants not to enter into any Contract or understanding that places obligations or limitations on the Company following the Closing as a condition for obtaining any consent, approval, or authorization necessary to consummate the transactions contemplated by this Agreement, except with the prior written consent of the Buyer, and the Buyer shall not be required to consent to any divestiture or other structural or conduct relief applicable to the Company’s assets, the Business or the business of the Buyer and its Affiliates, or the payment of any fee or waiver of any other right in order to obtain any consent, approval, or authorization necessary to consummate the transactions contemplated by this Agreement.

Section 8.07. Notification. The Company shall promptly notify Buyer of any Proceeding that shall be instituted or threatened against such party to restrain, prohibit, or otherwise challenge the legality of any transaction contemplated by this Agreement. The Company shall promptly notify Buyer of (a) any Proceeding that may be threatened, brought, asserted, or commenced against the Company which would have been listed in Schedule 5.11 if such Proceeding had arisen prior to the date hereof, and (b) subject to Section 8.16, any other event or matter which becomes known to the Company and would cause any other representation or warranty contained in Article V to be untrue in any material respect.

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Section 8.08. Further Assurances. The Company, at the reasonable request of the Buyer, shall execute and deliver such other instruments and do and perform such other acts and things as may be reasonably necessary or desirable for effecting completely the consummation of this Agreement and the transactions contemplated hereby.

Section 8.09. Collection of Receivables. For a period of one hundred twenty (120) days following the Closing Date (the “Collection Period”), the Buyer shall use Commercially Reasonable Efforts (with at least the care and diligence the Buyer uses to collect its own accounts receivable) to collect the accounts receivable reflected on the Closing Balance Sheet. To the extent that the amount collected by the Buyer during the Collection Period is less than the amount shown on the Closing Balance Sheet in respect of such accounts receivable (net of the allowance for doubtful accounts reflected on the Closing Balance Sheet), at the election of the Buyer, such shortfall shall result in adjustment to the Closing Balance Sheet by reducing the current portion of assets for purposes of calculation of the Post-Closing Working Capital Adjustment. If the Post-Closing Working Capital Adjustment shall have been finally determined prior to the expiration of the Collection Period, at the election of the Buyer, Equity Holders’ Representative shall pay the amount of the shortfall to the Buyer within five (5) Business Days following demand by the Buyer from the Escrow Deposit. In the event of a shortfall and a payment or adjustment as contemplated pursuant to this Section 8.09, any such receivables not collected by the Buyer within the Collection Period shall revert to the Equity Holders’ Representative, and Buyer shall make available to the Target Stockholders copies of all records relating thereto as the Target Stockholders may reasonably request.

Section 8.10. Confidentiality. The terms of the Non-Disclosure Agreement dated as of September 4, 2013 between Buyer and TripleTree LLC, on behalf of the Company, (the “Confidentiality Agreement”) are hereby incorporated by reference and shall continue in full force and effect. If this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement shall continue in full force and effect in accordance with its terms.

Section 8.11. 401(k) Plan Termination. Effective as of the day immediately preceding the Closing Date, the Company shall take action to terminate the Company 401(k) Plan and any other employee benefit plans intended to include a Code Section 401(k) arrangement, unless the Buyer provides written notice to the Equity Holders’ Representative no later than ten (10) Business Days prior to the Closing Date that such Plans shall not be terminated. Unless the Buyer provides the written notice specified in Section 8.11 to the Equity Holders’ Representative, the Company shall cause the Equity Holders’ Representative to provide the Buyer with evidence that all of such Plans have been properly amended to be terminated (effective no later than the day immediately prior to the Closing Date). The Company shall take such further actions in furtherance of terminating all of such Plans as the Buyer may reasonably require. In the event that termination of any Plan would trigger liquidation charges, surrender charges, or other fees, then the Company shall cause the Equity Holders’ Representative to take such actions as are necessary to reasonably estimate the amount of such charges or fees and provide such estimate in writing to the Buyer no later than fifteen (15) Business Days prior to the Closing Date. In the event that termination of any Plan described in this Section 8.11 would trigger liquidation charges, surrender charges, or other fees, then the Company shall cause the Equity Holders’ Representative to take such actions as are necessary to reasonably estimate the

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amount of such charges or fees and provide such estimate in writing to the Buyer no later than fifteen (15) Business Days prior to the Closing Date

Section 8.12. Termination of Liens. At or prior to the Closing, the Company shall deliver to the Buyer a payoff letter from each creditor of the Company, each of which shall provide the amount necessary to satisfy the debt in full as of the Closing Date and shall include the related instructions for satisfying such debt in full as of the Closing Date, so as to discharge any and all related Liens upon the assets of the Company. The payment of the amounts described in the preceding sentence shall result in the termination as of or immediately following the Closing Date of any and all related security interests of any kind in accordance with the applicable provisions of the Uniform Commercial Code and shall authorize the Company to file all applicable termination statements.

Section 8.13. Information Statement; Stockholders’ Consent.

(a) As promptly as practicable (and in no event more than ten (10) Business Days) after the execution of this Agreement, the Company shall mail or deliver to each Equity Holder (i) a notice informing such Equity Holder of the approval by the Company Board of this Agreement and of the transactions contemplated hereby (and, if then obtained, the Requisite Stockholder Approval) and (ii), in the case of Target Stockholders, a copy of the Letter of Transmittal and instructions for use in effecting the surrender of the Stock Certificates that immediately prior to the Effective Time represented outstanding shares of Company Stock, or, in the case of Option Holders, a copy of the Option Termination Letter. Such notice to any holder of Target Stock shall be accompanied by a notice in the manner contemplated in Section 262 of the DGCL of such holder’s right to dissent to the Merger pursuant to Section 262 of the DGCL. In addition, the Company shall provide any notices to holders of Options required under the terms thereof (including any plan or Contract under which they were granted) concerning the transactions contemplated by this Agreement and take all necessary actions so that each Option, to the extent not exercised prior to the Closing, terminates automatically upon the Closing.

(b) As promptly as practicable (and in no event more than three (3) Business Days) after the execution of this Agreement, the Requisite Stockholder Approval shall be obtained by written consent in lieu of a meeting of the Company’s stockholders in accordance with Section 228 of the DGCL, in a form reasonably acceptable to Buyer. Such consent shall be for the purpose of (i) adopting this Agreement and approving the Merger and (ii) approving all matters relating to payments that may constitute a “parachute payment” under Section 280G of the Code.

Section 8.14. State Takeover Laws. If any “fair price,” “business combination” or “control share acquisition” statute or other similar statute or regulation is or may become applicable to the transactions contemplated hereby such that, without further approval or action by the Buyer, Merger Sub, the Company or their respective Boards of Directors, such transactions cannot be consummated in accordance with the terms hereof, then the Buyer, Merger Sub and the Company and their respective Boards of Directors shall use their reasonable efforts to grant such approvals and take such actions as are necessary so that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to minimize the effects of any such statute or regulation on the transactions contemplated hereby.

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Section 8.15. Directors and Officers Liability.

(a) From and after the Closing Date, the Buyer shall cause the Company and each of its Subsidiaries (individually, a “Purchased Company,” and collectively, the “Purchased Companies”) to (i) indemnify and hold harmless each Person who is or was as of the Closing Date a present or former officer, director, or shareholder of any Purchased Company (each, an “Indemnified Person”) from and against any Losses and Expenses in connection with any Proceeding arising out of or pertaining to any action or omission occurring on or prior to the Closing Date (including any which arise out of or relate to the transactions set forth in this Agreement), whether asserted or commenced prior to, on or after the Closing Date (each, a “D&O Claim”), to the fullest extent required or permitted by the provisions as in effect on the Closing Date of each of the Purchased Company’s organizational or governing documents or pursuant to Law with respect to the indemnification of any Indemnified Person (the “Indemnification Provisions”); (B) advance expenses to the Indemnified Person in connection with each D&O Claim to the fullest extent required or permitted by the Indemnification Provisions; and (C) honor the Indemnification Provisions as contract rights in favor of the Indemnified Person, with respect to any D&O Claim. Prior to the Closing, the Company shall purchase tail insurance coverage which shall provide coverage for the individuals who were Indemnified Persons of any Purchased Company prior to the Closing not less favorable than the coverage provided by the policy or policies maintained by such Purchased Company immediately prior to the Closing for the benefit of such individuals. The tail insurance shall be purchased by the Company, prior to or concurrent with the Closing and the cost of such policy (or policies) shall be considered a Transaction Expense.

(b) All rights to exculpation and indemnification for acts or omissions occurring on or prior to the Closing Date now existing in favor of the Indemnified Person as may be provided in each Purchased Company’s organizational and governing documents on the Closing Date shall be maintained to the extent consistent with applicable Law, notwithstanding any amendments made to such documents, and shall survive the Closing and shall continue in full force and effect in accordance with their terms without any modification adverse in any respect to any Indemnified Person for a period of six (6) years from the Closing Date.

(c) The provisions of this Section 8.15 are intended to be for the benefit of, and shall be enforceable by, each of the Persons described in this Section 8.15, and his or her heirs and his or her personal representatives and shall be binding on all successors and permitted assigns of each Purchased Company and the Buyer. The Buyer shall cause the surviving or resulting entity of any merger, consolidation or similar transaction involving the Buyer or any Purchased Company to assume the obligations imposed by this Section 8.15.

(d) Notwithstanding the foregoing, the obligations of the Buyer and the Surviving Corporation or its successor (i) shall be subject to any limitation imposed by applicable Law and (ii) shall not be deemed to release any Indemnified Person who is also an officer or director of the Company from his or her obligations pursuant to this Agreement or any Transaction Document, nor shall such Indemnified Person have any right of contribution, indemnification or right of advancement from the Surviving Corporation or its successor or the Buyer with respect with any Loss claimed by any Indemnified Parties against such Indemnified Person in his or her capacity as stockholder pursuant to this Agreement or any Transaction

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Document. The Company hereby represents to Buyer that no claim for indemnification has been made by any director or officer of the Company.

Section 8.16. Tax Study Update. Prior to the Closing Date, the Company shall obtain and deliver to the Buyer an update to the 2008 intellectual property valuation report prepared by VRC.

ARTICLE IX

COVENANTS OF THE BUYER

Section 9.01. Actions Before Closing. After the date hereof, the Buyer shall not take any action that shall cause it to be in breach of any of its representations, warranties, covenants, or agreements contained in this Agreement. The Buyer shall use its Commercially Reasonable Efforts to perform and satisfy all conditions to Closing to be performed or satisfied by it under this Agreement as soon as possible, but in no event later than the Closing Date.

Section 9.02. Commercially Reasonable Efforts. Subject to Section 8.06, prior to and as of the Closing Date, upon the terms and subject to the conditions of this Agreement, the Buyer shall use its Commercially Reasonable Efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable consistent with applicable Law to consummate and make effective in the most expeditious manner practicable the transactions contemplated hereby.

Section 9.03. Consents and Approvals. Subject to Section 8.06, the Buyer will use its Commercially Reasonable Efforts (a) to obtain from any Governmental Entity any Permits or Orders required to be obtained by the Buyer and any of its Affiliates in connection with the authorization, execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated by this Agreement; (b) to make all necessary filings and thereafter make any other required submissions with respect to this Agreement and the transactions contemplated by this Agreement required under (i) any applicable federal or state securities Laws, and (ii) any other applicable Law, provided that the Buyer will cooperate with the Company in connection with the making of all such filings, including providing copies of those sections of such documents requiring coordination to the Company, and, if requested, will accept all reasonable additions, deletions, or changes suggested in connection therewith; and (c) to furnish to the Company all information required for any application or other filing to be made pursuant to any applicable Law or any applicable regulations of any Governmental Entity in connection with the transactions contemplated by this Agreement.

Section 9.04. Notification. The Buyer shall promptly notify the Company of any Proceeding that shall be instituted or threatened against the Buyer or the Merger Sub to restrain, prohibit, or otherwise challenge the legality of any transaction contemplated by this Agreement. The Buyer shall promptly notify the Company of (a) any Proceeding that may be threatened, brought, asserted, or commenced against the Buyer or the Merger Sub which would have been listed on Schedule 6.05 or Schedule 7.05, respectively, if such Proceeding had arisen prior to the date hereof, and (b) any other event or matter which becomes known to Buyer that would cause

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any other representation or warranty contained in Article VI or Article VII to be untrue in any material respect.

Section 9.05. Confidentiality. The terms of the Confidentiality Agreement are hereby incorporated by reference and shall continue in full force and effect. If this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement shall continue in full force and effect in accordance with its terms.

Section 9.06. Post-Merger Employee Matters.

(a) Each at-will employee of the Company as of the Closing Date (the “Affected Employees”) shall remain an at-will employee of the Company after the Closing Date and in his or her current or a comparable position, at a base salary or wage and bonus opportunity not less than the base salary, wage or bonus opportunity in effect for such employee immediately prior to the Closing Date, for a period of not less than eighteen (18) months following the Closing Date, provided that there may be changes in reporting relationships of the Affected Employees, or changes resulting from changes in positions mutually agreed between the Company and any such employees, in each case in accordance with policies and procedures in effect for employees of other Buyer Group Members and; provided, further that any such bonus opportunity shall not apply to the individuals listed on Schedule 9.06(a) or any other individual who enters into an employment agreement with the Company during the year ending December 31, 2014.

(b) Affected Employees will retain any Company seniority and period of service for purposes of calculating the amount of, and eligibility for, vacation, sick leave and the other benefits provided to similarly situated employees of other Buyer Group Members, including credit for purposes of waiting periods, eligibility to participate in, and vesting in, and the amount of benefits under all benefits Plans.

(c) Affected Employees who are otherwise eligible pursuant to the terms of the Plans or policies for such benefits shall be provided with vacation, sick leave, holidays, health care coverage, life insurance, retirement plans and any other employee benefits that are consistent with those offered to other similarly situated employees of other Buyer Group Members, provided that this Section 9.06(c) shall not be deemed to have been violated to the extent that after the Closing Date any Company Plan which existed prior to the Closing Date is continued, without material modifications (except those modifications required by applicable Law), for a period of time, which may continue as long as the second (2nd) anniversary of the Closing Date.

(d) Any Affected Employee who was an employee of the Company for at least one (1) year before the Closing Date and whose employment is terminated by the Company without cause within eighteen (18) months after the Closing Date will be paid severance by the Surviving Corporation in an amount equal to his or her base salary or wages for a period of time equal to Severance Period.

(e) Any severance payable in accordance with this Section 9.06 shall be payable in accordance with applicable payroll practices, subject to any applicable withholding, and may be conditioned on receipt of a customary and reasonable release of claims by such terminated employee(s).

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ARTICLE X

TAXES

Section 10.01. Tax Returns and Related Matters.

(a) The Buyer shall prepare or cause to be prepared at the Equity Holders’ expense (which expense shall be comparable to the expenses incurred by the Company in other pre-Closing periods) and file or cause to be filed in each case all Tax Returns that are required to be filed after the Closing Date by or with respect to the Company for all Pre-Closing Tax Periods and Straddle Periods and the Surviving Corporation shall remit (or cause to be remitted) any Taxes due in respect of such Tax Returns. Such Tax Returns shall be prepared in a manner consistent with applicable Law and, to the extent permitted by applicable Law, consistent with past practice of the Company. For the avoidance of any doubt, all deductions and other income tax benefits related to the payment or accruals of Transaction Expenses, cancellation of Options and Option Payments or other Company expenses related to the consummation of transactions set forth in this Agreement shall be attributable to the Pre-Closing Tax Period. To the extent permitted by law, all such deductions and tax benefits shall be claimed as current deductions or benefits on the Company’s Tax Returns for the Pre-Closing Tax Period, including through the filing of a safe harbor election pursuant to Revenue Procedure 2011-29 with respect to success-based fees (without duplication of those deductions and Tax benefits referenced in Section 10.05(b)). Each Buyer Group Member shall be entitled to indemnification with respect thereto for any required reimbursement pursuant to Section 11.01(a)(iv). With respect to any such Tax Return described above required to be filed with respect to the Company or the Surviving Corporation, as applicable, the Buyer shall provide the Equity Holders’ Representative with a copy of such completed Tax Return and a statement (with which the Buyer will make available supporting schedules and information) certifying the amount of Tax shown on such Tax Return that is allocable to a Pre-Closing Tax Period and any amount that the Equity Holders could have an indemnification obligation pursuant to this Agreement, at least (in the case of a non-income Tax Return) twenty (20) days and (in the case of an Income Tax Return) twenty-five (25) days prior to the due date thereof (including any extension thereof) for filing such Tax Return, and the Equity Holders’ Representative shall have the right to review, comment upon and approve (which approval shall not be unreasonably withheld, delayed or conditioned) such Tax Return. Such Tax Return and statement shall be final and binding on the Equity Holders, unless, within fifteen (15) days after the date of receipt by the Equity Holders’ Representative of such Tax Return and statement, the Equity Holders’ Representative delivers to the Buyer a written request for explanation of items on or changes to such Tax Return or statement. If the Equity Holders’ Representative delivers such request, then the Equity Holders’ Representative and the Buyer shall undertake in good faith to resolve the issues raised in such request prior to the due date (including any extension thereof) for filing such Tax Return. The Buyer shall make such changes and revisions to such Tax Returns as requested by the Equity Holders’ Representative to the extent such changes and revisions relate to Taxes allocable to the portion of the taxable period ending on or before the Closing Date, provided that such changes and revisions are consistent with applicable Law, but only to the extent such changes and revisions relate to items which, if not changed as requested by the Equity Holders’ Representative, would result in an indemnification obligation of, or reduce a tax refund or credit otherwise payable to, the Equity Holders pursuant to this Agreement. If the Equity Holders’ Representative and the Buyer are

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unable to resolve any issue by the earlier of (i) fifteen (15) days after the date of receipt by the Buyer of the request for changes and (ii) ten (10) days prior to the due date (including any extension thereof) for filing of the Tax Return in question, then the Equity Holders’ Representative and the Buyer jointly shall engage the Independent Accounting Firm to determine the correct treatment of the item or items in dispute. Each of the Equity Holders’ Representative, on the one hand, and the Buyer, on the other, shall bear and pay one half of the fees and other costs charged by the Independent Accounting Firm. The determination of the Independent Accounting Firm shall be final and binding on the parties hereto.

(b) Neither Buyer nor any of its Affiliates shall (or cause or permit the Surviving Corporation to) amend or re-file any Tax Return of the Company or the Surviving Corporation for any taxable period beginning prior to the Closing Date without the prior written consent (which consent shall not be unreasonably withheld, delayed, or conditioned) of the Equity Holders’ Representative.

Section 10.02. Cooperation on Tax Matters.

(a) If the Buyer or any of its Affiliates receives notice of a Tax Proceeding with respect to any taxable period ending on or prior to the Closing Date or the portion through the end of the Closing Date of any Straddle Period (each, a “Pre-Closing Tax Period”), then within ten (10) days after receipt of such notice, the Buyer shall notify the Equity Holders’ Representative of such notice. The Buyer’s notification to the Equity Holders’ Representative shall contain factual information describing the Tax Proceeding in reasonable detail and shall include copies of any notice or other document received from any Taxing Authority in respect of any such Tax Proceeding. A failure by the Buyer to give such notice shall not affect Buyer’s right to indemnification hereunder except to the extent that the Equity Holders’ are materially prejudiced thereby.

(b) In the case of a Tax Proceeding that relates to a taxable period ending on or before the Closing Date and to the extent the Equity Holders could have an indemnification obligation pursuant to this Agreement, the Equity Holders’ Representative shall have the sole right, on behalf of the Equity Holders and at their expense, to control the conduct of the Tax Proceeding. To the extent the Equity Holders’ Representative elects to control the Tax Proceeding, the Equity Holders’ Representative shall within thirty (30) days of receipt of the notice of Tax Proceeding notify the Buyer of its intent to do so, and the Buyer shall reasonably cooperate and shall cause the Surviving Corporation to reasonably cooperate in each phase of such Tax Proceeding. The Equity Holders’ Representative may not settle or compromise any such Tax Proceeding unless the Buyer consents thereto (such consent not to be unreasonably withheld, delayed or conditioned). If the Equity Holders’ Representative elects not to control the Tax Proceeding, the Buyer or the Surviving Corporation shall assume control of such Tax Proceeding at the Equity Holders’ expense (which expense shall be comparable to the expenses incurred by the Company in other pre-Closing periods). In such event, (i) the Buyer shall keep the Equity Holders’ Representative informed on a prompt basis regarding the progress and substantive aspects of any Tax Proceeding, including providing the Equity Holders’ Representative with all written materials relating to such Tax Proceeding submitted to and received from the relevant Taxing Authority, (ii) the Equity Holders’ Representative shall be entitled to participate at the Equity Holders’ expense in any Tax Proceeding, including having an

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opportunity to comment on any written materials prepared in connection with any Tax Proceeding and attending any conferences relating thereto, and (iii) the Buyer shall not compromise, settle or resolve any Tax Proceeding without obtaining the Equity Holders’ Representative prior written consent (such consent not to be unreasonably withheld, delayed or conditioned (such rights of the Equity Holders’ Representative, the “Equity Holders’ Representative Rights”). Additionally, in the case of a Tax Proceeding that relates to a Straddle Period (a “Straddle Period Contest”), the Buyer shall have the right to control such Straddle Period Contest subject to the Equity Holders’ Representative Rights. The Buyer shall not settle or compromise such Straddle Period Contest without the prior written consent of the Equity Holders’ Representative, which consent shall not be unreasonably withheld, delayed or conditioned.

(c) The Equity Holders’ Representative and the Buyer agree to furnish or cause to be furnished to each other (and the Buyer shall cause the Surviving Corporation to furnish), upon written request, as promptly as practicable, such information (including access to books and records) and assistance relating to the Company or the Surviving Corporation and its respective assets and activities as is reasonably necessary for the filing of any Tax Return (including any report required pursuant to Section 6043 of the Code and all treasury regulations promulgated thereunder), or claim for or right to a Tax refund and, prosecution or defense of any Tax Proceeding relating to the Company or the Surviving Corporation or its respective assets or activities and the calculation of any Tax benefits covered by Section 10.05(b). Such information and assistance shall include providing copies of relevant Tax Returns or portions thereof, together with related work papers and documents relating to rulings or other determinations by Taxing Authorities. The Buyer agrees to retain or cause to be retained all books and records with respect to Tax matters pertinent to the Company and the Surviving Corporation and its respective assets and activities relating to the taxable period beginning prior to the Closing Date until the applicable period for assessment under applicable Law (giving effect to any and all extensions or waivers) has expired, and to abide by or cause the abidance with all record retention agreements entered into with any Taxing Authority.

(d) Notwithstanding anything to the contrary herein, the Buyer may, in its sole discretion, initiate voluntary disclosure programs or agreements (each, a “VDA”) with the applicable Taxing Authorities in the jurisdictions set forth on Schedule 10.02(d) with respect to certain Taxes designated on such Schedule and in such other jurisdictions as may be mutually consented to by the Buyer and the Equity Holders’ Representative, such consent not to be unreasonably withheld, conditioned or delayed, to address unpaid Tax liabilities of the Company for the Pre-Closing Tax Period, subject to the Equity Holders’ Representative Rights. In addition, the Buyer shall initiate such VDAs if requested in writing by the Equity Holders’ Representative, subject to Equity Holders’ Representative Rights. Notwithstanding the foregoing, the Equity Holders’ Representative shall have the right to control, at the Equity Holders’ expense, any VDA (including its submission with the applicable Taxing Authority) for Pre-Closing Tax Periods of the Company, provided that Buyer shall have rights equivalent to Equity Holders’ Representative Rights with respect to such VDAs.

Section 10.03. Straddle Period. For purposes of this Agreement, whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and

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including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of business on the Closing Date and the other which began at the beginning of the day following the Closing Date and (a) Taxes measured by items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of business on the Closing Date, and (b) in the case of other Taxes, the amount allocated to the portion of the Straddle Period ending on the Closing Date shall be determined to be the amount of such Tax for the entire taxable year or period multiplied by a fraction, the numerator of which is the number of days in the taxable year or period ending on the Closing Date and the denominator of which is the number of days in the Straddle Period and balance of such Taxes shall be allocated to the portion of the Straddle Period after the Closing Date.

Section 10.04. Transfer Taxes. All transfer, documentary, sales, use, stamp, recording, value added, registration and other similar Taxes and all conveyance fees, recording fees and other similar charges (collectively, “Transfer Taxes”) incurred in connection with the consummation of the transactions contemplated by this Agreement shall be borne 50% by the Buyer and 50% from the Escrow Fund.

Section 10.05. Refunds.

(a) The Equity Holders shall be entitled to receive all refunds of or amounts credited against Taxes of the Company attributable to any Pre-Closing Taxable Periods, except to the extent that any such refunds or credits were taken into account in the determination of the Closing Working Capital. The Buyer shall pay over to the Equity Holders’ Representative on behalf of the Equity Holders any such refund or the amount of any such credit within ten (10) days after receipt or utilization by the Buyer, the Company or the Surviving Corporation. The Equity Holders’ Representative shall be solely responsible for distributing any such refund to the Equity Holders in accordance with their Allocable Shares. Upon the reasonable request of the Equity Holders’ Representative, the Buyer shall file, or cause the Company or the Surviving Corporation to file, at the expense of the Equity Holders, a claim for refund of any Taxes, including through the filing of amended Tax Returns, carryback filing or otherwise, relating to the Company (or their assets or operations) for any Pre-Closing Tax Period in such form as the Equity Holders’ Representative may reasonably request to the extent allowed by Law. The Equity Holders’ Representative shall have the sole right to prosecute such claim for refund. Without limiting the generality of the foregoing, the Buyer shall cause the Company or the Surviving Corporation to the extent allowed by Law to carryback net operating losses generated by the Company in 2014 on its Pre-Closing Tax Period Tax Return to prior Tax years of the Company and make a refund claim for federal and state Income Taxes in all applicable jurisdictions for applicable prior Tax periods.

(b) The Buyer shall promptly pay to Equity Holders’ Representative, on behalf of the Equity Holders, an amount equal of the Tax benefit actually realized by a Buyer Group Member resulting from an Income Tax deduction relating to the release of funds from the Escrow to Option Holders in respect of their Options and to Messina in respect to the Messina Bonus Payment, determined by the reduction, if any, in Income Tax of the relevant Buyer Group

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Member due in the relevant taxable year with the use of such Tax benefit (as if it were the first used benefit) taking into account the Income Tax that would have been due by such Buyer Group Member in such taxable year without the use of such Tax benefit (without duplication of those deductions and Tax benefits referenced in Section 10.01(a)). In addition, if pursuant to applicable law, the Company generates a net operating loss in 2014 on its Pre-Closing Tax Period Tax Return and the Company is unable to fully utilize all of its net operating losses by carrying back such losses to prior taxable years of the Company and a portion of such losses are available to be carried forward and utilized by a Buyer Group Member, then the Buyer shall promptly pay to the Equity Holders’ Representative, on behalf of the Equity Holders, an amount equal to the Tax benefit actually realized by a Buyer Group Member as a result of the utilization of such net operating loss carry forwards determined by the reduction, if any, in the Income Tax of the relevant Buyer Group Member due in the relevant taxable year with the use of such Tax benefit (as if it were the first used benefit), taking into account (i) any limitation on the use of such Tax benefit caused by Section 382 of the Code and (ii) the amount of Income Tax that would have been due by such Buyer Group Member in such taxable year without the use of such Tax benefit. For purposes of this Section 10.05(b) the Income Tax rate utilized by the Buyer Group Member in calculating the Tax benefit shall not exceed a combined federal and state Income Tax rate equal to forty-five percent (45%).

(c) The Buyer shall promptly deliver to the Equity Holders’ Representative a written schedule setting forth the calculation, in reasonable detail, of each Tax benefit realized by a Buyer Group Member covered by Section 10.05(b). The parties shall endeavor in good faith the resolve any disputes with respect to the calculation of such Tax benefits. If the parties are unable to resolve any issue relating to the calculation of Tax benefits, then the Equity Holders’ Representative and the Buyer jointly shall engage the Independent Accounting Firm to determine the correct treatment of the item or items in dispute. Each of the Equity Holders’ Representative, on the one hand, and the Buyer, on the other, shall bear and pay one half of the fees and other costs charged by the Independent Accounting Firm. The determination of the Independent Accounting Firm shall be final and binding on the parties hereto.

(d) The Merger Consideration shall be deemed increased by the amount of any payment required to be made to the Equity Holders or Equity Holders’ Representative under this Section 10.05. The Parties acknowledge and agree that prior to any such payment to any Equity Holder under this Section 10.05 or otherwise pursuant to this Agreement, Daniel S. Messina shall be entitled to his pro rata portion of such payment in accordance with the terms of the Messina Agreement (less applicable withholding).

Section 10.06. Miscellaneous.

(a) Neither the Buyer, the Surviving Corporation nor any of their respective Affiliates shall waive any statute of limitations or agree to any extensions thereof in respect of any tax period on or before the Closing Date or Straddle Period without the prior written consent of the Equity Holders’ Representative, which consent shall not be unreasonably withheld, delayed or conditioned.

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(b) Neither the Buyer nor the Surviving Corporation shall, in connection with the Merger, make or cause to be made any actual or deemed election under Section 338 of the Code, or any corresponding provisions of state, local or foreign Laws.

(c) Neither the Buyer, the Surviving Corporation nor any of their respective Affiliates shall take any action which would waive or relinquish the right of the Company or the Surviving Corporation to carry back net operating losses generated by the Company in Pre-Closing Tax Periods to prior Tax years.

ARTICLE XI

INDEMNIFICATION

Section 11.01. Indemnification of the Buyer Group Members.

(a) From and after the Effective Time, each Buyer Group Member shall be entitled to indemnification by the Equity Holders, severally and not jointly by the Equity Holders (in proportion to their Allocable Share) as provided herein from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from:

(i) any breach by the Company of any of its covenants in this Agreement;

(ii) any breach of any warranty or the inaccuracy of any representation of the Company contained in this Agreement;

(iii) any Transaction Expenses that are outstanding after the Closing Date and are not accounted for in the Closing Working Capital;

(iv) any and all Taxes (whether assessed or unassessed) of the Company attributable to taxable years or periods (or portions thereof) ending on or prior to the Closing Date, and, with respect to any Straddle Period, the portion of such Straddle Period prior to the Closing Date; provided, however, that the Equity Holders shall not be liable for, and shall not be required to indemnify or hold the Buyer Group Members harmless for and against (A) Taxes to the extent such Taxes are reflected in the Closing Working Capital; or (B) Taxes that arise from transactions that occur on the Closing Date after the Closing has been completed which are not in the Ordinary Course of Business (including the sale or disposition of any material assets);

(v) the exercise of any dissenter’s rights by a Target Stockholder pursuant to Section 262 of the DGCL (in which case the Buyer Group Members shall be entitled to recover the amount by which the “fair value,” as finally determined pursuant to the DGCL, of the Target Shares held by dissenting Target Stockholders exceeds the consideration paid or to be paid for such Target Shares pursuant to Article II;

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(vi) any indemnification of an Indemnified Person pursuant to Section 8.15 hereof (including the advancement of expenses in connection with any such indemnification);

(vii) any claim by an Equity Holder or any other Person (A) seeking to assert ownership or rights to ownership of any Target Shares or other equity securities of the Company; or (B) that his, her or its shares were wrongfully repurchased pursuant to the Merger or that the amount received by such Person pursuant to the Merger was inaccurate; and

(viii) any matter set forth on Schedules 5.11 or 5.14(b).

(b) The Buyer Group Members shall be entitled to indemnification under Section 11.01(a)(ii) only if (i) the total amount of any individual Loss, in the aggregate with all other Losses arising under substantially similar facts and circumstances, together with the Expenses related thereto, exceeds $25,000 (the “Individual Basket”) (such Loss and Expense, a “Buyer Qualifying Loss”), and (ii) the aggregate amount of all Buyer Qualifying Losses incurred hereunder exceeds One Million Five Hundred Thousand Dollars ($1,500,000) (the “Aggregate Basket”), whereupon the Buyer Group Members shall be entitled to indemnification for the full amount of Buyer Qualifying Losses claimed thereunder, including the amount comprising the Aggregate Basket and the Individual Basket ; provided, however, that neither the limitation of indemnifiable Losses and Expenses to Buyer Qualifying Losses (through application of the Individual Basket) nor the Aggregate Basket shall apply to the Special Representations and, accordingly, any claims by a Buyer Group Member in respect of a Special Representation will be indemnified hereunder from the first dollar of any applicable Loss or Expense.

(c) For purposes of determining under Section 11.01(a)(ii) whether there has been a breach of, any such representation or warranty, and the amount of any Losses and Expenses associated therewith, the Parties agree (i) that all references to “material,” “materially,” “materiality,” or “Material Adverse Effect” will be disregarded, and (ii) that the representations and warranties are made for purposes of Section 11.01(a)(ii) as if those disregarded words were not included, except with respect to Section 5.08 for which this Section 11.01(c) shall not apply.

(d) Except with respect for Losses and Expenses in connection with or arising from breaches of any Special Representation (which, in each case, shall not be considered in the calculation of the General Cap), the maximum amount for which the Target Stockholders and Option Holders shall be liable under Section 11.01(a)(ii) shall be Twenty Million Dollars ($20,000,000) (the “General Cap”). With respect to Losses and Expenses otherwise indemnifiable pursuant to this Article XI (including those in connection with or arising from breaches of any Special Representation), the maximum amount for which the Equity Holders shall be liable under this Article XI shall be the Merger Consideration.

(e) The indemnification provided for in this Article XI shall survive the Closing Date for a period of eighteen (18) months (and no claims shall be initiated by any Buyer Group Members under Article XI thereafter), except in respect to the representations made pursuant to Sections 5.02, 5.03(b), 5.04, 5.12(a), 5.18(d), and 5.19 (the “Special Representations”), and the matters set forth in Section 11.01(a)(i), (iii), (iv), (v), (vi), (vii) and

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(viii), which shall survive until the expiration of the applicable statute of limitations. Indemnification with respect to any Loss or Expense or any circumstance that is reasonably likely to result in a Loss or Expense of which any Buyer Group Member shall have notified the Equity Holders’ Representative in accordance with the requirements of Section 11.03 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 11.01, shall continue until the liability shall have been determined, resolved and, if applicable, paid, pursuant to this Article XI.

(f) The indemnification provided for in Section 11.01(a) shall be paid first from the Escrow Deposit. If the remaining amount of the Escrow Deposit is insufficient to satisfy fully any indemnification obligation provided for in Section 11.01(a), each Equity Holder shall be severally and not jointly liable (in proportion to their respective Allocable Share).

Section 11.02. Indemnification of the Equity Holder Group Members.

(a) From and after the Effective Time, each Equity Holder Group Member shall be entitled to indemnification from the Buyer as provided herein from and against any and all Losses and Expenses incurred by such Equity Holder Group Member in connection with or arising from:

(i) any breach by the Buyer or the Merger Sub of any of its respective covenants in this Agreement; and

(ii) any breach of any warranty or the inaccuracy of any representation of the Buyer or the Merger Sub contained in this Agreement;

(b) The Equity Holder Group Members shall be entitled to indemnification under Section 11.02(a)(ii) only if (i) the total amount of any individual Loss, in the aggregate with all other Losses arising under substantially similar facts and circumstances, together with the Expenses related thereto, exceeds the Individual Basket (such Loss and Expense, an “Equity Holder Qualifying Loss”), and (ii) the aggregate amount of all Equity Holder Qualifying Losses incurred hereunder exceeds the Aggregate Basket, whereupon the Equity Holder Group Members shall be entitled to indemnification for the full amount of Equity Holder Qualifying Losses claimed thereunder, including the amount comprising the Aggregate Basket and the Individual Basket.

(c) For purposes of determining under Section 11.02(a)(ii) whether there has been a breach of, any such representation or warranty, and the amount of any Losses and Expenses associated therewith, the Parties agree (i) that all references to “material,” “materially,” “materiality,” or “Material Adverse Effect” will be disregarded, and (ii) that the representations and warranties are made for purposes of Section 11.02(a)(ii) as if those disregarded words were not included.

(d) Except with respect for Losses and Expenses in connection with or arising from Section 6.02 and Section 7.02, the maximum amount for which the Buyer shall be liable under Section 11.02(a)(ii) shall be the General Cap. With respect to Losses and Expenses otherwise indemnifiable pursuant to this Article XI (including under Section 11.02(a)(ii) in

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connection with or arising from Section 6.02 or Section 7.02), the maximum amount for which the Buyer shall be liable under this Article XI shall be the Merger Consideration.

(e) The indemnification provided for in this Article XI shall survive the Closing Date for a period of eighteen (18) months (and no claims shall be initiated by any Equity Holder Group Members under Article XI thereafter), except in respect to the representations made pursuant to Section 6.02 and Section 7.02, which shall survive until the expiration of the applicable statute of limitations. Indemnification with respect to any Loss or Expense or any circumstance that is reasonably likely to result in a Loss or Expense of which any Equity Holder Group Member shall have notified the Buyer in accordance with the requirements of Section 11.03 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 11.02, shall continue until the liability shall have been determined, resolved and, if applicable, paid, pursuant to this Article XI.

Section 11.03. Notice and Adjudication of Claims.

(a) If either a Buyer Group Member or any Equity Holder Group Member seeks indemnification hereunder (in each instance, the “Indemnified Party”), it shall promptly give to the Equity Holders’ Representative (if the Indemnified Party is Buyer) or the Buyer (if the Indemnified Party is an Equity Holder Group Member) (in each instance, the “Indemnifying Party”), a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any other Contract, document, or instrument executed hereunder or in connection herewith upon which such claim is based, provided that: (i) a Claim Notice in respect of any notice of any claim or demand by a third party which is subject to indemnification hereunder (a “Third-Party Claim”) as to which indemnification will be sought shall be given promptly after the receipt of such notice; and (ii) failure to give such Claim Notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure.

(b) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined (i) by the written agreement between the Indemnified Party and the Indemnifying Party; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined.

(c) Any indemnification payment hereunder with respect to any Loss or Expense shall be treated as an adjustment to the Merger Consideration for all Tax purposes unless otherwise required by applicable Law and shall be an amount that is sufficient to compensate the Indemnified Party for the amount of such Loss or Expense, after taking into account (i) all increases in federal, state, local, foreign, or other Taxes payable by the Indemnified Party as a result of the receipt of such payment (by reason of such payment being included in income, resulting in a reduction of tax basis, or otherwise increasing such Taxes

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payable by the Indemnified Party at any time), and (ii) to the extent not previously taken into consideration in computing any Loss or Expense, all decreases in Taxes payable by the Indemnified Party at any time by reason of a Tax deduction, credit, or other benefit resulting from the Loss or Expense net of insurance.

(d) In calculating any Loss or Expense there shall be deducted insurance proceeds actually received in respect thereof.

(e) The right to indemnification, reimbursement or other remedy based upon breach of the representations, warranties, covenants, and obligations contained in this Agreement (and as qualified by the Schedules) shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the date hereof or the Closing Date, with respect to, the accuracy or inaccuracy of or compliance with any such representation, warranty, covenant, or obligation.

Section 11.04. Third-Party Claims. In the case of a Third-Party Claim, if the Indemnifying Party has acknowledged and agreed in writing, within fifteen (15) days following delivery to the Indemnifying Party of a Claim Notice, that, if such Proceeding is adversely determined, the Indemnifying Party has an obligation to provide indemnification to the Indemnified Party for the full amount in respect thereof, the Indemnifying Party shall have the right: (a) to control and conduct any Proceedings or negotiations in connection therewith and necessary or appropriate to defend the claim, (b) to take all other reasonable steps or proceedings to settle or defend any such Third-Party Claim; provided, that the Indemnifying Party shall not settle any Third-Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned, or delayed, it being understood that such consent may be withheld in the Indemnified Party’s sole discretion if any such settlement does not include a complete written release of the Indemnified Party from further liability or imposes any injunctive relief or operational restrictions against such Indemnified Party, or otherwise would materially affect the operations of the Indemnified Party’s business following such settlement), and (c) to employ counsel designated by the Indemnifying Party to contest any such Third-Party Claim in the name of the Indemnified Party or otherwise. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to undertake the defense of a Third-Party Claim if (i) such claim involves a purported class action, (ii) such claim demands injunctive or other equitable relief, (iii) the Buyer reasonably determines that such claim is likely to exceed the remaining amounts of the Escrow Deposit, (iv) the Buyer reasonably determines that it would be inappropriate for a single counsel to represent all Parties under applicable standards of legal ethics, or (v) the Indemnifying Party fails diligently to defend such Proceeding. The Indemnifying Party shall, within fifteen (15) Business Days of receipt of a Claim Notice of such Third-Party Claim (the “Indemnity Notice Period”), give written notice to the Indemnified Party of its intention to assume the defense of such Third-Party Claim. If the Indemnifying Party does not deliver to the Indemnified Party within the Indemnity Notice Period written notice that the Indemnifying Party shall assume the defense of any such Third-Party Claim, then the Indemnified Party may defend against any such Third-Party Claim in any such manner as it may deem appropriate, provided, that the Indemnified Party shall not settle any such Third-Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned, or delayed. In the event that the Indemnifying Party does assume the defense of such Third-Party Claim, the Indemnified Party shall have the right to fully

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participate in (but not control) such defense (including with counsel of its choice), at its sole expense, and the Indemnifying Party shall reasonably cooperate with the Indemnified Party in connection with such participation. In the event that either the Indemnifying Party or the Indemnified Party assumes the defense of a Third-Party Claim as provided above (the “Controlling Party”), the non-Controlling Party shall have the right to fully participate (but not control) in such defense (including with counsel of its choice), at its sole expense, and the Controlling Party shall reasonably cooperate with the non-Controlling Party in connection with such participation; provided, however, that the Parties shall each use its Commercially Reasonable Efforts with respect to any information shared pursuant to this Section 11.04 to preserve attorney-client privilege.

Section 11.05. Satisfaction of Escrow Deposit. To secure the obligations of the Target Stockholders and Option Holders to indemnify the Buyer Group Members under Article XI (including the obligation to indemnify in respect of the covenants in Articles VIII and X), at the Closing, the Buyer will deposit the Escrow Deposit with the Escrow Agent, to be held and released in accordance with the terms of the Escrow Agreement. Until all of the Escrow Deposit (or other security held under the Escrow Agreement) has been released in accordance with the terms hereof and of the Escrow Agreement, any indemnification required to be made by the Target Stockholders and Option Holders shall be satisfied pursuant to the terms of this Agreement and the Escrow Agreement. After all of the Escrow Deposit has been released, any indemnification obligations then remaining unsatisfied or thereafter arising shall be directly satisfied by the Target Stockholders and Option Holders as set forth in this Article XI.

Section 11.06. Sole and Exclusive Remedy. PRIOR TO THE CLOSING, THE PARTIES WILL HAVE AVAILABLE TO THEM ALL REMEDIES AVAILABLE UNDER LAW, INCLUDING SPECIFIC PERFORMANCE OR OTHER EQUITABLE REMEDIES. AFTER THE CLOSING, THE RIGHTS SET FORTH IN THIS ARTICLE XI, WILL, EXCEPT FOR FRAUD OR EQUITABLE RELIEF, BE THE EXCLUSIVE REMEDY OF THE BUYER GROUP MEMBERS OR THE EQUITYHOLDER GROUP MEMBERS WITH RESPECT TO ANY BREACH OR INACCURACY OF ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS OR OBLIGATIONS CONTAINED IN THIS AGREEMENT.

Section 11.07. Other Limitations. Notwithstanding any other provision in this Agreement to the contrary or provided for under applicable Law, no Equity Holder shall in any event be liable to the Buyer or any other Buyer Group Member, and neither the Buyer nor any other Buyer Group Member shall have the right to recover for or be indemnified against (through the Escrow Deposit or otherwise), any punitive damages provided, however, that any such punitive damages suffered or incurred by any Buyer Group Member to a third party shall not be subject to this limitation. The Parties acknowledge and agree that in the event of any dispute over the type of damages that are recoverable under this Agreement, neither Party shall be permitted to use as evidence to support such Party’s claim for damages (i) any of the negotiations had between the Parties in this transaction including with respect to this Section 11.07, or (ii) the other Party’s position during such negotiations.

Section 11.08. Mitigation. Each Party shall take, and shall cause all Buyer Group Members or Equity Holder Group Members, as applicable, to take, all Commercially Reasonable

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Efforts (determined without regard to any indemnification rights of such Person hereunder) to mitigate all Losses and Expenses that are indemnifiable or recoverable hereunder or in connection herewith. Any costs incurred in order to mitigate any Losses or Expenses shall themselves be deemed to be a Loss or an Expense.

Section 11.09. Indemnification Exception. Notwithstanding anything in this Agreement to the contrary, no Party shall, in any event, be entitled to indemnification for any Losses under this Agreement or otherwise to the extent of the amount of such Losses which have adjusted the payment to be made pursuant to Article III in favor of such Party seeking indemnification.

Section 11.10. Subrogation Rights. In the event that any Indemnifying Party shall be obligated to indemnify an Indemnified Party pursuant to this Article XI, such Indemnifying Party shall, upon the payment of such indemnity, be subrogated to all rights of the Indemnified Party with respect to the Losses and Expenses to which such indemnification relates.

ARTICLE XII

CONDITIONS PRECEDENT TO PERFORMANCE

BY THE COMPANY

The obligations of the Company to consummate the Merger are subject to the fulfillment, at or before the Closing Date, of the following conditions, any one or more of which may be waived by the Equity Holders’ Representative.

Section 12.01. Representations and Warranties of the Buyer and the Merger Sub. All representations and warranties made by the Buyer and the Merger Sub in this Agreement that are qualified as to materiality shall be true and correct, and all representations and warranties of the Buyer and the Merger Sub that are not so qualified shall be true and correct in all material respects, in each case, as of the date hereof, and, except to the extent such representations and warranties refer to a specific date (which shall be true and correct as of such date), as of the Closing Date as though made by the Buyer and the Merger Sub on and as of the Closing Date. The Equity Holders’ Representative shall have received a certificate to that effect dated the Closing Date and signed by any authorized officer of the Buyer and the Merger Sub.

Section 12.02. Performance of the Obligations of the Buyer and the Merger Sub. Each of the Buyer and the Merger Sub shall have performed in all material respects all of its obligations required under this Agreement to be performed by it on or before the Closing Date. The Equity Holders’ Representative shall have received a certificate to that effect dated the Closing Date and signed by any authorized officer of the Buyer and the Merger Sub.

Section 12.03. No Violation of Orders. No preliminary or permanent injunction or other Order issued by any court or other governmental or regulatory authority, domestic or foreign, nor any statute, rule, regulation, decree, or executive Order promulgated or enacted by any Governmental Entity, including any enactment, issuance, or promulgation, that declares this Agreement invalid or unenforceable in any respect, that prevents the consummation of the transactions contemplated hereby shall be in effect.

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Section 12.04. Escrow Agreement. The Buyer and the Escrow Agent shall have executed and delivered to the Company the Escrow Agreement, and the Escrow Agreement shall be in full force and effect.

Section 12.05. HSR Approval. The waiting period applicable to the consummation of the Merger under the HSR Act (and any extension thereof) shall have expired or terminated early.

Section 12.06. Stockholder Approval. This Agreement and the Merger shall have received the Requisite Stockholder Approval.

ARTICLE XIII

CONDITIONS PRECEDENT TO PERFORMANCE BY THE BUYER

The obligations of the Buyer to consummate the Merger are subject to the fulfillment, at or before the Closing Date, of the following conditions, any one or more of which may be waived by the Buyer in its sole discretion:

Section 13.01. Representations and Warranties of the Company. All representations and warranties made by the Company in this Agreement shall be true and correct, in each case as of the date hereof, and, except to the extent such representations and warranties refer to a specific date (which shall be true and correct as of such date), as of the Closing Date as though made by the Company on and as of the Closing Date; provided, however, that no failures of such representations and warranties to be true and correct shall constitute a failure to satisfy the condition set forth in this Section 13.01 unless such failures to be true and correct, individually or in the aggregate, have resulted or would reasonably be expected to result in an Material Adverse Effect (provided that any representation and warranty that itself is qualified by the “Material Adverse Effect” shall be true and correct in all respects), and; provided, further, that notwithstanding anything in the foregoing to the contrary, the representations and warranties made by the Company in Section 5.02 and Section 5.04 in this Agreement shall be true and correct in all material respects, in each case as of the date hereof and as of the Closing Date as though made by the Company on and as of the Closing Date. The Buyer shall have received a certificate to that effect dated the Closing Date and signed by the Company.

Section 13.02. Performance of the Obligations of the Company. The Company shall have performed in all material respects all obligations required under this Agreement to be performed by it on or before the Closing Date, and the Buyer shall have received a certificate to that effect dated the Closing Date and signed by the Company.

Section 13.03. Consents and Approvals. All consents, waivers, authorizations, and approvals of any Governmental Entity and of any other Person required in connection with the execution, delivery, and performance of this Agreement and listed on Schedule 13.03 shall have been duly obtained and shall be in full force and effect on the Closing Date.

Section 13.04. HSR Approval. The waiting period applicable to the consummation of the Merger under the HSR Act (and any extension thereof) shall have expired or terminated early.

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Section 13.05. Stockholder Approval. This Agreement and the Merger and the transactions contemplated by this Agreement shall have received the Requisite Stockholder Approval, and either (i) the approval of any payments that may constitute “parachute payments” under Section 280G of the Code or (ii) any payments that may constitute “parachute payments” under Section 280G of the Code shall have been voted upon and disapproved and, as a consequence, such “parachute payments” shall not be paid or provided for in any manner, and Buyer and its subsidiaries shall not have any Expenses or Losses with respect to such “parachute payments” pursuant to a waiver obtained by the Company from each Person impacted in the Merger by Section 280G of the Code.

Section 13.06. No Violation of Orders. No preliminary or permanent injunction or other Order issued by any court or other Governmental Entity or regulatory authority, domestic or foreign, nor any Law, statute, rule, regulation, decree, or executive Order promulgated or enacted by any Governmental Entity, that declares this Agreement invalid in any respect or prevents the consummation of the transactions contemplated hereby, or that has a Material Adverse Effect on the Company, shall be in effect.

Section 13.07. No Material Adverse Effect. During the period from the date hereof to the Closing Date, there shall not have occurred any Material Adverse Effect.

Section 13.08. Escrow Agreement. The Equity Holders’ Representative and the Escrow Agent shall have executed and delivered to the Buyer the Escrow Agreement, and the Escrow Agreement shall be in full force and effect.

Section 13.09. Paying Agent Agreement. The Paying Agent shall have executed and delivered to the Buyer the Paying Agent Agreement, and the Paying Agent Agreement shall be in full force and effect.

Section 13.10. Conversion of Preferred Shares. The Company shall have delivered evidence, reasonably satisfactory to the Buyer, that all of the Preferred Shares have been converted into Common Shares

Section 13.11. Non-Competition Agreements. Each Named Target Stockholder and the other persons set forth on Schedule 1(a) shall have executed and delivered to the Buyer a Noncompetition Agreement, and none of such Persons shall be in breach thereof.

Section 13.12. Voting and Joinder Agreement. Each Named Target Stockholder shall have executed and delivered to the Buyer the Voting and Joinder Agreement, and none of such Persons shall be in breach thereof.

Section 13.13. Employment Agreements. Each Person listed on Schedule 1(b) shall have executed and delivered to the Buyer an Employment Agreement with the Company, and none of such Persons shall be in breach thereof.

Section 13.14. Resignations. Each officer and director shall have delivered to the Buyer a letter of resignation, substantially in the form attached as Exhibit I hereto.

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Section 13.15. Company Debts; Transaction Expenses. The Buyer shall have received payoff letters and other satisfactory evidence (a) that all indebtedness of the Company for borrowed money, including indebtedness to any of the Target Stockholders, shall be repaid at or prior to the Closing, and that any Lien upon the assets of the Company shall be discharged and released on or immediately after the Closing Date, including the receipt of copies of all termination or other statements filed or to be filed in accordance with the provisions of the Uniform Commercial Code to terminate the applicable Liens, and (b) that the Transaction Expenses have been paid, or will be taken into account in determining Closing Working Capital.

Section 13.16. Dissenting Shares. The holders of no more than five percent (5%) of the outstanding Target Shares shall be able to assert appraisal rights in accordance with the DGCL.

Section 13.17. Option Termination Letters. The Company shall have delivered evidence, reasonably satisfactory to the Buyer, that all Options have been terminated, exercised or executed Option Termination Letters have been obtained.

Section 13.18. Termination of Stockholder Agreement. The Stockholder Agreement shall have been terminated and be of no further force or effect.

ARTICLE XIV

TERMINATION

Section 14.01. Conditions of Termination. Notwithstanding anything to the contrary contained herein, this Agreement may be terminated at any time before the Closing:

(a) By mutual written consent of the Company and the Buyer;

(b) By the Buyer, if the Company has materially breached any representation, warranty, covenant, or agreement contained in this Agreement, and has not, in the case of a breach of a covenant or agreement, cured such breach, in all material respects, within fifteen (15) days after written notice to the Company (provided that the Buyer is not then in material breach of the terms of this Agreement and provided, further, that no cure period shall be required for a breach that by its nature cannot be cured), such that the conditions set forth in Article XIII hereof will not be satisfied;

(c) By the Company, if the Buyer has materially breached any representation, warranty, covenant, or agreement contained in this Agreement and has not, in the case of a breach of a covenant or agreement, cured such breach, in all material respects, within fifteen (15) days after written notice to the Buyer (provided that the Company is not then in material breach of the terms of this Agreement and provided, further, that no cure period shall be required for a breach that by its nature cannot be cured) such that the conditions set forth in Article XII will not be satisfied;

(d) By the Company or the Buyer if: (i) there shall be a final, nonappealable Order of a federal or state court in effect preventing consummation of the transactions contemplated hereby; or (ii) there shall be any final action taken or any Law, statute, rule, regulation, or Order enacted, promulgated, or issued or deemed applicable to the transactions

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contemplated hereby by any Governmental Entity that would make consummation of the transactions contemplated hereby illegal; or

(e) By the Company or the Buyer if the Closing shall not have been consummated by September 30, 2014, for any reason, provided that the right to terminate this Agreement under this Section 14.01(e) shall not be available to any Party whose failure to fulfill any material obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date.

Section 14.02. Effect of Termination. In the event of the termination of this Agreement as provided in Section 14.01 hereof, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Company, the Merger Sub or the Buyer, or their respective officers, directors, managers, stockholders, trustees, option holders, or other Persons under their control, except to the extent that such termination results from the fraud or willful misconduct by a Party hereto of any of its representations, warranties, covenants, or agreements set forth in this Agreement and provided that the provisions of Sections 8.10, 9.05, 14.02, 15.02, 15.03, 15.05, 15.06, and 15.07 and Article XVI hereof shall remain in full force and effect and survive any termination of this Agreement.

ARTICLE XV

EQUITY HOLDERS’ REPRESENTATIVE

Section 15.01. Appointment; Acceptance. By virtue of the approval of the Merger and this Agreement by the Requisite Stockholder Approval and by delivery of a Letter of Transmittal or Option Termination Letter, as applicable, each of the Equity Holders shall be deemed to have agreed to irrevocably constitute and appoint Daniel S. Messina, acting as hereinafter provided, as the Equity Holders’ Representative, and appoint the Equity Holders’ Representative as their attorney-in-fact and agent in their name, place, and stead in connection with the transactions and agreements contemplated by this Agreement and any Transaction Document and acknowledge that such appointment is coupled with an interest and is intended to be durable and to survive the disability or mental incapacity of each Equity Holder. By executing and delivering this Agreement under the heading “Equity Holders’ Representative,” Daniel S. Messina hereby (a) accepts his appointment and authorization to act as the Equity Holders’ Representative as attorney-in-fact and agent on behalf of the Equity Holders in accordance with the terms of this Agreement, and (b) agrees to perform the obligations required of the Equity Holders’ Representative under this Agreement, and any other Transaction Document, and any other agreements, documents, certificates, and instruments delivered to the Buyer by the Company in connection with the transactions contemplated under this Agreement.

Section 15.02. Authority. Each Equity Holder fully and completely, without restriction:

(a) Authorizes the Equity Holders’ Representative: (i) to give and receive notices and communications, and to authorize payment to any Indemnified Party from the Escrow Deposit in satisfaction of claims by any Indemnified Party; to object to such payments from the Escrow Deposit; to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to

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such claims; and to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Equity Holder relating to the Escrow Deposit, or by any such Equity Holder against any Indemnified Party relating to the Escrow Deposit, or any dispute between any Indemnified Party and any such Equity Holder relating to the Escrow Deposit, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (A) necessary or appropriate in the judgment of the Equity Holders’ Representative for the accomplishment of the foregoing or (B) specifically mandated by the terms of this Agreement, and (ii) to execute and deliver, and to accept delivery of, on their behalf, such amendments to any exhibits, schedules and other attachments to this Agreement and the other Transaction Documents as may be deemed by the Equity Holders’ Representative in his sole discretion to be appropriate under such agreement; provided, however, that nothing in this Section 15.02 shall be deemed to authorize the Equity Holders’ Representative to communicate any inaccurate or misleading information to the Buyer on behalf of any Equity Holder.

(b) Agrees to be bound by all notices received and agreements and determinations made by and documents executed and delivered by the Equity Holders’ Representative under this Agreement or any other Transaction Document.

(c) Authorizes the Equity Holders’ Representative: (i) to dispute or to refrain from disputing and thereby accept any claim made by the Buyer under this Agreement or any other Transaction Document; (ii) to negotiate and settle any dispute that may arise under and exercise or refrain from exercising remedies available under this Agreement or any other Transaction Document, to sign any releases or other documents with respect to such dispute or remedy; (iii) to waive any condition contained in this Agreement or any other Transaction Document; (iv) to give any and all consents under this Agreement or any other Transaction Document (including in connection with the Post-Closing Working Capital Adjustment); and (v) to give such instructions and do such other things and refrain from doing such things as the Equity Holders’ Representative shall deem appropriate to carry out the provisions of this Agreement and any other Transaction Document.

(d) The Equity Holders’ Representative Fund shall be used by the Equity Holders’ Representative, in his reasonable discretion, to cover fees and expenses incurred in connection with carrying out his duties under this Agreement.

Section 15.03. Actions. Each Equity Holder hereby expressly acknowledges and agrees that (a) the Equity Holders’ Representative is exclusively authorized to act on its behalf, notwithstanding any dispute or disagreement among the Equity Holders, and (b) the Buyer and any other Person shall be entitled to rely on any and all actions taken by the Equity Holders’ Representative under this Agreement and the other Transaction Documents without any liability to, or obligation to inquire of, any of the Equity Holders. The Buyer and any other person or entity are hereby expressly authorized to rely on the genuineness of the signature of the Equity Holders’ Representative, and upon receipt of any writing that reasonably appears to have been signed by the Equity Holders’ Representative, the Buyer and any other Person may act upon the same without any further duty of inquiry as to the genuineness of the writing.

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Section 15.04. Effectiveness. The authorization of the Equity Holders’ Representative shall be irrevocable and effective until his rights and obligations under this Agreement terminate by virtue of the termination of this Agreement and any and all of the obligations of the Equity Holders to the Buyer under this Agreement and the other Transaction Documents.

Section 15.05. Indemnification; Fees and Expenses. The Equity Holders hereby severally and not jointly agree: (a) to indemnify and hold the Equity Holders’ Representative harmless from any and all Losses and Expenses, and (b) that the Equity Holders’ Representative shall not have any liability to the Equity Holders for any act or omission hereunder, except for gross negligence or willful misconduct. The service of the Equity Holders’ Representative shall be without compensation. If not paid directly to the Equity Holders’ Representative by the Equity Holders, any such Losses and Expenses may be recovered by the Equity Holders’ Representative from the funds in the Escrow Deposit, on a pro rata basis, otherwise distributable to the Equity Holders following the release of the Escrow Deposit pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided, however, that all claims against the Escrow Deposit by the Buyer shall be satisfied in full before any amounts may be paid hereunder to the Equity Holders’ Representative.

Section 15.06. Successor. Upon fifteen (15) days’ prior written notice to the Company, the Equity Holders’ Representative shall have the right to resign at his sole discretion for any reason at any time and in such event, the Equity Holders’ Representative shall continue to have all rights to indemnification, fees, and expenses as provided in Section 15.05 above. If the Equity Holders’ Representative resigns or ceases to function in his capacity as such for any reason whatsoever, such Equity Holders’ Representative shall immediately give notice to the other parties to this Agreement and to the Named Target Stockholders, and David S. Rocchino and Martin B. Rosen. In such event, such Persons shall elect a new Equity Holders’ Representative by a majority of the Preferred Shares formerly held by such Persons within fifteen (15) days after the Equity Holders’ Representative resigns or otherwise ceases to function. If such Persons fail to timely elect a new Equity Holders’ Representative, the Buyer shall have the right, upon notice to each such Person and opportunity to be heard, to petition a court of competent jurisdiction for the appointment of one or more successors to be selected from the Target Stockholders or any of their respective Affiliates.

Section 15.07. Survival of Authorizations. EACH EQUITY HOLDER INTENDS FOR THE AUTHORIZATIONS AND AGREEMENTS IN THE FOREGOING SECTIONS OF THIS ARTICLE XV TO REMAIN IN FORCE AND NOT BE AFFECTED IF SUCH EQUITY HOLDER SUBSEQUENTLY BECOMES MENTALLY OR PHYSICALLY DISABLED, INCOMPETENT, OR INCAPACITATED, DOES HEREBY AUTHORIZE SUCH RECORDINGS AND FILINGS HEREOF AS THE EQUITY HOLDERS’ REPRESENTATIVE MAY DEEM APPROPRIATE, AND DOES HEREBY DIRECT THAT NO POSTING OF A SURETY BOND SHALL BE REQUIRED.

ARTICLE XVI

MISCELLANEOUS

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Section 16.01. Successors and Assigns. Except as otherwise provided in this Agreement, no Party hereto shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Parties hereto and any such attempted assignment without such prior written consent shall be void and of no force and effect; provided, however, that the Buyer may assign its rights hereunder to an Affiliate; and provided, further, that no such assignment shall reduce or otherwise vitiate any of the obligations of any Party hereunder. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the Parties hereto.

Section 16.02. Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE CONSTRUED, PERFORMED AND ENFORCED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CONFLICT OR CHOICE OF LAW RULES THEREOF. THE PARTIES AGREE THAT ANY LEGAL ACTION INVOLVING THIS AGREEMENT IN ANY WAY WILL BE INSTITUTED IN A COURT OF COMPETENT JURISDICTION LOCATED IN DELAWARE, AND THE PARTIES CONSENT TO JURISDICTION OF THE STATE OR FEDERAL COURTS IN DELAWARE OVER THE PERSON OF THE PARTIES FOR PURPOSE OF SUCH LEGAL ACTION.

Section 16.03. Expenses. Except as otherwise provided for in this Agreement, all of the fees, expenses, and costs incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party hereto incurring such fees, expenses, and costs. Without limiting the generality of the foregoing, the Target Stockholders shall pay all of the fees, expenses, and costs incurred by them in connection with this Agreement (including fees and costs of legal counsel and accountants) and the transactions contemplated hereby; provided that the Company may pay Transaction Expenses incurred by the Target Stockholders or the Equity Holders’ Representative prior to the Closing.

Section 16.04. Severability. In the event that any part of this Agreement is declared by any court or other judicial or administrative body to be null, void, or unenforceable, said provision shall survive to the extent it is not so declared, and all of the other provisions of this Agreement shall remain in full force and effect. To the extent permitted by Law, each Party hereto waives any provision of law that renders any such provision prohibited or unenforceable in any respect.

Section 16.05. Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given: (a) on the date of service if served personally on the Party to whom notice is to be given; (b) on the day of transmission if sent via facsimile transmission to the facsimile number given below and telephonic confirmation of receipt is obtained promptly after completion of transmission; (c) on the day of transmission if sent via e-mail to the e-mail address given below; or (d) on the Business Day after deposit to Federal Express or similar overnight courier or the Express Mail service maintained by the United States Postal Service for next day delivery, to the Party as follows:

If to the Company Health Advocate, Inc. (prior to the Closing): 3043 Walton Road, Suite 150

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Plymouth Meeting, PA 19462

Attention: Daniel S. Messina

Email: [email protected]

If to the Stockholders’ Daniel S. Messina Representative: 7347 Horizon Drive

West Palm Beach, FL 33412 E-mail: [email protected]

In either event, with Cozen O’Connor a copy (which 1900 Market Street shall not constitute Philadelphia, PA 19103 notice) to: Attention: Joseph C. Bedwick, Esq. Facsimile: 215-701-2353

E-mail: [email protected]

If to the Buyer West Corporation or Merger Sub: 11808 Miracle Hills Drive

Omaha, NE 68154 Attention: General Counsel Facsimile: (402) 963-1211 E-mail: [email protected]

With a copy (which Kutak Rock LLP shall not constitute 1650 Farnam Street notice) to: Omaha, NE 68102

Attention: James C. Creigh, Esq. Facsimile: (402) 346-1148 E-mail: [email protected]

Any Party may change its address for the purpose of this Section by giving the other Party written notice of its new address in the manner set forth above.

Section 16.06. Amendments; Waivers. This Agreement may be amended or modified, and any of the terms, covenants, representations, warranties, or conditions hereof may be waived, only by a written instrument executed by all of the Parties hereto, or in the case of a waiver, by the Party waiving compliance. Any waiver by any Party of any condition, or of the breach of any provision, term, covenant, representation, or warranty contained in this Agreement, in any one or more instances, shall not be deemed to be nor construed as a further or continuing waiver of any such condition or of the breach of any other provision, term, covenant, representation, or warranty of this Agreement.

Section 16.07. Public Announcements. Each Party agrees to communicate with each other Party and cooperate with each other prior to any public disclosure of this transaction. The Parties agree that no public release or announcement concerning the terms of the transactions contemplated hereby shall be issued by any Party without the prior written consent of the other Parties, except as such release or announcement may be required by Law, in any filings made by

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an Affiliate of Buyer with the United States Securities and Exchange Commission, or any listing agreement or rules of any national securities exchange to which any Party is subject, in which case the Party required to make the release or announcement shall advise the other Parties and the Parties shall use commercially reasonable efforts to cause a mutually agreeable release or announcement to be issued.

Section 16.08. Access to Records and Employees After Closing. For a period of three (3) years after the Closing Date and until resolution of any litigation (including arbitration or mediation and any Tax Proceeding) that could affect the rights or obligations of the Parties under this Agreement or with respect to any third party, each Party shall have reasonable access to all of the books and records of the Purchased Companies (including any books and records relating to Taxes and Tax Returns of the Company) and employees of any Purchased Company, to the extent that such access may reasonably be required by such Party in connection with matters relating to or affected by the operations of any Purchased Company prior to the Closing Date, including the preparation of such Party’s financial reports or Tax Returns, any Tax audits, the defense or prosecution of litigation (including arbitration or mediation), and any other reasonable need of such Party to consult such books and records. Such access shall be afforded by the applicable Party upon receipt of reasonable advance notice and during normal business hours. The Party seeking access shall be solely responsible for any costs or Expenses incurred by it pursuant to this Section 16.08. In addition, if the applicable Party shall desire to dispose of any of such books or records in its possession prior to the expiration of such three-year period or resolution of such litigation, arbitration, mediation or Tax Proceeding, such Party shall, prior to such disposition, give the other Parties a reasonable opportunity, at each such other Party’s expense, to segregate and remove such books and records as such other Parties may select.

Section 16.09. Entire Agreement. This Agreement contains the entire understanding among the Parties hereto with respect to the transactions contemplated hereby and supersedes and replaces all prior and contemporaneous agreements and understandings, oral or written, with regard to such transactions. All Exhibits, Annexes, and Schedules hereto are expressly made a part of this Agreement as fully as though completely set forth herein.

Section 16.10. Parties in Interest. Except as specifically provided in Article XI for Buyer Group Members and Equity Holder Group Members who are not Parties or as provided in Section 8.15, nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any Persons other than Parties hereto and their respective successors and permitted assigns. Nothing in this Agreement is intended to relieve or discharge the obligations or liability of any third persons to the Equity Holders or the Buyer. No provision of this Agreement shall give any third parties any right of subrogation or action over or against the Equity Holders or the Buyer.

Section 16.11. Section, Article and Paragraph Headings. The section, article and paragraph headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

Section 16.12. Interpretation. No provision of this Agreement shall be interpreted in favor of, or against, any of the Parties hereto by reason of the extent to which that Party or its

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counsel participated in the drafting hereof or by reason of the extent to which that provision is inconsistent with any prior draft hereof.

Section 16.13. Schedules. The Schedules and each exhibit to this Agreement (when and as executed) are incorporated by reference into this Agreement and will be considered a part hereof as if set forth herein in full. With respect to the Schedules, in order to qualify a representation or warranty made in Article V, (i) the section numbers in the Schedules must correspond to the section numbers in this Agreement, or (ii) if a section of the Schedules contains information that is responsive to another section of this Agreement or responsive or similar to information contained in another section of the Schedules, such information shall be deemed to be included in such other section of the Schedules only to the extent that the relevance of such information to such other section is reasonably apparent on the face of the Schedule. The disclosure of any information in the Schedules shall not be deemed to constitute an acknowledgement that such information is required to be disclosed, an admission of liability under applicable Law or that it is material. The provision of monetary or other quantitative thresholds for disclosure does not and shall not be deemed to create a standard of materiality hereunder.

Section 16.14. Conflicts; Continuing Representation.

(a) The Parties hereto acknowledge that at all times relevant hereto up to the Closing, Cozen O’Connor (“Company Counsel”) has represented the Company in connection with the Merger. If, subsequent to the Closing, any dispute were to arise relating in any manner to this Agreement or the transactions contemplated hereby (“Representative Dispute”), the Buyer and the Company hereby consent to Company Counsel’s representation of the Equity Holders’ Representative, the Equity Holder Group Members or any individual member thereof, or any director, officer, stockholder, employee or Affiliate of any of the foregoing, in the Representative Dispute, notwithstanding such representation, and each of the Parties hereby consents thereto and waives any conflict of interest arising therefrom, and each of such Parties shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation.

(b) It is acknowledged by each of the Parties that Company Counsel has represented the Company and the other Purchased Companies in connection with the transactions contemplated by this Agreement. The Parties agree that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of Company Counsel’s representation of the Company and the other Purchased Companies in connection with the transactions contemplated by Agreement, including, without limitation, relating to indemnification obligations of the Equity Holders hereunder, and all information and documents covered by such privilege or protection, shall belong to and be controlled by the Equity Holders and the Equity Holders’ Representative, and may be waived only by the Equity Holders’ Representative, and not any Purchased Company, and shall not pass or be claimed or used by the Buyer or any Purchased Company; provided, however, that in the event of a dispute between the Surviving Corporation and a third party (other than a Party or a Party’s Affiliates) after the Effective Time, the Surviving Corporation may assert the attorney-client privilege and attorney work-product protection to prevent disclosure of confidential communications to such third party and the Equity Holder’s Representative shall, if requested by the Surviving Corporation give Surviving Corporation access to all such information and documents to the extent reasonably

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necessary to prosecute or defend such dispute. Notwithstanding the foregoing, except as set forth in the previous sentence, any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of legal counsel’s representation of the Company prior to the Effective Time, including the representation by Company Counsel in matters not in connection with the transactions contemplated by Agreement, shall belong to and be controlled by the Surviving Corporation.

Section 16.15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. Facsimile, photostatic and .pdf copies of signatures to this Agreement and the other Transaction Documents (including copies received as attachments to electronic mail) shall be deemed to be originals and may be relied upon with the same force and effect as originals.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan of Merger to be executed as of the date first above written.

COMPANY:

HEALTH ADVOCATE, INC., a Delaware corporation

By: Name: Title:

MERGER SUB:

MERION MERGER CORPORATION, a Delaware corporation

By: Name: Title:

BUYER:

WEST CORPORATION, a Delaware corporation

By: Name: Title:

EQUITY HOLDERS’ REPRESENTATIVE:

_______________________________________ DANIEL S. MESSINA