Exhibit 2.1

CONFIDENTIAL
EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

CHICO’S FAS, INC.

HARBOR DTC, INC.

BOSTON PROPER, INC.

AND

MICHAEL W. TIERNAN

and

KENNETH C. FISCHER

as the Shareholder Representatives

Dated as of August 16, 2011

TABLE OF CONTENTS

		Page
ARTICLE I THE MERGER		2
1.1 The Merger		2
1.2 Effective Time		2
1.3 Effect of the Merger		3
1.4 Formation Documents of Surviving Corporation		3
1.5 Management of Surviving Corporation		3
1.6 Effect of Merger on the Capital Stock of the Constituent Corporations		3
1.7 Closing Payments		5
1.8 Escrow; Shareholder Representative Fund; Withholdings		7
1.9 Paying Agent		8
1.10 Post-Closing Adjustments		9
1.11 Appraisal Rights		11
1.12 Transaction Expenses		12
1.13 Taking of Necessary Action; Further Action		12
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY		12
2.1 Organization of the Company		12
2.2 Company Capital Structure		13
2.3 Subsidiaries		14
2.4 Authority		14
2.5 No Conflict		15
2.6 Governmental Consents		15
2.7 Company Financial Statements		15
2.8 No Undisclosed Liabilities		16
2.9 Absence of Changes		16
2.10 Tax Matters		16
2.11 Title to Properties; Absence of Liens and Encumbrances		17
2.12 Intellectual Property		18
2.13 Information Technology Systems, Customer Information		20
2.14 Agreements, Contracts and Commitments		21
2.15 Interested Party Transactions		23
2.16 Governmental Authorization		24
2.17 Litigation		24
2.18 Environmental Matters		24
2.19 Brokers’ and Finders’ Fees		25
2.20 Employee Benefit Plans and Compensation		25
2.21 Insurance		27
2.22 Compliance with Laws		28
2.23 Products		28

		Page
2.24 Suppliers		28
2.25 Ethical Practices		28
2.26 Bank Accounts		29
2.27 Inventory		29
2.28 Other Information		29
2.29 No Other Representations or Warranties		29
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB		29
3.1 Organization, Standing and Power		29
3.2 Authority		30
3.3 Consents		30
3.4 No Conflict		30
3.5 Litigation		30
3.6 Interim Operations of Merger Sub		31
3.7 Solvency; Ability to Perform Agreement		31
3.8 Investment Intent		31
3.9 Parent and Merger Sub Acknowledgement		31
3.10 Brokers’ and Finders’ Fees		32
3.11 Board Approval		32
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME		32
4.1 Conduct of Business of the Company		32
4.2 No Solicitation Nor Negotiations		36
4.3 Procedures for Requesting Parent Consent		37
ARTICLE V ADDITIONAL AGREEMENTS		37
5.1 Information Statement; Shareholder Approval		37
5.2 Access to Information		38
5.3 Confidentiality		38
5.4 Public Disclosure		38
5.5 Consents		38
5.6 Notification of Certain Matters		39
5.7 Additional Documents and Further Assurances; Commercially Reasonable Efforts		39
5.8 Employee Matters		40
5.9 Officers’ and Directors’ Indemnification		40
5.10 Tax Matters		40
5.11 Cooperation on Tax Matters		43
5.12 Reasonable Efforts; HSR Act Matters		44
5.13 Release of Liens		46
5.14 Closing Date Actions		46
ARTICLE VI CONDITIONS TO THE MERGER		46

		Page
6.1 Conditions to Obligations of Each Party to Effect the Merger		46
6.2 Conditions to the Obligations of Parent and Merger Sub		47
6.3 Conditions to Obligations of the Company		49
6.4 Frustration of Closing Conditions		50
ARTICLE VII INDEMNIFICATION		50
7.1 Survival of Representations, Warranties and Covenants		50
7.2 Indemnification		50
7.3 Indemnification Claims		51
7.4 Maximum Payments; Remedy; Limitations on Indemnity		53
7.5 Remedies Exclusive		55
ARTICLE VIII TERMINATION		55
8.1 Termination		55
8.2 Effect of Termination		56
8.3 Termination Payment		56
ARTICLE IX GENERAL PROVISIONS		57
9.1 Definitions		57
9.2 Interpretation		71
9.3 Shareholder Representatives		71
9.4 Notices		74
9.5 Disclosure Schedule		75
9.6 Counterparts		76
9.7 Amendment		76
9.8 Extension; Waiver		76
9.9 Entire Agreement; Assignment; Beneficiaries		76
9.10 Severability		76
9.11 Other Remedies; Specific Performance		76
9.12 Governing Law; Jurisdiction		77
9.13 Waiver of Jury Trial		77
9.14 Rules of Construction		77

AGREEMENT AND PLAN OF MERGER

     THIS AGREEMENT AND PLAN OF MERGER (the “ Agreement ”) is made and entered into as of August 16, 2011 by and among Chico’s FAS, Inc., a Florida corporation (“ Parent ”), Harbor DTC, Inc., a Florida corporation and a wholly-owned subsidiary of Parent (“ Merger Sub ”), Boston Proper, Inc., a Florida corporation (the “ Company ”), and Michael W. Tiernan and Kenneth C. Fischer who will serve as the representatives of the Company’s shareholders and optionholders and each is a party to this Agreement solely in such capacity (collectively, the “ Shareholder Representatives ”).

RECITALS

     A. The boards of directors of each of Parent, Merger Sub and the Company believe it is in the best interests of each corporation and its respective shareholders that Parent acquire the Company through the statutory merger of Merger Sub with and into the Company, with the Company continuing as the surviving entity (the “ Merger ”), and, in furtherance thereof, have approved this Agreement.

     B. Pursuant to the Merger, among other things, and subject to the terms and conditions of this Agreement, all of the issued and outstanding capital stock of the Company shall be converted into the right to receive the consideration set forth herein.

     C. A portion of the consideration payable in connection with the Merger shall be placed in escrow as security for the indemnification and post-closing merger consideration adjustment obligations set forth in this Agreement.

     D. The Company, on the one hand, and Parent and Merger Sub, on the other hand, desire to make certain representations, warranties, covenants and other agreements in connection with the Merger.

     E. Certain capitalized terms used in this Agreement are defined in Section 9.1.

     F. As an inducement to Parent and Merger Sub to enter into this Agreement, the Family Shareholders and Metro Millennium International Limited, which in the aggregate own shares of Company Capital Stock with voting power sufficient to approve the Merger in accordance with the FBCA and the Charter Documents, concurrently with the execution and delivery of this Agreement, have entered into an agreement with Parent pursuant to which the Family Shareholders and Metro Millennium International Limited have agreed to vote (including acting by written consent) all of their respective shares of Company Capital Stock in favor of this Agreement and the Merger and against any transaction or other action that would interfere with this Agreement or any of the transactions contemplated hereby (including the Merger) (the “ Voting Agreement ”).

     G. As an inducement to Parent and Merger Sub to enter into this Agreement, Michael W. Tiernan, concurrently with the execution and delivery of this Agreement, has entered into an agreement with Parent pursuant to which Michael W. Tiernan has agreed to certain restrictive

covenants, including non-competition and non-solicitation of employees, and to maintain the confidentiality of Company information (the “ Non-Compete Agreement ”).

     H. As an inducement to Parent and Merger Sub to enter into this Agreement, Sheryl Clark has entered into a letter of employment with Parent, such employment to become effective as of the Effective Time of the Merger.

     I. As an inducement to Parent and Merger Sub to enter into this Agreement, John M. Grove, Grove Industries (F.E.) Limited and Metro Millennium International Limited have entered into an agreement with Parent pursuant to which they have agreed to maintain the confidentiality of Company information.

     NOW, THEREFORE, in consideration of the mutual agreements, covenants and other promises set forth herein, the mutual benefits to be gained by the performance thereof, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, the parties hereby 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 the Florida Business Corporation Act (“ FBCA ”), Merger Sub shall be merged with and into the Company, 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 referred to as the “ Surviving Corporation .”

     1.2 Effective Time . Unless this Agreement is earlier terminated pursuant to Section 8.1, the closing of the transactions contemplated by this Agreement (the “ Closing ”) will take place as promptly as practicable following the execution and delivery hereof by the parties hereto, conditioned upon the satisfaction or waiver of the conditions set forth in Article VI hereof, and in any event within three (3) Business Days following the satisfaction or waiver of the conditions set forth in Article VI hereof (other than the satisfaction or waiver of those conditions that by their nature are to be satisfied on the Closing Date), at the offices of Holland & Knight LLP, 1600 Tysons Boulevard, Suite 700, McLean, VA 22102, unless another time or place is mutually agreed upon in writing by Parent and the Company (and may take place by conference call and facsimile or email transfer of signature pages and deliverables with exchange of original signatures by overnight mail). The date upon which the Closing actually occurs shall be referred to herein as the “ Closing Date ”. On the Closing Date, the parties hereto shall cause the Merger to be consummated by filing Articles of Merger in substantially the form attached hereto as Exhibit A, with the Florida Department of State (the “ Articles of Merger ”), in accordance with the applicable provisions of the FBCA (the time of the acceptance of such filing by the Florida Department of State, which shall be the effective time of the Merger, shall be referred to herein as the “ Effective Time ”). To the extent permitted by applicable Law, the parties shall treat the Closing as being effective as of 11:59 p.m. (ET) on the Closing Date.

     1.3 Effect of the Merger . At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of FBCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, except as otherwise agreed to pursuant to the terms of this Agreement, all of the rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all restrictions, disabilities and duties of the Company and Merger Sub shall become the restrictions, disabilities and duties of the Surviving Corporation.

     1.4 Formation Documents of Surviving Corporation .

          (a)  Articles of Incorporation . The articles of incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to be identical to the articles of incorporation of Merger Sub as in effect immediately prior to the Effective Time, until thereafter amended in accordance with the FBCA and as provided in such articles of incorporation; provided , however , that at the Effective Time, Article I of the articles of incorporation of the Surviving Corporation shall be amended and restated in its entirety to read as follows: “The name of the corporation is Boston Proper, Inc.”

          (b)  Bylaws . Unless otherwise determined by Parent prior to the Effective Time, the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation at the Effective Time (other than any change to the name of the Surviving Corporation that is set forth in the articles of incorporation of the Surviving Corporation) until thereafter amended in accordance with the FBCA and as provided in the articles of incorporation of the Surviving Corporation and such bylaws.

     1.5 Management of Surviving Corporation .

          (a)  Directors of Company . The directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation immediately after the Effective Time, each to hold the office of a director of the Surviving Corporation in accordance with the provisions of the FBCA and the articles of incorporation and bylaws of the Surviving Corporation until their respective successors are duly elected and qualified.

          (b)  Officers of Company . The officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Corporation immediately after the Effective Time, each to hold office in accordance with the provisions of the bylaws of the Surviving Corporation.

     1.6 Effect of Merger on the Capital Stock of the Constituent Corporations .

          (a)  Effect on Company Capital Stock . At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company, the holders of any shares of Company Capital Stock (excluding, for the avoidance of doubt, unexercised Company Options and treasury stock), or any other Person, upon the terms and subject to the conditions set forth in this Agreement, the following shall occur:

               (i) Each share of Series C Preferred Stock issued and outstanding immediately prior to the Effective Time, will be cancelled and extinguished and be converted

automatically into the right to receive, upon surrender of the certificate representing such shares of Series C Preferred Stock in the manner provided in this Agreement, without interest, the sum of (A) (i) the Final Per Share Consideration, multiplied by (ii) 1,333.33 (the conversion rate to Company Common Stock of the Series C Preferred Stock) plus (B) the Series C Per Share Dividends.

               (ii) Each share of Series B Preferred Stock issued and outstanding immediately prior to the Effective Time, will be cancelled and extinguished and be converted automatically into the right to receive, upon surrender of the certificate representing such shares of Series B Preferred Stock in the manner provided in this Agreement, without interest, the product of (A) the Final Per Share Consideration, multiplied by (B) 1,333.33 (the conversion rate to Company Common Stock of the Series B Preferred Stock).

               (iii) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time, will be cancelled and extinguished and be converted automatically into the right to receive, upon surrender of the certificate representing such shares of Company Common Stock in the manner provided in this Agreement, without interest, the Final Per Share Consideration.

          (b)  Treasury Stock . Each outstanding share of Company Capital Stock, Series A Preferred Stock and Undesignated Preferred Stock owned by the Company as treasury stock or authorized but currently unissued stock immediately prior to the Effective Time will, by virtue of the Merger, and without any action on the part of the holder thereof, no longer be outstanding, will be cancelled and retired without payment of any consideration therefor and will cease to exist.

          (c)  Treatment of Company Options .

               (i) No Company Option shall be assumed or otherwise replaced by Parent. The Company shall take all actions necessary or appropriate to provide that immediately prior to the Effective Time, and conditioned on the consummation of the Merger, each Company Option (whether vested or unvested and regardless of the exercise price thereof) shall be cancelled and each holder of a Company Vested Option (a “ Vested Optionholder ”) shall be entitled to the right to receive for each share of Company Common Stock issuable upon the exercise of Company Vested Option(s) held by such Vested Optionholder a cash payment, subject to the withholding provisions contained herein, in an amount equal to (A) the Estimated Per Share Consideration, plus (B) the quotient of the Excess Amount (if any) divided by the Company Common Stock Deemed Outstanding, minus (C) the exercise price for each share of Company Common Stock issuable upon the exercise of the Company Option(s) ( provided , that if such exercise price is greater than (x) the Estimated Per Share Consideration plus (y) the quotient of the Excess Amount (if any) divided by the Company Common Stock Deemed Outstanding, such amount shall be zero dollars ($0)). Such cash payment to a Vested Optionholder by the Payment Agent or Shareholder Representatives shall be reduced by any income or employment Tax withholding required under the Code or any provision of state, local or foreign Tax Law and the payor shall remit any such withholdings to the appropriate Taxing authorities. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the applicable Vested Optionholder.

               (ii) The Company shall take all actions necessary to provide that immediately prior to the Effective Time and conditioned on the consummation of the Merger, (A) the Company Option Plans shall be terminated, and (B) no holder of any Company Option will have any right to receive any shares of capital stock of the Company or, if applicable, the Surviving Corporation, upon exercise of any Company Option.

          (d)  Capital Stock of Merger Sub . Each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation, and the shares of the Surviving Corporation into which the shares of Merger Sub common stock are so converted shall be the only shares of capital stock of the Surviving Corporation that are issued and outstanding immediately after the Effective Time. Each stock certificate of Merger Sub evidencing ownership of any such shares shall, after the Effective Time, evidence ownership of such shares of capital stock of the Surviving Corporation.

     1.7 Closing Payments .

          (a)  Closing Date Certificate . Not later than five (5) Business Days prior to the Closing Date, the Company will prepare and deliver to Parent a certificate (the “ Closing Date Certificate ”) signed by the Company certifying the Company’s good faith estimate of all payments required at Closing pursuant to this Agreement, including or attaching:

               (i) an estimated unaudited balance sheet of the Company, as of 11:59 p.m. (ET) on the Closing Date (the “ Closing Date Balance Sheet ”), prepared in accordance with GAAP in a manner consistent with the application of GAAP in the Year-End Financials (except that such balance sheet will not contain footnotes and other presentation items that may be required by GAAP) and without giving effect to the consummation of the Merger and the other transactions contemplated by this Agreement (unless otherwise specified herein);

               (ii) a statement setting forth the Company’s good faith estimate (based on reasonable assumptions) of the Closing Net Working Capital (the “ Estimated Net Working Capital ”) and setting forth the Company’s good faith estimate (based on reasonable assumptions) of the Estimated Net Working Capital Differential;

               (iii) a statement (the “ Estimated Net Debt Statement ”) setting forth (A) the Company’s good faith estimate (based on reasonable assumptions) of the Closing Net Debt (the “ Estimated Net Debt ”) and (B) a schedule of the estimated amounts of all Company Debt as of the Closing Date, including information on each creditor to whom such amounts are payable, accompanied by a pay-off letter from each such creditor, which pay-off letter shall provide for the release of all Liens associated therewith upon payment of the sums specified therein, all in customary form or a form otherwise reasonably satisfactory to Parent;

               (iv) a statement (the “ Estimated Outstanding Company Transaction and Other Expense Statement ”) setting forth a good faith estimate of any Outstanding Company Transaction and Other Expenses immediately prior to the Closing (“ Estimated Outstanding Company Transaction and Other Expenses ” ) (including the amounts of all income and employment Taxes to be withheld on behalf of any recipient of an Employee Bonus Payment

included on such statement), along with a list of all Persons to whom any such Estimated Outstanding Company Transaction and Other Expenses are payable and the estimated amount owed to each such Person;

               (v) a statement setting forth (A) the calculation of the Estimated Adjusted Net Merger Consideration and (B) the Estimated Per Share Consideration;

               (vi) a calculation of the amounts of each Shareholder’s portion of the Estimated Adjusted Net Merger Consideration, along with the portion of the foregoing to be paid by the Paying Agent to each Shareholder after the Effective Time and the amounts to be deposited into the Escrow Account and the Shareholder Representative Account on behalf of such Shareholder based on each Shareholder’s Pro Rata Portion, and identifying the name of each Shareholder, Pro Rata Portion and Ownership Percentage, and the number of shares of Company Capital Stock owned by such Shareholder; and

               (vii) a calculation of the amount of each Vested Optionholder’s portion of the Estimated Adjusted Net Merger Consideration (i.e., the Estimated Per Share Consideration multiplied by the number of shares of Company Common Stock issuable upon exercise of such Person’s Company Vested Option(s) less the applicable aggregate exercise prices for such Company Vested Option(s)), along with the portion of the foregoing to be paid by the Paying Agent to each Vested Optionholder on the Closing Date (and the amounts of all income and employment Taxes to be withheld on behalf of such Vested Optionholder), and identifying the name of each Vested Optionholder, the Ownership Percentage, the number of shares of Company Common Stock otherwise issuable upon the exercise of the Company Vested Option being terminated and the applicable per share exercise price.

          (b)  Closing Date Payments . At or prior to the Effective Time, Parent will make the following payments by wire transfer of immediately available funds:

               (i) an amount equal to Fifteen Million Dollars ($15,000,000) (the “ Escrow Amount ”) to JP Morgan Chase, N.A. (the “ Escrow Agent ”), as escrow agent under the Escrow Agreement by and among Parent, the Shareholder Representatives and the Escrow Agent, substantially in the form attached hereto as Exhibit B (with such reasonable changes as the Escrow Agent may reasonably request) (the “ Escrow Agreement ”), for deposit in the escrow account (the “ Escrow Account ”) to be established, maintained and managed by the Escrow Agent pursuant to and in accordance with the terms of the Escrow Agreement;

               (ii) an amount equal to Five Hundred Thousand Dollars ($500,000) (the “ Shareholder Representative Amount ”) to the Shareholder Representatives to hold (the “ Shareholder Representative Fund ”) in accordance with Section 1.8(b);

               (iii) the amount of any Company Debt listed on the Estimated Net Debt Statement to each creditor identified therein;

               (iv) the amount of any Outstanding Company Transaction and Other Expenses listed on the Estimated Outstanding Company Transaction and Other Expense Statement to each Person that is identified therein as being owed such Outstanding Company Transaction and Other Expenses; provided that the aggregate amount of any Employee Bonus

Payments included on such statement will be paid to the Company for the Company to remit to the applicable recipient (less required withholdings) and the amount of such withholdings will be paid by the Company to the appropriate Taxing authorities;

               (v) the amount of all income and the employee’s portion of employment Taxes to be withheld as shown pursuant to the schedules referenced in Section 1.7(a)(vii) to the Company, which will be paid by the Company to the appropriate Taxing authorities; and

               (vi) the Estimated Adjusted Net Merger Consideration (less the amounts paid pursuant to Sections 1.7(b)(i), 1.7(b)(ii) and 1.7(b)(v) and less the Aggregate Option Exercise Amount) to the Paying Agent for distribution to the Securityholders in accordance with the provisions of the Paying Agent Agreement and Section 1.9 hereto.

     1.8 Escrow; Shareholder Representative Fund; Withholdings .

          (a)  Escrow Funds . Pursuant to, and subject to the terms and conditions of, the Escrow Agreement, the funds in the Escrow Account (the “ Escrow Funds ”) shall be used as security for the indemnity obligations to the Parent Parties under Sections 5.10 and 7.2(a) and for any amounts owed to Parent for any Shortfall Amount under Section 1.10. Escrow Funds in an amount equal to the Escrow Amount shall be withheld from each Shareholder’s portion of the Estimated Adjusted Net Merger Consideration based on each Shareholder’s Pro Rata Portion.

          (b)  Shareholder Representative Fund . The Shareholder Representative Fund shall be used to reimburse the Shareholder Representatives for their out-of-pocket fees and expenses and to pay other obligations to or of the Shareholder Representatives in connection with Section 9.3, or shall (to the extent not previously distributed to the Shareholder Representatives as provided for or subject to a claim by the Shareholder Representatives) be distributed to the Shareholders at such time, and in such manner, as the Shareholder Representatives direct. The Shareholder Representative Fund shall be withheld from each Shareholder’s portion of the Estimated Adjusted Net Merger Consideration based on each Shareholder’s Pro Rata Portion. Upon the delivery of the Shareholder Representative Amount to the Shareholder Representatives by Parent, the Shareholders, without action by them, shall be treated as having received from Parent such cash in accordance with their respective Pro Rata Portions of the Shareholder Representative Amount and then as having deposited such cash into the Shareholder Representative Fund.

          (c)  Withholding Taxes . Notwithstanding any other provision in this Agreement, the Company, the Shareholder Representatives, the Paying Agent and the Escrow Agent shall have the right to deduct and withhold Taxes from any payments to be made hereunder if such withholding is required by Law and to request and receive any necessary Tax forms, including Form W-9 or the appropriate series of Form W-8, as applicable, or any similar information, from the Securityholders. To the extent that any of the aforementioned amounts are so withheld and paid over to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been delivered and paid to the Securityholder or other recipient of payments in respect of which such deduction and withholding was made.

     1.9 Paying Agent .

          (a) Prior to the Effective Time, Parent shall engage a nationally-recognized financial institution reasonably satisfactory to the Shareholder Representatives (the “ Paying Agent ”) to serve as the paying agent for the Merger and the other transactions contemplated by this Agreement pursuant to a Paying Agent Agreement, in a form reasonably acceptable to the Paying Agent, Parent, the Company and the Shareholder Representatives, to be entered into by and among Parent, the Shareholder Representatives and the Paying Agent (the “ Paying Agent Agreement ”).

          (b) In order for a Shareholder to receive payment from the Paying Agent for such Shareholder’s shares of Company Capital Stock, such Shareholder shall be required to provide the Paying Agent (i) a duly executed letter of transmittal in the form as Parent, the Shareholder Representatives and the Paying Agent shall specify (“ Letter of Transmittal ”), (ii) an executed Form W-9 or the appropriate series of Form W-8, as applicable, and (iii) either the applicable stock certificate(s) or an affidavit of lost stock certificate and indemnity agreement in the form attached to the Letter of Transmittal.

          (c) In order for a Vested Optionholder to receive payment in connection with such Vested Optionholder’s Company Vested Options, such Vested Optionholder shall be required to provide the Paying Agent, (i) an executed Option Termination Agreement in the form attached hereto as Exhibit C and (ii) an executed Form W-9 or the appropriate series of Form W-8, as applicable (or other applicable form).

          (d) If the Paying Agent determines that any of the items referenced in Sections 1.9(b) or 1.9(c) do not appear to have been properly completed or executed, the Paying Agent will consult with Parent and the Shareholder Representatives and follow, where possible, its regular procedures to attempt to cause such irregularity to be corrected, provided that Parent and the Shareholder Representatives will consider in good faith waiving any irregularity if there is no material risk of Loss to the parties in connection therewith.

          (e) If payment or delivery is to be made to a Person other than the Person in whose name a Company stock certificate so surrendered is registered, it shall be a condition of payment that the Company stock certificate so surrendered be properly endorsed or otherwise in proper form for transfer, that the signatures on the Company stock certificate or any related stock power be properly guaranteed and that the Person requesting such payment either pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of the Company stock certificate so surrendered or establish to the satisfaction of the Surviving Corporation that such Tax has been paid or is not applicable.

          (f) After the Effective Time, there shall be no transfers of shares of Company Capital Stock that were outstanding immediately prior to the Effective Time.

          (g) Any portion of the amounts that have not been distributed by the Paying Agent upon termination of the Paying Agent Agreement, if any, shall be released and remitted by the Paying Agent to Parent, and any Shareholders or Vested Optionholders who have not theretofore complied with the requirements hereunder and under the Paying Agent Agreement

will thereafter look only to Parent (subject to abandoned property, escheat and other similar legal requirements) as a general creditor for payment of their claim for the same, with such sums to be paid only upon compliance by such Person with the delivery requirements set forth in this Section 1.9 and in the Paying Agent Agreement.

     1.10 Post-Closing Adjustments .

          (a)  Calculation of Final Adjusted Net Merger Consideration .

               (i) Within sixty (60) calendar days following the Closing Date, Parent shall prepare (or cause to be prepared) and deliver to the Shareholder Representatives a statement (the “ Parent Closing Statement ”) setting forth Parent’s calculation of (A) the actual Closing Net Working Capital, (B) the actual Closing Net Debt and (C) the actual Outstanding Company Transaction and Other Expenses (each of clauses (A), (B) and (C), a “ Merger Consideration Adjustment Component ”), along with a description in reasonable detail of each adjustment from the calculations of Estimated Net Working Capital, Estimated Net Debt, and Estimated Outstanding Company Transaction and Other Expenses. The Parent Closing Statement delivered by Parent shall also set forth any adjustment in the Net Merger Consideration due to such adjustments.

               (ii) The Shareholder Representatives may dispute any item or amount set forth in the Parent Closing Statement, at any time within thirty (30) calendar days following receipt of the Parent Closing Statement, by delivering to Parent a written notice of such dispute (a “ Notice of Dispute ”) setting forth, in reasonable detail and to the extent practicable, (A) each item or amount so disputed by the Shareholder Representatives, (B) the Shareholder Representatives’ calculation of each such disputed item or amount, and (C) the Shareholder Representatives’ calculation of the Merger Consideration Adjustment Components and the actual Net Merger Consideration after giving effect to the Shareholder Representatives’ calculation of each such disputed item or amount. In the event the Shareholder Representatives are not given reasonable access pursuant to Section 1.10(a)(iv) promptly following its request, then the foregoing thirty (30) calendar day period will be increased by one day for each day that the Shareholder Representative and their representatives are not given prompt and reasonable access. If the Shareholder Representatives do not deliver a Notice of Dispute within the thirty (30) calendar day period (as such period may be increased pursuant to the immediately preceding sentence), the Shareholder Representatives shall be deemed to have agreed in all respects with the Parent Closing Statement and the amounts reflected therein shall be final and binding.

               (iii) If Parent shall receive a Notice of Dispute from the Shareholder Representatives delivered pursuant to and in accordance with Section 1.10(a)(ii) within the time period set forth therein, then Parent and the Shareholder Representatives shall use their respective commercially reasonable efforts to resolve all disputed items and amounts set forth in the Notice of Dispute pursuant to good faith negotiations. In the event that Parent and the Shareholder Representatives are unable to reach agreement, within thirty (30) calendar days following Parent’s receipt of a Notice of Dispute, on all of the disputed items or amounts set forth in a Notice of Dispute, then:

               A. Parent and the Shareholder Representatives shall execute a memorandum (the “ Merger Consideration Adjustment Memorandum ”) setting forth (1) the resolved items or amounts, if any, and (2) the items or amounts included in the Notice of Dispute that remain in dispute following such good faith negotiations, with the position of each party with respect thereto (provided if they cannot agree on the terms of a single memorandum, each shall prepare and execute a separate memorandum which together shall be deemed the Merger Consideration Adjustment Memorandum);

               B. Parent and the Shareholder Representatives shall submit all remaining disputed items and amounts set forth in the Merger Consideration Adjustment Memorandum to the Independent Accounting Firm for resolution in accordance with the terms and conditions hereof. The Independent Accounting firm will be jointly engaged by Parent, on one hand, and the Shareholder Representatives, on the other hand, pursuant to an engagement letter in customary form which Parent and the Shareholder Representatives shall execute. Each of the parties to this Agreement shall, and shall cause their respective Affiliates and representatives to, provide full cooperation to the Independent Accounting Firm. The Independent Accounting Firm shall (1) act as an arbitrator, (2) consider only those items and amounts identified in the Merger Consideration Adjustment Memorandum as being in dispute between Parent and the Shareholder Representatives, (3) be instructed to reach its conclusions regarding any such dispute consistent with the terms and conditions of this Agreement and within thirty (30) calendar days after its appointment and provide a written explanation of its decision, and (4) not (x) determine any liability claimed by the Shareholder Representatives or asset claimed by Parent in an amount less than that claimed by such party, or (y) determine any asset claimed by the Shareholder Representatives or liability claimed by Parent in an amount in excess of the amount claimed by such party. All fees and expenses (including reasonable attorney’s fees and expenses and fees and expenses of the Independent Accounting Firm) incurred in connection with any such dispute will be borne by the parties based on the percentage which the portion of the contested amount not awarded to such party bears to the amount actually contested by the parties (e.g., if the total amount in dispute is $70,000 and the Independent Accounting Firm agrees with the Shareholder Representatives with respect to $40,000 of such amount in dispute, then the Shareholders will be responsible for three-sevenths ( ³ / ₇ ^th ) of the fees and expenses and Parent will be responsible for four-sevenths ( ⁴ / ₇ ^th ) of the fees and expenses). The Independent Accounting Firm shall determine all disputed items and amounts and in the absence of fraud or manifest error, its decision in respect thereof shall be final and binding upon (and unappealable by) Parent, the Shareholder Representatives and the Securityholders; and

               C. For all purposes of and under this Agreement, the term “ Final Adjusted Net Merger Consideration ” shall mean the actual finally determined Net Merger Consideration, based upon (1) all amounts agreed upon by Parent and the Shareholder Representatives, and (2) all other amounts determined by the Independent Accounting Firm pursuant to Section 1.10(a)(iii)B. Upon the determination of the Final Adjusted Net Merger Consideration, the Parent Closing Statement shall be deemed to be adjusted to include the finally determined amounts.

          (iv) During the period of time from and after the date of the delivery of the Parent Closing Statement to the Shareholder Representatives until the Final Adjusted Net Merger Consideration has been finally determined pursuant to and in accordance with this

Section 1.10(a), Parent shall provide the Shareholder Representatives and their accountants, counsel and other consultants and experts retained by the Shareholder Representatives, as well as the Independent Accounting Firm in connection with its engagement, if applicable, with reasonable access during normal business hours to the books, records, accounts, files and employees of the Company pertaining to the determination of the Merger Consideration Adjustment Components and the working papers used by Parent or its accountants to prepare the Parent Closing Statement, and each party shall use its commercially reasonable efforts to respond to the other’s reasonable inquiries regarding the Parent Closing Statement and disputes in connection therewith.

          (b)  Post-Closing Payment Based on Final Adjusted Net Merger Consideration .

               (i) If the Final Adjusted Net Merger Consideration is less than the Estimated Adjusted Net Merger Consideration (such difference, the “ Shortfall Amount ”), then as soon as reasonably practicable following the determination of the Final Adjusted Net Merger Consideration pursuant to Section 1.10(a) (and in any event within five (5) Business Days thereafter), Parent and the Shareholder Representatives shall jointly instruct the Escrow Agent to promptly release from the Escrow Account and deliver to (A) Parent an amount in cash equal to the Shortfall Amount, which amount paid to Parent shall be accounted for as having been paid by each Shareholder from the Escrow Funds based on each Shareholder’s Pro Rata Portion, and (B) the Shareholder Representatives, for distribution to the Shareholders based on each Shareholder’s Pro Rata Portion, the amount, if any, by which Two Million Dollars ($2,000,000) exceeds the Shortfall Amount.

               (ii) If the Final Adjusted Net Merger Consideration is greater than the Estimated Adjusted Net Merger Consideration (such amount, the “ Excess Amount ”), then as soon as reasonably practicable following the determination of the Final Adjusted Net Merger Consideration pursuant to Section 1.10(a) (and in any event within five (5) Business Days thereafter), (A) Parent and the Shareholder Representatives shall jointly instruct the Escrow Agent to promptly release from the Escrow Account and deliver to the Shareholder Representatives, for distribution to the Shareholders based on each Shareholder’s Pro Rata Portion, an aggregate amount of Two Million Dollars ($2,000,000) and (B) Parent shall pay the Excess Amount (less the amount of all income and employment Taxes to be withheld on such payments as directed by the Shareholder Representatives prior to such payment due date) to the Paying Agent and cause the Paying Agent to promptly pay to each Securityholder an amount of cash (without interest) equal to their Ownership Percentage of the Excess Amount; and the amount of such income and employment Taxes so withheld will be paid by Parent to the Company, and which will be paid by the Company to the appropriate Taxing authorities.

     1.11 Appraisal Rights . Each share of Company Capital Stock issued and outstanding immediately prior to the Effective Time held by Shareholders who shall have properly exercised their appraisal rights with respect thereto under Sections 607.1301- 607.1333 of the FBCA (such shares of Company Capital Stock, the “ Dissenting Shares ”), subject to the terms of any shareholder or similar agreements to which the Shareholders are bound, shall not be converted into the right to receive the Final Per Share Consideration pursuant to the Merger, but shall be entitled to receive payment of the appraised value of such shares from the Surviving Corporation or Parent in accordance with the provisions of Sections 607.1301- 607.1333 of the FBCA, except

that each Dissenting Share held by a Shareholder who shall thereafter withdraw its demand for appraisal or shall fail to perfect its right to such payment as provided in such Sections 607.1301- 607.1333 of the FBCA shall be deemed to be converted, as of the Effective Time, into the right to receive from the Surviving Corporation or Parent the Final Per Share Consideration in the form such holder otherwise would have been entitled to receive as a result of the Merger. Any party hereto shall provide the other parties with prompt notice of any demands for appraisal, withdrawals of demands for appraisal and any other instruments served pursuant to Sections 607.1301 — 607.1333 of the FBCA and received in connection with the Merger, and the Shareholder Representatives shall have the opportunity to direct and settle all negotiations and proceedings with respect to such demands. The Shareholder Representatives shall conduct, and Parent shall be entitled to participate in, all such negotiations and proceedings in good faith, and shall endeavor to resolve all such demands as promptly as practicable (and in any event prior to the termination of the Escrow Account pursuant to the terms of the Escrow Agreement). The Shareholder Representatives will not, except with the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned), make any payment with respect to, settle or offer to settle, any such demands.

     1.12 Transaction Expenses . Except as provided in Section 5.12(d), whether or not the Merger is consummated, all Third Party Transaction Expenses shall be the obligation of the respective party incurring such fees and expenses, provided that , in the event the Merger is consummated, the Outstanding Company Transaction and Other Expenses shall be paid as set forth in this Agreement.

     1.13 Taking of Necessary Action; Further Action . If at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company, Parent, Merger Sub, and the officers and directors of the Surviving Corporation are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action.

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     The Company hereby represents and warrants to Parent and Merger Sub, subject to such exceptions as are disclosed in the disclosure schedule supplied by the Company to Parent (the “ Disclosure Schedule ”) and dated as of the date hereof, that on the date hereof and as of the Closing Date, as though made on the Closing Date and as of the Effective Time, as follows:

     2.1 Organization of the Company . The Company is a corporation duly organized, validly existing and in good standing under the FBCA. The Company has the corporate power and authority to own, lease, operate or otherwise hold its properties and assets and to carry on its business as currently conducted. The Company is duly qualified or licensed to do business and is in good standing as a foreign corporation in each jurisdiction listed on Section 2.1(i) of the Disclosure Schedule which includes all jurisdictions in which such qualification or licensure is required by Law, except for those jurisdictions where the failure to be so qualified or licensed

and in good standing would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has made available to Parent a true and correct copy of (i) its articles of incorporation and bylaws, each as amended to date and in full force and effect on the date hereof (collectively, the “ Charter Documents ”), and (ii) except as set forth in Section 2.1(ii) of the Disclosure Schedule , copies of the minutes of all meetings of the shareholders, the board of directors and each committee of the board of directors of the Company held since February 3, 2008 (redacted for portions relating to all aspects of the Company’s sale transaction process). The Company is not, nor since February 3, 2008 has it been, in violation of its Charter Documents in any material respect.

     2.2 Company Capital Structure .

          (a) The authorized capital stock of the Company consists of: (i) 36,000,000 shares of Company Common Stock, of which 12,223,385 shares are issued and outstanding as of the date of this Agreement, (ii) 338,648 shares of preferred stock of which (A) 327,765 shares are designated Series A Preferred Stock, none of which are issued and outstanding as of the date of this Agreement, (B) 1,383 shares are designated Series B Preferred Stock, all of which are issued and outstanding as of the date of this Agreement and which convert to Company Common Stock on a 1 to 1,333.33 basis, and (C) 7,500 shares are designated Series C Preferred Stock, of which 7,000 have been purchased, redeemed or otherwise acquired by the Company and therefore cancelled pursuant to the Series C Articles of Amendment and of which 500 shares are issued and outstanding as of the date of this Agreement and which convert to Company Common Stock on a 1 to 1,333.33 basis; and (D) 2,000 shares are undesignated into a series or class (the “ Undesignated Preferred Stock ”), none of which have been issued. As of the date of this Agreement, the Company Capital Stock is held beneficially and of record by the Persons with the addresses on record with the Company and in the numbers of shares as set forth in Section 2.2(a)(i) of the Disclosure Schedule . All outstanding shares of Company Capital Stock (i) are duly authorized, validly issued, fully paid and non-assessable, (ii) were not issued in violation of any preemptive or similar rights created by statute, the Charter Documents as in effect from time to time, or any agreement to which the Company is (or was) a party or by which it is (or was) bound and (iii) except as set forth in Section 2.2(a)(ii) of the Disclosure Schedule , are not subject to preemptive rights created by statute, the Charter Documents, or any agreement to which the Company is a party or by which it is bound, and together with all Company Options, have been issued in compliance in all material respects with all applicable federal and state securities Laws. As of the date hereof, there are no declared and unpaid dividends with respect to any shares of Company Capital Stock.

          (b)  Section 2.2(b)(i) of the Disclosure Schedule sets forth for each holder of Company Options, the name and address on record with the Company of such holder, the number of shares of Company Common Stock issuable upon exercise of such Company Options held by such holder, the vesting schedule and exercise price of such Company Options and the dates on which such Company Options were granted and will expire. The Company has reserved a sufficient number of shares of Company Common Stock for issuance to the holders of the currently outstanding and unexercised Company Options upon the exercise of such Company Options. True, complete and correct copies of each form of agreement pursuant to which any such Company Option has been issued, as amended to date, have been made available to Parent. Except for the Company Options set forth in Section 2.2(b)(i) of the Disclosure Schedule , there

are no outstanding options, warrants, calls, rights, commitments, convertible or exchangeable securities or other agreements or obligations of any kind to which the Company is a party or by which the Company is bound obligating the Company to grant, issue, deliver, sell, repurchase or redeem, or cause to be granted, issued, delivered, sold, repurchased or redeemed, any shares of the Company Common Stock or other securities of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. Except as set forth in Section 2.2(b)(ii) of the Disclosure Schedule , (i) there are no voting trusts, proxies, or other agreements or understandings with respect to the voting securities of the Company and (ii) there are no agreements to which the Company or, to the Knowledge of the Company, any of its Shareholders is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Common Stock or other securities of the Company.

     2.3 Subsidiaries . The Company does not have any Subsidiaries and does not otherwise directly or indirectly own any equity or similar interest in or any interest convertible, exchangeable or exercisable for, any equity or similar interest in, any other corporation, limited liability company, partnership, association or Person.

     2.4 Authority . The Company has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. Subject to obtaining the requisite approval of the Shareholders of this Agreement (the “ Sufficient Shareholder Vote ”), the execution and delivery of this Agreement and any Related Agreements to which the Company is a party, the performance of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and no further action is required on the part of the Company to authorize this Agreement and any Related Agreements to which it is a party and the transactions contemplated hereby and thereby. This Agreement and any Related Agreements to which the Company is a party have been approved by the Board of Directors of the Company and the Board of Directors of the Company has determined that the transactions contemplated by this Agreement are in the best interests of the Company and its Shareholders. This Agreement and each of the Related Agreements to which the Company is a party has been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, except as such enforceability may be subject to the Laws of general application relating to bankruptcy, insolvency, reorganization and the relief of debtors and rules of Law governing specific performance, injunctive relief, or other equitable remedies; provided , however , that the Articles of Merger will not be effective until filed with and accepted by the Florida Department of State. The affirmative vote of (i) a majority of the outstanding shares of Company Common Stock, Series B Preferred Stock and Series C Preferred Stock, voting together as a single class, (ii) at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of Series B Preferred Stock, voting as a separate class, and (iii) at least seventy-five percent (75%) of the outstanding shares of Series C Preferred Stock, voting as a

separate class, are the only votes of the Shareholders necessary to approve this Agreement, the Merger and the other transactions contemplated hereby.

     2.5 No Conflict .

          (a) Except as set forth on Section 2.5(a) of the Disclosure Schedule , the execution and delivery by the Company of this Agreement, the Related Agreements to which the Company is a party and the Articles of Merger, the performance by the Company of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in any breach, violation of or default under (with or without notice or lapse of time, or both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any right or benefit, or result in the creation of any material Lien upon any of the Company’s properties or assets, under (any such event, a “ Conflict ”) (i) any provision of the Charter Documents or the similar organizational documents of the Company, (ii) any Material Contract or (iii) any material Law applicable to the Company and any of its properties (whether tangible or intangible) or assets.

          (b)  Section 2.5(b) of the Disclosure Schedule sets forth a list of Material Contracts pursuant to which consents, waivers and approvals of parties are required thereunder in connection with the Merger.

     2.6 Governmental Consents . No consent, notice, waiver, approval, order or authorization of, or registration, declaration or filing with any Governmental Entity, is required to be obtained or made by the Company in connection with the execution and delivery of this Agreement, the Related Agreements to which it is a party and the Articles of Merger, the performance by the Company of its obligations hereunder or thereunder or the consummation of the transactions contemplated hereby and thereby, except for (a) any necessary approval, or the termination or expiration of any waiting period, under the HSR Act and (b) the filing of the Articles of Merger with the Florida Department of State.

     2.7 Company Financial Statements . Section 2.7 of the Disclosure Schedule sets forth the (i) audited balance sheets of the Company as of January 31, 2009, as of January 30, 2010 and as of January 29, 2011, and the audited statements of income, cash flow and stockholders’ equity for the fifty-two week periods ended January 31, 2009, January 30, 2010 and January 29, 2011, respectively (the “ Year-End Financials ”), and (ii) an unaudited balance sheet of the Company as of July 30, 2011 (the “ Balance Sheet Date ”), and the related unaudited consolidated statement of income, cash flow and stockholders’ equity for the six month period then ended (the “ Interim Financials ”). The Year-End Financials and the Interim Financials (collectively referred to as the “ Financials ”) have been prepared from the books and records of the Company and in accordance with GAAP applied on a consistent basis throughout the periods indicated and consistent with each other (except that the Interim Financials do not contain footnotes and other presentation items that may be required by GAAP). The Financials fairly present in all material respects the financial condition of the Company and the results of operations and cash flows as of the dates and for the periods indicated therein, subject in the case of the Interim Financials to normal year-end adjustments, which are not material in amount or significance in any individual case or in the aggregate. The unaudited consolidated balance sheet

of the Company as of the Balance Sheet Date is referred to hereinafter as the “ Current Balance Sheet .”

     2.8 No Undisclosed Liabilities . Except as set forth in Section 2.8 of the Disclosure Schedule , the Company has no Liabilities required by GAAP to be reflected in the Financials other than (a) liabilities that are accrued and reflected on, or otherwise disclosed in, the Financial Statements, (b) liabilities that have arisen in the ordinary course of business since the Balance Sheet Date which are not materially adverse to the Company, including liabilities for payroll, lease payments and payments to suppliers, or (c) obligations to perform after the date hereof any Contracts which have been disclosed on Sections 2.11(a), 2.14, 2.20(a)(i), and 2.20(a)(iii) of the Disclosure Schedule , or which are not required to be disclosed on such sections of the Disclosure Schedule, because such Contracts do not meet the applicable disclosure thresholds.

     2.9 Absence of Changes . Except as provided in Section 2.9 of the Disclosure Schedule , since January 29, 2011 through the date of this Agreement, (a) the Company has conducted its business only in the ordinary course of business consistent with past practice, and (b) there has not occurred a Company Material Adverse Effect.

     2.10 Tax Matters . Except as set forth in Section 2.10 of the Disclosure Schedule , (a) the Company has timely filed all material Tax Returns required to have been filed by it, (b) all such Tax Returns are true and correct, accurate and complete in all material respects, (c) the Company has paid or specifically accrued for all Taxes owed by it which were due and payable (whether or not shown on any Tax Return), (d) the Company is not currently the beneficiary of any extension of time within which to file any Tax Return, (e) there have been no claims against, or inquiries of, the Company in writing by a Governmental Authority, including in a jurisdiction where the Company does not file Tax Returns, that the Company is or may be subject to taxation by that jurisdiction, (f) there are no Liens on any of the Company’s assets that arose in connection with any failure (or alleged failure) to pay any Tax, (g) no unpaid Tax deficiency has been asserted in writing against or with respect to the Company by any Governmental Entity which Tax remains unpaid, (h) the Company has collected or withheld all Taxes currently required to be collected or withheld by it, and all such Taxes have been paid to the appropriate Governmental Entities or, if not yet due and payable, set aside in appropriate accounts for future payment when due, (i) the Company has not granted and is not subject to, any waiver of the period of limitations for the assessment of Tax for any currently open taxable period, (j) the Company is not required to include in income any amount for (A) an adjustment pursuant to Section 481 of the Code or the regulations thereunder, (B) a closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax law) or (C) a prepaid amount received on or prior to the Closing Date, (k) the Company is not a party to any Tax allocation or sharing agreement excluding, however, any agreement or arrangement entered into in the ordinary course the primary purpose of which is not the allocation or payment of Tax liability and in which such provisions regarding Taxes are typical of such agreements or arrangements, (l) the Company neither (i) has been a member of an affiliated group of corporations (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income Tax Return nor (ii) has any liability for the Taxes of any Person, under Regulations Section 1.1502-6 or any similar provision of state, local or foreign Law, as a transferee or successor, by contract or otherwise, (m) there are no audits, actions, suits, proceedings, investigations, claims or administrative proceedings relating to Taxes or any Tax

Returns of the Company currently pending, and, to the Company’s Knowledge, no such audits are threatened, proposed or contemplated; (n) the Company is not and has not been a real property holding corporation within the meaning Section 897(c)(2) of the Code during the applicable periods specified in such Section; (o) the Company has not engaged in any “reportable transaction” or “listed transaction” identified pursuant to Treasury Regulation Section 1.6011-4 or any similar provision of state, local, or foreign law; (p) since January 31, 2008, the Company has not distributed stock of another corporation, or has had its stock distributed by another corporation, in a transaction that was governed, or purported or intended to be governed, in whole or in part, by Section 355 of the Code.

     2.11 Title to Properties; Absence of Liens and Encumbrances .

          (a) The Company does not currently own any real property. Section 2.11(a) of the Disclosure Schedule sets forth a list of all real property currently leased, subleased or licensed by or from the Company or otherwise used or occupied by the Company for the operation of its business (the “ Leased Real Property ”) and each lease, sublease, license or other occupancy agreement relating to the Leased Real Property to which the Company is a party or by which it is bound, the name of the lessor, licensor, sublessor, master lessor, lessee or other party using or occupying the same, the date and term of the lease, license, sublease or other occupancy right and each amendment thereto (the “ Lease Agreements ”). The Company has made available to Parent a true, correct and complete copy of each Lease Agreement and all amendments or modifications thereto. All Lease Agreements are valid and effective and enforceable in accordance with their respective terms except as such enforceability may be subject to the Laws of general application relating to bankruptcy, insolvency, reorganization and the relief of debtors and rules of Law governing specific performance, injunctive relief, or other equitable remedies. The Company has performed in all material respects, and to the Company’s Knowledge each other party to any Lease Agreement has performed in all material respects, all of its obligations under each Lease Agreement. With respect to each Lease Agreement, there is not any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default) by the Company or, to the Company’s Knowledge, any other party to any Lease Agreement, and no rentals are past due. The Company has not sent or received any written notice of a default, alleged failure to perform, or any offset or counterclaim with respect to any Lease Agreement, which has not been fully remedied and withdrawn.

          (b) The Leased Real Property is in good operating condition and repair (subject to normal wear and tear), and to the Company’s Knowledge, free from material structural, physical and mechanical defects and is structurally sufficient and otherwise suitable for the conduct of the business as presently conducted. Except as set forth in Section 2.11(b) of the Disclosure Schedule , neither the operation of the Company on the Leased Real Property nor, to the Company’s Knowledge, such Leased Real Property, including the improvements thereon, violate in any material respect any applicable building code, zoning requirement or statute relating to such property or operations thereon, and to the Knowledge of the Company, any such non-violation is not dependent on so-called non-conforming use exceptions. The Company does not owe any brokerage commissions or finders fees with respect to any Leased Real Property and would not owe any such fees if any existing Lease Agreement were renewed pursuant to any renewal options contained in such Lease Agreements.

          (c) The Company has, and immediately after giving effect to the transactions contemplated by this Agreement will have, good, marketable and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of its tangible properties, rights, interests and assets, real, personal and mixed, used in, necessary for the conduct of or held for use in its business, including all such properties or assets owned by the Company reflected in the Company’s audited balance sheet for the fiscal year ended January 29, 2011 (except inventory and other assets disposed of in the ordinary course of business since January 29, 2011, and accounts or notes receivable paid since January 29, 2011 or as otherwise contemplated by this Agreement), free and clear of any Liens, except (i) Liens in favor of carriers, warehousemen, mechanics, materialmen and landlords granted in the ordinary course of business for amounts not overdue and for which adequate reserves have been established in accordance with GAAP, (ii) Liens for Taxes not yet due and payable, and (iii) common law or statutory Liens which do not materially detract from the value or interfere with the present use of the property subject thereto or affected thereby (collectively, “ Permitted Liens ”) and except as set forth in Section 2.11(c) of the Disclosure Schedule .

          (d) All equipment owned or leased by the Company currently in use and necessary for the conduct of its business as presently conducted is in good operating condition, regularly and properly maintained, subject to normal wear and tear.

     2.12 Intellectual Property .

          (a)  Section 2.12(a) of the Disclosure Schedule lists all Registered Intellectual Property Rights and material unregistered Trademarks and Copyrights owned by, or filed in the name of, the Company (the “ Company Registered Intellectual Property Rights ”), including where applicable the jurisdiction in which each of the items of such Company Registered Intellectual Property Rights has been applied for, filed, issued or registered (as well as the applicable application and registration numbers, and whether owned by or licensed to the Company), and any proceedings or actions (other than any nonmaterial ordinary course office actions by the PTO) before any court, tribunal (including the PTO or equivalent authority anywhere in the world) or arbitrator related to any of the Company Registered Intellectual Property Rights. Section 2.12(a) of the Disclosure Schedule also lists all Intellectual Property Rights exclusively licensed to the Company.

          (b) Except as set forth in Section 2.12(b) of the Disclosure Schedule , the Company is the sole owner of the Company Registered Intellectual Property Rights, free and clear of any Liens (other than Permitted Liens, non-exclusive licenses granted by the Company in the ordinary course of business to third party contractors solely for purposes of providing services to the Company, and those Liens set forth in Section 2.12(b) of the Disclosure Schedule ). In all material respects, (i) all registrations included in the Company Registered Intellectual Property Rights are in force, and all applications for registration included in the Company Registered Intellectual Property Rights are pending and have not been challenged, abandoned, cancelled or otherwise allowed to lapse, and (ii) the Company has complied with all applicable Law, including the duty of candor and payment when due of all fee and filing requirements, in connection with the prosecution and maintenance of all Company Registered Intellectual Property Rights. Subject to the qualifier set forth in first sentence of Section 2.12(c), and except as set forth in Section 2.12(b) of the Disclosure Schedule , the Company has (A) valid and

enforceable, and exclusive (for the avoidance of doubt, exclusive within the scope of rights legally recognized for each item of Intellectual Property—e.g., the Company does not assert trademark ownership rights for the use of “BOSTON PROPER” for uses outside the scope of activities it undertakes in its business), ownership rights in, and has the right to use, sell, license, transfer or assign, the Company Intellectual Property owned by the Company, and the Company has not agreed to or created any restrictions on its ownership rights in or its right to use, sell, license transfer or assign Company Intellectual Property owned by the Company, and (B) subject to the qualifier set forth in first sentence of Section 2.12(c), has valid and enforceable rights in all other material Intellectual Property Rights used in its business, subject to the terms and conditions of the IP Licenses with respect to third party Intellectual Property Rights. All material Company Intellectual Property is, to the Knowledge of the Company, valid and enforceable in all material respects.

          (c) Since three (3) years prior to the date hereof and except as set forth in Section 2.12(c) of the Disclosure Schedule , the operation of the business of the Company, the Company Products and the Company’s use of the Company Intellectual Property and Technology owned or used by the Company have not infringed, misappropriated or otherwise violated in any material respect (i) to the Knowledge of the Company, any issued Patents or (ii) with respect to Intellectual Property Rights licensed to the Company by each third party, to the Knowledge of the Company, the Intellectual Property Rights of any other third party; however, the Company is in compliance in all material respects with such licenses, or (iii) any other Intellectual Property Rights, rights of publicity, privacy or other similar rights, of any other Person. Since three (3) years prior to the date hereof and except as set forth in Section 2.12(c) of the Disclosure Schedule , (A) to the Knowledge of the Company there has been no claim or other assertion, and (B) the Company has not received written notice or threat, in each case (A) and (B) from any Person claiming that such operation or any Company Product, Company Intellectual Property, Technology owned or used by the Company in its business infringes, misappropriates or otherwise violates any Intellectual Property Rights, rights of publicity, privacy or other similar rights of any Person or otherwise challenging the ownership, registrability (excluding office actions made by the applicable government agency), right to use, sell, distribute, license or sublicense, validity or enforceability of any Company Intellectual Property, Company Products or Technology owned or used by the Company in its business.

          (d) To the Knowledge of the Company, no Person has infringed or misappropriated or otherwise violated, or is infringing, misappropriating or otherwise violating, any material Company Intellectual Property, and since three (3) years prior to the date hereof, there has been no Intellectual Property Rights claim or other assertion made by the Company, and the Company has not sent written notice or threat, to any Person claiming that the operation of such Person’s business or any Intellectual Property Rights, product or Technology infringes, misappropriates or otherwise violates any Intellectual Property Rights, rights of publicity, privacy or other similar rights owned or controlled by the Company or otherwise challenging the ownership, right to use, sell, distribute, license or sublicense, validity or enforceability of any Intellectual Property Rights, products or Technology.

          (e) Neither the Company, any Company Products nor any Intellectual Property Rights owned by the Company, is subject to any outstanding judgments, governmental orders, consents, indemnifications, forbearances to sue, settlement agreements or other

arrangements in connection with the resolution of any claims, disputes or other assertions in all cases that restrict the Company with respect to any material Intellectual Property Rights.

          (f) Except as set forth in Section 2.12(f) of the Disclosure Schedule , each current or former employee, officer, consultant or independent contractor of the Company that, in connection with their respective relationships with the Company, has developed, contributed to or modified or improved any Company Products, Intellectual Property Rights or Technology that is material, individually or in the aggregate, to the business of the Company as currently conducted has assigned all of his, her or its right, title and interest in and to such developments, contributions, modifications or improvements to Company Products, Intellectual Property Rights and Technology to the Company and has agreed to keep confidential any confidential information of the Company.

          (g) None of the Securityholders or their Affiliates (other than the Company) (i) owns, has an interest in, or grants any rights to the Company with respect to any Company Products, Intellectual Property Rights or Technology used or held for use by the Company other than the assignment of rights to the Company made by any Securityholders who are employees; (ii) has possession of or any license or other right, title or interest in or to any Company Products, Intellectual Property Rights or Technology owned by the Company (other than the possession of and right to use and modify such in connection with their duties to the Company); or (iii) has any license or other right, title or interest in or to any third party Intellectual Property Rights or Technology from the Company (other than the right to possess and use third party Intellectual Property Rights and Technology in connection with their duties to the Company).

     2.13 Information Technology Systems, Customer Information .

          (a) Except as set forth in Section 2.13(a) of the Disclosure Schedule , no third party has any license, escrow right, option or other right, title or interest in or to (including any right to receive any royalty, honorarium or other payment) any, and has not had access to any material Intellectual Property Rights or Technology the Intellectual Property Rights of which are owned by the Company or any Customer Information (other than employees, third party contractors whose rights therein and access and use thereof was limited to use in connection with providing services to the Company, and who remain under confidentiality obligations, and the authorized access and use provided to the Company’s Technology and information to the public via the Company’s website). Except as set forth in Section 2.13(a) of the Disclosure Schedule , the Company possesses all source code, compilers and other Intellectual Property Rights, Technology and documentation necessary to compile and otherwise create fully operable executable versions of material software currently used in its business in which the Intellectual Property Rights are owned by the Company. Except as set forth in Section 2.13(a) of the Disclosure Schedule , no Intellectual Property Rights owned by the Company or any of Company Subsidiaries and, to the Knowledge of the Company, no Technology owned by the Company is subject to, any “open source,” “free” or similar licensing or distribution terms and conditions.