Agreement and Plan of Merger dated as of December 17, 2022 by and among Enghouse Interactive, Inc., Cosmos Merger Sub, Inc., and Qumu Corporation

EX-2.1 2 ex2-1.htm

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

ENGHOUSE INTERACTIVE, INC.,

Cosmos Merger Sub, Inc.

and

QUMU CORPORATION

DECEMBER 17, 2022

TABLE OF CONTENTS

		Page
ARTICLE I THE MERGER TRANSACTIONS		2

Section 1.1	The Offer	2
Section 1.2	Company Actions	5
Section 1.3	The Merger	6
Section 1.4	Closing	7
Section 1.5	Effective Time	7
Section 1.6	Merger Without Meeting of Shareholders	7
Section 1.7	Effects of the Merger	7
Section 1.8	Articles of Incorporation	7
Section 1.9	Bylaws	7
Section 1.10	Directors	7
Section 1.11	Officers	8
ARTICLE II EFFECT OF THE MERGER ON CAPITAL STOCK		8

Section 2.1	Conversion of Capital Stock	8
Section 2.2	Surrender of Certificates and Book-Entry Shares	9
Section 2.3	Company Equity Awards; Company Warrants	11
Section 2.4	Dissenting Shares	13

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY		14

Section 3.1	Organization and Power	14
Section 3.2	Foreign Qualifications	15
Section 3.3	Corporate Authorization	15
Section 3.4	Enforceability	16
Section 3.5	Subsidiaries	16
Section 3.6	Governmental Authorizations	16
Section 3.7	Non-Contravention	16
Section 3.8	Capitalization	17
Section 3.9	SEC Reports	19
Section 3.10	Financial Statements; Internal Controls	20
Section 3.11	Undisclosed Liabilities	21
Section 3.12	Absence of Certain Changes	21
Section 3.13	Litigation	22
Section 3.14	Material Contracts	22
Section 3.15	Benefit Plans	24
Section 3.16	Labor Relations; Employee Matters	26
Section 3.17	Taxes	27
Section 3.18	Environmental Matters	30
Section 3.19	Intellectual Property	30
Section 3.20	Privacy and Data Protection Matters	32
Section 3.21	Real Property	33
Section 3.22	Insurance	33
Section 3.23	Permits	34

Section 3.24	Compliance with Laws	34
Section 3.25	Suppliers	35
Section 3.26	Customers	35
Section 3.27	Affiliated Transactions	35
Section 3.28	Opinion of Financial Advisor	35
Section 3.29	Brokers	36
Section 3.30	State Takeover Laws	36
Section 3.31	No Rights Agreement	36
Section 3.32	No Other Representations or Warranties	36

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB		36

Section 4.1	Organization and Power	36
Section 4.2	Corporate Authorization	37
Section 4.3	Governmental Authorizations	37
Section 4.4	Non-Contravention	37
Section 4.5	Capitalization; Interim Operations of Merger Sub; Ownership of Common Stock	38
Section 4.6	Sufficient Funds	38
Section 4.7	Absence of Arrangements with Management and Principal Shareholders	38
Section 4.8	Litigation	39
Section 4.9	Brokers	39
Section 4.10	Independent Investigation	39

ARTICLE V COVENANTS		40

Section 5.1	Conduct of Business of the Company	40
Section 5.2	Conduct of Parent and Merger Sub	43
Section 5.3	Access to Information; Confidentiality	43
Section 5.4	No Solicitation	44
Section 5.5	Terminated Plans; Employees	47
Section 5.6	Directors’ and Officers’ Indemnification and Related Insurance	47
Section 5.7	Reasonable Best Efforts	49
Section 5.8	Consents; Filings; Further Action	50
Section 5.9	Public Announcements	50
Section 5.10	Fees and Expenses	51
Section 5.11	Financing	51
Section 5.12	Rule 16b-3	52
Section 5.13	Notification of Certain Matters	52
Section 5.14	Delisting	53
Section 5.15	Rule 14d-10	53
Section 5.16	Takeover Laws	53
Section 5.17	Resignations	53

ARTICLE VI CONDITIONS		53

Section 6.1	Conditions to Each Party’s Obligation to Effect the Merger	53

Section 6.2	Frustration of Closing Conditions	53

ARTICLE VII TERMINATION, AMENDMENT AND WAIVER		54

Section 7.1	Termination by Mutual Consent	54
Section 7.2	Termination by Either Parent or the Company	54
Section 7.3	Termination by Parent	54
Section 7.4	Termination by the Company	55
Section 7.5	Effect of Termination	55
Section 7.6	Fees Following Termination	55

ARTICLE VIII MISCELLANEOUS		57

Section 8.1	Certain Definitions	57
Section 8.2	Interpretation	64
Section 8.3	No Survival	65
Section 8.4	Governing Law	65
Section 8.5	Submission to Jurisdiction	66
Section 8.6	WAIVER OF JURY TRIAL	66
Section 8.7	Notices	66
Section 8.8	Amendment	67
Section 8.9	Extension; Waiver	67
Section 8.10	Entire Agreement	68
Section 8.11	No Third-Party Beneficiaries	68
Section 8.12	Severability	68
Section 8.13	Rules of Construction	68
Section 8.14	Assignment	68
Section 8.15	Specific Performance	69
Section 8.16	Counterparts; Effectiveness	69
Section 8.17	Non-Recourse	69

iii

INDEX OF DEFINED TERMS

Term		Section
Acceptable Confidentiality Agreement		Section 8.1(a)
Acquisition Agreement		Section 5.4(d)
Adverse Recommendation Change		Section 5.4(d)
Affiliate		Section 8.1(b)
Agreement		Preamble
Anti-Corruption Laws		Section 3.24(b)
Articles of Merger		Section 1.5
Associated Party		Section 8.1(c)
Book-Entry Shares		Section 2.1(c)(ii)
Business Day		Section 8.1(d)
Certificates		Section 2.1(c)(ii)
Chosen Courts		Section 8.5
Claim		Section 5.6(b)
Closing		Section 1.4
Closing Date		Section 1.4
Code		Section 2.2(f)
Common Stock		Recitals
Company		Preamble
Company 2021 PSU		Section 2.3(a)(iii)
Company 2022 PSU		Section 2.3(a)(iii)
Company 401(k) Plan		Section 5.5
Company Achieved PSU		Section 2.3(a)(iii)
Company Assets		Section 3.7
Company Balance Sheet		Section 3.11
Company Benefit Plan		Section 3.15(a)
Company Board		Recitals
Company Board Recommendation		Recitals
Company Common Stock		Section 3.8(a)
Company Disclosure Schedule		Article III
Company Employee Plans		Section 3.15(a)
Company Equity Awards		Section 2.3(a)(v)
Company Financial Advisor		Section 3.28
Company In Licenses		Section 3.19(e)
Company IP Contracts		Section 5.01(k)
Company IP Licenses		Section 3.19(e)
Company Material Adverse Effect		Section 8.1(f)
Company Option		Section 2.3(a)(i)
Company Organizational Documents		Section 8.1(g)
Company Out Licenses		Section 3.19(e)
Company Preferred Stock		Section 3.8(a)
Company Performance Stock Units		Section 2.3(a)(iv)
Company Qualified Plan		Section 3.15(d)
Company Registered Intellectual Property		Section 3.19(a)
Company Restricted Stock Awards		Section 2.3(a)(ii)

Term		Section
Company RSU Awards		Section 2.3(a)(ii)
Company SEC Reports		Section 8.1(h)
Company Stock Awards		Section 3.8(d)
Company Stock Plan		Section 8.1(e)
Compensation Committee		Section 2.3(a)(iii)
Confidentiality Agreement		Section 5.3(b)
Contract		Section 8.1(j)
COVID-19		Section 8.1(f)(iv)
Dissenting Shares		Section 2.4(a)
DOL		Section 3.15(b)
Effective Time		Section 1.5
Enforceability Exceptions		Section 8.1(l)
Environmental Laws		Section 8.1(m)
ERISA		Section 3.15(a)
ERISA Affiliate		Section 8.1(n)
Exchange Act		Section 3.6(b)
Excluded Shares		Section 2.1(b)
Expenses		Section 5.10
Expiration Time		Section 1.1(c)
Export Controls		Section 3.24(c)(i)
FAR		Section 3.24(c)(i)
FCPA		Section 3.24(b)
GAAP		Section 3.10(a)(ii)
Governmental Authority		Section 8.1(o)
Governmental Authorizations		Section 3.6
Hazardous Materials		Section 8.1(q)
Import Restrictions		Section 3.24(c)(i)
Indebtedness		Section 5.1(i)
Indemnitee or Indemnitees		Section 5.6(a)
Initial Expiration Time		Section 1.1(c)
Intellectual Property		Section 8.1(r)
Intervening Event		Section 8.1(t)
IRS		Section 3.15(b)
ITAR		Section 3.24(c)(i)
Knowledge		Section 8.1(v)
Law		Section 8.1(x)
Legal Actions		Section 3.13
Lender Consent		Section 5.11
Liabilities		Section 3.11
Liens		Section 8.1(x)
Malicious Code		Section 3.20(c)
Material Contracts		Section 3.14
Maximum Premium		Section 5.6(c)
MBCA		Recitals
Merger		Recitals

Term		Section
Merger Consideration		Section 2.1(c)(i)
Merger Sub		Preamble
Merger Transactions		Recitals
Minimum Condition		Annex I
Nasdaq		Section 1.1(d)
Non-Party Affiliates		Section 8.17
Notice Period		Section 5.4(e)(iii)
OFAC		Section 3.24(c)(i)
Offer		Recitals
Offer Acceptance Time		Section 1.1(e)
Offer Conditions		Section 1.1(a)
Offer Documents		Section 1.1(i)
Offer Price		Recitals
Option Consideration		Section 2.3(a)(i)
Orders		Section 8.1(z)
Outside Date		Section 7.2(a)
Owned Intellectual Property		Section 8.1(bb)
Parent		Preamble
Parent Assets		Section 4.4
Parent Material Adverse Effect		Section 8.1(cc)
Paying Agent		Section 2.2(a)
Payment Fund		Section 2.2(b)
Payoff Amount		Section 5.11
Payoff Letter		Section 5.11
PEO Plans		Section 3.15(a)
Permits		Section 3.23
Permitted Lien		Section 8.1(dd)
Person		Section 8.1(ee)
Personal Data		Section 8.1(ff)
Real Property Leases		Section 3.21(b)
Representatives		Section 8.1(gg)
Rights or rights		Section 8.1(hh)
Schedule 14D-9		Section 1.2
Schedule TO		Section 1.1(i)
SEC		Section 3.6(b)
Securities Act		Section 3.9
Shareholder List Date		Section 1.2(c)
Special Committee		Section 3.3(c)
Subject Indebtedness		Section 5.11
Subsidiary		Section 8.1(ii)
Superior Proposal		Section 8.1(jj)
Support Agreements		Recitals
Surviving Bylaws		Section 1.9
Surviving Charter		Section 1.8
Surviving Corporation		Section 1.3
Takeover Law		Section 3.30
Takeover Proposal		Section 8.1(kk)
Tax Returns		Section 8.1(ll)
Taxes		Section 8.1(mm)
Terminated Plans		Section 5.5
Termination Fee		Section 7.6(b)
Top Customer		Section 3.26
Top Supplier		Section 3.25
Trade Secrets		Section 8.1(nn)
Trademarks		Section 8.1(s)
WARN Act		Section 3.16(c)
Willful and Material Breach		Section 8.1(pp)

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of December 17, 2022 (this “Agreement”), is by and among Enghouse Interactive, Inc., a Delaware corporation (“Parent”), Cosmos Merger Sub, Inc., a Minnesota corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Qumu Corporation, a Minnesota corporation (the “Company”).

RECITALS

WHEREAS, Parent desires to acquire the Company on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, in furtherance of the acquisition of the Company by Parent, upon the terms and subject to the conditions set forth in this Agreement, Parent has agreed to cause Merger Sub to commence a cash tender offer (as it may be extended and amended from time to time as permitted under, or required by, this Agreement, the “Offer”) to purchase all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) at a price per share of $0.90 (such amount, or any other amount per share paid in the Offer in accordance with this Agreement, the “Offer Price”), net to the seller in cash, without interest and subject to any required withholding of Taxes;

WHEREAS, it is proposed that, on the terms and subject to the conditions set forth in this Agreement, following the consummation of the Offer, Merger Sub shall, in accordance with Section 302A.613(4) of the Minnesota Business Corporation Act (the “MBCA”) merge with and into the Company (the “Merger”), with the Company surviving the Merger and pursuant to which each share of Common Stock that is not validly tendered and irrevocably accepted for payment pursuant to the Offer (except as otherwise provided herein) will be converted into the right to receive the Offer Price;

WHEREAS, Parent, Merger Sub and the Company acknowledge and agree that the Merger shall be governed by and effected under Section 302A.613(4) of the MBCA and, subject to the terms of this Agreement, effected as soon as practicable following the consummation (as defined in Section 302A.613(4) of the MBCA) of the Offer;

WHEREAS, the board of directors of the Company (the “Company Board”) has (i) determined that the Offer, the Merger and the other transactions contemplated hereby (the “Merger Transactions”), are fair to and in the best interests of the Company and its shareholders, (ii) approved this Agreement and the Merger Transactions and declared it advisable that the Company enter into this Agreement and consummate the Merger Transactions, (iii) resolved that this Agreement and the Merger shall be governed by and effected under Section 302A.613(4) of the MBCA and (iv) resolved to recommend that the Company’s shareholders tender their shares of Common Stock in the Offer (such recommendation, the “Company Board Recommendation”);

WHEREAS, the board of directors of Merger Sub has approved and declared it advisable for Merger Sub to enter into this Agreement and consummate the Offer and the Merger Transactions;

WHEREAS, the board of directors of Parent has approved this Agreement and the Merger Transactions, and Parent, in its capacity as the sole shareholder of Merger Sub, has agreed to adopt this Agreement;

WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to Parent’s and Merger Sub’s willingness to enter into this Agreement, Parent and Merger Sub have entered into agreements with the Persons listed on Schedule 1, pursuant to which, among other things, such shareholders have, subject to the conditions in such agreement, irrevocably agreed to tender the shares of Common Stock beneficially owned by them in the Offer (collectively, as each of the same may be amended from time to time pursuant to its respective terms, the “Support Agreements”); 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 hereto agree as follows:

Article I

THE MERGER TRANSACTIONS

Section 1.1 The Offer.

(a) Upon the terms and subject to the conditions of this Agreement (including Article VII), as promptly as reasonably practicable following the date hereof, but in any event no later than the tenth Business Day after the initial public announcement of the execution of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex I (as they may be amended in accordance with this Agreement, the “Offer Conditions”).

(b) To the extent permitted by Law, Parent and Merger Sub expressly reserve the right, at any time, to waive, in whole or in part, any Offer Condition (other than the Minimum Condition), to increase the Offer Price or to modify the terms of the Offer in a manner consistent with the terms of this Agreement; provided, however, that, without the prior written consent of the Company, neither Parent nor Merger Sub shall (i) reduce the maximum number of shares of Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, (v) modify or amend any existing Offer Conditions in a manner adverse to the holders of the Common Stock, (vi) except as otherwise required or expressly permitted by Section 1.1(d), extend or otherwise change the Expiration Time, (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.

(c) The Offer shall initially expire at midnight (Eastern Standard Time) (i.e., one minute after 11:59 p.m. Eastern Standard Time) on the date that is twenty (20) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).

(d) Subject to Article VII, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions, (i) for the minimum period required by any rule, regulation, interpretation or position of the SEC, the staff thereof or the Nasdaq Global Market (the “Nasdaq”) applicable to the Offer and (ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), in consecutive increments of at least five and up to ten Business Days each (with each such period to end at midnight (Eastern Standard Time) (i.e., one minute after 11:59 p.m. Eastern Standard Time), on the last Business Day of such period), or such other duration as may be agreed to by Parent and the Company, in order to permit the satisfaction of such Offer Condition(s); provided, however, that (A) in either case Merger Sub shall not be required to extend the Offer (1) to a date later than the Outside Date or (2) after the Company notifies, or is required to notify, Parent of a Takeover Proposal in accordance with Section 5.4(c), except to the extent that at least one (1) day prior to the then-scheduled Expiration Date (I) the Takeover Proposal giving rise to such notification has been withdrawn or the Company Board has rejected the Takeover Proposal giving rise to such notification, (II) the Company Board has reconfirmed the Board Recommendation (after receiving such Takeover Proposal), and (III) the withdrawal or rejection of such Takeover Proposal or such reconfirmation of the Board Recommendation shall have been publicly announced by the Company, (B) any such extension shall not be deemed to impair, limit, or otherwise restrict in any manner the rights of the parties hereto to terminate this Agreement pursuant to the terms of Article VII, and (C) with respect to clause (ii) above, if, at any such scheduled Expiration Time, the only Offer Condition that has not been so satisfied or waived is the Minimum Condition, then Merger Sub shall not be required to extend the Offer for more than one such additional increment (and shall not be required to extend the Offer at any subsequent Expiration Time at which the Minimum Condition is not satisfied), but shall be entitled, at its sole discretion, to extend the Offer for more than one such additional increment.

(e) On the terms and subject to the conditions of this Agreement, (i) at or as promptly as practicable following the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.

(f) The Offer Price payable in respect of each share of Common Stock shall be paid on the terms and subject to the conditions of this Agreement. The Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.

(g) Unless this Agreement is terminated pursuant to Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company in its sole discretion. In the event this Agreement is terminated pursuant to Article VII, Merger Sub shall promptly (and in any event within two (2) Business Days) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares of Common Stock to the tendering shareholders in accordance with applicable Law.

(h) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Common Stock the same economic effect as contemplated by this Agreement prior to such action.

(i) On the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and other appropriate ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”), and cause the Offer Documents to be disseminated to the holders of the Common Stock as and to the extent required by United States federal securities Laws. The Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel upon request all information concerning the Company that is required by the Exchange Act or other applicable Law to be set forth in the Offer Documents, and all other information concerning the Company that may be reasonably requested by Parent for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information supplied by it or on its behalf for inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to the holders of the Common Stock, in each case as and to the extent required by applicable Law. Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all written correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Unless there has been an Adverse Recommendation Change, prior to the filing of the Offer Documents and any amendment or supplement thereto with the SEC, dissemination thereof to the holders of the Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or any amendment, supplement, or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. Unless the Offer has been terminated in accordance with the terms of this Agreement, in the event that Parent or Merger Sub receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.

Section 1.2 Company Actions.

(a) The Company hereby approves of and consents to the Offer, the Merger and the other Merger Transactions.

(b) On the date the Offer Documents are filed with the SEC, the Company shall, concurrently with or immediately following, and in any event on the same Business Day as, the filing of the Schedule TO, file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule 14D-9”) containing, subject to Section 5.4, the Company Board Recommendation and shall disseminate the Schedule 14D-9 to the holders of the Common Stock as and to the extent required by United States federal securities Laws, including Rule 14d-9 under the Exchange Act. The Schedule 14D-9 shall also contain and constitute the notice to holders of Common Stock of the availability of dissenters’ rights in connection with the Merger required to be delivered to such holders by Section 302A.473 of the MBCA. The Company shall set the record date for the holders of Common Stock to receive such notice of dissenters’ rights as the same date as the Shareholder List Date and shall disseminate the Schedule 14D-9 including such notice of dissenters’ rights to such holders to the extent required by Section 302A.473 of the MBCA. Each of Parent and Merger Sub shall promptly furnish or otherwise make available to the Company or the Company’s legal counsel upon request all information concerning Parent and Merger Sub that is required by the Exchange Act or other applicable Law to be set forth in the Schedule 14D-9, and all other information concerning Parent and Merger Sub that may be reasonably requested by the Company for inclusion in the Schedule 14D-9. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it or on its behalf for inclusion or incorporation by reference in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the holders of the Common Stock, in each case as and to the extent required by applicable Law. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all written correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 and any amendment or supplement thereto (that does not contain or relate to a Takeover Proposal or an Adverse Recommendation Change) with the SEC or dissemination thereof to the holders of the Common Stock, or responding to any comments of the SEC with respect to such Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or amendment or supplement or response, and the Company shall give reasonable consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation contained in the Schedule 14D-9, to the extent that the Company Board Recommendation has not been withdrawn, amended or modified in accordance with Section 5.4. Unless the Offer has been terminated in accordance with the terms of this Agreement, in the event that the Company receives any comments from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.

(c) In connection with the Offer, the Company shall instruct its transfer agent to furnish Parent and Merger Sub or their respective designated agents promptly (and in any event no later than five Business Days after the date of this Agreement) and from time to time thereafter as requested by Parent or Merger Sub with mailing labels containing the names and addresses of the record holders of Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of shareholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of shareholders, security position listings and computer files) as Parent or Merger Sub may reasonably request in communicating the Offer to holders of Common Stock. The date of the list of shareholders used to determine the Persons to whom the Offer Documents and the Schedule 14D-9 are first disseminated is referred to as the “Shareholder List Date”. Subject to the requirements of applicable Law and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger Transactions, Parent, Merger Sub and their respective Affiliates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Merger Transactions, shall treat such information and materials in accordance with the terms and conditions of the Confidentiality Agreement, and, if this Agreement shall be terminated, will deliver to the Company or destroy (at the Company’s election) all copies of such information then in their possession or under their control promptly upon the written request of the Company.

Section 1.3 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the MBCA (including Section 302A.613(4) thereof), at the Effective Time, (a) Merger Sub shall be merged with and into the Company, (b) the separate corporate existence of Merger Sub shall cease and the Company shall continue its corporate existence under the MBCA as the surviving corporation in the Merger (the “Surviving Corporation”) and (c) the Surviving Corporation shall become a wholly-owned Subsidiary of Parent.

Section 1.4 Closing. Subject to the satisfaction or waiver of all of the conditions to closing contained in Article VI (other than those conditions that by their terms are to be satisfied at the Closing, but subject to such conditions being able to be satisfied), the closing of the Merger (the “Closing”) shall take place remotely by exchange of documents and signatures (or their electronic counterparts) at 10:00 a.m. (Eastern Standard Time) as soon as practicable following the consummation (as defined in Section 302A.613(4)) of the Offer, but in any event no later than the first Business Day following such satisfaction or waiver of such conditions, or (b) at such other place and time as Parent and the Company may agree in writing. The date on which the Closing occurs is referred to as the “Closing Date”.

Section 1.5 Effective Time. On the Closing Date, Parent and the Company shall cause articles of merger (the “Articles of Merger”) to be executed, signed, acknowledged and filed with the Secretary of State of the State of Minnesota in such form as is required by the relevant provisions of the MBCA, and shall make all other deliveries, filings or recordings required by the MBCA in connection with the Merger. The Merger shall become effective when the Articles of Merger has been duly filed with the Secretary of State of the State of Minnesota or at such other subsequent date or time as Parent and the Company may agree and specify in the Articles of Merger in accordance with the MBCA (the “Effective Time”).

Section 1.6 Merger Without Meeting of Shareholders. The Merger shall be governed by and effected under Section 302A.613(4) of the MBCA, without a vote of the shareholders of the Company. The parties agree to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable following the consummation (within the meaning of Section 302A.613(4) of the MBCA) of the Offer, without a vote of the shareholders of the Company in accordance with Section 302A.613(4) of the MBCA.

Section 1.7 Effects of the Merger. The Merger shall have the effects set forth in the MBCA, this Agreement and the Articles of Merger.

Section 1.8 Articles of Incorporation. The articles of incorporation of the Company shall, at the Effective Time, be amended and restated to read identically to the articles of incorporation of Merger Sub as in effect as of the date hereof (except that the name of the Surviving Corporation shall be Qumu Corporation), as set forth on Exhibit A, and, as so amended and restated, shall be the articles of incorporation of the Surviving Corporation (the “Surviving Charter”), until amended as provided therein and by applicable Law.

Section 1.9 Bylaws. The bylaws of Merger Sub in effect immediately before the Effective Time shall be, from and after the Effective Time, the bylaws of the Surviving Corporation (the “Surviving Bylaws”), except as to the name of the Surviving Corporation, until amended as provided in the Surviving Charter and the Surviving Bylaws and by applicable Law.

Section 1.10 Directors. The parties shall take all requisite action so that the directors of Merger Sub immediately before the Effective Time shall be, from and after the Effective Time, the directors of the Surviving Corporation until their respective successors are duly elected and qualified or until their earlier death, resignation or removal in accordance with the Surviving Charter, the Surviving Bylaws and applicable Law.

Section 1.11 Officers. The parties shall take all requisite action so that the officers of Merger Sub immediately before the Effective Time shall be, from and after the Effective Time, the officers of the Surviving Corporation until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Surviving Charter, the Surviving Bylaws and applicable Law.

Article II

EFFECT OF THE MERGER ON CAPITAL STOCK

Section 2.1 Conversion of Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any shares of capital stock of Merger Sub or the Company:

(a) Conversion of Merger Sub Capital Stock. Each share of capital stock of Merger Sub issued and outstanding immediately before the Effective Time shall be converted into and become one fully paid and non-assessable share of common stock, par value $0.01 per share, of the Surviving Corporation.

(b) Cancellation of Certain Shares. Each share of Common Stock owned by the Company as treasury stock or owned by Parent or Merger Sub (or their respective wholly-owned subsidiaries) immediately before the Effective Time or that was irrevocably accepted for purchase by Merger Sub in the Offer (collectively, the “Excluded Shares”) shall be canceled automatically and shall cease to exist, and no consideration shall be paid for those Excluded Shares.

(i) Each share of Common Stock issued and outstanding immediately before the Effective Time (other than Excluded Shares and Dissenting Shares) shall be converted automatically into and shall thereafter represent only the right to receive the Offer Price (the “Merger Consideration”), without interest and subject to any required withholding of Taxes.

(ii) All shares of Common Stock that have been converted pursuant to Section 2.1(c)(i) shall be canceled automatically and shall cease to exist, and the holders of (A) certificates which immediately before the Effective Time represented such shares (the “Certificates”) or (B) shares represented by book-entry immediately before the Effective Time (the “Book-Entry Shares”) shall cease to have any rights with respect to those shares, other than the right to receive the Merger Consideration in accordance with Section 2.2 and any dividends or other distributions with a record date prior to the Effective Time which may have been authorized by the Company and which remain unpaid at the Effective Time.

(d) Equitable Adjustment. 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 any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Stock, then the Merger Consideration shall be equitably adjusted to reflect such change.

Section 2.2 Surrender of Certificates and Book-Entry Shares.

(a) Paying Agent. Not less than three Business Days before the Closing Date, Parent shall (i) select a bank or trust company, satisfactory to the Company in its reasonable discretion, to act as the paying agent for the payment of the amounts to be paid pursuant to this Article II (the “Paying Agent”) and (ii) enter into a paying agent agreement with the Paying Agent on terms and conditions that are satisfactory to the Company in its reasonable discretion. Parent shall be responsible for all fees and expenses of the Paying Agent.

(b) Payment Fund. At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, for the benefit of the holders of Certificates and Book-Entry Shares, for payment in accordance with this Article II through the Paying Agent, sufficient funds for the payment of the aggregate Merger Consideration. Such funds provided to the Paying Agent are referred to as the “Payment Fund”.

(i) Letter of Transmittal. Promptly after the Effective Time, Parent shall cause the Paying Agent to mail the following to each holder of record of a share of Common Stock converted pursuant to Section 2.1(c)(i): (A) a letter of transmittal in customary form, specifying that delivery shall be effected, and risk of loss and title to such holder’s shares shall pass only upon proper delivery of Certificates to the Paying Agent or, in the case of Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal; and (B) instructions for surrendering such Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration.

(ii) Surrender of Shares. Upon surrender of a Certificate or of a Book-Entry Share for cancellation to the Paying Agent, together with a duly executed letter of transmittal and any other documents reasonably required by the Paying Agent, the holder of that Certificate or Book-Entry Share shall be entitled to receive, and the Paying Agent shall promptly pay in exchange therefor, the Merger Consideration payable and issuable in respect of the number of shares formerly evidenced by that Certificate or such Book-Entry Share less any required withholding of Taxes. Any Certificates and Book-Entry Shares so surrendered shall be canceled immediately. No interest shall accrue or be paid on any amount payable upon surrender of Certificates or Book-Entry Shares.

(iii) Unregistered Transferees. If any Merger Consideration is to be paid and issued to a Person other than the Person in whose name the surrendered Certificate or Book-Entry Share is registered, then the Merger Consideration may be paid or issued to such a transferee so long as (A) the surrendered Certificate or Book-Entry Share, as applicable, shall be properly endorsed and presented to the Paying Agent or shall otherwise be in proper form for transfer and is accompanied by all documents reasonably required by Parent to evidence and effect that transfer and (B) the Person requesting such payment or issuance (x) pays any applicable transfer Taxes or (y) establishes to the reasonable satisfaction of Parent and the Paying Agent that all such transfer Taxes have already been paid or are not applicable.

(iv) No Other Rights. Until surrendered in accordance with this Section 2.2(c), each Certificate and each Book-Entry Share in respect of shares of Common Stock converted into the right to receive Merger Consideration pursuant to Section 2.1(c)(i) shall be deemed, from and after the Effective Time, to represent only the right to receive the Merger Consideration, subject to the Surviving Corporation’s obligation to pay any dividends or other distributions with a record date prior to the Effective Time which may have been authorized by the Company and which remain unpaid at the Effective Time. The Merger Consideration paid and issued upon the surrender of any Certificate or Book-Entry Share in accordance with the terms of this Article II shall be deemed to have been paid and issued in full satisfaction of all rights pertaining to such Certificate or Book-Entry Share and, in the case of a Certificate, the shares of Common Stock formerly represented by it.

(d) Lost, Stolen or Destroyed Certificates. If any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if reasonably required by the Surviving Corporation, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall pay and issue the Merger Consideration to such Person in respect of the shares of Common Stock represented by such Certificate as contemplated by this Article II.

(e) No Further Transfers. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of the shares of Common Stock that were outstanding immediately before the Effective Time.

(f) Required Withholding. Parent, Merger Sub, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold, or cause to be deducted and withheld, from any amounts otherwise payable under this Agreement (pursuant to Article I, this Article II, or otherwise) such amounts as are required to be deducted or withheld therefrom under the Internal Revenue Code of 1986, as amended, including any successor provisions and transitions rules, whether or not codified (the “Code”), or any applicable state, local or non-U.S. Tax Law. To the extent that any amounts are so deducted and withheld and paid to the appropriate Governmental Authorities, those amounts shall be treated as having been paid to the Person in respect of whom such deduction or withholding was made for all purposes under this Agreement.

(g) No Liability. Notwithstanding any provision of this Agreement to the contrary, none of the parties hereto, the Surviving Corporation or the Paying Agent shall be liable to any Person for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(h) Investment of Payment Fund. The Paying Agent shall invest the Payment Fund as directed by Parent; provided, that such investment shall be in (i) short-term direct obligations of the United States of America, (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) short-term commercial paper rated the highest quality by either Moody’s Investors Service, Inc. or Standard and Poor’s Ratings Services, (iv) certificates of deposit, bank repurchase agreements or bankers’ acceptances of commercial banks with capital exceeding $10 billion, or (v) mutual funds investing solely in such assets. Any such investment shall be for the benefit, and at the risk, of Parent, and any interest or other income resulting from such investment shall be for the benefit of Parent; provided, that no such investment or losses thereon shall affect the Merger Consideration payable to the holders of Common Stock immediately prior to the Effective Time and Parent shall promptly provide, or shall cause the Surviving Corporation to promptly provide, additional funds to the Paying Agent for the benefit of such holders of Common Stock in the amount of any such losses to the extent necessary to satisfy the obligations of Parent and the Surviving Corporation under this Article II.

(i) Termination of Payment Fund. Any portion of the Payment Fund that remains unclaimed by the holders of Certificates or Book-Entry Shares six months after the Effective Time shall be delivered by the Paying Agent to Parent. Thereafter, any holder of Certificates or Book-Entry Shares who has not complied with this Article II shall look only to Parent and/or the Surviving Corporation, which shall remain responsible for payment and issuance of the applicable Merger Consideration.

Section 2.3 Company Equity Awards; Company Warrants.

(a) Treatment of Company Equity Awards.

(i) As of the Effective Time, each option to acquire shares of Common Stock granted under the Company Stock Plan or otherwise (each, a “Company Option”) and outstanding immediately before the Effective Time, whether or not then exercisable or vested, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of that Company Option, shall be canceled and converted into the right to receive from Parent or the Surviving Corporation an amount in cash, without interest, equal to the Option Consideration (as defined below) multiplied by the aggregate number of shares of Common Stock subject to such Company Option immediately before the Effective Time. “Option Consideration” means the excess, if any, of the Merger Consideration over the per share exercise price of the applicable Company Option.

(ii) As of the Effective Time, each share of Common Stock subject to time-based restricted stock awards (“Company Restricted Stock Awards”) or time-based restricted stock unit awards (“Company RSU Awards”) and outstanding immediately before the Effective Time, whether or not then restricted or subject to vesting or risk of forfeiture, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of that Company Restricted Stock Award or Company RSU Award, shall be canceled and converted into the right to receive from Parent or the Surviving Corporation an amount in cash, without interest, equal in value to the Merger Consideration multiplied by the aggregate number of shares of Common Stock subject to such Company Restricted Stock Award or Company RSU Award immediately before the Effective Time.

(iii) With respect to each performance-based performance stock unit award (“Company Performance Stock Units”) (A) granted in 2021 (a “Company 2021 PSU”) with a performance period ending December 31, 2022 and (B) granted in 2022 (a “Company 2022 PSU”) with a performance period ending December 31, 2022, the Compensation Committee of the Company Board (the “Compensation Committee”) shall, prior to the Offer Acceptance Time, determine the “Percentage Achievement” for the Company 2021 PSUs and Company 2022 PSUs based on the actual performance of the Company against the “Performance Goals” for the 2022 performance period as described in the applicable award agreement. The number of Company 2021 PSUs multiplied by the Percentage Achievement determined by the Compensation Committee and the number of Company 2022 PSUs multiplied by the Percentage Achievement determined by the Compensation Committee shall be referred to as the “Company Achieved PSU”. As of the Effective Time, each Company Achieved PSU, whether or not then restricted or subject to vesting or risk of forfeiture, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of such Company Achieved PSU, shall be canceled and converted into the right to receive from Parent or the Surviving Corporation an amount in cash, without interest, equal in value to the Merger Consideration multiplied by the aggregate number of shares of Common Stock subject to such Company Achieved PSU immediately before the Effective Time.

(iv) The Compensation Committee shall take such action prior to the Effective Time such that as of the Effective Time, each Company Performance Stock Unit, other than the Company Achieved PSUs, that is outstanding immediately before the Effective Time, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of that Company Performance Stock Unit, shall be canceled and forfeited to the Company without payment of any consideration therefor as of the Effective Time.

(v) The payment of the amounts, if any, set forth in Section 2.3(a) in respect of the Company Options, Company Restricted Stock Awards, Company RSU Awards, and Company Performance Stock Units (collectively, the “Company Equity Awards”) shall be reduced by any Tax withholding required under the Code or any applicable state, local or foreign Tax Law. To the extent that any amounts are so withheld and paid to the appropriate Governmental Authorities, those amounts shall be treated as having been paid to the holder of that Company Equity Award for all purposes under this Agreement.

(vi) For the avoidance of doubt, as of the Effective Time, each share of Common Stock previously vested and issued under the Company Stock Plan and outstanding as of the Effective Time shall be treated as set forth in Section 2.1 and Section 2.2, and by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of such shares, any applicable restrictions or repurchase rights with respect to such shares shall lapse in full as of immediately before the Effective Time.

(b) Parent Obligations in Respect of Company Equity Awards.

(i) Parent shall, and shall cause the Surviving Corporation to, at all times from and after the Effective Time, maintain sufficient liquid funds to satisfy their obligations to holders of Company Equity Awards pursuant to this Section 2.3.

(ii) As promptly as practicable following the Effective Time and in any event not later than the second regular Surviving Corporation payroll date thereafter, Parent shall cause the Surviving Corporation to pay through its payroll system and subject to Section 2.3(a)(v), (A) to each applicable holder of a Company Option, in such amount due and payable to such holder pursuant to Section 2.3(a)(i) in respect of such Company Option, if any, (B) to each applicable holder of a Company Restricted Stock Award or a Company RSU Award, in such amount due and payable to such holder pursuant to Section 2.3(a)(ii) in respect of such Company Restricted Stock Award or Company RSU Award, as applicable, if any, and (C) to each applicable holder of a Company Achieved PSU, in such amount due and payable to such holder pursuant to Section 2.3(a)(iii) in respect of such Company Achieved PSU. Notwithstanding the foregoing, to the extent that any amounts payable under this Section 2.3 relate to a nonqualified deferred compensation subject to Section 409A of the Code, Parent, the Surviving Corporation or the applicable Subsidiary shall pay such amounts as promptly as is practicable following the earliest time permitted under the terms of the applicable agreement, plan or arrangement relating to such nonqualified deferred compensation and that will not trigger a Tax or penalty under Section 409A of the Code (after taking into account actions taken under Treasury Regulations Section 1-409A-3(j)(4)(ix)), but in no event later than five Business Days after such time.

(c) Company Stock Plan Termination. As of the Effective Time, the Company Stock Plan shall be terminated and no further shares of Common Stock or Company Equity Awards or other rights with respect to shares of Common Stock shall be granted thereunder. Following the Effective Time, no such Company Equity Award or other right that was outstanding immediately prior to the Effective Time shall remain outstanding and each former holder of any such Company Equity Award shall cease to have any rights with respect thereto, except the right to receive the consideration set forth in this Section 2.3.

(d) Further Board Actions. Prior to the Effective Time, the Company Board, (or, if appropriate, any committee thereof) shall adopt appropriate resolutions and take such other actions (including the satisfaction of any notice requirements set forth in the Company Stock Plan) as are reasonably necessary to effect the transactions described in this Section 2.3.

(e) Warrant Notices. Prior to the Effective Time, the Company shall deliver to the holders of the Company Warrants notices consistent with the terms and conditions of the applicable Company Warrant.

(f) Treatment of Warrants. At or prior to the Effective Time, the Company shall take all necessary action so that each Company Warrant shall be cancelled and extinguished at the Effective Time, including, in the case of the Hale Warrant, paying any required purchase price in cash in accordance with Section 9(c) of the Hale Warrant. For the avoidance of doubt, as of the Effective Time, each share of Common Stock previously issued under a Company Warrant and outstanding as of the Effective Time shall be treated as set forth in Section 2.1 and Section 2.2.

Section 2.4 Dissenting Shares.

(a) Notwithstanding any provision of this Agreement to the contrary (but subject to the other provisions of this Section 2.4), any shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and for which the holder thereof is entitled to dissent and properly asserts dissenters’ rights to obtain payment for the fair value of such shares in accordance with, and complies in all respects with, Sections 302A.471 and 302A.473 of the MBCA (collectively, the “Dissenting Shares”), shall not be converted into the right to receive the Merger Consideration in accordance with Section 2.1(c). At the Effective Time, (i) all Dissenting Shares shall be canceled and cease to exist and (ii) the holders of Dissenting Shares shall be entitled only to payment of the fair value (including interest determined in accordance with Section 302A.473 of the MBCA) of such Dissenting Shares in accordance with Sections 302A.471 and 302A.473 of the MBCA.

(b) Notwithstanding the provisions of Section 2.4(a), if any holder of Dissenting Shares effectively withdraws or loses such dissenters’ rights (through failure to perfect such dissenters’ rights or otherwise), then the right of such holder to obtain payment for the fair value of such holder’s Dissenting Shares pursuant to Sections 302A.471 and 302A.473 of the MBCA shall cease and such holder’s shares (i) shall be deemed no longer to be Dissenting Shares and (ii) shall be treated as if they had been converted automatically at the Effective Time into the right to receive the Merger Consideration upon adherence to the procedures set forth in Section 2.2(c), without interest and subject to any withholding of Taxes required by applicable Law.

(c) The Company shall give Parent (i) prompt notice of any written exercise of dissenters’ rights and demands for fair value of any shares of Common Stock, the withdrawals of such demands and any other instrument served on the Company under the MBCA relating to shareholders’ dissenters’ rights and (ii) the right to participate in all negotiations and proceedings with respect to such exercise of dissenters’ rights pursuant to the MBCA. Except to the extent required by applicable Law, the Company shall not offer to make or make any payment with respect to any such demands without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned.

Article III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Subject to Section 8.13, the Company represents and warrants to Parent and Merger Sub that, except as (i) set forth in the confidential disclosure letter delivered by the Company to Parent and Merger Sub prior to the execution of this Agreement (the “Company Disclosure Schedule”) (it being understood that any information, item, or matter set forth in one section or subsection of the Company Disclosure Schedule shall be deemed disclosure with respect to, and shall be deemed to apply to and qualify, the section or subsection of this Agreement to which it corresponds in number and each other section or subsection of this Agreement but only to the extent that it is reasonably apparent on its face that such disclosure is applicable to qualify such other section or subsection) or (ii) disclosed in any report, schedule, form, statement or other document (including exhibits, but excluding, in each case, any disclosures contained or referenced therein under the captions “Risk Factors” or “Quantitative and Qualitative Disclosures About Market Risk,” disclosures contained or referenced therein in any “forward-looking statements” disclaimer or safe harbor statement, and any other disclosures contained or referenced therein to the extent they are predictive, cautionary or forward-looking in nature) filed with, or furnished to, the SEC under Sections 13, 14(a) and 15(d) the Exchange Act on or after January 1, 2021 and publicly available at least three Business Days prior to the date of this Agreement:

Section 3.1 Organization and Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as now conducted. Each of the Subsidiaries of the Company is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as now conducted.

Section 3.2 Foreign Qualifications. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation, limited liability company or other legal entity and is in good standing in each jurisdiction where such qualification is necessary, except where failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

Section 3.3 Corporate Authorization.

(a) The Company has all necessary corporate power and authority to enter into this Agreement and, assuming the Merger Transactions are consummated in accordance with Section 302A.613(4) of the MBCA, to perform its obligations hereunder to consummate the Merger Transactions. The Company Board at a meeting duly called and held has: (i) determined that the Merger Transactions are fair to and in the best interests of the Company and its shareholders, (ii) approved this Agreement and the Merger Transactions and declared it advisable that the Company enter into this Agreement and consummate the Merger Transactions, (iii) resolved that this Agreement and the Merger shall be governed by and effected under Section 302A.613(4) of the MBCA, (iv) made the Company Board Recommendation (it being understood that nothing in this clause (iv) shall in any way limit the Company Board’s rights under Section 5.4) and (v) to the extent necessary, take all actions necessary to have the effect of causing the Merger, this Agreement, the Support Agreements, the Merger Transactions and the transactions contemplated by the Support Agreements not to be subject to any state Takeover Law or similar Law that might otherwise apply to the Merger or any of the other Merger Transactions, in each case, on the terms and subject to the conditions of this Agreement.

(b) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Merger Transactions have been duly and validly authorized by all necessary corporate action on the part of the Company. The Company has made available to Parent a true and correct copy of the Company Organizational Documents. The Company is not in material violation of any of the provisions of its Company Organizational Documents.

(c) A committee consisting of only disinterested directors of the Company Board, which complies with the requirements for such a committee set forth in Section 302A.671, Subd. 1(a) and Section 302A.673, Subd. 1(d) of the MBCA, and acting in accordance with such provisions (the “Special Committee”) has duly and unanimously:

(i) approved this Agreement and the Merger Transactions, which approval, to the extent applicable and assuming the accuracy of the representations and warranties of Parent and Merger Sub set forth in Section 4.5(c), constituted approval for the purposes of Section 302A.671, Subd. 1(a), Sections 302A.673, Subd. 1, and 302A.675 of the MBCA as a result of which this Agreement and the Merger Transactions are not and will not be subject to the provisions applicable to a “control share acquisition” under Section 302A.671 of the MBCA, the restrictions on “business combinations” with an “interested shareholder” under the provision of Section 302A.673 of the MBCA, or subject to the “fair price” provisions of Section 302A.675 of the MBCA; and

(ii) recommended to the Company Board that the Company Board approve this Agreement and the Merger Transactions.

Section 3.4 Enforceability. Assuming due authorization, execution and delivery hereof by the other parties hereto, this Agreement constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.

Section 3.5 Subsidiaries. Section 3.5 of the Company Disclosure Schedule lists each Subsidiary of the Company, indicating its jurisdiction of incorporation or formation. Each of the Subsidiaries of the Company is wholly-owned by the Company, directly or indirectly, free and clear of any Liens (other than Permitted Liens). Except for the capital stock of, or other equity or voting interests in, its Subsidiaries, the Company does not own, directly or indirectly, any equity, membership interest, partnership interest, joint venture interest, or other equity or voting interest in any Person, or any interest convertible into, exercisable or exchangeable for any of the foregoing. No Subsidiary is in material violation of any of the provisions of its Company Organizational Documents.

Section 3.6 Governmental Authorizations. Assuming that the representations and warranties of Parent and Merger Sub contained in Section 4.3 are true and correct, and assuming that the Merger Transactions are consummated in accordance with Section 302A.613(4) of the MBCA, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Merger Transactions do not and will not require any consent, approval or other authorization of, or filing with or notification to (collectively, “Governmental Authorizations”), any Governmental Authority, other than:

(a) the filing of the Articles of Merger with the Secretary of State of the State of Minnesota and of appropriate documents with the relevant authorities of other jurisdictions in which the Company or any of its Subsidiaries is qualified to do business;

(b) any filings and reports that may be required in connection with this Agreement and the Merger Transactions either (i) with the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934 (the “Exchange Act”) or (ii) under Chapter 80B of the Minnesota Statutes or any other state securities Laws or “blue sky” Laws, as applicable;

(d) where the failure to obtain such Governmental Authorizations would not, individually or in the aggregate, reasonably expected to be material to the Company and its Subsidiaries, taken as a whole.

Section 3.7 Non-Contravention. Except as set forth on Section 3.7 of the Company Disclosure Schedules, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Merger Transactions do not and will not (a) contravene or conflict with, or result in any violation or breach of, any provision of the Company Organizational Documents or (b) assuming that all Governmental Authorizations described in Section 3.6 have been obtained or made prior to the Offer Acceptance Time or the Effective Time, as applicable (i) contravene or conflict with, or result in any violation or breach of, any Law applicable to the Company or any of its Subsidiaries or by which any assets of the Company or any of its Subsidiaries (“Company Assets”) are bound or (ii) result in any violation or breach of, or constitute a default under, or entitle any party to terminate, accelerate or adversely modify, or result in the creation of any Lien under (in each case with or without notice or lapse of time or both), any material Contract to which the Company or any of its Subsidiaries is a party or by which any Company Assets are bound.

Section 3.8 Capitalization.

(a) The Company’s authorized capital stock consists solely of 30,000,000 shares of capital stock, of which 29,750,000 shares are common stock having a par value of $0.01 per share (“Company Common Stock”), and 250,000,000 shares are preferred stock having a par value of $0.01 per share (“Company Preferred Stock”), all of which are designated Series A Junior Participating Preferred Shares. As of the close of business on December 16, 2022:

(i) 17,932,806 shares of Company Common Stock were issued and outstanding;

(ii) 4,230,320 shares of Company Common Stock were reserved for issuance for awards granted under the Company Stock Plan, of which 217,688 shares were subject to outstanding and unexercised Company Options, 21,797 shares were subject to Company Restricted Stock Awards, 1,107,731 shares were subject to outstanding Company RSU Awards, and 228,777 shares were subject to outstanding Company Performance Stock Units;

(iii) 200,000 shares of Company Common Stock were subject to that certain stock option agreement dated December 6, 2021 issued by the Company to Thomas A. Krueger, which is granted outside of the Company Stock Plan;

(iv) 238,583 shares of Company Common Stock were subject to the Hale Warrant;

(v) 100,000 shares of Company Common Stock were subject to the iStudy Warrant; and

(vi) no shares of Company Preferred Stock were issued and outstanding.

(b) Since December 16, 2022, the Company has not issued any securities (including derivative securities) except for shares of Company Common Stock issued upon exercise of Company Stock Awards or the settlement of Company Restricted Stock Awards or Company RSU Awards or Company Performance Stock Units, in each case, outstanding on or prior to December 16, 2022.

(c) Other than the Company Stock Plan and the stock option referenced in Section 3.8(a)(iii), there are no stock option plans or any other plan or agreement adopted by the Company that provides for the issuance of equity to any current or former service provider of the Company. The Company has made available to Parent complete and accurate copies of the Company Stock Plan and the forms of all award agreements evidencing outstanding Company Stock Awards, and all agreements under the Company Stock Plan that materially deviate from such forms of award agreement.

(d) Section 3.8(d) of the Company Disclosure Schedule sets forth a complete and accurate list as of December 16, 2022 of all outstanding equity-based awards, whether payable in stock, cash or other property or any combination of the foregoing, including the Hale Warrant and the iStudy Warrant (the “Company Stock Awards”), granted under the Company Stock Plan or otherwise, indicating, with respect to each Company Stock Award then outstanding, the type of award granted, the number of shares of Company Common Stock subject to such Company Stock Award and the exercise or purchase price (if any), date of grant, vesting schedule, expiration date, and any performance targets or similar conditions to exercisability or settlement thereof, including the extent to which any vesting had occurred as of December 16, 2022, if the Company Stock Award is exercisable for more than six (6) months following the holder’s termination (other than for disability or death), and whether (and to what extent) the vesting of such Company Stock Award may be accelerated in any way by the consummation of the transactions contemplated by this Agreement (alone or in combination with any other event, including the termination of employment or engagement or change in position of any holder thereof following or in connection with the consummation of the Merger). The terms of the Company Stock Plan and the Company Stock Awards permit the treatment of each Company Stock Award as provided in this Agreement, without the consent or approval of the holders thereof or the shareholders of the Company.

(e) Except as described in Section 3.8(a), Section 3.8(b), and Section 3.8(d) of the Company Disclosure Schedule, no capital stock of the Company or any of its Subsidiaries or any security convertible or exchangeable into or exercisable for such capital stock, is issued, reserved for issuance or outstanding as of the date of this Agreement. Except as described in Section 3.8(d) and except for changes since the date of this Agreement resulting from the exercise of employee stock options outstanding on such date or described on Section 3.8(d) of the Company Disclosure Schedule, there are no exercisable securities, there are no options, preemptive rights, warrants, calls, rights, commitments, agreements, arrangements or understandings of any kind to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries is bound, obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or accelerate the vesting of or enter into any such option, warrant, call, right, commitment, agreement, arrangement or understanding. There are no shareholder agreements, voting trusts, proxies or other similar agreements, arrangements or understandings to which the Company or any of its Subsidiaries is a party, or by which it or they are bound, obligating the Company or any of its Subsidiaries with respect to any shares of capital stock of the Company or any of its Subsidiaries. There are no rights or obligations, contingent or otherwise (including rights of first refusal in favor of the Company), of the Company or any of its Subsidiaries, to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity. There are no registration rights or other agreements, arrangements or understandings to which the Company or any of its Subsidiaries is a party, or by which it or they are bound, obligating the Company or any of its Subsidiaries with respect to any shares of Company Common Stock or shares of capital stock of any such Subsidiary. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or are convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on any matter. Except as described in Section 3.8(a), Section 3.8(b), and Section 3.8(d) of the Company Disclosure Schedule, as of December 16, 2022, there are no outstanding stock options, restricted stock units, restricted stock, stock appreciation rights, “phantom” stock rights, performance units or other compensatory rights or awards (in each case, issued by the Company or any of its Subsidiaries), that are convertible into or exercisable for a share of Company Common Stock on a deferred basis or otherwise or other rights that are linked to, or based upon, the value of Company Common Stock. All Company Stock Awards are evidenced by award agreements in substantially the forms previously made available to Parent.

(f) All outstanding shares of Company Common Stock are, and all shares of Company Common Stock reserved for issuance as specified above will be, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, 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 MBCA, the Company Articles of Incorporation or the Company Bylaws or any agreement to which the Company is a party or otherwise bound. None of the outstanding shares of Company Common Stock have been issued in violation of any United States federal or state securities laws or any foreign securities laws. All of the outstanding shares of capital stock of each of the Subsidiaries of the Company are duly authorized, validly issued, fully paid and nonassessable, and all such shares (other than directors’ qualifying shares in the case of foreign Subsidiaries) are owned by the Company or a Subsidiary of the Company free and clear of any and all Liens. There are no accrued and unpaid dividends with respect to any outstanding shares of capital stock of the Company or any of its Subsidiaries.

(g) The Company Common Stock constitutes the only class of equity securities of the Company or its Subsidiaries registered or required to be registered under the Exchange Act.

Section 3.9 SEC Reports. The Company has timely filed with the SEC (including following any extensions of time for filing provided by Rule 12b-25 promulgated under the Exchange Act) all Company SEC Reports since January 1, 2019. As of their respective effective dates (in the case of Company SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act of 1933 (the “Securities Act”)) and as of their respective filing dates (in the case of all other Company SEC Reports), and except to the extent corrected by subsequent Company SEC Reports filed prior to the date hereof, such Company SEC Reports (a) complied as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, applicable to such Company SEC Reports, (b) were prepared in all material respects in accordance with the applicable requirements of the Securities Act, the Exchange Act and other applicable Law and (c) did not, as of such respective dates, or if amended or restated prior to the date hereof, at the time of such later amendment or restatement, 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 the light of the circumstances under which such statements were made, not misleading. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Reports. No Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to file any periodic forms, reports, schedules, statements or other documents with the SEC.

Section 3.10 Financial Statements; Internal Controls.

(a) The consolidated financial statements of the Company included in the Company SEC Reports since January 1, 2019:

(i) as of their respective filing dates, complied as to form in all material respects with applicable accounting requirements and the rules and regulations of the SEC;

(ii) were prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis during the periods involved (except as may be indicated in the notes to those financial statements, as permitted by Regulation S-X or, in the case of unaudited statements, as permitted by Form 10-Q under the Exchange Act, and except that the unaudited statements may not contain certain footnotes and are subject to normal, recurring audit adjustments); and

(iii) fairly presented (except as may be indicated in the notes thereto and subject in the case of unaudited statements to normal, recurring audit adjustments) in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended.

(b) Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, the Company has established and maintains disclosure controls and procedures and a system of internal control over financial reporting (within the meaning of Rules 13a-15(f) and 15d-15(f) promulgated under the Exchange Act) required by Rule 13a-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that information required to be disclosed in the Company’s periodic reports under the Exchange Act is recorded, processed, summarized and reported within the required time periods. Since the date of filing of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 through the date hereof, the Company has not identified (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the Company’s or any of its Subsidiaries’ ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls.

(c) The chief executive officer and chief financial officer of the Company have made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the statements contained in any such certifications are complete and correct, and the Company is otherwise in compliance with all applicable effective provisions of the Sarbanes-Oxley Act and the applicable listing and corporate governance rules of Nasdaq.

(d) To the Knowledge of the Company and except as otherwise disclosed in the Company SEC Reports, neither the Company nor its independent auditors have identified (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company and its Subsidiaries, (ii) any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company and its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.

(e) Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, partnership agreement or any similar Contract (including any Contract relating to any transaction, arrangement or relationship between or among the Company or any of its 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 (such as any arrangement described in Section 303(a)(4) of Regulation S-K of the SEC)) where the purpose or effect of such arrangement is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company’s consolidated financial statements.

(f) Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any director, officer, auditor, accountant, consultant or representative of the Company or any of its Subsidiaries has received or otherwise had or obtained Knowledge of any substantive complaint, allegation, assertion or claim, whether written or oral, that the Company or any of its Subsidiaries has (i) on or since January 1, 2019, engaged in questionable accounting or auditing practices or (ii) prior to January 1, 2019, engaged in questionable accounting or auditing practices which have not be fully remediated. No current or former attorney representing the Company or any of its Subsidiaries has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the current the Company Board or any committee thereof or to any current director or executive officer of the Company.

(g) To the Knowledge of the Company, there is no investigation threatened or pending by any law enforcement agency regarding the commission or possible commission of any crime or the violation or possible violation of any applicable Law of the type described in Section 806 of the Sarbanes-Oxley Act by the Company or any of its Subsidiaries.

Section 3.11 Undisclosed Liabilities. Except as reflected in the audited consolidated balance sheet of the Company dated December 31, 2021 (the “Company Balance Sheet”), neither the Company nor any of its Subsidiaries has any liabilities or obligations of any kind, whether accrued, contingent, absolute, inchoate or otherwise (“Liabilities”), other than (i) Liabilities incurred since the date of the Company Balance Sheet in the ordinary course of business consistent with past practice, (ii) Liabilities under this Agreement or expressly permitted to be incurred under this Agreement, and (iii) Liabilities that, individually and in the aggregate, have not had, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.

Section 3.12 Absence of Certain Changes. Except as otherwise contemplated, required or permitted by this Agreement or as set forth on Section 3.12 of the Company Disclosure Schedules, since December 31, 2021 through the date hereof, (a) the Company has conducted its business, in all material respects, in the ordinary course, (b) there has not been any effect, change, event or occurrence that, individually or in the aggregate, has had, is having or would reasonably be expected to have a Company Material Adverse Effect and (c) neither the Company nor any of its Subsidiaries has taken any action that, if taken between the date of this Agreement and prior to the Effective Time, would have required the consent of Parent under any of clauses (a) through (y) of Section 5.1.

Section 3.13 Litigation. Except as set forth in Section 3.13 of the Company Disclosure Schedule, there are no legal claims, actions, arbitrations, litigations, investigations, suits or other civil or criminal proceedings (collectively, “Legal Actions”) (excluding any Transaction Litigation) pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries. Except as set forth in Section 3.13 of the Company Disclosure Schedule, there are no Orders outstanding against the Company or any of its Subsidiaries. Except as set forth in Section 3.13 of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is subject to or negotiating any settlement with respect to any Legal Action other than Transaction Litigation.

Section 3.14 Material Contracts. Section 3.14 of the Company Disclosure Schedule lists all of the following Contracts (x) to which the Company or any of its Subsidiaries is a party as of the date of this Agreement or (y) by which the Company, any of its Subsidiaries or the Company Assets are bound as of the date of this Agreement (in each case, other than any Company Benefit Plan) (collectively, the “Material Contracts”):

(a) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company and its Subsidiaries;

(b) any Contract (A) containing any covenant limiting the right of the Company or any of its Subsidiaries to engage, or to compete with any Person (other than standard employee non-solicitation restrictions), in any line of business or geographic area, (B) containing any covenant prohibiting the Company or any of its Subsidiaries from engaging in business with any Person or levying a fine, charge or other payment for doing so, (C) pursuant to which any Person is granted most favored customer pricing, or containing any other similar pricing restrictions, or (D) containing any covenant limiting the right of the Company to enter into any reseller, referral partner or similar partner agreements with third parties;

(c) any Contract of the Company or any of its Subsidiaries with (i) any officer or director of the Company, or (ii) to the Knowledge of the Company, any beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of 5% or more of the shares of Common Stock;

(d) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of $100,000, other than (A) accounts receivables and payables, (B) loans to direct or indirect wholly owned Subsidiaries, and (C) advances to employees for travel and business expenses, in each case in the ordinary course of business consistent with past practice;

(e) Contracts which grant 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 its Subsidiaries;

(f) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries of any material business or entity, or the material assets of a business or entity, whether by way of merger, consolidation, stock purchase, asset purchase, license or otherwise, or pursuant to which the Company has a material ownership interest in any business enterprise other than the Company’s Subsidiaries;

(g) any Contract expressly providing for the development of any material technology by the Company or any of its Subsidiaries or requiring the Company or any of its Subsidiaries to make available or otherwise disclose the source code of any Company Products to any Person (other than Contracts for Open Source Software);

(h) any settlement Contract with ongoing obligations (other than solely ongoing confidentiality obligations) other than (A) releases that are immaterial in nature or amount entered into in the ordinary course of business, or (B) settlement Contracts only involving the payment of cash in amounts that do not exceed $100,000 in any individual case;

(i) Contracts constituting any collective bargaining agreement or other Contract with any labor union or other employee representative or group; and

(j) Contracts (excluding purchase orders, statements of work and any other Contracts that are not master agreements and that do not contain material terms that apply generally to transactions with the applicable customer) with any Top Customer.

(k) Contracts (excluding purchase orders, statements of work and any other Contracts that are not master agreements and that do not contain material terms that apply generally to transactions with the applicable supplier) with any Top Supplier.

(l) Contracts under which the Company or any of its Subsidiaries expressly grants any license or similar rights under any patents or know-how.

(m) Contracts under which the Company or any of its Subsidiaries is expressly granted any license or similar rights under any Intellectual Property in each case material to the Company and its Subsidiaries taken as a whole, excluding non-exclusive licenses with respect to software that is generally commercially available.

The Company has made available to Parent true and complete copies of all Material Contracts, including any amendments, extensions, and renewals thereto. Each Material Contract is, subject to the Enforceability Exceptions, a valid and binding agreement of the Company or its applicable Subsidiary and, to the Knowledge of the Company, the other parties thereto, and is in full force and effect in accordance with its terms. None of the Company, its applicable Subsidiary and, to the Knowledge of the Company, any other party thereto, is in material breach or default under any such Material Contract.

Section 3.15 Benefit Plans.

(a) Section 3.15(a) of the Company Disclosure Schedule sets forth a complete and accurate list of all material employee benefit plans of the Company (the “Company Employee Plans”). With respect to each Company Employee Plan maintained or sponsored by a professional employer organization (“PEO Plans”), the representations and warranties in this Section 3.15 are made with respect to the Company’s participation in any PEO Plan as a participating employer. Each PEO Plan is identified as such on Section 3.15(a) of the Company Disclosure Schedule and no representation or warranty is made with respect to any other participating employer in a PEO Plan or as to the PEO Plan as a whole. Other than as required by applicable Law or as otherwise required by this Agreement or in the ordinary course of business, neither the Company nor any ERISA Affiliate of the Company has committed to any officer, or publicly communicated to any other employees to establish any new Company Employee Plan, to modify or amend (except as required by applicable law) any Company Employee Plan or to adopt or enter into any Company Employee Plan.

(b) With respect to each Company Employee Plan, the Company has made available to Parent complete and accurate copies of (i) such Company Employee Plan (or a written summary of any unwritten plan) together with all amendments thereto and all related trust documents, (ii) the most recent summary plan descriptions, including any summary of material modifications thereto and any material description made available to participants therein, (iii) in the case of any plan that is intended to be qualified under Section 401(a) of the Code, the most recent determination, opinion, notification or advisory letter from the IRS, and correspondence between the Internal Revenue Service (“IRS”) or the Department of Labor (“DOL”) on the one hand and the Company on the other hand with respect to such letter, (iv) group annuity contracts, insurance contracts or other funding vehicles, administration and similar material agreements, investment management or investment advisory agreements, (v) in the case of any plan for which Forms 5500 are required to be filed, the most recent annual report (Form 5500) with schedules attached, (vi) the most recent financial statements for such Company Employee Plan, and (vii) all material correspondence to or from any governmental agency relating to any Company Employee Plan within the past year.

(c) Except as would not reasonably be expected to result in a Company Material Adverse Effect, (i) each Company Employee Plan has been established, maintained and administered in accordance with all applicable Law, including if applicable, ERISA and the Code, and in accordance with its terms, and (ii) each of the Company, the Company’s Subsidiaries and their respective ERISA Affiliates have (A) met their obligations with respect to each Company Employee Plan and (B) have timely made or properly accrued on the financial statements in accordance with GAAP all required contributions or other amounts payable with respect thereto.

(d) All Company Employee Plans that are intended to be qualified under Section 401(a) of the Code, and all trusts that are intended to be qualified under Section 501(a) of the Code (each, a “Company Qualified Plan”), have (i) received determination, opinion or advisory letters from the IRS to the effect that such Company Employee Plans are qualified and the plans and trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or the Company has remaining a period of time under applicable U.S. Department of the Treasury regulations or IRS pronouncements in which to apply for such a letter and to make any amendments necessary to obtain a favorable determination as to the qualified status of each such Company Qualified Plan and (ii) no such determination, opinion or advisory letter has been revoked and no event or circumstance exists that has materially and adversely affected or would reasonably be expected to materially and adversely affect such qualification or exemption. Except as would not reasonably be expected to result in Company Material Adverse Effect, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan.

(e) Neither the Company, any of the Company’s Subsidiaries nor any of their respective ERISA Affiliates has in the preceding six (6) years maintained, participated in or contributed to (or been obligated to contribute to), or can reasonably expect to have future liability with respect to (i) a pension plan subject to Title IV of ERISA or Section 412 of the Code; (ii) a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA), (iii) a “multiple employer plan” as defined in ERISA or the Code, or (iv) multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA). No Company Employee Plan is funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. No Company Employee Plan provides health benefits that are not fully insured through an insurance contract.

(f) Each Company Employee Plan (other than the Company Stock Plan or an employment, severance, change in control or similar agreement with an individual) is amendable and terminable unilaterally by the Company and any of the Company’s Subsidiaries party thereto or covered thereby at any time without material liability to the Company or any of its Subsidiaries as a result thereof, other than for benefits accrued as of the date of such amendment or termination and routine administrative costs.

(g) Other than as required under Section 601 et seq. of ERISA or equivalent state or local law, the Company does not have any material liability in respect of, or material obligation to provide, health or other welfare benefits (excluding normal claims for benefits under the Company’s group life insurance, accidental death and dismemberment insurance and disability plans and policies) or coverage to any person following retirement or other termination of employment (other than continuation coverage through the end of the month in which such termination or retirement occurs).

(h) There is no action, suit, proceeding, claim, arbitration, audit or investigation pending or, to the Knowledge of the Company, threatened or reasonably anticipated, with respect to any Company Employee Plan or the assets of any Company Employee Plan, other than claims for benefits in the ordinary course.

(i) Except as would not reasonably be expected to result in a Company Material Adverse Effect, each Company Employee Plan is in material compliance with all applicable Law of each applicable jurisdiction. Each such Company Employee Plan is funded to the extent required by applicable Law or the applicable terms of such plan or has been accrued for to the extent required by GAAP or other applicable accounting rules. Section 3.15(i) of the Company Disclosure Schedule contains a complete and accurate list of each country in which the Company or any of its Subsidiaries or Affiliates has employees or independent contractors as of December 16, 2022.

(j) Section 3.15(j) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) all employment agreements with employees of the Company or any of its Subsidiaries, other than (A) standard form offer letters, (B) other similar employment agreements entered into in the ordinary course of business and (C) agreements materially consistent with such standard forms, in the case of (A), (B) and (C) that can be terminated by the Company without notice, liability or obligation; and (ii) all severance agreements, programs and policies of the Company or any of its Subsidiaries with or relating to its Section 16 officers, excluding programs and policies required to be maintained by applicable Law.

(k) Other than as set forth on Section 3.15(k) of the Company Disclosure Schedule and Section 2.3 of this Agreement, the negotiation or consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (i) entitle any current or former employee, director, consultant or officer of the Company or any Subsidiary of the Company to any acceleration, increase in acceleration rights, severance, or increase in severance pay, or any other material compensation or benefit, (ii) accelerate the time of distribution, payment or vesting (whether or not in connection with a non-competition provision), a lapse of repurchase rights or increase the amount of any material compensation or benefits due any such employee, director or officer, (iii) result in the forgiveness of indebtedness, or (iv) trigger an obligation to fund benefits. No payment or benefit which will or may be made by the Company or its ERISA Affiliates will, either alone or together with any other event or events, give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code. There is no contract, agreement, plan or arrangement to which the Company or any Subsidiary of the Company is a party or by which it is bound that provides any individual with the right to a gross-up, indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code.

(l) Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) maintained or sponsored by the Company or any Subsidiary of the Company has been documented and operated in material compliance with Section 409A of the Code.

(m) Each of the Company and its Subsidiaries complies in all material respects with the applicable requirements under the Affordable Care Act, the Code, ERISA, COBRA, HIPAA, and other federal requirements for employer-sponsored health plans, and any corresponding requirements under state statutes, with respect to each Company Employee Plan that is a group health plan within the meaning of Section 733(a) of ERISA, Section 5000(b)(1) of the Code, or such state statute.

Section 3.16 Labor Relations; Employee Matters.

(a) The Company and each of its Subsidiaries are in compliance in all material respects with all applicable Law respecting employment and employment practices. To the Knowledge of the Company, there are no actions pending or threatened to be brought or filed, by or with any Governmental Authority by any employee or former employee or contractor of the Company, including, without limitation, any claims related to unfair labor practices, employment discrimination, harassment, retaliation, wage and hour laws, or any other employment related matter arising under applicable Law. To the Knowledge of the Company, within the past three (3) years no allegations of sexual harassment or sexual misconduct have been made against any director or officer of the Company or any of its Subsidiaries and the Company has not entered into any settlement agreement related to allegations of sexual harassment or sexual misconduct by any director, officer or employee of the Company or any of its Subsidiaries. The Company and each of its Subsidiaries (i) has withheld and reported all amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to employees; (ii) is not liable for any arrears of wages, salaries, commissions, bonuses or other direct compensation for any services performed for the Company or any of its Subsidiaries, or any taxes or any penalty for failure to comply with any of the foregoing; and (iii) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistent with past practice), except in each case, for any failure to withhold, report or pay which would have or could reasonably be expected to have a Company Material Adverse Effect.

(b) Neither the Company nor any of its Subsidiaries is or has been party to any collective bargaining agreement or other collective labor contract with any labor union or other labor or employees’ association. To the Knowledge of the Company, no union organizing efforts have been conducted within the last three years or are now being conducted. Neither the Company nor any of its Subsidiaries currently has, or, to the Knowledge of the Company, is there now threatened, a strike, picket, work stoppage, work slowdown or other organized labor dispute.

(c) Except as would not be expected to result in a Company Material Adverse Effect, the Company and each of its Subsidiaries are and have been in material compliance with the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”), and any similar applicable Laws relating to plant closings and layoffs. Neither the Company nor any of its Subsidiaries is currently engaged in any layoffs or employment terminations sufficient in number to trigger application of the WARN Act or any similar applicable Laws.

(d) No employee of the Company or any of its Subsidiaries, (i) to the Knowledge of the Company, is in violation of any term of any patent disclosure agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by the Company or any of its Subsidiaries because of the nature of the business conducted or presently proposed to be conducted by the Company or any of its Subsidiaries or relating to the use of trade secrets or proprietary information of others, or (ii) in the case of any key employee or group of key employees, has, to the Knowledge of the Company, given notice as of the date of this Agreement to the Company or any of its Subsidiaries that such employee or any employee in a group of key employees intends to terminate his or her employment with the Company or any of its Subsidiaries and neither the Company nor any of its Subsidiaries has a present intention to terminate the employment of any of the foregoing.

Section 3.17 Taxes.

(a) Each of the Company and its Subsidiaries has prepared and timely filed (taking into account any extension of time within which to file) all income and other material Tax Returns required to be filed and all such Tax Returns are true, correct and complete in all material respects.

(b) Each of the Company and its Subsidiaries has paid all material Taxes that are required to be paid, except with respect to matters for which adequate reserves have been established on the consolidated financial statements of the Company in accordance with GAAP.

(c) No deficiencies for Taxes against the Company or any of its Subsidiaries have been claimed, proposed or assessed in writing by any Governmental Authority that remain unpaid except for deficiencies with respect to which adequate reserves have been established in accordance with GAAP.

(d) There are no audits, examinations, investigations or other proceedings in respect of income Taxes or other material Taxes pending or threatened in writing with respect to the Company or any of its Subsidiaries.

(e) There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Liens for Taxes not yet due and payable or being contested in good faith and for which adequate reserves have been established on the Financial Statements in accordance with GAAP.

(f) Each of the Company and its Subsidiaries have withheld and paid all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.

(g) Neither the Company nor any Subsidiary of the Company is a party to any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, or other similar agreement or arrangement (other than customary commercial Contracts entered into in the ordinary course of business the primary purpose of which does not relate to Taxes).

(h) Neither the Company nor any Subsidiary of the Company has ever been a member of an affiliated group filing a consolidated, combined or unitary Tax Return (other than a group the common parent of which is the Company). Neither the Company nor any Subsidiary of the Company has any Liability for the Taxes of any Person (other than the Company and any Subsidiary of the Company) under Treasury Regulations section 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by Contract, or otherwise (other than customary commercial Contracts entered into in the ordinary course of business the primary purpose of which does not relate to Taxes).

(i) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for Tax purposes; (ii) use of an improper method of accounting for a Tax period ending on or prior to the Closing Date; (iii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed on or prior to the Closing Date; (iv) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Law) consummated on or prior to the Closing Date; (v) installment sale or open transaction disposition made on or prior to the Closing Date; (vi) prepaid amount received on or prior to the Closing Date; or (vii) election under Section 108(i) of the Code (or any similar provision of state, local or foreign Law). The Company has not made any election under Section 965(h) of the Code.

(j) None of the Company or any of its Subsidiaries has been a “controlled corporation” or a “distributing corporation” in any distribution occurring during the two-year period ending on the date hereof that was purported or intended to be governed by Section 355 of the Code (or any similar provision of state, local or foreign Tax Law).

(k) The Company and its Subsidiaries are in compliance in all material respects with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction Contract or order with respect to the Company and each of its Subsidiaries.

(l) None of the Company or any of its Subsidiaries has engaged in a “reportable transaction,” within the meaning of Treas. Reg. Section 1.6011-4(b), including any transaction that is the same or substantially similar to one of the types of transactions that the IRS has determined to be a tax avoidance transaction and identified by notice, regulation or other form of published guidance as a “listed transaction,” as set forth in Treas. Reg. Section 1.6011-4(b)(2).

(m) The Company has not been nor will it be required to include in income any amount under Section 965 of the Code.

(n) The Company is not a party to a gain recognition agreement under Section 367 of the Code.

(o) The Company and each of its Subsidiaries are in compliance in all material respects with all applicable transfer pricing laws, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practice and methodology. All intercompany agreements have been adequately documented, and such documents have been duly executed in a timely manner. The prices for any property or services (or for the use of any property), including, without limitation, interest and other prices for financial services, provided by or to the Company or any of its Subsidiaries are arm’s-length prices for purposes of the relevant transfer pricing laws, including Treasury Regulations promulgated under Section 482 of the Code (or any comparable provisions of applicable state, local or foreign Laws).

(p) Neither the Company nor any of its Subsidiaries has ever participated in an international boycott as defined in Section 999 of the Code.

(q) Neither the Company nor any of its Subsidiaries are, or ever have been, a (i) “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code or an entity that has ever made the election provided under section 897(i) of the Code; (ii) a “passive foreign investment company” within the meaning of section 1297 of the Code; or (iii) a “controlled foreign corporation” within the meaning of section 957 of the Code.

(r) None of the Company or any of its Subsidiaries has taken any action or knows of any fact or circumstance that could reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

Section 3.18 Environmental Matters. Since January 1, 2021, the operations of the Company and each of its Subsidiaries have complied with applicable Environmental Laws except as reasonably have not or would not, individually or in the aggregate, be expected to have a Company Material Adverse Effect. The Company and its Subsidiaries possess all Permits required under Environmental Laws necessary for their respective operations, and such operations are in compliance with applicable Permits, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No Legal Action arising under or pursuant to Environmental Laws is pending, or to the Knowledge of the Company, threatened, against the Company or any of its Subsidiaries except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, there are no Hazardous Materials on, in or under at any property owned or operated by the Company which have given rise to, or would reasonably be expected to give rise to, any liability or obligation under Environmental Laws, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Prior to the date hereof, the Company has made available to Parent true and complete copies of any reports conducted since January 1, 2021, of any investigations, audits or other assessments (including Phase I environmental site assessments and Phase II environmental site assessments) containing information that are in possession of or reasonably under the control of the Company or any of its Subsidiaries that pertain to (i) unresolved environmental claims against the Company or any of its Subsidiaries or (ii) any Hazardous Materials in, on, beneath or adjacent to any property currently or formerly owned or operated by the Company or any of its Subsidiaries, in the case of each of (i) and (ii), which claims or Hazardous Materials would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, or, in any event, would reasonably be expected to result in Liability to the Company and its Subsidiaries in excess of $50,000 individually or $250,000 in the aggregate.

Section 3.19 Intellectual Property.

(a) Section 3.19(a) of the Company Disclosure Schedule contains a complete and accurate list of all material Company Intellectual Property that is registered Intellectual Property (collectively the “Company Registered Intellectual Property”). All material Company Registered Intellectual Property is, to the Knowledge of the Company, subsisting, valid (or in the case of applications, applied for) and enforceable.

(b) All Company Intellectual Property is owned by or exclusively licensed to the Company or one or more of its Subsidiaries free and clear of any Liens (excluding any non-exclusive licenses entered into in the ordinary course of business). The Company Intellectual Property, together with the Intellectual Property Rights licensed or otherwise validly available to the Company and its Subsidiaries pursuant to valid and enforceable Contracts between the Company or any of its Subsidiaries and a third party, constitutes all of the Intellectual Property Rights that are necessary and sufficient for the conduct of the business of the Company and its Subsidiaries as currently conducted. To the Knowledge of the Company, all material Company Intellectual Property is, and following the transactions contemplated hereby shall be, freely transferable, licensable and alienable without the consent of, or notice or payment of any kind to any Governmental Authority or third party. Neither the Company nor any of its Subsidiaries has granted an exclusive license to any third party, or in the three (3) years prior to the date of this Agreement transferred ownership to any third party, of any material technology or Intellectual Property Rights that are or were owned by the Company or a Subsidiary of the Company.

(c) To the Knowledge of the Company, neither the Company nor its Subsidiaries has, in the conduct of the business of the Company and its Subsidiaries as currently conducted, infringed upon, violated or used without authorization or license, any Intellectual Property Rights owned by any third Person, except as would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company or any of its Subsidiaries, taken as a whole. There is no pending or, to the Knowledge of the Company, threatened (and at no time within the three (3) years prior to the date of this Agreement has there been pending or threatened any) Legal Action against the Company or any of its Subsidiaries involving a material claim of infringement or misappropriation of any Intellectual Property Rights of any third Person, or challenging the ownership, validity, or enforceability of any rights in Company Intellectual Property. The Company is not party to any settlements, covenants not to sue, consents, decrees, stipulations, judgments, or Orders resulting from legal proceedings, which (i) materially restrict the Company’s or any of its Subsidiaries’ rights to use, license or transfer any material Company Intellectual Property, or (ii) compel or require the Company or any of its Subsidiaries to license or transfer any material Company Intellectual Property.

(d) Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any other party thereto, is in material breach of: (i) any Contracts pursuant to which a third party has licensed to the Company or any of its Subsidiaries any Intellectual Property right that is material to the business of the Company or any Subsidiary of the Company taken as a whole (“Company In Licenses”), or (ii) any Contracts, excluding customer agreements entered into in the ordinary course of business, pursuant to which the Company or any of its Subsidiaries has granted a third Person or Affiliate any rights or licenses to any material Company Intellectual Property and that is material to the business of the Company or any of its Subsidiaries (“Company Out Licenses” and together with the Company In Licenses, the “Company IP Licenses”).

(e) The consummation of the transactions contemplated hereby will not result in or cause: (A) (i) the breach by the Company or any of its Subsidiaries of any Company IP License that is material to the business of the Company or any of its Subsidiaries, (ii) the termination, impairment or restriction of any right or license granted to the Company or any of its Subsidiaries under a Company IP License, or (iii) the Company or any of its Subsidiaries to grant, or expand the scope of a prior grant, to a third party of any rights to any material Company Intellectual Property (including by release of any source code that is not Open Source Software), except (with respect to clauses (ii) and (iii)) as would not reasonably be expected to be material to the business of the Company or any of its Subsidiaries, taken as a whole or (B) as a result of any Company Material Contract to which the Company or any of its Subsidiaries is a party, a third party to become licensed to, or otherwise have rights to, any material Intellectual Property Rights of Parent or any of its Subsidiaries.

(f) To the Knowledge of the Company, the Company and its Subsidiaries are in compliance with all terms and conditions of any license for Open Source Software, except as would not reasonably be expected to be, individually or in the aggregate, material to the business of The Company or any of its Subsidiaries, taken as a whole.

(g) Except as described in Section 3.19(g) of the Company Disclosure Schedule, no proprietary source code (excluding, for clarity, any Open Source Software) for any Company Product has been delivered, licensed or made available to any escrow agent or other third party who is not, as of the date of this Agreement, or was not, at the time, an employee, consultant or contractor of the Company or a Subsidiary of the Company or was not subject to a written confidentiality agreement with the Company or a Subsidiary of the Company. Except as described in Section 3.19(g) of the Company Disclosure Schedule, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has any duty or obligation (whether present, contingent or otherwise) to deliver, license or make available the proprietary source code (excluding, for clarity, any Open Source Software) for any Company Product to any escrow agent or other third Person, other than any employee, consultant or contractor of the Company or a Subsidiary of the Company under confidentiality obligations that prohibit the disclosure of such proprietary source code to any third party.

(h) Each current and former employee, consultant and contractor of the Company or a Subsidiary of the Company who was or is involved in the creation or development of any Company Products, as well as any other material Company Intellectual Property, has signed and delivered a written Contract that assigns to the Company or a Subsidiary of the Company any Intellectual Property Rights. The Company and its Subsidiaries have taken commercially reasonable steps to protect and preserve the confidentiality of all confidential or trade secret information of the Company or a Subsidiary of the Company (including any source code) that is material to the business of the Company or any of its Subsidiaries or information provided by any third party to the Company or its Subsidiaries subject to confidentiality obligations.

(i) Section 3.19(i) of the Company Disclosure Schedule contains a list of each standards-setting organization or similar organizations in which the Company or any of its Subsidiaries has participated in the past three (3) years, or is currently participating in that could require or obligate the Company or any of its Subsidiaries to grant or offer to any other Person any license or right to use any Company Intellectual Property.

Section 3.20 Privacy and Data Protection Matters.

(a) The Company and its Subsidiaries have industry standard safeguards in place to protect Personal Data in the possession or control of the Company and its Subsidiaries from unauthorized access by third persons.

(b) Except for those matters that would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the processing by the Company or any Subsidiary of the Company of any Personal Data, as well as all communications from the Company and Subsidiaries of the Company to users, partners or customers that contain or include Personal Data (whether sent directly or, to the Company’s Knowledge, through third-party providers) has complied in all material respects with (i) all applicable Laws, (ii) the Company’s and its Subsidiaries’ existing contractual commitments with third parties and (iii) the Company’s and its Subsidiaries’ privacy policies and any other terms applicable to the processing of Personal Data from individuals by the Company or any of its Subsidiaries or any of their agents, except where the failure to so comply would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company or any of its Subsidiaries, taken as a whole. As of the date hereof, no claims have been asserted in writing or, to the Knowledge of the Company, are threatened in writing against the Company or any Subsidiary of the Company by any third party alleging a violation of any third party’s privacy rights that would reasonably be expected to be, individually or in the aggregate, material to the business of the Company or any of its Subsidiaries, taken as a whole. To the Knowledge of the Company, neither the Company, nor any Subsidiary of the Company, nor any of their service providers has suffered any breach in security that has permitted or resulted in any unauthorized access to or disclosure of Personal Data.

(c) To the Knowledge of the Company, the Company Products are free from any material defect, bug or programming, design or documentation error or disrupting, disabling, harming or corrupting code that would constitute a Company Material Adverse Effect. To the Knowledge of the Company, none of the Company Products contain any “back door,” “drop dead device,” “time bomb,” “trojan horse,” “virus” or “worm” (as such terms are commonly understood in the software industry), vulnerability or any other similar malicious code (“Malicious Code”) that would constitute a Company Material Adverse Effect.

(d) The Company and its Subsidiaries have information technology systems that are sufficient in all material respects to operate the business of the Company and its Subsidiaries as it is currently conducted. The Company and its Subsidiaries have taken reasonable steps and implemented reasonable procedures to ensure that information technology systems used in connection with the operation of the business of the Company and its Subsidiaries, and data stored or transmitted on such systems, are secure. To the Knowledge of the Company, such systems are free from Malicious Code, except as would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company or any of its Subsidiaries, taken as a whole.

Section 3.21 Real Property.

(a) Section 3.21(a) of the Company Disclosure Schedule lists all real property leases, subleases, licenses or other occupancy agreements to which the Company or any of its Subsidiaries is a party (collectively, the “Real Property Leases”).

(b) Except as set forth on Section 3.21(b) of the Company Disclosure Schedule, each of the Real Property Leases is, subject to the Enforceability Exceptions, a valid and binding agreement of the Company or its applicable Subsidiaries and, to the Knowledge of the Company, each other party thereto. Except as set forth on Section 3.21(b) of the Company Disclosure Schedule, as of the date of this Agreement, no breach or default on the part of the Company or any such Subsidiary of the Company or, to the Knowledge of the Company, any other party thereto, exists under any Real Property Lease, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company’s or its Subsidiaries’ leasehold interest in any such real property is subject to any Lien, except for Permitted Liens. The Company has made available to Parent true and complete copies of all Real Property Leases, including any amendments thereto.

Section 3.22 Insurance. All fire and casualty, general liability, business interruption, product liability, sprinkler and water damage insurance policies and other forms of insurance maintained by the Company or any of its Subsidiaries have been made available to Parent. Each such policy is in full force and effect and all premiums due thereon have been paid in full.

Section 3.23 Permits. The Company and its Subsidiaries hold all permits, licenses, easements, variances, exemptions, consents, certificates, authorizations, registrations, orders and other approvals from Governmental Authorities that are material to the operation of the business of the Company and its Subsidiaries taken as a whole as currently conducted (collectively, the “Permits”). The Permits are in full force and effect, have not been violated in any material respect and, to the Knowledge of the Company, no suspension, revocation or cancellation thereof has been threatened, and there is no Legal Action pending or, to the Knowledge of the Company, threatened, seeking the suspension, revocation or cancellation of any Permits. No Permit shall cease to be effective as a result of the consummation of the transactions contemplated by this Agreement.

Section 3.24 Compliance with Laws.

(a) Generally. The Company and its Subsidiaries are, and since January 1, 2019 have been, in compliance in all material respects with, and are not, and since January 1, 2019 have not been, in any material respect in default under or violation of (and have not received any notice of material non-compliance, default or violation with respect to) any Laws applicable to the Company or any of its Subsidiaries or by which any of their respective properties is bound.

(b) Foreign Corrupt Practices Act. Neither the Company nor any of its Subsidiaries (including any of their respective officers, directors, agents, employees or other Person associated with or acting on their behalf) have, directly or indirectly, taken any action which would cause it to be in material violation of the Foreign Corrupt Practices Act of 1977, as amended, or any rules or regulations thereunder (“FCPA”), the United Kingdom Bribery Act of 2010, Organization of Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or any similar anti-corruption or anti-bribery laws applicable to the Company or its Subsidiaries (collectively, “Anti-Corruption Laws”), used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, made, offered or authorized any unlawful payment to foreign or domestic government officials or employees, whether directly or indirectly, or made, offered or authorized any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment, whether directly or indirectly. Neither the Company, any of its Subsidiaries nor any other entity under their control have conducted an internal investigation, or been informally or formally investigated, charged, or prosecuted, for conduct related to applicable Anti-Corruption Laws. The Company has established sufficient internal controls and procedures to ensure compliance with applicable Anti-Corruption Laws, accurately accounted for all payments to third parties, disclosed all payments or provisions to foreign officials (as defined by the FCPA), and made available all of such documentation to Parent.

(i) The Company and each of its Subsidiaries have complied in all material respects with all applicable Laws relating to export and re-export control and trade and economic sanctions (“Export Controls”), including the Export Administration Regulations (“FAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State and any applicable anti-boycott compliance regulations. Neither the Company nor any of its Subsidiaries has directly or indirectly sold, exported, re-exported, transferred, diverted, or otherwise disposed of any products, software, technology, or technical data to any destination, entity, or Person prohibited by the applicable Laws of the United States, without obtaining prior authorization from the competent government authorities as required by Export Controls. The Company and its Subsidiaries are in compliance with all applicable import Laws (“Import Restrictions”), including Title 19 of the U.S. Code and Title 19 of the Code of Federal Regulations.

(ii) Neither the Company nor any of its Subsidiaries has Knowledge of any fact or circumstance that would result in any Liability for any material violation of Export Control and Import Restrictions.

Section 3.25 Suppliers. Section 3.25 of the Company Disclosure Schedule sets forth a list of the Company’s top twenty (20) suppliers by annual expense for the fiscal year ending December 31, 2021 and year-to-date through September 30, 2022 (each a “Top Supplier”). Except as set forth on Section 3.25 of the Company Disclosure Schedule, as of the date of this Agreement, to the Knowledge of the Company, the Company has not received any written notice from any such supplier indicating that such supplier is ceasing or intends to cease dealing with the Company or any Subsidiary of the Company, or intends to change any material terms in dealing with the Company or any Subsidiary of the Company.

Section 3.26 Customers. Section 3.26 of the Company Disclosure Schedule sets forth a list of the Company’s top twenty (20) customers by annual revenue for the fiscal year ending December 31, 2021 and year-to-date through September 30, 2022 (each, a “Top Customer”). Except as set forth on Section 3.26 of the Company Disclosure Schedule, as of the date of this Agreement, to the Knowledge of the Company, the Company has not received any written notice from any such customer indicating that such customer is ceasing or intends to cease dealing with the Company or any Subsidiary of the Company, or intends to change any material terms in dealing with the Company or any Subsidiary of the Company.

Section 3.27 Affiliated Transactions. No director, officer or Affiliate (other than Subsidiaries of the Company) of the Company is a party to any Contract with the Company or its Subsidiaries (other than employment agreements or pursuant to the Company Stock Plan) or has any material interest in any property used by the Company or its Subsidiaries, in either case that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act that has not been so disclosed.

Section 3.28 Opinion of Financial Advisor. Craig-Hallum Capital Group LLC (the “Company Financial Advisor”) has delivered to the Company Board its written opinion to the effect that, as of the date of such opinion, and subject to the various limitations, assumptions, factors and matters set forth therein, the Offer Price and the Merger Consideration are fair to the shareholders of the Company from a financial point of view. Section 3.28 of the Company Disclosure Schedule sets forth all fees payable to the Company Financial Advisor in connection with the Merger Transactions and otherwise related to the engagement of the Company Financial Advisor.

Section 3.29 Brokers. No broker, finder, investment banker or other Person, other than the Company Financial Advisor, is entitled to any brokerage, finder’s or other similar fee or commission in connection with the Merger Transactions based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.

Section 3.30 State Takeover Laws. Assuming the representations and warranties of Parent and Merger Sub contained in Section 4.5(c) are true and correct, no further action is required by the Company Board (or any committee thereof) or the shareholders of the Company to comply with or render inapplicable to this Agreement and the Merger Transactions: (a) the restrictions on a “control share acquisition” (as defined in Section 302A.011, Subd. 38, of the MBCA) set forth in Section 302A.671 of the MBCA; (b) the restrictions on “business combinations” with an “interested shareholder” (each as defined in Section 302A.011, Subd. 46 and Subd. 48, respectively, of the MBCA) set forth in Section 302A.673 of the MBCA; (c) the “fair price requirement” set forth in Section 302A.675 of the MBCA; (d) any other similar applicable anti-takeover statute or regulation in Minnesota; and (e) any anti-takeover provision in the Company Organizational Documents (any such anti-takeover statutes or regulations, a “Takeover Law”).

Section 3.31 No Rights Agreement. The Company is not party to a shareholder rights agreement, “poison pill” or similar antitakeover agreement or plan and the Company Board has not adopted or authorized the adoption of such an agreement, plan or arrangement.

Section 3.32 No Other Representations or Warranties. Except for the representations and warranties made by the Company in this Article III (subject to the limitations set forth in the first paragraph of this Article III and the terms of this Agreement), neither the Company nor any other Person makes or has made, and Parent and Merger Sub acknowledge and agree that they expressly disclaim any reliance upon, any express or implied representation or warranty with respect to the Company or its Subsidiaries or Affiliates or their respective business, operations, assets, liabilities, results of operations, condition (financial or other) or prospects, or with respect to any estimates, projections, forecasts and other forward-looking information or business or strategic plan information regarding the Company and its Subsidiaries, or as to the accuracy or completeness of any of the information (including any statement, document or agreement delivered pursuant to this Agreement or any financial statements, including projections, estimates, forecasts or other forward-looking information) provided (including in any management presentations, information or descriptive memorandum, “data rooms” maintained by the Company or its Representatives, supplemental information or other materials or information with respect to any of the above) or otherwise made available to Parent and Merger Sub or any of their respective Affiliates, shareholders or Representatives, and each of Parent and Merger Sub acknowledge the foregoing.

Article IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Parent and Merger Sub, jointly and severally, represent and warrant to the Company that:

Section 4.1 Organization and Power. Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, each of Parent and Merger Sub is duly organized, validly existing and in good standing under the laws of their applicable state of formation and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as now conducted.

Section 4.2 Corporate Authorization. Each of Parent and Merger Sub has all necessary corporate power and authority to enter into this Agreement and to perform its obligations hereunder to consummate the Merger Transactions. The board of directors of Parent has adopted resolutions approving this Agreement and the Merger Transactions. The sole shareholder of Merger Sub has adopted resolutions adopting this Agreement. The board of directors of Merger Sub has: (a) approved this Agreement and the Merger Transactions and declared it advisable to enter into this Agreement and consummate the Merger Transactions and (b) recommended that Merger Sub’s shareholder adopt this Agreement. The execution, delivery and performance of this Agreement, by each of Parent and Merger Sub and the consummation by each of Parent and Merger Sub of the Merger Transactions have been duly and validly authorized by all necessary corporate action on the part of Parent and Merger Sub. Assuming due authorization, execution and delivery hereof by the other parties hereto, this Agreement constitutes a legal, valid and binding agreement of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, subject to the Enforceability Exceptions. No vote or consent of the shareholders of Parent is required by applicable Law, or the articles of incorporation or bylaws or other equivalent organizational documents of Parent in connection with this Agreement or the Merger Transactions.

Section 4.3 Governmental Authorizations. Assuming that the representations and warranties of the Company contained in Section 3.6 are true and correct, the execution, delivery and performance of this Agreement by Parent and Merger Sub and the consummation by Parent and Merger Sub of the Merger Transactions do not and will not require any Governmental Authorization, other than:

(b) any filings and reports that may be required in connection with this Agreement and the Merger Transactions either with the SEC or under state securities Laws or “blue sky” Laws;

(d) such filings and registrations as may be required under Chapter 80B of the Minnesota Statutes; and

(e) where the failure to obtain such Governmental Authorization would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

Section 4.4 Non-Contravention. The execution, delivery and performance of this Agreement by Parent and Merger Sub and the consummation by Parent and Merger Sub of the Merger Transactions do not and will not (a) contravene or conflict with, or result in any violation or breach of, any provision of the organizational documents of Parent or Merger Sub or (b) assuming that all Governmental Authorizations described in Section 4.3 have been obtained or made prior to the Offer Acceptance Time or the Effective Time, as applicable (i) contravene or conflict with, or result in any violation or breach of, any Law applicable to Parent or any of its Subsidiaries or by which any assets of Parent or any of its Subsidiaries (“Parent Assets”) are bound or (ii) result in any violation or breach of, or constitute a default under, or entitle any party to terminate, accelerate or adversely modify, or result in the creation of any Lien under (in each case with or without notice or lapse of time or both), any Contracts to which Parent, Merger Sub or any of their respective Subsidiaries is a party or by which any Parent Assets are bound, other than in the case of clause (b) of this Section 4.4, as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

Section 4.5 Capitalization; Interim Operations of Merger Sub; Ownership of Common Stock.

(a) All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by Parent. Merger Sub has no outstanding option, warrant, right or any other agreement pursuant to which any Person other than Parent may acquire any equity security of Merger Sub.

(b) Merger Sub was formed solely for the purpose of engaging in the Merger Transactions and has not engaged, nor prior to the Effective Time will it engage, in any business activities or operations other than in connection with the Merger Transactions. Merger Sub has no Subsidiaries.

(c) None of Parent, Merger Sub or their respective Affiliates own, directly or indirectly, beneficially (as defined in Rule 13d-3 under the Exchange Act) or of record, any shares of Common Stock or securities that are convertible, exchangeable or exercisable into Common Stock or are an “interested shareholder” under Section 302A.011, Subd. 49, of the MBCA, and none of Parent, Merger Sub or their respective Affiliates holds any rights to acquire or vote any shares of Common Stock except pursuant to this Agreement.

Section 4.6 Sufficient Funds. Parent’s and Merger Sub’s obligations hereunder are not subject to any conditions regarding Parent’s, Merger Sub’s or any other Person’s ability to obtain financing for the completion of the Merger Transactions. Parent and Merger Sub have (or have available to them), and will have as of the Offer Acceptance Time and Effective Time sufficient cash available to pay all amounts to be paid by Parent and Merger Sub in connection with this Agreement and the Merger Transactions, including Parent’s and Merger Sub’s costs and expenses and the aggregate Offer Price and Merger Consideration on the terms and conditions contained in this Agreement, and there is not, nor will there be, any restriction on the use of such cash or cash equivalents for such purpose.

Section 4.7 Absence of Arrangements with Management and Principal Shareholders. Other than this Agreement and the Support Agreements, as of the date hereof, there are no contracts, undertakings, commitments, agreements or obligations or understandings (a) between Parent or Merger Sub, or any of their respective Affiliates, on the one hand, and any member of the Company’s management or the Company Board or any of their respective Affiliates or any beneficial owner of Common Stock, on the other hand, relating to the Merger Transactions or the operations of the Company or any of its Subsidiaries or (b) pursuant to which any shareholder of the Company would be entitled to receive value or consideration of a different amount or nature than the Offer Price or the Merger Consideration or pursuant to which any shareholder of the Company agrees to tender any shares of Common Stock in the Offer or agrees to vote against or otherwise oppose any Superior Proposal.

Section 4.8 Litigation. There is no Legal Action (other than Transaction Litigation) pending or, to the Knowledge of Parent, threatened, against Parent or any of its Affiliates that would or seeks to materially delay or prevent the consummation of the Merger Transactions or that would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Neither Parent nor any of its Affiliates is subject to any Order of, or, to the Knowledge of Parent, continuing investigation by, any Governmental Authority that would or seeks to materially delay or prevent the consummation of any of the Merger Transactions or that would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

Section 4.9 Brokers. No broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other similar fee or commission in connection with the Merger Transactions based upon arrangements made by or on behalf of Parent, Merger Sub or any of their respective Subsidiaries.

Section 4.10 Independent Investigation. In entering into this Agreement and each of the other documents and instruments relating to the Merger Transactions, Parent and Merger Sub have each relied solely upon its own investigation and analysis of the business, operations, assets and financial condition of the Company and its Subsidiaries, and Parent and Merger Sub acknowledge and agree that (a) except for the representations and warranties made by the Company in Article III (as modified or disclosed against by the Company Disclosure Schedule or the Company SEC Reports), neither the Company nor any other Person makes or has made, and Parent and Merger Sub expressly disclaim any reliance upon, any express or implied representation or warranty with respect to the Company or its Subsidiaries or Affiliates or their respective business, operations, assets, liabilities, results of operations, condition (financial or otherwise) or prospects, or with respect to any estimates, projections, forecasts and other forward-looking information or business or strategic plan information regarding the Company and its Subsidiaries, or as to the accuracy or completeness of any of the information (including any statement, document or agreement delivered pursuant to this Agreement or any financial statements, including any projections, estimates, forecasts or other forward-looking information) provided (including in any management presentations, information or descriptive memorandum, “data rooms” maintained by the Company or its Representatives, supplemental information or other materials or information with respect to any of the above) or otherwise made available to Parent and Merger Sub or any of their respective Affiliates, shareholders or Representatives and (b) to the fullest extent permitted by applicable Law, none of the Company, its Affiliates or any of its or their respective shareholders, controlling persons or Representatives shall have any Liability or responsibility whatsoever to Parent or Merger Sub, their respective Affiliates, shareholders or Representatives on any basis (including in contract or tort, at law or in equity, under federal or state securities Laws or otherwise) based upon any information provided or made available, or statements made (or any omissions therefrom), to Parent or Merger Sub, their respective Affiliates, shareholders or Representatives, except as and only to the extent expressly set forth in this Agreement. Parent, on behalf of itself and on behalf of its Affiliates, expressly waives any such claim relating to the foregoing matters.

Article V

COVENANTS

Section 5.1 Conduct of Business of the Company. From and after the date of this Agreement and prior to the earlier of the Effective Time or the termination of this Agreement pursuant to Article VII, except as permitted by this Agreement, as set forth in Section 5.1 of the Company Disclosure Schedule, as required by applicable Law, without the prior written consent of Parent, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall, and shall cause each of its Subsidiaries to, conduct its operations in all material respects in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise contemplated or permitted by this Agreement, as set forth in Section 5.1 of the Company Disclosure Schedule, or as otherwise required by applicable Law, from and after the date of this Agreement and prior to the earlier of the Effective Time or the termination of this Agreement pursuant to Article VII, the Company shall not, and shall cause each of its Subsidiaries not to, take any of the following actions, without the prior written consent of Parent, such consent not to be unreasonably withheld, delayed or conditioned:

(a) Organizational Documents. Amend any of the Company Organizational Documents;

(b) Dividends. Declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or set any record date therefor, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent;

(c) Capital Stock. (i) Adjust, split, combine or reclassify its capital stock, (ii) redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or any securities convertible or exchangeable into or exercisable for any shares of its capital stock (except in connection with acquisitions related to a forfeiture of equity awards), (iii) grant any Person any right or option to acquire any shares of its capital stock, (iv) issue, deliver or sell any additional shares of its capital stock or any securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than pursuant to (A) the exercise of the Company Options, (B) the vesting of outstanding Company RSU Awards); or (C) the vesting of outstanding Company PSU Awards;

(d) Compensation and Benefits. (i) Change the compensation or benefits payable or to become payable to any of its directors, officers, employees or contractors (ii) establish, adopt, enter into, amend, renew or terminate any Company Benefit Plan or any employee benefit plan, agreement, policy, program or commitment (including any severance or retention agreement) that, if in effect on the date of this Agreement, would be a material Company Benefit Plan, (iii) adopt, enter into, amend or terminate any collective bargaining agreement or other similar arrangement relating to union or organized employees, (iv) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of its directors, employees or other service providers, (v) hire any employee or contractor, except for replacement employees or contractors if any of the individuals listed on Section 5.1(d) of the Company Disclosure Schedule cease being employed or engaged by the Company and subject to the consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (vi) terminate (other than for cause) any employee or contractor or (vii) amend the terms of any employment or contractor agreements;

(e) Acquisitions. Acquire, directly or indirectly, whether by purchase, merger, consolidation or acquisition of stock or assets or otherwise, any assets, real property, securities, properties, interests, or businesses or make any investment (whether by purchase of stock or securities, contributions to capital, loans, or property transfers), in each case, other than (i) acquisitions of raw materials, supplies, equipment, inventory and third party software in the ordinary course of business consistent with past practice (it being understood and agreed that the acquisition of all or substantially all of the assets of any person is not in the ordinary course of business) and (ii) transactions with customers for the sale or license of Company Products in the ordinary course of business consistent with past practice;

(f) Dispositions. Sell, transfer, lease, license, sublicense, covenant not to assert, allow to lapse, encumber, abandon or otherwise dispose of any of, or omit to take any action necessary to maintain or renew, its tangible or intangible properties or assets (including capital stock of any Subsidiary of the Company), other than sales or other dispositions (i) pursuant to existing Contracts, (ii) made in the ordinary course of business consistent with past practice not in excess of $25,000 individually or $75,000 in the aggregate or (iii) with customers for the sale or license of Company Products in the ordinary course of business consistent with past practice;

(g) Encumbrances. Pledge, encumber or grant any Liens on any material Company Assets, other (i) than Permitted Liens or (ii) in the ordinary course of business consistent with past practice;

(h) Loans and Investments. Make any loans, capital contributions or advances to, or investments in, any other Person other than (i) the Company or any of its Subsidiaries or (ii) in the ordinary course of business consistent with past practice up to $100,000 in the aggregate;

(i) Indebtedness; Guarantees. (i) incur any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any such indebtedness or any debt securities of another person or enter into any “keep well” or other agreement to maintain any financial statement condition of another person (collectively, “Indebtedness”), other than (1) Indebtedness incurred, assumed or otherwise entered into in the ordinary course of business under the Company’s existing credit facility as in effect on the date hereof and (2) intercompany Indebtedness between the Company and a wholly owned Subsidiary or between wholly owned Subsidiaries of the Company or (ii) make any loans or capital contributions to, or investments in, any other person, other than to any Subsidiary of the Company;

(j) Material Contracts. Except as required by applicable Law or the Merger Transactions, (i) enter into, amend, terminate (other than expiration in accordance with their terms) or waive any material rights or obligations under, any Material Contract or Real Property Lease (other than in the ordinary course of business consistent with past practice) or (ii) enter into any Contract that would be a Material Contract;

(k) IP Contracts. Enter into any Contract that would be a Company IP License or a Contract described in Section 3.19(d) hereof (the “Company IP Contracts”), or amend in any material respect any such Company IP Contract or grant any release or relinquishment of any material rights under any such Company IP Contract;

(l) IP Maintenance. Fail to maintain or allow to lapse, dispose of or abandon, including by failure to pay the required fees in any jurisdiction, any material Intellectual Property Rights used in or held for use in the Company’s businesses, or grant permission to enter into the public domain any material trade secrets included in the Company Intellectual Property;

(m) IP Rights. Grant any exclusive rights with respect to any of the Company’s material Intellectual Property Rights or the material Intellectual Property Rights of any of the Subsidiaries, or divest any of the Company’s material Intellectual Property Rights or the material Intellectual Property Rights of any of the Subsidiaries;

(n) New Business. Enter into any new line of business outside its existing business as of the date of this Agreement or engage in any other operations in any country in which the Company or any Subsidiary does not currently conduct other operations;

(o) Capital Expenditures. Make capital expenditures, except maintenance capital expenditures or capital expenditures under leases entered into prior to the date of this Agreement in the ordinary course of business and in excess of $25,000 in the aggregate;

(p) Corporate Transactions. Adopt a plan of merger, consolidation, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than reorganizations solely among wholly owned Subsidiaries of the Company);

(q) Reclassifications. Unless required by applicable Law, reclassify any independent contractor as an employee of the Company or any of its Subsidiaries;

(r) Accounting. Make any material change in accounting methods, principles or practices by the Company or any of its Subsidiaries materially affecting the consolidated assets, liabilities or results of operations of the Company, except as required (A) by GAAP, including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (B) by applicable Laws, including Regulation S-X under the Securities Act;

(s) Cash Management Practices. Make any material change in the Company’s cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control and management, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;

(t) Legal Actions. Settle any Legal Actions made or pending against the Company or any of its Subsidiaries, other than a settlement of any Transaction Litigation, which is addressed exclusively in Section 5.13;

(u) Insurance. Cancel or terminate or allow to lapse without a commercially reasonable substitute policy therefor, or amend in any material respect, any insurance policy;

(v) Taxes. (i) Make, change or revoke any material Tax election, change any annual Tax accounting period, or adopt any new, or change any current, method of Tax accounting, or (ii) amend, refile or otherwise revise any previously filed Tax Returns, (iii) enter into any closing agreement, settle or compromise any material Tax claim or assessment, (iv) consent to any extension or waiver of the statutory period of limitations applicable to any material claim or assessment in respect of Taxes, (v) waive any right to a refund of Taxes, or (vi) enter into any Tax sharing, allocation, indemnity or similar agreements or arrangements (other than customary commercial agreements not primarily related to Taxes);

(w) Poison Pill. Enter into, adopt or authorize the adoption of any shareholder rights agreement, “poison pill” or similar antitakeover agreement, plan or arrangement;

(x) Delay. Take any action or omit to take any action the result of which would reasonably be expected to materially and adversely impair or materially delay or impede the consummation of the Merger Transactions; or

(y) Related Actions. Agree or commit to do any of the foregoing.

Section 5.2 Conduct of Parent and Merger Sub. Except as expressly required or permitted by this Agreement or as required by applicable Law or Order, or to comply with any notice from a Governmental Authority, from and after the date of this Agreement and prior to the earlier of the Effective Time or the termination of this Agreement pursuant to Article VII, neither Parent nor Merger Sub shall, without the prior written consent of the Company, (i) take any action or omit to take any action the result of which would reasonably be expected to materially and adversely impair or materially delay or impede the consummation of the Merger Transactions or (ii) authorize any of, or commit or agree, in writing or otherwise, to take any such action.

Section 5.3 Access to Information; Confidentiality.

(a) The Company shall, and shall cause its Subsidiaries, to (i) provide to Parent and its Representatives reasonable access, at normal business hours and upon prior notice, to the officers, employees, properties, books and records of the Company and its Subsidiaries and (ii) furnish promptly such information concerning the Company and its Subsidiaries as Parent may reasonably request, in each case in a manner so as to not unreasonably disrupt or impair the business or operations of the Company or any of its Subsidiaries. Nothing herein shall require the Company or any of its Subsidiaries to provide such access or information to the extent the Company determines that such action (A) would reasonably be expected to result in a waiver of attorney-client privilege, work product doctrine or similar privilege, (B) would reasonably be expected to cause competitive harm to the Company or any of its Subsidiaries if the Merger Transactions are not consummated, (C) specifically relates to the evaluation, deliberation or minutes of the Company Board (or any committee or subcommittee thereof) related to the Merger Transactions, the strategic and financial alternatives process leading thereto, or any information or materials provided to the Company Board (or any committee or subcommittee thereof) in connection therewith or (D) would reasonably be expected to violate any applicable Law or any confidentiality obligation owing to a third party (provided that the Company shall have used commercially reasonable efforts to obtain the consent of such third party to provide such information, if requested).

(b) Information disclosed under this Section 5.3 and otherwise pursuant to this Agreement shall continue to be governed under that certain Non-Disclosure Agreement, dated July 26, 2022, between Parent and the Company (the “Confidentiality Agreement”).

(c) Nothing contained in this Agreement shall give Parent, directly or indirectly, rights to control or direct the operations of the Company or any of its Subsidiaries before the Effective Time. Before the Effective Time, the Company shall, consistent with the terms and conditions of this Agreement, exercise complete control and supervision over the operations of the Company and its Subsidiaries.

Section 5.4 No Solicitation.

(a) From and after the date hereof until the Offer Acceptance Time or, if earlier, the termination of this Agreement in accordance with Article VII, and except as otherwise expressly permitted by this Agreement, the Company shall not, and the Company shall cause each of its Subsidiaries not to, and the Company shall cause its Representatives not to, directly or indirectly (i) solicit, initiate or knowingly facilitate or encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (ii) enter into, continue or otherwise participate in any discussions with, or furnish any non-public information with respect to the Company or any of its Subsidiaries to, any Person in connection with a Takeover Proposal (other than to state that the Company is not permitted to have discussions) or (iii) execute or enter into any letter of intent, agreement in principle or Contract with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) (or resolve to or publicly propose to do any of the foregoing). The Company shall, and shall cause each of its Subsidiaries to, and shall cause its Representatives to, (x) immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person (other than Parent and its Affiliates, and their respective Representatives) conducted prior to the date of this Agreement with respect to any Takeover Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Takeover Proposal, (y) immediately terminate access by any third party to any physical or electronic data room relating to any Takeover Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Takeover Proposal and (z) promptly request that each Person promptly return or destroy all non-public information previously furnished to such Person or any of its Representatives in accordance with the terms of the confidentiality or similar agreement in place with such Person. Any breach of this Section 5.4(a) by any Representative of the Company shall be deemed a breach of this Section 5.4(a) by the Company.

(b) Notwithstanding Section 5.4(a) or any other provision of this Agreement to the contrary (but subject to this Section 5.4(b)), at any time after the date hereof until the Offer Acceptance Time, and following the receipt by the Company of a bona fide, written Takeover Proposal (which Takeover Proposal did not arise out of a breach of Section 5.4(a)), (i) the Company and its Representatives shall be permitted to participate in discussions regarding such Takeover Proposal solely to clarify the terms of such Takeover Proposal and (ii) if the Company Board determines in good faith (A) that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and (B) after consultation with outside legal counsel, that the failure to take the actions set forth in clauses (x) and (y) below with respect to such Takeover Proposal would be reasonably expected to be inconsistent with the directors’ fiduciary duties, then the Company may, in response to such Takeover Proposal, (x) furnish or provide access to data and information (including non-public information) with respect to the Company and any of its Subsidiaries to the Person who has made such Takeover Proposal, and its Representatives, pursuant to an Acceptable Confidentiality Agreement, so long as any written material non-public information provided under this clause (x) has previously been provided or made available to Parent or is provided or made available to Parent substantially concurrently with or as promptly as practicable (and, in any event, within 1 day of) after the time it is provided to such Person, and (y) participate in discussions and negotiations regarding such Takeover Proposal.

(c) From and after the date of this Agreement until the Offer Acceptance Time, the Company shall advise Parent orally and in writing of (i) the receipt of any Takeover Proposal or of any written inquiry, offer or proposal that could reasonably be expected to lead to a Takeover Proposal, specifying the material terms and conditions thereof (including the identity of the Person making such Takeover Proposal, inquiry, offer or proposal, and each Person controlling such Person), and (ii) any material changes or modifications to the financial or other material terms and conditions of such Takeover Proposal, in each case also providing to Parent a copy of each written Takeover Proposal and any written changes or modifications thereto, and in each case as soon as is reasonably practicable and in any event within twenty four (24) hours after the Company’s receipt thereof. The Company shall also notify Parent promptly (but in no event later than one Business Day) after receipt by the Company of any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Person that could reasonably be expected to make, or has made, a Takeover Proposal (including the identity of the Person making such request and each Person controlling such Person). The Company also shall keep Parent informed on a reasonably prompt basis as to the status (including changes to the material terms) of each such Takeover Proposal or request and any related discussions or negotiations.

(d) Except as contemplated by Section 5.4(e) and Section 5.4(f), the Company Board (or applicable committee thereof) shall not (i) withdraw, modify or amend, or publicly propose to withdraw, modify or amend, the Company Board Recommendation in any manner adverse to Parent, (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, a Takeover Proposal, (iii) fail to include the Company Board Recommendation in the Schedule 14D-9 or, if any Takeover Proposal has been made public, fail to reaffirm the Company Board Recommendation upon request of Parent within the earlier of three Business Days prior to the then scheduled expiration date or five Business Days after Parent requests such reaffirmation with respect to such Takeover Proposal (any action described in clauses (i) through (iii) being referred to as an “Adverse Recommendation Change”) or (iv) approve, recommend or allow the Company to enter into any letter of intent, agreement in principle or Contract relating to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) (an “Acquisition Agreement”).

(e) Notwithstanding Section 5.4(d) or any other provision of this Agreement to the contrary, the Company Board may, at any time before the Offer Acceptance Time and in response to a Superior Proposal received by the Company Board after the date of this Agreement (x) make an Adverse Recommendation Change or (y) terminate this Agreement to enter into an Acquisition Agreement or authorize, resolve, agree or propose publicly to take any such action, but only if:

(i) the Company has not breached any of its obligations under Section 5.4(a);

(ii) the Company Board has determined in good faith, after consultation with outside legal and financial advisors, that failure to do so would be reasonably expected to be inconsistent with its fiduciary duties;

(iii) the Company shall have first provided at least five (5) Business Days’ prior written notice (the “Notice Period”) to Parent that the Company is prepared to (A) make an Adverse Recommendation Change or (B) terminate this Agreement to enter into an Acquisition Agreement with respect to a Superior Proposal, which notice shall include the material terms and conditions of and a copy of the written definitive agreements providing for the transaction that constitutes such Superior Proposal;

(iv) during the Notice Period, the Company has negotiated with Parent in good faith (to the extent Parent desires to so negotiate) to enable Parent to propose in writing such adjustments in the terms and conditions of the Transaction Documents so that such Superior Proposal ceases to constitute a Superior Proposal; and

(v) following the end of the Notice Period (it being understood and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to Parent and a new five (5) Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, the Company Board has determined in good faith that, after consultation with its financial advisor, such Superior Proposal continues to constitute a Superior Proposal.

(f) Notwithstanding Section 5.4(d) or any other provision of this Agreement to the contrary, the Company Board may, at any time before the Offer Acceptance Time, make an Adverse Recommendation Change in response to an Intervening Event, but only if:

(i) the Company has not breached any of its obligations under Section 5.4(a);

(ii) the Company Board has determined in good faith, after consultation with its outside legal counsel, that failure to do so would be reasonably expected to be inconsistent with its fiduciary duties;

(iii) the Company shall have first provided prior written notice to Parent for at least the duration of the Notice Period that the Company is prepared to make an Adverse Recommendation Change, which notice shall specify in reasonable detail the Intervening Event and the basis upon which the Company proposes to make an Adverse Recommendation Change;

(iv) during the Notice Period, the Company has negotiated with Parent in good faith (to the extent Parent desires to so negotiate) to enable Parent to propose in writing such adjustments in the terms and conditions of the Transaction Documents so that the failure to make such Adverse Recommendation Change would no longer be reasonably expected to be inconsistent with the directors’ fiduciary duties; and

(v) following the end of the Notice Period (it being understood and agreed that any material change to the conditions constituting such Intervening Event shall require an additional notice to Parent and a new five (5) Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, the Company Board has determined that, after consultation with its outside legal counsel, the failure to make such Adverse Recommendation Change continues to be reasonably expected to be inconsistent with the directors’ fiduciary duties.

(g) Nothing contained in this Agreement shall prohibit the Company, the Company Board or any committee or subcommittee thereof from complying with Rules 14d-9 and 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from making any disclosure to the Company’s shareholders if the Company Board complies with this Section 5.4 and determines, in good faith after consultation with its outside legal counsel, that the failure to do so would be reasonably expected to be inconsistent with its fiduciary duties or such disclosure is otherwise required under applicable Law. For the avoidance of doubt, in no event shall the issuance of a “stop, look and listen” statement (or other similar statement pursuant to any requirement of applicable Law) be prohibited if the Company complies with this Section 5.4.

Section 5.5 Terminated Plans; Employees.

(a) If, at least five Business Days prior to the Closing Date, Parent provides written notice to the Company directing the Company to terminate one or more of (i) the Company’s 401(k) Plan (the “Company 401(k) Plan”) and/or (ii) any other Company Benefit Plan (the “Terminated Plans”), the Company shall terminate the Terminated Plans effective, in the case of (i) as of the day immediately preceding the Closing Date, and in the case of (ii) immediately prior to the Closing Date, subject to the consummation of the transactions contemplated hereby. The Company shall provide to Parent, prior to the Closing Date, written evidence reasonably acceptable to Parent of the adoption by the applicable authorized governing body of the Terminated Plans of resolutions authorizing the termination of the Terminated Plans (with the form and substance of such resolutions to be subject to Parent’s reasonable review and comment) no later than one Business Days prior to the Closing Date.

(b) Nothing in this Agreement, whether express or implied, shall confer upon any current or former employee of the Company, Parent, the Surviving Corporation or any of their respective Subsidiaries or Affiliates, any rights or remedies including any right to employment or continued employment for any specified period, of any nature or kind whatsoever. No provision of this Agreement is intended to modify, amend or create any employee benefit plan of the Company, Parent, Surviving Corporation or any of their respective Subsidiaries or Affiliates.

Section 5.6 Directors’ and Officers’ Indemnification and Related Insurance.

(a) From and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, in each case to the fullest extent permitted under applicable Law, (i) indemnify and hold harmless, and advance expenses to, each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director, officer, employee, agent or fiduciary of the Company or of a Subsidiary of the Company (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, Liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Legal Action (including as may be administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company or such Subsidiary or was acting in such capacity, or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Legal Action (including as may be administrative or investigative) relating in whole or in part to the Merger Transactions or relating to the enforcement of this provision) and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification, advancement of expenses and exculpation from Liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the Company Organizational Documents as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification between the Company or any of its Subsidiaries and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, unless otherwise required by Law, the articles of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities, exculpation and indemnification (including advancement of expenses) of directors and officers than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees for a period of six years after the Effective Time.

(b) In the event of any Legal Action (including as may be administrative or investigative) related to the acts or omissions covered under this Section 5.6 (each, a “Claim”) (i) the Surviving Corporation shall cooperate with the Indemnitee and its insurer in the defense of any such Claim and (ii) the Surviving Corporation shall not settle, compromise or consent to the entry of any judgment in any Claim pending or threatened in writing to which an Indemnitee is a party (and in respect of which indemnification could be sought by such Indemnitee hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all Liability arising out of such Claim or the Indemnitee otherwise consents.

(c) Parent and the Surviving Corporation shall, jointly and severally, maintain in effect for at least six years after the Effective Time the current policies of directors’ and officers’ liability and fiduciary liability insurance maintained by the Company on terms and scope with respect to coverage, and in amount, no less favorable to its covered individuals than those of such policies in effect on the date of this Agreement, or policies, issued by a reputable insurer at least equivalent to the insurer(s) of the Company’s current directors’ and officers’ liability insurance and fiduciary liability insurance, of at least the same coverage and amounts containing terms and conditions which are no less advantageous with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the negotiation and execution of this Agreement and the consummation of the Merger Transactions) so long as Parent and the Surviving Corporation are not required to pay an annual premium in excess of 300% of the last annual premium paid by the Company for such insurance before the date of this Agreement (such 300% amount being the “Maximum Premium”). If Parent or the Surviving Corporation are unable to obtain the insurance described in the prior sentence for an amount less than or equal to the Maximum Premium, then Parent and the Surviving Corporation shall, jointly and severally, instead obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Notwithstanding the foregoing, in lieu of the arrangements contemplated by this Section 5.6(c), before the Effective Time and in consultation with Parent, the Company shall be entitled to, and at the request of Parent shall, purchase fully-paid and non-cancellable six-year “tail” directors’ and officers’ liability and fiduciary liability insurance policies covering the matters described in this Section 5.6(c) and on like terms, scope and amount (and covering, without limitation, the Merger Transactions) and, if the Company purchases such policies before the Effective Time, then Parent and the Surviving Corporation’s obligations under this Section 5.6(c) shall be satisfied so long as Parent and the Surviving Corporation cause such policies to be maintained in effect for a period of six years following the Effective Time.

(d) The covenants contained in this Section 5.6 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnitees and their respective heirs and legal representatives and shall not be deemed exclusive of, or in substitution for, any other rights to which an Indemnitee is entitled, whether pursuant to Law, Contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 5.6 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 5.6 applies unless (i) such termination or modification is required by applicable Law or (ii) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 5.6 applies shall be third party beneficiaries of this Section 5.6).

(e) In the event that Parent or the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent and the Surviving Corporation shall take all necessary action so that the successors or assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.6.

Section 5.7 Reasonable Best Efforts. Upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Law, each of the parties to this Agreement shall, and shall cause its Affiliates to, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that, as promptly as practicable, the Offer Conditions and the conditions set forth in Article VI are satisfied and to consummate the Merger Transactions as promptly as practicable, including by preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents. The terms of this Section 5.7 shall not limit the rights of the Company set forth in Section 5.4.

Section 5.8 Consents; Filings; Further Action.

(a) Upon the terms and subject to the conditions of this Agreement and in accordance with applicable Law, each of the parties to this Agreement shall, and shall cause its Affiliates to, use its reasonable best efforts to, as promptly as practicable: (i) obtain any consents, approvals, registrations, waivers, permits, orders or other authorizations from, and make any filings and notifications with, any Governmental Authority or third party necessary, proper or advisable to consummate the Merger Transactions; (ii) make any submissions necessary, proper or advisable in connection with the Merger Transactions under the Securities Act, the Exchange Act, the MBCA, the Nasdaq rules and regulations and any other applicable Law; (iii) resolve questions or objections, if any, as may be asserted by any Governmental Authority; and (iv) take or cause to be taken all other actions necessary, proper or advisable (consistent with this Section 5.8) to cause the expiration of the applicable waiting periods, or receipt of required consents, approvals or authorizations, as applicable, under such Laws as soon as practicable.

(b) The parties shall cooperate and consult with each other in connection with obtaining any approvals, consents, registrations, permits, authorizations and other confirmations from any Governmental Authority required to consummate the transaction contemplated hereby, and shall, unless prohibited by law, (i) promptly inform the other party of any communication from any Governmental Authority; (ii) promptly provide each other with copies of all written communications to or from any Governmental Authority; (iii) use good faith efforts to give each other reasonable advance notice of all meetings with any Governmental Authority; and (iv) not participate independently in any meeting with a Governmental Authority without providing reasonable advance notice to the other party and an opportunity to attend and participate in such meeting.

(c) Notwithstanding anything to the contrary in this Agreement, neither the Company nor Parent, nor any of their respective Affiliates, shall be obligated to (i) litigate or contest any administrative or judicial action or proceeding or any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, (ii) propose, negotiate, or agree to the sale, divestiture, license or other disposition of any assets or businesses, (iii) accept any operational restriction that is material to its business or assets, or (iv) take any other action that would materially limit the right of that party, any of its subsidiaries, or any of its Affiliates to own or operate its or their businesses or assets.

Section 5.9 Public Announcements. The initial press release regarding the Merger Transactions shall be a joint press release by the Company and Parent. Unless and until an Adverse Recommendation Change has occurred, Parent and the Company shall consult with each other before issuing any press release or otherwise making any public statements about this Agreement or any of the Merger Transactions and shall give each other reasonable opportunity to review and comment upon any such release or statement and shall consider any comments received in good faith. Neither Parent nor the Company shall issue any such press release or make any such public statement prior to such consultation, except to the extent required by applicable Law, Order, Canadian securities Laws, Toronto Stock Exchange requirements or the Nasdaq requirements. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to consult with Parent in connection with, or provide Parent an opportunity to review or comment upon, any press release or other public statement or comment to be issued or made with respect to any Takeover Proposal or with respect to any actions contemplated by Section 5.4(e), Section 5.4(f) or Section 5.4(g). Notwithstanding the foregoing, this Section 5.9 shall not apply to any press release or other public statement (a) that contains substantially similar information that has been previously announced or made public in accordance with the terms of this Agreement or (b) is made in the ordinary course of business consistent with past practice and does not relate specifically to the signing of this Agreement or the Merger Transactions.

Section 5.10 Fees and Expenses.

(a) Except as explicitly provided otherwise in this Agreement, whether or not the Merger is consummated, all expenses (including those payable to Representatives) incurred by any party to this Agreement or on its behalf in connection with this Agreement and the Merger Transactions (“Expenses”) shall be paid by the party incurring those Expenses.

(b) As of the Closing Date, the Company will take all action necessary to ensure that, as of the Closing Time:

(i) the Expenses that the Company and its Subsidiaries have incurred since October 1, 2022 or are outstanding and liable for, including costs associated with investment banking, transaction legal fees including Transaction Litigation (if any), change of control severances/bonuses, employee retention amounts and the premium for directors’ and officers’ liability insurance coverage following the Effective Time does not exceed the amount set forth on Section 5.10(b)(i) of the Company Disclosure Schedule;

(ii) the Payoff Amount in respect of the Subject Indebtedness does not exceed the amount set forth on Section 5.10(b)(ii) of the Company Disclosure Schedule; and

(iii) the sum, calculated without duplication, of (A) aggregate Offer Price, plus (B) aggregate Merger Consideration, plus (C) aggregate amount payable to holders of Company Equity Awards pursuant to Section 2.3, plus (D) aggregate amount payable to holders of any other equity securities of the Company and securities convertible into equity securities of the Company, shall not exceed the amount set forth on Section 5.10(b)(iii) of the Company Disclosure Schedule.

Section 5.11 Financing. Prior to the Closing Date, upon Parent’s request, the Company shall use its reasonable efforts to, and to cause its Subsidiaries to use reasonable efforts to, prior to or at, and conditioned upon, the occurrence of the Closing, deliver all notices and take all other actions required to, at Parent’s option: (a) facilitate the termination of that certain Loan and Security Agreement dated April 15, 2022 by and among the Company, Qumu, Inc. and Silicon Valley Bank (the “Subject Indebtedness”), the repayment in full of all obligations then outstanding thereunder and the release of all Liens in connection therewith on the Closing Date, and deliver to Parent prior to or at the Closing a customary payoff letter in respect of the Subject Indebtedness (the “Payoff Letter”), which Payoff Letter shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or other similar obligations related to the Subject Indebtedness as of the Closing Date (the “Payoff Amount”) and (ii) state that all obligations (including guarantees) in respect thereof (other than those contingent indemnification obligations that customarily remain following termination of a credit agreement) and Liens in connection therewith on the assets of the Company or any of its Subsidiaries shall be, substantially concurrently with the receipt of the Payoff Amount on the Closing Date, released or arrangements reasonably satisfactory to Parent for such release shall have been made by such time or (b) obtain the waiver and/or consent of the parties to the Subject Indebtedness necessary to authorize the waiver or consent to the Merger Transactions in respect of the Subject Indebtedness (the “Lender Consent”), such Lender Consent to be in a form reasonably satisfactory to Parent; provided that, notwithstanding anything to the contrary in this Agreement, Parent and Merger Sub acknowledge and agree that the delivery of the Payoff Letter and the Lender Consent pursuant to this paragraph by the Company to Parent shall not be a condition to the Closing, and the Offer and the Closing are not conditioned upon Parent receiving such Payoff Letter or Lender Consent. Notwithstanding anything to the contrary herein, all such requested cooperation provided in accordance with this Section 5.11 shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries and in no event shall the Company or any of its Subsidiaries be required to bear any cost or expense other than de minimis cost or expenses, pay any commitment or other fee, enter into any definitive agreement, incur any other Liability, make any other payment or agree to provide any indemnity in connection with any of the foregoing prior to the Effective Time. In addition, nothing in this Section 5.11 shall require any action that would conflict with or violate the Company Organizational Documents or any Law or result in, prior to the Effective Time, the contravention of, or that would reasonably be expected to result in, prior to the Effective Time, a violation or breach of, or default under, any Contract to which the Company or its Subsidiaries is a party.

Section 5.12 Rule 16b-3. Prior to the Effective Time, the Company shall (and shall be permitted to) take such steps as may be reasonably required or advisable to cause dispositions of the Company’s equity securities (including derivative securities) pursuant to the Merger Transactions by each individual who is a director or officer of the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.

Section 5.13 Notification of Certain Matters. Prior to the Effective Time, Parent shall give prompt notice to the Company, and the Company shall give prompt notice to Parent, of (a) any notice or other communication received by such party from any Governmental Authority in connection with this Agreement or the Merger Transactions or from any Person alleging that the consent of such Person is or may be required in connection with the Merger Transactions, if the subject matter of such communication or the failure of such party to obtain such consent could be material to the Company, the Surviving Corporation or Parent, (b) any Legal Actions commenced or, to such party’s Knowledge, threatened against such party which relates to this Agreement or the Merger Transactions, including any Transaction Litigation and (c) any fact, event or circumstance that (i) has had or would reasonably be expected to result in any Company Material Adverse Effect or Parent Material Adverse Effect, as applicable, or (ii) is reasonably likely to result in the failure of any of the Offer Conditions or any of conditions set forth in Article VI to be satisfied; provided, however, that no such notification (or failure to provide such notification) shall affect any of the representations, warranties, covenants, rights or remedies, or the conditions to the obligations of, the parties hereunder. Subject to a customary joint defense agreement, the Company shall give Parent the opportunity to consult with the Company in the defense and settlement of any Transaction Litigation, and no such settlement shall be agreed to without Parent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided, that, for the avoidance of doubt, the Company shall otherwise fully control the defense and settlement of any such Transaction Litigation.

Section 5.14 Delisting. The Company shall cooperate with Parent and shall use its reasonable best efforts prior to the Closing Date to cause the Common Stock to be delisted from the Nasdaq and deregistered under the Exchange Act as soon as reasonably practicable following the Effective Time.

Section 5.15 Rule 14d-10. Prior to the Offer Acceptance Time, the Compensation Committee will take such steps as are required to cause each employment compensation, severance or other employee benefit arrangement pursuant to which consideration is payable to any officer, director or employee of the Company or any Affiliate of the Company who is a holder of any security of the Company to be approved by the Compensation Committee in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto as an “employment compensation, severance or other employee benefit arrangement” within the meaning of Rule 14d-10(d)(2) under the Exchange Act and to satisfy the requirements of the non-exclusive safe harbor set forth in Rule 14d-10(d) of the Exchange Act.

Section 5.16 Takeover Laws. The Company and Parent shall each use its reasonable best efforts to (a) (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Merger Transactions and (ii) refrain from taking any actions that would cause the applicability of such Laws, and (b) if the restrictions of any Takeover Law become applicable to any of the Merger Transactions, take all action necessary to ensure that the Merger Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Merger Transactions.

Section 5.17 Resignations. To the extent requested by Parent, at or prior to Closing, the Company shall use its reasonable best efforts to deliver written resignations, effective as of the Effective Time, of the directors (or other members of similar governing bodies) and officers of the Company and each of its Subsidiaries.

Article VI

CONDITIONS

Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger. The respective obligations of each party to this Agreement to effect the Merger are subject to the satisfaction or waiver on or before the Closing Date of each of the following conditions:

(a) No Orders. No Governmental Authority shall have issued any Order that enjoins or otherwise prohibits consummation of the Merger.

(b) Consummation of Offer. Merger Sub shall have irrevocably accepted for payment all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer.

Section 6.2 Frustration of Closing Conditions. Neither the Company, on the one hand, nor Parent or Merger Sub, on the other hand, may rely, either as a basis for not consummating the Merger or for terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in this Article VI to be satisfied if such failure was caused by such party’s breach of, or failure to perform with respect to, any provision of this Agreement, including Section 5.7 and Section 5.8.

Article VII

TERMINATION, AMENDMENT AND WAIVER

Section 7.1 Termination by Mutual Consent. This Agreement may be terminated and the Merger Transactions abandoned at any time before the Offer Acceptance Time by mutual written consent of Parent and the Company.

Section 7.2 Termination by Either Parent or the Company. This Agreement may be terminated and the Merger Transactions abandoned at any time before the Offer Acceptance Time by either Parent or the Company:

(a) if the Offer Acceptance Time has not occurred by March 24, 2023 (the “Outside Date”); provided, that the right to terminate this Agreement under this Section 7.2(a) shall not be available to any party to this Agreement if the failure of such party to perform any of its covenants or agreements under this Agreement has been a principal cause of the failure of the Offer Acceptance Time to occur by the Outside Date;

(b) if any Order having the effect set forth in paragraph (b) of Annex I shall be in effect and shall have become final and nonappealable; provided, that the right to terminate this Agreement under this Section 7.2(b) shall not be available to any party to this Agreement unless such party shall have complied with its obligations under Section 5.7 and Section 5.8; or

(c) if the Offer (as it may have been extended pursuant to this Agreement) shall have expired at a time when the Minimum Condition shall not have been satisfied and without the acceptance for payment of shares of Common Stock pursuant to the Offer; provided, that the right to terminate this Agreement under this Section 7.2(c) shall not be available to any party to this Agreement if the failure of such party to perform any of its covenants or agreements under this Agreement has been a principal cause of the failure of the Offer Acceptance Time to occur by the Outside Date.

Section 7.3 Termination by Parent. This Agreement may be terminated and the Merger Transactions abandoned at any time before the Offer Acceptance Time by Parent:

(a) if the Company breaches any of its representations or warranties, or fails to perform any of its covenants or agreements contained in this Agreement and which breach or failure (i) would give rise to the failure of a condition set forth in paragraphs (c), (d) or (e) of Annex I and (ii) by its nature cannot be cured or has not been cured by the Company by the earlier of (A) the Outside Date and (B) the date that is 20 Business Days after the Company’s receipt of written notice of such breach from Parent, but only so long as neither Parent nor Merger Sub are then in material breach of their respective representations or warranties or then materially failing to perform their respective covenants or agreements contained in this Agreement; or

(b) following an Adverse Recommendation Change, or if the Company shall have breached (other than in immaterial respects) its obligations under Section 5.4.

Section 7.4 Termination by the Company. This Agreement may be terminated and the Merger Transactions abandoned at any time before the Offer Acceptance Time by the Company:

(a) in order to enter into an Acquisition Agreement pursuant to and in accordance with Section 5.4(e); provided that prior to or concurrently with such termination the Company pays the Termination Fee under Section 7.6(b)(ii);

(b) if Parent or Merger Sub breaches any of their respective representations or warranties, or fails to perform any of their respective covenants or agreements contained in this Agreement and which breach or failure (i) would, individually or when aggregated with any such other breaches of failures, reasonably be expected to result in a Parent Material Adverse Effect and (ii) by its nature cannot be cured or has not been cured by Parent or Merger Sub, as applicable, by the earlier of (A) the Outside Date and (B) the date that is 20 Business Days after Parent’s receipt of written notice of such breach from the Company, but only so long as the Company is not then in material breach of its representations or warranties or then materially failing to perform its covenants or agreements contained in this Agreement; or

(c) if Merger Sub shall not have commenced, within the meaning of Rule 14d-2 under the Exchange Act, the Offer on or before the fifteenth Business Day after the initial public announcement of the execution of this Agreement.

Section 7.5 Effect of Termination. In the event of termination of this Agreement as provided in this Article VII, notice thereof shall be given to the other party or parties hereto, specifying the provision hereof pursuant to which such termination is made, and this Agreement and the Support Agreements shall immediately become void and of no effect, without any Liability or obligation on the part of Parent, Merger Sub, the Company or their respective directors, officers and Affiliates; provided, that:

(a) the Confidentiality Agreement, Section 5.3(b), Section 5.9, Section 5.10, the expense reimbursement and indemnification provisions of Section 5.11, this Section 7.5, Section 7.6 and Article VIII, as applicable, shall survive the termination hereof;

(b) the Company may have Liability as provided in Section 7.6; and

(c) no such termination shall relieve any party from any Liability resulting from a Willful and Material Breach of this Agreement or for fraud based upon such party’s specific representations and warranties made under this Agreement.

Section 7.6 Fees Following Termination.

(a) Except as set forth in Section 5.11 [Financing] or this Section 7.6, all Expenses incurred in connection with this Agreement and the Merger Transactions shall be paid in accordance with the provisions of Section 5.10 [Fees and Expenses].

(b) The Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds an amount equal to the Termination Fee:

(i) if this Agreement is terminated by Parent pursuant to Section 7.3(b) [Adverse Recommendation Change or No Solicitation Breach] or by the Company pursuant to Section 7.2(a) [Outside Date] at a time when Parent would be permitted to terminate this Agreement pursuant to Section 7.3(b), [Adverse Recommendation Change or No Solicitation Breach] in which case payment shall be made within two (2) Business Days after such termination; or

(ii) if this Agreement is terminated by the Company pursuant to Section 7.4(a), [Superior Proposal Acquisition Agreement] in which case payment shall be made substantially concurrent with such termination; or

(iii) if (A) this Agreement is terminated (x) by the Company or Parent pursuant to Section 7.2(a) [Outside Date] or Section 7.2(c) [Minimum Condition] and there shall not have been a failure of the Offer Condition set forth in clause (b) of Annex I or (y) by Parent pursuant to Section 7.3(a) [Breach of Reps/Warranties], or there shall have been a failure of any Offer Condition set forth in clauses (c), (d) or (e) of Annex I, and (B) within twelve (12) months following the date of such termination set forth in clause (A) of this Section 7.6(b)(iii), the Company enters into a definitive written agreement with respect to any transaction specified in the definition of “Takeover Proposal”, in which case such payment shall be made substantially concurrently with the entry into such definitive written agreement; provided, for purposes of the foregoing clauses (A) and (B), references in the definition of the term “Takeover Proposal” to “20%” shall be deemed to be replaced by “50%”. For greater certainty, notwithstanding anything to the contrary contained herein, in the event the conditions set forth in this Section 7.6(b)(iii) are satisfied, the Company shall pay, or cause to be paid, to Parent the Termination Fee, irrespective of whether the Expense Reimbursement has been paid pursuant to Section 7.6(c) and will be the full Termination Fee without any reduction or set off.

(c) If this Agreement is terminated by Parent or by the Company pursuant to Section 7.2(c) [Minimum Condition], the Company shall pay to Parent (or its designee) by wire transfer of immediately available funds an amount equal to the Expense Reimbursement within two (2) Business Days after such termination.

(d) Parent and the Company acknowledge that the provisions of this Section 7.6 are an integral part of the Merger Transactions and that without these agreements, Parent and the Company would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 7.6, and, in order to obtain the payment, Parent or Merger Sub commences a Legal Action which results in a judgment against the Company for the payment set forth in this Section 7.6, the Company shall pay, as applicable, Parent’s or Merger Sub’s out-of-pocket costs expenses (including reasonable attorneys’ fees and disbursements) in connection with such Legal Action, in addition to any other amounts due pursuant to this Section 7.6, together with interest on each such amount at the prime rate as published in The Wall Street Journal in effect on the date each such payment was required to be made through the date each such payment was actually received.

(e) Subject to Parent’s and Merger Sub’s right to specific performance set forth in Section 8.15, and except in the case of Willful and Material Breach of this Agreement or for fraud, (i) Parent’s right to receive the Termination Fee pursuant to this Section 7.6 shall constitute the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Parent and Merger Sub (and their respective Affiliates) against the Company and its Subsidiaries, their respective Affiliates or Representatives, or any Associated Party of such Affiliates for any damages suffered as a result of the failure of the Merger Transactions to be consummated, and (ii) upon payment of such amount, no Person shall have any other rights or claims against any of the Company, its Subsidiaries, any of their respective Affiliates or Representatives, or any Associated Party of such Affiliates under this Agreement or otherwise, whether at law or equity, in contract, in tort or otherwise, and none of the Company, its Subsidiaries, any of their respective Affiliates or Representatives, or any Associated Party of such Affiliates shall have any further Liability or obligation relating to or arising out of this Agreement or the Merger Transactions. Except in the case of Willful and Material Breach of this Agreement or for fraud, in the event Parent has received all amounts to which it is entitled pursuant to this Section 7.6, none of the Company, any of its Subsidiaries, any of their respective Affiliates or Representatives, nor any Associated Party or such Affiliates representatives shall have any further Liability under this Agreement or in connection with the Merger Transaction.

(f) For the avoidance of doubt, in no event shall the Company be obligated to pay, or cause to be paid, the Termination Fee or the Expense Reimbursement on more than one occasion.

Article VIII

MISCELLANEOUS

Section 8.1 Certain Definitions. For purposes of this Agreement:

(a) “Acceptable Confidentiality Agreement” means a confidentiality agreement between the Company and a Person making a Takeover Proposal entered into prior to the date hereof, or if entered into on or after the date hereof, on terms substantially similar (except with respect to standstill provisions) to the Company than those contained in the Confidentiality Agreement.

(b) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with, such first Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), when used with respect to any Person, means the power to direct or cause the direction of the management or policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

(c) “Associated Party” means, with respect to any Person, such Person’s former, current and future direct or indirect equity holders, controlling persons, shareholders, directors, officers, employees, agents, Affiliates, members, financing sources managers, general or limited partners or assignees.

(d) “Business Day” means any day other than Saturday, Sunday or a day on which the SEC or commercial banks in New York, New York are authorized or required by Law to close.

(e) “Company Stock Plan” means the Company’s Second Amended and Restated 2007 Stock Incentive Plan, as amended.

(f) “Company Material Adverse Effect” shall mean any fact, circumstance, change or effect that, individually or when taken together with all other such facts, circumstances, changes or effects that exist at the date of determination of the occurrence of the Material Adverse Effect, has or is reasonably likely to have a material adverse effect on (1) the business, operations, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, or (2) the ability of the Company to perform its obligations pursuant to this Agreement and to consummate the Merger and the transactions contemplated hereby in a timely manner; provided, however, that with respect to the foregoing clause (1) no facts, circumstances, changes or effects (by themselves or when aggregated with any other facts, circumstances, changes or effects) resulting from, relating to or arising out of the following shall be deemed to be or constitute a Company Material Adverse Effect, and no facts, circumstances, changes or effects resulting from, relating to or arising out of the following (by themselves or when aggregated with any other facts, circumstances, changes or effects) shall be taken into account when determining whether a Company Material Adverse Effect has occurred or may, would or could occur:

(i) economic, financial or political conditions in the United States or any other jurisdiction in which the Company or any of its Subsidiaries has business or operations, and any changes therein, but solely to the extent that such conditions and changes do not have a disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to other companies of comparable size operating in the industry or industries in which the Company operates;

(ii) conditions in the industry or industries in which the Company operates, and any changes therein, but solely to the extent that such conditions and changes do not have a disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to other companies of comparable size operating in the industry or industries in which the Company operates;

(iii) conditions in the financial markets, and any changes therein, but solely to the extent that such conditions and changes do not have a disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to other companies of comparable size operating in the industry or industries in which the Company operates;

(iv) acts of terrorism or war, weather conditions (including, without limitation, earthquakes, hurricanes, tornadoes or similar natural disasters), pandemics (including SARS-CoV-2 or COVID-19, any evolutions or mutations thereof or related or associated epidemics, pandemics or disease outbreaks (“COVID-19”)), epidemics or other outbreaks of disease, quarantine restrictions, power outages, and other force majeure events, but solely to the extent that such conditions and changes do not have a disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to other companies of comparable size operating in the industry or industries in which the Company operates that are located in the same geographical areas as the Company and its Subsidiaries;

(v) the announcement or pendency of this Agreement, the Merger and the other transactions contemplated by this Agreement, including the impact thereof on the relationships, contractual or otherwise, of the Company or any of its Subsidiaries with employees, customers or other business counterparties;

(vi) changes in applicable Law or GAAP (or any interpretations of GAAP), but solely to the extent that such conditions and changes do not have a disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to other companies of comparable size operating in the industry or industries in which the Company operates;

(vii) changes in the Company stock price or the trading volume of the Company’s stock, in and of itself;

(viii) the failure to meet public estimates or forecasts of revenues, earnings or other financial metrics, in and of itself, or the failure to meet internal projections, forecasts or budgets of revenues, earnings or other financial metrics, in and of itself;

(ix) any quarantine, “shelter in place,” “stay at home,” social distancing, shut down, closure, sequester, safety or similar Laws or directive of any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19; or

(x) any Transaction Litigation.

(g) “Company Organizational Documents” means the articles of incorporation and bylaws (or the equivalent organizational documents) of the Company and its Subsidiaries as in effect on the date of this Agreement.

(h) “Company Products” means all products, technologies and services developed (including products, technologies and services under development), owned, made, provided, distributed, imported, sold or licensed by or on behalf of the Company and/or any of its Subsidiaries.

(i) “Company SEC Reports” means any report, schedule, form, statement or other document (including exhibits) filed with or furnished to, or required to be filed with or furnished to, the SEC.

(j) “Company Warrants” shall mean collectively the Hale Warrant and the iStudy Warrant.

(k) “Contract” means any contract, agreement, indenture, note, bond, loan, lease, sublease, conditional sales contract, mortgage, license, sublicense, obligation, promise, undertaking, commitment or other binding arrangement (in each case, whether written or oral).

(l) “Enforceability Exceptions” means (i) any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws of general applicability affecting or relating to creditors’ rights generally and (ii) general principles of equity, whether considered in a proceeding at law or in equity.

(m) “Environmental Laws” means all Laws concerning protection of the environment, employee health and safety, and natural resources, including regulation of Hazardous Materials and other pollutants, and including, without limitation, the federal Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, Comprehensive Environmental Response and Compensation, and Liability Act of 1980, Safe Drinking Water Act, Occupational Safety and Health Act, Hazardous Materials Transportation Act, Federal Food, Drug and Cosmetic Act, and their state and local counterparts.

(n) “ERISA Affiliate” means, with respect to any entity, trade or business, any other entity, trade or business that, together with the Company or any Subsidiary, is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a member of the same “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.

(o) “Expense Reimbursement” means $200,000.

(p) “Governmental Authority” means (i) any federal, state, local, municipal, foreign or international government or governmental authority, quasi-governmental entity of any kind, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral body (public or private) or any other body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature, (ii) any self-regulatory organization, including the Nasdaq, or (iii) any political subdivision of any of the foregoing.

(q) “Hale Warrant” means that certain Warrant to purchase 314,286 shares of Company Common Stock issued by the Company to HCP-FVD, LLC on October 21, 2016, as amended, restated or otherwise modified from time to time.

(r) “Hazardous Materials” means any pollutant, contaminant, toxic substance, petroleum product or by-product, asbestos-containing material, lead-containing paint or plumbing, polychlorinated biphenyls, radioactive material or radon that is regulated pursuant to Environmental Laws.

(s) “Intellectual Property” means all rights with respect to: (i) patents and applications therefor, and patents issuing thereon, including continuations, divisionals, continuations-in-part, reissues, reexaminations, renewals and extensions; (ii) copyrights and registrations and applications therefor; (iii) domain names, uniform resource locators and other names and locators associated with the internet, including applications and registrations thereof; (v) Trademarks; (iv) Trade Secrets; and (v) all claims, causes of action and rights to sue for past, present and future infringement or misappropriation of the foregoing.

(t) “Intellectual Property Rights” means common law and statutory rights anywhere in the world arising under or associated with (i) patents and patent applications and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof (“Patent”); (ii) copyrights, copyright registrations and copyright applications, “moral” rights and mask work rights (“Copyrights”); (iii) rights in trade and industrial secrets and in confidential information and know-how; (iv) trademarks, trade names, logos and service marks, and any applications or registration of the same, and all related goodwill therefor throughout the world (“Trademarks”); (v) domain names, uniform resource locators, other names and locators associated with the Internet, and all registrations therefor; (vi) all rights in databases and data collections; (vii) other proprietary rights relating or with respect to the protection of technology; (viii) analogous rights to those set forth above; and (ix) all past, present and future claims and causes of action arising out of or related to infringement or misappropriation of any of the foregoing.

(u) “Intervening Event” means any material event, fact, circumstance, development or occurrence that (i) was not known to, or reasonably foreseeable by, the Company Board as of or prior to the date hereof, and (ii) becomes known to the Company Board prior to the Offer Acceptance Time.

(v) “iStudy Warrant” means that certain Warrant to purchase 100,000 shares of Company Common Stock issued by the Company to iStudy Co., Ltd. on August 31, 2018, as amended, restated or otherwise modified from time to time.

(w) “Knowledge” means (i) when used with respect to the Company, means the actual knowledge after reasonable inquiry of the individuals listed on Section 8.1(w) of the Company Disclosure Schedule, and (ii) when used with respect to Parent, the actual knowledge of any of the officers or directors of Parent or Merger Sub, after reasonable inquiry.

(x) “Law” means any federal, state, foreign, local, or municipal law, common law, statute, ordinance, code, constitution, legislation, principle of common law, resolution, ordinance, code, edict, decree, directive, judgment, decision, regulation, rule or other requirement of any Governmental Authority, and any Orders.

(y) “Liens” means any mortgages, liens, pledges, security interests, hypothecations, claims, deeds of trust, options, rights of first offer or refusal, restrictions on transfer, charges or other encumbrances in respect of any property or asset.

(z) “Open Source Software” means any software (in source or object code form) that is subject to (a) a license or other agreement commonly referred to as an open source, free software, copyleft or community source code license (including any code or library licensed under the GNU General Public License, GNU Lesser General Public License, BSD License, Apache Software License, or any other public source code license arrangement), or (b) any other license or other agreement that requires, as a condition of the use, modification or distribution of software subject to such license or agreement, that such software or other software linked with, called by, combined or distributed with such software be (i) disclosed, distributed, made available, offered, licensed or delivered in source code form, (ii) licensed for the purpose of making derivative works, (iii) licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind, or (iv) redistributable at no charge, including any license defined as an open source license by the Open Source Initiative as set forth on www.opensource.org.

(aa) “Orders” means any orders, decisions, judgments, writs, injunctions, decrees, awards or other determination of any Governmental Authority.

(bb) “Owned Intellectual Property” means all Intellectual Property related to the business of the Company and its Subsidiaries that is owned or purported to be owned by either the Company or any of its Subsidiaries, as the case may be.

(cc) “Parent Material Adverse Effect” means any effect, change, event or occurrence that prevents or materially delays, interferes with, hinders or impairs (i) the consummation by Parent or Merger Sub of any of the Merger Transactions on a timely basis or (ii) the compliance by Parent or Merger Sub with their respective obligations under this Agreement.

(dd) “Permitted Lien” means (i) any Lien for Taxes which are not yet due or which are being contested in good faith by appropriate proceedings and for which, in each case, adequate reserves have been established therefore in accordance with GAAP, (ii) Liens securing indebtedness or liabilities that are reflected in the Company SEC Reports, (iii) such non-monetary Liens or other imperfections of title with respect to real property, if any, that are not materially adverse to the Company and its Subsidiaries, including (A) easements whether or not shown by the public records, overlaps, encroachments and any matters not of record which would be disclosed by an accurate survey or a personal inspection of the property, (B) any supplemental Taxes or assessments not shown by the public records and (C) title to any portion of the premises lying within the right of way or boundary of any public road or private road, (iv) Liens imposed or promulgated by Laws with respect to real property and improvements, including zoning regulations, (v) Liens disclosed on existing title insurance policies, title reports or existing surveys which have (together with all documents creating or evidencing such Liens) been delivered to Parent, (vi) mechanics’, carriers’, workmen’s, repairmen’s and similar Liens incurred in the ordinary course of business consistent with past practice for amounts not yet due or which are being contested in good faith by appropriate proceedings, but only if adequate reserves have been established therefor in accordance with GAAP, (vii) in the case of leased real property, any Lien to which the fee or any other interest in the leased premises is subject, (viii) any right, restriction or covenant associated with any license of Intellectual Property and (ix) other Liens that would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries taken as a whole.

(ee) “Person” means any natural person, corporation, company, partnership, association, limited liability company, limited partnership, limited liability partnership, trust or other legal entity or organization, including a Governmental Authority.

(ff) “Personal Data” means, in addition to any definition provided by an applicable Law, any information that specifically identifies, or is capable of identifying, any individual Person or device, or any information that could be associated with such individual or device, such as an address, e-mail address, telephone number, health information, financial information, drivers’ license number, location information, or government issued identification number. Personal Data includes information in any form, including paper, electronic and other forms.

(gg) “Representatives” means, when used with respect to any Person, the directors, officers, employees, consultants, accountants, legal counsel, investment bankers or other financial advisors, agents and other representatives of such Person and its Subsidiaries.

(hh) “Rights” means any rights, title, interest or benefit of whatever kind or nature.

(ii) “Subsidiary” means, when used with respect to any Person, any other Person that such Person, directly or indirectly, owns or has the power to vote or control more than 50% of the equity interests, capital stock, voting stock or other equity or voting interests of such other Person.

(jj) “Superior Proposal” means any bona fide written Takeover Proposal made by a third party after the date hereof (with all percentages included in the definition of “Takeover Proposal” increased to 80%), taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, that (i) is reasonably likely to be consummated and (ii) if consummated, would be more favorable to the shareholders of the Company, taken as a whole, in each case from a financial point of view, than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions thereof proposed in writing by Parent in response to any such Takeover Proposal); provided that a Takeover Proposal shall not be more favorable from a financial point of view unless such Takeover Proposal provides that the holders of each share of Common Stock shall have the right to receive consideration of at least $0.945 per share in cash.

(kk) “Takeover Proposal” means any proposal or offer relating, directly or indirectly, to (i) a merger, consolidation, spin-off, share exchange (including a split-off) or business combination involving 20% or more of the capital stock of the Company or any of its Subsidiaries or consolidated assets of the Company and its Subsidiaries, taken as a whole, (ii) a sale, lease, exchange, mortgage, transfer or other disposition, in a single transaction or series of related transactions, of assets representing 20% or more of the consolidated assets, revenues or gross profits of the Company and its Subsidiaries, taken as a whole, (iii) a purchase or other acquisition or sale of shares of capital stock or other securities, in a single transaction or series of related transactions, representing 20% or more of the voting power of the capital stock of the Company or any of its Subsidiaries, including by way of a tender offer or exchange offer, (iv) a reorganization, recapitalization, liquidation or dissolution of the Company or (v) any other transaction having a similar effect to those described in clauses (i) through (iv).

(ll) “Tax Returns” means any and all reports, returns, declarations, claims for refund, information reports or returns or statements supplied or required to be supplied to a Governmental Authority, or maintained or required to be maintained by a Governmental Authority or pursuant to applicable Law, in connection with Taxes, including any schedule or attachment thereto or amendment thereof.

(mm) “Taxes” means any and all federal, state, local or foreign taxes, levies, imposts, duties, and similar governmental charges or fees (including any interest, penalties or additions to tax imposed in connection therewith or with respect thereto) imposed by any Governmental Authority, including (i) taxes imposed on, or measured by, income, franchise, profits or gross receipts and (ii) ad valorem, value added, capital gains, sales, goods and services, use, excise, stamp, real or personal property, capital stock, business, license, branch, profits, payroll, estimated, withholding, employment, social security (or similar), unemployment compensation, occupation, premium, windfall profits, escheat, unclaimed property, transfer and gains taxes.

(nn) “Termination Fee” means $800,000.

(oo) “Trade Secrets” means information, including a formula, algorithm, data architecture, pattern, compilation, program, device, method, technique, know-how or process, that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons who can obtain economic value from its disclosure or use.

(pp) “Transaction Litigation” means any Legal Action asserted, threatened or commenced by, on behalf of or in the name of, against or otherwise involving the Company, the Company Board or any committee thereof, or any of the Company’s directors or officers, in connection with, arising from or otherwise relating to or regarding this Agreement, the Merger or the Merger Transactions, including the Offer Documents, the Schedule 14D-9 or any other communications to the holders of the Common Stock or any other SEC filing relating to the Merger Transactions.

(qq) “Willful and Material Breach” means a material breach, or a material failure to perform, in each case that is the consequence of an act or omission by a party with the actual knowledge that the taking of such act or failure to take such act would or would reasonably be expected to cause a breach of this Agreement, it being understood that such term shall include, in any event, Parent’s or Merger Sub’s failure to cause the Offer Acceptance Time to occur or to consummate the Closing when required to do so by this Agreement.

Section 8.2 Interpretation. Unless the express context otherwise requires:

(a) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(b) terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa;

(d) references herein (whether capitalized or not) to a specific Section, Subsection, Recital, Schedule, Exhibit or Annex shall refer, respectively, to Sections, Subsections, Recitals, Schedules, Exhibits of Annexes of this Agreement unless the context otherwise requires;

(e) wherever the word “include”, “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

(f) references herein to any gender shall include each other gender;

(g) references herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and assigns; provided, that nothing contained in this Section 8.2 is intended to authorize any assignment or transfer not otherwise permitted by this Agreement;

(h) references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity;

(i) with respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”;

(j) the word “or” shall be disjunctive but not exclusive;

(k) references herein to any Law shall be deemed to refer to such Law as amended, modified, codified, reenacted, supplemented or superseded in whole or in part and in effect from time to time, and also to all rules and regulations promulgated thereunder;

(l) references herein to any Contract mean such Contract as amended, supplemented or modified (including any waiver thereto) in accordance with the terms thereof;

(m) the headings contained in this Agreement are intended solely for convenience and shall not affect the rights of the parties to this Agreement;

(n) with regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence;

(o) if the last day for the giving of any notice or the performance of any act required or permitted under this Agreement is a day that is not a Business Day, then the time for the giving of such notice or the performance of such action, unless otherwise required by Law, shall be extended to the next succeeding Business Day;

(p) references herein to “as of the date hereof”, “as of the date of this Agreement” or words of similar import shall be deemed to mean “as of immediately prior to the execution and delivery of this Agreement”; and

(q) “made available” to Parent refers to information posted by the Company in the virtual data room for “Project Cosmos” hosted on Datasite, as accessible to Parent at 11:59 p.m. (Eastern Standard Time) on the date of this Agreement.

Section 8.3 No Survival. None of the representations and warranties contained in this Agreement or in any instrument delivered under this Agreement shall survive the Effective Time. This Section 8.3 shall not limit any covenant or agreement of the parties to this Agreement which, by its terms, contemplates performance after the Effective Time.

Section 8.4 Governing Law. This Agreement, and any dispute, claim, legal action, suit, proceeding or controversy arising out of or relating hereto, shall be governed by, and construed in accordance with, the Law of the State of Delaware, without regard to conflict of law principles thereof; provided, however, the laws of the State of Minnesota shall apply to the extent such laws are mandatorily applicable (including with respect to matters relating to (a) the filing of the Articles of Merger and the effects of the Merger and (b) the exercise of the fiduciary duties of the Company Board).

Section 8.5 Submission to Jurisdiction. Each party to this Agreement (a) irrevocably and unconditionally submits to the jurisdiction of the Court of Chancery of the State of Delaware (or, only if such court declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware, and any appellate court therefrom (the “Chosen Courts”), (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that any actions or proceedings arising in connection with this Agreement or the Merger Transactions shall be brought, tried and determined only in the Chosen Courts, (d) waives any claim of improper venue or any claim that the Chosen Courts are an inconvenient forum and (e) agrees that it will not bring any action relating to this Agreement or the Merger Transactions in any court other than the Chosen Courts.

Section 8.6 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER DOCUMENTS AND AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED AND UNDERSTANDS THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.6.

Section 8.7 Notices. All notices and other communications hereunder shall be in writing and shall be addressed as follows (or at such other address for a party as shall be specified by like notice):

If to Parent or Merger Sub, to:

80 Tiverton Court, Suite 800

Markham, Ontario, L3R 0G4

Attention: Steve Sadler, Chairman & CEO

Email: ***@***

with a copy (which shall not constitute notice) to:

80 Tiverton Court, Suite 800

Markham, Ontario, L3R 0G4

Attention: Todd May, Vice President & General Counsel

Email: ***@***

and

Paul, Weiss, Rifkind, Wharton & Garrison LLP

Toronto, Ontario M5K 1J3

Attention: Ian M. Hazlett

Email: ***@***

If to the Company, to:

Qumu Corporation

400 S. 4th Street, Suite 401-412

Minneapolis, Minnesota 55415

Attention: Chief Executive Officer

with a copy (which shall not constitute notice) to:

Ballard Spahr LLP

80 South Eighth Street, Suite 2000

Minneapolis, Minnesota 55402

Attn: April Hamlin and Michael R. Kuhn

Email: ***@*** and ***@***

All such notices or communications shall be deemed to have been delivered and received (a) if delivered in person, on the day of such delivery, (b) if by facsimile and electronic mail, on the day on which such facsimile and electronic mail were sent; provided, that receipt is confirmed, (c) if by certified or registered mail (return receipt requested), on the fifth Business Day after the mailing thereof or (d) if by reputable overnight delivery service, on the second Business Day after the sending thereof.

Section 8.8 Amendment. Subject to compliance with applicable Law, at any time prior to the Effective Time, this Agreement may be amended or supplemented in any and all respects by written agreement of the parties hereto; provided that following the Offer Acceptance Time, this Agreement may not be amended in any manner that causes the Merger Consideration to differ from the Offer Price. This Agreement may not be amended or supplemented after the Effective Time.

Section 8.9 Extension; Waiver. At any time before the Offer Acceptance Time, Parent and Merger Sub, on the one hand, and the Company, on the other hand, may (a) extend the time for the performance of any of the obligations of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained in this Agreement or in any document delivered under this Agreement or (c) subject to applicable Law, waive compliance by the other party with any of the covenants or conditions contained in this Agreement. Any agreement on the part of a party to any extension or waiver shall be valid only if set forth in an instrument in writing signed by such party. The failure of any party to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege under this Agreement.

Section 8.10 Entire Agreement. This Agreement (including the Exhibits and Annexes hereto), the Company Disclosure Schedule, the Support Agreements and the Confidentiality Agreement constitute the entire agreement and supersede all prior or contemporaneous agreements, negotiations, correspondence, undertakings, understandings, representations and warranties, both written and oral, among the parties to this Agreement with respect to the subject matter of this Agreement.

Section 8.11 No Third-Party Beneficiaries. Except (a) as provided in Section 5.6, Section 7.6(e), Section 8.15 and Section 8.17, (b) if the Offer Acceptance Time occurs, for the rights of holders of Common Stock that validly tendered their shares in the Offer to receive the Offer Price in respect of such shares and (c) if the Effective Time occurs, for the rights of the holders of Common Stock to receive the Merger Consideration and for the rights of the holders of Company Equity Awards to receive such amounts as provided for in Section 2.3, Parent, Merger Sub and the Company hereby agree that their respective representations, warranties, covenants and agreements set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein.

Section 8.12 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or the application of that provision to any Person or any circumstance, is determined by a court of competent jurisdiction to be invalid or unenforceable, then (a) the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law and (b) the remainder of this Agreement and the application of that provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of that provision, or the application of that provision, in any other jurisdiction.

Section 8.13 Rules of Construction. The parties have participated jointly in negotiating and drafting this Agreement. If an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. Subject to and without limiting the introductory language to Article III, the Company has or may have set forth information in the Company Disclosure Schedule in a section of such Company Disclosure Schedule that corresponds to the section of this Agreement to which it relates. The fact that any item of information is disclosed in the Company Disclosure Schedule shall not constitute an admission by the Company that such item is material, that such item has had or would reasonably be expected to result in any Company Material Adverse Effect.

Section 8.14 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their permitted successors and assigns. No party to this Agreement may assign or delegate, by operation of Law or otherwise, all or any portion of its rights or Liabilities under this Agreement without the prior written consent of the other parties to this Agreement, which any such party may withhold in its absolute discretion. No assignment by any party shall relieve such party of any of its obligations hereunder. Any purported assignment not permitted hereby shall be null and void.

Section 8.15 Specific Performance.

(a) The parties to this Agreement agree that irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies (including those as set forth in Section 7.6) would not be an adequate remedy for any such non-performance or breach. It is accordingly agreed that, subject to Section 8.15(b), the parties to this Agreement shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Chosen Courts, without proof of damages or otherwise, this being in addition to any other remedy at law or in equity, and the parties to this Agreement hereby waive any requirement for the posting of any bond or similar collateral in connection therewith. Each party hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that or otherwise assert that (i) the other party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity.

(b) Notwithstanding anything to the contrary in Section 8.15(a), the right of the Company to seek an injunction, specific performance or other equitable relief in connection with enforcing Parent’s obligation to fund the Offer Price and the Merger Consideration and Parent’s and Merger Sub’s obligations to cause the Offer Acceptance Time to occur and to effect the Closing (but not the right of the Company to seek such injunctions, specific performance or other equitable relief for any other reason) shall be subject to the requirements that (i) all of the Offer Conditions have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Offer Acceptance Time, but subject to such conditions being able to be satisfied) or waived at the Expiration Time, and (ii) the Company has irrevocably confirmed that it would take such actions required of it by this Agreement to cause the Closing to occur.

Section 8.16 Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts, as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. Facsimile signatures or signatures received as a pdf attachment to electronic mail shall be treated as original signatures for all purposes of this Agreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart signed by all of the other parties hereto.

Section 8.17 Non-Recourse. All claims or causes of action (whether in contract or in tort, at law or in equity) that may be based upon, arise out of or relate to this Agreement or the Merger Transactions or the negotiation, execution, performance or non-performance of this Agreement or the Merger Transactions (including any representation or warranty made in or in connection with this Agreement or the Merger Transactions) may be made by any party hereto only against the Persons that are expressly identified as parties hereto or thereto. In no event shall any named party to this Agreement have any shared or vicarious liability for the actions or omissions of any other Person. No Person who is not a named party to this Agreement, including any director, officer, employee, incorporator, member, partner, shareholder, Affiliate, agent, attorney or other Representative of any named party to this Agreement that is not itself a named party to this Agreement (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, at law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) to any party to this Agreement for any obligations or liabilities arising under, in connection with or related to this Agreement, or for any claim based on, in respect of, or by reason of this Agreement or its negotiation or execution; and each party hereto waives and releases all such liabilities, claims and obligations against any such Non-Party Affiliates. The parties acknowledge and agree that the Non-Party Affiliates are intended third-party beneficiaries of this Section 8.17.

[Signature page follows]

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties to this Agreement as of the date first written above.

	ENGHOUSE INTERACTIVE, INC.

	By:	/s/ Stephen Sadler
	Name:	Stephen Sadler
	Title:	Chief Executive Officer

	Cosmos Merger Sub, Inc.

	By:	/s/ Stephen Sadler
	Name:	Stephen Sadler
	Title:	Chief Executive Officer

	QUMU CORPORATION

	By:	/s/ Rose Bentley
	Name:	Rose Bentley
	Title:	Chief Executive Officer

Signature Page to Agreement and Plan of Merger

Annex I

Offer Conditions

Notwithstanding any other provision of the Agreement or the Offer and subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment or pay for, and, subject to such rules and regulations, may delay the acceptance for payment or payment for, any shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer and may terminate or amend the Offer in accordance with the terms of this Agreement, if any of the following conditions exist or have occurred and are continuing at the scheduled Expiration Time of the Offer:

(a) Minimum Condition. The number of shares of Common Stock validly tendered (and not properly withdrawn) prior to the expiration of the Offer (but excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depository,” as such terms are defined by Section 302A.613(4)(b) of the MBCA), together with any shares of Common Stock otherwise owned by Merger Sub or its Affiliates, do not represent at least one share more than 50% of the then issued and outstanding shares of Common Stock (the “Minimum Condition”).

(b) Orders. Any Law or Order shall be in effect enjoining or otherwise prohibiting consummation of the Offer or the Merger.

(c) Representations and Warranties. The representations and warranties of the Company (i) set forth in Section 3.8 and Section 3.12(b) shall not be true and correct in all respects (other than any inaccuracies of the representations and warranties set forth in Section 3.8 that do not increase the aggregate consideration payable by Parent and Merger Sub as contemplated by Article I and Article II of this Agreement), (ii) set forth in Section 3.1, Section 3.3, Section 3.4, Section 3.5, Section 3.29 and Section 3.30 shall not be true and correct in all material respects as of the date of the Agreement and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (iii) set forth in this Agreement, other than those Sections specifically identified in clause (i) through (ii) of this paragraph (c), shall not be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iv), where the failure to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(d) Compliance with Covenants. The Company shall not have complied with or performed, or caused compliance or performance with, in all material respects (but in all respects, without reference to materiality, in the case of Section 5.10(b)) its obligations required to be complied with or performed by it prior to the Expiration Time under the Agreement and such failure to comply or perform shall not have been cured by the Expiration Time.

(e) Company Material Adverse Effect Condition. Since the date of the Agreement there shall have been any effect, change, event or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect.

(f) No Termination of Agreement. The Agreement shall have been terminated in accordance with its terms.

(g) Certificate. Parent shall not have received a certificate signed on behalf of the Company by an executive officer of the Company, certifying that none of the conditions set forth in clause (c), (d) or (e) hereof shall be continuing as of the Expiration Time.

The foregoing conditions are for the sole benefit of Parent and Merger Sub and, other than the Minimum Condition, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their respective sole discretion, in each case subject to the terms and conditions of this Agreement and to the extent permitted by applicable Law. The failure by Parent, Merger Sub or any other Affiliate of Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.

The capitalized terms used in this Annex I shall have the meanings set forth in the Agreement to which it is annexed unless specifically defined in this Annex I.

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