Preview | Agreement and Plan of Reorganization |

AGREEMENT AND PLAN OF REORGANIZATION

This AGREEMENT AND PLAN OF REORGANIZATION (this Agreement) is made and entered into as of July 7, 2006 (the Agreement Date) by and among Opsware Inc., a Delaware corporation (Acquiror), Stream Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Acquiror (Merger Sub), CreekPath Systems, Inc, a Delaware corporation (the Company), and Mark Davis, as Representative (the Representative).

RECITALS

A. The parties intend that, subject to the terms and conditions hereinafter set forth, Merger Sub shall merge with and into the Company in a reverse-triangular merger (the Merger), with the Company to be the surviving corporation of the Merger, on the terms and subject to the conditions of this Agreement and pursuant to a Certificate of Merger substantially in the form attached hereto as Exhibit A (the Certificate of Merger) and the applicable provisions of the laws of the State of Delaware

B. The Boards of Directors of Acquiror, Merger Sub and the Company have determined that the Merger is in the best interests of their respective companies and stockholders and have approved and declared advisable this Agreement and the Merger. Acquiror, as the sole stockholder of Merger Sub, has approved this Agreement and the Merger.

C. Concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Acquirors willingness to enter into this Agreement, each employee of the Company listed on Exhibit B-1 (the Key Employees) is executing and delivering to Acquiror an Employment Offer Letter and an Employment, Confidential Information and Invention Assignment Agreement substantially in the forms attached hereto as Exhibit B-2 (the Employment Offer Letter) and Exhibit B-3 (Employment and Confidentiality Agreement), which letter and agreement shall become effective upon the Effective Time (as defined in Article 1).

D. Concurrently with the execution and delivery of this Agreement, the Company is delivering from each Company Stockholder listed on Exhibit C-1 a written consent substantially in the form attached hereto as Exhibit C-2 (the Company Stockholder Consent) adopting the Merger, this Agreement and the transactions contemplated hereby and a stockholder agreement in the form attached hereto as Exhibit C-3 whereby such stockholders agree not to revoke such consents (Stockholder Agreement).

E. Acquiror, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and to prescribe various conditions to the Merger.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and conditions contained herein, the parties hereby agree as follows:

ARTICLE 1
CERTAIN DEFINITIONS

Acquiror Ancillary Agreements means, collectively, the following certificates to be delivered on behalf of Acquiror by an officer or officers of Acquiror at the Closing pursuant to Article 9 and the following agreements (other than this Agreement) that Acquiror is to enter into as a party thereto pursuant to this Agreement: Certificate of Merger, Bridge Note(s), Escrow Agreement, Company Shareholder Release, Retention Plan Participant Release, Employment Offer Letters, Employment and Confidentiality Agreements and Stockholder Agreements.

Action shall have the meaning set forth in Section 7.3(t).

Affiliate shall have the meaning set forth in Rule 405 of Regulation C promulgated under the Securities Act.

Applicable Law means, collectively, all foreign, federal, state, local or municipal laws, statutes, ordinances, regulations, and rules, and all orders, writs, injunctions, awards, judgments and decrees applicable to the Company or any of its assets, properties and business (and any regulations promulgated thereunder).

AR Shortfall shall mean the difference between the actual amount of Current Company Accounts Receivable collected after the Effective Time and the Estimated Collectible Accounts Receivable Amount.

Balance Sheet Date means April 30, 2006, the date of the Company Balance Sheet.

Bridge Loan shall mean that certain advance of funds in cash, in one or more traunches as Acquiror elects, by Acquiror to the Company on or from time to time after the Agreement Date in an aggregate amount that shall not exceed the sum of the Estimated Pre-Closing Expenses, unless otherwise approved by Acquiror.

Bridge Loan Amount shall mean the aggregate dollar amount due under all of the Bridge Notes.

Bridge Note(s) shall mean one or more unsecured promissory notes in the form attached hereto as Schedule 1 each representing the Companys obligation to repay a particular traunche of the Bridge Loan principal, plus interest as therein provided, and providing that the Companys obligations to repay any amounts owed under the Bridge Note(s) shall be forgiven by Acquiror on the Termination Date if the Company has properly terminated this Agreement pursuant to the provisions of Section 11.2(b) or Section 11.2(c).

Closing means the closing of the transactions to consummate the Merger.

Closing Date means a time and date to be specified by the parties after the satisfaction or waiver of the conditions set forth in Article 9 and Article 10 (excluding conditions that, by their terms, are to be satisfied on the Closing Date, but subject to the satisfaction or

waiver of such conditions); the parties anticipate that the Closing Date will occur on August 1, 2006; provided, however, that the Acquiror may elect to accelerate the Closing Date at its sole option to a date specified in a notice given at least two (2) business days before the proposed Closing Date.

Code means the Internal Revenue Code of 1986, as amended.

Company Ancillary Agreements means, collectively, the following agreements (other than this Agreement) that Company is to enter into as a party thereto pursuant to this Agreement: Certificate of Merger, Bridge Note(s), Escrow Agreement, agreement terminating Company VC Agreements pursuant to Section 10.9, Company Shareholder Release, and Retention Plan Participant Release.

Company Certificates means, collectively, the following certificates to be delivered on behalf of Company by an officer or officers of Company at the Closing pursuant to Article 10: officers certificate pursuant to Sections 10.1 and 10.2; secretary certificate pursuant to Section 10.14, Deal Fees Certificate, Spreadsheets and the Company AR Certificate.

Company AR Certificate shall have the meaning set forth in Section 10.19.

Company Balance Sheet means the Companys unaudited balance sheet as of April 30, 2006 included in the Company Financial Statements.

Company Business means the business of the Company as presently conducted and presently proposed to be conducted by Company.

Company Capital Stock shall mean, collectively, the Company Common Stock, Series A Preferred Stock and Series B Preferred Stock.

Company Common Stock shall mean the common stock, $0.001 par value, of Company.

Company Financial Statements means (A) the Companys audited balance sheets dated December 31, 2005 and December 31, 2004 and its audited statements of operations, statements of cash flows and statements of changes in stockholders equity for the years then ended, and (B) the Companys unaudited balance sheet dated April 30, 2006 and its unaudited statements of operations, statements of cash flows and statements of changes in stockholders equity for the four-month period then ended, and any notes to the foregoing financial statements.

Company IP shall have the meaning given in Section 3.1.

Company Option Plan means the 2000 Amended and Restated Equity Incentive Plan of the Company, as amended.

Company Optionholders means the holders of Company Options.

Company Options means options to purchase shares of Company Capital Stock.

Company Securityholders means the Company Stockholders, Company Optionholders and Company Warrantholders, collectively.

Company Stockholders means the holders of shares of Company Capital Stock.

Company Warrantholders means the holders of Company Warrants.

Company Warrants means warrants to purchase shares of Company Capital Stock.

Contract means any written or oral legally binding contract, agreement, instrument, arrangement, commitment or undertaking (including leases, licenses, mortgages, notes, guarantees, sublicenses, subcontracts and purchase orders).

Customer Escrow Amount shall mean $750,000.

Deal Fees means the sum of the legal, accounting, investment banking, brokers and finders fees paid, accrued or incurred by the Company in connection with the Merger and this Agreement and the transactions contemplated hereby.

Deal Fees Certificate means a certificate executed by the President or Chief Executive Officer of the Company, dated as of the Closing Date, certifying the amount of Deal Fees (including an itemized list of each item of Deal Fees with a general description of the nature of such expense and the Person to whom such expense was or is owed or was paid pre-Closing). The Deal Fees Certificate shall include a representation of the Company, certified by the President or Chief Executive Officer of the Company, that such certificate includes all of the Deal Fees paid or payable at any time prior to, at or following the Closing Date.

Delaware Law means the General Corporation Law of the State of Delaware.

D&O Tail Coverage Policy is the tail policy obtained by Acquiror pursuant to Section 6.1(b) hereof.

Dissenters Deadline Date means the first date at or after the Effective Time on which no holder of Company Capital Stock as of immediately prior to the Effective Time has an opportunity to perfect appraisal rights in accordance with Delaware Law in connection with the Merger in respect of any shares of Company Capital Stock.

Dissenting Shares means any shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time and in respect of which appraisal rights shall have been perfected prior to the Dissenters Deadline Date in accordance with Delaware Law in connection with the Merger.

Dissenting Shares Excess Payments means any payment in respect of Dissenting Shares in excess of the sum of the amount of cash that would have been issuable pursuant to Section 2.5 in respect of such shares had they never been Dissenting Shares. Dissenting Shares Excess Payments shall constitute Damages for purposes of Article 12 without regard to the Basket.

Documentation means, collectively, programmers notes or logs, source code annotations, user guides, manuals, instructions, software architecture designs, layouts, any know-how, and any other designs, plans, drawings, documentation, materials, supplier lists, software source code and object code, net lists, photographs, development tools, blueprints, media, memoranda and records that are primarily related to or otherwise necessary for the use and exploitation of any products of the Company used in the Company Business or under development, whether in tangible or intangible form, whether owned by the Company or held by the Company under any licenses or sublicenses (or similar grants of rights).

Earnout Component Amounts shall have the meaning given in Section 3.4.

Earnout Payout Date means the applicable date that Net Contingent Consideration, if any, becomes payable pursuant to Article 3.

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