AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER

AMONG

SYMBOL ACQUISITION, L.L.C.

SYMBOL MERGER SUB, INC.

AND

SYMBION, INC.

Dated as of April 24, 2007

TABLE OF CONTENTS

AGREEMENT AND PLAN OF MERGER

     THIS AGREEMENT AND PLAN OF MERGER, dated as of April 24, 2007 (this “ Agreement ”), is made and entered into by and among Symbol Acquisition, L.L.C., a Delaware limited liability company (“ Parent ”), Symbol Merger Sub, Inc., a Delaware corporation (“ Acquisition ”), and Symbion, Inc., a Delaware corporation (the “ Company ”).

RECITALS

     WHEREAS, the Board of Directors of each of Parent, Acquisition and the Company (in the case of the Company acting on the approval and the recommendation of a special committee (the “ Special Committee ”) formed for the purpose of representing the Company in connection with the possible transactions contemplated hereby) has deemed it advisable and in the best interests of their respective stockholders for Acquisition to merge with and into the Company (the “ Merger ”) pursuant to Section 251 of the Delaware General Corporation Law (the “ DGCL ”) upon the terms and subject to the conditions set forth herein;

     WHEREAS, the Board of Directors of each of Parent, Acquisition and the Company has each adopted resolutions approving and declaring advisable this Agreement, the Merger and the transactions contemplated by this Agreement;

     WHEREAS, concurrently with the execution of this Agreement, and as a condition to the willingness of the Company to enter into this Agreement, Crestview Capital Partners, L.P. (“ Guarantor ”) has provided the Company with an executed copy of its limited guarantee (the “ Guarantee ”); and

     WHEREAS, Parent, Acquisition and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

AGREEMENT

     NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE I

THE MERGER

     1.1. The Merger . Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, Acquisition shall be merged with and into the Company at the Effective Time. At the Effective Time, the separate corporate existence of Acquisition shall cease and the Company shall continue as the surviving corporation under the name “Symbion, Inc.” (the “ Surviving Corporation ”) and shall succeed to and assume all of the rights and obligations of the Company and Acquisition in accordance with the DGCL.

     1.2. Closing . Unless this Agreement shall have been terminated and the Merger shall have been abandoned pursuant to Section 7.1, the consummation of the Merger (the “ Closing ”) shall take place as promptly as practical following the satisfaction or waiver of all of the conditions (other than those conditions which by their nature are to be satisfied at Closing) set forth in Article VI (and, in any event, not more than two business days following the satisfaction or waiver of all such conditions, subject to the last paragraph of Section 6.1), at the offices of Akin Gump Strauss Hauer & Feld LLP, 590 Madison Avenue, New York, New York 10022, unless another date, time or place is agreed to in writing by the parties hereto. The date on which the Closing actually occurs is hereinafter referred to as the “ Closing Date ”.

     1.3. Effective Time of the Merger . At Closing, the parties hereto shall cause the Merger to be consummated by filing a certificate of merger (the “ Certificate of Merger ”) with the Secretary of State of the State of Delaware as provided in the DGCL. The Merger shall become effective upon such filing or at such time thereafter as Parent, Acquisition and the Company shall agree and specify in the Certificate of Merger (the “ Effective Time ”).

     1.4. Effects of the Merger .

     (a) The Merger shall have the effects set forth in this Agreement, the Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all property, rights, privileges, immunities, powers, franchises, licenses and authorities of the Company and Acquisition shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions and duties of each of the Company and Acquisition shall become the debts, liabilities, obligations, restrictions and duties of the Surviving Corporation.

     (b) The directors of Acquisition and the officers of the Company immediately prior to the Effective Time shall, from and after the Effective Time, be the initial directors and officers, respectively, of the Surviving Corporation until their successors have been duly elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the Surviving Corporation’s certificate of incorporation and bylaws.

     (c) At the Effective Time, (i) the Certificate of Incorporation of the Company shall be amended in its entirety to be the same as the Certificate of Incorporation of Acquisition as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be “Symbion, Inc.” and the provisions relating to the Company’s registered agent and indemnification and advancement of expenses and exculpation from liability in the Certificate of Incorporation of the Company shall be unchanged from that in effect as of the date hereof, and, as so amended, shall be the Certificate of Incorporation of the Surviving Corporation following the Effective Time until thereafter amended in accordance with its terms and the DGCL, and (ii) the Bylaws of the Surviving Corporation shall be amended so as to read in their entirety as the Bylaws of Acquisition as in effect immediately prior to the Effective Time, except that the references to Acquisition’s name shall be replaced by references to “Symbion, Inc.” and, as so amended, shall be the Bylaws of the Surviving Corporation following the Effective Time until thereafter amended in accordance with its terms, the Certificate of Incorporation of the Surviving Corporation and the DGCL.

ARTICLE II

EFFECT OF THE MERGER ON THE OUTSTANDING SECURITIES
OF THE COMPANY AND ACQUISITION; EXCHANGE PROCEDURES

     2.1. Effect on Capital Stock . As of the Effective Time, by virtue of the Merger and without any action on the part of the Company, Acquisition, the holder of any shares of common stock, par value $.01 per share, of the Company (the “ Company Common Stock ”), the holder of any limited liability company interests of Parent, or the holder of any shares of common stock, par value $.01 per share, of Acquisition (“ Acquisition Common Stock ”):

     (a) Common Stock of Acquisition . Each share of Acquisition Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $.01 per share, of the Surviving Corporation with the same rights, powers and privileges as the shares so converted.

     (b) Cancellation of Treasury Stock and Company Common Stock Owned by Parent or Acquisition . Each share of Company Common Stock that is owned by Parent or Acquisition or held in the treasury of the Company (collectively, the “ Excluded Shares ”), shall be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor.

     (c) Conversion of Company Common Stock . Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time, other than Excluded Shares and Dissenting Shares, shall be canceled and converted into the right to receive in cash an amount equal to $22.35 in cash (the “ Merger Consideration ”).

     (d) Dissenting Shares . Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by a holder who was entitled to and has validly demanded appraisal rights in accordance with Section 262 of the DGCL (“ Dissenting Shares ”) shall not be converted into the right to receive the Merger Consideration unless and until such holder shall have failed to perfect or shall have effectively withdrawn or lost such holder’s appraisal rights under the DGCL, but instead shall be converted into the right to receive payment from the Surviving Corporation with respect to such Dissenting Shares in accordance with the DGCL. If any such holder shall have failed to perfect or shall have effectively withdrawn or lost such appraisal right pursuant to the DGCL, each Dissenting Share of such holder shall be treated as a share of Company Common Stock that had been converted as of the Effective Time into the right to receive the Merger Consideration in accordance with Section 2.1(c). The Company shall give prompt notice to Parent of any demands, attempted withdrawals of such demands and any other instruments served pursuant to the DGCL received by the Company for appraisal of shares of Company Common Stock, and Parent shall have the right to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written

consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

     (e) Cancellation and Retirement of Company Common Stock . As of the Effective Time, all shares of Company Common Stock (other than Dissenting Shares) that are issued and outstanding immediately prior to the Effective Time shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any shares of Company Common Stock (a “ Certificate ”) being converted into the right to receive the Merger Consideration payable therefor pursuant to Section 2.1(c) shall cease to have any rights with respect to such shares of Company Common Stock, except the right to receive a cash amount equal to the Merger Consideration per share multiplied by the number of shares so represented, to be paid in consideration therefor in accordance with Section 2.2(b).

     (f) Certain Adjustments . In the event that after the date hereof and prior to the Effective Time, solely as a result of a reclassification, stock split (including a reverse stock split), combination or exchange of shares, stock dividend or stock distribution thereon with a record date during such period which in any such event is made on a pro rata basis to all holders of Company Common Stock, there is a change in the number of shares of Company Common Stock outstanding or issuable upon the conversion, exchange or exercise of securities or rights convertible or exchangeable or exercisable for shares of Company Common Stock, then the Merger Consideration shall be equitably adjusted to eliminate the effects of such event.

     2.2. Exchange of Certificates; Paying Agent

     (a) Paying Agent . Prior to the Effective Time, Parent shall (i) appoint a bank or trust company that is reasonably acceptable to the Company (the “ Paying Agent ”) and (ii) enter into a paying agent agreement, in form and substance reasonably satisfactory to the Company, with such Paying Agent to act as agent for the payment of the Merger Consideration in respect of Certificates upon surrender of such Certificates (or effective affidavits of loss in lieu thereof) in accordance with this Article II from time to time after the Effective Time. At the Effective Time, Parent shall deposit (or cause to be deposited) with the Paying Agent, for the benefit of the holders of such surrendered Certificates, for use in the payment of the Merger Consideration in accordance with this Article II, as needed, cash sufficient to make all payments pursuant to Section 2.1(c) (such cash consideration being hereinafter referred to as the “ Merger Fund ”). The Paying Agent shall, pursuant to irrevocable instructions of the Surviving Corporation given on the Closing Date, make payments of the Merger Consideration out of the Merger Fund. The Merger Fund shall not be used for any other purpose.

     (b) Exchange Procedures . Promptly after the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail or deliver to each Person who was, at the Effective Time, a holder of record of Company Common Stock and whose shares are being converted into the Merger Consideration pursuant to Section 2.1(c) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or effective

affidavits of loss in lieu thereof) to the Paying Agent, and shall otherwise be in a form and have such other provisions as the Surviving Corporation may reasonably specify) containing instructions for use by holders of Company Common Stock to effect the exchange of their shares of Company Common Stock for the Merger Consideration as provided herein. Upon surrender to the Paying Agent of such Certificate or Certificates (or effective affidavits of loss in lieu thereof) and such letter of transmittal duly executed and completed in accordance with the instructions thereto (together with such other documents as the Paying Agent may reasonably request) (or, if such shares are held in book-entry or other uncertificated form, upon the entry through a book-entry transfer agent of the surrender of such shares of Company Common Stock on a book-entry account statement (it being understood that any references herein to “ Certificates ” shall be deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock)), be entitled to payment of an amount of cash (payable by check or wire transfer, at the election of the Surviving Corporation) equal to the Merger Consideration multiplied by the number of shares of Company Common Stock represented by such Certificate or Certificates. The Paying Agent shall accept such Certificates upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. If payment is to be remitted to a Person other than the Person in whose name the Certificate surrendered for payment is registered, it shall be a condition of such payment that the Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer and that the Person requesting such payment shall pay to the Paying Agent any transfer or other taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate so surrendered, or shall establish to the satisfaction of the Paying Agent that such tax either has been paid or is not applicable. Until surrendered as contemplated by this Section 2.2(b), at any time after the Effective Time, each Certificate shall be deemed to represent only the right to receive the Merger Consideration payable for the shares represented thereby upon such surrender as contemplated by Section 2.1. No interest will be paid or will accrue on any cash payable as Merger Consideration.

     (c) No Further Ownership Rights in Company Common Stock Exchanged for Cash . All cash paid upon the surrender for exchange of Certificates representing shares of Company Common Stock in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such Certificates, and after the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock which were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for transfer, they shall be canceled and exchanged as provided in this Article II.

     (d) Termination of Merger Fund . Any portion of the Merger Fund which remains undistributed to the holders of Certificates for twelve months after the Effective Time shall be delivered to the Surviving Corporation upon demand, and any holders of Certificates who have not theretofore complied with this Article II shall thereafter look

only to the Surviving Corporation and only as general creditors thereof for payment of the Merger Consideration, subject to escheat and abandoned property and similar Laws.

     (e) No Liability . None of Parent, Acquisition, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the Merger Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to the time when the amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.

     (f) Investment of Merger Fund . The Paying Agent shall invest any cash in the Merger Fund, as directed by the Surviving Corporation; provided , however , that (i) no such investment or losses thereon shall affect the Merger Consideration payable to the holders of Company Common Stock and following any losses Parent shall promptly provide (or cause to be provided) additional funds to the Paying Agent for the benefit of the stockholders of the Company in the amount of any such losses and (ii) such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Any interest and other income resulting from such investments shall be paid to the Surviving Corporation.

     (g) Withholding Rights . The Surviving Corporation or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock or Restricted Shares such amounts as the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “ Code ”), or any provision of state, local or foreign tax Law. To the extent that amounts are so deducted and withheld by the Surviving Corporation or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by the Surviving Corporation or the Paying Agent.

     (h) Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond in customary amount as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable pursuant to this Agreement.

     2.3. Effect of the Merger on Company Stock Options and Restricted Shares .

     (a) At, or immediately prior to, the Effective Time the Board of Directors of the Company or any committee administering each of the Company’s equity-based compensation or stock option plans (collectively, the “ Stock Plans ”) shall use its reasonable best efforts to obtain any consents necessary so that all outstanding options (whether or not then vested) to acquire shares of Company Common Stock under the Stock Plans (the “ Company Stock Options ”) heretofore granted under any Stock Plan shall become fully vested and exercisable at the Effective Time and any Company Stock Options which have not been exercised immediately, prior to the Effective Time shall be canceled in exchange for the right to receive a cash payment by the Surviving Corporation of an amount equal to (i) the excess, if any, of (x) the Merger Consideration over (y) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Company Stock Option. Payment of the amount contemplated hereunder shall be made at the Effective Time.

     (b) At, or immediately prior to, the Effective Time the Board of Directors of the Company or any committee administering each of the Stock Plans shall use its reasonable best efforts to obtain any consents necessary so that each share of Company Common Stock granted subject to vesting or other lapse restrictions pursuant to any Stock Plan (collectively, “ Restricted Shares ”) which is outstanding immediately prior to the Effective Time (except with respect to Restricted Shares that the holders thereof and Parent shall have otherwise agreed) shall vest and become free of such restrictions as of the Effective Time to the extent provided by the terms thereof (as such plans may be amended prior to the Effective Time in accordance with the terms hereof) and, at the Effective Time, the holder thereof shall, subject to this Article II, be entitled to receive the Merger Consideration with respect to each such Restricted Share in accordance with Section 2.1(b).

     (c) The Surviving Corporation shall be entitled to deduct and withhold from the amounts otherwise payable pursuant to this Section 2.3 to any holder of Company Stock Options such amounts as the Surviving Corporation is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign tax Law. To the extent that amounts are so deducted and withheld by the Surviving Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Stock Options in respect of which such deduction and withholding was made by the Surviving Corporation.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

     3.1. Representations and Warranties of the Company . The Company hereby represents and warrants to Parent and Acquisition that, except as set forth in the Company Disclosure Schedule delivered by the Company to Parent and Acquisition concurrently with

entering into this Agreement (it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Schedule shall be deemed to be disclosed with respect to any other section or subsection to which the relevance of such disclosure is reasonably apparent) (the “ Company Disclosure Schedule ”) or, subject to Section 9.15, as disclosed in the Company SEC Documents filed prior to the date of this Agreement:

     (a) Organization, Standing and Power . Each of the Company, its Subsidiaries and, to the Company’s knowledge, its Joint Ventures is a corporation, partnership or a limited liability company duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization (with respect to jurisdictions that recognize the concept of good standing) and has all requisite corporate, partnership or limited liability company power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where any such failure to be so organized, existing and in good standing or to have such power or authority would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the Company, its Subsidiaries and, to the Company’s knowledge, its Joint Ventures is duly qualified or licensed to do business as a foreign corporation, partnership or limited liability company and in good standing to conduct business (with respect to jurisdictions that recognize the concept of good standing) in each jurisdiction in which the business it is conducting, or the operation, ownership or leasing of its properties, makes such qualification or licensing necessary, other than in such jurisdictions where the failure to so qualify or be licensed to do business as a foreign corporation, partnership or limited liability company or to be in good standing would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has heretofore made available to Parent and Acquisition (or Parent and Acquisition have otherwise had access to) and Acquisition complete and correct copies of the certificates of incorporation and bylaws (or other organizational documents, as applicable) of the Company and each of its Subsidiaries and, to the Company’s knowledge, Joint Ventures.

     (b) Capital Structure .

     (i) The Company . The authorized capital stock of the Company consists of (1) 225,000,000 shares of Common Stock, par value $.01 per share (the “ Company Common Stock ”), and (2) 10,000,000 shares of Preferred Stock, par value $.01 per share (the “ Preferred Stock ”), of which 500,000 shares are designated as Series A Junior Participating Preferred Stock (“ Series A Junior Preferred Stock ”). As of the close of business on April 20, 2007 (the “ Capitalization Date ”), 21,829,328 shares of Company Common Stock were issued and outstanding (including 146,439 Restricted Shares); 0 shares of Preferred Stock were issued and outstanding; 0 shares of Company Common Stock were held in the Company’s treasury; 2,194,722 shares of Company Common Stock were reserved for issuance pursuant to the outstanding Company Stock Options; 236,492 shares of Company Common Stock were reserved for future issuance under the Company ESPP; and there were outstanding rights (“ Rights ”) with respect to one one-thousandths of a share of Series A Junior Preferred Stock of the Company under the Rights Agreement dated as of February

6, 2004 between the Company and Computershare Trust Company, N.A., as successor to SunTrust Bank, as rights agent (the “ Rights Agreement ”); and 57,300 warrants were outstanding to acquire shares of Common Stock. Since the Capitalization Date, no shares of capital stock of the Company and no other securities directly or indirectly convertible into, or exchangeable or exercisable for, capital stock of the Company have been issued, other than shares of Company Common Stock issued upon the exercise of Company Stock Options outstanding on the Capitalization Date. Except as set forth above or with respect to the Rights, the Company ESPP or Stock Plans, there are no outstanding shares of capital stock of the Company or securities, directly or indirectly, convertible into, or exchangeable or exercisable for, shares of capital stock of the Company or any outstanding “phantom” stock, “phantom” stock rights, stock appreciation rights, restricted stock awards, dividend equivalent awards, or other stock-based awards. Except as set forth above or with respect to the Rights, the Company ESPP or Stock Plans, there are no puts, calls, rights (including preemptive rights), commitments or agreements (including employment, termination and similar agreements) to which the Company is a party or by which it is bound, the Company to issue, deliver, sell, purchase, redeem or acquire, any equity securities of the Company or securities convertible into, or exercisable or exchangeable for equity securities of the Company. All outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable and are not subject to preemptive rights. Section 3.1(b)(i) of the Company Disclosure Schedule sets forth a complete and correct list of each outstanding Company Stock Option and rights under the Company ESPP (but not including stock purchased through the Company ESPP by payroll deductions) to purchase shares of Company Common Stock, including the holder, date of grant, exercise price, vesting schedule for options granted prior to January 1, 2007, and number of shares of Company Common Stock subject thereto.

     (ii) Agreements Relating to Capital Stock . Except as set forth in this Agreement, there are not as of the date hereof any stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting of any shares of the capital stock of the Company. The Company is not a party to any registration rights agreements, stockholders’ agreements or voting agreements.

     (iii) Subsidiaries and Joint Ventures . Section 3.1(b)(iii) of the Company Disclosure Schedule sets forth, as of the date hereof, the name of each Subsidiary of the Company, and, with respect to each, the jurisdiction in which it is incorporated or organized, the jurisdictions, if any, in which it is qualified to do business, the number of its authorized equity interests, the number and class of equity interests thereof duly issued and outstanding, the number of equity interests owned by the Company and the Company’s percentage interest therein. Section 3.1(b)(iii) of the Company Disclosure Schedule sets forth, as of the date hereof, the name of each Joint Venture of the Company, and, with respect to each, the jurisdiction in which it is incorporated or organized and the number of equity interests owned by the Company. All outstanding shares of capital stock of, or

other ownership interests in, the Subsidiaries and the Joint Ventures of the Company that are owned, directly or indirectly, by the Company are free and clear of all pledges, liens, hypothecations, claims, charges, security interests or other encumbrances of any kind (collectively, “ Liens ”) other than Permitted Liens. All such issued and outstanding shares of capital stock or other ownership interests are validly issued, fully paid and nonassessable There are no outstanding securities directly or indirectly convertible into, or exchangeable or exercisable for, shares of capital stock of or equity interests in any Subsidiary or, to the Company’s knowledge, Joint Venture of the Company or any outstanding “phantom” stock, “phantom” stock rights, stock appreciation rights, restricted stock awards, dividend equivalent awards, or other stock-based awards. There are no puts, calls, preemptive rights, commitments or agreements to which the Company or any of its Subsidiaries or Joint Ventures is a party or by which it is bound, in any case obligating the Company or any of its Subsidiaries or, to the Company’s knowledge, Joint Ventures to issue, deliver, sell, purchase, redeem or acquire, any equity securities of any Subsidiary or Joint Venture of the Company or securities convertible into, or exercisable or exchangeable for equity securities of any Subsidiary or Joint Venture of the Company.

     (c) Authority; No Violations; Consents and Approvals .

     (i) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to the adoption of this Agreement by the holders of a majority of the shares of Company Common Stock outstanding and entitled to vote thereon (such vote being hereinafter referred to as the “ Required Vote ”) (the “ Company Stockholder Approval ”), to perform its obligations under this Agreement. The Company’s execution and delivery of this Agreement and, subject to the Company Stockholder Approval, the consummation of the transactions contemplated hereby by the Company have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due execution and delivery of this Agreement by Parent and Acquisition, constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as the enforcement hereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). At a meeting duly called and held, the Company’s Board of Directors, upon the unanimous approval and recommendation of the Special Committee to this same effect, has (i) unanimously determined that this Agreement and the transactions contemplated hereby are fair to and in the best interests of the Company’s stockholders, (ii) unanimously approved and adopted this Agreement and the transactions contemplated hereby and (iii) unanimously resolved (subject to Section 5.2) to recommend approval and adoption of this Agreement by its stockholders.

     (ii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by the Company will not (A) conflict with or violate any provision of the certificate or articles of incorporation or bylaws (or other organizational documents) of (x) the Company or (y) any of its Subsidiaries or, to the Company’s knowledge, Joint Ventures, (B) conflict with, or result in any breach or violation of, or default under, or the loss of any benefit under, or give rise to a right of termination, cancellation, modification or acceleration of any obligation under, or the creation of any Lien under (any of the foregoing, a “ Violation ”), any loan or credit agreement, note, bond, mortgage, deed of trust, indenture, lease, Company Plan, Company Permit or other agreement, obligation, instrument, concession, franchise or license to which the Company or any Subsidiary or, to the Company’s knowledge, Joint Venture (to the extent that the lender thereunder is not the Company or any of its Subsidiaries) of the Company is a party or by which any of their respective properties or assets are bound, (C) assuming that all consents, approvals, authorizations and other actions described in Section 3.1(c)(iii) have been obtained and all filings and other obligations described in Section 3.1(c)(iii) have been made or fulfilled, conflict with or violate any Laws or Orders applicable to the Company or any of its Subsidiaries or, to the Company’s knowledge, Joint Ventures, or their respective properties or assets, except, in the case of clauses (B) and (C) only, for any Violations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect (which definition shall be read without clause (3) thereof for purposes of this Section 3.1(c)(ii)).

     (iii) No consent, approval, franchise, license, certificate of need, order or authorization of, or registration, declaration or filing with, notice, application or certification to, or permit, inspection, waiver or exemption from any Governmental Entity, is required by or with respect to the Company in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby, except for (A) compliance with the applicable requirements of the HSR Act, (B) the applicable requirements of the Exchange Act, including the filing of a proxy statement in preliminary form and in definitive form for distribution to the stockholders of the Company in advance of the Special Meeting in accordance with Regulation 14A under the Exchange Act (such proxy statement as amended or supplemented from time to time being hereinafter referred to as the “ Proxy Statement ”) and a Rule 13e-3 Transaction Statement on Schedule 13E-3 (the “ Schedule 13E-3 ”) relating to the Merger and the transactions contemplated hereby, (C) the filing of the Certificate of Merger and any related documents with the Secretary of State of the State of Delaware and appropriate documents, if any, with the relevant authorities of other states in which the Company does business, (D) compliance with any applicable requirements of state blue sky, securities or takeover Laws or Nasdaq Global Select Market listing requirements, (E) state or local consents, notices and approvals required under applicable Law relating to licenses held in connection with the direct or indirect operation of the Company’s and its Subsidiaries’ businesses, and (F) such other consents, approvals,

franchises, licenses, certificates of need, orders, authorizations, registrations, declarations, filings, notices, applications, certifications, permits, waivers and exemptions the failure of which to be obtained or made would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (which definition shall be read without clause (3) thereof for purposes of this Section 3.1(c)(iii)).

     (d) Company SEC Documents .

     (i) The Company has filed all reports, forms, statements, certifications and other documents (including all exhibits, amendments and supplements thereto) required to be filed by it with the SEC since December 31, 2004 (all such forms, reports, statements, certificates and other documents filed since December 31, 2004, with any amendments or supplements thereto, collectively, the “ Company SEC Documents ”), each of which as finally amended prior to the date of this Agreement, complied, and each Company SEC Document filed subsequent to the date hereof will comply, as to form in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, as of the date filed with the SEC. As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each Company SEC Document filed with the SEC did not, and each such Company SEC Document filed subsequent to the date hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

     (ii) The financial statements of the Company included in the Company SEC Documents comply as to form in all material respects with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q or Regulation S-X of the SEC) and present fairly in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of their respective dates and the consolidated results of operations and the consolidated cash flows of the Company and its consolidated Subsidiaries for the periods presented therein (subject, in the case of the unaudited statements, to the absence of notes and to normal year-end audit adjustments and any other adjustments described therein).

     (iii) Except where the failure to do so would not result in a Company Material Adverse Effect, the management of the Company has (A) established and maintains “disclosure controls and procedures” (as defined in Rule 13a-15(e) promulgated under the Exchange Act) that are designed to ensure that material information relating to the Company, including its consolidated Subsidiaries, is made known to the chief executive officer and chief financial officer of the Company by others within those entities, which disclosure controls and procedures are reasonably effective in timely alerting the chief executive officer

and chief financial officer of the Company to material information required to be included in the Company’s periodic reports required under the Exchange Act, and (B) has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the audit committee of the Company’s board of directors (x) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and (y) any fraud known to the Company, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company has made available to Parent (or Parent has otherwise had access to) a summary of any material disclosure described in the foregoing Section 3.1(d)(iii) made by the management to the Company’s outside auditors and audit committee since December 31, 2005.

     (iv) There are no outstanding loans or other extensions of credit made by the Company or any of its Subsidiaries to any executive officer (as defined in Rule 3B-7 under the Securities Act) or director of the Company. The Company has not, since the enactment of the Sarbanes-Oxley Act of 2002, taken any action prohibited by Section 402 of the Sarbanes-Oxley Act of 2002 which action would reasonably be expected to result in a Company Material Adverse Effect.

     (e) Information Supplied . The Proxy Statement and, to the extent required, the Schedule 13E-3 will not on the date the Proxy Statement is first mailed to the holders of the Company Common Stock or on the date (the “ Meeting Date ”) of the related Special Meeting (or at the time of any amendment or supplement thereof), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement and Schedule 13E-3 will comply as to form, in all material respects, with the applicable provisions of the Exchange Act. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to the information supplied or to be supplied by Parent or Acquisition (or their respective affiliates) for inclusion or incorporation by reference in the Proxy Statement.

     (f) Compliance . Each of the Company, its Subsidiaries and, to the Company’s knowledge, its Joint Ventures and their respective businesses has been since December 31, 2004 and is in compliance with all applicable Laws, with such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

     (g) Company Permits . The Company, its Subsidiaries and, to the Company’s knowledge, its Joint Ventures, hold all of the permits, licenses, variances, exemptions, orders, franchises, authorizations, rights, registrations, certifications, accreditations and approvals of Governmental Entities that are necessary for the lawful conduct of the businesses of the Company, its Subsidiaries (each a “ Company Permit ”) and its Joint

Ventures, and are in compliance (to the Company’s knowledge with respect to the Joint Ventures) with the terms thereof, except where the failure to hold such Company Permit or to be in compliance with the terms thereof would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

     (h) Litigation; Inspections and Investigations, etc . As of the date hereof, there is no claim, suit, action, arbitration, mediation, audit, investigation, review, inquiry or other proceeding of or before a Governmental Entity in any forum pending against the Company or any of its Subsidiaries or Joint Ventures or, to the Company’s knowledge, threatened, against the Company, any of its Subsidiaries or Joint Ventures, or, to the Company’s knowledge, any present or former officer, director or employee of the Company or any of its Subsidiaries or Joint Ventures for which the Company or its Subsidiaries are responsible for the damages therefor (“ Company Litigation ”), except for any Company Litigation the resolution of which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There is no Order outstanding against the Company or any of its Subsidiaries or Joint Ventures or affecting any of their properties, assets or business operations, in each case, the operation or effect of which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

     (i) Taxes . Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) the Company and each of its Subsidiaries (A) has filed with the appropriate taxing authority all Tax Returns required to be filed by it, or requests for extensions to file such Tax Returns have been timely filed and granted and have not expired, and such Tax Returns are true, correct and complete in all respects; (B) has paid in full (or the Company has paid on its behalf) or made adequate provision in accordance with GAAP in the Company’s accounting records for all Taxes for all past and current periods for which the Company or any of its Subsidiaries is liable; and (C) has complied with all applicable Laws relating to the payment and withholding of Taxes and has timely withheld from employee wages and paid over to the proper governmental entities all amounts required to be so withheld and paid over; (ii) the most recent financial statements contained in the Company SEC Documents filed prior to the date hereof reflect adequate reserves in accordance with GAAP for all Taxes payable by the Company and its Subsidiaries with respect to all taxable periods and portions thereof ended on or before the period covered by such financial statements; (iii) no United States federal, or state, local or foreign tax audits or other administrative proceedings or other court proceedings are currently pending with respect to the Company or any of its Subsidiaries; (iv) no deficiencies for any Taxes have been proposed, asserted or assessed in writing, or to the knowledge of any of the directors or officers (and employees responsible for Tax matters) of the Company or any of its Subsidiaries, threatened against the Company or any of its Subsidiaries (including, without limitation, any deficiency with respect to any jurisdiction in which the Company or any of its Subsidiaries does not currently file Tax Returns) pursuant to any such audit or proceeding involving the Company or any of its Subsidiaries; (v) to the Company’s knowledge, none of the Company or any of its Subsidiaries has any liability for the Taxes of any Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state or local law), as a transferee or successor, by contract or

otherwise; (vi) neither the Company nor any of its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries); (vii) none of the Company or, to the Company’s knowledge, any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any change in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481(c) of the Code (or any similar provision of state or local law) except to the extent required by the consummation of the transactions provided for in this Agreement; (viii) during the five-year period ending on the date hereof, neither the Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code; and (ix) to the Company’s knowledge, neither the Company nor any of its Subsidiaries has participated in a “reportable transaction” within the meaning of Treasury Regulation section 1.6011-4(b)(1). As used in this Agreement (i) the term “ Taxes ” means all United States federal, state or local or foreign income, franchise, property, sales, use, ad valorem, payroll, social security, unemployment, assets, value added, withholding, excise, severance, transfer, employment, alternative or add-on minimum and other taxes, charges, fees, levies, imposts, duties, license and governmental fees or other like assessments including obligations for withholding taxes from payments due or made to any other person, together with any interest, penalties, fines or additional amounts imposed by any taxing authority or additions to tax and (ii) the term “ Tax Returns ” means returns, reports, forms and other documentation (including any additional supporting material and any amendments or supplements) required to be filed with any governmental authority of the United States or any other relevant jurisdiction responsible for the imposition or collection of Taxes, including any information returns, claims for refunds, amended returns, or declarations of estimated Taxes.

     (j) Pension and Benefit Plans; ERISA .

     (i) Section 3.1(j)(i) of the Company Disclosure Schedule sets forth a correct and complete list of each material “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), and each other material employment, severance or similar contract, plan, arrangement or policy and each other material plan or arrangement providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements) health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or similar material plan or program administered, contributed to, sponsored or maintained by the Company or any of its Subsidiaries within the three year period ending on the date of this Agreement for the benefit of any current or former employee or director of the Company or any of its Subsidiaries (collectively, the “ Company Employees ”), or with respect to which the Company or, to the Company’s knowledge, any of its Subsidiaries

has any liability (such plans, programs, policies, agreements and arrangements, collectively, “ Company Plans ”). With respect to each Company Plan, the Company has made available to Parent or its employees, consultants, agents or advisors a copy thereof together with all amendments and, if applicable, related trust or funding agreements or insurance policies and the most recent annual report (Form 5500 including, if applicable, Schedule B thereto).

     (ii) Except as would not reasonably be expected to have individually or in the aggregate, a Company Material Adverse Effect, each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code, and other applicable laws, rules and regulations. Each Company Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified and has been so qualified during the period since its adoption, and, to the Company’s knowledge, no event has occurred since the date of such determination that would adversely affect such qualification. Each trust created under any such Plan is exempt from tax under Section 501(a) of the Code and has been so exempt since its creation. The Company has provided or made available to Parent the most recent determination letter of the Internal Revenue Service relating to each such Company Plan.

     (iii) No Company Plan is, and neither the Company nor any of its Subsidiaries or any other entity that would be considered as a single employer with the Company or any of its Subsidiaries under Section 4001(b)(1) of ERISA or Sections 414(b) or (c) of the Code (an “ ERISA Affiliate ”) has any liability with respect to, contributes to, is obligated to contribute to, or has at any time contributed to or been obligated to contribute to, any Company Plan that is, (A) a “multiemployer plan” (within the meaning of Section 3(37) of ERISA), or (B) any single employer plan or other pension plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code. To the Company’s knowledge, no event has occurred nor does any circumstance exist that has given or could give rise to a liability of the Company or any ERISA Affiliate under Title I or Title IV of ERISA or Chapter 43 of the Code that would be reasonably likely to result in a Company Material Adverse Effect.

     (iv) Section 3.1(j)(iv) of the Company Disclosure Schedule sets forth a correct and complete list of each Company Plan under which the execution, delivery of and performance by the Company of its obligations under the transactions contemplated by this Agreement (i) constitutes an event under any Company Plan or any trust or loan related to any of those plans or agreements that, either by itself or in connection with any other act or event related to the transactions contemplated hereunder, will result in any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee, or (ii) results in the triggering or imposition of (x) any restrictions or limitations on the right of the Company or any of its Subsidiaries to amend or terminate any Company Plan,

or (y) results in “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code.

     (v) No transaction prohibited by Section 406 of ERISA or Section 4975 of the Code has occurred with respect to any Company Plan which is covered by Title I of ERISA, which transaction has or will cause the Company or any of its Subsidiaries to incur any material liability under ERISA, the Code or otherwise, excluding transactions effected pursuant to and in compliance with a statutory or administrative exemption. The assets of the Company and all of its Subsidiaries are not now, nor will they after the passage of time be, subject to any Lien imposed under Code Section 412(n) by reason of any action, or failure to act, by the Company or any Subsidiary on or prior to the Effective Time.

     (vi) Neither the Company nor any Subsidiary has any current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for any Company Employee, except as required to avoid excise tax under Section 4980B of the Code or pursuant to any individual or group severance arrangement disclosed on Section 3.1(j)(vi) of the Company Disclosure Schedule.

     (k) Absence of Certain Changes or Events . Since December 31, 2006 to the date of this Agreement, (i) each of the Company and, to the Company’s knowledge, its Subsidiaries has conducted its business, in all material respects, only in the ordinary course of business consistent with past practice or as otherwise permitted pursuant to this Agreement, and (ii) there has not been any change, event, condition, circumstance or state of facts, individually or in the aggregate, that would reasonably be expected to have, a Company Material Adverse Effect.

     (l) No Undisclosed Material Liabilities . There are no liabilities or obligations of the Company or any of its Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, other than (i) liabilities reflected in or reserved against in the Company’s financial statements (together with the related notes thereto) filed with the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2006, (ii) liabilities incurred in connection with the transactions contemplated by this Agreement, (iii) liabilities that were incurred in the ordinary course of business since December 31, 2006, (iv) liabilities that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and (v) liabilities that have been discharged or paid in full prior to the date of this Agreement.

     (m) Opinion of Financial Advisor . The Board of Directors of the Company has received the written opinion of the Financial Advisor that, as of the date hereof, the Merger Consideration to be received by the holders of Company Common Stock in the Merger (other than Parent, Acquisition and their respective subsidiaries and affiliates) is fair from a financial point of view to such holders.

     (n) Vote Required . Assuming the accuracy of the representations set forth in Section 3.2(e), the Required Vote is the only vote of the holders of any class or series of the Company’s capital stock necessary (under applicable Law) to adopt this Agreement and to consummate the Merger and perform the other transactions contemplated hereby.

     (o) Board Recommendation . The Board of Directors of the Company, acting upon the recommendation of the Special Committee, at a duly held meeting has, by the vote of those directors present and not abstaining (i) determined that it is in the best interest of the Company and its stockholders (other than holders of shares of Company Common Stock that are affiliates of Parent), and declared it advisable, to enter into this Agreement, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and (iii) resolved to recommend that the stockholders of the Company approve the adoption of this Agreement and directed that such matter be submitted for consideration of the stockholders of the Company at the Special Meeting.

     (p) Contracts . The Company has made available to Parent (or Parent has otherwise had access to) correct and complete copies of each contract, agreement, commitment, lease, license, arrangement, instrument or obligation, whether written or oral (a “ Contract ”) to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets (excluding Joint Venture properties or assets) is bound, as of the date hereof, that:

     (i) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act or disclosed by the Company on a current report on Form 8-K that has not been filed or incorporated by reference in the Company SEC Documents;

     (ii) contain covenants that limit the freedom of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of the Surviving Corporation) to compete in any business or with any Person or in any area;

     (iii) relates to the formation, creation, management or control of any material partnership, limited liability company or other Joint Venture;

     (iv) relates to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000,000; and

     (v) relates to the acquisition or disposition, directly or indirectly (by merger or otherwise), of all or substantially all of the assets or capital stock or other equity interests of another Person for aggregate consideration under such contract in excess of $2,500,000.

Each contract of the type described in clauses (i) through (v) above is referred to herein as a “ Material Contract .”

Except for matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (A) none of the Company or, to the Company’s knowledge, any of its Subsidiaries is in breach or default under Material Contract, (B) to the Company’s knowledge, none of the other parties to any such Material Contract is in breach or default thereunder and (C) neither the Company nor, to the Company’s knowledge, any of its Subsidiaries has received any written notice of the intention of any party to terminate or cancel any such Material Contract.

     (q) Affiliate Contracts and Affiliated Transactions . Except for this Agreement and the Merger, there are no transactions, or series of related transactions, agreements, arrangements or understandings, nor are there any currently proposed transactions, or series of related transactions, between the Company or any of its Subsidiaries, on the one hand, and the Company’s affiliates, on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.

     (r) Rights Agreement Amendment . The Company has entered into an amendment to the Rights Agreement pursuant to which the Rights Agreement and the Rights will not be applicable to this Agreement, the Merger and the transactions contemplated hereby.

     (s) Antitakeover Statutes . Assuming the accuracy of the representations set forth in Section 3.2(e), no “fair price,” “moratorium,” “control share acquisition” or other similar antitakeover statute or regulation enacted under any U.S. state Law (with the exception of Section 203 of the DGCL) or federal Law applicable to the Company or its Subsidiaries is applicable to the Merger or the other transactions contemplated hereby, and the Board of Directors of the Company has taken all action necessary such that the restrictions on business combinations contained in Section 203 of the DGCL will not apply to the Merger and the other transactions contemplated by this Agreement.

     (t) Insurance . Section 3.1(t) of the Company Disclosure Schedule lists, as of the date hereof, the material insurance policies maintained by the Company and its Subsidiaries during the past 4 years. There is no material claim by the Company or its Subsidiaries pending under any of such policies or bonds as to which coverage has been denied or disputed by the underwriters of such policies or bonds.

     (u) Environmental Matters . Notwithstanding anything to the contrary in Sections 3.1(f), (g), or (h) of this Agreement, no representations and warranties are made with respect to Environmental Matters other than those set forth in this Section 3.1(u).

     (i) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (A) each of the Company, its Subsidiaries and, to the Company’s knowledge, its Joint Ventures is and has been (since the date of its acquisition by the Company, its Subsidiaries or its Joint Ventures) in compliance with all Environmental Laws and has, and is in compliance with, all Company Permits required by Environmental Laws; (B) to the Company’s knowledge, no notice, notification, demand, request for

information, citations, summons or order has been received by the Company, its Subsidiaries or its Joint Ventures, no complaint has been filed against the Company, its Subsidiaries or its Joint Ventures, and no penalty has been assessed against the Company, its Subsidiaries or its Joint Ventures, with respect to any matters relating to the Company, any Subsidiary or any Joint Venture and relating to or arising out of any Environmental Law; and (C) to the Company’s knowledge, no Hazardous Substance has been discharged, disposed of, dumped, injected, pumped, deposited, spilled, leaked, emitted or released at, to, on or from any facility or property now or previously owned, leased or operated by the Company, any Subsidiary or any Joint Venture or at, to, on or from any facility or property to which any waste generated by the Company, any Subsidiary or any Joint Venture has been sent.

     (ii) As of the date hereof, none of the Company, its Subsidiaries or its Joint Venture owns, leases or operates any properties or facilities in the States of New Jersey or Connecticut.

     (v) Labor Matters

     (i) The Company and its Subsidiaries are in compliance with all currently applicable Laws respecting employment and employment practices, terms and conditions of employment, employee classification and wages and hours, and are not engaged in any unfair labor practice, except for non-compliance with any of the above that either individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect.

     (ii) Neither the Company nor any of its Subsidiaries has been a party to any collective bargaining agreement or other labor agreement with any union or labor organization and, to the Company’s knowledge, there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. Furthermore: (A) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (B) there are no labor strikes, work slowdowns or work stoppages actually pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries; (C) there are no representation claims or petitions pending before the National Labor Relations Board; and (D) there are no material grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreement.

     (iii) Neither the Company nor any of its Subsidiaries has (A) effectuated a “plant closing” or a “mass layoff” each (as defined in the Worker Adjustment and Retraining Notification Act “ WARN ”) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries or (B) engaged in layoffs or employment terminations sufficient in number to trigger application of any state, local or foreign Law similar to WARN that either individually or in

the aggregate would not reasonably be expected to have a Company Material Adverse Effect.

     (w) Real Property

     (i) Section 3.1(w)(i) of the Company Disclosure Schedule sets forth a correct and complete list of all real property owned by the Company or its Subsidiaries as of the date hereof (the “ Owned Real Property ”). Copies of all deeds, existing title insurance policies and surveys pertaining to the Owned Real Property in the possession of or reasonably available to the Company have been made available by the Company to Parent.

     (ii) Section 3.1(w)(ii) of the Company Disclosure Schedule sets forth a correct and complete list of all leased real property held by the Company or its Subsidiaries under a lease, sublease or other use or occupancy arrangement (the “ Leased Real Property ”). Copies of all leases, subleases or other use or occupancy documents relating to the Leased Real Property (including all amendments and other modifications thereof) in the possession of or reasonably available to the Company have been made available by the Company to Parent (or Parent has had access to such documents).

     (iii) The Company, and its Subsidiaries have good, valid and marketable, title to all Owned Real Property, subject to Permitted Liens.

     (x) Intellectual Property

     (i) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or a Subsidiary of the Company holds all right, title and interest in and to all Company Owned Intellectual Property, free and clear of any Lien (other than Permitted Liens). The Company Owned Intellectual Property and the Licensed Intellectual Property together constitute all the Intellectual Property used or held for use in the conduct of the business of the Company and its Subsidiaries as currently conducted.

     (ii) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none of the Company or any of its Subsidiaries or, to the Company’s knowledge, Joint Ventures has infringed, misappropriated or otherwise violated any Intellectual Property of any third person. To the Company’s knowledge, no Person has infringed, misappropriated or otherwise violated any Company Owned Intellectual Property. The Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain the confidentiality of all confidential Company Owned Intellectual Property and to prevent unauthorized access to such confidential Company Owned Intellectual Property.

     (iii) Section 3.1(x) of the Company Disclosure Schedule contains a complete and accurate listing, as of the date hereof, of (A) all Company Owned

Intellectual Property that is registered (and all applications for registration) and all other Company Owned Intellectual Property (other than trade secrets) that is material to the assets, properties, business, operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole and (B) all material agreements that involve the licensing to or from the Company or any of its Subsidiaries of any Company Owned Intellectual Property or any Licensed Intellectual Property material to the conduct of the business of the Company and its Subsidiaries, taken as a whole (other than (1) agreements for off-the-shelf commercial software that are generally available on non-discriminatory pricing terms and (2) non-exclusive trademark licenses granted in the ordinary course of business).

     (y) No Brokers. No agent, broker, investment banker, financial advisor or other firm or Person engaged by the Company is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee in connection with any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company, except for the Financial Advisor (a copy of whose engagement letter has been provided to Parent), whose fees and expenses will be paid by the Company in accordance with the Company’s agreements with such firm.

     3.2. Representations and Warranties of Parent and Acquisition . Parent and Acquisition hereby jointly and severally represent and warrant to the Company as follows:

     (a) Organization, Standing and Power . Each of Parent and Acquisition is a limited liability company or corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite limited liability company or corporate power, as applicable, and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where any such failure to be so organized, existing and in good standing or to have such power or authority would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect (defined below). Parent owns beneficially and of record all of the outstanding capital stock of Acquisition free and clear of all Liens.

     (b) Authority; No Violations; Consents and Approvals .

     (i) Each of Parent and Acquisition has all requisite limited liability company or corporate power, as applicable, and authority to enter into this Agreement and to perform its obligations under this Agreement. Each of Parent’s and Acquisition’s execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Parent and Acquisition have been duly authorized by all necessary action on the part of Parent and Acquisition. This Agreement has been duly executed