AGREEMENT AND PLAN OF MERGER

Exhibit 10.22

[ *** ] DENOTES CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.

A GREEMENT AND PLAN OF MERGER

BY AND AMONG

FOREST LABORATORIES, INC.,

FL ACQUISITION CORP.,

CEREXA, INC.,

and

DENNIS PODLESAK and ECKARD WEBER, M.D., AS STOCKHOLDERS’ AGENT


DECEMBER 13, 2006

LIST OF EXHIBITS AND SCHEDULES

AGREEMENT AND PLAN OF MERGER

            This AGREEMENT AND PLAN OF MERGER (this " Agreement ") is made and entered into as of December 13, 2006 by and among Forest Laboratories, Inc., a Delaware corporation (" Acquiror "), FL Acquisition Corp., a Delaware corporation which is a wholly-owned subsidiary of Acquiror (" Merger Sub "), Cerexa, Inc., a Delaware corporation (" Target "), and Dennis Podlesak and Eckard Weber, as Stockholders’ Agent (solely for purposes of Section 5.12, Section 5.13 and Section 8). Acquiror, Merger Sub and Target may be referred to herein individually as a " Party ", and collectively as the " Parties ". Capitalized terms used in this Agreement shall have the meanings ascribed to such term in Exhibit A of this Agreement, or if applicable as provided in the text of this Agreement.

RECITALS

            A.        The Boards of Directors of Target, Acquiror and Merger Sub believe it is in the best interests of their respective companies and the stockholders of their respective companies for Target and Merger Sub to combine into a single company through the statutory merger of Merger Sub with and into Target (the " Merger ") and, in furtherance thereof, have approved this Agreement and the Merger.

            B.        In connection with the Merger, the outstanding shares of Target’s capital stock will be converted into the right to receive the cash amount described in this Agreement.

            C.        Acquiror, Target and the Stockholders’ Agent will enter into an Escrow Agreement to be executed and delivered in accordance with Section 5.5 (the " Escrow Agreement ").

            D.        Target, Acquiror and Merger Sub desire to make certain representations and warranties and enter into certain covenants in connection with the Merger.

            E.        As an inducement to the Acquiror to enter into this Agreement, certain holders of Target Capital Stock (the " Majority Holders ") having voting power equal to or greater than the Required Stockholder Vote have indicated their intention to deliver, as promptly as practicable following the execution of this Agreement, their irrevocable approval of the Merger, this Agreement and the transactions contemplated hereby pursuant to a written consent, substantially in the form attached hereto as Exhibit B (the " Written Consent "), signed and dated by the Majority Holders in their capacity as Target stockholders as promptly as practicable following the execution of this Agreement, pursuant to and in strict accordance with the applicable provisions of the Delaware Law, the Target certificate of incorporation and the Target bylaws.

            NOW, THEREFORE, in consideration of the covenants, representations and warranties set forth herein, and for other good and valuable consideration, the Parties, intending to be legally bound, agree as follows:

            1.         The Merger .

                      1.1         The Merger . At the Effective Time and upon the terms and subject to the conditions set forth in this Agreement, in the Certificate of Merger filed pursuant to Section 1.2 and in the applicable provisions of the Delaware General Corporation Law (" Delaware Law "), Merger Sub shall be merged with and into Target, the separate corporate existence of Merger Sub shall cease and Target shall continue as the surviving corporation in the Merger (the " Surviving Corporation ").

                      1.2         Closing; Effective Time . The consummation of the Merger (the " Closing ") shall take place as soon as practicable, but no later than two Business Days, after the satisfaction or waiver of the last of the conditions set forth in Section 6 to be satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), or at such other time as the Parties agree (the actual date on which the Closing takes place being the " Closing Date "). The Closing shall take place at the offices of Cooley Godward Kronish LLP, 3175 Hanover Street, Palo Alto, California 94304, or at such other location as the Parties agree. In connection with the Closing, Target shall cause the Merger to be made effective by filing the Certificate of Merger in substantially the form attached hereto as Schedule 1.2 with the Secretary of State of the State of Delaware in accordance with the relevant provisions of Delaware Law (the time of such filing or such later time as agreed to by the Parties and provided in the Certificate of Merger being the " Effective Time ").

                      1.3         Effect of the Merger . At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger filed pursuant to Section 1.2 and the applicable provisions of Delaware Law.

                      1.4         Certificate of Incorporation; Bylaws . At the Effective Time:

                                   (a)        the certificate of incorporation of Target shall be amended to read as set forth in Exhibit C , and as so amended shall be the certificate of incorporation of the Surviving Corporation until thereafter amended as provided by Delaware Law and such certificate of incorporation; and

                                   (b)        the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation until thereafter amended.

                      1.5         Directors and Officers . At the Effective Time, the directors and officers of Merger Sub immediately prior to the Effective Time shall be the directors and officers of the Surviving Corporation, to serve until their respective successors are duly elected or appointed and qualified.

                      1.6         Effect on Capital Stock . Subject to Sections 1.7(a), 8.1 and 8.3(a), at the Effective Time, by virtue of the Merger and without any further action on the part of Acquiror, Merger Sub, Target, the Stockholders’ Agent or the holders of any of the securities identified below:

                                   (a)        each share of Target Common Stock, Series A Preferred Stock and Series B Preferred Stock issued and outstanding immediately prior to the Effective Time (excluding Dissenting Shares and shares owned by Target, Acquiror, Merger Sub or any of their respective wholly owned subsidiaries) shall be converted into the right to receive (without interest) (i) an amount of cash equal to (A) the Merger Consideration divided by the sum of (1) the aggregate number of shares of Target Capital Stock outstanding immediately prior to the Effective Time plus (2) the aggregate number of shares of Target Capital Stock subject to unexercised Target Options (whether vested or unvested) that are outstanding immediately prior to the Effective Time (the amount determined pursuant to this subclause (A) being the " Per Share Price "); minus (B) the Escrow Contribution Amount per share of Target Capital Stock; plus (C) any cash disbursements required to be made from the Escrow Fund with respect to such share to the Former Holder thereof in accordance with the terms of the Escrow Agreement, as and when such disbursements are required to be made; plus (ii) if the Milestone Event occurs, an amount of cash equal to the Additional Merger Consideration divided by the sum of (1) the aggregate number of shares of Target Capital Stock outstanding immediately prior to the Effective Time plus (2) the aggregate number of shares of Target Capital Stock subject to unexercised Target Options (whether vested or unvested) that are outstanding immediately prior to the Effective Time;

                                   (b)        each share of Target Capital Stock that is owned by Target as treasury stock, or by Acquiror or Merger Sub or any of their respective wholly owned subsidiaries, shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefore; and

                                   (c)        each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation.

            The amount of cash, if any, that each Former Holder of Target is entitled to receive for the shares of Target Capital Stock held by such Former Holder and/or Target Options held by such Former Holder (as provided in Section 1.11) shall be rounded to the nearest cent (with $0.005 being rounded upward) and computed after aggregating the cash amounts payable for all shares of each class and series of Target Capital Stock held by such Former Holder and all Target Options held by such Former Holder,

                      1.7        Cancellation and Surrender of Certificates.

                                   (a)         No Further Rights as Target Stockholders . At the Effective Time, all shares of Target Capital Stock outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and no holder of record of a certificate that immediately prior to the Effective Time represented outstanding shares of Target Capital Stock (a " Certificate ") shall have any rights as a stockholder of Target.

                                   (b)         Exchange Procedures . Upon surrender of a Certificate for cancellation to Acquiror, together with a letter of transmittal in form reasonably acceptable to Acquiror (which letter of transmittal shall include an undertaking of the signatory thereto not to violate Section 1.13 hereof) providing that risk of loss shall pass only upon delivery of such certificates to Acquiror, duly completed and validly executed in accordance with the instructions thereto, (i) the holder of such Certificate shall be entitled to receive in exchange therefor cash in an amount equal to the share of the Merger Consideration which such holder has the right to receive pursuant to Section 1.6(a), and (ii) the Certificate so surrendered shall forthwith be canceled. Acquiror shall: (x) as promptly as practicable after receipt of each properly surrendered Certificate, but in no event later than five Business Days after such receipt, cause the payment described in the preceding sentence (not including any amounts covered by Section 1.6(a)(i)(C) or Section 1.6(a)(ii)) to be made to the holder of such Certificate by wire transfer of immediately available funds to the account designated by such holder in the letter of transmittal delivered with such Certificate, and (y) if the Milestone Event occurs, as promptly as practicable thereafter, but in no event later than forty-five days after such occurrence, cause the payment described in Section 1.6(a)(ii) to be made to the holder of such Certificate by wire transfer of immediately available funds to the account designated by such holder in the letter of transmittal delivered with such Certificate (or such other account as designated in writing by such holder). Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Capital Stock (other than Dissenting Shares) will be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the amount equal to the share of the Merger Consideration which such holder has the right to receive pursuant to Section 1.6(a). If, after the Effective Time, any Certificate is presented to the Surviving Corporation or Acquiror, it shall be cancelled and exchanged as provided in this Section 1.7.

                                   (c)         Transfers of Ownership . After the Effective Time, there shall be no further registration of transfers of shares of Target Capital Stock outstanding immediately prior to the Effective Time on the records of Target.

                                   (d)         No Liability . Notwithstanding anything to the contrary in this Section 1.7, neither Acquiror nor the Surviving Corporation or any other party hereto shall be liable to any person for any amount properly paid to a public official pursuant to any applicable abandoned property law, escheat law or similar law. Any amounts remaining unclaimed by Former Holders two years after the Effective Time (or such earlier date which is immediately prior to such time as the amounts would otherwise escheat to or become the property of any Governmental Authority) shall become, to the fullest extent permitted by Applicable Laws, the property of the Acquiror, free and clear of any claims or interests of any Person previously entitled thereto.

                      1.8         Lost, Stolen or Destroyed Certificates . In the event any Certificate shall have been lost, stolen or destroyed, Acquiror shall pay to the record holder of such Certificate the consideration into which the shares of Target Capital Stock formerly represented by such Certificate have been converted pursuant to Section 1.6, upon the making of an affidavit of that fact by such record holder; provided , however , that Acquiror may, in its discretion and as a condition precedent to the payment of such consideration, require such record holder to deliver a bond in such sum as Acquiror may reasonably direct as indemnity against any claim that may be made against Acquiror or the Surviving Corporation with respect to such Certificate.

                      1.9         Dissenting Shares . Notwithstanding anything in this Agreement to the contrary, any Dissenting Share shall not be converted into the right to receive the consideration to which the holder of such share (a " Dissenting Stockholder ") would be entitled pursuant to Section 1.6, but rather shall be entitled to receive such amount as may be determined to be due with respect to such Dissenting Share pursuant to Delaware Law. If any Dissenting Stockholder fails to perfect such stockholder’s dissenters’ rights under Delaware Law or effectively withdraws or otherwise loses such rights with respect to any Dissenting Shares, such Dissenting Shares shall thereupon automatically be converted into the right to receive the consideration referred to in Section 1.6, pursuant to the exchange procedures set forth in Section 1.7. Target shall give Acquiror (a) prompt notice of any demand for payment of the fair value of any shares of Target Capital Stock or any attempted withdrawal of any such demand for payment and any other instrument served pursuant to Delaware Law and received by Target relating to any stockholder’s dissenters’ rights, and (b) the opportunity to direct all negotiations and proceedings with respect to any such demands for payment under Delaware Law.

                      1.10        Taking of 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 Target and Merger Sub, Acquiror and the Surviving Corporation are fully authorized in their respective names to take, and will take, all such lawful and necessary or desirable action, so long as such action is not inconsistent with this Agreement.

                      1.11        Target Options . As soon as practicable following the date of this Agreement, the Board of Directors of Target (or, if appropriate, any committee thereof administering the 2005 Equity Incentive Plan) shall adopt such resolutions or take such other actions as may be required to adjust the terms of all outstanding Target Options, whether vested or unvested, as necessary to provide that Target Options will become fully exercisable and may be exercised before the Effective Time at such applicable time or times as specified in the 2005 Equity Incentive Plan, and at the Effective Time, each Target Option outstanding immediately prior to the Effective Time, whether or not then vested or exercisable, shall be canceled and the holder thereof shall then become entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount equal to: (a) an amount of cash equal to (i) the product of (A) the number of shares of Target Common Stock subject to such Target Option immediately prior to the Effective Time, multiplied by (B) the amount by which the Per Share Price exceeds the exercise price per share of Target Common Stock that is subject to such Target Option; minus (ii) the Escrow Contribution Amount for such Target Option; plus (iii) any cash disbursements required to be made from the Escrow Fund with respect to such Target Option to the Former Optionholder thereof in accordance with the terms of the Escrow Agreement, as and when such disbursements are required to be made; plus (b) if the Milestone Event occurs, an amount of cash equal to the product of (i) the number of shares of Target Common Stock subject to such Target Option immediately prior to the Effective Time, multiplied by (ii) an amount equal to (A) the Additional Merger Consideration divided by (B) the sum of (1) the aggregate number of shares of Target Capital Stock outstanding immediately prior to the Effective Time plus (2) the aggregate number of shares of Target Capital Stock subject to unexercised Target Options (whether vested or unvested) that are outstanding immediately prior to the Effective Time. As soon as practicable following the Effective Time, Acquiror shall cause the payment described in subsections (a)(i), as reduced by subsection (a)(ii), of the preceding sentence to be made to the holder of such Target Option by wire transfer of immediately available funds to the account designated by such holder in writing, and such holder shall remain entitled to receive any additional cash disbursements as provided in subclause (a)(iii) and subclause (b) (if applicable). If the Milestone Event occurs, Acquiror shall, as promptly as practicable thereafter, but in no event later than forty-five days after such occurrence, cause the payment described in Section 1.11(b) to be made to the holder of such Target Option by wire transfer of immediately available funds to the account designated by such holder in writing.

                      1.12        Withholding Rights . Acquiror shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article 1 such withholding, employment and similar taxes and all other amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign law. If the Acquiror so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Target Capital Stock or Target Options in respect of whom the Acquiror made such deduction and withholding.

                      1.13        Non-Transferability of Contingent Rights . No Former Holder shall directly or indirectly sell, assign, gift, pledge, hypothecate, or otherwise voluntarily or involuntarily or by operation of law encumber, transfer or dispose of (other than pursuant to the laws of descent and distribution or by will) (each a " Transfer ") any of its rights to receive consideration under Section 1.6(a)(ii) or 1.11(b), and neither the Surviving Corporation nor Acquiror shall be obligated to effect or recognize a Transfer prohibited by this Section 1.13. The right to receive consideration under Section 1.6(a)(ii) or 1.11(b) shall not constitute an equity interest in Acquiror or the Surviving Corporation and shall not vest in or otherwise provide any Former Holder with any voting rights or other rights of ownership of any security.

            2.         Representations and Warranties of Target . Target represents and warrants to Acquiror as of the date of this Agreement (for all purposes except for purposes of Section 8), and as of the date of this Agreement and as of the Closing Date (for purposes of Section 8) that the statements contained in this Section 2 are true and correct except as disclosed in a disclosure schedule of even date herewith delivered by Target to Acquiror and complying with the provisions of Section 9.2 (the " Target Disclosure Schedule "):

                      2.1         Organization, Standing and Power . Each of Target and its Subsidiaries is a corporation duly organized, validly existing and in good standing, if applicable, under the laws of the jurisdiction of its incorporation. There is no pending or, to the knowledge of Target, threatened action for the dissolution, liquidation or insolvency of Target or any of its Subsidiaries. Target and its Subsidiaries have the corporate power to own their properties and to carry on their business as now being conducted (collectively, the " Current Target Business "). Each of Target and its Subsidiaries is duly qualified to do business, and is in good standing (if such concept is applicable in the relevant jurisdiction), in each jurisdiction where the operation of the Current Target Business by Target and its Subsidiaries requires such qualification. Target has delivered, or made available for review in a data room, to Acquiror or its advisors true and correct copies of the respective certificates of incorporation and bylaws or other equivalent organizational documents, as applicable, of Target and each of its Subsidiaries, each as in effect as of the date of this Agreement. The minute books of Target and its Subsidiaries have been made available in a data room for review by Acquiror or its advisors and contain a materially complete and accurate summary of all meetings of directors and stockholders or actions by written consent since the time of incorporation of each such company through the date of this Agreement. Neither Target nor any of its Subsidiaries is in violation of any of the provisions of its certificate of incorporation or bylaws or equivalent organizational documents . Target has no Subsidiaries other than those listed in Section 0 of Target Disclosure Schedule, and neither Target nor any such Subsidiary owns directly or indirectly any equity or similar interest in, or any interest convertible or exchangeable or exercisable for, any equity or similar interest in, any corporation, partnership, joint venture or other business association or entity.

                      2.2         Authority . Target has all requisite corporate power and authority to enter into this Agreement and to consummate the Merger. The affirmative vote or consent of the holders of (i) a majority of the shares of Target Common Stock and Target Preferred Stock (voting together as a single class) outstanding on the record date chosen for purposes of determining the stockholders of Target entitled to vote on the adoption of this Agreement, (ii) a majority of the shares of Target Preferred Stock (voting together as a single class) outstanding on the record date chosen for purposes of determining the stockholders of Target entitled to vote on the adoption of this Agreement and (iii) at least 60% of the shares of Target Series B Preferred Stock outstanding on the record date chosen for purposes of determining the stockholders of Target entitled to vote on the adoption of this Agreement are the only votes of the holders of any Target Capital Stock necessary under Delaware Law and the Certificate of Incorporation of Target to approve this Agreement and the Merger (the " Required Stockholder Vote "). The Board of Directors of Target has unanimously (a) adopted this Agreement and declared it advisable and approved its execution and delivery and the consummation of the Merger; (b) determined that the Merger is in the best interests of the stockholders of Target, and (c) recommended that the holders of Target Capital Stock approve this Agreement and the Merger and the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by Target and, assuming this Agreement constitutes a valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Target, enforceable against Target in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law. The execution and delivery of this Agreement by Target does not constitute, and the consummation by Target of the transactions contemplated hereby will not result in, a termination, or breach or violation by Target of, or a default by Target under (with or without notice or lapse of time, or both), (a) any provision of the certificate of incorporation or bylaws of Target, as amended, (b) any Material Contract or (c) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Target or any of its properties or assets. No material consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality (each, a " Governmental Entity ") is required to be obtained or made by Target at or prior to the Effective Time in order for Target to execute and deliver this Agreement or consummate the Merger, except for: (a) the filing of Certificate of Merger as provided in Section 0 and (b) such filings as may be required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (" HSR "), and foreign antitrust laws . The holders of Target Capital Stock are not entitled to appraisal, dissenter’s or similar rights under any Applicable Laws except as provided in Section 262 of the Delaware Law ("Section 262").

                      2.3         Governmental Authorizations . Target and its Subsidiaries have obtained each material federal, state, county, local or foreign governmental consent, license, permit, grant or other authorization of a Governmental Entity that is required, as of the date hereof, for the operation by Target and its Subsidiaries of the Current Target Business, and all of such consents, licenses, permits, grants and authorizations are in full force and effect.

                      2.4         Financial Statements . Target has delivered to Acquiror or its advisors (a) the audited consolidated balance sheets and statements of operations of Target and its Subsidiaries as of and for the fiscal year ended December 31, 2005 and (b)(i) the unaudited consolidated balance sheet of Target and its Subsidiaries as of September 30, 2006 (the " Target Balance Sheet ") and (ii) the unaudited consolidated statement of operations of Target and its Subsidiaries for the nine-month period ended September 30, 2006 (collectively, the " Target Financial Statements "). The Target Financial Statements have been prepared in accordance with GAAP (except as disclosed in the notes thereto and except that the unaudited Target Financial Statements do not contain footnotes and are subject to normal year-end audit adjustments) applied on a consistent basis throughout the periods covered. The Target Financial Statements fairly present, in all material respects and in accordance with GAAP, the financial condition of Target as of the dates indicated therein and the operating results of Target for the periods indicated therein, subject to normal year-end audit adjustments and the absence of footnotes in the case of the unaudited Target Financial Statements.

                      2.5         Capitalization; Shares and Stockholder Information .

                                   (a)         Capitalization . The authorized capital stock of Target consists of (i) 84,000,000 shares of Target Common Stock, of which there were issued and outstanding as of the date of this Agreement, 9,750,249 shares, and (ii) 64,000,000 shares of Target Preferred Stock, of which as of the date of this Agreement 20,000,000 were designated Series A Preferred Stock and 44,000,000 were designated Series B Preferred Stock. As of the date of this Agreement, there were issued and outstanding: 20,000,000 shares of Series A Preferred Stock convertible into the same number of shares of Common Stock, and 42,176,299 shares of Series B Preferred Stock convertible into the same number of shares of Common Stock. Each outstanding share of Series A Preferred Stock and Series B Preferred Stock is convertible into one share of Target Common Stock. All outstanding shares of Target Common Stock and Target Preferred Stock (i) are duly authorized, validly issued, fully paid and non-assessable, (ii) are free of any liens or encumbrances created by Target, and, to the knowledge of Target, free of any liens or encumbrances created by or imposed upon the holders thereof and (iii) were not issued in violation of any preemptive rights or rights of first refusal created by statute, the certificate of incorporation or bylaws of Target or any agreement to which Target is a party or by which it is bound. As of the date of this Agreement, there were 14,584,563 shares of Target Common Stock reserved for issuance under the 2005 Equity Incentive Plan, of which 4,672,674 shares of Target Common Stock were subject to outstanding options and 161,640 shares of Target Common Stock were reserved for future option grants. Target has delivered to Acquiror or its advisors (or made available in a data room) true and complete copies of the 2005 Equity Incentive Plan and each form of agreement evidencing each Target Option (and each such agreement accurately reflects the actual date of grant of such Target Option determined in accordance with GAAP). Except for the rights created pursuant to this Agreement and the options and other rights disclosed in the preceding sentences, there are no options, warrants, calls, rights, commitments or agreements that are outstanding to which Target is a party or by which it is bound, obligating Target to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Target Capital Stock or other equity securities of Target or its Subsidiaries or obligating Target to grant, extend, accelerate the vesting of, change the price of, or otherwise amend or enter into any option, warrant, call, right, commitment or agreement regarding shares of Target Capital Stock or other equity securities of Target or its Subsidiaries. All shares of Target Common Stock issuable upon conversion of the outstanding shares of Target Preferred Stock or upon exercise of the options described in this Section 0 will be, when issued pursuant to the respective terms of such Target Preferred Stock or options, duly authorized, validly issued, fully paid and nonassessable. There are no other contracts, commitments or agreements relating to the voting, purchase or sale of Target’s capital stock (a) between or among Target and any of its stockholders; and (b) to Target’s knowledge, between or among any of Target’s stockholders.

                                   (b)        The authorized capital stock of each of the Subsidiaries and the issued and outstanding shares of such capital stock as of the date of this Agreement are reflected on Section 2.5(b) of the Target Disclosure Schedule. All such outstanding shares (i) are duly authorized, validly issued, fully paid and non-assessable, (ii) are free of any liens or encumbrances created by the Subsidiary and free of any liens or encumbrances created by or imposed upon Target and (iii) were not issued in violation of any preemptive rights or rights of first refusal created by statute, the certificate of incorporation or bylaws of any Subsidiary or any agreement to which Target or any Subsidiary is a party or by which it is bound.

                                   (c)         Shares and Stockholder Information . Section 2.5(c) of the Target Disclosure Schedule sets forth, as of the date hereof: (i) the number of shares of Target Capital Stock that each current stockholder of Target holds of record; and (ii) to the knowledge of Target, the address and state of residence of such stockholder.

                      2.6         Absence of Certain Changes . Between September 30, 2006 (the " Target Balance Sheet Date ") and the date of this Agreement, Target and its Subsidiaries have conducted their business in the ordinary course consistent with past practice, and there has not occurred (a) any acquisition, sale or transfer of any material asset of Target or its Subsidiaries other than in the ordinary course of business; (b) any amendment to the certificate of incorporation or bylaws or equivalent organizational documents of Target or its Subsidiaries; (c) any material increase in, or material modification of, the compensation or benefits payable by Target or its Subsidiaries to any of their respective directors or executive officers; (d) any declaration, setting aside or payment of a dividend or other distribution with respect to shares of Target Capital Stock; or (e) any incurrence of indebtedness for borrowed money. Between the Target Balance Sheet Date and the date of this Agreement, there has not been any event or occurrence that has had, individually or in the aggregate, a Target Material Adverse Effect.

                      2.7         Absence of Undisclosed Liabilities . Neither Target nor any of its Subsidiaries has any material obligations or liabilities of any nature (matured or unmatured, fixed or contingent) other than: (a) those set forth or adequately provided for in the Target Balance Sheet; (b) those not required to be reflected in the liabilities column of a balance sheet prepared in accordance with GAAP; (c) those incurred in the ordinary course of business since the Target Balance Sheet Date; and (d) those incurred pursuant to or in connection with the execution, delivery or performance of this Agreement.

                      2.8         Litigation; Orders . There is no private or governmental action, suit, proceeding, arbitration or, to the knowledge of Target, investigation, pending before any Governmental Entity or threatened against Target or its Subsidiaries or against any of their respective officers or directors (in their capacities as such). There is no judgment, decree or order against Target or its Subsidiaries or against any of their respective directors or officers (in their capacities as such), that specifically names Target or its Subsidiaries or such directors or officers and (i) restricts in any material manner the use, transfer or licensing by Target or its Subsidiaries of any right or interest of Target or its Subsidiaries in any Material Target IP Right; or (ii) otherwise materially and adversely affects the conduct of the Current Target Business.

                      2.9         Intellectual Property .

                                   (a)        For purposes of this Agreement, the following terms shall be defined as follows:

                                               (i)        " IP Rights " means any and all of the following in any country: (A) Copyrights, Patent Rights, Trademark Rights, domain name registrations, moral rights, trade secrets, know how rights, and other intellectual property rights and intangible assets; and (B) the right (whether at law, in equity, by contract or otherwise) to use or otherwise exploit any of the foregoing.

                                               (ii)       " Copyrights " means all copyrights and copyrightable works, including all rights of authorship, use, publication, reproduction, distribution, performance, transformation, moral rights and rights of ownership of copyrightable works and all rights to register and obtain renewals and extensions of registrations, together with all other interests accruing by reason of international copyright.

                                               (iii)      " Material Target IP Rights " means all Target IP Rights other than those which, individually or in the aggregate, are not material to the conduct of the Current Target Business.

                                               (iv)       " Patent Rights " means all issued patents and pending patent applications (which for purposes of this Agreement shall include utility models, design patents, certificates of invention and applications for certificates of invention and priority rights) in any country, including all provisional applications, substitutions, continuations, continuations-in-part, divisions, renewals, reissues, re-examinations and extensions thereof.

                                               (v)        " Target IP Rights " means all IP Rights owned solely or co-owned by Target or its Subsidiaries, or in which Target or its Subsidiaries has any right, title or interest.

                                               (vi)       " Trademark Rights " means all trademarks, registered trademarks, applications for registration of trademarks, service marks, registered service marks, applications for registration of service marks, trade names, registered trade names and applications for registration of trade names.

                                   (b)        Section 2.9(b) of the Target Disclosure Schedule lists all of the Patent Rights and all registered Trademark Rights (or Trademark Rights for which applications for registration have been filed) owned solely by Target or its Subsidiaries as of the date of this Agreement, setting forth in each case the jurisdictions in which patents have been issued, patent applications have been filed, trademarks have been registered and trademark applications have been filed. Section 2.9(b) of the Target Disclosure Schedule lists all of the Patent Rights and all registered Trademark Rights (or Trademark Rights for which applications for registration have been filed) in which Target or its Subsidiaries has any co-ownership interest, other than those owned solely by Target or its Subsidiaries, setting forth in each case the jurisdictions in which patents have been issued, patent applications have been filed, trademarks have been registered and trademark applications have been filed. Section 2.9(b) of Target Disclosure Schedule lists, to the knowledge of Target as of the date hereof, all of the Patent Rights and all registered Trademark Rights (or Trademark Rights for which applications for registration have been filed) in which Target or its Subsidiaries has any right, title or interest, other than those owned solely or co-owned by Target or its Subsidiaries.

                                   (c)        Neither Target nor its Subsidiaries jointly own any Target IP Rights with any person other than Target or its Subsidiaries. No current or former officer, manager, director or employee of Target or its Subsidiaries, and no stockholder, consultant, independent contractor of Target or its Subsidiaries, and no other third party, has any right, title or interest in, to or under any Target IP Rights that has not been exclusively assigned, transferred or licensed to Target or its Subsidiaries. No third party has challenged, or to the knowledge of Target has threatened to challenge, the right, title or interest of Target or its Subsidiaries in, to or under Target IP Rights, or the validity, enforceability or claim construction of any Patent Rights owned or co-owned or exclusively licensed by Target or its Subsidiaries included in Target IP Rights. To the knowledge of Target, no any third party claimed any right title or interest in any Target IP Rights in contravention of or that would otherwise adversely affect Target’s rights in such Target IP Rights.

                                   (d)        Section 2.9(d) of the Target Disclosure Schedule lists all legally binding oral and written contracts, agreements, and licenses in effect under which Target or its Subsidiaries has any right, title or interest in, under or to any Material Target IP Rights, other than nonexclusive licenses that are available to the public generally.

                                   (e)        No third party is asserting in writing, or to the knowledge of Target threatening in writing or otherwise, to make a claim which would adversely affect the ownership rights of Target or its Subsidiaries in, under or to (i) any of the Material Target IP Rights or (ii) any legally binding contract, agreement, or license under which Target or its Subsidiaries has any right, title or interest in, under or to any of the Material Target IP Rights, and Target has no knowledge of facts that have led Target to believe that such claim is likely to be made. To the knowledge of Target, no third party is asserting or to the knowledge of Target threatening to assert a claim against any person other than Target or its Subsidiaries or their respective affiliates, nor, to the knowledge of Target, is any such claim being asserted or threatened against any such person, which would materially and adversely affect the ownership rights of Target or its Subsidiaries to or under (i) any of Target IP Rights or (ii) any legally binding contract, agreement, or license under which Target or its Subsidiaries has any right, title or interest in, under or to any of Target IP Rights, and Target has no knowledge of facts that have led Target to believe that such claim is likely to be made.

                                   (f)        Neither Target nor its Subsidiaries is subject to any legally binding contract or written agreement that restricts the use, transfer, delivery or licensing of the Material Target IP Rights (or any tangible embodiment thereof).

                                   (g)        Target and its Subsidiaries have put in the policies and procedures listed on Section 2.9(g) of the Target Disclosure Schedule to protect and maintain the confidentiality of the proprietary know-how included in the Target IP Rights. Neither Target nor any of its Subsidiaries has granted, licensed or conveyed to any third party, pursuant to any written or oral contract, agreement, license or other arrangement, any license or other right, title or interest in, to or under any Material Target IP Rights (or any tangible embodiment thereof). There are no outstanding obligations to pay any material amounts or provide other material consideration to any other person in connection with any Material Target IP Rights (or any tangible embodiment thereof).

                                   (h)        Target and its Subsidiaries own, or otherwise possess legally enforceable rights to use, all IP Rights used by Target in its conduct of the Current Target Business, other than those which, individually or in the aggregate, are not material to the conduct of the Current Target Business. To the knowledge of Target, the Target IP Rights collectively constitute all of the IP Rights necessary to enable Target and its Subsidiaries to conduct the Current Target Business, other than those which, individually or in the aggregate, are not material to the conduct of the Current Target Business.

                                   (i)        To the knowledge of Target, the conduct of the Current Target Business does not infringe, constitute contributory infringement, inducement to infringe, misappropriation or unlawful use of IP Rights of any other person, and neither Target nor its Subsidiaries has received any written notice or other communication asserting any of the foregoing that remains unresolved.

                                   (j)        To the knowledge of Target, no Material Target IP Rights are being infringed or misappropriated by any third party.

                                   (k)        Neither Target nor its Subsidiaries is currently a party to any legally binding written or oral contract, agreement, or license to indemnify any other person against any charge of infringement of any IP Rights.

                                   (l)        All current and former officers and employees of Target and its Subsidiaries who have contributed in a material manner to the creation or development of any Target IP Right have executed and delivered to Target or its Subsidiaries an agreement (containing no exceptions or exclusions from the scope of its coverage) regarding the protection of proprietary information and the assignment to Target or its Subsidiaries of any IP Rights arising from services performed for Target or its Subsidiaries by such persons, each form of which has been made available in a data room for review by Acquiror or its advisors. All current and former consultants and independent contractors to Target or its Subsidiaries who have contributed in a material manner to the creation or development of any Target IP Right have executed and delivered to Target or its Subsidiaries an agreement in substantially the forms provided to Acquiror or its counsel (containing no exceptions or exclusions from the scope of its coverage) regarding the protection of proprietary information and the assignment to Target or its Subsidiaries of any IP Rights arising from the services performed for Target or its Subsidiaries by such persons. To the knowledge of Target, no current employee or independent contractor of Target or its Subsidiaries is in material violation of any term of any patent disclosure agreement or employment contract or any other contract or agreement relating to the relationship of any such employee or independent contractor with Target or its Subsidiaries.

                                   (m)        Neither the execution, delivery or performance of this Agreement by Target nor the consummation by Target of the transactions contemplated by this Agreement will contravene, conflict with or result in any limitation on Target’s right, title or interest in or to any Target IP Rights.

                      2.10        Interested Party Transactions . Neither Target nor its Subsidiaries are indebted to any director, officer or employee of Target or its Subsidiaries (except for amounts due as salaries and bonuses under employment contracts or employee benefit plans and amounts payable in reimbursement of ordinary business expenses), and no such director or officer is indebted to Target or its Subsidiaries.

                      2.11       Material Contracts.

                                   (a)        Section 2.11(a) of the Target Disclosure Schedule lists all of the Material Contracts in effect as of the date of this Agreement. Target has delivered to Acquiror, or made available to Acquiror or its advisors in a data room, a complete and accurate copy of each such Material Contract and all amendments or modifications thereto that exist.

                                   (b)        With respect to each Material Contract listed in Section 2.11(a) of Target Disclosure Schedule: (i) such Material Contract is in full force and effect as of the date hereof and, with respect to each party thereto other than Target or any of its Subsidiaries, is binding and enforceable against such party, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law; and (ii) to Target’s knowledge, (A) no party to such Material Contract is in breach or default of such Material Contract, and (B) no event has occurred that with notice or lapse of time would constitute a breach or default thereunder by Target or any Subsidiary that is a party to such Material Contract, or would permit the modification or premature termination of such Material Contract by any other party thereto.

                                   (c)        " Material Contract " means any oral or written legally binding, executory contract, agreement or commitment, or directly related executory contracts, agreements or commitments, to which Target or any of its Subsidiaries is a party or otherwise bound (i) under which expected receipts or expenditures exceed $100,000 in the current or any future calendar year; (ii) pursuant to which Target has obtained or granted any right, title or interest in, under or to any Material Target IP Rights or in, under or to the IP Rights of any other person (other than any such IP Rights as, individually or in the aggregate, are not material to the conduct of the Current Target Business and other than nonexclusive licenses that are available to the public generally), or which relates directly and materially to the development, distribution, supply, co-promotion, marketing or manufacturing of any Target Product; (iii) evidencing indebtedness for borrowed or loaned money of $100,000 or more, including guarantees of such indebtedness by Target; (iv) creating or relating to any partnership or joint venture or any sharing of profits or losses by Target or its Subsidiaries with any third party; (v) with any Governmental Entity (other than a public university or college); or (vi)  that if terminated, would reasonably be expected to have a Target Material Adverse Effect.

                      2.12        Suppliers . No material current supplier of Target or its Subsidiaries has canceled or otherwise terminated, or to the knowledge of Target, threatened to cancel or otherwise terminate, its relationship with Target or its Subsidiaries or has at any time on or after Target Balance Sheet Date, decreased materially its services or supplies to Target or its Subsidiaries in the case of any such supplier. To Target’s knowledge, no such material supplier has indicated in a writing delivered to Target or otherwise that such supplier intends to cancel or otherwise terminate its relationship with Target or its Subsidiaries or to decrease materially its delivery of services or supplies to Target or its Subsidiaries .

                      2.13        Title to Property . Target and its Subsidiaries have (a) good and valid title to all of their tangible owned properties, real and personal, including those reflected in the Target Balance Sheet or acquired after the Target Balance Sheet Date (except properties sold or otherwise disposed of since the Target Balance Sheet Date), and (b) with respect to tangible leased properties, valid leasehold interests therein, free and clear of all mortgages, liens, pledges, charges or other encumbrances of any kind or character, except for the following (collectively, " Permitted Encumbrances "): (i) liens for current taxes not yet due and payable or that are being contested in good faith by appropriate proceedings; (ii) encumbrances that do not materially impair the ownership or use of the assets to which they relate; (iii) liens securing debt that is reflected on the Target Balance Sheet; (iv)  statutory or common law liens to secure obligations to landlords, lessors or renters under leases or rental agreements; (v) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or similar programs mandated by Applicable Laws; and (vi) statutory or common law liens in favor of carriers, warehousemen, mechanics and materialmen, to secure claims for labor, materials or supplies, and other like liens.

                      2.14       Real Estate.

                                   (a)        All leases for real property (each a " Lease " and collectively, " Leases ") to which Target or any of its Subsidiaries is a party are in full force and effect and are binding and enforceable against Target and, to Target’s knowledge, against the lessors, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law. True and correct copies of all such Leases, as amended or modified through the date hereof, have been delivered to Acquiror or its advisors (or have been made available in a data room for review by Acquiror or its advisors). Neither Target nor its Subsidiaries own any real property.

                                   (b)        Target and its Subsidiaries are not in material default under the terms of the Leases; and, to the knowledge of Target, no lessor is in material default under any of the terms of the Leases.

                      2.15        Environmental Matters .

                                   (a)        The following terms shall be defined as follows:

                                               (i)        " Environmental Laws " shall mean any applicable, federal, state or local governmental laws (including common laws), statutes, ordinances, codes, regulations, rules, permits, licenses, certificates, approvals, judgments, decrees, orders, directives, or requirements that regulate the protection of the environment, protection of public health and safety, or protection of worker health and safety, or that regulate the handling, use, manufacturing, processing, storage, treatment, transportation, discharge, release, emission, disposal, re-use, or recycling of Hazardous Materials , including the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as amended (" CERCLA "), and the federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended (" RCRA ").

                                               (ii)       " Hazardous Materials " shall mean any material, chemical, compound, substance, mixture or by-product that is identified, defined, designated, listed, restricted or otherwise regulated under Environmental Laws as a "hazardous constituent," "hazardous substance," "hazardous material," "acutely hazardous material," "extremely hazardous material," "hazardous waste," "hazardous waste constituent," "acutely hazardous waste," "extremely hazardous waste," "infectious waste," "medical waste," "biomedical waste," "pollutant," "toxic pollutant," or "contaminant. The term "Hazardous Materials" shall include any "hazardous substances" as defined, listed, designated or regulated under CERCLA, any "hazardous wastes" or "solid wastes" as defined, listed, designated or regulated under RCRA, any asbestos or asbestos containing materials any polychlorinated biphenyls, and any petroleum or hydrocarbonic substance, fraction, distillate or by-product.

                                   (b)        Target and its Subsidiaries are in compliance with all Environmental Laws relating to the properties or facilities used, leased or occupied by Target or its Subsidiaries (collectively, " Target Facilities "). Target has not and, to Target’s knowledge, no third party has, discharged, emitted, released, leaked or spilled Hazardous Materials at any of Target Facilities that are reasonably likely to give rise to liability of Target under Environmental Laws. As of the date hereof, no civil, criminal or administrative action, proceeding or, to Target’s knowledge, investigation is pending against Target or its Subsidiaries, or, to Target’s knowledge, threatened against Target or its Subsidiaries, with respect to Hazardous Materials or Environmental Laws.

                      2.16       Taxes.

                                   (a)        As used in this Agreement, the terms " Tax " and " Taxes " mean all federal, state and local taxes of any country, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, stamp transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any legally binding agreements or arrangements with any other person with respect to such amounts and including any liability for the aforementioned taxes of a predecessor entity

                                   (b)        Each of the returns, information statements or reports required to be filed with a Governmental Authority with respect to Taxes (" Tax Returns ") by or on behalf of or with respect to Target or its Subsidiaries: (i) has been timely filed on or before the applicable due date (including any extensions of such due date), (ii) is true, correct and complete in all material respects, and (iii) has been prepared in all material respects in compliance with Applicable Laws. All Taxes shown on the filed Tax Returns have been timely paid, except to the extent such amounts are being contested in good faith by Target or are properly reserved for on the Unaudited Balance Sheet by specific provision therefore (with respect to all Taxes for or with respect to all periods ending on or before September 30, 2006) or on the books or records of Target by specific provision therefore with respect to all Taxes for or with respect to all periods thereafter. All Taxes due and payable by Target or its Subsidiaries (whether or not shown to be due on filed Tax Returns) have been timely paid to the proper Governmental Authority. All Taxes that Target or its Subsidiaries have been required to collect or withhold have been duly collected or withheld and, to the extent required by Applicable Laws when due, have been duly and timely paid to the proper Governmental Authority.

                                   (c)        There has not been any audit of any Tax Return by any Governmental Authority. No audit, examination or other administrative or court proceedings involving Taxes is in progress, and Target has not been notified in writing by any Governmental Authority that any such audit, examination or other administrative or court proceeding involving Taxes is contemplated or pending. No extension of time with respect to any date on which a Tax Return was required to be filed by Target or its Subsidiaries is in force, and no waiver or agreement by or with respect to Target or its Subsidiaries is in force for the extension of time for the payment, collection or assessment of any Taxes. No claim has been made by any Governmental Authority in a jurisdiction where neither Target nor its Subsidiaries files Tax Returns that Target or its Subsidiaries is subject to taxation by that jurisdiction. No deficiencies for any Tax have been proposed, asserted or assessed against or with respect to Target or any Subsidiary which have not been settled and paid. There are no Liens for Taxes on any asset of Target or its Subsidiaries other than Liens for Taxes not yet due and payable.

                                   (d)        Target has not agreed to and is not required to make any adjustment for any period after the date of this Agreement pursuant to Section 481(a) of the Internal Revenue Code of 1986, as amended (the " Code "), by reason of any change in any accounting method. There is no application pending with any Governmental Authority requesting permission for any such change in any accounting method of Target, and the Internal Revenue Service has not issued in writing any pending proposal regarding any such adjustment or change in accounting method. No closing agreements, private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any taxing authority with respect to Target or any of its Subsidiaries.

                                   (e)        Target is not and has never been a party to any agreement with any third party relating to allocating or sharing the payment of, or liability for, Taxes or Tax benefits. Target has no liability for the Taxes of any third party (other than its subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law) as a transferee or successor, by contract or otherwise. None of Target or any of its Subsidiaries is or has ever been bound by any Tax indemnity agreement, Tax sharing agreement, or Tax allocation agreement.

                                   (f)        Target is not and has never been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or of any group that has filed a combined, consolidated or unitary return under state, local or foreign law. . Neither Target nor any of its Subsidiaries has ever been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.

                                   (g)        Target has not participated in a "reportable transaction" within the meaning of Treasury Regulation Section 1.6011-4(b) or a "listed transaction" within the meaning of Section 6707A of the Code. Target has disclosed on its United States federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of United States federal income Tax within the meaning of Section 6662 of the Code.

                                   (h)        Neither Target nor any of its Subsidiaries is (or has been for the five-year period ending at Closing) a "United States real property holding corporation" as defined in Section 897(c)(2) of the Code and the applicable Treasury Regulations.

                                   (i)        Target does not have a permanent establishment in any country other than the United States, as defined in any applicable Tax treaty between the United States and such other country.

                                   (j)        As of the date hereof, Target does not have, and as at the Effective Time neither the Target nor any of its Subsidiaries will have, "substantial nonbusiness assets" within the meaning of Section 382(l)(4) of the Code.

                                   (k)        There has been no "ownership change" (within the meaning of Section 382 of the Code) with respect to Target within the two year period that will end on the Closing Date, other than as described in the 382 statements included with Target's Tax Returns filed prior to the date of this Agreement.

                      2.17        Employee Matters .

                                   (a)        Target has made available to Acquiror a list, attached as Schedule 2.17(a) of the Target Disclosure Schedule, containing (a) the names of all current employees (including part-time employees and temporary employees), current independent contractors and current consultants of Target and its Subsidiaries, and (b) their current respective salaries or wages, other compensation, dates of employment, positions and all written agreements between Target and such individuals or entities.

                                   (b)        Section 2.17(b) of the Target Disclosure Schedule sets forth a complete and accurate list of each plan, program, policy, contract, or agreement providing for employment, compensation, retirement, deferred compensation, loans, severance, separation, relocation, repatriation, expatriation, visas, work permits, termination pay, performance awards, bonus, incentive, stock option, stock purchase, stock bonus, phantom stock, stock appreciation right, supplemental retirement, fringe benefits, cafeteria benefits or other benefits, whether written or unwritten, including each "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (" ERISA "), which is, or has been, sponsored, maintained, contributed to, or required to be contributed to by Target or its Subsidiaries and, with respect to any such plans which are subject to Code Section 401(a), any trade or business (whether or not incorporated) that is or at any relevant time was treated as a single employer with Target within the meaning of Section 414(b), (c), (m) or (o) of the Code (an " ERISA Affiliate "), for the benefit of any person who performs or who has performed services for Target or its Subsidiaries and with respect to which Target, its Subsidiaries or any ERISA Affiliate has, or is reasonably likely to have, any liability or obligation (collectively, the " Target Employee Plans ").

                                   (c)        Target has delivered to Acquiror or its advisors (or made available in a data room for review by Acquiror or its advisors) true and complete copies of each of the Target Employee Plans and related plan documents, including trust documents, group annuity contracts, plan amendments, insurance policies or contracts, participant agreements, employee booklets, administrative service agreements, summary plan descriptions, compliance and nondiscrimination tests for the last three plan years, standard COBRA forms and related notices, registration statements and prospectuses and, to the extent still in its possession, any material employee communications relating thereto. With respect to each Target Employee Plan that is subject to ERISA reporting requirements, Target has made available in a data room for review by Acquiror or its advisors copies of the Form 5500 reports filed for the last five plan years. Target has made available in a data room for review by Acquiror or its advisors the most recent Internal Revenue Service determination or opinion letter issued with respect to each such Target Employee Plan, and to Target’s knowledge, nothing has occurred since the issuance of each such letter that would reasonably be expected to cause the loss of the tax-qualified status of any Target Employee Plan subject to Code Section 401(a).

                                   (d)        Each Target Employee Plan is being administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code). Target and each ERISA Affiliate are not in default under or violation of, and have no knowledge of any default or violation by any other party to, any of the Target Employee Plans. Any Target Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all currently effective amendments to the Code, or has time remaining to apply under applicable Treasury Regulations or Internal Revenue Service pronouncements for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter. None of the Target Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person. Target has not engaged in, or participated in, any transaction which would be considered a non-exempt "prohibited transaction," as such term is defined in Section 406 of ERISA or Section 4975 of the Code, and to Target’s knowledge, no other third-party fiduciary and/or party-in-interest has engaged in any such "prohibited transaction" with respect to any Target Employee Plan. Neither Target nor any ERISA Affiliate is subject to any liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any Target Employee Plan. All contributions required to be made by Target or any ERISA Affiliate to any Target Employee Plan have been paid or accrued. With respect to each Target Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA (excluding any such event for which the thirty (30) day notice requirement has been waived under the regulations to Section 4043 of ERISA) has occurred, nor has any event described in Section 4062, 4063 or 4041 or ERISA occurred. Each Target Employee Plan subject to ERISA has prepared in good faith and timely filed all requisite governmental reports, which were true and correct in all material respects as of the date filed, and has properly and timely filed and distributed or posted all notices and reports to employees required to be filed, distributed or posted with respect to each such Target Employee Plan. No suit, administrative proceeding or action is pending, or to the knowledge of Target is overtly threatened in a written communication with Target, against or with respect to any such Target Employment Plan. There has been no amendment to, or written interpretation or announcement by Target or any ERISA Affiliate regarding, any Target Employee Plan that would increase the expense of maintaining such Target Employee Plan above the level of expense incurred with respect to that Plan for the fiscal year ended December 31, 2005.

                                   (e)        Neither Target nor any ERISA Affiliate has ever maintained, established, sponsored, participated in or contributed to, or is obligated to contribute to, or otherwise incurred any obligation or liability (including any contingent liability) under, any "multiemployer plan" (as defined in Section 3(37) of ERISA) or any "pension plan" (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA or Section 412 of the Code. Neither Target nor any ERISA Affiliate has any actual or potential withdrawal liability (including any contingent liability) for any complete or partial withdrawal (as defined in Sections 4203 and 4205 of ERISA) from any multiemployer plan.

                                   (f)        Neither Target nor any ERISA Affiliate has ever maintained, established, sponsored, participated in or contributed to any self-insured plan that is governed by ERISA and that provides benefits to employees (including any such plan pursuant to which a stop-loss policy or contract applies), other than a health care reimbursement plan.

                                   (g)        With respect to each Target Employee Plan, Target is in compliance with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (" COBRA ") and the regulations thereunder or any state law governing health care coverage extension or continuation; (ii) the applicable requirements of the Family and Medical Leave Act of 1993 and the regulations thereunder; and (iii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 (" HIPAA "). Target has no unsatisfied obligations to any employees, former employees or qualified beneficiaries pursuant to COBRA, HIPAA or any state law governing health care coverage extension or continuation.

                                   (h)        Except as expressly provided in this Agreement, the consummation of the Merger will not (i) entitle any current or former employee or other service provider of Target or any ERISA Affiliate to severance benefits or any other payment (including unemployment compensation, golden parachute, bonus or benefits under any Target Employee Plan), except as expressly provided in this Agreement; or (ii) accelerate the time of payment or vesting of any such benefits or increase the amount of compensation due any such employee or service provider. No benefit payable or that may become payable by Target pursuant to any Target Employee Plan or as a result of or arising under this Agreement shall constitute an "excess parachute payment" (as defined in Section 280G) subject to the imposition of an excise Tax under Section 4999 of the Code or the deduction for which would be disallowed by reason of Section 280G of the Code. Each Target Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without liability to Acquiror or Target other than ordinary administration expenses typically incurred in a termination event.

                                   (i)        Neither Target nor its Subsidiaries are a party to any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Target or its Subsidiaries that, individually or in the aggregate, would reasonably be expected to give rise to the payment of any amount that would be subject to the deductibility limits of Section 404 of the Code.

                      2.18        Insurance . There is no claim pending under any of Target’s insurance policies or fidelity bonds as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds. Target and its Subsidiaries are in compliance in all respects with the terms of such policies and bonds. Target has no knowledge of any threatened termination of, or material premium increase with respect to, any of such policies or bonds.

                      2.19        Compliance With Laws . Target and its Subsidiaries are in compliance in all material respects with, and have not received any written or oral notices of any material pending violation with respect to, any federal, state, local or foreign statute, law or regulation with respect to the conduct of the Current Target Business, except for violations that have been cured or are no longer being asserted.

                      2.20        Brokers’ and Finders’ Fee . Except for Credit Suisse Securities (USA) LLC (" Credit Suisse "), no broker, finder or investment banker is entitled to brokerage or finders’ fees or agents’ commissions or investment bankers’ fees or any similar charges from Target or its Subsidiaries in connection with the Merger, this Agreement or any transaction contemplated hereby.

                      2.21        Regulatory Compliance .

    &