AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

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KINETIC CONCEPTS, INC. | LEOPARD ACQUISITION SUB, INC. | LIFECELL CORPORATION

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Title: AGREEMENT AND PLAN OF MERGER
Governing Law: Delaware Date: 4/7/2008
Industry: Biotechnology and Drugs Law Firm: Skadden Arps;Lowenstein Sandler Sector: Healthcare

AGREEMENT AND PLAN OF MERGER, Parties: kinetic concepts inc. , leopard acquisition sub inc. , lifecell corporation

Exhibit 2.1

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

by and among

KINETIC CONCEPTS, INC.

LEOPARD ACQUISITION SUB, INC.

and

LIFECELL CORPORATION

Dated

April 7, 2008

TABLE OF CONTENTS

		Page

Index of Defined Terms		Index - i

ARTICLE I

THE OFFER AND MERGER
Section 1.1	The Offer	2
Section 1.2	Company Actions	3
Section 1.3	Directors	5
Section 1.4	Top-Up Option	6
Section 1.5	The Merger	7
Section 1.6	Effective Time	8
Section 1.7	Closing	8
Section 1.8	Directors and Officers of the Surviving Corporation	8
Section 1.9	Subsequent Actions	8
Section 1.10	Stockholders’ Meeting	8
Section 1.11	Merger Without Meeting of Stockholders	9

ARTICLE II

CONVERSION OF SECURITIES

Section 2.1	Conversion of Capital Stock	10
Section 2.2	Paying Agent	10
Section 2.3	Dissenting Shares	12
Section 2.4	Company Equity Plans	12

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Section 3.1	Organization	14
Section 3.2	Subsidiaries and Affiliates	15
Section 3.3	Capitalization	16
Section 3.4	Authorization; Validity of Agreement; Company Action	17
Section 3.5	Board Approvals	17
Section 3.6	Required Vote	18
Section 3.7	Consents and Approvals; No Violations	18
Section 3.8	Company SEC Documents and Financial Statements	18
Section 3.9	Absence of Certain Changes	21
Section 3.10	No Undisclosed Liabilities	21

		Page

Section 3.11	Litigation; Orders	21
Section 3.12	Employee Benefit Plans; ERISA	21
Section 3.13	Taxes	24
Section 3.14	Material Contracts	26
Section 3.15	Real and Personal Property	28
Section 3.16	Intellectual Property	28
Section 3.17	Labor Matters	30
Section 3.18	Compliance with Laws	31
Section 3.19	Condition of Assets	31
Section 3.20	Customers and Suppliers	32
Section 3.21	Environmental Matters	32
Section 3.22	Insurance	34
Section 3.23	Certain Business Practices	35
Section 3.24	Schedule 14D-9; Information in the Offer Documents	35
Section 3.25	Opinion of Financial Advisor	35
Section 3.26	Brokers	35
Section 3.27	State Takeover Statutes	36
Section 3.28	Regulatory Compliance	36

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND THE PURCHASER

Section 4.1	Organization	37
Section 4.2	Authorization; Validity of Agreement; Necessary Action	38
Section 4.3	Consents and Approvals; No Violations	38
Section 4.4	Offer Documents; Information in the Proxy Statement	39
Section 4.5	Brokers	39
Section 4.6	Regarding Purchaser; Approval of Arrangements	39
Section 4.7	Financing	40
Section 4.8	No Other Representations or Warranties; Investigation by the Parent	40

ARTICLE V

CONDUCT OF BUSINESS PENDING THE MERGER

Section 5.1	Interim Operations of the Company	41
Section 5.2	No Solicitation	43
Section 5.3	Interim Operations of Parent and Purchaser	46

ARTICLE VI

ADDITIONAL AGREEMENTS

Section 6.1	Notification of Certain Matters	47
Section 6.2	Access; Confidentiality	47

		Page

Section 6.3	Publicity	48
Section 6.4	Insurance and Indemnification	48
Section 6.5	Further Action; Reasonable Best Efforts	49
Section 6.6	State Takeover Laws	50
Section 6.7	Stockholder Litigation	50
Section 6.8	Financial Information and Cooperation	51
Section 6.9	Company SEC Documents	52
Section 6.10	Approval of Compensation Arrangements	53
Section 6.11	Employee Benefits Matters	54

ARTICLE VII

CONDITIONS

Section 7.1	Conditions to Each Party’s Obligations to Effect the Merger	55

ARTICLE VIII

TERMINATION

Section 8.1	Termination	56
Section 8.2	Notice of Termination; Effect of Termination	58

ARTICLE IX

MISCELLANEOUS

Section 9.1	Amendment and Modification	59
Section 9.2	Non-survival of Representations and Warranties	60
Section 9.3	Expenses	60
Section 9.4	Certain Definitions	60
Section 9.5	Notices	62
Section 9.6	Interpretation	63
Section 9.7	Jurisdiction	63
Section 9.8	Service of Process	64
Section 9.9	Specific Performance	64
Section 9.10	Counterparts	64
Section 9.11	Entire Agreement; Third-Party Beneficiaries	64
Section 9.12	Severability	65
Section 9.13	Governing Law	65
Section 9.14	Assignment	65
Section 9.15	Obligation of Parent	65

Annex I		A-1

iii

Index of Defined Terms

Defined Term	Page

Acceptance Time	5
Acquisition Agreement	43
Acquisition Proposal	57
Adverse Recommendation Change	42
Agreement	1
Arrangements	23
Benefit Plans	21
Business Day	57
CERCLIS	31
Certificate of Merger	7
Certificates	10
Cleanup	32
Closing	8
Closing Date	8
COBRA	22
Code	57
Company	1
Company 401(k) Plan	53
Company Board of Directors	1
Company Board Recommendation	4
Company Disclosure Schedule	14
Company Employee	52
Company Financial Advisor	34
Company Material Adverse Change	14
Company Material Adverse Effect	14
Company Permits	30
Company SEC Documents	18
Company Stockholder Approval	17
Company Stockholders	1
Company Stockholders’ Meeting	8
Company Termination Fee	56
Confidentiality Agreement	42
Contract	18
Covered Securityholders	23
D&O Insurance	46
Debt Commitment Letter	38
Delaware Court	60
DGCL	1
Dissenting Shares	12
Effective Time	8
Encumbrances	58
Environmental Claim	32
Environmental Laws	32
ERISA	21
ERISA Affiliate	21
Exchange Act	2
FDA	30
FDCA	29
Financial Statements	18
Financing	38
GAAP	18
Governmental Entity	17
Hazardous Substances	33
HSR Act	17
Independent Directors	5
Intellectual Property	58

Index-i

knowledge	58
Law	58
Leased Real Property	27
Material Contracts	26
Material Customers	30
Material Licenses	26
Material Suppliers	30
MDD	30
Merger	1
Merger Consideration	10
Minimum Condition	2
Multiemployer Pension Plans	21
NASDAQ	5
NPL	31
Offer	1
Offer Documents	3
Offer Price	1
Option	12
Option Consideration	12
Option Plans	12
Order	58
Outside Date	54
Parent	1
Parent 401(k) Plan	53
Parent Plan	52
Parent Termination Fee	56
Paying Agent	10
Pension Plans	21
Performance-Based Restricted Stock	13
Performance-Based RSU	13
Person	15
PHSA	29
Proxy Statement	8
Purchaser	1
Purchaser Common Stock	9
Real Property Lease	27
Representatives	42
Restricted Stock	13
Restricted Stock Unit	13
Schedule 14D-9	4
SEC	3
Securities Act	58
Shares	1
Subsidiary	15
Superior Proposal	42
Surviving Corporation	7
Tail Policy	46
Tax	58
Tax Return	59
Taxing Authority	59
Time-Based Restricted Stock	12
Time-Based RSU	13
Top-Up Option	6
Top-Up Option Shares	6
Transactions	16
Voting Debt	15
WARN Act	29

Index-ii

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (hereinafter referred to as this “ Agreement ”), dated April 7, 2008, by and among KINETIC CONCEPTS, INC., a Texas corporation (“ Parent ”), LEOPARD ACQUISITION SUB, INC., a Delaware corporation and a wholly-owned subsidiary of Parent (the “ Purchaser ”), and LIFECELL CORPORATION, a Delaware corporation (the “ Company ”).

WHEREAS, it is proposed that, on the terms and subject to the conditions set forth in this Agreement, the Purchaser make a cash tender offer (such tender offer, as it may be amended and supplemented from time to time as permitted by this Agreement, the “ Offer ”) to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share, of the Company (the “ Shares ”) other than shares of Restricted Stock (which shall be purchased in accordance with Section 2.4 below) for $51.00 per Share, net to the sellers in cash (such price, or any such higher price per Share as may be paid in the Offer, is referred to herein as the “ Offer Price ”), subject to any required withholding of Taxes;

WHEREAS, it is proposed that, on the terms and subject to the conditions set forth in this Agreement, following the consummation of the Offer, Purchaser shall merge with and into the Company (the “ Merger ”), pursuant to which each outstanding Share shall be converted into the right to receive the Offer Price, without interest, except for (i) Shares held by holders who comply with the relevant provisions of the General Corporation Law of the State of Delaware (the “ DGCL ”) regarding the right of stockholders to require appraisal of their Shares and (ii) Shares held in the treasury of the Company or owned by Parent, Purchaser or any wholly owned Subsidiary of Parent;

WHEREAS, the Board of Directors of the Company (the “ Company Board of Directors ”) (i) has approved this Agreement, (ii) has determined that the Offer, the Merger and the other Transactions are fair to, advisable and in the best interests of the Company and its stockholders, and (iii) is recommending that the holders of the Shares (the “ Company Stockholders ”) accept the Offer, tender their Shares into the Offer and adopt this Agreement, in each case, upon the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, each of the Board of Directors of Parent and Purchaser has (i) approved this Agreement and (ii) has determined that the Offer, the Merger and Transactions are fair to, advisable and in the best interests of their respective corporations.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained in this Agreement, and subject to the conditions set forth herein, the parties hereto agree as follows:

ARTICLE I

THE OFFER AND MERGER

Section 1.1 The Offer . (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events or conditions set forth in Annex I hereto shall have occurred and be continuing and not have been waived by Parent or Purchaser, as promptly as reasonably practicable and, in any event, within ten (10) Business Days of the date of this Agreement, the Purchaser shall commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “ Exchange Act ”)) the Offer to purchase for cash all Shares at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents a majority of the Shares outstanding on a fully-diluted basis (the “ Minimum Condition ”) and (ii) the other conditions set forth in Annex I hereto. Subject to the prior satisfaction or waiver by Parent or the Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex I hereto, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer, which shall initially be the 20th Business Day following the commencement of the Offer ; provided , however , that (x) if on the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as extended in accordance with this Agreement), all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in its sole discretion, extend the Offer for such period as the Purchaser may determine ; provide d , however , that if on the initial expiration date of the Offer the conditions to the Offer set forth in paragraphs (c), (d) and (e) of Annex I hereto shall each be satisfied (or, in the case of paragraphs (d) and (e), if any such breach or failure to comply that has caused such non-satisfaction of the condition is objectively curable within ten (10) Business Days) but any other condition to the Offer shall not have been satisfied or waived, Purchaser shall be obligated to extend the Offer for one or more periods of time of up to ten (10) Business Days each (or such longer period as Purchaser may agree in writing) until such conditions have been satisfied or waived; provided , that Purchaser shall not be required to extend the Offer beyond the date that is thirty (30) Business Days following the initial expiration of the Offer; (y) the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; and (z) the Purchaser may, in its sole discretion, provide a “subsequent offering period” for three (3) to twenty (20) Business Days to acquire outstanding untendered Shares in accordance with Rule 14d-11 under the Exchange Act if the Minimum Condition and all of the other conditions set forth in Annex I hereto are satisfied or waived, but the number of Shares that have been validly tendered and not withdrawn in the Offer and accepted for payment, together with any Shares then owned by Parent, is less than 90% of the outstanding Shares. Purchaser shall not extend the Offer following the termination of this Agreement. In addition, the Purchaser may increase the Offer Price and extend the Offer to the extent required by Law in connection with such increase, in each case in its sole discretion and without the Company’s consent, but Purchaser and Parent shall not, without the prior written consent of the Company, (A) decrease the Offer Price (as it may have been increased hereunder) or change the form of consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, (C) amend or waive the Minimum Condition, (D) add to the conditions to the Offer set forth in Annex I hereto or modify such conditions in a manner adverse to the holders of Shares, (E) extend the Offer, except as permitted by this Section 1.1(a) or (F) make any other change in the terms or conditions of the Offer that is adverse to the holders of Shares. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article VIII . If Purchaser shall commence a subsequent offering period in connection with the Offer, Purchaser shall accept for payment and pay for all Shares validly tendered during such subsequent offering period.

(b) On the date the Offer is commenced, Purchaser shall file with the United States Securities and Exchange Commission (the “ SEC ”) a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the letter of transmittal and form of notice of guaranteed delivery (collectively, together with any amendments and supplements thereto, the “ Offer Documents ”). Subject to the Company’s compliance with Section 1.2(b) , Parent and the Purchaser shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable U.S. federal securities laws. Each of Parent and the Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by Law. The Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares as required by applicable U.S. federal securities laws. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b) . The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC and Parent and the Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. In addition, Parent and the Purchaser agree to provide the Company and its counsel with any comments or communications that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or the Purchaser’s, as the case may be, receipt of such comments, and any written or oral responses thereto, and shall provide the Company and its counsel a reasonable opportunity to participate in the response of Parent and Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and the Purchaser or their counsel in any discussions or meetings with the SEC.

Section 1.2 Company Actions (a) The Company hereby approves of and consents to the Offer, and represents and warrants that the Company Board of Directors, at a meeting duly called and held, has unanimously (i) approved this Agreement, and deemed this Agreement, the Offer, the Merger and the Transactions advisable, fair to and in the best interests of the Company Stockholders; (ii) approved and adopted this Agreement and the Transactions, including the Offer and the Merger, in all respects, and, subject to the accuracy of the representation set forth in Section 4.6(b) of this Agreement, such approval constitutes approval of the Offer, the Merger, this Agreement and the Transactions for purposes of Section 203 of the DGCL; and (iii) subject to Section 5.2(e) , resolved to recommend that the Company Stockholders accept the Offer, that the Company Stockholders tender their Shares in the Offer to Purchaser, and that the Company Stockholders adopt this Agreement to the extent required by applicable Law (the “ Company Board Recommendation ”). The Company consents to the inclusion of the Company Board Recommendation in the Offer Documents, subject to Section 5.2(e) . To the knowledge of the Company, as of the date of this Agreement all of the Company’s directors and executive officers intend to tender all Shares beneficially owned by them to Purchaser pursuant to the Offer.

(b) As soon as reasonably practicable on the day the Offer is commenced, the Company shall, in a manner that complies with Rule 14d-9 under the Exchange Act, file with the SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments, supplements and exhibits thereto, the “ Schedule 14D-9 ”) which shall, subject to the provisions of Section 5.2(e) , contain the Company Board Recommendation. The Company agrees to cause the Schedule 14D-9 to be filed with the SEC and, subject to the Purchaser’s compliance with Section 1.1(a) , disseminated to holders of Shares as required by and in accordance with applicable U.S. federal securities laws. The Company, on the one hand, and Parent and the Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Schedule 14D-9 if it shall have become false or misleading in any material respect or as otherwise required by Law. The Company agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to holders of the Shares as required by and in accordance with applicable U.S. federal securities laws. Parent and the Purchaser shall promptly furnish to the Company all information concerning Parent and the Purchaser that is required or reasonably requested by the Company in connection with the obligations relating to Schedule 14D-9 contained in this Section 1.2(b) . Parent, the Purchaser and their counsel shall be given the reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC and the Company shall give reasonable and good faith consideration to any comments made by Parent, the Purchaser and their counsel. In addition, the Company agrees to provide Parent, the Purchaser and their counsel in writing with any comments or communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the Company’s receipt of such comments, and any oral or written responses thereto and shall provide Parent, the Purchaser and their counsel a reasonable opportunity to participate in the response of the Company to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any discussions or meetings with the SEC.

(c) In connection with the Offer, the Company shall promptly furnish (or cause its transfer agent to furnish) to the Purchaser mailing labels, security position listings and any available listing or computer file containing the names and addresses of the record holders of the Shares as of a recent date, and shall promptly furnish the Purchaser with such information and assistance (including, but not limited to, lists of holders of the Shares, updated periodically, and their addresses, mailing labels and lists of security positions) as the Purchaser or its agents may reasonably request. Except as required by applicable Law, and except as necessary to communicate regarding the Offer, the Merger or the Transactions with the Company Stockholders, Parent and Purchaser (and their respective Representatives) shall hold in confidence the information contained in any such labels, listings and files, shall use such information solely in connection with the Offer, the Merger and the Transactions, and, if this Agreement is terminated or the Offer is otherwise terminated, shall promptly deliver or cause to be delivered to the Company or destroy all copies of such information, labels, listings and files then in their possession or in the possession of their Representatives.

Section 1.3 Directors Promptly upon the acceptance for payment of any Shares by Parent or the Purchaser or any of their affiliates pursuant to the Offer (the “ Acceptance Time ”) and from time to time thereafter, Parent shall be entitled, subject to Section 1.3(b) , to elect or designate such number of directors, rounded up to the next whole number, on the Company Board of Directors as is equal to the product of (i) the total number of directors on the Company Board of Directors (giving effect to the directors elected or designated by Parent pursuant to this Section 1.3 ) multiplied by (ii) the quotient obtained by dividing the aggregate number of Shares beneficially owned by the Purchaser, Parent and any of their affiliates by the total number of Shares then outstanding (on a fully-diluted basis). The Company shall, upon Parent’s request, either use its reasonable best efforts to promptly increase the size of the Company Board of Directors, or use its reasonable best efforts to promptly secure the resignations of such number of its incumbent directors, or both, as is necessary to enable Parent’s designees to be so elected or designated to the Company’s Board of Directors, and shall use its reasonable best efforts to take all actions necessary to cause Parent’s designees to be so elected or designated at such time. At such time, the Company shall, upon Parent’s request, also use its reasonable best efforts to cause persons elected or designated by Parent to constitute the same percentage (rounded up to the next whole number) as is on the Company Board of Directors of each committee of the Company Board of Directors, subject to appropriate qualification. The Company’s obligations under this Section 1.3 shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. The Company shall promptly take all actions required pursuant to such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3 , including, but not limited to, mailing to stockholders (together with the Schedule 14D-9) such information as is required by such Section 14(f) and Rule 14f-1 to enable Parent’s designees to be elected or designated to the Company Board of Directors. Parent or the Purchaser shall supply the Company with the information and consents with respect to either of them and their nominees, officers, directors and affiliates to the extent required by such Section 14(f) and Rule 14f-1.

(b) In the event that Parent’s designees are elected or designated to the Board of Directors of the Company, then, until the Effective Time, the Company shall cause the Board of Directors of the Company to have at least three (3) directors who are (i) directors on the date of this Agreement, (ii) independent directors for purposes of the continued listing requirements of the Nasdaq Global Market (“ NASDAQ ”) and (iii) reasonably satisfactory to Parent (such directors, the “ Independent Directors ”); provided , however , that, if any Independent Director is unable to serve due to death or disability or any other reason (including as a result of removal for cause pursuant to the last sentence of this Section 1.3(b) ), the remaining Independent Directors (or Independent Director) shall be entitled to elect or designate another individual (or individuals) who serve(s) as a director (or directors) on the date of this Agreement (provided that no such individual is an employee of the Company) to fill the vacancy, and such director (or directors) shall be deemed to be an Independent Director (or Independent Directors) for purposes of this Agreement. If no Independent Director remains prior to the Effective Time, a majority of the members of the Board of Directors of the Company at the time of the execution of this Agreement shall be entitled to designate three persons to fill such vacancies; provided that such individuals shall not be employees or officers of the Company, Parent or the Purchaser and shall be reasonably satisfactory to Parent, and such persons shall be deemed Independent Directors for purposes of this Agreement. Following the Acceptance Time and prior to the Effective Time, Parent and Purchaser shall not cause any amendment or termination of this Agreement, any extension by the Company of the time for the performance of any of the obligations or other acts of Purchaser or Parent or waiver of any of the Company’s rights under this Agreement or other action adversely affecting the rights of the Company Stockholders (other than Parent or the Purchaser), to be effected without the affirmative vote of a majority of the Independent Directors. Following the Acceptance Time and prior to the Effective Time, neither Parent nor Purchaser shall take any action to remove any Independent Director unless the removal shall be for cause.

Section 1.4 Top-Up Option

(a) Subject to the requirements of Section 1.4(b) , the Company hereby grants to Parent and the Purchaser an irrevocable option (the “ Top-Up Option ”) to purchase from the Company that number (but not less than that number) of shares of Company common stock (the “ Top-Up Option Shares ”) equal to the number of shares of Company common stock that, when added to the Shares owned by Parent and Purchaser immediately following consummation of the Offer, shall constitute one share more than 90% of the Shares outstanding (after giving effect to the issuance of the Top-Up Option Shares) for consideration per Top-Up Option Share equal to the Offer Price.

(b) The Top-Up Option shall be exercisable only one time and only after the purchase of and payment for Shares pursuant to the Offer by Parent or the Purchaser as a result of which Parent and the Purchaser own beneficially at least 80% of the Shares outstanding. The Top-Up Option shall not be exercisable if the number of shares of Company common stock subject thereto exceeds the number of authorized shares of Company common stock available for issuance and not otherwise reserved for issuance by the Company.

(c) In the event that Parent or Purchaser wishes to exercise the Top-Up Option, Parent or the Purchaser shall give the Company written notice specifying the number of shares of Company common stock that are or will be owned by Parent and the Purchaser immediately following consummation of the Offer and specifying a place and a time for the closing of the purchase (which shall not be more than three (3) Business Days after delivery of such notice) and certifying that as promptly as practicable following such exercise the Purchaser and Parent intend to (and Purchaser and Parent shall as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 1.11 . The Company shall, as soon as practicable following receipt of such notice, deliver written notice to the Purchaser specifying the number of Top-Up Shares. At the closing of the purchase of the Top-Up Shares, the purchase price owing upon exercise of the Top-Up Option that equals the product of (i) the number of shares of Company common stock purchased pursuant to the Top-Up Option, multiplied by (ii) the Offer Price, shall be paid to the Company, at the election of Parent and Purchaser, in cash (by wire transfer or cashier’s check) or by delivery of a promissory note having full recourse to Parent.

(d) The Top-Up Option may not be exercised if any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Entity shall prohibit, or require any action, consent, approval, authorization or permit of, or action by, or filing with or notification to, any Governmental Entity or the Company Stockholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable.

(e) Each of Parent and the Purchaser understands that the Shares that Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act, and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and the Purchaser represent and warrant to the Company that the Purchaser is, and will be upon exercise of the Top-Up Option, an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act). The Purchaser agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise thereof are being and will be acquired for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act. Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws.

Section 1.5 The Merger . (a) Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, the Company and the Purchaser shall consummate the Merger, pursuant to which (i) the Purchaser shall be merged with and into the Company and the separate corporate existence of the Purchaser shall thereupon cease, (ii) the Company shall be the successor or surviving corporation in the Merger and shall continue to be governed by the Laws of the State of Delaware, and (iii) the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger. The corporation surviving the Merger is sometimes hereinafter referred to as the “ Surviving Corporation. ” The Merger shall have the effects set forth herein and in the applicable provisions of the DGCL.

(b) The Certificate of Incorporation of the Company, as in effect immediately prior to the Effective Time, shall be amended in its entirety as set forth in Exhibit A hereto and, as so amended shall be the Certificate of Incorporation of the Surviving Corporation, until thereafter amended as provided by Law and such Certificate of Incorporation (and subject to Secti on 6.4( a ) ).

(c) The Bylaws of Company, as in effect immediately prior to the Effective Time, shall be amended in their entirety as set forth on Exhibit B hereto and, as so amended, shall be the Bylaws of the Surviving Corporation, until thereafter amended as provided by Law, the Certificate of Incorporation of the Surviving Corporation and such Bylaws (and subject to Section 6.4( a ) ).

Section 1.6 Effective Time Parent, the Purchaser and the Company shall cause the appropriate certificate of merger or certificate of ownership, as the case may be (the “ Certificate of Merger ”) to be executed and filed on the Closing Date with the Secretary of State of the State of Delaware as provided in the DGCL. The Merger shall become effective on the date and time on which the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware, or such later time as agreed upon by the parties, such time hereinafter referred to as the “ Effective Time .”

Section 1.7 Closing The closing of the Merger (the “Closing”) will take place at 10:00 a.m., Chicago time, on a date to be specified by the parties, such date to be no later than the second Business Day after satisfaction or waiver of all of the conditions set forth in Article VII (the “ Closing Date ”), at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 333 West Wacker Drive, Chicago, Illinois 60606, unless another date or place is agreed to in writing by the parties hereto.

Section 1.8 Directors and Officers of the Surviving Corporation . The directors of the Purchaser immediately prior to the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation, and the officers of the Company immediately prior to the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation, in each case until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the Surviving Corporation’s Certificate of Incorporation and Bylaws.

Section 1.9 Subsequent Actions . If at any time after the Effective Time the Surviving Corporation shall determine, in its sole discretion, that any actions are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to take all such actions as may be necessary or desirable to vest all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

Section 1.10 Stockholders ’ Meeting . (a) If required by Law to consummate the Merger, the Company shall in accordance with applicable Law:

(i) duly call, give notice of, convene and hold a special meeting of its stockholders as soon as reasonably practicable following the acceptance for payment of Shares by the Purchaser pursuant to the Offer (or, if later, following the termination of the subsequent offering period, if any) for the purpose of considering and taking action upon this Agreement (the “ Company Stockholders ’ Meeting ”);

(ii) prepare and file with the SEC a preliminary proxy or information statement relating to the Merger and this Agreement and use its commercially reasonable efforts (A) to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Parent, respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement (together with any amendments and supplements thereto, the “ Proxy Statement ”) to be mailed to its stockholders as soon as reasonably practicable, which Proxy Statement shall include all information required under applicable Law to be furnished to the Company Stockholders in connection with the Merger and the Transactions, and, subject to Section 5.2(e ) , shall include the Company Board Recommendation and the full text of the written opinion described in Section 3.25 , and (B) to obtain the necessary approvals of this Agreement, the Merger and Transactions by the Company Stockholders;

(iii) subject to Section 5.2( e ) , use its reasonable best efforts to solicit from holders of Shares proxies in favor of the adoption of this Agreement and take all actions reasonably necessary or advisable to secure the approval of stockholders required by the DGCL, the Company’s Certificate of Incorporation and any other applicable Law to effect the Merger; and

(iv) Parent and Purchaser shall supply all information reasonably requested by the Company in connection with the preparation of the Proxy Statement as promptly as practicable.

(b) Subject to Section 5.2( e ) , the Company shall, through the Company Board of Directors, recommend to the Company Stockholders adoption of this Agreement, and, except as expressly permitted by this Agreement, shall not withdraw, amend or modify in a manner adverse to Parent the Company Board Recommendation. Parent agrees that it will vote, or cause to be voted, all of the shares of Company common stock then owned by it, the Purchaser or any of Parent’s other Subsidiaries in favor of the adoption and approval of this Agreement, the Merger and the Transactions.

Section 1.11 Merger Without Meeting of Stockholders . Notwithstanding Section 1.10 , in the event that Parent, the Purchaser or any other Subsidiary of Parent shall acquire at least 90% of the outstanding Shares, Parent and the Purchaser agree to take all necessary and appropriate actions to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.

ARTICLE II

CONVERSION OF SECURITIES

Section 2.1 Conversion of Capital Stock . As of the Effective Time, by virtue of the Merger and without any action on the part of the holders of any Shares or the holders of the common stock, par value $0.001 per share, of the Purchaser (the “ Purchaser Common Stock ”):

(a) Each outstanding share of Purchaser Common Stock shall be converted into and become one fully paid and nonassessable share of common stock of the Surviving Corporation.

(b) All Shares that are owned by the Company as treasury stock and any Shares owned by Parent, the Purchaser or any other wholly-owned Subsidiary of Parent shall be cancelled, and no consideration shall be delivered in exchange therefor.

(c) Each outstanding Share (other than Shares to be cancelled in accordance with Section 2.1(b) and other than Dissenting Shares) shall be converted into the right to receive the Offer Price, payable to the holder thereof in cash, without interest (the “ Me rger Consideration ”), subject to any required withholding of Taxes. From and after the Effective Time, all such Shares shall no longer be outstanding and shall automatically be cancelled, and each holder of a certificate representing any such Shares immediately prior to the Effective Time shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration therefor upon the surrender of such certificate in accordance with Section 2.2 , without interest thereon.

Section 2.2 Paying Agent.

(a) Prior to the Effective Time, Parent shall designate an agent reasonably acceptable to the Company (the “ Paying Agent ”) for the holders of Shares in connection with the Merger and to receive the funds to which holders of Shares shall become entitled pursuant to Section 2.1(c) . At the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to deposit, with the Paying Agent cash in an amount sufficient to pay the aggregate Merger Consideration and Option Consideration required to be paid pursuant to Section 2.1(c) . Such funds shall be invested by the Paying Agent as directed by Parent or the Surviving Corporation, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Shares; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investor Services, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion and no such investment or loss thereon shall effect the amounts payable to the Company’s stockholders pursuant to this Article II . Earnings from such investments shall be the sole and exclusive property of Parent and the Surviving Corporation, and no part of such earnings shall accrue to the benefit of holders of Shares.

(b) Promptly after the Effective Time (and in any event within three (3) Business Days thereafter), the Paying Agent shall mail to each holder of record of Shares (the “ Certificates ”), whose Shares were converted pursuant to Section 2.1 into the right to receive the Merger Consideration (i) 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 delivery of the Certificates to the Paying Agent, and which shall be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” with respect to shares held in book-entry form) and (ii) instructions for effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate and the Certificate so surrendered shall forthwith be cancelled. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition precedent of payment that (x) the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer, and (y) the Person requesting such payment shall have paid any transfer and other taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered or shall have established to the satisfaction of the Surviving Corporation that such tax either has been paid or is not required to be paid. Until surrendered as contemplated by this Section 2.2 , each Certificate shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration, without interest thereon.

(c) At the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of Certificates evidencing ownership of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares, except as otherwise provided for herein or by applicable Law. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Article II .

(d) At any time following six months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) made available to the Paying Agent and not disbursed to holders of Certificates, and thereafter such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates, without any interest thereon. Notwithstanding the foregoing, neither Parent, the Surviving Corporation nor the Paying Agent shall be liable to any holder of a Certificate for Merger Consideration that was required to be delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law and was so delivered.

(e) 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 Parent, the posting by such Person of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration with respect thereto pursuant to this Agreement.

(f) Parent, the Surviving Corporation or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as Parent, the Surviving Corporation or the Paying Agent are 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 withheld and paid over to the appropriate Taxing Authority by Parent, 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 Certificates in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Paying Agent.

Section 2.3 Dissenting Shares . (a) Notwithstanding anything in this Agreement to the contrary, Shares outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the adoption of this Agreement or consented thereto in writing and who has complied with Section 262 of the DGCL (“ Dissenting Shares ”) shall not be converted into the right to receive the Merger Consideration, unless such holder fails to perfect or such holder waives, withdraws or otherwise loses his or her right to appraisal. A holder of Dissenting Shares shall be entitled to receive payment of the appraised value of such Shares held by such holder in accordance with Section 262 of the DGCL, unless, after the Effective Time, such holder fails to perfect or such holder waives, withdraws or otherwise loses such holder’s right to appraisal, in which case such Shares shall be converted into and represent only the right to receive the Merger Consideration, without interest thereon, upon surrender of the Certificate or Certificates representing such Shares pursuant to Section 2.2 .

(b) The Company shall give Parent (i) prompt notice of any written demands for appraisal of any Shares, attempted withdrawals of such demands and any other instruments served pursuant to the DGCL and received by the Company relating to rights of appraisal and (ii) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL. Except with the prior written consent of Parent, the Company shall not make any payment with respect to any demands for appraisal or settle or offer to settle any such demands for appraisal.

Section 2.4 Company Equity Plans.

(a) Effective not later than immediately prior to the Effective Time, the Company shall terminate the Leopard Corporation Equity Compensation Plan and any predecessor plans thereto and each other equity compensation plan pursuant to which awards were granted to employees or directors of or other service providers to the Company or its Subsidiaries (collectively, the “ Option Plans ”). At the Effective Time, each option to purchase shares of common stock of the Company granted under the Option Plans or otherwise (each, an “ Option ”) that is outstanding and unexercised immediately prior thereto shall become fully vested as of the Effective Time and shall by virtue of the Merger and without any action on the part of any holder of any Option be cancelled and converted into the right to receive from the Surviving Corporation immediately after the Effective Time a cash payment (without interest) equal to the product of (i) the excess, if any, of (x) the Offer Price over (y) the per share exercise price of such Option, and (ii) the number of shares subject to such Option as of the Effective Time (the, “ Option Consideration ”). As of the Effective Time, all Options, whether or not vested or exercisable, shall no longer be outstanding and shall automatically cease to exist, and each holder of an Option shall cease to have any rights with respect thereto, except the right to receive the Option Consideration.

(b) At the Effective Time, each (i) share of common stock that is then the subject of a restricted stock award granted under the Option Plans or otherwise (other than awards of Performance-Based Restricted Stock) that vests based solely on the passage of time (each, a “ Time-Based Restricted Stock ”), and (ii) restricted stock unit that is then the subject of a restricted stock unit award evidencing the right to receive shares of common stock granted under the Option Plans or otherwise (other than awards of Performance-Based RSUs) that vests based solely on the passage of time (each, a “ Time-Based RSU ”) that is outstanding immediately prior thereto shall become fully vested as of the Effective Time and shall by virtue of the Merger and without any action on the part of any holder of any Time-Based Restricted Stock or Time-Based RSU be cancelled and converted into the right to receive from the Surviving Corporation immediately after the Effective Time the Merger Consideration in respect of each underlying share.

(c) At the Effective Time, each (i) restricted common stock award granted under the Option Plans or otherwise that vests based on attainment of performance goals (each, a “ Performance -Based Restricted Stock ” and together with the Time-Based Restricted Stock, a “ Restricted Stock ”), and (ii) restricted stock unit award evidencing the right to receive shares of common stock of the Company granted under the Option Plans or otherwise that vests based on the attainment of performance goals (each, a “ Performance -Based RSU ” and together with the Time-Based RSU, a “ Restricted Stock Unit ”) that is outstanding immediately prior thereto shall become fully vested as to only the target number of shares of common stock of the Company that are the subject thereof as of the Effective Time and shall by virtue of the Merger and without any action on the part of any holder of any Performance-Based Restricted Stock or Performance-Based RSU be cancelled and converted into the right to receive from the Surviving Corporation immediately after the Effective Time the Merger Consideration in respect of such target number of shares only. Any shares of common stock subject to any Performance-Based Restricted Stock or Performance-Based RSU in excess of the target number shall be cancelled at the Effective Time and each holder of such Performance-Based Restricted Stock or Performance-Based RSU shall cease to have any rights with respect to such shares in excess of the target number.

(d) Purchaser shall be entitled to deduct and withhold from the amounts otherwise payable pursuant to Section 2.4(a) -(c) to any holder of Options, Restricted Stock, or Restricted Stock Units such amounts as the Company 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 Purchaser, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Options, Restricted Stock and/or Restricted Stock Units in respect of which such deduction and withholding was required to be made by Purchaser. At Purchaser’s election, amounts payable pursuant to Section 2.4(a) -(c) may be paid to the Surviving Corporation, which shall pay such amounts net of such withholding and pay such withholding over to the appropriate Taxing Authority.

(e) Prior to the Effective Time, the Company shall take all necessary action (i) in accordance with that certain SEC no-action letter, dated January 12, 1999, to Skadden, Arps, Slate, Meagher & Flom LLP) to provide that the treatment of Options, Restricted Stock and/or Restricted Stock Units pursuant to Section 2.4(a) -(c) will qualify for exemption under Rule 16b-3(d) or (e), as applicable, under the Exchange Act, and (ii) to effect the treatment of the Option Plans and Options, Restricted Stock and Restricted Stock Units set forth in this Section 2.4 , including obtaining any and all necessary consents.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except (i) as set forth on the disclosure schedule delivered by the Company to Parent prior to the execution of this Agreement (the “ Company Disclosure Schedule ”) or (ii) as disclosed in the Company SEC Documents filed prior to the date of this Agreement (excluding any risk factor disclosure and disclosure of risks included in any “forward-looking statements” disclaimer or other statements included in such Company SEC Documents to the extent that they are predictive or forward-looking in nature), the Company represents and warrants to Parent and the Purchaser as set forth below. Each exception set forth in the Company Disclosure Schedule is identified by reference to, or has been grouped under a heading referring to, a specific individual Section or subsection of this Agreement and shall also be deemed to be disclosed with respect to any other section of this Agreement to which the relevance of such item is readily apparent.

Section 3.1 Organization . (a) The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. The Company has full corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(b) The Company is duly qualified or licensed to do business as a foreign corporation and in good standing in each jurisdiction where such qualification or licensing is necessary, except where the failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. As used in this Agreement, “ Company Material Adverse Change ” or “ C ompany Material Adverse Effect ” means any effect, change, development, event or circumstance that, considered together with all other effects, changes, developments, events or circumstances, is or would reasonably be expected to be or to become materially adverse to, or has or would reasonably be expected to have a material adverse effect on, (i) the business, results of operation, financial condition or prospects of the Company, or (ii) the ability of the Company to consummate the Transactions or to perform any of its obligations under this Agreement; provided, however, that, in the case of clause (i) only, none of the following shall be deemed to be, and shall not be taken into account in determining whether there has been, a Company Material Adverse Effect or Company Material Adverse Change: facts, circumstances, events, changes, effects or occurrences (1) generally affecting the economy or the financial, debt, credit or securities markets in the United States, including as a result of changes in geopolitical conditions, (2) generally affecting the medical device industry, (3) resulting from any actions required under this Agreement to obtain any approval or authorization under applicable antitrust or competition laws for the consummation of the Offer or the Merger, (4) resulting from changes in GAAP or authoritative interpretations thereof, (5) resulting from any outbreak or escalation of hostilities or war or any act of terrorism, (6) resulting from any decrease in the market price of the Shares (it being understood that the exception in this clause (6) is strictly limited to any such decrease in and of itself and shall not prevent or otherwise affect a determination that any effect, event, development or change underlying such decrease has resulted in or contributed to a Company Material Adverse Effect or Company Material Adverse Change) or (7) resulting from any failure by the Company to meet any published analyst estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, ending on or after the date of this Agreement (it being understood that the exception in this clause (7) is strictly limited to any such failure in and of itself and shall not prevent or otherwise affect a determination that any effect, event, development or change underlying such failure has resulted in or contributed to a Company Material Adverse Effect or Company Material Adverse Change), except, in the case of clauses (1), (2), (4) and (5), to the extent such change, effect, event or occurrence has a materially disproportionate effect on the Company compared with other companies operating in the industries in which the Company operates. The Company has heretofore delivered to Parent complete and correct copies of the Certificate of Incorporation and Bylaws of the Company as presently in effect.

Section 3.2 Subsidiaries and Affiliates . The Company does not (i) have any Subsidiaries or (ii) own, directly or indirectly, any capital stock or other equity securities of any Person or have any direct or indirect equity or ownership interest in any business. As used in this Agreement: the term “ Subsidiary ” means with respect to any party, any corporation, partnership, limited liability company or other organization or entity, whether incorporated or unincorporated, of which (i) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such organization is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries or (ii) such party or any other Subsidiary of such party is a general partner (excluding any such partnership where such party or any Subsidiary of such party does not have a majority of the voting interest in such partnership); and the term “ Person ” means a natural person, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Entity or other entity or organization.

Section 3.3 Capitaliz ation . (a) The authorized capital stock of the Company consists of (i) 48,000,000 shares of common stock, par value $0.001 per share, and (ii) 1,817,795 shares of undesignated preferred stock. As of the date of this Agreement, (i) 34,203,446 Shares are issued and outstanding, (ii) no shares of preferred stock are issued an outstanding, (iii) no Shares are issued and held in the treasury of the Company, (iv) a total of 2,101,510 Shares are reserved for issuance upon the exercise of outstanding Options at a weighted average exercise price of $23.13 per Share, (v) a total of 803,512 Shares subject to Options are vested and exercisable as of the date of this Agreement at a weighted average exercise price of $11.76 per Share, (vi) a total of 691,139 Shares are available for future grant under the Option Plans, (vii) 1,297,998 unvested Shares are issued and outstanding and (viii) a total of 341,454 Shares are subject to Restricted Stock Unit awards. All of the outstanding shares of the Company’s common stock are, and all shares that may be issued pursuant to the exercise of outstanding Options will be, duly authorized, validly issued, fully paid and non-assessable. There is no outstanding indebtedness for borrowed money of the Company. There is no indebtedness having general voting rights (or convertible into securities having such rights) (“ Voting Debt ”) of the Company issued and outstanding. Except as disclosed in this Section 3.3 , (i) there are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, restricted stock awards, restricted stock unit awards, agreements, arrangements, understandings or commitments of any kind relating to the issued or unissued capital stock of, or other equity interests in, the Company obligating the Company to issue, transfer, register or sell or cause to be issued, transferred, registered or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or securities convertible into or exchangeable for such shares or equity interests or other securities, or obligating the Company to grant, extend or enter into any such option, warrant, call, subscription or other right, restricted stock award, restricted stock unit award, agreement, arrangement, understanding or commitment and (ii) there are no outstanding agreements, arrangements, understandings or commitments of the Company to repurchase, redeem or otherwise acquire any Shares or the capital stock of the Company or any capital stock or other equity interests in any Person or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Person. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Company. Since March 31, 2008, the Company has not granted or issued any Options, Restricted Stock or Restricted Stock Unit awards or any other awards under any of the Option Plans.

(b) All of the Options have been granted solely to individuals who, as of the date of grant, were employees, consultants (who are individuals) or directors of the Company. All Options granted under the Option Plans have been granted pursuant to option award agreements substantially in the form attached as an exhibit to Section 3.3(b) (i) of the Company Disclosure Schedule. The per Share exercise price of each Option is not (and is not deemed to be) less than the fair market value of a Share as of the date of grant of such Option. All grants of Options were validly issued and properly approved by the Company Board of Directors (or a duly authorized committee or subcommittee thereof) in compliance with all applicable Laws and recorded on the Financial Statements in accordance with GAAP. All Restricted Stock awards granted under the Option Plans have been granted pursuant to restricted stock award agreement(s) substantially in the form attached as an exhibit to Section 3.3(b) (ii) of the Company Disclosure Schedule. All Restricted Stock Unit awards granted under the Option Plans have been granted pursuant to restricted stock unit award agreement(s) substantially in the form attached as an exhibit to Section 3.3(b) (iii) of the Company Disclosure Schedule.

(c) There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party relating to the voting or disposition of any shares of the capital stock of the Company, or granting to any person or group of persons the right to elect, or to designate or nominate for election, a director to the board of directors of the Company.

(d) All dividends or distributions on securities of the Company that have been declared or authorized have been paid in full.

Section 3.4 Authorization; Validity of Agreement; Company Action . The Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions provided for or contemplated by this Agreement, including, but not limited to, the Offer and the Merger (collectively, the “ Transactions ”). The execution, delivery and performance by the Company of this Agreement, and the consummation by it of the Transactions, have been duly and validly authorized by the Company Board of Directors, and no other corporate proceeding on the part of the Company is necessary to authorize the execution, delivery and performance by the Company of this Agreement and the consummation by it of the Transactions other than, with respect to the Merger, the adoption of this Agreement by holders of a majority of the outstanding Shares if required by applicable Law. This Agreement has been duly and validly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery of this Agreement by Parent and the Purchaser, is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to creditors’ rights generally and to general principles of equity.

Section 3.5 Board Approvals . The Company Board of Directors, at a meeting duly called and held, has unanimously (i) determined that each of the Agreement, the Offer and the Merger are advisable and fair to and in the best interests of the stockholders of the Company, (ii) duly and validly approved, adopted and declared advisable this Agreement and the Transactions and taken all other corporate action required to be taken by the Company Board of Directors to authorize the consummation of the Transactions, and (iii) resolved, subject to Section 5.2(e) , to recommend that the Company Stockholders accept the Offer, tender their Shares to the Purchaser pursuant to the Offer, and adopt this Agreement, and none of the aforesaid actions by the Company Board of Directors has been amended, rescinded or modified. Subject to the accuracy of the representation set forth in Section 4.6(b) of this Agreement, the action taken by the Company Board of Directors constitutes approval of the Transactions (including each of the Offer and the Merger) by the Company Board of Directors under Section 203 of the DGCL, and no other state takeover statute or similar statute or regulation in any jurisdiction in which the Company does business is applicable to the Transactions (including each of the Offer and the Merger).

Section 3.6 Required Vote . Subject to the accuracy of the representation set forth in Section 4.6(b) of this Agreement and subject also to Section 1.11 of this Agreement, the affirmative vote of the holders of a majority of the outstanding Shares (the “ Company Stockholder Approval ”) is the only vote of the holders of any class or series of the Company’s capital stock necessary to adopt this Agreement.

Section 3.7 Consents and Approvals; No Violations . None of the execution, delivery or performance of this Agreement by the Company, the consummation by the Company of the Transactions or compliance by the Company with any of the provisions of this Agreement will (i) conflict with or result in any breach of any provision of the Certificate of Incorporation or Bylaws of the Company, (ii) require any filing by the Company with, or permit, authorization, consent or approval of, any court, arbitral tribunal, administrative agency or commission or other governmental or other regulatory authority or agency, whether local, state, federal or foreign (a “ Governmental Entity ”), except for (A) compliance with any applicable requirements of the Exchange Act, (B) any filings as may be required under the DGCL in connection with the Merger, (C) the filing with the SEC and NASDAQ of (1) the Schedule 14D-9 and (2) a Proxy Statement if the Company Stockholder Approval is required by Law and (D) any filings in connection with the applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), (iii) result in a violation or breach of or the loss of any benefit under, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under, or result in the creation of any Encumbrance on the assets and properties of the Company under, any of the terms, conditions or provisions of any note, bond, mortgage, lien, indenture, lease, license, contract, agreement, arrangement or understanding or other instrument or obligation (each, a “ Contract ”) to which the Company is a party or by which the Company or any of its properties or assets may be bound or (iv) assuming that all consents, approvals, authorizations and other actions described in subsection (ii) have been obtained and all filings and obligations in subsection (ii) have been made or complied with, conflict with or violate any Law applicable to the Company or any of its properties or assets, except in the case of clauses (ii) through (iv) where (x) any failure to obtain such permits, authorizations, consents or approvals, (y) any failure to make such filings, or (z) any such violations, breaches, defaults or Encumbrances would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

Section 3.8 Company SEC Documents and Financial Statements.

(a) Since January 1, 2005, the Company has timely filed with the SEC all forms, reports, schedules, statements, exhibits and other documents (including all exhibits and other information incorporated therein and amendments and supplements thereto) required by it to be filed under the Exchange Act or the Securities Act (collectively, the “ Company SEC Documents ”). As of its filing date or, if amended prior to the date of this Agreement, as of the date of the last such amendment, each Company SEC Document complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be. As of its filing date or, if amended prior to the date of this Agreement, as of the date of the last such amendment, each Company SEC Document filed pursuant to the Exchange Act did not 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 made therein, in light of the circumstances under which they were made, not misleading. Each Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date such registration statement or amendment became effective prior to the date of this Agreement, did not 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 made in light of the circumstances under which they were made, not misleading. As of the dates on which they were filed or amended in the Company SEC Documents filed prior to the date of this Agreement, the audited financial statements and unaudited interim financial statements of the Company included in such Company SEC Documents (collectively, the “ Financial Statements ”) (i) complied in all material respects with the applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, (ii) were prepared in accordance with United States generally accepted accounting principles (“ GAAP ”) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted under Form 10-Q of the Exchange Act) and (iii) fairly presented in all material respects the financial position and the results of operations and cash flows (subject, in the case of unaudited interim financial statements, to normal and recurring year-end adjustments) of the Company as of the times and for the periods referred to therein.

(b) The Company has heretofore furnished to Parent complete and correct copies of all comment letters from the SEC since January 1, 2005 through the date of this Agreement with respect to any of the Company SEC Documents. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any of the Company SEC Documents.

(c) The Company is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act and the applicable listing and governance rules and regulations of NASDAQ.

(d) The Company maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is reasonably designed to ensure (i) that the Company maintains records that in reasonable detail accurately and fairly reflect its transactions and dispositions of assets, (ii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (iii) that receipts and expenditures are executed only in accordance with authorizations of management and the Board of Directors and (iv) the prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that would have a material effect on the Company’s consolidated financial statements. The Company has evaluated the effectiveness of the Company’s internal control over financial reporting and, to the extent required by applicable Law, presented in any applicable Company SEC Document that is a report on Form 10-K or Form 10-Q or any amendment thereto its conclusions about the effectiveness of the internal control over financial reporting as of the end of the period covered by such report or amendment based on such evaluation. The Company has disclosed, based on the most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Board of Directors (and made available to Parent a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has not identified any material weaknesses in the design or operation of the Company’s internal control over financial reporting.

(e) The Company’s “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the chief executive officer and chief financial officer of the Company required under the Exchange Act with respect to such reports.

(f) As of the date of this Agreement, the Company has not received written notice of any SEC inquiries or investigations or other governmental inquiries or investigations (pending or threatened) in each case regarding any accounting practices of the Company or any malfeasance by any director or executive officer of the Company. Since January 1, 2005 the Company has not conducted any internal investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, general counsel or similar legal officer, the Board or any committee thereof.

(g) Each of the principal executive officer of the Company and the principal financial officer of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act with respect to the Company SEC Documents, and the statements contained in such certifications are true and accurate. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.

(h) The Company is not a party to, nor does it have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among the Company, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand) or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC), where the result, purpose or effect of such contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company in the Company’s published financial statements or other Company SEC Documents.

Section 3.9 Absence of Certain Changes . Except as specifically contemplated by this Agreement, from December 31, 2007 through the date of this Agreement, (a) the Company has conducted its business only in the ordinary course of business consistent with past practice, (b) the Company has not (i) suffered any Company Material Adverse Change or (ii) become aware of any facts or circumstances that would, individually or in the aggregate, reasonably be expected to cause the Company to suffer any Company Material Adverse Change, and (c) the Company has not taken any action that, if taken after the date of this Agreement, would constitute a breach of any of the covenants set forth in Section 5.1 .

Section 3.10 No Undisclosed Liabilities . Except for liabilities and obligations (i) incurred in the ordinary course of business consistent with past practice since December 31, 2007, (ii) that have been discharged or paid in full in the ordinary course of business consistent with past practice since December 31, 2007, (iii) reflected in or reserved against on the most recent balance sheet of the Company prepared in accordance with GAAP and included in the Company SEC Documents filed with the SEC prior to the date of this Agreement, (iv) that arise under this Agreement or (v) that have not had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company has not incurred any liabilities or obligations of any nature, whether or not accrued, contingent, absolute or otherwise and whether or not required to be reflected in the Financial Statements in accordance with GAAP.

Section 3.11 Litigation; Orders . There is no suit, claim, action, charge, proceeding, including, without limitation, arbitration proceeding or alternative dispute resolution proceeding, or investigation pending or, to the knowledge of the Company, threatened against the Company or its businesses, assets or properties, or its officers, directors or employees, in their capacity as such, that would, individually or in the aggregate, reasonably be expected to (i) have a Company Material Adverse Effect or (ii) materially delay the consummation of the Transactions; and the Company does not know of any valid basis for any such suit, claim, action, charge or proceeding. No Order of any Governmental Entity is outstanding against the Company or any of its properties or assets that would, individually or in the aggregate, reasonably be expected to (i) have a Company Material Adverse Effect or (ii) materially delay the consummation of the Transactions. Since January 1, 2005, there have not been any material product liability, manufacturing or design defect, warranty, field repair or other material product-related claims by any third party against the Company (whether based on contract or tort and whether relating to personal injury, including death, property damage or economic loss) arising from (A) services rendered by the Company or (B) the sale, distribution or manufacturing of products, including medical products and devices, by the Company.

Section 3.12 Employee Benefit Plans; ERISA .

(a) Except as expressly contemplated by this Agreement, there exists no employment, consulting, retention, change in control, severance or termination agreement, arrangement or understanding between the Company and any individual current or former employee, officer or director of the Company with respect to which the annual cash, noncontingent payments thereunder exceed $100,000.

(b) Section 3.12(b) of the Company Disclosure Schedule contains a correct and complete list of all (i) “employee pension benefit plans” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)) (sometimes referred to herein as “ Pension Plans ”), including any such Pension Plans that are “multiemployer plans” (as such term is defined in Section 4001(a)(3) of ERISA) (collectively, the “ Multiemployer Pension Plans ”), (ii) material “employee welfare benefit plans” (as defined in Section 3(1) of ERISA), and (iii) all other material benefit plans, policies, programs, agreements or arrangements, including but not limited to, any material bonus, deferred compensation, severance pay, retention, change in control, employment, consulting, pension, profit-sharing, retirement, insurance, stock purchase, stock option, incentive or equity compensation or other fringe benefit plan, program, policy, agreement, arrangement or practice maintained, contributed to or required to be contributed to, by the Company or any trade or business, whether or not incorporated, that, together with the Company would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA or Section 414 of the Code (each, an “ ERISA Affiliate ”), for the benefit of any current or former employees, officers, consultants or directors of the Company, or with respect to which the Company would reasonably have any material liability (collectively, the “ Benefit Plans ”). The Company has delivered or made available to Parent and Purchaser correct and complete copies of (i) each Benefit Plan (including all amendments thereto) or written description of each Benefit Plan that is not otherwise in writing, (ii) the most recent annual report on Form 5500 and all schedules thereto filed with respect to each Benefit Plan, to the extent applicable, (iii) the most recent summary plan description, summary of material modifications and plan prospectus for each Benefit Plan, to the extent applicable, (iv) each current trust agreement, insurance contract or policy, group annuity contract and any other funding arrangement relating to any Benefit Plan, to the extent applicable, (v) the most recent actuarial report, financial statement or valuation report, to the extent applicable and (vi) a current Internal Revenue Service favorable determination letter (or, for any prototype plan, favorable opinion letter), to the extent applicable.

(c) Each Benefit Plan is and has at all times been operated and administered in all material respects in accordance with its terms and in compliance with applicable Law, including but not limited to ERISA and the Code. Each Benefit Plan has been administered in good faith compliance with Section 409A of the Code to the extent applicable.

(d) Each Pension Plan intended to be “qualified” within the meaning of section 401(a) of the Code is the subject of a favorable determination or opinion letter from the Internal Revenue Service as to such Pension Plan’s tax-qualified status under section 401(a) of the Code and as to the tax-exempt status of such Pension Plan’s related trust under section 501(a) of the Code, and, to the knowledge of the Company, no condition exists that would reasonably be expected to materially adversely affect such qualification.

(e) None of the Benefit Plans is, and the Company has never maintained or had an obligation to contribute to (i) a “single employer plan” (as such term is defined in Section 4001(a)(15) of ERISA) subject to Section 412 of the Code or Title IV of ERISA, (ii) a “multiple employer plan” or “multiple employer welfare arrangement” (as such terms are defined in ERISA) or (iii) a funded welfare benefit plan (as such term is defined in Section 419 of the Code). There are no unpaid contributions due prior to the date of this Agreement with respect to any Benefit Plan that are required to have been made under the terms of such Benefit Plan, any related insurance contract or any applicable Law and all contributions due have been timely made.

(f) Neither the Company nor any ERISA Affiliate has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code) or any other breach of fiduciary responsibility with respect to any Benefit Plan that reasonably would be expected to subject the Company to any material tax or penalty.

(g) With respect to any Benefit Plan: (i) no filing, application or other matter is pending with the Internal Revenue Service, the United States Department of Labor or any other Governmental Entity, and (ii) there is no action, suit, audit, investigation or claim pending, or to the Company’s knowledge, threatened or anticipated, other than routine claims for benefits. There is no contract or arrangement, plan or agreement by or with the Company covering any person that, individually or collectively, would give rise to the payment of any amount by the Company that would not be deductible by the Company by reason of Section 280G or Section 162(m) of the Code.

(h) The Company has no obligations to provide any health benefits or other non-pension benefits (whether or not insured) to retired or other former employees, directors or consultants, except as specifically required by Part 6 of Title I of ERISA (“ COBRA ”).

(i) Except as provided by this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, or any termination of employment or service (or other event or occurrence) in connection therewith will (i) entitle any current or former employee, director or consultant of the Company to any payment or benefit (or result in the funding of any such payment or benefit) or result in any forgiveness of indebtedness with respect to any such persons other than benefits arising under applicable law, (ii) increase the amount of any compensation, equity award or other benefits otherwise payable by the Company or (iii) result in the acceleration of the time of payment, funding or vesting of any compensation, equity award or other benefits except as required under Section 411(d)(3) of the Code.

(j) Neither the Company nor any of its ERISA Affiliates has used the services of workers provided by third party contract labor suppliers, temporary employees, “leased employees” (as that term is defined in Section 414(n) of the Code), or individuals who have provided services as independent contractors to an extent that would reasonably be expected to result in the disqualification of any of the Benefit Plans or the imposition of penalties or excise taxes with respect to the Plans by the Internal Revenue Service, the Department of Labor, or the Pension Benefit Guaranty Corporation.

(k) The Company has not made any contributions to any Benefit Plan in the form of Shares.

(l) The Company represents and warrants that it intends that certain payments that have been made or are to be made and certain benefits that have been granted or are to be granted according to employment compensation, severance and other employee benefit plans of the Company, including the Benefit Plans (collectively, the “ Arrangements ”) to certain holders of Company common stock and other securities of the Company (the “ Covered Securityholders ”) and all such amounts payable under the Arrangements (i) are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) are not calculated based on the number of Shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. The Company also represents and warrants that (i) the adoption, approval, amendment or modification of each Arrangement since the discussions relating to the transactions contemplated hereby between the Company and Parent began has been approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of the Company in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto and (ii) the “safe harbor” provided pursuant to Rule 14d-10(d)(2) is otherwise applicable thereto as a result of the taking prior to the execution of this Agreement of all necessary actions by the Company Board of Directors, the Compensation Committee of the Company Board of Directors or its independent directors. A true and complete copy of any resolutions of any committee of the Company Board of Directors reflecting any approvals and actions referred to in the preceding sentence and taken prior to the date of this Agreement has been provided to Parent prior to the execution of this Agreement.

Section 3.13 Taxes .

(a) (i) the Company has duly and timely filed, or will duly and timely file, all Tax Returns required to be filed by it that are due on or before the Closing Date, and each such Tax Return has been, or will be, prepared in compliance with all applicable Laws and is true, correct and complete in all material respects; (ii) the Company has paid or will pay all Taxes shown as due on such returns and all other Taxes due and payable prior to the Closing Date (whether or not shown as due on any Tax Return) except such Taxes as are currently being contested in good faith and for which adequate reserves, as applicable, have been established in the Company’s Financial Statements in accordance with GAAP; (iii) the Financial Statements reflect an adequate reserve for all Taxes payable by the Company for all taxable periods and portions thereof through the date of such Financial Statements; and (iv) the Company has not incurred any liability for Taxes subsequent to the date of such most recent Financial Statements other than in the ordinary course of business.

(b) (i) no Tax Return of the Company is or has since January 1, 2003 been under audit or examination by any Taxing Authority, no notice of such an audit or examination or any other audit or examination with respect to Taxes has been received by the Company; (ii) no deficiencies for Taxes have been claimed, proposed, assessed or threatened against the Company in writing by any Taxing Authority for which adequate reserves have not been established in the Company’s Financial Statements in accordance with GAAP; (iii) there are no lie

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