AGREEMENT AND PLAN OF MERGER BY AND AMONG NYCOMED US INC. PHASE MERGER SUB INC

Exhibit 2.1

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Execution Copy

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

NYCOMED US INC.

PHASE MERGER SUB INC.

and

BRADLEY PHARMACEUTICALS, INC.

Dated as of October 29, 2007

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TABLE OF CONTENTS

ARTICLE I THE MERGER.......................................................... 1

Section 1.01 The Merger............................................... 1

Section 1.02 Closing.................................................. 1

Section 1.03 Effective Time........................................... 1

Section 1.04 Effect of the Merger..................................... 2

Section 1.05 Certificate of Incorporation; Bylaws..................... 2

Section 1.06 Directors and Officers................................... 2

ARTICLE II CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES................. 2

Section 2.01 Conversion of Securities................................. 2

Section 2.02 Surrender of Certificates................................ 3

Section 2.03 Options and Warrants..................................... 5

Section 2.04 Dissenting Shares........................................ 5

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................... 6

Section 3.01 Organization and Qualification........................... 6

Section 3.02 Certificate of Incorporation and Bylaws.................. 7

Section 3.03 Capitalization........................................... 7

Section 3.04 Authority Relative to This Agreement..................... 8

Section 3.05 No Conflict; Required Filings and Consents............... 8

Section 3.06 Permits; Compliance with Laws............................ 9

Section 3.07 SEC Filings; Financial Statements;

Undisclosed Liabilities............................... 10

Section 3.08 Title to Properties..................................... 11

Section 3.09 Absence of Litigation................................... 11

Section 3.10 Employee Benefit Plans.................................. 11

Section 3.11 Labor and Employment Matters............................ 13

Section 3.12 Intellectual Property................................... 13

Section 3.13 Taxes................................................... 14

Section 3.14 Specified Contracts..................................... 14

Section 3.15 Board Approval; Vote Required........................... 15

Section 3.16 Environmental Matters................................... 15

Section 3.17 Insurance............................................... 15

Section 3.18 Brokers................................................. 16

Section 3.19 No Other Information.................................... 16

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB........... 16

Section 4.01 Corporate Organization.................................. 16

Section 4.02 Certificate of Incorporation and Bylaws................. 16

Section 4.03 Authority Relative to this Agreement.................... 16

Section 4.04 No Conflict; Required Filings and Consents.............. 16

Section 4.05 Absence of Litigation................................... 17

Section 4.06 Operations of Merger Sub; Ownership of

Company Common Stock and Company

Class B Common Stock.................................. 17

Section 4.07 Financing............................................... 17

Section 4.08 Solvency................................................ 18

Section 4.09 Brokers................................................. 18

Section 4.10 No Other Information.................................... 18

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TABLE OF CONTENTS

(continued)

Page

Section 4.11 Guaranty................................................ 19

ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER............................. 19

Section 5.01 Conduct of Business by the Company

Pending the Merger.................................... 19

ARTICLE VI COVENANTS OF THE PARTIES.......................................... 21

Section 6.01 Proxy Statement......................................... 21

Section 6.02 Company Stockholders' Meeting........................... 22

Section 6.03 Access to Information; Confidentiality.................. 22

Section 6.04 No Solicitation......................................... 23

Section 6.05 Directors' and Officers' Indemnification and

Insurance............................................ 25

Section 6.06 Employee Benefits Matters............................... 26

Section 6.07 HSR Act Filing.......................................... 27

Section 6.08 Notification of Certain Matters......................... 28

Section 6.09 Further Action; Reasonable Best Efforts................. 29

Section 6.10 Public Announcements.................................... 29

Section 6.11 Solvency Opinion........................................ 29

Section 6.12 Obligations of Merger Sub............................... 29

Section 6.13 Rule 16b-3.............................................. 29

Section 6.14 Financing............................................... 30

Section 6.15 Shareholder Litigation.................................. 31

Section 6.16 Resignations............................................ 31

ARTICLE VII CONDITIONS TO THE MERGER......................................... 31

Section 7.01 Conditions to the Obligations of Each Party............. 31

Section 7.02 Conditions to the Obligations of Parent and Merger Sub.. 31

Section 7.03 Conditions to the Obligations of the Company............ 32

ARTICLE VIII TERMINATION..................................................... 32

Section 8.01 Termination............................................. 32

Section 8.02 Effect of Termination................................... 33

Section 8.03 Fees and Expenses; Termination Fees..................... 34

ARTICLE IX GENERAL PROVISIONS................................................ 35

Section 9.01 Non-Survival of Representations, Warranties

and Agreements........................................ 35

Section 9.02 Notices................................................. 35

Section 9.03 Amendment............................................... 36

Section 9.04 Waiver.................................................. 36

Section 9.05 Certain Definitions..................................... 37

Section 9.06 Severability............................................ 38

Section 9.07 Entire Agreement; Assignment............................ 39

Section 9.08 No Third Party Beneficiaries............................ 39

Section 9.09 Governing Law........................................... 39

Section 9.10 Sole and Exclusive Remedy; Specific

Performance; Submission to Jurisdiction;

No Recourse........................................... 39

Section 9.11 Waiver of Jury Trial.................................... 40

Section 9.12 Headings................................................ 40

Section 9.13 Counterparts............................................ 40

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TABLE OF CONTENTS

(continued)

Exhibit A - Form of Guaranty

Exhibit B - Certificate of Incorporation of Merger Sub

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LIST OF DISCLOSURE SCHEDULE SECTIONS

Section 3.01 Subsidiaries

Section 3.03(a) Stock Options

Section 3.05(a) Required Consents

Section 3.07(c) Liabilities

Section 3.08 Leases

Section 3.09 Litigation

Section 3.10(a) Employee Benefit Plans

Section 3.10(c) Excess Parachute Payments; Excise Taxes

Section 3.10(e) Post-Termination Benefits

Section 3.12(a) Intellectual Property Exceptions

Section 3.12(b) Scheduled Intellectual Property

Section 3.13(c) Taxes/Audits; Proceedings

Section 3.17 Insurance Policies

Section 5.01 Conduct of Business

Section 9.05(a) Persons with Knowledge

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INDEX OF DEFINED TERMS

Acceptable Confidentiality Agreements ....................... Section 6.04(g)

Acquisition Proposal ........................................ Section 6.04(g)

Action ...................................................... Section 3.09

Affiliate ................................................... Section 9.05(a)

Agreement ................................................... Recitals

Antitrust Laws .............................................. Section 6.07(b)

Balance Sheet ............................................... Section 3.07(c)

Beneficial owner ............................................ Section 9.05(a)

Business Day ................................................ Section 9.05(a)

Capitalization Date ......................................... Section 3.03(a)

Certificate of Merger ....................................... Section 1.03

Certificates ................................................ Section 2.01(a)

Change in Board Recommendation .............................. Section 6.04(c)

Closing ..................................................... Section 1.02

Closing Date ................................................ Section 1.02

Code ........................................................ Section 3.10(c)

Company Board ............................................... Recitals

Company Class B Common Stock ................................ Section 2.01(a)

Company Common Stock ........................................ Section 2.01(a)

Company Material Adverse Effect ............................. Section 9.05(a)

Company Permits ............................................. Section 3.06(a)

Company Preferred Stock ..................................... Section 3.03(a)

Company Stock Option Plans .................................. Section 2.03(a)

Company Stock Options ....................................... Section 2.03(a)

Company Stockholders' Meeting ............................... Section 6.02

Company Subsidiary .......................................... Section 2.01(b)

Company Termination Fee ..................................... Section 8.03(d)

Company Warrants ............................................ Section 2.03(a)

Confidentiality Agreement ................................... Section 6.03(c)

Contract .................................................... Section 3.05(a)

Control ..................................................... Section 9.05(a)

Copyright Office ............................................ Section 3.12(b)

Credit Agreement ............................................ Section 9.05(a)

DGCL ........................................................ Section 1.01

Disclosure Schedule ......................................... Article III

Dissenting Shares ........................................... Section 2.04(a)

Effective Time .............................................. Section 1.03

Environmental Law ........................................... Section 9.05(a)

Equity Financing ............................................ Section 4.07

Equity Financing Commitments ................................ Section 4.07

ERISA ....................................................... Section 3.10(a)

ERISA Affiliate ............................................. Section 3.10(b)

Exchange Act ................................................ Section 3.05(b)

Exchange Fund ............................................... Section 2.02(b)

Expenses .................................................... Section 8.03(a)

Expiration Date ............................................. Section 8.01(b)

FDA ......................................................... Section 3.05(b)

Financing ................................................... Section 4.07

Financing Commitments ....................................... Section 4.07

Form 10-K ................................................... Section 3.14(b)

GAAP ........................................................ Section 3.07(b)

Governmental Authority ...................................... Section 3.05(b)

Grant Date .................................................. Section 3.03(b)

Guarantor ................................................... Recitals

Guaranty .................................................... Recitals

Hazardous Substance ......................................... Section 9.05(a)

HSR Act ..................................................... Section 3.05(b)

Indemnified Parties ......................................... Section 6.05(a)

Intellectual Property ....................................... Section 3.12(a)

IRS ......................................................... Section 3.10(a)

ISRA ........................................................ Section 3.05(b)

Knowledge of the Company .................................... Section 9.05(a)

Law ......................................................... Section 3.05(a)

Leases ...................................................... Section 3.08

Liabilities ................................................. Section 3.07(c)

Liens ....................................................... Section 9.05(a)

Merger ...................................................... Recitals

Merger Consideration ........................................ Section 2.01(a)

Merger Sub. ................................................. Recitals

Multiemployer Plan .......................................... Section 3.10(b)

NJDEP ....................................................... Section 7.03(d)

Notice of Change in Board Recommendation .................... Section 6.04(e)

Offering Materials .......................................... Section 6.14(a)

Option Consideration ........................................ Section 2.03(a)

Parent ...................................................... Recitals

Paying Agent ................................................ Section 2.02(a)

Person ...................................................... Section 9.05(a)

Plans ....................................................... Section 3.10(a)

Proxy Statement ............................................. Section 3.05(b)

PTO ......................................................... Section 3.12(b)

Purchaser Welfare Benefit Plans ............................. Section 6.06(c)

Regulatory Authority ........................................ Section 9.05(a)

Representatives ............................................. Section 6.03(a)

Sarbanes-Oxley Act .......................................... Section 3.06(c)

Scheduled Intellectual Property ............................. Section 3.12(b)

SEC ......................................................... Article III

SEC Reports ................................................. Section 3.07(a)

Section 262 ................................................. Section 2.04(a)

Securities Act .............................................. Section 3.07(a)

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INDEX OF DEFINED TERMS

(continued)

Shares ...................................................... Section 2.01(a)

Special Committee ........................................... Recitals

Specified Contract .......................................... Section 3.14(b)

Stockholder Approval ........................................ Section 3.15(b)

subsidiaries ................................................ Section 9.05(a)

subsidiary .................................................. Section 9.05(a)

Substantial Detriment ....................................... Section 6.07(c)

Superior Proposal ........................................... Section 6.04(g)

Surviving Corporation ....................................... Section 1.01

Tax ......................................................... Section 9.05(a)

Tax Returns ................................................. Section 9.05(a)

Taxes ....................................................... Section 9.05(a)

Termination Date ............................................ Section 8.01

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AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, is made as of October 29, 2007 (the

"Agreement"), by and among NYCOMED US INC., a company organized under the laws

of New York ("Parent"), PHASE MERGER SUB INC., a Delaware corporation and a

wholly-owned subsidiary of Parent ("Merger Sub"), and BRADLEY PHARMACEUTICALS,

INC., a Delaware corporation (the "Company").

WHEREAS, the board of directors of the Company (the "Company Board")

acting upon the recommendation of the Special Committee of the Company Board

formed for the purpose of evaluating strategic alternatives for the Company and

making a recommendation to the Company Board regarding this Agreement and the

Merger (the "Special Committee") has (i) determined that the merger of Merger

Sub with and into the Company, upon the terms and provisions of, and subject to

the conditions set forth in, this Agreement (the "Merger") is advisable and in

the best interests of the Company's stockholders, (ii) approved this Agreement

and the Merger and the other transactions contemplated hereby and (iii)

recommended approval and adoption of this Agreement and the Merger by the

Company's stockholders;

WHEREAS, the respective boards of directors of each of Parent and Merger

Sub deem it in the best interests of their respective stockholders to consummate

the Merger, and such boards of directors have approved this Agreement and the

Merger and declared the advisability of this Agreement and the Merger; and

WHEREAS, concurrently with the execution of this Agreement, and as a

condition and inducement to the Company's willingness to enter into this

Agreement, Nycomed S.C.A., SICAR (the "Guarantor") has provided a guaranty (the

"Guaranty") in favor of the Company, in the form attached hereto as Exhibit A.

NOW, THEREFORE, in consideration of the foregoing and the representations,

warranties, covenants and agreements herein contained, and intending to be

legally bound hereby, Parent, Merger Sub and the Company hereby agree as

follows:

ARTICLE I

THE MERGER

Section 1.01 The Merger. Upon the terms and subject to the conditions set

forth in this Agreement, and in accordance with the General Corporation Law of

the State of Delaware (the "DGCL"), at the Effective Time, (a) Merger Sub shall

be merged with and into the Company and (b) the separate corporate existence of

Merger Sub shall cease and the Company shall continue as the surviving

corporation of the Merger (the "Surviving Corporation").

Section 1.02 Closing. Unless this Agreement shall have been terminated in

accordance with Section 8.01, and subject to the satisfaction or waiver of the

conditions set forth in ARTICLE VII, the closing of the Merger (the "Closing")

will take place at 10:00 a.m. (local time) at the offices of Morrison & Foerster

LLP, 1290 Avenue of the Americas, New York, NY 10104 on the third business day

following the date on which the conditions set forth in Sections 7.01(a) and (b)

are satisfied or waived in accordance with this Agreement or at such other time,

date or place as Parent and the Company may agree (the date on which the Closing

occurs, the "Closing Date").

Section 1.03 Effective Time. Upon the terms and subject to the conditions set

forth in this Agreement, on the Closing Date, the parties hereto shall file a

certificate of merger (the "Certificate of

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Merger") in such form as is required by, and executed and acknowledged in

accordance with, the relevant provisions of the DGCL. The Merger shall become

effective at such date and time as the Certificate of Merger is duly filed with

the Secretary of State of the State of Delaware or at such subsequent date and

time as Merger Sub and the Company shall agree and specify in the Certificate of

Merger. The time at which the Merger becomes effective is referred to in this

Agreement as the "Effective Time".

Section 1.04 Effect of the Merger. At and after the Effective Time, the

effects of the Merger shall be as provided in the DGCL, including Section 259

thereof.

Section 1.05 Certificate of Incorporation; Bylaws.

(a) At the Effective Time, the certificate of incorporation of the

Company, as in effect immediately prior to the Effective Time, shall be amended

as of the Effective Time to read in its entirety as set forth in Exhibit B

attached hereto and, as so amended, shall be the certificate of incorporation of

the Surviving Corporation until thereafter amended in accordance with the

provisions thereof and as provided by Law.

(b) At the Effective Time, the bylaws of Merger Sub, as in effect

immediately prior to the Effective Time, shall be the bylaws of the Surviving

Corporation until thereafter amended as provided by Law, the certificate of

incorporation of the Surviving Corporation and such bylaws.

Section 1.06 Directors and Officers. The directors of Merger Sub

immediately prior to the Effective Time shall be the initial directors of the

Surviving Corporation, each to hold office in accordance with the certificate of

incorporation and bylaws of the Surviving Corporation, and the officers of the

Company immediately prior to the Effective Time shall be the initial officers of

the Surviving Corporation, each to hold office in accordance with the

certificate of incorporation and bylaws of the Surviving Corporation, in each

case until their respective successors are duly elected or appointed and

qualified or until the earlier of their death, resignation or removal.

ARTICLE II

CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES

Section 2.01 Conversion of Securities. At the Effective Time, by virtue of

the Merger and without any action on the part of Parent, Merger Sub, the Company

or the holders of any of the following securities:

(a) Conversion of Company Common Stock and Company Class B Common

Stock. Each share of common stock, par value $0.01 per share, of the Company

(the "Company Common Stock"), and each share of Class B Common Stock, par value

$0.01 per share, of the Company (the "Company Class B Common Stock"; all issued

and outstanding shares of Company Common Stock and Company Class B Common Stock

being hereinafter collectively referred to as the "Shares") issued and

outstanding immediately prior to the Effective Time (other than any Shares to be

cancelled pursuant to Section 2.01(b) and any Dissenting Shares) shall be

cancelled and shall be converted automatically into the right to receive $20.00

in cash, without interest (the "Merger Consideration"), payable upon surrender,

in the manner provided in Section 2.02, of the certificate (collectively, the

"Certificates") that formerly evidenced such Shares.

(b) Cancellation of Treasury Stock. Each share of Company Common

Stock or Company Class B Common Stock held by the Company as treasury stock, and

each share of Company Common Stock or Company Class B Common Stock held by any

direct or indirect subsidiary of the

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Company (a "Company Subsidiary") immediately prior to the Effective Time shall

automatically be cancelled and cease to exist without any conversion thereof and

no consideration shall be paid with respect thereto.

(c) Capital Stock of Merger Sub. Each share of common stock, par

value $0.01 per share, of Merger Sub issued and outstanding immediately prior to

the Effective Time shall be converted into and become one (1) validly issued,

fully paid and nonassessable share of common stock, par value $0.01 per share,

of the Surviving Corporation. Following the Effective Time, each certificate

evidencing ownership of shares of Merger Sub common stock shall evidence

ownership of such shares of the Surviving Corporation.

(d) Adjustments. If, between the date of this Agreement and the

Effective Time, the number of Shares is changed into a different number of

shares or a different class, by reason of any reclassification,

recapitalization, stock split, stock dividend, subdivision, combination,

exchange of shares, rights issuance or similar event, other than pursuant to the

Merger and in accordance with this Agreement, the Merger Consideration shall be

correspondingly adjusted, without duplication, to reflect such change.

Section 2.02 Surrender of Certificates.

(a) Paying Agent. Prior to the Effective Time, Parent shall (i)

select a bank or trust company, satisfactory to the Company in its reasonable

discretion, to act as the paying agent in the Merger (the "Paying Agent") and

(ii) enter into a paying agent agreement with the Paying Agent, the terms and

conditions of which are satisfactory to the Company in its reasonable

discretion.

(b) Exchange Fund. At the Effective Time, on the Closing Date,

Parent shall deposit (or cause to be deposited) funds with the Paying Agent in

amounts sufficient for the payment of the aggregate Merger Consideration payable

under Section 2.01(a). Such funds deposited with the Paying Agent are referred

to as the "Exchange Fund".

(c) Payment Procedures.

(i) Letter of Transmittal. As promptly as practicable after

the Effective Time, Parent shall cause the Paying Agent to mail to each

holder of record of a Share as of immediately prior to the Effective Time

(A) a letter of transmittal in customary form, specifying that delivery

shall be effected, and risk of loss and title to such holder's Shares

shall pass, only upon proper delivery of the Certificates representing

such Shares to the Paying Agent and (B) instructions for surrendering such

Certificates.

(ii) Surrender of Certificates. Upon surrender of a

Certificate for cancellation to the Paying Agent, together with a duly

executed letter of transmittal and any other documents reasonably required

by the Paying Agent, the holder of that Certificate shall be entitled to

receive, and the Paying Agent shall pay in exchange therefor, the Merger

Consideration payable in respect of the number of Shares evidenced by that

Certificate. Any Certificates so surrendered shall be cancelled

immediately. No interest shall accrue or be paid on any amount payable

upon surrender of Certificates.

(iii) Unregistered Transferees. If any Merger Consideration is

to be paid to a Person other than the Person in whose name the surrendered

Certificate is registered, then the Merger Consideration may be paid to

such a transferee so long as (A) the surrendered Certificate is

accompanied by all documents required to evidence and effect that transfer

and (B) the Paying

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Agent shall be entitled to deduct any applicable transfer Taxes from the

Merger Consideration in accordance with the provisions of Section 2.02(e),

unless the Person requesting such payment establishes to the satisfaction

of the Paying Agent that any such Taxes have already been paid or are not

applicable.

(iv) No Other Rights. Until surrendered in accordance with

this Section 2.02(c), each Certificate shall be deemed, from and after the

Effective Time, to represent only the right to receive the applicable

Merger Consideration. Any Merger Consideration paid upon the surrender of

any Certificate shall be deemed to have been paid in full satisfaction of

all rights pertaining to that Certificate and the shares of Company Common

Stock or Company Class B Common Stock formerly represented by it.

(d) No Further Transfers. At the Effective Time, the stock transfer

books of the Company shall be closed and there shall be no further registration

of transfers of the shares of Company Common Stock or Company Class B Common

Stock that were outstanding immediately prior to the Effective Time.

(e) Withholding Rights. Each of the Paying Agent, the Surviving

Corporation, the Company, Parent and Merger Sub shall be entitled to deduct and

withhold from the consideration otherwise payable pursuant to this Agreement to

any holder of Shares or Company Stock Options such amounts for Taxes as it is

required to deduct and withhold with respect to such payment under all

applicable Tax Laws and pay such withholding amount over to the appropriate

Governmental Authority. To the extent that amounts are so withheld by the Paying

Agent, the Surviving Corporation, the Company, Parent or Merger Sub, as the case

may be, such withheld amounts shall be treated for all purposes of this

Agreement as having been paid to the holder of the Shares or Company Stock

Options, as the case may be, in respect of which such deduction and withholding

was made by the Paying Agent, the Surviving Corporation, the Company, Parent or

Merger Sub, as the case may be.

(f) No Liability. None of Parent, the Surviving Corporation or the

Paying Agent shall be liable to any holder of Certificates for any amount

properly paid to a public official under any applicable abandoned property,

escheat or similar Laws.

(g) Investment of Exchange Fund. As directed by Parent, the Exchange

Fund shall be invested by the Paying Agent in (i) direct obligations of the

United States of America or (ii) obligations for which the full faith and credit

of the United States of America is pledged to provide for payment of all

principal and interest. Any interest and other income resulting from such

investment shall become a part of the Exchange Fund and shall inure to Parent

for Tax purposes, and any amounts in excess of the amounts payable under Section

2.01(a) shall be paid to Parent upon termination of the Exchange Fund pursuant

to Section 2.02(h); provided, however, that (i) no such investment or losses

thereon shall affect the Merger Consideration payable to the holders of Shares

and (ii) promptly following any losses that cause the Exchange Fund to then hold

less than the aggregate Merger Consideration payable in respect of Shares for

which payment shall not theretofore have been made, Parent shall promptly

provide additional funds to the Paying Agent for the benefit of the stockholders

of the Company to the extent that such losses have so caused the Exchange Fund

to hold less than the aggregate Merger Consideration payable in respect of such

Shares for which payment has not theretofore been made. The Exchange Fund shall

not be used for any purpose other than to fund payments due pursuant to Section

2.01.

(h) Termination of Exchange Fund. Without limiting Parent's right to

receive interest and other income in respect of the Exchange Fund as described

in Section 2.02(g), any portion of the Exchange Fund that remains unclaimed by

the holders of Certificates twelve months after the

4

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Effective Time shall be delivered by the Paying Agent to Parent upon demand.

Thereafter, any holder of Certificates who has not complied with this ARTICLE II

shall look only to Parent for payment of the applicable Merger Consideration.

(i) Lost, Stolen or Destroyed Certificates. If any Certificate is

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 the posting

by such Person of a bond in the form and amount reasonably required by Parent as

indemnity against any claim that may be made against Parent on account of the

alleged loss, theft or destruction of such Certificate, the holder thereof shall

be entitled to receive, and the Paying Agent shall pay in exchange therefor, the

applicable Merger Consideration to such Person in exchange for such lost, stolen

or destroyed Certificate.

Section 2.03 Options and Warrants. (a) Except as otherwise agreed prior to

the Effective Time by Parent and the Company, immediately prior to the Effective

Time, (i) all options to purchase shares of Company Common Stock (the "Company

Stock Options") granted under any plan, arrangement or agreement (the "Company

Stock Option Plans") shall be cancelled by the Company and shall no longer be

outstanding thereafter. In consideration for such cancellation (whether or not

the Company Stock Option was then vested and exercisable), the holder thereof

shall thereupon be entitled to receive, within 5 days after the Effective Time,

a cash payment without interest from the Surviving Corporation in respect of

such cancellation in an amount (if any) equal to the product of (x) the number

of shares of Company Common Stock subject to such Company Stock Option, whether

or not then vested and exercisable, and (y) the excess, if any, of the Merger

Consideration over the exercise price per share of Company Common Stock subject

to such Company Stock Option (the "Option Consideration"), reduced by any Tax

required to be withheld with respect to such payment in accordance with the

provisions of Section 2.02(e); and (ii) the Company shall take all actions

reasonably requested by Parent and shall use its reasonable best efforts to

cause to be exercised all outstanding warrants to purchase shares of Company

Common Stock (the "Company Warrants") that are not exercised prior to the

Effective Time.

(b) Prior to the Effective Time, the Company shall provide notice to

each holder of Company Stock Options describing the treatment of such Company

Stock Options under this Section 2.03.

(c) Prior to the Effective Time, the Company, in consultation with

Parent, shall use its reasonable best efforts to obtain any necessary consents

to give effect to the treatment of Company Stock Options as contemplated by

Section 2.03(a), to the extent that such treatment is not expressly provided for

by the terms of the applicable Company Stock Option Plan, which consents may be

deemed obtained upon acceptance of the cash payments contemplated by Section

2.03(a) by the holders of such Company Stock Options if such deemed consent is

described in the notice required under this Section 2.03 to such holders that

acceptance of such payments shall be treated as consent.

Section 2.04 Dissenting Shares.

(a) Notwithstanding any provision of this Agreement to the contrary,

any shares of Company Common Stock or Company Class B Common Stock outstanding

immediately prior to the Effective Time for which the holder thereof (i) has not

voted in favor of the Merger or consented to it in writing and (ii) has demanded

the appraisal of such shares in accordance with, and has complied in all

respects with, Section 262 of the DGCL (collectively, the "Dissenting Shares")

shall not be converted into the right to receive the Merger Consideration in

accordance with Section 2.01(a). At the Effective Time, (x) all Dissenting

Shares shall be cancelled and cease to exist and (y) the holder or holders of

Dissenting Shares shall be entitled only to such rights as may be granted to

them under Section 262 of the DGCL ("Section 262").

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(b) Notwithstanding the provisions of this Section 2.04, if any

holder of Dissenting Shares effectively withdraws or loses such appraisal rights

(through failure to perfect such appraisal rights or otherwise), then that

holder's shares (i) shall no longer be deemed to be Dissenting Shares and (ii)

shall be treated as if they had been converted automatically at the Effective

Time into the right to receive the Merger Consideration, without interest

thereon, upon surrender of the Certificate formerly representing such shares in

accordance with Section 2.02. In such event, if the Exchange Fund shall then

remain in place, Parent shall promptly deposit or cause the Surviving

Corporation to deposit in the Exchange Fund the aggregate amount of Merger

Consideration in respect of such Dissenting Shares.

(c) The Company shall give Parent (i) prompt notice of any demands

for appraisal of any shares of Company Common Stock or Company Class B Common

Stock, the withdrawals of such demands, and any other instrument served on the

Company under the provisions of Section 262 and (ii) the right to participate in

all negotiations and proceedings with respect to demands for appraisal under the

DGCL. The Company shall not offer or agree to make or make any payment with

respect to any demands for appraisal or offer to settle or settle any such

demands without the prior written consent of Parent.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Disclosure Schedule attached hereto (the "Disclosure Schedule") sets

forth, among other things, items the disclosure of which is necessary either in

response to an express disclosure requirement contained in a provision hereof or

as an exception to one or more of the Company's representations or warranties

contained in this ARTICLE III, or to one or more of the Company's covenants

contained in Section 5.01; provided, however, that, notwithstanding anything in

this Agreement to the contrary, the mere inclusion of an item in the Disclosure

Schedule as an exception to a representation or warranty or covenant shall not

be deemed an admission by the Company that such item represents a material

exception or material fact, event or circumstance or that such item would or

would reasonably be expected to, individually or in the aggregate, have a

Company Material Adverse Effect. Notwithstanding that each disclosure set forth

in the Disclosure Schedule is identified by reference to, or has been grouped

under a heading referring to, a specific individual section of this Agreement,

such disclosure shall be deemed a qualification or exception to such section and

also to any other sections to which its relevance is reasonably apparent on its

face.

Except as set forth in the Disclosure Schedule and except as disclosed in

any forms, reports, statements, schedules, certifications and other documents

(including exhibits and any amendments) filed by the Company with, or furnished

by the Company to, the Securities and Exchange Commission ("SEC") since January

1, 2007, the Company represents and warrants to Parent and Merger Sub as set

forth in 3.01 through Section 3.19 that:

Section 3.01 Organization and Qualification. Each of the Company and the

Company Subsidiaries is a corporation duly organized, validly existing and in

good standing under the laws of the jurisdiction of its organization and has the

requisite corporate power and authority to own, lease and operate its properties

and to carry on its business as it is now being conducted, except where the

failure to be in good standing would not, individually or in the aggregate, have

a Company Material Adverse Effect. The Company and each of the Company

Subsidiaries is duly qualified or licensed as a foreign corporation to do

business and is in good standing in each jurisdiction where the character of the

properties owned, leased or operated by it or the nature of its business makes

such qualification or licensing necessary, except where the failure to be so

qualified or licensed and in good standing would not, individually or in the

aggregate, have a Company Material Adverse Effect. A true and complete list of

all of the Company Subsidiaries, together with the jurisdiction of incorporation

of each such

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Subsidiary, is set forth in Section 3.01 of the Disclosure Schedule. Except as

set forth in Section 3.01 of the Disclosure Schedule, the Company has made

available to Parent complete and accurate copies of the minutes of all meetings

of the shareholders of the Company and each of the Company and the Company

Subsidiaries and the committees of each of such Boards of Directors (other than

the Special Committee), in each case held since January 1, 2004 and prior to the

date hereof.

Section 3.02 Certificate of Incorporation and Bylaws. The Company has made

available to Parent a complete and correct copy of the certificate of

incorporation and the bylaws, as in effect as of the date of this Agreement, of

the Company and each Company Subsidiary. Such certificates of incorporation and

bylaws are in full force and effect.

Section 3.03 Capitalization.

(a) The authorized capital stock of the Company consists of (i)

26,400,000 shares of Company Common Stock, (ii) 900,000 shares of Company Class

B Common Stock, and (iii) 2,000,000 of Preferred Stock, par value $0.01 per

share ("Company Preferred Stock"). As of June 30, 2007 (the "Capitalization

Date"), (A) 17,392,974 shares of Company Common Stock were issued and

outstanding, all of which are duly authorized, validly issued, fully paid and

nonassessable and were issued free of preemptive (or similar) rights, (B)

429,752 shares of Company Class B Common Stock were issued and outstanding, (C)

6,000 shares of Company Common Stock were reserved for issuance under

outstanding warrants, (D) no shares of Company Class B Common Stock were held by

the Company as treasury stock, (E) no shares of Company Common Stock or Company

Class B Common Stock were held by the Company Subsidiaries, (F) 877,058 shares

of Company Common Stock were held by the Company as treasury stock, (G) no

shares of Company Preferred Stock were issued and outstanding, and (H) 1,995,258

shares of Company Common Stock were reserved for future issuance in connection

with the Company Stock Option Plans (including 1,190,402 shares reserved

pursuant to outstanding Company Stock Options). Section 3.03(a) of the

Disclosure Schedule sets forth, as of the Capitalization Date, a summary of

Company Stock Options and other rights to purchase or receive shares of capital

stock of the Company. Since the Capitalization Date through the date of this

Agreement, other than in connection with the issuance of Shares pursuant to the

exercise of Company Stock Options outstanding as of the Capitalization Date and

set forth in Section 3.03(a) of the Disclosure Schedule, there has been no

change in the number of shares of outstanding or reserved capital stock of the

Company or the number of outstanding Company Stock Options.

(b) The Company has made available to Parent a true and complete

copy of each Company Stock Option Plan. Except as set forth in Section 3.03(a)

of the Disclosure Schedule, there are no (i) subscriptions, calls, contracts,

options, warrants or other rights, agreements, arrangements, understandings,

restrictions or commitments of any character to which the Company or any Company

Subsidiary is a party or by which the Company or any Company Subsidiary is bound

relating to the issued or unissued capital stock of the Company or any Company

Subsidiary or obligating the Company or any Company Subsidiary to issue or sell

any shares of capital stock of the Company or any Company Subsidiary, (ii)

securities of the Company or securities convertible, exchangeable or exercisable

for shares of capital stock of the Company or any Company Subsidiary, or (iii)

equity equivalents, stock appreciation rights or phantom stock, ownership

interests in the Company or any Company Subsidiary or similar rights. All shares

of Company Common Stock subject to issuance as set forth in Section 3.03(a) are

duly authorized and, upon issuance on the terms and conditions specified in the

instruments pursuant to which they are issuable, will be validly issued, fully

paid and nonassessable and free of preemptive (or similar) rights. With respect

to Company Stock Options, (i) each grant of a Company Stock Option was duly

authorized no later than the date on which the grant of such Company Stock

Option was by its terms to be effective (the "Grant Date") by all necessary

corporate action, including, as applicable, approval by the Board of Directors

of the Company (or a duly constituted and authorized committee thereof) and any

7

<PAGE>

required shareholder approval by the necessary number of votes or written

consents, and the award agreement governing such grant (if any) was duly

executed and delivered by each party thereto, (B) each such grant was made in

accordance with the terms of the applicable Company Stock Option Plan, the

Exchange Act and all other applicable Laws, including the rules and regulations

of the New York Stock Exchange, (C) the per share exercise price of each Company

Stock Option was equal to or greater than the fair market value of a share of

Company Common Stock on the applicable Grant Date and (D) each such grant was

properly accounted for in accordance with GAAP in the Company's audited

financial statements included in the SEC Reports and disclosed in the SEC

Reports in accordance with the Exchange Act and all other applicable Laws.

(c) Each outstanding share of capital stock of each Company

Subsidiary is duly authorized, validly issued, fully paid and nonassessable and

was issued free of preemptive (or similar) rights, and each such share is owned

by the Company and/or by one (1) or more wholly-owned Company Subsidiaries, free

and clear of all Liens and free of any restriction on the right to vote, sell or

otherwise dispose of such capital stock or other equity interests. Except for

the capital stock of each of the Company Subsidiaries, the Company does not own,

directly or indirectly, any capital stock of, or other voting securities or

equity interests in, any corporation, partnership, joint venture, association or

other entity.

Section 3.04 Authority Relative to This Agreement. The Company has all

necessary corporate power and authority to execute and deliver this Agreement,

to perform its obligations hereunder and to consummate the Merger. The

execution, delivery and performance of this Agreement by the Company and the

consummation by the Company of the Merger have been duly and validly authorized

by all necessary corporate action by the Company Board and the Special

Committee, and no other corporate actions on the part of the Company are

necessary to authorize this Agreement or to consummate the Merger (other than

the adoption of this Agreement by the affirmative vote of the holders of a

majority of the voting power of the then outstanding shares of Company Common

Stock and Company Class B Common Stock, voting together as a class, entitled to

vote thereon and the filing of the Certificate of Merger). This Agreement has

been duly and validly executed and delivered by the Company and, assuming the

due authorization, execution and delivery by Parent and Merger Sub, constitutes

a legal, valid and binding obligation of the Company, enforceable against the

Company in accordance with its terms, subject to the effect of any general

principles of equity, whether applied in a court of law or a court of equity,

and by bankruptcy, insolvency and similar Laws affecting creditors' rights and

remedies generally, including all Laws relating to fraudulent transfers.

Section 3.05 No Conflict; Required Filings and Consents.

(a) The execution and delivery of this Agreement by the Company do

not, and the performance of this Agreement by the Company and the consummation

by the Company of the Merger will not (i) contravene, conflict with, violate or

result in a breach of the certificate of incorporation or bylaws of the Company,

(ii) assuming that all consents, approvals and other authorizations described in

Section 3.05(b) have been obtained and that all filings and other actions

described in Section 3.05(b) have been made or taken, contravene, conflict with

or violate any U.S. federal, state or local or foreign statute, law, ordinance,

regulation, rule, code, executive order, judgment, decree or other order ("Law")

applicable to the Company or any Company Subsidiary, except for such

contraventions, conflicts or violations that would not, individually or in the

aggregate, have a Company Material Adverse Effect, or (iii) assuming receipt of

the consents from the non-Company parties to the Contracts (as hereinafter

defined) described in Section 3.05(a) of the Disclosure Schedule, result in any

material breach or violation of or constitute a default under (with or without

notice or lapse of time or both), or result in a loss of a material benefit

under, give rise to a material obligation under, give to others any right of

termination, amendment, acceleration or cancellation of, or result in the

creation of a Lien on any

8

<PAGE>

property or asset of the Company or any Company Subsidiary pursuant to any note,

bond, mortgage, indenture, contract, lease, license, permit, franchise or other

binding commitment, instrument or obligation (each, a "Contract") or under any

Law or Permit, in each case, to which the Company or any Company Subsidiary is a

party or by which the Company or a Company Subsidiary is bound or affected,

except for any such conflicts, violations, breaches, defaults or other

occurrences that would not, individually or in the aggregate, have a Company

Material Adverse Effect.

(b) The execution and delivery of this Agreement by the Company do

not, and the performance of this Agreement by the Company and the consummation

by the Company of the Merger do not and will not, require any consent, approval,

authorization or permit of, or filing with or notification to, any

supranational, national, provincial, federal, state or local government,

regulatory or administrative authority, or any court, agency, commission,

tribunal, or judicial or arbitral body or self-regulated entity, whether

domestic or foreign, (a "Governmental Authority"), except for (i) applicable

disclosure requirements of the Securities Exchange Act of 1934, as amended (the

"Exchange Act"), (ii) the pre-merger notification requirements of the

Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR

Act"), and the competition or merger control Laws of any other applicable

jurisdiction, (iii) the filing with, and clearance by, the SEC of a proxy

statement relating to the adoption of this Agreement by the Company's

stockholders (as amended or supplemented from time to time, the "Proxy

Statement"), (iv) any filings required by, any approvals required under and any

other applicable requirements of, the rules and regulations of the New York

Stock Exchange, (v) the filing and recordation of appropriate merger documents

as required by the DGCL and appropriate documents with the relevant authorities

of other states in which the Company is qualified to do business, (vi) the

filing of any required applications and notices with the U.S. Food and Drug

Administration ("FDA") or any other federal, state, local or foreign

Governmental Authority that is concerned with the marketing, sale, use, handling

and control, safety, efficacy, reliability or manufacturing of drug or

biological products or medical devices, (vii) applicable requirements, if any,

of the Industrial Site Recovery Act of the State of New Jersey, N.J.S.A. 13:1k 6

et seq., as amended ("ISRA"), and (viii) such consents, approvals,

authorizations, permits, actions, notifications or filings, the failure of which

to be made or obtained would not, individually or in the aggregate, have a

Company Material Adverse Effect.

Section 3.06 Permits; Compliance with Laws.

(a) Except as would not, individually or in the aggregate, have a

Company Material Adverse Effect, (i) each of the Company and each Company

Subsidiary is in possession of all franchises, grants, authorizations, licenses,

permits, easements, variances, exceptions, consents, certificates, approvals and

orders of any Governmental Authority necessary for each such entity to own,

lease and operate its properties or to carry on its business as it is now being

conducted (the "Company Permits"), (ii) all such Company Permits are in full

force and effect, (iii) no default or violation has occurred under any such

Company Permit and no notice of a default or violation has been received from

any Governmental Authority and (iv) neither the Company nor any Company

Subsidiary has received any written notification from any Governmental Authority

threatening to revoke, suspend or cancel any such Company Permit.

(b) Each of the Company and each Company Subsidiary is, and at all

times since January 1, 2007, has been, in compliance with all Company Permits

and all Laws applicable to such entity or by which any property or asset of such

entity is bound or affected, and has not received any written notice of any

violation of any such Law, except as would not, individually or in the

aggregate, have a Company Material Adverse Effect.

(c) The Company has made all certifications and statements required

by the Sarbanes-Oxley Act of 2002 and the related rules and regulations

promulgated thereunder (the "Sarbanes-

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<PAGE>

Oxley Act") with respect to the Company's filings pursuant to the Exchange Act.

The Company has established and maintains disclosure controls and procedures (as

defined in Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 of the

Exchange Act.

(d) The Company has designed a system of internal accounting control

sufficient to comply, in all material respects, with all legal and accounting

requirements applicable to the Company. The Company and the Company Subsidiaries

have disclosed, based on their most recent evaluation of internal controls, to

the Company's and Company Subsidiaries' outside auditors and the audit committee

of the board of directors of the Company and Company Subsidiaries, (A) all

significant deficiencies and material weaknesses in the design or operation of

its internal controls over financial reporting (as defined in Rule 13a-15(f) of

the Exchange Act) that are reasonably likely to adversely affect in any material

respect the Company's and Company Subsidiaries' 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 or the Company Subsidiaries' internal controls over

financial reporting.

(e) Since January 1, 2007, except as would not, individually or in

the aggregate, have a Company Material Adverse Effect, (i) the Company and the

Company Subsidiaries have not received any warning letters, notice of adverse

findings, or similar documents that assert a lack of substantial compliance with

any applicable Laws, orders, or regulatory requirements that have not been fully

resolved to the satisfaction of the FDA or any other Regulatory Authorities, as

applicable, and none of the Company and the Company Subsidiaries has knowledge

(or has been notified in writing by a third party) of any pending regulatory

action, investigation or inquiry of any sort (other than non-material routine or

periodic inspections or reviews) against any of the Company or the Company

Subsidiaries; and (ii) there have been no product recalls, warnings,

notifications or safety alerts conducted or issued by the Company or the Company

Subsidiaries, the FDA or any other Regulatory Authorities or otherwise with

respect to the Company's and the Company Subsidiaries' products, and none of the

foregoing has been requested or demanded by the FDA or any other Regulatory

Authorities.

Section 3.07 SEC Filings; Financial Statements; Undisclosed Liabilities.

(a) The Company has filed with the SEC all forms, reports,

statements, schedules, certifications and other documents (including exhibits)

required to be filed by it with the SEC since January 1, 2007 (the "SEC

Reports"). The SEC Reports (including any documents or information incorporated

by reference therein and including any financial statements or schedules

included therein) (i) at the time they were filed, complied in all material

respects with, and were prepared in accordance with, all applicable requirements

of the Securities Act of 1933, as amended (the "Securities Act"), the Exchange

Act, the Sarbanes-Oxley Act and, in each case, the rules and regulations of the

SEC promulgated thereunder, and (ii) did not, at the time they were filed, or if

amended, as of the date of such amendment, contain any untrue statement of a

material fact or omit to state a material fact required to be stated therein or

necessary in order to make the statements made therein, in the light of the

circumstances under which they were made, not misleading.

(b) Each of the consolidated financial statements (including, in

each case, any notes and schedules thereto) included or incorporated by

reference in the SEC Reports complied in all material respects with the

applicable accounting requirements and rules and regulations of the SEC, and

each fairly presents, in all material respects, the consolidated financial

position, results of operations and cash flows of the Company and the Company

Subsidiaries as at the respective dates thereof and for the respective periods

indicated therein in conformity with United States generally accepted accounting

principles ("GAAP") consistently applied (except as described therein and

subject, in the case of unaudited

10

<PAGE>

statements, to normal and recurring year-end adjustments). All of the Company

Subsidiaries are consolidated for accounting purposes.

(c) Except as and to the extent set forth on the consolidated

balance sheet (including notes thereof) of the Company and the Company

Subsidiaries as at June 30, 2007 included in the Form 10-Q for the quarter ended

June 30, 2007 (the "Balance Sheet") neither the Company nor any Company

Subsidiary has any liability or obligation of any nature (whether accrued,

absolute, contingent or otherwise) (collectively, "Liabilities"), except for

Liabilities (i) incurred in the ordinary course of business and in a manner

consistent with past practice since June 30, 2007, (ii) set forth in Section

3.07(c) of the Disclosure Schedule, (iii) arising under this Agreement, or (iv)

that would not, individually or in the aggregate, have a Company Material

Adverse Effect.

(d) Neither the Company nor any of the Company Subsidiaries is a

party to, or has 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 and any of the Company Subsidiaries, 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 under the Exchange

Act)), where the result, purpose or intended effect of such Contract is to avoid

disclosure of any material transaction involving, or material liabilities of,

the Company or any of the Company Subsidiaries in the Company's or such Company

Subsidiary's published financial statements or other SEC Reports.

Section 3.08 Title to Properties. (a) Each of the Company and Company

Subsidiaries has valid leasehold or easement interests in all of its material

properties and assets ("Leases"). Set forth on Section 3.08 of the Disclosure

Schedule is a list setting forth such real property Leases. All such interests

of the Company or any Company Subsidiary in such properties and assets are free

and clear of all Liens other than (i) Liens for Taxes not yet due and payable,

(ii) Liens in respect of property or assets of the Company or any of the Company

Subsidiaries imposed by law which were incurred in the ordinary course of

business, such as carriers', warehousemen's and mechanics' Liens, statutory

landlord's Liens, and other similar Liens arising in the ordinary course of

business, and (x) that do not in the aggregate materially detract from the value

of such property or assets or materially impair the use thereof in the operation

of the business of the Company or any Company Subsidiary or (y) that are not yet

due or are being contested in good faith by appropriate proceedings, which

proceedings have the effect of preventing the forfeiture or sale of the property

or asset subject to such Lien, and (iii) easements, encroachments, covenants,

rights-of-way, restrictions, minor defects or irregularities in title and other

similar charges or encumbrances not interfering in any material respect with the

ordinary conduct of the business of the Company or any of the Company

Subsidiaries and municipal and zoning ordinances.

Section 3.09 Absence of Litigation. Except as set forth in Section 3.09 to

the Disclosure Schedule, (i) there is no litigation, suit, claim, action,

proceeding, hearing, petition, grievance, complaint or investigation (an

"Action") pending or, to the knowledge of the Company, threatened, against, or

affecting, the Company or any Company Subsidiary, by or before any Governmental

Authority or arbitrator which, if adversely determined, would, individually or

in the aggregate, have a Company Material Adverse Effect; and (ii) neither the

Company nor any Company Subsidiary is subject to any order, writ, judgment,

injunction, decree, determination or award of, or, to the knowledge of the

Company, any continuing investigation by, any Governmental Authority, except as

would not, individually or in the aggregate, have a Company Material Adverse

Effect.

Section 3.10 Employee Benefit Plans.

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(a) Section 3.10(a) of the Disclosure Schedule sets forth a true and

complete list of (i) all material employee benefit plans (as defined in Section

3(3) of the Employee Retirement Income Security Act of 1974, as amended

("ERISA")) and all material bonus, stock option, stock purchase, restricted

stock, incentive, deferred compensation, retiree medical or life insurance,

supplemental retirement, severance or other benefit plans, programs or

arrangements; and (ii) all material employment, termination, severance or other

contracts, agreements or commitments to which the Company or any Company

Subsidiary is a party, with respect to which the Company or any Company

Subsidiary has or may reasonably be expected to have any obligation or which are

maintained, contributed to or sponsored by the Company or any Company Subsidiary

for the benefit of any current or former employee, consultant, officer or

director of the Company or any Company Subsidiary (collectively, the "Plans").

The Company has made available to Parent a true and complete copy (where

applicable) of (A) each Plan (or, where a Plan has not been reduced to writing,

a summary of all material Plan terms of such Plan), (B) each trust or funding

arrangement prepared in connection with each such Plan, (C) the most recently

filed annual report on Internal Revenue Service ("IRS") Form 5500 or any other

annual report required by applicable Law, (D) the most recently received IRS

determination or opinion letter for each applicable Plan, (E) the most recently

prepared actuarial report and financial statement in connection with each such

Plan, and (F) the most recent summary plan description, any summaries of

material modification, any employee handbooks, and any material written

communications by the Company or the Company Subsidiaries to any current or

former employees, consultants, or directors of the Company or any Company

Subsidiary concerning the extent of the benefits provided under a Plan.

(b) None of the Company or any Company Subsidiary or any other

Person or entity that, together with the Company or any Company Subsidiary, is

or was treated as a single employer under Section 414(b), (c), (m) or (o) of the

Code (each, together with the Company and any Company Subsidiary, an "ERISA

Affiliate"), has now or at any time within the past six years (and in the case

of any such other Person or entity, only during the period within the past six

years that such other Person or entity was an ERISA Affiliate) contributed to,

sponsored, or maintained (i) a pension plan (within the meaning of Section 3(2)

of ERISA) subject to Section 412 of the Code or Title IV of ERISA; or (ii) a

multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA

or the comparable provisions of any other applicable Law) (a "Multiemployer

Plan").

(c) No Plan exists that would reasonably be expected to result in

the payment to any present or former employee, director or consultant of the

Company or any Company Subsidiary of any money or other property or accelerate

or provide any other rights or benefits to any current or former employee,

director or consultant of the Company or any Company Subsidiary as a result of

the consummation of the Merger (whether alone or in connection with any other

event) except as may otherwise be required by applicable Law. Except as set

forth in Section 3.10(c) of the Disclosure Schedule, neither the execution and

delivery of this Agreement nor the consummation of the Merger will (either alone

or in combination with another event) result in any payment or other benefit

that has been or may be made to any current or former employee or independent

contractor of the Company or any Company Subsidiary under any employment,

severance or termination agreement, other compensation arrangement or employee

benefit plan or arrangement with the Company or any Company Subsidiary to be

characterized as an "excess parachute payment," as such term is defined in

Section 280G of the United States Internal Revenue Code of 1986, as amended (the

"Code"). Except as set forth in Section 3.10(c) of the Disclosure Schedule, none

of the Company or any Company Subsidiary is a party to any material agreement,

contract, arrangement or plan pursuant to which it is bound to compensate any

Person for any excise or other additional Taxes paid pursuant to Section 4999 of

the Code or any similar provision of state, local or foreign Law.

(d) Each Plan that is intended to be qualified under Section 401(a)

of the Code, and each trust established in connection with any Plan that is

intended to be exempt from federal income

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taxation under Section 501(a) of the Code has received a favorable determination

or opinion letter from the IRS , and to the knowledge of the Company, nothing

has occurred that would reasonably be expected to adversely affect such

determination or opinion.

(e) (i) Each Plan has been established and administered in

accordance with its terms, and in compliance with the applicable provisions of

ERISA, the Code and other applicable Laws, except to the extent such

noncompliance would not, individually or in the aggregate, have a Company

Material Adverse Effect, and (ii) except as set forth in Section 3.10(e) of the

Disclosure Schedule, no Plan provides post-termination benefits, and neither the

Company nor any Company Subsidiary has any obligation to provide any

post-termination benefits other than for health care continuation as required by

Section 4980B of the Code or any similar statute.

(f) With respect to any Plan, (i) no Actions (other than routine

claims for benefits in the ordinary course) are pending or, to the knowledge of

the Company, threatened, except for those that would not, or would not

reasonably be expected to, individually or in the aggregate, have a Company

Material Adverse Effect, (ii) to the knowledge of the Company, no facts or

circumstances exist that would reasonably be expected to give rise to any

Actions that would, individually or in the aggregate, have a Company Material

Adverse Effect, and (iii) to the knowledge of the Company, no administrative

investigation, audit or other administrative proceeding by the Department of

Labor, the IRS or other Governmental Authority is pending, in progress or

threatened, except for those that would not, individually or in the aggregate,

have a Company Material Adverse Effect.

Section 3.11 Labor and Employment Matters. Neither the Company nor any

Company Subsidiary is or has been within the last six years a party to any

collective bargaining agreement or other agreements or arrangements with any

labor union or works council applicable to Persons employed by the Company or

any Company Subsidiary, nor is any such agreement or arrangement being

negotiated, nor, to the knowledge of the Company, are there any such employees

represented by a works council or a labor organization or activities or

proceedings of any labor union to organize any such employees.

Section 3.12 Intellectual Property.

(a) To the knowledge of the Company, the Company and/or the Company

Subsidiaries own or possess rights in all patents, trademarks, trade names,

copyrights and other intellectual property rights (collectively, "Intellectual

Property") reasonably necessary for the conduct of the businesses of the Company

and the Company Subsidiaries as now operated, except where the failure to own or

possess rights in any such Intellectual Property would not individually or in

the aggregate, have a Company Material Adverse Effect or except as disclosed in

Section 3.12(a) of the Disclosure Schedule. Except as set forth in Section

3.12(a) of the Disclosure Schedule and except as would not, individually or in

the aggregate, have a Company Material Adverse Effect, no claim with respect to

the Intellectual Property of the Company or any Company Subsidiary is being

asserted in writing by any Person against the use by the Company or any of the

Company Subsidiaries of any Intellectual Property of the Company or any Company

Subsidiary, or challenging the ownership, validity, enforceability or

effectiveness of any of the Intellectual Property of the Company or any Company

Subsidiary.

(b) Section 3.12(b) of the Disclosure Schedule sets forth: a true

and complete list of all material registered trademarks and registered service

marks, trademark and service mark applications, copyright and mask work

registrations and applications, and patents and patent applications currently

owned by the Company and the Company Subsidiaries (collectively, "Scheduled

Intellectual Property"). Each item of the Scheduled Intellectual Property has

been duly registered or application filed with the U.S. Patent and Trademark

Office (the "PTO"), U.S. Copyright Office (the "Copyright Office"), or other

appropriate or equivalent Governmental Authority in other jurisdictions, in each

case as and to the extent

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so indicated on Section 3.12(b) of the Disclosure Schedule. Except as would not,

individually or in the aggregate, have a Company Material Adverse Effect, to the

Company's knowledge, all patent, copyright and trademark applications, renewals

and other similar fees have been properly paid and are current, and all patent,

copyright and trademark registrations and filings remain in full force and

effect.

Section 3.13 Taxes.

(a) The Company and the Company Subsidiaries have (i) filed or

caused to be filed (taking into account any extension of time to file validly

granted or obtained) all material Tax Returns required to have been filed by

them, and such Tax Returns are true, correct and complete in all material

respects, and (ii) paid all material Taxes required to have been paid (whether

or not shown due on any Tax Return) except to the extent that such Taxes are

being contested in good faith or a reserve for such Taxes has been established

on the Company's Balance Sheet. There are no material Liens for Taxes upon any

property or asset of the Company or any of the Company Subsidiaries, except for

Liens for Taxes not yet due. All material Taxes required to have been withheld

by the Company and the Company Subsidiaries have been withheld and, if so

required, have been paid over to the appropriate Governmental Authority.

(b) No deficiency for any material amount of Tax has been asserted

or assessed by any Governmental Authority in writing against the