Agreement and Plan of Merger among The KeyW Holding Corporation, Jacobs Engineering Group Inc. and Atom Acquisition Sub, Inc., dated April 21, 2019

AGREEMENT AND PLAN OF MERGER (as amended, restated or modified from time to time, hereinafter referred to as this “Agreement”), dated as of April 21, 2019, among The KeyW Holding Corporation, a Maryland corporation (the “Company”), Jacobs Engineering Group Inc., a Delaware corporation (“Parent”), and Atom Acquisition Sub, Inc., a Maryland corporation and a wholly owned direct or indirect Subsidiary of Parent (“Merger Sub”). Parent, Merger Sub and the Company are each sometimes referred to herein as a “Party” and collectively as the “Parties”.

WHEREAS, the respective boards of directors of Parent and Merger Sub have approved and declared advisable this Agreement, the Offer, the Merger and the other transactions contemplated by this Agreement;

WHEREAS, pursuant to this Agreement, Parent has agreed to cause Merger Sub to commence a cash tender offer (as it may be amended from time to time as permitted by this Agreement, the “Offer”) to purchase any (subject to the Minimum Condition) and all of the outstanding shares of common stock (other than Shares canceled or converted pursuant to Section 2.1(a)), par value $0.001 per share of the Company (the “Common Stock” or the “Shares”), at a price per share of Common Stock of $11.25 (such amount or any higher amount per share of Common Stock that may be paid pursuant to an amended Offer, the “Offer Price”), payable net to the seller in cash, without interest, on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, as of the date hereof, the Common Stock is registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”);

WHEREAS, as soon as practicable following acceptance for payment of the shares of Common Stock pursuant to the Offer, which shall be sufficient to satisfy the Minimum Condition (as defined herein), on the terms and subject to the conditions set forth in this Agreement, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned direct or indirect subsidiary of Parent in accordance with Section 3-106.1 of the Maryland General Corporation Law (the “MGCL”) and each Share that is not tendered and accepted pursuant to the Offer (other than shares canceled pursuant to Section 2.1(a) hereof) will thereupon be canceled and converted into the right to receive cash in an amount equal to the Offer Price, without interest, in each case, on the terms and conditions set forth herein;

WHEREAS, the Merger shall be governed by and effected pursuant to Section 3-106.1 of the MGCL;

WHEREAS, the board of directors of the Company (the “Company Board”), at a meeting thereof duly called and held, has adopted resolutions unanimously among those voting  (a) approving and declaring advisable this Agreement, the Offer, the Merger and the other transactions contemplated by this Agreement, (b) determining that it is in the best interests of the Company and the stockholders of the Company that the Company enter into this Agreement and consummate the transactions contemplated hereby on the terms and subject to the conditions set forth in this Agreement, (c) resolving that the Merger shall be effected under Section 3-106.1 of the MGCL and that the Merger shall be consummated as promptly as practicable following the Acceptance Time (as defined herein), and (d) resolving to recommend to the stockholders of the Company that they accept the Offer and tender their shares of Common Stock pursuant to the Offer; and

WHEREAS, the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, the Parties hereby agree as follows:

1.1        The Offer.

(a)         Provided that this Agreement shall not have been terminated in accordance with Article VII, as promptly as practicable after the date hereof (and in any event within fifteen (15) Business Days of the date hereof), Merger Sub shall (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer to purchase (subject to the Offer Conditions, including the Minimum Condition) all the outstanding Common Stock (other than the Shares cancelled or converted pursuant to Section 2.1(a)) at a price per share equal to the Offer Price.  The consummation of the Offer, and the obligation of Merger Sub to accept for payment, purchase and pay for any shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Common Stock (if any) then owned by Parent or its Subsidiaries, represents at least a majority of the shares of Common Stock then outstanding (collectively, the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with its terms (the “Termination Condition”); and (iii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”).

(b)         Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) (i) promptly (and in any event no later than one (1) Business Day) after the Expiration Date accept for payment and purchase all shares of Common Stock validly tendered (and not properly withdrawn) pursuant to the Offer (the time of such acceptance, the “Acceptance Time”) and (ii) promptly (and in any event no later than one (1) Business Day) after the applicable Expiration Date cause the Paying Agent to pay for such shares of Common Stock. Subject to Section 2.9, the Offer Price payable in respect of each share of Common Stock validly tendered (and not properly withdrawn) pursuant to the Offer shall be paid net to the seller in cash, without interest.

(c)         The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Offer Conditions.  Unless previously approved by the Company in writing, Parent and Merger Sub shall not: (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) change the number of shares of Common Stock to be purchased in the Offer, (iv) amend or waive the Minimum Condition, the Termination Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I, (v) add any condition to the Offer or any term that is adverse to the holders of Common Stock, (vi) extend the expiration of the Offer except as required or permitted by this Section 1.1, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Common Stock. Parent and Merger Sub expressly reserve the right (but shall not be obligated) at any time and from time to time, in their sole discretion, to (A) increase the Offer Price, and (B) waive (to the extent permitted by applicable Law) any Offer Condition and make any other changes in the terms and conditions of the Offer, in each case, that are not inconsistent with the terms of this Agreement (including the limitations set forth in the preceding sentence).

(d)         Unless extended or terminated in accordance with the terms of this Agreement, the Offer shall expire at one minute after 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).

(e)         If as of any then scheduled Expiration Date, any Offer Condition has not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension)  in order to permit the satisfaction of the Offer Conditions; provided, however, that Merger Sub shall not be required to extend the Offer beyond August 31, 2019 (such date, the “Outside Date”), and shall not extend the Offer beyond the Outside Date without the Company’s consent.  Notwithstanding the foregoing, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or NASDAQ; provided, however, that Merger Sub shall not be required to extend the Offer beyond the Outside Date, and shall not extend the Offer beyond the Outside Date without the Company’s consent.

(f)         Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VII.  If this Agreement is terminated pursuant to Article VII, Merger Sub shall (and Parent shall cause Merger Sub to) promptly terminate the Offer and shall not acquire the shares of Common Stock pursuant thereto.  If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to promptly return, in accordance with applicable Law, all tendered shares of Common Stock to the registered holders thereof.

(g)         As promptly as practicable on the date of the commencement, within the meaning of Rule 14d-2 under the Exchange Act, of the Offer, Parent and Merger Sub shall:

(i)          file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”);

(ii)         cause a notice that satisfies the requirements of Section 3-106.1(e)(1) of the MGCL (the “Maryland Short Form Notice”) to be given to all holders of shares of Common Stock with the Offer Documents, unless, prior to the date the Offer is first commenced, the Maryland Short Form Notice has been given to all holders of shares of Common Stock who, except for the application of Section 3-106.1 of the MGCL, would be entitled to vote on the Merger on the date such notice is given;

(iii)        deliver a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;

(iv)        give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and, unless waived by NASDAQ or the NASDAQ Listing Rules, mail by means of first class mail a copy of the Schedule TO, to NASDAQ in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and

(v)         cause the Offer Documents to be disseminated to all holders of shares of Common Stock as and to the extent required by all applicable Laws, including the Exchange Act.

(h)         The Schedule TO shall include as exhibits, the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”). The Offer Documents shall include the Maryland Short Form Notice (whether as an exhibit or otherwise) as provided in clause (g)(ii) above and may include a description of the determinations, approvals and recommendations of the Company Board and the Company described in this Agreement (and a change to such determinations, approvals and recommendations to the extent applicable at the relevant time). Subject to the provisions of Section 5.2, the Company consents to the inclusion of a description of the Company Recommendation in the Schedule TO and the Offer Documents.  Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to use reasonable best efforts to (i) respond promptly to any comments of the SEC or its staff with respect to the Offer Documents and (ii) cause the Offer Documents when filed to comply with applicable Law and promptly correct any information provided by it for use in the Offer Documents, if and to the extent that any of them become aware that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law, and Parent and Merger Sub agree to cause the Offer Documents, as so corrected, to be filed with the SEC and disseminated to holders of shares of Common Stock, in each case as and to the extent required by all applicable Laws, including the Exchange Act.  The Company shall promptly furnish to Parent all information concerning the Company, its stockholders and the Company Subsidiaries that may be reasonably requested in connection with this Section 1.1(h).  The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Merger Sub shall give reasonable consideration to any such comments made by the Company and its counsel.  In addition, Parent and Merger Sub shall provide the Company and its counsel promptly with copies of any written comments, and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto.  The Company and its counsel shall be given a reasonable opportunity to review and comment on any proposed written or oral responses to the SEC or its staff in respect of the Schedule TO and Offer Documents and Parent and Merger Sub shall give reasonable consideration to any such comments made by the Company and its counsel and shall give the Company and its counsel a reasonable opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto, to the extent such participation is not prohibited by the SEC or applicable Law.

1.2         Company Actions.

(a)         Schedule 14D-9.  On the day that the Schedule TO is initially filed with the SEC by Merger Sub, the Company shall file with the SEC, in a manner that complies with Rule 14d-9 under the Exchange Act, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule 14D-9”) that shall contain, subject to the provisions of Section 5.2, the Company Recommendation and the full text of the opinion of the Company Financial Advisor referred to in Section 3.24; provided that, the Company shall not be deemed to be in violation of its obligations set forth in this sentence if it has used reasonable efforts to prepare the Schedule 14D-9 on an expeditious basis following the date of this Agreement and is prepared to file with the SEC the Schedule 14D-9 no later than fifteen (15) Business Days after the date of this Agreement.  The Company agrees to cause the Schedule 14D-9 to be disseminated to holders of shares of Common Stock, as and to the extent required by all applicable Laws, including the Exchange Act. The Company, on the one hand, and Parent and Merger Sub, on the other hand, agree to use reasonable best efforts to (i) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9 and (ii) cause the Schedule 14D-9 when filed to comply with applicable Law and promptly correct any information provided by it for use in the Schedule 14D-9, if and to the extent that any of them become aware that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law, and the Company agrees to cause the Schedule 14D-9, as so corrected, to be filed with the SEC and disseminated to holders of shares of Common Stock, in each case as and to the extent required by all applicable Laws, including the Exchange Act.  Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC, and the Company shall give reasonable consideration to any such comments made by Parent, Merger Sub and their counsel.  In addition, the Company shall provide Parent, Merger Sub and their counsel promptly with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments, and any written or oral responses thereto.  Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on any proposed written or oral responses to the SEC or its staff in respect of the Schedule 14D-9 and the Company shall give reasonable consideration to any such comments made by Parent, Merger Sub and their counsel, and shall give Parent, Merger Sub and their counsel a reasonable opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto, to the extent such participation is not prohibited by the SEC or applicable Law.  Notwithstanding the foregoing, the obligations of the Company in this Section 1.2 shall not apply from and after the time the Company Board effects a Company Change in Recommendation in accordance with Section 5.2.

(b)         Company Information.  From time to time as requested by Merger Sub or its agents, the Company shall promptly furnish or cause to be furnished to Merger Sub mailing labels, security position listings, non-objecting beneficial owner lists and any other listings or computer files available to it containing the names and addresses of the record or beneficial owners of the shares of Common Stock, in each case, accurate and complete as of the most recent practicable date, and shall promptly furnish Merger Sub with such information (including, but not limited to, updated lists of holders of the shares of Common Stock and their addresses, mailing labels, security position listings and non-objecting beneficial owner lists) and such other assistance as Merger Sub or its agents may reasonably request in communicating with the record and beneficial holders of shares of Common Stock, in connection with the preparation and dissemination of the Schedule TO and the Offer Documents and the solicitation of tenders of shares of Common Stock in the Offer.  Except as required by applicable Law or any Governmental Entity, Parent and Merger Sub and their agents shall hold in confidence the information contained in any such labels, listings and files, will use such information only in connection with such transactions and, if this Agreement shall be terminated, will, upon request, deliver, and will cause their agents to deliver, to the Company (or destroy, and confirm such destruction to the Company) all copies of such information then in their possession or control.

(c)         Acceptance Time.  The Company shall cause the transfer of shares of Common Stock accepted for payment to be registered by its transfer agent effective immediately after the time at which Merger Sub accepts for payment and purchases shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer; provided, that Merger Sub causes the Paying Agent to pay for such shares of Common Stock at or immediately after such acceptance.

1.3        The Merger.  Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Merger Sub shall be merged with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease.  The Company shall be the surviving company in the Merger (hereinafter referred to as the “Surviving Company”), and the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger. The Merger shall have the effects specified in the MGCL.

1.4         Closing.  The closing of the Merger (the “Closing”) shall take place (a) at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153, as soon as reasonably practicable following the Acceptance Time, and in no event later than two (2) Business Days, following the day on which the last to be satisfied or waived of each of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) shall have been satisfied or waived in accordance with this Agreement or (b) at such other place and time and/or on such other date as the Company and Parent may otherwise agree in writing; provided, that, for the avoidance of doubt, the Closing shall in any event not occur earlier than thirty (30) days following the date of dissemination of the Maryland Short Form Notice as provided in this Agreement (the date on which the Closing occurs, the “Closing Date”).

1.5        Effective Time.  Contemporaneously with the Closing, the Company and Parent will cause articles of merger with respect to the Merger (the “Articles of Merger”) to be executed, acknowledged and filed with the State Department of Assessments and Taxation of Maryland (the “Department”) as provided in the MGCL.  The Merger shall become effective at the time when the Articles of Merger have been accepted for record by the Department, or at such later time as may be agreed upon by the Parties in writing and set forth in the Articles of Merger in accordance with the MGCL (the “Effective Time”).

1.6        The Articles of Incorporation.  At the Effective Time, by virtue of the Merger, the Company Charter shall be amended and restated to read in the same manner as the articles of incorporation of Merger Sub (the “Articles of Incorporation”), until thereafter amended as provided therein or by applicable Law, except that references to the name of Merger Sub shall be replaced by the name of the Company and references to the incorporator shall be removed.

1.7        The Bylaws.  At the Effective Time, by virtue of the Merger, the bylaws of Merger Sub in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Company (the “Bylaws”), until thereafter amended as provided therein or by applicable Law, except that references to the name of Merger Sub shall be replaced by the name of the Company.

1.8        Directors of the Surviving Company.  The Parties shall take all actions necessary so that the directors of Merger Sub immediately prior to the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Company until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Articles of Incorporation and the Bylaws.

1.9        Officers of the Surviving Company.  The Parties shall take all actions necessary so that the officers of the Company immediately prior to the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Company until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Articles of Incorporation and the Bylaws.

1.10       Effecting the Merger.  Promptly following the consummation of the Offer (the “Offer Closing”), the Parties shall take all necessary and appropriate actions to cause the Merger to become effective promptly following the Offer Closing, without a meeting of the stockholders of the Company, in accordance with Section 3-106.1 of the MGCL.  Without limiting the foregoing, the Merger shall be governed by Section 3-106.1 of the MGCL and the Merger shall be effected at the Closing.

2.1         Effect on Capital Stock.  At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Merger Sub or the holders of any securities of the Company, Parent or Merger Sub:

(a)         Cancellation of Company Securities; Subsidiary-Owned Securities.

(i)          Each share of Common Stock held by the Company as treasury stock or held by Parent or Merger Sub immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and no consideration or payment shall be delivered in exchange therefor or in respect thereof.

(ii)         Each share of Common Stock that is owned by any direct or indirect wholly owned Subsidiary of Parent or of Merger Sub shall automatically be canceled and retired and shall cease to exist, and no consideration or payment shall be delivered in exchange therefor or in respect thereof.

(b)         Conversion of Company Securities.  Except as otherwise provided in this Agreement, each share of Common Stock issued and outstanding immediately prior to the Effective Time (other than shares canceled or converted pursuant to Section 2.1(a) hereof) shall automatically be converted into the right to receive the Offer Price, without interest (the “Merger Consideration”).  The holders of certificates or book-entry shares which immediately prior to the Effective Time represented such Common Stock (respectively, the “Certificates” and “Book-Entry Shares”) shall cease to have any rights with respect to such Common Stock other than the right to receive, upon surrender of such Certificates or Book-Entry Shares in accordance with Section 2.2 of this Agreement (and such other documents as may be required pursuant to the letter of transmittal), the Merger Consideration.

(c)         Conversion of Merger Sub Capital Stock.  Each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of the Surviving Company, and such converted shares shall constitute the only outstanding shares of capital stock of the Surviving Company.

(a)         Designation of Paying Agent; Deposit of Exchange Fund.  Prior to the Acceptance Time, Parent shall designate a paying agent (the “Paying Agent”), the identity and the terms of appointment of which shall be reasonably acceptable to the Company, for the payment of (i) the Offer Price as provided in Section 1.1(b) and (ii) the applicable Merger Consideration as provided in Section 2.1(b).  Prior to the Acceptance Time, Parent shall deposit, or cause to be deposited with the Paying Agent, cash constituting an amount sufficient to make payment of (x) the aggregate Offer Price payable pursuant to Section 1.1(b) and (y) the aggregate Merger Consideration payable pursuant to Section 2.1(b) (all cash deposited with the Paying Agent, the “Exchange Fund”).  At or immediately after the Effective Time, Parent shall pay or cause to be paid to the Surviving Company (taking into account the available cash of the Surviving Company and its Subsidiaries), and the Surviving Company shall disburse in cash, the amounts payable at Closing in respect of the Company RSUs pursuant to Section 2.4(a), the Company Restricted Stock Awards pursuant to Section 2.4(b), the Company PSUs pursuant to Section 2.4(c), the Company Long-Term Incentive Shares pursuant to Section 2.4(d) and the Company Options pursuant to Section 2.4(e). In the event the Exchange Fund shall be insufficient to make the payments contemplated by Section 1.1(b) and Section 2.1(b), Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make such payments.  The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Common Stock and (ii) applied promptly to making the payments pursuant to Section 1.1(b) and Section 2.1(b) hereof.  The Exchange Fund shall not be used for any purpose other than to fund payments pursuant to Section 1.1(b) and Section 2.1(b).

(b)         As promptly as practicable following the Effective Time and in any event not later than three (3) Business Days thereafter, the Surviving Company shall cause the Paying Agent to mail to each holder of record of a Certificate that immediately prior to the Effective Time represented outstanding shares of Common Stock (x) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) to the Paying Agent and which shall be in the form and have such other provisions as Parent and the Company may reasonably specify and (y) instructions for use in effecting the surrender of the Certificates (or affidavit of loss in lieu thereof) in exchange for the Merger Consideration into which the number of shares of Common Stock previously represented by such Certificate shall have been converted pursuant to this Agreement.

(c)         Upon surrender of a Certificate (or affidavit of loss in lieu thereof) for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each share of Common Stock formerly represented by such Certificate, promptly following the later to occur of (i) the Effective Time or (ii) the Paying Agent’s receipt and acceptance of such Certificate (or affidavit of loss in lieu thereof), and the Certificate (or affidavit of loss in lieu thereof) so surrendered shall be forthwith canceled.  The Paying Agent shall accept such Certificates (or affidavits of loss in lieu thereof) upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices.  No interest shall be paid or accrued for the benefit of holders of the Certificates (or affidavits of loss in lieu thereof) on the Merger Consideration payable upon the surrender of the Certificates (or affidavits of loss in lieu thereof). If payment of the Merger Consideration is to be made to a Person other than the Person in whose name any surrendered Certificate is registered, it will be a condition precedent of payment that the Certificate so surrendered will be properly endorsed or will be otherwise in proper form for transfer, and the Person requesting such payment will have paid any transfer or similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate so surrendered or will have established to the satisfaction of the Paying Agent that such Taxes either have been paid or are not payable.

(d)         Promptly after the Effective Time and in any event not later than two (2) Business Days following the Effective Time, the Paying Agent shall issue and deliver to each record holder, as of the Effective Time, of Book-Entry Shares, which have converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 2.1(b), an amount in cash, equal to the product of (A) the Offer Price and (B) the number of such Book-Entry Shares held by such record holder, without such holder of Book-Entry Shares being required to deliver a Certificate or executed letter of transmittal. No interest shall be paid or accrued for the benefit of holders of the Book-Entry Shares on the Merger Consideration payable to such holder.

(e)         Termination of Exchange Fund.  Any portion of the Exchange Fund (including any interest accrued with respect thereto) which remains undistributed for twelve (12) months after the Effective Time shall be delivered to the Surviving Company, upon demand, and any holders of Shares as of the Effective Time who have not theretofore complied with this Article II shall thereafter look only to the Surviving Company as general creditor thereof for payment of their claims for cash, without interest, to which such holders may be entitled upon compliance with this Article II.

(f)         No Liability.  Notwithstanding the foregoing, none of the Surviving Company, Parent, the Paying Agent or any other Person shall be liable to any former holder of Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.  To the fullest extent permitted by Law, immediately prior to the date any Merger Consideration would otherwise escheat to or become the property of any Governmental Entity, such Merger Consideration shall become the property of the Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.

(g)         Investment of Exchange Fund.  The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time, the Surviving Company; provided, that (i) no such investment shall relieve Parent or the Paying Agent from making the payments required by this Article II, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement, and (iii) such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-l or P-l or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively.  Any interest or income produced by such investments will become a part of the Exchange Fund.

2.3         Adjustments to Prevent Dilution.  Without limiting the other provisions of this Agreement and other than as contemplated by this Agreement, if at any time during the period between the date of this Agreement and the Effective Time, any change in the number of outstanding shares of Common Stock shall occur as a result of a reclassification, recapitalization, stock split (including a reverse stock split), or combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period, the Offer Price and Merger Consideration shall be equitably adjusted to reflect such change.

2.4         Treatment of Equity Awards.

(a)         Treatment of Restricted Stock Units.  At the Effective Time, each outstanding and unvested Company RSU shall terminate and be cancelled as of immediately prior to the Effective Time, without any action on the part of any holder thereof in exchange for the right to receive a lump sum cash payment equal to (i) the number of Shares subject to such Company RSU, multiplied by (ii) the Merger Consideration.  Following the Effective Time, no such Company RSU that was outstanding immediately prior to the Effective Time shall remain outstanding and each former holder of any such Company RSU shall cease to have any rights with respect thereto, except the right to receive the consideration set forth in this Section 2.4(a) in exchange for such Company RSU in accordance with this Section 2.4(a).  The consideration payable under this Section 2.4(a) to each former holder of a Company RSU that was outstanding immediately prior to the Effective Time shall be paid through the Surviving Company’s payroll to such former holder as soon as practicable following the Effective Time (but in any event not later than ten (10) Business Days thereafter), net of any Taxes withheld pursuant to Section 2.9.

(b)         Treatment of Restricted Stock.  At the Effective Time, each outstanding Company Restricted Stock Award, whether vested or unvested, shall terminate and be cancelled as of immediately prior to the Effective Time, without any action on the part of any holder thereof in exchange for the right to receive a lump sum cash payment equal to (i) the number of Shares subject to such Company Restricted Stock Award, multiplied by (ii) the Merger Consideration.  Following the Effective Time, no such Company Restricted Stock Award that was outstanding immediately prior to the Effective Time shall remain outstanding and each former holder of any such Company Restricted Stock Award shall cease to have any rights with respect thereto, except the right to receive the consideration set forth in this Section 2.2(b) in exchange for such Company Restricted Stock Award in accordance with this Section 2.2(b).  The consideration payable under this Section 2.2(b) to each former holder of a Company Restricted Stock Award that was outstanding immediately prior to the Effective Time shall be paid through the Surviving Company’s payroll to such former holder as soon as practicable following the Effective Time (but in any event not later than ten (10) Business Days thereafter), net of any Taxes withheld pursuant to Section 2.9.

(d)         Treatment of Company Long-Term Incentive Shares.  At the Effective Time, each outstanding award of Company Long-Term Incentive Shares shall terminate and be cancelled as of immediately prior to the Effective Time, without any action on the part of any holder thereof, in exchange for the right to receive a lump sum cash payment equal to (i) (x) the number of Shares that the holder of such award would receive if the highest price per Share target applicable to such award was achieved, less (y) the number of Shares that the holder of such award previously received in respect of such award upon prior achievement of price per Share targets, multiplied by (ii) the Merger Consideration.  Following the Effective Time, no such award of Company Long-Term Incentive Shares that was outstanding immediately prior to the Effective Time shall remain outstanding and each former holder of any such award of Company Long-Term Incentive Shares shall cease to have any rights with respect thereto, except the right to receive the consideration set forth in this Section 2.4(d) in exchange for such award of Company Long-Term Incentive Shares in accordance with this Section 2.4(d).  The consideration payable under this Section 2.4(d) to each former holder of an award of Company Long-Term Incentive Shares that was outstanding immediately prior to the Effective Time shall be paid through the Surviving Company’s payroll to such former holder as soon as practicable following the Effective Time (but in any event not later than ten (10) Business Days thereafter), net of any Taxes withheld pursuant to Section 2.9.  Any post-settlement holding period or similar sale restriction applicable to Shares received in respect of an award of Company Long-Term Incentive Shares shall lapse immediately prior to the Effective Time.

(f)         Further Action.  At or prior to the Effective Time, the Company, the Company Board and the Compensation Committee of the Company Board, as applicable, shall adopt any resolutions and take any actions which are necessary to effectuate the provisions of this Section 2.4.

2.5         Treatment of Warrants.  At the Effective Time, each outstanding Warrant shall terminate and be cancelled as of immediately prior to the Effective Time for no consideration.

2.6         Lost Certificates.  If any Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed (in a form reasonably satisfactory to Parent) and, if required by Parent or the Surviving Company, the posting by such person of a bond, in such reasonable amount as Parent or the Surviving Company may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which the holder thereof is entitled pursuant to this Article II.

2.7         No Dissenters’ or Appraisal Rights.  No dissenters’ or appraisal rights or rights of an objecting stockholder shall be available with respect to the Merger or the other transactions contemplated hereby.

2.8         Transfers; No Further Ownership Rights.  After the Effective Time, there shall be no registration of transfers on the stock transfer books of the Company of shares of Common Stock that were outstanding immediately prior to the Effective Time.  If Certificates are presented to the Surviving Company for transfer following the Effective Time, they shall be canceled against delivery of the applicable Merger Consideration, as provided for in, and subject to compliance by the holder thereof with, this Article II, for each share of Common Stock formerly represented by such Certificates.  All cash paid upon the surrender of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Common Stock formerly represented by such Certificates or Book-Entry Shares.

2.9         Withholding Rights.  Notwithstanding anything to the contrary contained herein, each of Parent, Merger Sub, the Surviving Company and the Paying Agent shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or non-U.S. Tax Law.  To the extent that amounts are so deducted and withheld by or on behalf of Parent, Merger Sub, the Surviving Company or the Paying Agent and paid over to the appropriate Governmental Entity on such person’s behalf, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.

2.10      Subsequent Actions.  The Parties agree to take all necessary action to cause the Merger to become effective as soon as practicable following the Offer Closing without a meeting of the Company’s stockholders, as provided in Section 3-106.1 of the MGCL.

The Company represents and warrants to Parent as set forth in the statements contained in this Article III except as set forth in the Company SEC Documents filed and publicly available after January 1, 2018 and publicly available via the SEC’s EDGAR service at least two (2) Business Days prior to the date of this Agreement (the “Filed Company SEC Documents”) (excluding any disclosures in the Filed Company SEC Documents in any risk factors section, any forward-looking disclosure in any section related to forward-looking statements and other disclosures that are predictive or forward-looking in nature, other than historical facts expressly included therein) or in the corresponding section of the disclosure letter delivered by the Company to Parent at or before the execution and delivery of this Agreement (the “Company Disclosure Letter”); provided, that in no event shall any disclosure in any Filed Company SEC Document qualify or limit the representations and warranties of the Company set forth in Section 3.1, Section 3.2, Section 3.3, Section 3.4, Section 3.5 and Section 3.21.  The Company Disclosure Letter shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained in this Article III, and the disclosure in any section of the Company Disclosure Letter shall be deemed to qualify other sections in this Article III solely to the extent that it is reasonably apparent on its face that such disclosure also qualifies or applies to such other sections.

3.1         Organization, Good Standing and Qualification. Each of the Company and each of the Company’s Subsidiaries (such Subsidiaries of the Company, the “Company Subsidiaries”) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized (in the case of good standing, to the extent such jurisdiction recognizes such concept), except, in the case of the Company Subsidiaries, where the failure to be so organized, existing or in good standing, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.  Each of the Company and the Company Subsidiaries has all requisite power and authority and possesses all Permits necessary to enable it to own, operate, lease or otherwise hold its properties and assets and to conduct its businesses as presently conducted (the “Company Permits”), and all such Company Permits are in full force and effect, except where the failure to have such power or authority or to possess the Company Permits or to be in full force and effect, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.  Each of the Company and the Company Subsidiaries is duly qualified or licensed to do business in each jurisdiction where the nature of its business or the ownership or leasing of its properties make such qualification necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect.  The Company has made available to Parent, prior to execution of this Agreement, true and complete copies of (a) the Amended and Restated Articles of Incorporation of the Company in effect as of the date of this Agreement, dated October 6, 2010, as corrected pursuant to its Certificate of Correction of

Articles of Amendment and Restatement dated July 15, 2014 (the “Company Charter”) and the amended and restated bylaws of the Company in effect as of the date of this Agreement, effective as of August 13, 2014 (the “Company Bylaws”) and (b) the organizational documents of each of the Company Subsidiaries in effect as of the date of this Agreement, and each of the agreements described in clauses (a) and (b) is in full force and effect.

3.2         Company Subsidiaries.

(a)         All the outstanding shares of capital stock or voting securities of, or other equity interests in, each of the Company Subsidiaries (i) have been duly authorized and validly issued and are fully paid and non-assessable, (ii) are not subject to, and were not issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the MGCL or other applicable Law or any Contract to which any Company Subsidiary is a party or otherwise bound, and (iii) are owned beneficially and of record by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all Liens, and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock, voting securities or other equity interests, except for restrictions imposed by applicable securities Laws. Section 3.2(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of the name and jurisdiction of organization of each of the Company Subsidiaries.

(b)         Except for the capital stock and voting securities of, and other equity interests in, the Company Subsidiaries, neither the Company nor any Company Subsidiary owns or has any obligation to acquire, directly or indirectly, any capital stock or voting securities of, or other equity interests in, or any interest convertible into or exchangeable or exercisable for, any capital stock or voting securities of, or other equity interests in, any firm, corporation, partnership, company, limited liability company, trust, joint venture, association or other Person other than ordinary course investments in publicly traded securities constituting one percent (1%) or less of a class of outstanding securities of any entity.

3.3         Capital Structure.

(a)         The authorized capital stock of the Company consists of 100,000,000 shares, of which up to 100,000,000 shares may be shares of Common Stock and up to 5,000,000 shares of which may be shares of preferred stock, par value $0.001 per share (the “Company Preferred Stock” and, together with the Shares, the “Company Capital Stock”).  At the close of business on April 18, 2019, (i) 50,061,726 Shares were issued and outstanding (inclusive of 386,740 Company Restricted Stock Awards), (ii) no shares of Company Preferred Stock were issued and outstanding, (iii) no Shares were held by the Company in its treasury, (iv) 6,521,133 Shares were reserved and available for issuance pursuant to the Company Stock Plans, including (A) 1,000,991 Shares issuable upon vesting or settlement of outstanding Company RSUs (whether or not vested), (B) 552,153 Shares issuable upon vesting or settlement of outstanding Company PSUs (whether or not vested), (C) 674,024 Shares issuable upon exercise of outstanding Company Options (whether or not vested), and (D) 1,805,000 Shares issuable in respect of outstanding Company Long-Term Incentive Shares, (v) 2,500,000 Shares were reserved for issuance pursuant to the Company’s Employee Stock Purchase Plan (the “ESPP”), (vi) 158,116 Shares were subject to purchase under the Warrants and (vii) no Shares were reserved for issuance in respect of the “Make Whole Fundamental Change” under the Company Indenture. Except as set forth in this Section 3.3(a), at the close of business on April 18, 2019, no shares of capital stock or voting securities of, or other equity interests in, or any interest convertible into or exchangeable or exercisable for, any capital stock or voting securities of, or other equity interests in, the Company were issued, reserved for issuance or outstanding.  From the close of business on April 18, 2019 to the date of this Agreement, there have been no issuances by the Company of shares of capital stock or voting securities of, or other equity interests in, or any interest convertible into or exchangeable or exercisable for, any capital stock or voting securities of, or other equity interests in, the Company, other than the issuance of Shares upon the vesting, settlement or exercise of Company RSUs, Company PSUs, Company Options, Company Long-Term Incentive Shares or Warrants in each case outstanding at the close of business on April 18, 2019 and in accordance with their terms in effect at such time.

(b)         All outstanding shares of Company Capital Stock are, and, at the time of issuance, all such shares that may be issued upon the exercise, vesting, or settlement of the Company RSUs, Company PSUs, Company Restricted Stock Awards, Company Options, Company Long-Term Incentive Shares or Warrants will be, duly authorized, validly issued, fully paid and nonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the MGCL, the Company Charter, the Company Bylaws or any Contract to which the Company is a party or otherwise bound.  Except as set forth above in this Section 3.3 there are no issued, reserved for issuance or outstanding, and there are no outstanding obligations of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (x) any capital stock or voting securities of, or other equity interest in, the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, (y) any warrants, calls, subscriptions, options or other rights, commitments or agreements to acquire from the Company or any Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary or (z) any share appreciation rights, performance units, contingent value rights, “phantom” stock or any obligation of the Company or any Company Subsidiary that is linked in any way to the price of any class of the capital stock of the Company or any shares of capital stock of any Company Subsidiary or the value of the Company or any Company Subsidiary.  Other than (1) the withholding of Shares to satisfy tax obligations with respect to awards granted pursuant to the Company Stock Plans and (2) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards, there are not any outstanding obligations of the Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or voting securities or other equity interests of the Company or any Company Subsidiary or any securities, interests, warrants, calls, options or other rights referred to in clause (x), (y) or (z) of the immediately preceding sentence. Section 3.3(b) of the Company Disclosure Letter sets forth, as of April 18, 2019, a true and complete list of all holders of Company RSUs, Company PSUs, Company Options and Company Long-Term Incentive Shares indicating for each (A) the type of award, (B) the number of Shares subject thereto, (C) the date of grant thereof, and (D) if applicable the price per Share payable upon exercise thereof.

(c)         There are no bonds, debentures, notes or other Indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote (collectively, “Company Voting Debt”).

(d)         Other than as contemplated by this Agreement, neither the Company nor any of the Company Subsidiaries nor, to the Knowledge of the Company, any of the Company’s stockholders is a party to any voting agreement, voting trust, proxy or similar agreement, arrangement or commitment with respect to the voting, issuance, transfer, delivery or registration of, or other rights relating to, any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary.  Neither the Company nor any of the Company Subsidiaries is a party to any agreement pursuant to which any Person is entitled to elect, designate or nominate any director of the Company or any of the Company Subsidiaries.

(e)         No Subsidiary of the Company owns any Shares.

3.4         Corporate Authority and Approval.

(a)         The Company has all necessary corporate power and authority, and has taken all corporate action necessary, to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Offer, the Merger and the other transactions contemplated hereby.  The execution and delivery of this Agreement by the Company and the consummation of the Offer, the Merger and the other transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company or its stockholders are necessary to authorize the execution and delivery of this Agreement or to consummate the Offer, the Merger and the other transactions contemplated hereby (other than, with respect to the Merger, the filing of the Articles of Merger with the Department), assuming Parent and Merger Sub perform their obligations under Section 3-106.1 of the MGCL.  This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity (the “Bankruptcy and Equity Exception”).

(b)         The Company Board has duly adopted resolutions unanimously among those voting (i) approving and declaring advisable this Agreement, the Offer, the Merger and the other transactions contemplated hereby, (ii) determining that it is in the best interests of the Company and the stockholders of the Company that the Company enter into this Agreement and consummate the transactions contemplated hereby on the terms and subject to the conditions set forth herein, (iii) resolving that the Merger shall be effected under Section 3-106.1 of the MGCL and that the Merger shall be consummated as promptly as practicable following the Acceptance Time (as defined herein), and (iv) resolving to recommend to the stockholders of the Company that they accept the Offer and tender their shares of Common Stock pursuant to the Offer (the “Company Recommendation”), and such resolutions have not been rescinded, modified or withdrawn in any way.

(c)         Prior to the date of this Agreement, the Company and the Company Board have taken all action necessary (and shall not rescind or modify such action after the date hereof) to exempt each of the execution and delivery of this Agreement and the transactions contemplated hereby under, or make not subject, to (i) the provisions of Sections 3-601 and 3-602 of the MGCL, and (ii) the Maryland Control Share Acquisition Act (Section 3-701 to 710 of the MGCL).  Except as provided in clauses (i) and (ii), there are no other applicable “fair price”, “moratorium”, “control share acquisition” or other similar antitakeover statute or similar statute or regulation that would apply to this Agreement or the transactions contemplated hereby, including without limitation, the Offer and the Merger.  There are no provisions of the organizational documents of the Company and the Company Subsidiaries that would require any corporate approval other than any such approval provided for in this Agreement.

3.5         No Conflicts; Consents.

(a)         The execution and delivery of this Agreement by the Company does not, and the performance by the Company of its obligations hereunder and the consummation of the transactions contemplated hereby will not, (i) conflict with, or result in any violation of any provision of, the Company Charter, the Company Bylaws or the comparable charter or organizational documents of any Company Subsidiary, (ii) conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or give rise to any obligation to make an offer to purchase or redeem any Indebtedness or capital stock or any loss of a benefit under, or result in the creation of any Lien upon any of the properties or assets of the Company or any Company Subsidiary under, or require any consent or approval under, any provision of any Contract to which the Company or any Company Subsidiary is a party or by which any of their respective properties or assets is bound or any Company Permit or (iii) conflict with, or result in any violation of any provision of, subject to the filings and other matters referred to in Section 3.5(b), any Judgment or Law, in each case, applicable to the Company or any Company Subsidiary or their respective properties or assets, other than, in the case of clause (ii) above, as set forth in Section 3.5(a) of the Company Disclosure Letter, and in the case of clauses (ii) and (iii) above, any matters that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect.

(b)         None of the execution, delivery, and performance of this Agreement by the Company, the acceptance for payment or acquisition of shares of Common Stock pursuant to the Offer, the consummation by the Company of the Merger or any of the transactions contemplated by this Agreement, or the Company’s compliance with any of the provisions of this Agreement will require (with or without notice or lapse of time, or both) any Consent or filing or registration with, or notification to, any Governmental Entity, except for (i) applicable requirements of the Exchange Act, the Securities Act or “blue sky” laws, (ii) applicable requirements under the HSR Act and any applicable foreign competition laws, (iii) the filing of the Articles of Merger under the MGCL and (iv) applicable requirements of the rules of NASDAQ, and except where failure to obtain such consents, approvals, authorizations or permits, or to make such filings, registrations or notifications, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.

3.6         Company SEC Documents; Financial Statements. No Undisclosed Liabilities.

(a)         The Company has furnished or filed all reports, schedules, forms, statements and other documents (including exhibits, certifications and other information incorporated therein) required to be furnished or filed by the Company with the SEC since January 1, 2017 (such documents, together with any documents publicly filed with the SEC during such period by the Company, being collectively referred to as the “Company SEC Documents”).

(b)         Each Company SEC Document (i) at the time filed, complied and were prepared in all material respects with the requirements of SOX and the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Document and (ii) did not at the time it was filed (or if amended or superseded by a filing or amendment filed with the SEC prior to the date of this Agreement, then at the time of such filing or amendment) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Except as would not, and would not reasonably be expected to, be material to the Company and the Company Subsidiaries, taken as a whole, (A) there are no outstanding or unresolved comments in any comment letters received by the Company from the SEC staff since January 1, 2017 relating to the Company SEC Documents, (B) none of the Company SEC Documents is the subject of any ongoing review by the SEC, and (C) no enforcement action has been initiated or, to the Knowledge of the Company, threatened against the Company by the SEC relating to disclosures contained in any Company SEC Document.  None of the Company Subsidiaries has or is required to file or furnish any forms, reports or other documents with the SEC.  Each of the consolidated financial statements (including any notes and schedules) of the Company and its consolidated Subsidiaries included in the Company SEC Documents (x) complied at the time they were filed as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (y) were prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be expressly indicated in the notes thereto) and (z) fairly presented in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows and changes in stockholders’ equity for the periods shown (subject, in the case of unaudited statements, to normal year-end audit adjustments, which are not, and would not reasonably be expected to be, material, individually or in the aggregate).

(c)         Except (i) as reflected or reserved against in the Company’s consolidated audited balance sheet as of December 31, 2018 (the “Company Balance Sheet”) (or expressly reflected in the notes thereto) as included in the Company SEC Documents, (ii) for liabilities and obligations incurred since December 31, 2018 and prior to the date of this Agreement in the ordinary course of business and (iii) for liabilities and obligations incurred pursuant to this Agreement, neither the Company nor any Company Subsidiary has any liabilities that, individually or in the aggregate, have had or would reasonably be expected to have a Company Material Adverse Effect.  For purposes of this Section 3.6, the term “liabilities” shall not include liabilities or obligations of the Company or any Company Subsidiary to perform under or comply with any applicable Law or executory Contract, but would include such liabilities and obligations if there has been a default, breach or failure to perform or comply by the Company or any Company Subsidiary with any such liability or obligation.

3.7        Internal Controls and Procedures.

(a)         Each of the chief executive officer of the Company and the chief financial officer of the Company (or each former chief executive officer of the Company and each former chief financial officer of the Company, as applicable) has made all applicable certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of SOX with respect to the Company SEC Documents, and the statements contained in such certifications are true and accurate.  For purposes of this Agreement, “chief executive officer” and “chief financial officer” shall have the meanings given to such terms in SOX.  None of the Company or any of the Company Subsidiaries has outstanding, or has arranged any outstanding, “extensions of credit” to directors or executive officers within the meaning of Section 402 of SOX.

(b)         The Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) as required by Rule 13a-15 or 15d-15 under the Exchange Act and that is sufficient to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed, and receipts and expenditures are made, only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s properties or assets.

(c)         The Company is, and since January 1, 2017 has been, in compliance in all material respects with the applicable listing and corporate governance rules and requirements of NASDAQ.

(d)         The Company maintains “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) as required by Rule 13a-15 or 15d-15 under the Exchange Act and that are reasonably sufficient to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the periods specified in the rules and forms of the SEC and that all such information required to be disclosed is accumulated and communicated to the management of the Company to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of the Company to make the certifications required under the Exchange Act with respect to such reports. Except as set forth on Section 3.7(d) of the Company Disclosure Letter, since January 1, 2017, neither the Company, the audit committee of the Company Board nor, to the Knowledge of the Company, the Company’s auditors, is aware of or has received notification of (i) any significant deficiencies or material weaknesses in the design or operation of internal controls over financial reporting of the Company or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company has not made, or been required to make, any such disclosures to the Company’s auditors.

(e)         Except as would not, and would not reasonably be expected to, be material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2017, none of the Company or any Company Subsidiary or, to the Knowledge of the Company, any director or officer of the Company, has received any complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of the Company Subsidiaries or their internal accounting controls, including any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in questionable accounting or auditing practices. None of Grant Thornton LLP or Deloitte & Touche LLP has resigned or been dismissed as independent public accountants of the Company as a result of or in connection with any disagreement with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.

(f)         Neither the Company nor any Company Subsidiary is a party to, or has any commitment to become a party to, any joint venture, off balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of the Company Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of the Company Subsidiaries in the Company’s or such Company Subsidiary’s published financial statements or other Company SEC Documents.

3.8         Absence of Certain Changes.

(a)         From January 1, 2018 to the date of this Agreement, there has not occurred any Effect that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect.

(b)         From January 1, 2019 to the date of this Agreement, (i) except for actions taken in connection with the execution and delivery of this Agreement and the transactions contemplated by this Agreement, the Company and the Company Subsidiaries have conducted the business of the Company and the Company Subsidiaries in the ordinary course in all material respects and (ii) neither the Company nor any Company Subsidiary has taken any action that, if taken after the date of this Agreement and prior to the Closing, would require the consent of Parent pursuant to 5.1(b)(v), 5.1(b)(vi), 5.1(b)(vii), 5.1(b)(ix), 5.1(b)(x), 5.1(b)(xi), 5.1(b)(xiii), 5.1(b)(xv) or 5.1(b)(xvii).

3.9         Litigation and Liabilities.  As of the date of this Agreement there is no, and since January 1, 2017 there has not been, any suit, action, cause of action, demand, audit, review, arbitration, complaint, hearing, litigation or other proceeding or dispute resolution process or, to the Knowledge of the Company, any investigation, in each case, by or before any Governmental Entity (“Proceeding”) pending or, to the Knowledge of the Company, threatened against or involving the Company or any Company Subsidiary or any of their respective properties or assets that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or that would reasonably be expected to impair or materially delay the consummation by the Company of the transactions contemplated hereby (including the Merger). As of the date of this Agreement there is no, and since January 1, 2017 there has not been, any Judgment outstanding against the Company or any Company Subsidiary or any of their respective properties or assets that individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect or that would reasonably be expected to impair or materially delay the consummation by the Company of the transactions contemplated hereby (including the Merger).

3.10       Benefits Matters; ERISA Compliance.

(a)         For the purposes of this Agreement, the term “Company Plan” shall mean any benefit and compensation plan, policy, program or arrangement maintained, sponsored or contributed to (or required to be contributed to) by the Company or any Company Subsidiary or under which the Company or any Company Subsidiary has any liability covering or for the benefit of any current or former employees of the Company or any Company Subsidiary or any current or former directors of the Company or Company Subsidiary, including “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and any incentive and bonus, deferred compensation, retention, stock purchase, employment, retirement, profit sharing, pension, severance, change-in-control, termination, restricted stock, stock option, stock appreciation rights or stock based plans, programs, agreements or arrangements, excluding any statutory plans (a “Statutory Plan”).  Each material Company Plan as of the date of this Agreement is listed in Section 3.10(a) of the Company Disclosure Letter.  True and complete copies of each of the material Company Plans (or, if unwritten, a written summary thereof), all amendments thereto, and to the extent applicable, any related trust or other funding vehicle, and the most recent determination letter or opinion letter received from or issued by the IRS with respect to each Company Plan intended to qualify under Section 401 of the Code, have been provided or made available to Parent on or prior to the date of this Agreement.

(b)         All Company Plans have been maintained and administered in compliance with their terms and in all material respects with the requirements of applicable Laws (including, if applicable, ERISA and the Code) and the Company and Company Subsidiaries have complied in all material respects with all Statutory Plans in accordance with their terms and applicable Law.

(c)         Except as would not, and would not reasonably be expected to, be material to the Company and the Company Subsidiaries, taken as a whole, each Company Plan that is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter or opinion letter from the Internal Revenue Service (the “IRS”) and, to the Knowledge of the Company, circumstances do not exist that are likely to result in the loss of the qualification of such plan under Section 401(a) of the Code.  Except as would not, and would not reasonably be expected to, be material to the Company and the Company Subsidiaries, taken as a whole, each non-U.S. Company Plan to the extent required to be registered or approved by any Governmental Entity, has been registered with, or approved by, such Governmental Entity and, to the Knowledge of the Company, nothing has occurred that would adversely affect such registration or approval.

(d)         Except as set forth on Section 3.10(d) of the Company Disclosure Letter, or except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, neither the Company nor any Company Subsidiary or any entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414(b) or (c) of the Code, contributes to or is obligated to contribute to (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA (including any “multiemployer plan” within the meaning of Section (3)(37) of ERISA), (ii) a “multiple employer plan” as defined in Section 413(c) of the Code or (iii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.

(e)         All contributions required to be made by the Company or a Company Subsidiary under each Company Plan and each Statutory Plan have been timely made and all obligations in respect of each Company Plan have been properly accrued and reflected in the most recent consolidated balance sheet filed or incorporated by reference in the Company SEC Documents prior to the date of this Agreement, except as, in each instance, would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.

(f)         As of the date of this Agreement, there are no pending or, to the Knowledge of the Company, threatened Proceedings relating to the Company Plans, except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.

(g)         Except as expressly contemplated by this Agreement, as required by applicable Law or as set forth on Section 3.10(g) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby would reasonably be expected to, either alone or in combination with any other event, (i) result in any material payment becoming due to any employee, officer or director of the Company or any Company Subsidiary, (ii) materially increase the amount or value of any compensation or benefits under any Company Plan or otherwise payable to any employee, officer or director of the Company or any of its Subsidiaries, or (iii) result in the acceleration of the time of payment, vesting or funding of any such compensation or benefits.

(h)         Except as set forth on Section 3.10(h) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, director or other independent contractor of the Company or any Company Subsidiary for any excise or additional tax, interest or penalties incurred by such individual under Section 4999 or Section 409A of the Code.

3.11       Labor Matters.

(a)         There are no collective bargaining or other labor union contracts applicable to any employees of the Company or any of the Company Subsidiaries.  To the Knowledge of the Company, no labor organization or group of employees of the Company or any Company Subsidiary has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority.  To the Knowledge of the Company, there are no material organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other material labor disputes pending or threatened against or involving the Company or any Company Subsidiary.  None of the Company or any of the Company Subsidiaries has breached or otherwise failed to comply with any provision of any collective bargaining agreement or other labor union Contract applicable to any employees of the Company or any of the Company Subsidiaries, except for any breaches or failures to comply that, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, material liability to the Company or any Company Subsidiary. There are no written grievances or written complaints (or, to the Knowledge of the Company, unwritten grievances or complaints) by represented employees of the Company or its Subsidiaries and, to the Knowledge of the Company, no such grievances or complaints are threatened, in each case, that individually or in the aggregate, has resulted in, or would reasonably be expected to result in, material liability to the Company or any Company Subsidiary.

(b)         Except for matters that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect, neither the Company nor any Company Subsidiary has any liability with respect to any misclassification of any person as an independent contractor, temporary employee, leased employee or any other servant or agent compensated other than through reportable wages (as an employee) paid by the Company or any Company Subsidiary (each, a “Contingent Worker”) and no Contingent Worker has been improperly excluded from any Company Plan.

(c)         Except as would not, and would not reasonably be expected to, be material to the Company and the Company Subsidiaries, taken as a whole, the Company and each of the Company Subsidiaries are in compliance with all applicable Laws relating to employment and labor, including but not limited to, laws relating to wages, hours, collective bargaining, employment discrimination, safety and health, workers’ compensation and the collection and payment of withholding or social security taxes.

3.12       Compliance with Laws.

(a)         Except for matters that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect, the Company and the Company Subsidiaries are, and since January 1, 2016 have been, in compliance with all applicable Laws, Judgments and the Company Permits.  Except for matters that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect, there is no, and since January 1, 2016, there has been no, Proceeding by or before any Governmental Entity pending or, to the Knowledge of the Company, threatened alleging that the Company or a Company Subsidiary is not, or has at any time not been, in compliance with any applicable Law, Judgment or any Company Permit or which challenges or questions the validity of any rights of the holder of any Company Permit.

3.13      Contracts.

(a)         Except for this Agreement, neither the Company nor any Company Subsidiary is a party to any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.

(b)         Section 3.13(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent true and complete copies (including all amendments and supplements thereto), of each:

(i)          agreement, Contract, understanding, or undertaking to which the Company or any of the Company Subsidiaries is a party that (A) restricts the ability of the Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area (B) could reasonably be expected to restrict the ability of Parent or any of its Subsidiaries to compete in any business or with any Person in any geographical area after the Effective Time, or (C) grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or the Company Subsidiaries,

(ii)         agreement or Contract that obligates the Company or any Company Subsidiary to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant,

(iii)        (A) loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, hedging agreement or other similar agreement pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries, or (B) agreement, Contract, understanding or undertaking relating to the mortgaging, pledging or the placing of any Lien (other than Permitted Liens) on any material asset of the Company or any Company Subsidiary,

(iv)        Partnership, joint venture or similar agreement, Contract, understanding or undertaking to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture;

(v)          agreement, Contract, understanding or undertaking with any Company Top Supplier,

(vi)         Current Government Contract involving current annual payments to the Company or any Company Subsidiary in excess of $5,000,000,

(vii)       Company Lease;

(viii)      Judgment that provides for any material injunctive or other non-monetary relief after the date of this Agreement;

(ix)        agreement, Contract, understanding or undertaking with any current or former officer, director or Affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family members” (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act),other than any Company Plan,

(x)         (A) agreement, Contract, understanding or undertaking with respect to any material Intellectual Property Rights pursuant to which the Company or any Company Subsidiary is a licensee (other than to “off-the-shelf” or “shrink wrap” licenses generally available to the public as of the Closing) or (B) joint development agreement to which the Company or any Company Subsidiary is a party,

(xi)         agreement, Contract, understanding or undertaking relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any business or Person (whether by merger, purchase of equity interests or otherwise) or any material amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with respect to which there is no ongoing liability or obligation of the Company or any Company Subsidiaries), and

(xii)       agreement, Contract, understanding or undertaking not otherwise described above that involves annual payments to or from the Company or any Company Subsidiary in excess of $5,000,000 individually or $15,000,000 in the aggregate.  Each agreement, Contract, understanding or undertaking of the type described in this Section 3.13(b) and each Filed Company Contract is referred to herein as a “Company Material Contract”.

(c)         Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract (including, for purposes of this Section 3.13(c), any Contract entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception, (ii) each such Company Material Contract is in full force and effect and (iii) none of Company or any of the Company Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. To the Knowledge of the Company, no event, circumstance or condition exists which, with or without notice or lapse of time or both, would reasonably be expected to result in a breach or default by the Company, any Company Subsidiary or any other party thereto of any Company Material Contract.

3.14       Environmental Matters.  (a) Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect:

(i)           the Company and the Company Subsidiaries are and, since January 1, 2014, have been, in compliance with all Environmental Laws, which compliance includes obtaining, maintaining and complying with all Permits required pursuant to any Environmental Law;

(ii)          there are no Environmental Claims pending against or, to the Knowledge of the Company, threatened against or affecting, the Company or any of the Company Subsidiaries;

(iii)        except as set forth on Section 3.14(a)(iii) of the Company Disclosure Letter, there has been no Release of, or exposure to, any Hazardous Material that would reasonably be expected to form the basis of any Environmental Claim against, or otherwise result in liabilities or obligations of, the Company or any Company Subsidiaries; and

(iv)         neither the Company nor any of the Company Subsidiaries has assumed or retained by Contract any known or reasonably anticipated liabilities or obligations under any Environmental Law or concerning any Hazardous Materials.

(b)         The Company and the Company Subsidiaries have made available to Parent true and complete copies of all Phase I Environmental Site Assessments and any other material documents or correspondence relating to Environmental Law with respect to the Company and Company Subsidiaries, the Company Properties or real property formerly owned, leased or operated by the Company or any of the Company Subsidiaries or any of their respective predecessors, to the extent such documentation is in the Company’s or any of the Company Subsidiaries’ possession, custody or control.

3.15      Taxes.  Except as set forth on Section 3.15 of the Company Disclosure Letter or as would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect:

(a)         the Company and each Company Subsidiary (i) has duly and timely filed, or caused to be filed, taking into account any extensions, all Tax Returns required to have been filed by or with respect to the Company or any Company Subsidiary, and such Tax Returns are true, correct and complete, and (ii) have duly and timely paid all Taxes required to have been paid by or with respect to the Company or any Company Subsidiary (whether or not shown on any Tax Return), except in each case of clauses (i) and (ii), with respect to matters contested in good faith in appropriate proceedings and for which adequate reserves have been established in accordance with GAAP in the financial statements included in the Company SEC Documents;

(b)         each of the Company and the Company Subsidiaries has (i) withheld and timely paid to the appropriate Governmental Entity all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party and (ii) complied with applicable Laws with respect to Tax withholding;

(c)         no deficiencies for Taxes have been asserted or assessed in writing against the Company or any Company Subsidiary by any Governmental Entity except for deficiencies that have since been resolved.  Neither the Company nor any Company Subsidiary (i) is subject of any currently ongoing Tax audit or other Proceeding with respect to Taxes or (ii) has waived any statute of limitations in respect of any Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, which waiver or extension is currently in effect;

(d)         since January 1, 2017, no written claim has been made by a Governmental Entity in a jurisdiction where the Company or any Company Subsidiary does not file Tax Returns that the Company or any Company Subsidiary is or may be subject to Taxes in such jurisdiction;

(e)         neither the Company nor any Company Subsidiary (i) is or has been a member of any affiliated, consolidated, combined, unitary or similar group for purposes of filing Tax Returns or paying Taxes (other than a group the common parent of which is or was the Company or any Company Subsidiary), (ii) is a party to, bound by, or obligated under any Tax sharing, allocation, indemnity or similar agreement or arrangement (other than (x) any such agreement or arrangement that is solely between or among the Company and/or any Company Subsidiary, or (y) customary provisions in commercial agreements or arrangements entered into in the ordinary course of its business and the primary purpose of which is not related to Taxes), or (iii) has any liability for the Taxes of any Person (other than the Company or any Company Subsidiary) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract (other than customary provisions in commercial agreements or arrangements entered into in the ordinary course of business the primary purpose of which is not related to Taxes);

(f)         neither the Company nor any Company Subsidiary (nor any predecessor of the Company or a Company Subsidiary) has been a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355 of the Code) in a transaction intended to qualify under Section 355 of the Code within the past two (2) years;

(g)         neither the Company nor any Company Subsidiary has entered into any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2);

(h)         neither the Company nor any Company Subsidiary will 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 (or portion thereof) ending on or prior to the Closing; (ii) closing agreement with a Governmental Entity executed on or prior to the Closing; (iii) installment sale or open transaction disposition made on or prior to the Closing; (iv) prepaid amount received or deferred revenue accrued on or prior to the Closing (other than in the ordinary course of business); (v) election under Section 108(i) of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); (vi) intercompany transaction or excess loss accounts described in the Treasury Regulations promulgated under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) that existed prior to the Closing; or (vii) the application of Section 965 of the Code;

(i)          the Company has not 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; and

(j)          there are no Liens with respect to Taxes on any of the assets of the Company or any Company Subsidiary, other than Permitted Liens.

3.16       Intellectual Property.

(a)         Section 3.16(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a list of all registrations and pending applications for Intellectual Property Rights owned or purported to be owned by the Company and the Company Subsidiaries. Except as would not reasonably be expected to have a Company Material Adverse Effect, all Intellectual Property Rights owned, or purported to be owned, by the Company and the Company Subsidiaries (collectively, the “Company Intellectual Property”) are valid and, only with respect to registered Intellectual Property Rights, subsisting and enforceable.

(b)         The Company and the Company Subsidiaries own, or are licensed or have the right to use, all Intellectual Property Rights used in or necessary for their respective businesses as presently conducted on the date of this Agreement, except where the failure to own, license or have the right to use such Intellectual Property Rights would not reasonably be expected to have a Company Material Adverse Effect.  Except for the licenses, sublicenses, and other agreements disclosed in Section 3.16(b) of the Company Disclosure Letter and any immaterial licenses, sublicenses or other agreements for less than $5,000,000 individually or $15,000,000 in the aggregate (in revenue) received by the Company per year, there are no Contracts under which the Company or any of the Company Subsidiaries has granted rights to any other Person in any material Company Intellectual Property (other than pursuant to customer agreements entered into in the ordinary course of business).

(c)         No Proceedings are pending or, to the Knowledge of the Company, threatened (i) that allege that the Company or any of the Company Subsidiaries is infringing, misappropriating or violating any third Person’s Intellectual Property Rights, or (ii) challenging the use, ownership, validity, or enforceability of any material Intellectual Property Rights owned by the Company or any of the Company Subsidiaries, in each case (i) and (ii), which if proven or established, would reasonably be expected to have a Company Material Adverse Effect.

(d)         The operation of the businesses of the Company and the Company Subsidiaries as currently conducted does not infringe, misappropriate or violate any Intellectual Property Right of any third Person in a manner that would reasonably be expected to have a Company Material Adverse Effect.

(e)         Except as would not reasonably be expected to have a Company Material Adverse Effect, no third Person is infringing, misappropriating or violating any Intellectual Property Right owned by the Company or any of the Company Subsidiaries.

(f)         Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each employee or consultant of the Company and the Company Subsidiaries who is or was involved in the creation or development of any Company Intellectual Property has signed a valid and enforceable agreement containing an irrevocable assignment of such Intellectual Property Rights to the Company and the Company Subsidiaries; (ii) the Company and the Company Subsidiaries have taken commercially reasonable steps (including entering into confidentiality and nondisclosure agreements with all officers and employees of, and consultants to, the Company and the Company Subsidiaries with access to or knowledge of Company Intellectual Property) necessary to safeguard and maintain the secrecy and confidentiality of all Material Trade Secrets; (ii) no present or former employee, officer or director of the Company or the Company Subsidiaries holds any right, title or interest, directly or indirectly, in whole or in part, in or to any Company Intellectual Property; and (iii) no employee or outside contractor of the Company and the Company Subsidiaries has misappropriated any Material Trade Secret or other confidential information of any other Person in the course of the performance of his or her duties as an employee or outside contractor of the Company and the Company Subsidiaries.

(g)         The Company and the Company Subsidiaries have not ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that requires or obligates or could require or obligate the Company or the Company Subsidiaries to grant or offer to any other Person any license, covenant not to sue or other right under or with respect to any Company Intellectual Property.

(h)         None of the Proprietary Software contains, is derived from, or is distributed, integrated, or bundled with Computer Software subject to any license commonly referred to as a “copyleft” or “open source” license that, as used, modified, integrated, bundled, or distributed by the Company and the Company Subsidiaries: (i) requires or conditions the use or distribution of such Computer Software on the disclosure, licensing or distribution of any source code for any portion of the Proprietary Software; or (ii) otherwise imposes an obligation on the Company and the Company Subsidiaries to distribute any Proprietary Software on a royalty-free basis.

(i)          Except as would not result in, or would not reasonably be expected to result in, a Material Adverse Effect (i) neither the Company nor the Company Subsidiaries, nor any other Person acting on behalf of the Company or the Company Subsidiaries, has disclosed or delivered to any other Person, or permitted the disclosure or delivery from any escrow agent or other Person, of any source code of the Proprietary Software and (ii) no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time or both) will, or would reasonably be expected to, result in the disclosure or delivery by the Company or the Company Subsidiaries, or any Person acting on behalf of the Company or the Company Subsidiaries, of any source code of the Proprietary Software. Section 3.16(i) of the Company Disclosure Letter identifies each Contract pursuant to which the Company or the Company Subsidiaries has deposited, or is or may be required to deposit, with an escrow agent or any other Person any source code of the Proprietary Software.

(j)          Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) the Proprietary Software does not contain any computer code or any other mechanisms which may (A) disrupt, disable, erase or harm in any way such Proprietary Software’s operation, or cause the Proprietary Software to damage or corrupt any data, hardware, storage media, programs, equipment or communications, or (B) permit any Person to access the Proprietary Software without authorization, (ii) the Proprietary Software complies with any applicable warranty or contractual commitment relating to the use, functionality, or performance of the Proprietary Software, and there are no pending or, to the Knowledge of the Company, threatened claims alleging any such failure, and (iii) there exist no technical problems with any Proprietary Software that adversely affect the performance of such Proprietary Software or cause such products to fail to substantially conform to their written specifications.

3.17       Insurance.  Each of the Company and the Company Subsidiaries maintains insurance policies with reputable and financially sound insurance carriers against all material risks of a character and in such amounts as are customarily insured against by similarly situated companies in the same or similar businesses. The Company has made available to Parent true and complete copies of all material insurance policies and all material self-insurance programs and arrangements maintained by the Company or the Company Subsidiaries (the “Insurance Policies”).  Except as would not, and would not reasonably be expected to, be material to the Company and the Company Subsidiaries, taken as a whole, (a) each Insurance Policy is in full force and effect and was in full force and effect during the periods of time such Insurance Policy purported to be in effect, all premiums due and payable thereon have been paid when due and (b) neither the Company nor any of the Company Subsidiaries is (with or without notice or lapse of time, or both) in breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice) under any such policy.  Since January 1, 2017, (A) there has been no claim by the Company or any of the Company Subsidiaries pending under any such policies that (i) to the Knowledge of the Company, has been denied or disputed by the insurer other than denials and disputes in the ordinary course of business or (ii) if not paid would constitute or result in a Company Material Adverse Effect and (B) neither the Company nor any Company Subsidiary has received written notice regarding any invalidation or cancellation of any Insurance Policy that has not been renewed in the ordinary course without any lapse in coverage.

3.18       Properties.

(a)         Neither the Company nor any Company Subsidiary owns, or has ever owned, any real property. The Company and each Company Subsidiary has a valid leasehold interest in the Company Properties, except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Section 3.18(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each Company Property.  All of the Company Properties are leased free and clear of all Liens, except for Permitted Liens.  There are no leases, subleases, licenses, concessions or other agreements granting to any party or parties the right of use or occupancy of any portion of the Company Properties except for (i) such failures to have such possession of properties or assets as, individually or in the aggregate, do not materially impair and would not reasonably be expected to materially impair, the continued use and operation of such properties or assets as currently used in the conduct of the Company’s and the Company Subsidiaries’ business as presently conducted and (ii) failures to have such possession of properties or assets as, individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect.

(b)         The Company has not received any written notice of a default from a landlord under any lease pursuant to which it occupies the Company Property (the “Company Leases”), which has not been cured or waived and the Company Leases are valid and in full force and effect, except, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect.

(c)         Except as would not have a Company Material Adverse Effect, (i) the Company or one of the Company Subsidiaries has valid and subsisting ownership interests in all of the material tangible personal property necessary to conduct their business as now conducted, free and clear of all Liens, other than Permitted Liens and (ii) the tangible personal property owned by the Company and the Company Subsidiaries is in good operating condition and repair for its continued use as it has been used, subject to reasonable wear and tear.

3.19      Government Contracts.

(a)         Except as would not, and would not reasonably be expected to, be material to the Company and the Company Subsidiaries, taken as a whole, each Government Contract the period for performance of which has not yet expired or been terminated or for which final payment has not been received (collectively, the “Current Government Contracts”) is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.  Each Government Contract was awarded in compliance with applicable Law, except as would not, and would not reasonably be expected to, be material to the Company and the Company Subsidiaries, taken as a whole.

(b)         The Company and the Company Subsidiaries are, and since January 1, 2016 have been, in compliance with all applicable Laws with respect to each Government Contract, except as have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.  Since January 1, 2016, all representations, certifications and statements executed, acknowledged or submitted by or on behalf of the Company or any Company Subsidiaries to a Governmental Entity or any other Person in connection with any Government Contract or Government Bid were current, accurate and complete as of their respective effective dates, except as have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.

(c)         With respect to any Government Contract, since January 1, 2016, except in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have, a Company Material Adverse Effect, there has been no (i) civil fraud or criminal allegation or investigation by any Governmental Entity, (ii) criminal allegation under the False Statements Act (18 U.S.C. § 1001) or the False Claims Act (18 U.S.C. § 287) or comparable state Laws, (iii) suspension or debarment proceeding (or equivalent proceeding) or proposed suspension or debarment against the Company, any of the Company Subsidiaries or any of their respective officers, directors, owners, partners, or persons having primary management or supervisory responsibilities within a business entity (e.g., general manager, plant manager, head of a division or business segment, and similar positions), (iv) request by a Governmental Entity for a contract price adjustment based on a claimed disallowance by an applicable Governmental Entity or claim of defective certified cost or pricing data in excess of $2,000,000, (v) dispute between the Company or any of the Company Subsidiaries and a Governmental Entity which, has resulted in a government contracting officer’s final decision where the amount in controversy exceeds or is expected to exceed $1,000,000, (vi) claim or dispute involving any prime contractor, subcontractor or third party relating to any Government Contract where the amount in controversy exceeds or could reasonably be expected to exceed $1,000,000, (vii) notice in writing or, to the Knowledge of the Company, orally, received by the Company or any Company Subsidiaries terminating any Government Contract for convenience or indicating an intent to terminate any Government Contract for convenience, or (viii) internal investigation, or to the Company’s Knowledge, any administrative, civil or criminal investigation, conducted or initiated with respect to any irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid.

(d)         Since January 1, 2016, no termination for default, cure notice, or show cause notice has been issued by any Governmental Entity or by any prime contractor or subcontractor, in writing or, to the Knowledge of the Company, orally, with respect to performance by the Company or any of the Company Subsidiaries as a prime contractor or subcontractor of any portion of the obligation of a Government Contract, except as has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.

(e)         Since January 1, 2016, neither the Company nor any of its Subsidiaries, nor any of their respective officers, directors, owners, partners, or other persons having primary management or supervisory responsibilities within a business entity, (i) has made a mandatory or voluntary disclosure to any Governmental Entity with respect to any suspected, alleged or possible breach, violation, irregularity, mischarging, misstatement or other act or omission arising under or relating to any Government Contract or Government Bid, or (ii) has received credible evidence of a violation of federal criminal Law involving the fraud, conflict of interest, bribery, or gratuity provisions found in Title 18 of the U.S. Code, a violation of the civil False Claims Act (31 U.S.C. §§ 3729-3733), or a significant overpayment, in connection with the award, performance, or closeout of any Government Contract or receiving a Government Contract as a result of a Government Bid, except which has not had and would not reasonably be expected to have a Company Material Adverse Effect.  There exist no facts or circumstances that are reasonably likely to warrant the institution of suspension or debarment proceedings or ineligibility on the party of the Company, any Company Subsidiaries, or any of their respective officers, directors, owners, partners, or other persons having primary management or supervisory responsibilities within a business entity, except which would not, and would not reasonably be expected to, have a Company Material Adverse Effect.

(f)         Except as has not had and would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of the Company Subsidiaries has performed any material activities under any Government Contract or Government Task Order determined to be an Organizational Conflict of Interest (“OCI”) as defined in Federal Acquisition Regulation (“FAR”) subpart 9.5 and/or any other agency supplement with any other Government Contract, except with consent or approval of a Governmental Entity or pursuant to an OCI mitigation plan.

(g)         The Company and each of the Company Subsidiaries (and to the Company’s Knowledge, their employees who hold personnel security clearances) possess all required facility security clearances to perform the Government Contracts and Government Task Orders and are in compliance with all applicable national security obligations, including those specified in the National Industrial Security Program Operating Manual, DOD 5220.22-M (February 2006), and any supplements, amendments or revised editions thereof (“NISPOM”) except to the extent such noncompliance has not had and would not reasonably be expected to have a Company Material Adverse Effect.

(h)         The Company and the Company Subsidiaries maintain systems of internal controls (including cost accounting systems, estimating systems, purchasing systems, billing systems, and property systems, and other required business systems) that are in compliance with all requirements of the Government Contracts, except as has not had and would not reasonably be expected to have a Company Material Adverse Effect.  The business systems of the Company and the Company Subsidiaries are in compliance with applicable Laws and have not been determined in writing by any Governmental Entity not to be in compliance with any applicable Laws, except to the extent such noncompliance has not had and would not reasonably be expected to have a Company Material Adverse Effect.

(i)         Since January 1, 2016, neither the Company nor any of the Company Subsidiaries has received adverse audit findings from the Defense Contract Audit Agency, the Defense Contract Management Agency or any other Governmental Entity that resulted in a finding that the Company or any Company Subsidiaries have failed to comply with FAR Part 31 or applicable Cost Accounting Standards or a liability in excess of $1,000,000 to the Company or any of the Company Subsidiaries.

3.20      Schedule 14D-9.  The information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Offer Documents (and any amendment thereof or supplement thereto), will not, when filed with the SEC or when distributed or disseminated to the Company’s stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.  The Schedule 14D-9, and all amendments thereto, and any other document required to be filed with the SEC or required to be distributed or otherwise disseminated to the Company’s stockholders in connection with the transactions contemplated hereby, will comply as to form in all material respects with the provisions of all applicable Laws, as the case may be, and will not, when filed with the SEC or when distributed or disseminated to the Company’s stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements made in the Schedule 14D-9 or any other document filed or distributed by the Company based solely on information furnished by Parent or Merger Sub in writing for inclusion or incorporation by reference therein.

3.21       Brokers and Finders.  No broker, investment banker, financial advisor or other Person, other than Guggenheim Securities LLC (the “Company Financial Advisor”), the fees and expenses of which will be paid by the Company or the Company Subsidiaries, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Company.  Prior to the execution of this Agreement, the Company has furnished to Parent true and complete copies of all agreements between the Company or any of the Company Subsidiaries and the Company Financial Advisor relating to the transactions contemplated hereby and all such agreements shall be deemed to be Company Material Contracts.

3.22       Related Party Transactions.  The Company is not a participant in a “transaction” with any “related person” that would be required to be disclosed by the Company under Item 404 of Regulation S-K.  For purposes of this Section 3.22, the terms “related person” and “transaction” have the meanings given to such terms in Item 404 of Regulation S-K.

3.23      Customers and Suppliers.

(a)         Section 3.23(a) of the Company Disclosure Letter sets forth a true and complete list of the top ten (10) customers of the Company and the Company Subsidiaries (measured by gross revenue) for the fiscal year ended December 31, 2018 (the “Company Top Customers”). Except as would not have a Company Material Adverse Effect, none of the Company or any Company Subsidiary (i) has any outstanding dispute with any Company Top Customer, or (ii) has, since January 1, 2017, received any written (or, to the Knowledge of the Company, unwritten) notice from any Company Top Customer that such Company Top Customer shall not continue, or does not expect to continue, as a customer of the Company or any Company Subsidiary, as applicable, or that such Company Top Customer intends to materially reduce the scale of the business conducted with the Company or any of the Company Subsidiaries.

(b)         Section 3.23(b) of the Company Disclosure Letter sets forth a true and complete list of (i) the top ten (10) suppliers or vendors of the Company and the Company Subsidiaries (measured by gross expenditures) for the fiscal year ended and December 31, 2018 and (ii) any sole source suppliers of the Company and the Company Subsidiaries (collectively, the “Company Top Suppliers”). Except as would not have a Company Material Adverse Effect, none of the Company or any Company Subsidiary (i) has any outstanding dispute with any Company Top Supplier, or (ii) has, since January 1, 2017, received any written (or, to the Knowledge of the Company, unwritten) notice from any Company Top Supplier that such Company Top Supplier shall not continue, or does not expect to continue, as a supplier of the Company or any Company Subsidiary, as applicable, or that such Company Top Supplier intends to materially reduce the scale of the business conducted with the Company or any of the Company Subsidiaries.

3.24      Opinions of Financial Advisors.  As of the date of this Agreement, the Company Board has received the opinion of the Company Financial Advisor, as of the date of this Agreement and based upon and subject to the assumptions, limitations, qualifications and other conditions contained therein, that the Offer Price to be received by the holders of Shares (other than those Shares canceled pursuant to Section 2.1(a)) pursuant to the Offer and the Merger is fair, from a financial point of view, to such holders.  The Company shall, promptly following the execution of this Agreement by all Parties, furnish a copy of such written opinion to Parent solely for informational purposes (it being agreed that none of the Parent or Merger Sub, nor any of their respective affiliates or Representatives, shall have the right to rely on such opinion).

3.25       No Other Representations and Warranties.  Except for the representations and warranties of the Company contained in this Article III, the Company is not making and has not made, and no other Person is making or has made on behalf of the Company, any express or implied representation or warranty in connection with this Agreement or the transactions contemplated hereby. Nothing in this Section 3.25 shall limit any claim for fraud.

Parent represents and warrants to the Company as set forth in the statements contained in this Article IV except as set forth in the disclosure letter delivered by Parent to the Company at or before the execution and delivery by Parent of this Agreement (the “Parent Disclosure Letter”).  The Parent Disclosure Letter shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained in this Article IV, and the disclosure in any section of the Parent Disclosure Letter shall be deemed to qualify other sections in this Article IV to the extent that it is reasonably apparent on its face that such disclosure also qualifies or applies to such other sections.

4.2        Corporate Authority and Approval.  Each of Parent and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Offer, the Merger and the other transactions contemplated hereby.  The execution and delivery of this Agreement by Parent and Merger Sub and the consummation by Parent and Merger Sub of the Offer, the Merger and the other transactions contemplated hereby have been duly and validly authorized by all necessary corporate action of Parent and Merger Sub and no other corporate proceedings on the part of Parent or Merger Sub or their respective stockholders are necessary to authorize the execution and delivery of this Agreement or to consummate the Offer, the Merger and the other transactions contemplated hereby (other than, with respect to the Merger, (x) the adoption of this Agreement by Parent in its capacity as the sole stockholder of Merger Sub, which adoption shall occur promptly following the execution of this Agreement, and (y) the filing of the Articles of Merger with the Department).  This Agreement has been duly and validly executed and delivered by Parent and Merger Sub and, assuming the due authorization, execution and delivery by the Company, this Agreement constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception.

4.3        No Conflicts; Consents.

(a)         The execution and delivery of this Agreement by Parent and Merger Sub does not, and the performance by Parent and Merger Sub of their respective obligations hereunder and the consummation of the transactions contemplated hereby will not, (i) conflict with, or result in any violation of any provision of, the Parent Charter, the Parent Bylaws or the comparable charter or organizational documents of Merger Sub, (ii) conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation, or give rise to any obligation to make an offer to purchase or redeem any Indebtedness or capital stock or any loss of a benefit under, or result in the creation of any Lien upon any of the properties or assets of Parent or any of its Subsidiaries under, or require any consent or approval under, any provision of any Contract to which Parent or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound or (iii) conflict with, or result in any violation of any provision of, subject to the filings and other matters referred to in Section 4.3(b), any Judgment or Law, in each case, applicable to Parent or any of its Subsidiaries or their respective properties or assets, other than, in the case of clauses (ii) and (iii) above, any matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.

(b)         The execution and delivery of this Agreement by Parent and Merger Sub do not, and the consummation by Parent and Merger Sub of the transactions contemplated by this Agreement will not, require any Consent or filing or registration with, or notification to, any Governmental Entity, except for applicable requirements of the Exchange Act, the Securities Act, “blue sky”  laws, the HSR Act and any applicable foreign competition laws, filing and recordation of appropriate merger documents as required by the MGCL and the rules of the NASDAQ or other stock exchange, if applicable, and except where failure to obtain such Consents, or to make such filings, registrations or notifications, would not have, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

4.4         Litigation and Liabilities.  As of the date of this Agreement, there is no Proceeding pending or, to the Knowledge of Parent, threatened against Parent or any of its Subsidiaries or any of their respective properties or assets that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.  As of the date of this Agreement, there is no Judgment outstanding against or, to the Knowledge of Parent, investigation by any Governmental Entity involving Parent or any of its Subsidiaries or any of their respective properties or assets that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.

4.5         Parent Ownership of Company Securities.  None of Parent or any of its Subsidiaries is, or during the past five (5) years has been an “interested stockholder” (as defined in Section 3-601(j) of the MGCL) of the Company. None of Parent nor any its Subsidiaries is a “beneficial owner” (as defined in Section 3-601(d) of the MGCL) of any Shares as of the date hereof.

4.6        Offer Documents.  The information supplied or to be supplied by Parent or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9 (and any amendment thereof or supplement thereto), will not, when filed with the SEC or when distributed or disseminated to the Company’s stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.  The Offer Documents, and all amendments thereto, and any other document required to be filed with the SEC or required to be distributed or otherwise disseminated to the Company’s stockholders in connection with the transactions contemplated hereby, will comply as to form in all material respects with the provisions of Rule 14d-3 of the Exchange Act or any other applicable Laws, as the case may be, and will not, when filed with the SEC or when distributed or disseminated to the Company’s stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that Parent and Merger Sub make no representation or warranty with respect to statements made in the Offer Documents or any other document filed or distributed by Parent or Merger Sub based solely on information furnished by or on behalf of the Company in writing for inclusion or incorporation by reference therein.

4.7         Brokers and Finders.  No broker, investment banker, financial advisor or other Person, other than Barclays Capital Inc. (the “Parent Financial Advisor”), the fees and expenses of which will be paid by Parent, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of Parent.

4.8         Sufficiency of Funds.  As of the Effective Time, Parent and Merger Sub will have available to them cash and other sources of immediately available funds sufficient to pay the aggregate Merger Consideration and all other cash amounts payable pursuant to this Agreement. Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations to consummate the Merger or any of the other transactions contemplated by this Agreement, are not subject to, or conditioned on, the receipt or availability of any funds or financing.

4.9         Ownership and Operations of Merger Sub.  Parent directly or indirectly owns beneficially all of the outstanding shares of common stock of Merger Sub, free and clear of any Liens other than Liens imposed under any federal or state securities Laws. Merger Sub was formed solely for the purpose of engaging in the Merger, has engaged in no other business activities and has conducted its operations only as contemplated hereby. The authorized shares of common stock of Merger Sub consist of 100,000 shares, 100 of which are validly issued and outstanding.

4.10       No Other Representations and Warranties.  Except for the representations and warranties of Parent and Merger Sub contained in this Article IV, Parent and Merger Sub are not making and have not made, and no other Person is making or has made on behalf of Parent or Merger Sub, any express or implied representation or warranty in connection with this Agreement or the transactions contemplated hereby. Nothing in this Section 4.10 shall limit any claim for fraud.

5.1         Conduct of Business by the Company.  (a)  Except for matters set forth in Section 5.1 of the Company Disclosure Letter or otherwise expressly required by this Agreement (including to effect any of the transactions contemplated hereby) or required by applicable Law or with the prior written consent of Parent, from the date of this Agreement to the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall, and shall cause each Company Subsidiary to, (i) conduct its business in the ordinary course of business and (ii) use reasonable best efforts to (x) preserve intact its business organization, assets and advantageous business relationships with its customers, suppliers, licensors, licensees and distributors and (y) keep available the services of its current officers and employees.

(b)         In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 5.1 of the Company Disclosure Letter or otherwise expressly required by this Agreement or required by applicable Law or with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause each Company Subsidiary not to, do any of the following:

(i)          (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or any combination thereof) in respect of, any of its capital stock, other equity interests or voting securities, other than dividends and distributions by a direct or indirect wholly owned Company Subsidiary to its parent, (B) split, combine, subdivide, adjust, amend the terms of, or reclassify any of its capital stock, other equity interests or voting securities, or securities convertible into or exchangeable or exercisable for capital stock or other equity interests or voting securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, other equity interests or voting securities or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, directly or indirectly, any capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than (1) the withholding of Shares to satisfy tax obligations with respect to awards granted pursuant to the Company Stock Plans, (2) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards and (3) in connection with the conversion of Company Notes in accordance with the terms of the Company Indenture;

(ii)         issue, deliver, sell, grant, transfer, dispose of, pledge or otherwise encumber or subject to any Lien (except for transactions solely among the Company and any wholly owned Company Subsidiary and for any Liens in favor of the administrative agent under the Company’s existing first lien and second lien credit agreements in effect as of the date hereof), or enter into any Contract with respect to, (A) any shares of capital stock of the Company or any Company Subsidiary, (B) any other equity interests or voting securities of the Company or any Company Subsidiary, (C) any securities convertible into or exchangeable or exercisable for capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, (D) any warrants, calls, options or other rights to acquire any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, or (E) any Company Voting Debt except, in each case of (A)-(E), for issuing Shares (i) in respect of equity or equity-based awards outstanding as of the date hereof under the Company Stock Plans and (ii) as may be required in accordance with the terms of the Company Indenture in effect as of the date hereof;

(iii)        amend the Company Charter or the Company Bylaws or the equivalent organizational documents of any Company Subsidiary, except as may be required by applicable Law;

(iv)        except pursuant to the terms of any Company Plan or as required by applicable Law: (A) materially increase the compensation (including salaries, wages and bonuses) or benefits payable to any employee of the Company or a Company Subsidiary, except (1) in connection with ordinary course reviews or promotions for the Company’s 2020 fiscal year, which increases, if any, shall be consistent with past practice and which shall not exceed 3% of the aggregate Company expense for compensation and benefits as of the date hereof; and (2) increases in base salary (and, to the extent based on a percentage of base salary, corresponding increases in annual bonus targets) made in connection with promotions for employees with annual base salary not in excess of $200,000 made in the ordinary course of business, (B) grant any new change in control, severance, retention or other similar bonus to, or enter into or amend the terms of any employment agreement with, any employee of the Company or a Company Subsidiary, (C) grant any equity awards to any employee of the Company or a Company Subsidiary, except for sign-on equity grants to new employees made at levels and at times consistent with past practice for such position, and which provide for the ability of a successor to the Company in a change of control transaction to assume or roll such awards, (D) establish, amend, terminate or materially increase the benefits or costs provided under any Company Plan that is a health, welfare or retirement plan, (E) accelerate the vesting or payment of, or take any action to fund, any benefit or payment provided to employees or service providers of the Company or the Company Subsidiaries; or (F) issue any Shares in connection with a Purchase Date (as defined in the ESPP) pursuant to the ESPP as a primary issuance;

(v)          make any change in financial accounting methods, principles or practices, except insofar as required by GAAP (after the date of this Agreement);

(vi)         directly or indirectly (A) acquire or agree to acquire or (B) divest or agree to divest, in any transaction any equity interest in or business or division of any Person, including by merger, consolidation, or acquisition of assets (other than any transaction solely between the Company and a wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries) if, solely in the case of clause (A), the amount of the consideration paid or transferred by the Company and the Company Subsidiaries in connection with any such transactions would exceed $2,000,000 individually or $5,000,000 in the aggregate;

(vii)        sell, lease (as lessor), license, covenant not to assert, mortgage, sell, transfer, abandon, allow to lapse, and leaseback, pledge or otherwise encumber or subject to any Lien (other than any Permitted Lien), or otherwise dispose of any material properties, rights or assets (other than sales of products or services in the ordinary course of business) or any interests therein that individually have a fair market value in excess of $2,000,000 or in the aggregate have a fair market value in excess of $5,000,000, except (A) pursuant to Company Material Contracts in effect on the date of this Agreement (or entered into after the date of this Agreement without violating the terms of this Agreement), (B) any of the foregoing with respect to inventory in the ordinary course of business, (C) any of the foregoing with respect to obsolete or worthless equipment in the ordinary course of business, (D) in relation to mortgages, liens and pledges to secure Indebtedness for borrowed money permitted to be incurred under Section 5.1(b)(viii) and guarantees thereof or (E) for any transactions solely among the Company and any wholly owned Company Subsidiary in the ordinary course of business;

(viii)      (x) incur, guarantee or assume, directly or indirectly, any Indebtedness, except for (A) Indebtedness incurred in the ordinary course of business in respect of obligations under a lease that are required to be capitalized for financial reporting purposes under GAAP (with the amount of Indebtedness in respect of any such lease being the capitalized amount thereof that would appear on a balance sheet prepared in accordance with GAAP and which amount shall not exceed $2,000,000), (B) intercompany Indebtedness solely among the Company and the wholly owned Company Subsidiaries in the ordinary course of business, or (C) making borrowings under the Company’s revolving credit facility (as existing on the date hereof) solely for purposes of funding capital expenditures made in accordance with clause (ix) or working capital requirements, in each case, in the ordinary course of business; or (y) make any loans, or advances to, or capital contributions or investments in, any Person, or waive, settle, cancel or release any amounts owed to the Company or any Company Subsidiary, including grants of material refunds, credits, rebates and allowances;

(ix)        make, or agree or commit to make any capital expenditure in excess of $3,000,000 individually or in the aggregate for all such capital expenditures that are not contemplated by the FY 2019 capital expenditure forecast (copies of which were previously provided to Parent) provided that such expenditures are in the ordinary course of business;

(x)         commence, waive, release, assign, settle or compromise any Proceeding, other than waivers, releases, assignments, settlements or compromises in the ordinary course of business that involve only the payment of monetary damages not in excess of $2,500,000 in the aggregate;

(xi)        enter into, modify, amend, extend, renew, replace or terminate any collective bargaining or other labor union Contract applicable to the employees of the Company or any of the Company Subsidiaries;

(xii)          other than in the ordinary course of business, materially amend or modify, terminate, or release, assign or waive any rights under, any Company Material Contract, or any teaming agreement to which the Company or any Company Subsidiary is a party or enter into, materially amend or modify, terminate, or release, assign or waive any rights under, any Contract that would be a Company Material Contract if it had been entered into prior to the date of this Agreement;

(xiii)      except as required by applicable Law, (A) make, change or revoke any material Tax election; (B) change any material method of Tax accounting or annual Tax accounting period; (C) file any material amendment to a Tax Return; (D) settle or compromise any material Proceeding relating to Taxes; (E) obtain or request any material Tax ruling or closing agreement; (F) take any position on any material income Tax Return if in the Company’s Tax Return preparer’s reasonable judgement such position is not “more likely than not” to be sustained; or (G) surrender any right to obtain a material Tax refund;