Common use of Indemnification Etc Clause in Contracts

Indemnification Etc. 31 4.1 Survival of Representations, Etc. 31 4.2 Indemnification 32 4.3 Exclusive Remedy 33 4.4 Defense of Third Party Claims 33 4.5 Claims Relating to Securities 34 SECTION 5. MISCELLANEOUS PROVISIONS 34 5.1 Stockholders’ Agent 34 5.2 Certain Covenants 35 5.3 Public Announcements 37 5.4 Further Assurances 37 5.5 Fees and Expenses 37 5.6 Attorneys’ Fees 38 5.7 Notices 38 TABLE OF CONTENTS 5.8 Time of the Essence 39 5.9 Headings 39 5.10 Counterparts 39 5.11 Governing Law; Venue 39 5.12 Successors and Assigns 39 5.13 Remedies Cumulative; Specific Performance 40 5.14 Waiver 40 5.15 Amendments 40 5.16 Severability 40 5.17 Parties in Interest 40 5.18 Entire Agreement 40 5.19 Disclosure Schedule 41 5.20 Waiver of Jury Trial 41 5.21 Construction 41 Exhibit A Certain definitions Exhibit B Form of Certificate of Merger Exhibit C Form of Stockholder Representation Letter Exhibit D Escrow Agreement Exhibit E-1 Individuals to execute Affiliate Agreements Exhibit E-2 Form of Affiliate Agreement Exhibit F Form of Amendment to Investor Rights Agreement Exhibit G Form of Legal Opinion of Bxxxxxx, Phleger & Hxxxxxxx LLP Exhibit H FIRPTA Form Exhibit I Form of Release Agreement Exhibit J Acknowledgement of Fees Exhibit K Unaudited Interim Balance Sheet THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (“Agreement”) is made and entered into as of April 16, 2002, by and among: BLUE MARTINI SOFTWARE, INC., a Delaware corporation (“Parent”); BLUE MARTINI HOLDINGS CORP. II, a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”); THE CYBRANT CORP., a Delaware corporation (the “Company”); and DXXX XXXXXXXX, as Stockholders’ Agent.

Indemnification Etc. 31 4.1 64 10.1 Survival of Representations, Etc. 31 4.2 Etc 64 10.2 Indemnification 32 4.3 Exclusive Remedy 33 4.4 Defense of 65 10.3 Limitations 67 10.4 Payment Source 68 10.5 No Contribution 69 10.6 Insurance 69 10.7 Indemnification Claim Procedure 69 10.8 Third Party Claims 33 4.5 73 10.9 Election of Claims 74 10.10 Exercise of Remedies Other Than by Parent 74 10.11 Exclusive Remedy 74 11. Miscellaneous Provisions 75 11.1 Securityholders’ Agent 75 11.2 Further Assurances 76 11.3 No Waiver Relating to Securities 34 SECTION 5. MISCELLANEOUS PROVISIONS 34 5.1 Stockholders’ Agent 34 5.2 Certain Covenants 35 5.3 Public Announcements 37 5.4 Further Assurances 37 5.5 Claims for Fraud 76 11.4 Fees and Expenses 37 5.6 76 11.5 Attorneys’ Fees 38 5.7 77 11.6 Notices 38 TABLE OF CONTENTS 5.8 Time of the Essence 39 5.9 77 11.7 Headings 39 5.10 75 11.8 Counterparts 39 5.11 and Exchanges by Electronic Transmission or Facsimile78 11.9 Governing Law; Venue 39 5.12 Dispute Resolution 79 11.10 Successors and Assigns 39 5.13 79 11.11 Remedies Cumulative; Specific Performance 40 5.14 79 11.12 Non-Recourse 80 11.13 Waiver 40 5.15 Amendments 40 5.16 Severability 40 5.17 Parties in Interest 40 5.18 Entire Agreement 40 5.19 Disclosure Schedule 41 5.20 80 11.14 Waiver of Jury Trial 41 5.21 80 11.15 Amendments 80 11.16 Severability 81 11.17 Parties in Interest 81 11.18 Entire Agreement 81 11.19 Disclosure Schedule 81 11.20 Waiver of Conflicts 81 11.21 Construction 41 Exhibit 82 EXHIBIT A Certain definitions Exhibit Definitions EXHIBIT B Form of Certificate of Merger Exhibit Significant Owner Agreement EXHIBIT C Form of Stockholder Representation Letter Management Deferral Agreement EXHIBIT D Form of Amended and Restated LLC Agreement Schedule A Schedule of Employment Documents Schedule B R&W Policy Schedule 1 to Exhibit D A Sample Working Capital Calculation Schedule 1.1 Blocker Stock Allocation Schedule 1.5(c) Escrow Agreement Exhibit E-1 Individuals Schedule 1.8(b) Letter of Transmittal Schedule 1.10(a) Accounting Policies Schedule 2.16(b) Key Employees Schedule 5.2 Interim Reporting Matters Schedule 5.6 Agreements to execute Affiliate Agreements Exhibit E-2 Form be Terminated/Amended as of Affiliate Agreement Exhibit F Form of Amendment to Investor Rights Agreement Exhibit G Form of Legal Opinion of Bxxxxxx, Phleger & Hxxxxxxx LLP Exhibit H FIRPTA Form Exhibit I Form of Release Agreement Exhibit J Acknowledgement of Fees Exhibit K Unaudited Interim Balance Sheet the Effective Time Schedule 5.10 Repaid Indebtedness Schedule 5.13(i) Voluntary Disclosure Jurisdictions Schedule 6.6 Employee Benefits Schedule 7.1(b) Materiality Threshold Schedule 7.3(b) Required Third-Party Consents Schedule 7.10 India and Portugal Operations Schedule 10.2(a)(xii) Specified Indemnity THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION STOCK PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of April 16November 6, 20022019, by and among: BLUE MARTINI SOFTWAREREALPAGE, INC., a Delaware corporation (“Parent”); BLUE MARTINI HOLDINGS CORP. IIRP NEWCO XXIX LLC, a Delaware corporation limited liability company and a wholly wholly-owned subsidiary Subsidiary of Parent (“Merger Sub”); THE CYBRANT CORP.BUILDIUM, LLC, a Delaware corporation limited liability company (the “Company”); SUMERU EQUITY PARTNERS FUND L.P., a Delaware limited partnership (“SEP”); K1 PRIVATE INVESTORS, L.P., a Delaware limited partnership (“K1 PI”); K1 PRIVATE INVESTORS (A), L.P., a Delaware limited partnership (“K1 PI(A)” and DXXX XXXXXXXXtogether with K1 PI, “K1”); and SEP, as Stockholdersthe Securityholders’ Agent.. Certain capitalized terms used in this Agreement are defined in Exhibit A.

Indemnification Etc. 31 4.1 10.1 Survival of Representations, Etc. 31 4.2 Etc 74 10.2 Indemnification 32 4.3 Exclusive Remedy 33 4.4 75 10.3 Limitations 76 10.4 Exclusivity of Remedy, Further Limitations and Source of Funds for Indemnification 78 10.5 Notice of Claims 79 10.6 Defense of Third Party Claims 33 4.5 Claims Relating to Securities 34 SECTION 5. MISCELLANEOUS PROVISIONS 34 5.1 Stockholders79 10.7 Parent’s Right of Set-Off 80 10.8 Exercise of Remedies Other Than by Parent 81 10.9 Tax Treatment of Indemnity Payments 81 10.10 Release of Funds From Indemnification Escrow Fund Following the Escrow Release Date 81 11.1 Securityholders’ Agent 34 5.2 Certain Covenants 35 5.3 Public Announcements 37 5.4 82 11.2 Further Assurances 37 5.5 84 11.3 Fees and Expenses 37 5.6 Attorneys’ Fees 38 5.7 84 11.4 Notices 38 TABLE OF CONTENTS 5.8 Time of the Essence 39 5.9 85 11.5 Headings 39 5.10 86 11.6 Counterparts 39 5.11 and Exchanges by Electronic Transmission 86 11.7 Governing Law; Venue 39 5.12 Dispute Resolution 86 11.8 Successors and Assigns 39 5.13 87 11.9 Remedies Cumulative; Specific Performance 40 5.14 87 11.10 Waiver 40 5.15 Amendments 40 5.16 Severability 40 5.17 Parties in Interest 40 5.18 Entire Agreement 40 5.19 Disclosure Schedule 41 5.20 87 11.11 Waiver of Jury Trial 41 5.21 87 11.12 Amendments 87 11.13 Severability 88 11.14 Parties in Interest 88 11.15 No Public Announcement 88 11.16 Entire Agreement 88 11.17 Disclosure Schedule 88 11.18 Construction 41 89 11.19 Legal Representation 89 Exhibit A Certain definitions Definitions Exhibit B Form of First Certificate of Merger Exhibit C Form of Stockholder Representation Letter Second Certificate of Merger Exhibit D Escrow Form of Revesting Agreement Exhibit E-1 Individuals to execute Affiliate Agreements Exhibit E-2 E Form of Affiliate Restrictive Covenant Agreement Exhibit F Form of Amendment to Investor Rights Joinder Agreement Exhibit G Form of Legal Opinion of Bxxxxxx, Phleger & Hxxxxxxx LLP Lock-Up Agreement Exhibit H FIRPTA Form of Master Parent Promissory Note Exhibit I Form of Release Escrow Agreement Exhibit J Acknowledgement Form of Fees PPP Escrow Agreement Exhibit K Unaudited Interim Balance Sheet Form of Payment Agent Agreement Exhibit L Form of Letter of Transmittal Exhibit M Form of Warrant Letter of Transmittal Exhibit N Retention Bonus Terms Exhibit O Form of Retention Bonus Agreement Exhibit P Current Assets and Current Liabilities Exhibit Q Knowledge Individuals Exhibit R Form of RWI Policy Schedule 1.3(d)(ii) Agreements to be Amended or Terminated Schedule 1.3(d)(xi) Payoff Letters Schedule 1.3(d)(xiv) Third Party Assignments, Consents and Certificates Schedule 1.3(d)(xviii) Affiliate Arrangements Schedule 1.7(d) Contingent Consideration Extension Multipliers Schedule 1.10 Terminated Warrants Schedule 4.2(b) Permitted Pre-Closing Items Schedule 4.8(a) Agreements to be Terminated Schedule 4.8(b) Agreements to be Amended Schedule 7.3 Antitrust Jurisdictions THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (“Agreement”) is made and entered into as of April 16July 27, 20022021, by and among: BLUE MARTINI SOFTWAREamong LIFE360, INC., a Delaware corporation (“Parent”); BLUE MARTINI HOLDINGS CORP. II, JIOBIT MERGER SUB I, INC., a Delaware corporation and a wholly owned subsidiary Subsidiary of Parent (“Merger SubSub I”); THE CYBRANT CORP, JIOBIT MERGER SUB II, LLC, a Delaware limited liability company and a wholly owned Subsidiary of Parent (“Merger Sub II” and together with Merger Sub I, the “Merger Subs”), JIO, INC., a Delaware corporation (the “Company”); , and DXXX XXXXXXXXSHAREHOLDER REPRESENTATIVE SERVICES LLC, a Colorado limited liability company, solely in its capacity as Stockholdersthe Securityholders’ Agent.Agent (as defined in Section 11.1(a)). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Indemnification Etc. 31 4.1 27 9.1 Survival of Representations, Etc. 31 4.2 Warranties and Covenants 27 9.2 Indemnification 32 4.3 Exclusive Remedy 33 4.4 by the Selling Stockholders 28 9.3 Indemnification by Netivation 28 9.4 Minimum Claim Against the Selling Stockholders 29 9.5 Minimum Claim Against Netivation 29 9.6 Defense of Third Party Claims 33 4.5 Claims Relating to Securities 34 29 9.7 Indemnity Reserve 30 9.8 Exclusive Remedy 30 SECTION 5. 10 - MISCELLANEOUS PROVISIONS 34 5.1 30 10.1 Selling Stockholders’ ' Agent 34 5.2 Certain Covenants 35 5.3 Public Announcements 37 5.4 30 10.2 Further Assurances 37 5.5 32 10.3 Fees and Expenses 37 5.6 32 10.4 Attorneys’ ' Fees 38 5.7 32 10.5 Notices 38 TABLE OF CONTENTS 5.8 Time of the Essence 39 5.9 33 10.6 Headings 39 5.10 33 10.7 Counterparts 39 5.11 34 10.8 Governing Law; Venue 39 5.12 Law 34 10.9 Successors and Assigns 39 5.13 34 10.10 Remedies Cumulative; Specific Performance 40 5.14 34 10.11 Waiver 40 5.15 34 10.12 Amendments 40 5.16 35 10.13 Time of the Essence 35 10.14 Severability 40 5.17 35 10.15 Parties in Interest 40 5.18 35 10.16 Entire Agreement 40 5.19 Disclosure Schedule 41 5.20 Waiver of Jury Trial 41 5.21 35 10.17 Construction 41 35 EXHIBITS Exhibit A Certain definitions - Selling Stockholders Exhibit B Form - Certain Definitions Exhibit C - Director and Officer of Certificate Surviving Corporation Exhibit D - Allocation of Merger Consideration Exhibit C Form of Stockholder Representation Letter Exhibit D Escrow Agreement Exhibit E-1 Individuals to execute Affiliate Agreements Exhibit E-2 Form of Affiliate Agreement Exhibit F Form of Amendment to Investor Rights Agreement Exhibit G E - Form of Legal Opinion Exhibit F - Form of Bxxxxxx, Phleger & Hxxxxxxx LLP Employment and Noncompetition Agreement Exhibit G - Form of Escrow Agreement Exhibit H FIRPTA - Form of Prospective Offeree Questionnaire Exhibit I - Form of Release Lock-Up Agreement Exhibit J Acknowledgement of Fees Exhibit K Unaudited Interim Balance Sheet AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (“"Agreement”") is made and entered into as of April 16May 3, 20022000, by and among: BLUE MARTINI SOFTWAREXXXXXXXXXX.XXX, INC., a Delaware corporation (“Parent”"Netivation"); BLUE MARTINI HOLDINGS , XXXXXXXXXX.XXX MERGER THREE CORP. II., a Delaware corporation and a wholly wholly-owned subsidiary of Parent Netivation (“"Merger Sub”"); THE CYBRANT CORP, PINNACLE MEDSOURCE, INC., a Delaware Georgia corporation ("Pinnacle"), and the “Company”stockholders of Pinnacle set forth on Exhibit A hereto (the "Selling Stockholders"); and DXXX XXXXXXXX, as Stockholders’ Agent.. Certain capitalized terms used in this Agreement are defined in Exhibit B.

Indemnification Etc. 31 4.1 10.1 Survival of Representations, Etc. 31 4.2 76 10.2 Indemnification 32 4.3 Exclusive Remedy 33 4.4 77 10.3 Limitations 78 10.4 No Contribution 80 10.5 Claim Procedures 80 10.6 Defense of Third Party Claims 33 4.5 Claims Relating to Securities 34 SECTION 581 10.7 Exclusive Remedy 82 10.8 Parent’s Right of Set-Off. 83 10.9 Exercise of Remedies Other Than by Parent 83 10.10 Tax Treatment of Indemnity Payments 83 11. MISCELLANEOUS PROVISIONS 34 5.1 Stockholders11.1 Securityholders’ Agent 34 5.2 Certain Covenants 35 5.3 Public Announcements 37 5.4 83 11.2 Further Assurances 37 5.5 86 11.3 Fees and Expenses 37 5.6 Attorneys’ Fees 38 5.7 86 11.4 Notices 38 TABLE OF CONTENTS 5.8 Time of the Essence 39 5.9 86 11.5 Headings 39 5.10 88 11.6 Counterparts 39 5.11 and Exchanges by Electronic Transmission 88 11.7 Governing Law; Venue 39 5.12 Dispute Resolution 88 11.8 Successors and Assigns 39 5.13 88 11.9 Remedies Cumulative; Specific Performance 40 5.14 89 11.10 Waiver 40 5.15 Amendments 40 5.16 Severability 40 5.17 Parties in Interest 40 5.18 Entire Agreement 40 5.19 Disclosure Schedule 41 5.20 89 11.11 Waiver of Jury Trial 41 5.21 89 11.12 Amendments 89 11.13 Severability 89 11.14 Parties in Interest 89 11.15 No Public Announcement 90 11.16 Entire Agreement 90 11.17 Disclosure Schedule 90 11.18 Construction 41 90 11.19 Privilege 91 Exhibit A Certain definitions Definitions Exhibit B Form of Joinder Agreement Exhibit C Form of Restrictive Covenant Agreement Exhibit D Form of Revesting Agreement Exhibit E Form of Certificate of Merger Exhibit C Form of Stockholder Representation Letter Exhibit D Escrow Agreement Exhibit E-1 Individuals to execute Affiliate Agreements Exhibit E-2 Form of Affiliate Agreement Exhibit F Form of Amendment to Investor Rights Lock-Up Agreement Exhibit G Form of Legal Opinion of Bxxxxxx, Phleger & Hxxxxxxx LLP Escrow Agreement Exhibit H FIRPTA Form of Letter of Transmittal Exhibit I Form of Release Agreement NSO Letter of Transmittal Exhibit J Acknowledgement Form of Fees Warrant Letter of Transmittal Exhibit K Unaudited Interim Balance Sheet Current Assets and Current Liabilities Exhibit L Knowledge Individuals Schedule 1.3(c)(x) Payoff Letters Schedule 1.3(c)(xiii) Third Party Consents Schedule 1.3(c)(xv) Affiliate Arrangements Schedule 4.8(a) Agreements to be Terminated Schedule 5.1(b)(ii) Consents AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (“Agreement”) is made and entered into as of April 16November 22, 20022021, by and among: BLUE MARTINI SOFTWAREamong LIFE360, INC., a Delaware corporation (“Parent”); BLUE MARTINI HOLDINGS CORP. II, TRIUMPH MERGER SUB, INC., a Delaware corporation and a wholly owned subsidiary Subsidiary of Parent (“Merger Sub”); THE CYBRANT CORP, TILE, INC., a Delaware corporation (the “Company”); , and DXXX XXXXXXXXFORTIS ADVISORS LLC, a Delaware limited liability company, as Stockholdersthe Securityholders’ Agent.Agent (as defined in Section 11.1(a)). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Indemnification Etc. 31 25 4.1 Survival of Representations, Etc. 31 25 4.2 Indemnification 32 Indemnification; Setoff 26 4.3 Exclusive Remedy 33 Procedure for Claims 27 4.4 Threshold; Ceiling 28 4.5 No Contribution 28 4.6 Defense of Third Party Claims 33 4.5 Claims Relating 28 5. TAX AND OTHER INDEMNIFICATION 30 5.1 General 30 5.2 Limitation Period 30 5.3 Notice of Audits; Cooperation 30 5.4 Payments 30 6. PROPRIETARY INFORMATION, NONCOMPETITION AND OTHER COVENANTS 31 6.1 Acknowledgements 31 6.2 No Use of Confidential Information 32 6.3 Covenants Not to Securities Compete 32 6.4 Rights and Remedies 34 SECTION 56.5 Other Covenants 34 7. MISCELLANEOUS PROVISIONS 34 5.1 Stockholders’ 7.1 Shareholders' Agent 34 5.2 Certain Covenants 35 5.3 Public Announcements 37 5.4 7.2 Further Assurances 37 5.5 35 7.3 Fees and Expenses 35 7.4 Recovery of Litigation Costs 35 7.5 Notices 35 7.6 Confidentiality 37 5.6 Attorneys’ Fees 38 5.7 Notices 38 TABLE OF CONTENTS 5.8 Time of the Essence 39 5.9 7.7 Headings 39 5.10 Counterparts 39 5.11 37 7.8 Governing Law; Venue 39 5.12 37 7.9 Successors and Assigns 38 7.10 Waiver 38 7.11 Amendments 39 5.13 7.12 Severability 39 7.13 Parties in Interest 39 7.14 Entire Agreement 39 7.15 Construction 39 7.16 Remedies Cumulative; Specific Performance 40 5.14 Waiver 7.17 Counterparts 40 5.15 Amendments 40 5.16 Severability 40 5.17 Parties in Interest 40 5.18 Entire Agreement 40 5.19 Disclosure Schedule 41 5.20 Waiver of Jury Trial 41 5.21 Construction 41 EXHIBITS Exhibit A - Certain definitions Definitions Exhibit B - Form of Certificate of Merger Notarial Deed (LCP NL) Exhibit C - Form of Stockholder Representation Letter Exhibit D Escrow Agreement Exhibit E-1 Individuals to execute Affiliate Agreements Exhibit E-2 Form of Affiliate Agreement Exhibit F Form of Amendment to Investor Rights Agreement Exhibit G Form of Legal Opinion of BxxxxxxStock Assignment (LCP US) STOCK PURCHASE AGREEMENT AGREEMENT, Phleger & Hxxxxxxx LLP Exhibit H FIRPTA Form Exhibit I Form of Release Agreement Exhibit J Acknowledgement of Fees Exhibit K Unaudited Interim Balance Sheet THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (“Agreement”) is made and entered into dated as of April 16October 17, 20022000, by and among: BLUE MARTINI SOFTWAREbetween DIONEX CORPORATION, a Delaware corporation ("Purchaser"), LC PACKINGS NEDERLAND B.V., a private company with limited liability under the laws of the Netherlands ("LCP NL"), LC PACKINGS (U.S.A.), INC., a Delaware California corporation (“Parent”); BLUE MARTINI HOLDINGS CORP. II, a Delaware corporation "LCP US") and a wholly owned subsidiary of Parent (“Merger Sub”); THE CYBRANT CORP., a Delaware corporation the SHAREHOLDERS OF LCP NL AND LCP US (the “Company”"Shareholders"); . LCP NL and DXXX XXXXXXXXLCP US are collectively referred to as the "Companies." Certain capitalized terms used in this Agreement are defined in Exhibit A. RECITALS A. The parties desire to effect a sale of 100% of the outstanding capital stock of LCP NL ("LCP NL Capital Stock") and 100% of the outstanding capital stock of LCP US ("LCP US Capital Stock") by the Shareholders to Purchaser, as Stockholders’ Agent.described in the following table:

Indemnification Etc. 31 4.1 29 9.1 Survival of Representations, Etc. 31 4.2 Warranties and Covenants 29 9.2 Indemnification 32 4.3 Exclusive Remedy 33 4.4 by the Representing Stockholders 29 9.3 Contribution 30 9.4 Ceiling; Limitation on Additional Damages 30 9.5 Defense of Third Party Claims 33 4.5 Claims Relating to Securities 34 30 9.6 Indemnity Reserve 31 9.7 Exercise of Remedies by Netivation Indemnitees Other Than Netivation 31 SECTION 5. 10 - MISCELLANEOUS PROVISIONS 34 5.1 31 10.1 Representing Stockholders’ ' Agent 34 5.2 Certain Covenants 35 5.3 Public Announcements 37 5.4 31 10.2 Further Assurances 37 5.5 32 10.3 Fees and Expenses 37 5.6 32 10.4 Attorneys’ ' Fees 38 5.7 33 10.5 Notices 38 TABLE OF CONTENTS 5.8 Time of the Essence 39 5.9 33 10.6 Headings 39 5.10 34 10.7 Counterparts 39 5.11 34 10.8 Governing Law; Venue 39 5.12 Law 34 10.9 Successors and Assigns 39 5.13 34 10.10 Remedies Cumulative; Specific Performance 40 5.14 35 10.11 Waiver 40 5.15 35 10.12 Amendments 40 5.16 35 10.13 Time of the Essence 35 10.14 Severability 40 5.17 35 10.15 Parties in Interest 40 5.18 35 10.16 Entire Agreement 40 5.19 Disclosure Schedule 41 5.20 Waiver of Jury Trial 41 5.21 35 10.17 Construction 41 36 EXHIBITS Exhibit A Certain definitions - Stockholders, Optionholders and Warrantholders Exhibit B - Certain Definitions Exhibit C - Director and Officer of Surviving Corporation Exhibit D - Allocation of Merger Consideration Pursuant to Section 1.5 and Section 1.6 Exhibit E - Form of Certificate of Merger Subscription Agreement Exhibit C F - Form of Stockholder Representation Letter Employment and Noncompetition Agreement Exhibit D G - Form of Escrow Agreement Exhibit E-1 Individuals to execute Affiliate Agreements Exhibit E-2 Form of Affiliate Agreement Exhibit F Form of Amendment to Investor Rights Agreement Exhibit G Form of Legal Opinion of Bxxxxxx, Phleger & Hxxxxxxx LLP Exhibit H FIRPTA Form Exhibit I - Form of Release of Claims Exhibit I1 - Form of Lock-Up Agreement for Preferred Stockholders, Non-Former Employee, and Non-Current Employee Common Stockholders Exhibit J Acknowledgement I2 - Form of Fees Exhibit K Unaudited Interim Balance Sheet Lock-Up Agreement for Current Employee and Former Employee Common Stockholders AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (“this "Agreement”") is made and entered into as of April 16November 17, 20021999, by and among: BLUE MARTINI SOFTWAREXXXXXXXXXX.XXX, INC., a Delaware corporation (“Parent”"Netivation"); BLUE MARTINI HOLDINGS , XXXXXXXXXX.XXX MERGER CORP. II., a Delaware corporation and a wholly wholly-owned subsidiary of Parent Netivation (“"Merger Sub”"); THE CYBRANT CORP, NET.CAPITOL, INC., a Delaware corporation ("Net.Capitol"), and certain stockholders of Net.Capitol set forth on Exhibit A hereto (the “Company”"Representing Stockholders"); and DXXX XXXXXXXX, as Stockholders’ Agent.. Certain capitalized terms used in this Agreement are defined in Exhibit B.