AGREEMENT AND PLAN OF MERGER

AMONG

MOTOROLA, INC.,

MOTOROLA GTG SUBSIDIARY I CORP.

AND

SYMBOL TECHNOLOGIES, INC.

DATED AS OF SEPTEMBER 18, 2006

DEFINED TERMS   

AGREEMENT AND PLAN OF MERGER

RECITALS

WHEREAS, the respective Boards of Directors of Merger Sub and the Company have approved, in accordance with the Delaware General Corporation Law ("Delaware Law"), this Agreement and the transactions contemplated hereby, including the Merger; and

WHEREAS, Parent, as the sole stockholder of Merger Sub, has approved and adopted this Agreement and approved the Merger pursuant to the terms and subject to the conditions set forth herein; and

NOW, THEREFORE, in consideration of the promises, and of the representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:

ARTICLE I
THE MERGER

1.1 The Merger. At the Effective Time and subject to and upon the terms and conditions of this Agreement and the applicable provisions of Delaware Law, Merger Sub shall be merged with and into the Company (the "Merger"), the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation and as a wholly-owned subsidiary of Parent. The surviving corporation after the Merger is hereinafter sometimes referred to as the "Surviving Corporation."

1.2 Effective Time; Closing. Subject to the provisions of this Agreement, the parties hereto shall cause the Merger to be consummated by filing a Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the relevant provisions of Delaware Law (the "Certificate of Merger") (the time of such filing with the Secretary of State of the State of Delaware (or such later time as may be agreed in writing by the Company and Parent and specified in the Certificate of Merger) being the "Effective Time") on the Closing Date. The closing of the Merger (the "Closing") shall take place at the offices of Winston & Strawn LLP, located at 35 West Wacker Drive, Chicago, Illinois, at a time and date to be specified by the parties, which shall be no later than the fifth Business Day after the satisfaction or waiver of the conditions set forth in Article VIII (other than those that by their terms are to be satisfied or waived at the Closing), or at such other time, date and location as the parties hereto agree in writing taking into consideration the best interests of the operations of the Company and Parent and the best interests of the stockholders of the Company and Parent. The date on which the Closing occurs is referred to herein as the "Closing Date." "Business Day" shall mean each day that is not a Saturday, Sunday or other day on which Parent is closed for business or banking institutions located in Chicago, Illinois or New York, New York, are authorized or obligated by law or executive order to close. 

1.3 Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, obligations, claims, liabilities and duties of the Company and Merger Sub shall become the debts, obligations, claims, liabilities and duties of the Surviving Corporation.

ARTICLE II
CERTIFICATE OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION

2.1 The Certificate of Incorporation. At the Effective Time, the certificate of incorporation of the Company as in effect immediately prior to the Effective Time shall be amended and restated in its entirety to be identical to the certificate of incorporation of the Merger Sub (the "Charter") attached hereto as Exhibit A, until thereafter amended as provided therein or by applicable Law; provided, however, that at the Effective Time, Article I of the certificate of incorporation of the Surviving Corporation shall be amended and restated in its entirety to read as follows: "The name of the corporation is Symbol Technologies, Inc.". After the Effective Time, the authorized capital stock of the Surviving Corporation shall consist of 1,000 shares of common stock, par value $0.01 per share.

2.2 The By-Laws. At the Effective Time, the by-laws of the Company in effect at the Effective Time shall be amended and restated in their entirety to be identical to the by-laws of Merger Sub, as in effect immediately prior to the Effective Time (the "By-Laws") attached hereto as Exhibit B, until thereafter amended as provided therein or by applicable Law.

ARTICLE III
OFFICERS AND DIRECTORS
OF THE SURVIVING CORPORATION  

3.1 Directors. The directors of Merger Sub at the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Charter and the By-Laws, and the Board of Directors of the Company shall take all such actions as may be necessary or appropriate to give effect to the foregoing.

3.2 Officers. The officers of Merger Sub at the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Charter and the By-Laws.

ARTICLE IV
CONVERSION OF SECURITIES

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

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

(b) Cancellation of Treasury Stock and Parent-Owned Stock. All shares of common stock, par value $0.01 per share, of the Company ("Company Common Stock") that are owned by the Company as treasury stock and any shares of Company Common Stock owned by Parent, Merger Sub or any direct or indirect Subsidiaries of Parent immediately prior to the Effective Time shall be cancelled and shall cease to exist and no payment shall be made with respect thereto.

(c) Merger Consideration for Company Common Stock. Subject to Section 4.2, each share of Company Common Stock (other than shares to be cancelled in accordance with Section 4.1(b) and Dissenting Shares (as hereinafter defined)) issued and outstanding immediately prior to the Effective Time shall be automatically converted into the right to receive $15.00 in cash per share, without interest (the "Merger Consideration"). As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration pursuant to this Section 4.1(c) upon the surrender of such certificate in accordance with Section 4.2, without interest (or in the case of Dissenting Shares, the rights contemplated by Section 4.7 hereof).

(d) Adjustments to Prevent Dilution. In the event that the Company changes the number of shares of Company Common Stock or securities convertible or exchangeable into or exercisable for shares of Company Common Stock issued and outstanding prior to the Effective Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, merger, subdivision, issuer tender or exchange offer, or other similar transaction, the Merger Consideration shall be equitably adjusted; provided, however, that no such adjustment shall be made for issuances or changes in the number of shares of Company Common Stock (or securities convertible or exchangeable into or exercisable for shares of Company Common Stock) that occur in the ordinary course of the Companys business pursuant to the conversion, exchange or exercise of any outstanding securities which are in existence as of the date of this Agreement or permitted by the terms hereof to be issued after the date hereof.

4.2 Exchange of Certificates. The procedures for exchanging outstanding shares of Company Common Stock for the Merger Consideration pursuant to the Merger, and Company Stock Options for the Option Payments, are as follows:

(a) Exchange Agent. At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with an exchange agent appointed by Parent and approved by the Company prior to the date hereof (the "Exchange Agent"), for the benefit of the holders of shares of Company Common Stock, for payment through the Exchange Agent in accordance with this Section 4.2, cash in an amount equal to the product of the Merger Consideration and the number of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, including all shares of Restricted Stock (exclusive of any shares to be cancelled pursuant to Section 4.1(b)) (the "Exchange Fund"), plus any cash necessary to pay the Option Payments pursuant to Section 4.3(b) and to make payments (if any) with respect to the ESPP pursuant to Section 4.4. Pending distribution of the cash deposited with the Exchange Agent, such cash shall be held in trust for the benefit of the holders of Company Common Stock entitled to receive the Merger Consideration and the Option Holders entitled to receive the Option Payments and shall not be used for any other purposes; provided, however, any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 4.1(c), Section 4.3 and, if any, Section 4.4, shall be promptly returned to Parent. The Exchange Agent shall invest the Exchange Fund as directed by Parent provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moodys Investors Service, Inc. or Standard & Poors Corporation, respectively, or in certificates of deposit, bank repurchase agreements or bankers acceptances of commercial banks with capital exceeding $1 billion, provided that no such investments shall have maturities that could prevent or delay payments to be made pursuant to this Article IV.

(b) Exchange Procedures. Promptly (and in any event within five (5) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record of a certificate which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (each, a "Certificate"), and to each Option Holder from which Parent (or agent thereof) received prior to the Closing Date an Option Consent pursuant Section 4.3(b), (i) a letter of transmittal in customary form and as approved by the Company and (ii) instructions for effecting the surrender of (A) the Certificates in exchange for the Merger Consideration payable with respect thereto or (B) the agreements representing the grant of such Company Stock Option (each, an "Option Agreement") (or other reasonably acceptable evidence of surrender of such Company Stock Option as required by the Exchange Agent) in exchange for the Option Payments payable with respect thereto. Upon surrender of a Certificate or Option Agreement (or effective affidavit of loss required by Section 4.2(g) in lieu thereof) for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such Certificate or Option Agreement shall be entitled to receive in exchange therefor the Merger Consideration or Option Payment that such holder has the right to receive pursuant to the provisions of this Article IV, after giving effect to any required withholding taxes pursuant to Section 4.2(f) and Section 4.3(b) hereof, and the Certificate or Option Agreement so surrendered shall immediately be cancelled. No interest will be paid or accrued on the cash payable upon the surrender of such Certificates or Option Agreements. In the event of a transfer of ownership of Company Common Stock which is not registered in the transfer records of the Company, it will be a condition of payment of the Merger Consideration that the surrendered Certificate be properly endorsed, with signatures guaranteed, or otherwise in proper form for transfer and that the Person requesting such payment will pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the surrendered Certificate or such Person will establish to the satisfaction of Parent that such taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 4.2, each Certificate or Option Agreement (or effective affidavit of loss required by Section 4.2(g) in lieu thereof) shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration as contemplated by this Section 4.2 or the Option Payment as contemplated by Section 4.3(b). For purposes of this Agreement, the term "Person" shall mean an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.

(c) No Further Ownership Rights in Company Common Stock. From and after the Effective Time there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock which were outstanding immediately prior to the Effective Time and holders of Certificates shall cease to have any rights as stockholders of the Surviving Corporation other than the right to receive the Merger Consideration upon surrender of such Certificates in accordance with Section 4.2(b) and Section 4.2(g) (or in the case of Dissenting Shares, the rights contemplated by Section 4.7 hereof) and any dividend or distribution with respect to shares of Company Common Stock evidenced by such Certificates with a record date prior to the Closing Date. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be cancelled and exchanged as provided in this Article IV.

(d) Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of Company Common Stock for nine (9) months after the Effective Time shall be delivered to Parent, upon demand, and any former holder of Company Common Stock who has not previously complied with this Section 4.2 shall be entitled to receive only from Parent, and Parent shall remain liable for, payment of its claim for Merger Consideration, without interest.

(e) No Liability. To the extent permitted by applicable Law, none of Parent, Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any holder of shares of Company Common Stock delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(f) Withholding Rights. Each of Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any other applicable state, local or foreign Tax Law. To the extent that amounts are so withheld by the Surviving Corporation or Parent, as the case may be, such withheld amounts (i) shall be remitted by Parent or the Surviving Corporation, as the case may be, to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by the Surviving Corporation or Parent, as the case may be.

(g) Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, and, if required by Parent, the posting by such Person of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall pay, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration, as applicable, to be paid pursuant to this Agreement in respect of the shares of Company Common Stock formerly represented by such Certificate.

4.3 Company Options.

(a) Not less than thirty (30) days before the Closing Date, the Company shall provide written notice to each holder (an "Option Holder") of a Company Stock Option (as defined in Section 5.2(a)), other than a Company Stock Option under the Companys 2000 Directors Stock Option Plan, that is outstanding as of the date of such notice that (i) such Option Holder may exercise his or her Company Stock Options, whether or not then vested or exercisable (it being understood that any such exercises of Company Stock Options that are not vested or exercisable as of the date of the Option Holders exercise shall only be effective immediately prior to the Effective Time), and (ii) each Company Stock Option, to the extent unexercised by the Closing Date, shall thereafter be terminated and shall no longer be exercisable. To the extent an Option Holder exercises his or her Company Stock Options prior to the Effective Time, such Option Holder shall thereafter be a holder of Company Common Stock and shall receive in exchange therefor (other than with respect to Dissenting Shares) the Merger Consideration in accordance with the provisions of Section 4.1(c).

(b) Notwithstanding the provisions of Section 4.3(a), in lieu of an Option Holder exercising his or her Company Stock Options, such Option Holder may choose to consent to the cancellation, effective immediately prior to the Effective Time, of each of his or her outstanding Company Stock Options in consideration for a cash payment (the "Option Payment") in respect of such cancellation in an amount (if any) equal to (i) the product of (x) the number of shares of Company Common Stock subject to such Company Stock Option held by such Option Holder, whether or not then vested or exercisable, and (y) the excess, if any, of the Merger Consideration over the exercise price per share of Company Common Stock subject to such Company Stock Option, minus (ii) all applicable federal, state and local Taxes required to be withheld by the Company. In order to elect to receive the Option Payment, an Option Holder must execute and return a signed agreement (the "Option Consent") to Parent (or agent thereof) prior to the Closing Date. The Option Payment shall be paid by the Exchange Agent as promptly as reasonably practicable after the Closing Date, subject to receipt by the Exchange Agent of all necessary documents as required by the Exchange Agent pursuant to Section 4.2(b)). The Company agrees to take any and all actions necessary (including the adoption of resolutions by the Company Board and any other action reasonably requested by Parent) to approve and effectuate the foregoing.

(c) Each Company Stock Option not exercised prior to the Closing Date pursuant to Section 4.3(a), or for which an Option Consent is not received by Parent (or agent thereof) prior to the Closing Date pursuant to Section 4.3(b), shall be terminated at the Effective Time, shall no longer be exercisable and shall not be entitled to any payment in connection with the Merger.

(d) Prior to the Closing Date, the Company shall take all actions necessary with respect to outstanding Company Stock Options under the Companys 2000 Directors Stock Option Plan, including obtaining the written consent of each holder of such Company Stock Option, so that each such Company Stock Option that is not exercised by the Closing Date will be (i) terminated as of the Closing Date or (ii) cancelled, effective immediately prior to the Effective Time, in exchange for payment of the Option Payment (calculated as set forth in Section 4.3(b)).

4.4 Employee Stock Purchase Plan. The Company shall take all necessary actions with respect to the Symbol Technologies, Inc. Employee Stock Purchase Plan, as amended (the "ESPP"), to prevent the commencement of any new payment periods (as defined in the ESPP) on or after the date of this Agreement. With respect to the Current Payment Period (as defined below), the Company shall cause, in accordance with the terms of the ESPP and the ordinary course of business, all options outstanding under the ESPP on the last day of the Current Payment Period to be exercised, at the option price per share as of the last business day of the Current Payment Period. For purposes of this Agreement, the term "Current Payment Period" means the payment period (as defined in the ESPP) containing the date of this Agreement. Immediately prior to the Effective Time, the Company shall terminate the ESPP.

4.5 Restricted Stock. All shares of restricted stock or other similar rights awarded under the Company Stock Plans (as defined in Section 5.2(a)) ("Restricted Stock"), including, without limitation, all restricted stock or other similar rights granted under the Symbol Technologies, Inc. 2004 Equity Incentive Award Plan subject to performance based vesting provisions and all rights granted under the Symbol Technologies Deferred Compensation Plan shall become fully vested immediately prior to the Effective Time (whether as a result of the Merger and the other transactions contemplated by this Agreement or otherwise) and shall be converted in accordance with Section 4.1. The Company agrees to take any and all actions necessary (including the adoption of resolutions by the Company Board and any other action reasonably requested by Parent) to approve and effectuate the foregoing.

4.6 Actions by the Company. Except as contemplated by Section 4.3, the Company shall take all actions reasonably necessary to ensure that from and after the Effective Time the Surviving Corporation will not be bound by any options, rights, awards or arrangements to which the Company is a party which would entitle any Person, other than Parent or Merger Sub, to beneficially own shares of the Surviving Corporation or Parent or receive any payments (other than as set forth in Section 4.3) in respect of such options, rights, awards or arrangements.

4.7 Dissenting Shares.

(a) Notwithstanding any other provisions of this Agreement to the contrary, any shares of Company Common Stock held by a holder who is entitled to demand and properly demands (and has not effectively withdrawn or lost such demand) appraisal rights under Section 262 of Delaware Law (collectively, the "Dissenting Shares"), shall not be converted into or represent a right to receive the applicable consideration for Company Common Stock set forth in Section 4.1, but the holder thereof shall only be entitled to such rights as are provided by Delaware Law, including the right to receive payment of the fair value of such holders Dissenting Shares in accordance with the provisions of Section 262 of Delaware Law.

(b) Notwithstanding the provisions of Section 4.7(a), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holders appraisal rights under Delaware Law, then, as of the later of the Effective Time and the occurrence of such event, such holders shares shall automatically be converted into and represent only the right to receive the consideration for Company Common Stock set forth in Section 4.1, without interest thereon, upon compliance with the exchange procedures set forth in Section 4.2(b).

(c) The Company shall give Parent prompt notice of any written demand for appraisal received by the Company pursuant to the applicable provisions of Delaware Law, and (ii) the opportunity to participate in any negotiations and proceedings with respect to such demands. The Company shall not, except with the prior written consent of Parent, negotiate with any holder of Company Common Stock the terms of any payment, or make any payment, with respect to any such demands or offer to settle or settle any such demands, and the Company shall not communicate with any holder of Company Common Stock with respect to such demands, without prior consultation with Parent, except for communications directed to the Companys stockholders generally or as required by Law.

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY  

The Company represents and warrants to Parent and Merger Sub that the statements contained in this Article V are true and correct, except as set forth in the disclosure schedule delivered by the Company to Parent and Merger Sub prior to the execution of this Agreement (the "Company Disclosure Schedule"). The Company Disclosure Schedule shall be arranged in sections and paragraphs corresponding to the numbered and lettered sections and paragraphs contained in this Article V, and the disclosure in any Section or paragraph shall qualify (a) the corresponding Section or paragraph in this Article V and (b) the other sections and paragraphs in this Article V to the extent that it is reasonably apparent from a reading of such disclosure that it also qualifies or applies to such other sections and paragraphs.

5.01 Organization and Qualification; Subsidiaries.

(a) Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted and is duly qualified to do business and, where applicable as a legal concept, is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so organized, qualified or in good standing, or to have such power or authority, when taken together with all other such failures, has not had, and is not reasonably expected to have, a Company Material Adverse Effect. The Company has made available to Parent a complete and correct copy of the Companys and its Subsidiaries certificate of incorporation and by-laws (or equivalent governing instruments), each as amended to the date hereof. The Companys and its Subsidiaries certificate of incorporation and by-laws (or equivalent governing instruments) so delivered are in full force and effect. The Company has made available to Parent correct and complete copies of the minutes of all meetings since January 1, 2003 of the stockholders, the Board of Directors of the Company (the "Company Board") and each committee of the Company Board and each of its Subsidiaries approved through the date of this Agreement, other than such minutes specified on Section 5.1(a) of the Company Disclosure Schedule which the parties have agreed can be subject to redaction with respect to matters of attorney-client privilege and matters relating to the transactions contemplated hereby.

(b) Section 5.1(b) of the Company Disclosure Schedule contains a complete and accurate list of (x) each of the Companys Subsidiaries and the ownership interest of the Company in each such Subsidiary, as well as the ownership interest of any other Person or Persons in each such Subsidiary and (y) each jurisdiction where the Company and each of its Subsidiaries is organized and qualified to do business.

(c) Section 5.1(c) of the Company Disclosure Schedule contains a complete and accurate list of any and all Persons not constituting Subsidiaries of the Company of which the Company directly or indirectly owns an equity or similar interest, or an interest convertible into or exchangeable or exercisable for an equity or similar interest (collectively, the "Investments").

(d) Except as set forth on Section 5.1(d) of the Company Disclosure Schedule, the Company or a Subsidiary of the Company, as the case may be, owns all Subsidiaries and Investments free and clear of all liens, pledges, security interests, claims or other encumbrances ("Liens"), except for Permitted Liens, and there are no outstanding contractual obligations of the Company or any of its Subsidiaries permitting the repurchase, redemption or other acquisition of any of its interest in any Subsidiary or Investment or requiring the Company or any of its Subsidiaries to provide funds to, make any investment (in the form of a loan, capital contribution or otherwise) in, provide any guarantee with respect to, or assume, endorse or otherwise become responsible for the obligations of, any Subsidiary or Investment.

As used in this Agreement, the term (i) "Subsidiary" means, with respect to the Company, Parent or Merger Sub, as the case may be, any entity, whether incorporated or unincorporated, of which at least a majority of the securities or ownership interests having by their terms voting power to elect a majority of the board of directors or other persons performing similar functions is directly or indirectly owned or controlled by such party or by one or more of its respective Subsidiaries and (ii) "Company Material Adverse Effect" means any materially adverse change in, or materially adverse effect on, the condition (financial or otherwise), operations, assets (including intangible assets), results of operations or the business of the Company and its Subsidiaries taken as a whole; provided, however, that no change or effect resulting primarily from any of the following shall constitute, a Company Material Adverse Effect:

(A) any changes in, or conditions, events or occurrences that result in a change to, the United States economy or capital, financial or securities markets generally (including any changes, or conditions, events or occurrences that result in a change, arising out of acts of terrorism or war); provided, however, that such changes do not (i) primarily relate only to (or have the effect of primarily relating only to) the Company and its Subsidiaries, taken as a whole, or (ii) disproportionately adversely affect the Company and its Subsidiaries, taken as a whole, compared to other companies operating in the industry in which the Company and its Subsidiaries operate; provided, further, however, that a disproportionate effect resulting primarily from the concentration of the Companys end user customers in the retail sector shall not per se be deemed to "disproportionately adversely affect the Company and its Subsidiaries" for purposes of clause (ii) of this subsection (A);

(B) any changes, or conditions, events or occurrences that result in changes, resulting from or arising out of economic factors generally affecting any of the industries in which the Company or any of its Subsidiaries conduct business; provided, however, that such changes do not (i) primarily relate only to (or have the effect of primarily relating only to) the Company and its Subsidiaries, taken as a whole, or (ii) disproportionately adversely affect the Company and its Subsidiaries, taken as a whole, compared to other companies operating in the industry in which the Company and its Subsidiaries operate; provided, further, however, that a disproportionate effect resulting primarily from the concentration of the Companys end user customers in the retail sector shall not per se be deemed to "disproportionately adversely affect the Company and its Subsidiaries" for purposes of clause (ii) of this subsection (B);

(C) any changes resulting from or arising out of actions taken pursuant (and/or required by) this Agreement or at the request of Parent, or the failure to take any actions due to restrictions set forth in this Agreement; provided, however, to the extent that the Company reasonably believes that taking any action required by this Agreement or at the request of Parent, or failing to take any action prohibited by this Agreement, could reasonably be expected to result in a Company Material Adverse Effect, only if the Company provides prior notification to Parent of such belief, and Parent does not provide relief from the provisions of this Agreement or its request, shall the changes or effects resulting from this subsection (C) be deemed to not constitute a Company Material Adverse Effect;

(D) any changes in the price or trading volume of the Companys stock on the New York Stock Exchange (the "NYSE"); provided, however, that the exception in this clause shall not prevent or otherwise affect a determination that any change, effect, circumstance or development underlying such changes has or has not resulted in, or contributed to, a Company Material Adverse Effect, and no such changes shall be used as evidence that some other change, effect, circumstance or development has had or has not had a Company Material Adverse Effect;

(E) any adverse changes arising from or relating to any change in GAAP or any change in applicable Laws, in each case, proposed, adopted or enacted after the date hereof, or the interpretation or enforcement thereof; provided, however, that such changes do not primarily relate only to (or have the effect of primarily relating only to) the Company and its Subsidiaries, taken as a whole; and

(F) the disclosure by Parent or any of its Affiliates of Parents plans or intentions with respect to the business of the Company or any of its Subsidiaries.

With respect to subsections (A) and (B) immediately above, for purposes of determining whether there has been a "disproportionate effect resulting primarily from the concentration of the Companys end user customers in the retail sector," the effect of such change shall be measured against the effect of such change on the Retail Supplier Group, taken as a whole. As used herein, the term "Retail Supplier Group" shall mean Datalogic S.P.A., Metrologic Instruments, Inc. and Hand Held Products, Inc. and respective successors thereto.

5.02 Capital Structure.

(a) As of the date of this Agreement, the authorized capital stock of the Company consists of 300,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $1.00 per share (the "Preferred Shares"). All of the outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and nonassessable. At the close of business on September 15, 2006, 254,176,605 shares of Company Common Stock and no Preferred Shares were issued and outstanding, and 29,286,323 shares of Company Common Stock were subject to outstanding Company Stock Options (as defined below). At the close of business on September 15, 2006, the Company had: (i) 8,507,729 shares of Company Common Stock reserved for issuance by the Company pursuant to options to purchase shares of Company Common Stock (a "Company Stock Option") not yet granted under the following plans:

Plan

Symbol Technologies, Inc. 2004 Equity Incentive Award Plan

Symbol Technologies, Inc. 2001 Non-Executive Stock Option Plan, as amended

Symbol Technologies, Inc. 1997 Employee Stock Option Plan

1991 Employee Stock Option Plan

Symbol Technologies, Inc. 1990 Non-Executive Stock Option Plan, as amended

1986 Stock Option Plan

Telxon Corporation 1990 Stock Option Plan for Non-Employee Directors

Telxon Corporation 1990 Stock Option Plan

Symbol Technologies, Inc. 2002 Directors Stock Option Plan

2000 Directors Stock Option Plan of Symbol Technologies, Inc., as amended and restated

1999 Directors Stock Option Plan

1998 Directors Stock Option Plan

1994 Directors Stock Option Plan

Symbol Technologies, Inc. Employee Stock Purchase Plan, as amended

and pursuant to the Symbol Technologies Deferred Compensation Plan (collectively, the "Company Stock Plans"); and (ii) 29,947,614 shares of Company Common Stock held by the Company in its treasury. Section 5.2(a) of the Company Disclosure Schedule sets forth a true and complete list of: (i) all Company Stock Plans, indicating for each Company Stock Plan, as of the date specified therein, the number of shares of Company Common Stock subject to outstanding options under such Company Stock Plan and the number of shares of Company Common Stock reserved for future issuance under such Company Stock Plan; and (ii) all outstanding Company Stock Options, indicating with respect to each such Company Stock Option the name of the holder thereof, the Company Stock Plan under which it was granted, the number of shares of Company Common Stock subject to such Company Stock Option, the exercise price, the date of grant, and the vesting schedule, including whether (and to what extent) the vesting will be accelerated in any way by the execution of this Agreement, the adoption of the Company Voting Proposal, by the consummation of the Merger or by termination of employment or change in position following consummation of the Merger. The Company has made available to Parent complete and accurate copies of all Company Stock Plans and the forms of all stock option agreements evidencing Company Stock Options. The Company Common Stock is listed on the NYSE.

(b) Each of the outstanding shares of capital stock or other securities of each of the Companys Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and owned by the Company or by a Subsidiary of the Company, free and clear of any Lien (except as set forth on Section 5.2(b) of the Company Disclosure Schedule).

(c) Except as set forth above in this Section 5.2 and Section 5.2(c) of the Company Disclosure Schedule, and except for the rights (the "Rights") issuable pursuant to the Rights Agreement, dated as of August 13, 2001 (the "Company Rights Agreement"), between the Company and The Bank of New York, as rights agent, in respect of which no Distribution Date (as defined in the Company Rights Agreement) has occurred, there are no preemptive or other outstanding rights, options, warrants, conversion rights, phantom stock units or stock appreciation rights or similar rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue or sell any shares of capital stock or other securities of the Company or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations (i) the terms of which provide the holders the right to vote with the stockholders of the Company on any matter or (ii) that are convertible into or exercisable for securities having the right to vote with the stockholders of the Company on any matter (any such bonds, debentures, notes or obligations, "Voting Debt").

(d) There are no registration rights to which the Company or any of its Subsidiaries is a party or by which it or they are bound with respect to any equity security of any class of the Company. Neither the Company nor, to the knowledge of the Company, any of its Affiliates is a party to or is bound by any agreements or understandings with respect to the voting (including voting trusts and proxies) or sale or transfer (including agreements imposing transfer restrictions) of any shares of capital stock or other equity interests of the Company. There are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Company Common Stock or the capital stock of the Company or any of its Subsidiaries. As used in this Agreement with respect to any party, the term "Affiliate" means any Person who is an "affiliate" of that party within the meaning of Rule 405 promulgated under the Securities Act.

5.3 Corporate Authority; Approval and Fairness.

(a) The Company has all requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform its obligations under this Agreement, and to consummate the Merger, subject only to approval of this Agreement and the Merger by the holders of a majority of the outstanding shares of Company Common Stock entitled to vote thereon (the "Company Voting Proposal") and the filing of the Certificate of Merger pursuant to Delaware Law. This Agreement is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be subject to Laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and the rights of creditors and rules of Law governing specific performance, injunctive relief or other equitable remedies.

(b) The Company Board acting unanimously, has (i) determined that this Agreement and the Merger are fair to, and in the best interests of, the Company and the holders of Company Common Stock, (ii) approved and adopted this Agreement and declared its advisability in accordance with the provisions of Delaware Law, (iii) resolved to recommend this Agreement and the Merger to the holders of Company Common Stock for approval in accordance with Section 7.5 of this Agreement (the "Company Board Recommendation") and (iv) directed that this Agreement and the Merger be submitted to the holders of Company Common Stock for consideration in accordance with this Agreement; provided, however, that any withdrawal, modification or qualification of the foregoing in accordance with Section 7.2 hereof shall not be deemed a breach of this representation. The Company Board has received the opinion of its financial advisor, Bear, Stearns & Co. Inc., to the effect that (subject to the assumptions and qualifications set forth in such opinion) the consideration to be received by the holders of the shares of Company Common Stock in the Merger is fair, as of the date of such opinion, from a financial point of view to such holders, a copy of which opinion has been delivered to Parent.

5.4 Governmental Filings; No Violations; Certain Contracts, Etc.

(a) Other than (i) the filings, approvals and/or notices pursuant to Section 1.2, (ii) the pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the "HSR Act") (and similar foreign filings, as required, including pursuant to the EU Merger Regulations), (iii) applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder, including the filing of the Proxy Statement with the Securities and Exchange Commission (the "SEC"), (iv) filings, approvals and/or notices required to be made with or obtained from the NYSE and (v) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable U.S. state securities Laws, no notices, reports or other filings are required to be made by the Company with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by the Company from, any foreign or domestic governmental or regulatory authority (including self-regulatory authorities), agency, commission, body or other governmental entity, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority ("Governmental Entity"), in connection with the execution and delivery of this Agreement by the Company and the consummation by the Company of the Merger and the other transactions contemplated hereby, except those that the failure to make or obtain, individually or in the aggregate, have not had and is not reasonably expected to have a Company Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement.

(b) Except as set forth in Section 5.4(b) of the Company Disclosure Schedule, the execution, delivery and performance of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated hereby will not, constitute or result in (i) a breach or violation of the certificate of incorporation or by-laws of the Company or the equivalent governing instruments of any of its Subsidiaries, (ii) a breach or violation of, a termination (or right of termination) or a default under, or the acceleration of any obligations or the creation of a Lien on the assets of the Company or any of its Subsidiaries (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation, whether oral, written or otherwise ("Contracts"), binding upon the Company or any of its Subsidiaries or, assuming that all consents, approvals and other authorizations described in Section 5.4(a) have been obtained and that all filings and other actions described in Section 5.4(a) have been made or taken, any Laws or governmental or non-governmental permit or license to which the Company or any of its Subsidiaries is subject or (iii) any change in the rights or obligations of any party under any of the Contracts, except, in the case of clause (ii) or (iii) above, for any conflict, breach, violation, termination, default, acceleration or creation that, individually or in the aggregate, have not had, and is not reasonably expected to have, a Company Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement.

5.5 Contracts.

(a) For purposes of this Agreement, "Company Material Contract" shall mean:

(i) 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;

(ii) any employment, service or consulting Contract or arrangement with any current or former executive officer of the Company or member of the Company Board, and any employment, service or consulting Contract or arrangement with any other employee of the Company or its Subsidiaries that (A) is a form agreement, (B) provides for at least $75,000 in base compensation, if the employee is employed outside of the United States, or (C) provides for at least $100,000 in base compensation, if the employee is employed in the United States, other than any such Contract or arrangement described in (B) or (C) that is terminable by the Company or any of its Subsidiaries on no more than thirty (30) days notice without liability or financial obligation to the Company or any of its Subsidiaries and any such Contract or arrangement described in (B) or (C) where the liability or financial obligation upon termination is solely limited to earned compensation and amounts owed under the Companys severance plans or policies;

(iii) any Contract between the Company or any of its Subsidiaries and any current customer of the Company and its Subsidiaries (A) with respect to which the Company and its Subsidiaries recognized cumulative revenue during the twelve-month period ended June 30, 2006 in excess of one percent (1%) of the Companys consolidated hardware shipment revenues during that period, (B) with respect to which the Company and its Subsidiaries recognized cumulative revenue during the twelve-month period ended June 30, 2006 in excess of one percent (1%) of the Companys consolidated services revenues during that period (each such customer in (A) and (B), a "Major Customer," and each Contract referenced in this Section 5.5(a)(iii), a "Major Customer Contract"), or (C) that, to the knowledge of the Company, contains any covenant of the Company granting any exclusivity rights or contains most favored customer pricing provisions;

(iv) any Contract entered into by the Company or any of its Subsidiaries with respect to RFID deployment projects at McCarran International Airport or Hong Kong International Airport, and any other current material RFID deployment projects;

(v) any Contract between the Company or any of its Subsidiaries and any current customer of the Company and its Subsidiaries with an aggregate value in excess of $10,000,000 over the life of the contract that contains any (A) penalties for late deliveries or breach of other performance obligations, or (B) penalties associated with repairs, returns or quality performance;

(vi) any Contract between the Company or any of its Subsidiaries and any supplier of goods, products or components (including software) and/or services with respect to which the Company and its Subsidiaries made cumulative expenditures during the twelve-month period ended June 30, 2006 greater than $10,000,000 (each such supplier, a "Major Supplier," and each Contract referenced in this Section 5.5(a)(vi), a "Major Supplier Contract"), other than expenditures pursuant to purchase orders in the Companys standard unmodified form, a copy of which has been provided to Parent;

(vii) (A) any Contract between the Company or any of its Subsidiaries and any sole source suppliers, or (B) original equipment manufacturer ("OEM") Contracts, electronic manufacturing services ("EMS") Contracts, original design and manufacturing supply ("ODM") Contracts, third party logistics ("3PL") Contracts, transportation Contracts, and other contract manufacturing Contracts, or any other Contract that licenses or otherwise authorizes any third party to design, manufacture, reproduce, develop or modify the products, services or technology of the Company and its Subsidiaries (other than agreements allowing internal backup copies to be made by end-user customers in the ordinary course of business), in each such case in this subsection (B) with an aggregate value in excess of $10,000,000 over the life of the contract;

(viii) Contracts (A) with an aggregate value in excess of $10,000,000 over the life of the contract that contain any "take or pay" or volume commitment provisions binding the Company or any of its Subsidiaries, or (B) that contain provisions granting any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person other than the Company in a manner which is material to the business of the Company and its Subsidiaries, taken as a whole;

(ix) other than exclusive distributorship or reseller arrangements, any Contract limiting in any respect the right of the Company or any of its Subsidiaries to engage in any line of business, compete with any Person in any line of business or to compete with any party or the manner or locations in which any of them may engage, or that otherwise prohibits or limits the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services;

(x) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of assets for aggregate consideration in excess of $5,000,000 individually or $10,000,000 in the aggregate or otherwise not in the ordinary course of business, or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any other Person or other business enterprise other than the Companys Subsidiaries (including, without limitation, joint venture, partnership or other similar agreements);

(xi) any Contract which provides access to source code to any Third Party for all or any portion of any product of the Company or Owned Intellectual Property in any circumstance other than an event of bankruptcy, liquidation, assignment for the benefit of creditors or similar event;

(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit in excess of $5,000,000, other than accounts receivables and payables and extensions of credit to customers in the ordinary course of business;

(xiii) any settlement agreement entered into within five (5) years prior to the date of this Agreement having ongoing obligations (conditional or otherwise) of payment or performance by the Company or its Subsidiaries, other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company in the ordinary course of business in connection with the routine cessation of such employees or independent contractors employment with the Company, or (B) settlement agreements for cash only (which has not been paid) that do not exceed $500,000 as to such settlement;

(xiv) any Contract under which the Company or any of its Subsidiaries has licensed or otherwise made available any Owned Intellectual Property or Third Party License to a third party, other than to customers, distributors and other resellers, manufacturers and suppliers in the ordinary course of business;

(xv) the Third Party Licenses;

(xvi) any Contract not otherwise described in this Section 5.5(a) that (A) either requires annual payments of more than $1,000,000 or, to the extent determinable, has as of September 1, 2006 aggregate future sums due from the Company or any of its Subsidiaries to which the remaining unpaid balance is in excess of $7,500,000, and (B) is not terminable by the Company or any such Subsidiary (without penalty or payment) on ninety (90) (or fewer) days notice; or

(xvii) any other Contract (A) with any Affiliate of the Company (other than its Subsidiaries), (B) with investment bankers, financial advisors, attorneys, accountants or other advisors retained by the Company or any of its Subsidiaries involving payments by or to the Company or any of its Subsidiaries of more than $1,500,000 on an annual basis, (C) providing for indemnification by the Company or any of its Subsidiaries of any Person, except for any such Contract that is (x) not material to the Company or any of its Subsidiaries, taken as a whole, and (y) entered into in the ordinary course of business, (D) containing a standstill or similar agreement pursuant to which the Company or any of its Subsidiaries have agreed not to acquire assets or securities of another Person, or (E) relating to currency hedging or similar transactions.

(b) Section 5.5(b) of the Company Disclosure Schedule sets forth a list (arranged in clauses corresponding to the clauses set forth in Section 5.5(a)) of all Company Material Contracts to which the Company or any of its Subsidiaries is a party or bound by as of the date hereof. A complete and accurate copy of each Company Material Contract has been made available to Parent, including all amendments, modifications, extensions, renewals or guarantees with respect thereto, other than the portions of such Company Material Contracts as set forth on Section 5.5(b) of the Company Disclosure Schedule (which the parties previously agreed could be subject to redaction concerning matters subject to confidentiality obligations).

(c) All Company Material Contracts are valid and binding and in full force and effect, except to the extent they have previously expired in accordance with their terms. Except as set forth in Section 5.5(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has violated in any material respect, and, to the knowledge of the Company, no other party to any of the Company Material Contracts has violated in any material respect, any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a material default under the provisions of any Company Material Contract. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no other party has, repudiated in writing any material provision of any Company Material Contract.

(d) During the last twelve (12) months, to the knowledge of the Company, none of the Major Customers has terminated or failed to renew any of its Major Customer Contracts and neither the Company nor any of its Subsidiaries has received any written notice of termination from any of the Major Customers.

(e) Section 5.5(e) of the Company Disclosure Schedule sets forth each Major Supplier and the cumulative expenditures made by the Company and its Subsidiaries during the twelve-month period ended June 30, 2006. Section 5.5(e) of the Company Disclosure Schedule sets forth any Major Supplier Contracts that materially deviate from the Companys standard form supplier contracts attached to Section 5.5(e) of the Company Disclosure Schedule, and describes in reasonable detail any such material deviations.

(f) The Company has made available to Parent a copy of each of the standard form Contracts currently in use by the Company or any of its Subsidiaries (including, without limitation, end user, maintenance and reseller standard form Contracts) in connection with their respective businesses.

(g) Section 5.5(g) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) the ten (10) largest active distributors and (ii) the ten (10) largest active resellers through which the products of the Company and its Subsidiaries are marketed, sold or otherwise distributed (determined on the basis of product revenues received by the Company and its Subsidiaries for the twelve-month period ended June 30, 2006) (the "Major Channel Customers"). Except as set forth in Section 5.5(g) of the Company Disclosure Schedule, each reseller and distributor agreement with a Major Channel Customer is terminable by the Company or its Subsidiary (without penalty or cost) upon 90 days or less notice.

5.6 SEC Filings; Financial Statements; Information Provided.

(a) The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing), together with all certifications required pursuant to the Sarbanes-Oxley Act of 2002 and the related rules and regulations promulgated under or pursuant to such act (the "Sarbanes-Oxley Act"), are referred to herein as the "Company SEC Reports." Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the date of this Agreement, the Company SEC Reports (i) other than the Companys Annual Report on Form 10-K for the fiscal year ending December 31, 2002 and the Companys Quarterly Reports on Form 10-Q for the fiscal quarters ending March 31, June 30 and September 30, 2003, were filed on a timely basis, (ii) at the time filed, complied as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as the case may be, the Sarbanes-Oxley Act and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports, and (iii) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated in such Company SEC Reports or necessary in order to make the statements in such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. No Subsidiary of the Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. The Company has made available to Parent true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other, since January 1, 2003, including all SEC comment letters on the Company SEC Reports and responses to such comment letters by or on behalf of the Company. To the knowledge of the Company, as of the date hereof, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports.

(b) Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the date of this Agreement, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in or incorporated by reference in the Company SEC Reports at the time filed (i) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto and (ii) were prepared in accordance with United States generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC with respect to Form 10-Q under the Exchange Act). Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the date of this Agreement, each of the consolidated balance sheets (including, in each case, any related notes and schedules) contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates indicated and each of the consolidated statements of income and of changes in financial position contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented in all material respects the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein, except that the unaudited interim financial statements were subject to normal and recurring year-end adjustments.

(c) Except as and to the extent set forth on the consolidated balance sheet of the Company and the consolidated Subsidiaries as at December 31, 2005 (including the notes thereto and related management discussion and analysis) included in the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2005, neither the Company nor any Subsidiary has any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise and whether or not required to be disclosed), including those relating to matters involving any Environmental Law, except for liabilities and obligations (i) incurred in connection with the transactions contemplated hereby, (ii) incurred in the ordinary course of business and in a manner consistent with past practice since December 31, 2005, or (iii) that have not had, and is not reasonably expected to have, a Company Material Adverse Effect.

(d) The information to be supplied by or on behalf of the Company for inclusion in the proxy statement to be sent to the stockholders of the Company (the "Proxy Statement") in connection with the Company Meeting will not, on the date it is first mailed to the stockholders of the Company or at the time of the Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations promulgated by the SEC thereunder. The representations and warranties contained in this Section 5.6(d) will not apply to statements or omissions included in the Proxy Statement or any other filings made with the SEC based upon information furnished in writing to the Company by Parent or Merger Sub specifically for use therein.

(e) The Company maintains disclosure controls and procedures in accordance with Rules 13a-15 or 15d-15 promulgated under the Exchange Act. Such disclosure controls and procedures were effective as of December 31, 2005, and are otherwise reasonably designed, to ensure that all material information concerning the Company and its Subsidiaries which is required to be disclosed by the Company in the Company SEC Reports is made known on a timely basis to the individuals responsible for the preparation of the Companys filings with the SEC and other public disclosure documents. The Company has disclosed, based on its most recent evaluation prior to the date hereof, to the Companys auditors and the audit committee of the Company Board (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 in any material respect the Companys 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 Companys internal controls over financial reporting. The Company has made available to Parent a summary of any such disclosure made by management to the Companys auditors and audit committee since January 1, 2003, and Section 5.6(e) of the Company Disclosure Schedule sets forth a summary of all current significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting. Since January 1, 2003, no current or former employee of the Company or any of its Subsidiaries has alleged to any of the senior officers of the Company or such Subsidiaries that the Company or any such Subsidiaries has engaged in questionable or fraudulent accounting or auditing practices. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a 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 Company Board or any committee thereof or to any director, in his or her capacity as a director, or officer, in his or her capacity as an officer, of the Company or any of its Subsidiaries.

(f) The Company and, to the knowledge of the Company, each of its officers and directors are in compliance with, and have complied, in each case in all material respects with (i) the applicable listing and other rules and regulations of the NYSE (and, except as set forth in Section 5.6(f) of the Company Disclosure Schedule, has not since January 1, 2003 received any notice from the NYSE asserting any non-compliance with such rules and regulations), and (ii) the applicable provisions of the Sarbanes-Oxley Act. There are no outstanding loans made by the Company or any of its Affiliates to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company or any Subsidiary of the Company. Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3), since the enactment of the Sarbanes-Oxley Act, neither the Company nor any of its Affiliates has made, arranged or modified (in any material way) personal loans or "extension of credit" to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company or any Subsidiary of the Company.

5.7 Absence of Certain Changes. Except as set forth in Section 5.7 of the Company Disclosure Schedule, since December 31, 2005, the Company and its Subsidiaries have conducted their respective businesses only in, and have not engaged in any transaction other than according to, the ordinary and usual course of such businesses and, since such date, there has not been (a) any change or any development, circumstance or occurrence or combination thereof which, individually or in the aggregate, has had or is reasonably expected to have a Company Material Adverse Effect (including any adverse change with respect to any development, circumstance or occurrence existing on or prior to such date); (b) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any of its Subsidiaries, whether or not covered by insurance; or (c) as of the date hereof, any other action or event that would have required the consent of Parent under Section 7.1 of this Agreement had such action or event occurred after the date of this Agreement (other than such actions or events that have been publicly disclosed in the Company SEC Reports or otherwise are described in the Company Disclosure Schedule).

5.8 Litigation and Liabilities.

(a) Except as set forth in Section 5.8(a) of the Company Disclosure Schedule, there are no (i) material civil, criminal or administrative actions, suits, claims, hearings, investigations (for which the Company has received notice therefor) or proceedings (collectively, "Actions") pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries, (ii) material judgments, orders or decrees outstanding against the Company or any of its Subsidiaries and (iii) other facts or circumstances which, to the knowledge of the Company, are reasonably expected to result in any material claims against, or material obligations or liabilities of, the Company or any of its Affiliates. Except as set forth in Section 5.8(a) of the Company Disclosure Schedule, there has not been since January 1, 2004, nor are there currently, any internal investigations, or inquiries reasonably expected to lead to a material internal investigation, being conducted by the Company Board (or any committee thereof) or any third party at the request of the Company Board concerning any financial, accounting, tax, conflict of interest, illegal activity, fraudulent or deceptive conduct or other misfeasance or malfeasance issues.

(b) The indemnification obligations of the Company (including, without limitation, advancement of expenses) with respect to any present or former director or officer of the Company and/or its Subsidiaries arising out of the activities covered by the EDNY Agreement are specified in Section 5.8(b) of the Company Disclosure Schedule. The Company has no obligation to indemnify any former officers and directors of the Company following the sentencing of any such officer or director convicted in a criminal proceeding.

(c) The Company and its Subsidiaries have no indebtedness for borrowed money outstanding (not including intercompany amounts or capital leases), including under the Companys secured credit facility, dated as of December 29, 2004, as amended and restated September 1, 2006, among the Company and the lenders and agents named therein (the "Credit Agreement"), other than borrowings that would be permitted under Section 7.1 if incurred after the date hereof. No penalties are assessable with respect to the prepayment of any outstanding indebtedness for borrowed money of the Company and its Subsidiaries.

5.9 Employee Benefits.

(a) All benefit and compensation plans, policies or arrangements, other than commission arrangements, currently maintained or contributed to by the Company, any of its Subsidiaries or any other entity, which together with the Company or any of its Subsidiaries, is treated as a single employer under Section 414 of the Code (an "ERISA Affiliate") (or in respect of which the Company, any of its Subsidiaries or any ERISA Affiliate has any outstanding liability) and covering current or former employees, independent contractors, consultants (including, without limitation, outsourcing), temporary employees and current or former directors of the Company, any of its Subsidiaries or any ERISA Affiliate, which are "employee benefit plans" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and any other written plan, policy or arrangement (whether or not subject to ERISA) involving direct or indirect compensation, other than commission arrangements, currently maintained by the Company, any of its Subsidiaries or any ERISA Affiliate (or in respect of which the Company, any of its Subsidiaries or any ERISA Affiliate has any outstanding liability) and covering current or former employees, independent contractors, consultants (including, without limitation, outsourcing), temporary employees and current or former directors of the Company, any of its Subsidiaries or any ERISA Affiliate, including insurance coverage, vacation, loans, fringe benefits, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation, stock based or other forms of incentive compensation, bonus or post-retirement compensation or benefits (the "Company Benefit Plans"), other than Company Benefit Plans maintained outside of the United States primarily for the benefit of employees working outside of the United States (such plans hereinafter being referred to as "Company NonU.S. Benefit Plans"), are listed on Section 5.9(a)-1 of the Company Disclosure Schedule. Complete and accurate copies of all Company Benefit Plans listed on Section 5.9(a)-1 of the Company Disclosure Schedule and, any trust instruments, insurance contracts or other funding vehicle, and, with respect to any employee stock ownership plan, loan agreements, forming a part of any Company Benefit Plans, all amendments thereto, and all summary plan descriptions and any summary of material modifications thereto have been made available to Parent. Section 5.9(a)-2 of the Company Disclosure Schedule identifies each employee or other service provider covered by any change in control or retention agreement of the Company or any of its Subsidiaries and complete and accurate copies of the forms of each such agreement have been made available to Parent.

(b) All Company Benefit Plans, other than "multiemployer plans" within the meaning of Section 3(37) of ERISA (each, a "Multiemployer Plan") and Company NonU.S. Benefit Plans (collectively, "Company U.S. Benefit Plans"), are in substantial compliance with ERISA, the Code and other applicable Laws. Each Company U.S. Benefit Plan which is subject to ERISA (the "Company ERISA Plans") that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "Company Pension Plan") and that is intended to be qualified under Section 401(a) of the Code, has received a current favorable determination letter from the Internal Revenue Service (the "IRS"), and the Company is not aware of any circumstances likely to result in the loss of the qualification of such Company Pension Plan under Section 401(a) of the Code. No Company U.S. Benefit Plan provides benefits through a voluntary employees beneficiary association within the meaning of Section 501(c)(9) of the Code. Neither the Company nor any of its Subsidiaries has engaged in a transaction with respect to any Company ERISA Plan that, assuming the taxable period of such transaction expired as of the date hereof, is reasonably expected to subject the Company or any Subsidiary to a material tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA. Neither the Company nor any of its Subsidiaries has incurred or reasonably expects to incur a material tax or penalty imposed by Section 4980F of the Code or Section 502 of ERISA or any material liability under Section 4071 of ERISA. With respect to any Company Benefit Plan that is subject to Section 409A of the Code, the Company has adopted or will adopt amendments by December 31, 2006 (or such other extended deadline as may be permitted under Section 409A of the Code), so that no such Company Benefit Plan is likely to result in any participants incurring income acceleration or penalties under Section 409A of the Code.

(c) None of the Company Pension Plans is or ever has been (i) subject to Section 302 of ERISA, Section 412 of the Code, or Title IV of ERISA, or (ii) a Multiemployer Plan, nor does the Company, any of its Subsidiaries or any ERISA Affiliate have any liability, contingent or otherwise, in respect of any employee pension benefit plan described in clauses (i) or (ii) of this Section 5.9(c).

(d) All material contributions required to be made under each Company U.S. Benefit Plan as of the date hereof, whether pursuant to applicable Laws or the terms of such Company U.S. Benefit Plan, have been timely made and all obligations in respect of each Company U.S. Benefit Plan have been properly accrued and reflected in the most recent consolidated balance sheet filed or incorporated by reference in the Company SEC Reports prior to the date hereof.

(e) Neither the Company nor any of its Subsidiaries has any obligations for retiree health and life benefits under any Company ERISA Plan or collective bargaining agreement. There is no material pending or, to the knowledge of the Company, threatened, litigation relating to the Company U.S. Benefit Plans (except for individuals claims for benefits payable in the normal operation of the Company U.S. Benefit Plans). By its terms, the Company or any of its Subsidiaries may amend or terminate each Company ERISA Plan at any time without incurring any liability thereunder other than in respect of claims incurred or benefits accrued prior to such amendment or termination, and no summary plan description or other written communication distributed generally to participants or employees prohibits the Company or any of its Subsidiaries from amending or terminating any such Company Benefit Plan

(f) Except as set forth in Section 5.9(f) of the Company Disclosure Schedule, there has been no amendment to, announcement by the Company, any of its Subsidiaries or any ERISA Affiliate relating to, or change in employee participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of the expense incurred therefor for the most recent fiscal year. Section 5.9(f) and Section 5.5(a)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list of all contracts, plans or arrangements obligating the Company or any of its Subsidiaries to pay severance to any current or former directors, employees at the level of Vice President and above, independent contractors or consultants (including without limitation outsourcing) of the Company or any of its Subsidiaries, except for obligations pursuant to, required by or arising under applicable Law. Except pursuant to retention or other agreements set forth in Section 5.9(a)-2 of the Company Disclosure Schedule, neither the execution of this Agreement, stockholder approval of this Agreement nor the consummation of the transactions contemplated hereby will (i) entitle any employees of the Company or any of its Subsidiaries who are employed in the United States to severance pay or any increase in severance pay upon any termination of employment after the date hereof, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any of the Company U.S. Benefit Plans, (iii) limit or restrict the right of the Company or, after the consummation of the transactions contemplated hereby, Parent to merge, amend or terminate any of the Company U.S. Benefit Plans or (iv) result in payments under any of the Company U.S. Benefit Plans which would not be deductible under Section 280G of the Code.

(g) To the knowledge of the Company, all Company Non-U.S. Benefit Plans are in substantial compliance with applicable local Law, and have received all necessary rulings or determinations as to the qualification (to the extent such concept or a comparable concept exist in the relevant jurisdiction) of such Company Non-U.S. Benefit Plans from the appropriate Governmental Entity. To the knowledge of the Company, all Company Non-U.S. Benefit Plans, and all governmental plans, funds or programs to which the Company or any of its Subsidiaries contributes on behalf of any of their employees, are listed on Section 5.9(g) of the Company Disclosure Schedule. To the knowledge of the Company, all material contributions required to be made under each Company Non-U.S. Benefit Plan, as of the date hereof, whether pursuant to applicable Laws or the terms of such Company Non-U.S. Benefit Plan, have been timely made and all obligations in respect of each Company Non-U.S. Benefit Plan have been properly accrued and reflected in the most recent consolidated balance sheet filed or incorporated by reference in the Company SEC Reports prior to the date hereof. To the knowledge of the Company, the Company and its Subsidiaries have no material unfunded liabilities with respect to any such Company Non-U.S. Benefit Plan. There is no pending or, to the knowledge of the Company, threatened, litigation relating to the Company Non-U.S. Benefit Plans (except for individuals claims for benefits payable in the normal operation of such Company Non-U.S. Benefit Plans) that has resulted in, or is reasonably expected to result in, a material expense in respect of the Company or any of its Subsidiaries. To the knowledge of the Company, except pursuant to retention or other agreements set forth in Section 5.9(a)-2 of the Company Disclosure Schedule, neither the execution of this Agreement, stockholder approval of this Agreement nor the consummation of the transactions contemplated hereby will (i) entitle any employees of the Company or any of its Subsidiaries who are employed outside of the United States to severance pay or any increase in severance pay upon any termination of employment after the date hereof, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any of the Company Non-U.S. Benefit Plans, (iii) limit or restrict the right of the Company or, after the consummation of the transactions contemplated hereby, Parent to merge, amend or terminate any of the Company Non-U.S. Benefit Plans or (iv) result in payments under any of the Company Non-U.S. Benefit Plans which would not be deductible under Section 280G of the Code.

5.10 Compliance with Laws; Permits. Except as set forth in Section 5.10 of the Company Disclosure Schedule, the businesses of each of the Company and its Subsidiaries have been, and are being, conducted in compliance with all applicable federal, state, local, municipal, foreign or other laws, statutes, constitutions, principles of common law, resolutions, ordinances, codes, edicts, rules, regulations, judgments, orders, rulings, injunctions, decrees, directives, arbitration awards, agency requirements, licenses and permits of all Governmental Entities (collectively, "Laws") applicable to the Company or its Subsidiaries, except for violations or possible violations that, individually or in the aggregate, (i) have not had, and are not reasonably expected to have, a Company Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement and (ii) have not resulted, and are not reasonably expected to result in, the imposition of a criminal fine, penalty or sanction against the Company, any of its Subsidiaries or, to the Companys knowledge, any of their respective directors or officers. Except as set forth in Section 5.10 of the Company Disclosure Schedule, no (i) material investigation or review (for which the Company or one of its Subsidiaries has received notice therefor) or (ii) other investigation or review (for which the Company or one of its Subsidiaries has received written notice therefor) by any Governmental Entity with respect to the Company or any of its Subsidiaries is pending or, to the knowledge of the Company, threatened, nor has any Governmental Entity (x) indicated to the Company or one of its Subsidiaries an intention to conduct any such material investigation or review or (y) indicated in writing to the Company or one of its Subsidiaries an intention to conduct any other such investigation or review. The Company and its Subsidiaries each have all governmental permits, licenses, franchises, variances, exemptions, orders and other governmental authorizations, consents and approvals necessary to conduct its business as presently conducted (each, a "Company Permit") except those the absence of which, individually or in the aggregate, have not had, and are not reasonably expected to have a Company Material Adverse Effect or prevent or materially burden or materially impair the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement. No Company Permit will cease to be effective as a result of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement.

5.11 Environmental Matters.

(a) Except for such matters that, alone or in the aggregate, are not reasonably expected to have a Company Material Adverse Effect: (i) the Company and its Subsidiaries have complied with all applicable Environmental Laws during the previous five (5) years; (ii) no property currently owned, leased or operated by the Company or any of its Subsidiaries (including soils, groundwater, surface water, buildings or other structures) is contaminated with any Hazardous Substance that requires, or is reasonably expected to require, investigation, monitoring, contribution or other financial responsibility and/or remediation by the Company or any of its Subsidiaries under applicable Environmental Laws; (iii) to the knowledge of the Company, no property formerly owned or operated by the Company or any of its Subsidiaries was contaminated with any Hazardous Substance during or prior to such period of ownership or operation that requires, or is reasonably expected to require, investigation, monitoring, contribution or other financial responsibility and/or remediation by the Company or any of its Subsidiaries under applicable Environmental Laws; (iv) to the Companys knowledge, neither the Company nor any of its Subsidiaries is subject to liability for any Hazardous Substance disposal or contamination on any third party property; (v) neither the Company nor any of its Subsidiaries has caused or, to the Companys knowledge, could reasonably be expected to be held liable for any release or threat of release of any Hazardous Substance; (vi) neither the Company nor any of its Subsidiaries has received any written notice, demand, letter, claim or request for information alleging that the Company or any of its Subsidiaries may be in violation of or subject to liability under any Environmental Law; (vii) neither the Company nor any of its Subsidiaries is subject to any order, decree, injunction or other similar arrangement with any Governmental Entity or any indemnity or other agreement with any third party pursuant to which it has assumed any liability or obligation under any Environmental Law; (viii) to the knowledge of the Company, there are no other existing circumstances or conditions (including plans for modification or expansion which are the subject of an approved capital authorization request) involving the Companys or any of its Subsidiaries owned or leased properties or operations that are reasonably expected to result in any claim, liability, investigation, cost or restriction on the Companys or any of its Subsidiaries ownership, use or transfer of any property pursuant to any Environmental Laws; and (ix) the Company has delivered or made available to Parent copies of all material environmental reports, studies, assessments, soil or groundwater sampling data and other material environmental information in its possession relating to the Company or its Subsidiaries or their respective current and former properties or operations which were prepared within the last five years. For purposes of subsection (ix) above, "material environmental reports" means any reports generated by any Third Party consultants or experts, including any due diligence reports prepared under the ASTM standards and any reports submitted to any Governmental Entity within the last five years.

As used herein, the term "Environmental Law" means any applicable federal, state, local or foreign statute, Law, regulation, order, decree, permit, authorization, directive, common law or agency requirement relating to: (A) the protection, investigation or restoration of the environment, health, safety, or natural resources, (B) the handling, use, presence, disposal, release or threatened release of any Hazardous Substance, (C) noise, odor, indoor air, worker safety and health, wetlands, pollution or contamination, or any injury or threat of injury to persons or property relating to any Hazardous Substance, or (D) the labeling, packaging, takeback or recycling of products or the manufacturing of products.

As used herein, the term "Hazardous Substance" means any substance that is listed, classified or regulated pursuant to any Environmental Law, including any petroleum product or by-product, asbestos-containing material, lead, polychlorinated biphenyls, radioactive material or radon.

(b) To the knowledge of the Company, no facts or circumstances exist that prevent the Company or any of its Subsidiaries from placing in the EU market (including non-EU European countries that have adopted the Directives referenced in this Section 5.11(b)) existing products which comply in all material respects, or with respect to any product specified on Section 5.11(b) of the Company Disclosure Schedule, which will comply in all material respects when shipped and/or sold, with the Restrictions on the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (2002/95/EC) Directive and the Waste Electrical and Electronic Equipment (2002/96/EC) Directive, if and to the extent the legislation which is enacted and implemented by applicable European Union member nations or other non-EU European countries is not materially different from such Directives in any respect. Notwithstanding the prior sentence, it is understood that this Section 5.11(b) shall apply only to those existing or new products for which the Company or any of its Subsidiaries has indicated its intent to ship and/or sell on or after July 1, 2006 into the EU or other European countries that have adopted these Directives.

5.12 Taxes. Except as set forth in Section 5.12 of the Company Disclosure Schedule, the Company and each of its Subsidiaries (i) have prepared in good faith and duly and timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by any of them and all such filed Tax Returns are complete and accurate in all material respects, (ii) have paid or accrued for all Taxes that are required to be paid or that the Company or any of its Subsidiaries are obligated to withhold from amounts owing to any employee, creditor or third party, except with respect to matters contested in good faith, and (iii) have not waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency which waiver or extension is still in effect. Except as set forth in Section 5.12 of the Company Disclosure Schedule, as of the date hereof, there are not pending or threatened in writing, any material audits, examinations, investigations or other proceedings in respect of Taxes or Tax matters. The Company has made available to Parent correct and complete copies of the United States Federal income Tax Returns filed by the Company and its Subsidiaries for each of the fiscal years ended December 31, 2004 and 2003. None of the Company or any of its Subsidiaries has any liability for Taxes of any Person pursuant to Treasury Regulation § 1.1502-6 other than members of the tax consolidated group of which the Company is the common parent. Within the last three (3) years, none of the Company or any of its Subsidiaries was the distributing corporation or the controlled corporation in a distribution intended to qualify under Section 355(a) of the Code. Neither the Company nor any of its Subsidiaries has engaged in any transaction the IRS has determined to be a "listed transaction" for purposes of § 1.6011-4(b)(2), and the Company and its Subsidiaries have properly reported any transaction that is the same as, or substantially similar to, a transaction which is a "reportable transaction" for purposes of § 1.6011-4(b). None of the Company or any of its Subsidiaries has engaged in a transaction of which it made disclosure to any taxing authority to avoid penalties. Except as set forth in Section 5.12 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries has participated in a "tax amnesty" or similar program offered by any tax authority to avoid the assessment of penalties or other additions to Tax.

As used in this Agreement, (i) the term "Tax" (including, with correlative meaning, the terms "Taxes", and "Taxable") includes all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions, and (ii) the term "Tax Return" includes all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns) required to be supplied to a Tax authority relating to Taxes.

5.13 Employees; Independent Contractors.

(a) The Company has provided to Parent a list of all employees of the Company and its Subsidiaries immediately before the Effective Time ("Employees"), along with the position, date of hire and the annual rate of compensation of each such person (including salary or, with respect to Employees compensated on an hourly or per diem basis, the hourly or per diem rate of compensation and estimated or target annual incentive compensation), and has identified any Employees in the United States who are on a Company-approved leave of absence and the type of such approved leave and any Employees outside of the United States who to the knowledge of the Company are on a Company-approved leave of absence and the type of such approved leave. Except as set forth in Section 5.13(a) of the Company Disclosure Schedule, to the knowledge of the Company, each such Employee has entered into a confidentiality and assignment of inventions agreement with the Company or a Subsidiary of the Company.

(b) The Company has provided to Parent a list of all companies or individuals performing independent consulting services or under contract to perform such services in the future for fees in excess of $100,000 for the Company or any of its Subsidiaries and to the knowledge of the Company such list is complete and accurate as of the Effective Time. To the knowledge of the Company, the Company and its Subsidiaries have properly classified all such independent contractors under applicable Law.

(c) Except as set forth in Section 5.13(c)(i) of the Company Disclosure Schedule, to the knowledge of the Company, no employee identified on Section 5.13(c)(ii) of the Company Disclosure Schedule ("Key Employee") has notified the Company in writing or verbally informed any other Key Employee of such Key Employees intention to terminate employment with the Company or any of its Subsidiaries or of such Key Employees receipt of an offer of employment from another employer.

(d) Except as set forth in Section 5.13(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement or otherwise required to bargain with any union, nor has any of them experienced within the last twenty four months any strikes or other industrial actions, grievances, claims of unfair labor practices, or other collective bargaining disputes or trade disputes. No organizational effort has been made or threatened by or on behalf of any labor union (which includes any application or request for recognition) within the last twenty-four months with respect to any employees of the Company or any of its Subsidiaries.

(e) To the knowledge of the Company, neither the Company nor any of its Subsidiaries has committed any material unfair labor practice or materially violated any applicable Laws, including foreign Laws, within the last twenty-four months relating to employment or employment practices or termination of employment, including those relating to wages and hours, discrimination in employment, occupational health and safety, and collective bargaining. Except as set forth in Section 5.13(e) of the Company Disclosure Schedule, there is no pending or threatened charge or complaint against the Company or any of its Subsidiaries involving any employment matter, including any charge or complaint before the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable state, local, or foreign agency.

(f) Neither the Company, nor, to the knowledge of the Company, any director or officer of the Company, nor any relatives of any director or officer, owns directly or indirectly, individually or collectively, any interest in any corporation, company, partnership, entity or organization which is in a business similar or competitive to the businesses of the Company or which has any existing undisclosed contractual relationship with the Company.

(g) The Company and its Subsidiaries have properly paid or accrued all wages and salaries and employment taxes (including social security taxes and other payroll taxes and including any share owed by the employer and any share that the Company and its Subsidiaries were required to withhold from the compensation paid to Employees) and are not liable for any penalties or arrears, except for any arrears that would exist in the ordinary course of business and would be in compliance with applicable Law.

(h) Except as set forth in Section 5.13(h) of the Company Disclosure Schedule, no Employee is entitled to receive any payments or other compensation or benefits as a result of the Closing (other than payments or other consideration provided to the stockholders of the Company as described in this Agreement).

(i) To the knowledge of the Company, all Employees are authorized and have appropriate documentation to work in the countries in which they are assigned and the Company and its Subsidiaries are in compliance with all applicable immigration laws.

(j) To the knowledge of the Company, no former employee, consultant, or contractor of the Company or any of its Subsidiaries is in violation of any agreement with the Company or any of its Subsidiaries relating to inventions, competition, solicitation, or confidentiality.

(k) The Company and its Subsidiaries have not experienced a layoff or plant closing within the last twelve months that would give rise to liability under the Worker Adjustment and Retraining Notification Act or any similar state, local, or foreign law or regulation.

5.14 Insurance. The Company and its Subsidiaries maintain insurance coverage reasonably adequate for the operation of the business of the Company and its Subsidiaries (taking into account the cost and availability of such insurance). Except as set forth on Section 5.14 of the Company Disclosure Schedule, since January 1, 2003, no insurer of the Company or any of its Subsidiaries has (a) cancelled or invalidated any insurance policy of the Company or any of its Subsidiaries or (b) refused any coverage or rejected any material claim under any such insurance policy. Each such insurance policy is in full force and effect and all premiums due with respect to all such insurance policies have been paid, except for policies that have expired under their terms in the ordinary course.

5.15 Intellectual Property.

(a) Section 5.15(a) of the Company Disclosure Schedule sets forth, for the Owned Intellectual Property, a complete and correct list of (i) all issued Patents and filed and pending applications for Patents, and (ii) if material to the business of the Company as conducted on the date of this Agreement, invention disclosures, domain name registrations, registered Trademarks and filed and pending applications to register Trademarks and registered Copyrights and filed and pending applications to register Copyrights; and indicating for each, the applicable jurisdiction, registration number (or application number) and date issued (or date filed).

(b) All Trademarks, Patents and Copyrights listed in Section 5.15(a) of the Company Disclosure Schedule are currently in compliance in all material respects with all legal requirements applicable to post-filing maintenance and post-registration maintenance thereof (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and annuity and maintenance fees with respect to Patents), except where the failure to comply with such post-filing maintenance and post-registration maintenance requirements would not have a material impact on the Companys aggregate Intellectual Property rights. Section 5.15(b) of the Company Disclosure Schedule sets forth a complete and correct list of any maintenance fees or actions, that, to the knowledge of the Company, fall due within ninety (90) days after the Closing Date with respect to the Trademarks, Patents and Copyrights listed in Section 5.15(a) of the Company Disclosure Schedule (it being understood that the Company shall provide Parent with such schedule on the date of this Agreement that is based on the Companys estimate of when the Closing Date will occur and an updated version of such schedule on the Closing Date). Except as set forth in Section 5.15(b) of the Company Disclosure Schedule, no Trademark comprised within the Owned Intellectual Property is currently involved in any opposition or cancellation proceeding and no such action has been threatened in writing against the Company within the two (2) years prior to the date of this Agreement with respect to any such Trademarks, and no Patent is currently involved in any interference, reissue, re-examination or opposition proceeding and no such action has been threatened in writing against the Company within the two (2) years prior to the date of this Agreement with respect to any such Patent. To the knowledge of the Company, neither the Companys in-house legal counsel nor outside intellectual property counsel retained by the Company has formally concluded that any of the Trademarks, Patents or Copyrights listed in Section 5.15(a) of the Company Disclosure Schedule are invalid or unenforceable.

(c) Except for licenses for third party commercially available Software, Section 5.15(c) of the Company Disclosure Schedule sets forth a complete and correct list of Contracts pursuant to which the Company or any of its Subsidiaries has been granted or otherwise receives any right to use any Intellectual Property that is material to the business of the Company and its Subsidiaries as conducted as of the date of this Agreement (the "Third Party Licenses").

(d) Section 5.15(d) of the Company Disclosure Schedule sets forth a complete and accurate list of all Third Party Licenses pursuant to which any royalty, honorarium or other fee is payable by the Company or any of its Subsidiaries for the use of or right to use any Intellectual Property, and in each case indicating the payment terms thereunder. No such royalties, honoraria or other fees are past due.

(e) The Company and its Subsidiaries exclusively own, free and clear of all Liens (other than licenses granted to third parties), all Owned Intellectual Property, and have valid and enforceable rights under the Third Party Licenses to use all of the Intellectual Property covered by the Third Party Licenses, except where the failure to have such rights is not reasonably expected to constitute, individually or in the aggregate, a Company Material Adverse Effect. The Company and its Subsidiaries have taken reasonable steps to protect the Owned Intellectual Property. Except as set forth in Section 5.15(e) of the Company Disclosure Schedule, no Person has challenged in any court or administrative proceeding pending or brought against the Company or its Subsidiaries within the three (3) years prior to the date of this Agreement the ownership, use, validity or enforceability of any of the Owned Intellectual Property.

(f) To the knowledge of the Company as of the date of this Agreement, the conduct of the Companys business as currently conducted does not infringe upon any Intellectual Property rights of any Person, except where such infringement is not material to the business of the Company and its Subsidiaries as conducted as of the date of this Agreement. To the knowledge of the Company, except as set forth in Section 5.15(f) of the Company Disclosure Schedule, in the four (4) year period prior to the date of this Agreement, (i) neither the Company nor any of the its Subsidiaries has been notified in writing by any third party of any allegation that the conduct of the Companys business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property rights of any Person, (ii) no Person has notified in writing the Company or any of the Companys Subsidiaries that (A) any of such Persons Intellectual Property rights are infringed, or (B) the Company or any of its Subsidiaries requires a license to any of such Persons Intellectual Property rights, and (iii) neither the Company nor any of its Subsidiaries has received a written offer to license any of such Persons Intellectual Property rights.

(g) Except as set forth in Section 5.15(g) of the Company Disclosure Schedule, no claims have been brought or threatened in writing within the four (4) years prior to the date of this Agreement by or on behalf of the Company or any of its Subsidiaries against any third party Person alleging the misappropriation, infringement, dilution or violation of any Owned Intellectual Property.

(h) The Company and its Subsidiaries have in place a written trademark policy, as set forth in Section 5.15(h) of the Company Disclosure Schedule, that is available on the Companys intranet site which is accessible to all relevant employees of the Company and its Subsidiaries.

(i) The Company and its Subsidiaries have in place, have maintained, and have taken reasonable steps to enforce a policy:

(i) to protect the respective rights in confidential information and trade secrets used in connection with the conduct of the Companys business. Without limiting the foregoing, the policy includes requiring each employee, consultant, contractor and potential business partner or investor to execute proprietary information and confidentiality agreements substantially consistent with the Companys standard forms thereof (complete and current copies of which forms have been delivered or made available). Except under valid and binding confidentiality obligations, to the knowledge of the Company, there has been no material disclosure of any confidential information or trade secrets used in connection with the conduct of the Companys business;

(ii) providing that all Software developed by or for the Company or any of its Subsidiaries (excluding Software licensed to the Company or a Subsidiary) (the "Company Software") is either developed by (i) employees of the Company and its Subsidiaries within the scope of their employment, or (ii) independent contractors who have assigned their rights to the Company or one of its Subsidiaries pursuant to written agreements; and

(iii) providing that, except for third party Copyrights lawfully used or acquired by the Company and its Subsidiaries, the Copyrights which are used in any way in connection with the conduct of the Companys business relate to works of authorship (A) created by (1) employees of the Company and its Subsidiaries within the scope of their employment, or (2) independent contractors who have assigned their rights to the Company pursuant to written agreements, or (B) acquired from the original author(s) or subsequent assignees.

(j) The Company and its Subsidiaries have registrations for each of the domain names set forth in Section 5.15(a) of the Company Disclosure Schedule. The registration of each such domain name is free and clear of all Liens and is in full force and effect. The Company has paid all fees to the applicable domain name registrar required to maintain each registration. None of the Companys registrations or uses of the domain names has been placed "on hold" by the applicable domain name registrar and neither the Company nor any of the Companys Subsidiaries has received written notice within the three (3) years prior to the date of this Agreement of any claim asserted against the Company or any of its Subsidiaries adverse to its rights to such domain names.

(k) Except for Software that was rightfully obtained by the Company under open source or other type of similar license agreements or distribution models, the Company and its Subsidiaries have in place a policy and are taking reasonable steps to avoid having any material Company Software become subject to any provision of any open source or other type of similar license agreement or distribution model that: (i) reasonably could be expected to require the distribution or making available of the source code for such Software to the public, (ii) reasonably could be expected to prohibit or limit the Company or any of its Subsidiaries from charging a fee or receiving consideration in connection with sublicensing or distributing any such Software, (iii) except as specifically permitted by law, reasonably could be expected to grant any right to any Person (other than the Company and its Subsidiaries) or otherwise allows any such Person to decompile, disassemble or otherwise reverse-engineer any such Software, or (iv) reasonably could be expected to require the licensing of any such Software to the public, but in each case excluding any representations and/or commitments made by the Company or any S