TABLE OF CONTENTS

ARTICLE I		DEFINITIONS		2
ARTICLE II		PURCHASE AND SALE OF ASSETS; ASSUMED LIABILITIES		9
2.1		Purchased Assets		9
2.2		Excluded Assets		11
2.3		Assumed Liabilities		11
2.4		Excluded Liabilities		11
2.5		Collection of Receivables		12
ARTICLE III		PURCHASE PRICE OF ASSETS		12
3.1		Purchase Price		12
3.2		Payment of Purchase Price.		12
3.3		Net Working Capital Adjustment.		15
3.4		Closing		16
3.5		Purchase Price Allocation		16
3.6		Transfer Taxes		17
ARTICLE IV		REPRESENTATIONS AND WARRANTIES OF SELLERS AND OWNERS		17
4.1		Organization and Qualification; Subsidiaries.		17
4.2		Articles of Organization; Operating Agreement		17
4.3		Capitalization.		18
4.4		Authority of Seller; Enforceability		18
4.5		No Conflict; Required Filings and Consents.		19
4.6		Assigned Agreements.		20
4.7		Compliance		20
4.8		Financial Statements.		20
4.9		Absence of Certain Changes or Events		21
4.10		No Undisclosed Liabilities		23
4.11		Absence of Litigation		23
4.12		Employee Benefit Plans.		24
4.13		Employment and Labor Matters.		26
4.14		Certain Business Practices		27
4.15		Absence of Restrictions on Business Activities		27
4.16		Real Property.		27
4.17		Purchased Assets.		28
4.18		Taxes		29
4.19		Environmental Matters		31
4.20		Intellectual Property.		31
4.21		Insurance		33
4.22		Permits		34
4.23		Brokers		34
4.24		Interested Party Transactions.		34
4.25		Customers		36
4.26		Suppliers		36
4.27		Products		36

 

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4.28		FDA Regulation		36
4.29		Purchase For Investment		37
4.30		Inventory		37
4.31		Disclosure of Material Information		37
ARTICLE V		REPRESENTATIONS AND WARRANTIES OF PURCHASER		38
5.1		Organization and Qualification		38
5.2		Capitalization		38
5.3		Authority; Enforceability		38
5.4		No Conflict; Required Filings and Consents.		39
5.5		Parent Reporting		39
5.6		Parent Financial Statements		40
5.7		Compliance		40
5.8		Absence of Litigation		40
5.9		Certain Business Practices		40
5.10		Brokers		40
ARTICLE VI		COVENANTS		41
6.1		Performance		41
6.2		Regulatory and Other Authorizations; Notices and Consents.		41
6.3		Conduct of the Business Prior to the Closing.		42
6.4		Access.		42
6.5		Notification.		43
6.6		Standstill		44
6.7		Bulk Transfer Laws		44
6.8		Change of Names		44
6.9		Consents		45
ARTICLE VII		EMPLOYEE MATTERS		45
7.1		Offer of Employment		45
7.2		Transfer and Assumption of the Employee Plans; Contributions for Periods Prior to Closing		45
ARTICLE VIII		CONDITIONS PRECEDENT TO CLOSING; TERMINATION		45
8.1		Conditions Precedent to Obligations of Parent and Purchaser		45
8.2		Conditions Precedent to the Obligations of Sellers and Owners		47
8.3		Termination.		49
ARTICLE IX		INDEMNIFICATION		50
9.1		Survival of Representations, Warranties and Covenants		50
9.2		Definitions		51
9.3		Indemnification Generally; Limitations.		52
9.4		Assertion of Claims		53
9.5		Notice and Defense of Third Party Claims		53
ARTICLE X		MISCELLANEOUS		55
10.1		Notices		55
10.2		Entire Agreement		56
10.3		Binding Effect		56
10.4		Assignment		56

 

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10.5		Modifications and Amendments		56
10.6		Waivers and Consents		56
10.7		No Third Party Beneficiary		57
10.8		Severability		57
10.9		Publicity		57
10.10		Governing Law		57
10.11		Jurisdiction		57
10.12		Counterparts		57
10.13		Headings		58
10.14		Expenses		58

 

EXHIBITS

EXHIBIT A		Form of Bill of Sale
EXHIBIT B		Form of Assignment and Assumption Agreement
EXHIBIT C		Form of Opinion of Counsel to Sellers and Owners
EXHIBIT D-1		Form of Seller Non-Competition and Non-Solicitation Agreement
EXHIBIT D-2		Form of Owner Non-Competition and Non-Solicitation Agreement
EXHIBIT E-1		Form of Employment Agreement (Richerson)
EXHIBIT E-2		Form of Employment Agreement (Finkelstein)
EXHIBIT F		Form of Consent to Assignment
EXHIBIT G		Form of Opinion of Counsel to Parent and Purchaser
SCHEDULE 2.2(e)		Excluded Assets
SCHEDULE 2.3(b)		Assumed Liabilities
SCHEDULE 7.2		Adopted Employee Plans
SCHEDULE 8.2		Parent Financing

 

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ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (the “ Agreement ”) is entered into as of August 17, 2006 by and among Alan James Group, LLC , a Florida limited liability company (“ AJG ”), AJG-NB, LLC , a Florida limited liability company (“ AJG-NB ”), AJG-BI Brands, LLC , a Florida limited liability company (“ AJG-BI ”), AJG-GNC, LLC , a Florida limited liability company (“ AJG-GNC ” and, together with AJG, AJG-NB and AJG-BI, the “ Sellers ” and each a “ Seller ”), Timothy J. Richerson (“ Richerson ”) and David A. Finkelstein (“ Finkelstein ” and, together with Richerson, the “ Owners ” and each an “ Owner ”), the sole owners of membership interests of the Sellers, AJG Brands, Inc. a Delaware corporation (the “ Purchaser ”), and Interleukin Genetics, Inc. , a Delaware corporation (the “ Parent ”).

WHEREAS , the Sellers are engaged in the business of developing, marketing and distributing healthcare focused consumer products (including, without limitation, nutraceuticals, so-called “OTCeuticals” and preventative healthcare products) and other activities related thereto (together with any other business activities engaged in by the Sellers prior to the Closing, the “ Business ”);

WHEREAS , Owners are the members of each Seller owning, in the aggregate, all of the issued and outstanding membership or other equity interests of each Seller;

WHEREAS , Sellers desire to sell to Purchaser, and Purchaser desires to purchase from Sellers, substantially all of the assets of Sellers and Purchaser is willing to assume certain liabilities of Sellers relating to the Business, all upon the terms and conditions set forth herein;

WHEREAS , the managers of each Seller have approved, and declared it to be advisable and in the best interests of such Seller’s owners for such Seller to sell substantially all of the assets of such Seller to Purchaser upon the terms and subject to the conditions set forth herein;

WHEREAS , Owners have approved the sale of substantially all of the assets of each Seller to Purchaser upon the terms and subject to the conditions set forth herein; and

WHEREAS , as additional consideration, and a material inducement to each party to enter into this Agreement and to consummate the transactions contemplated hereby, Sellers and Owners, on the one hand, and Parent and Purchaser, on the other hand, desire to make certain representations, warranties, indemnities, covenants and agreements relating to the sale and purchase of the Purchased Assets (as defined below) and the other transactions contemplated hereby.

NOW, THEREFORE , in consideration of the premises and the mutual covenants, representations and warranties herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto hereby agree as follows:

 

ARTICLE I

DEFINITIONS

In addition to terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the respective meanings set forth below:

“ Acquisition Proposal ” has the meaning set forth in Section 6.6.

“ Action ” means any claim, demand, action, cause of action, chose in action, right of recovery, right of set-off, suit, arbitration, inquiry or proceeding, or any investigation by or before any Governmental Authority.

“ Adopted Employee Plans ” has the meaning set forth in Section 7.2.

“ Affiliate ” means, with respect to a specified Person, any other Person which, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person, and without limiting the generality of the foregoing, includes, with respect to the specified Person:  (a) any other Person which beneficially owns or holds 10% or more of the outstanding voting securities or other securities convertible into voting securities of such Person, (b) any other Person of which the specified Person beneficially owns or holds 10% or more of the outstanding voting securities or other securities convertible into voting securities, or (c) any director, officer or manager of such Person.

“ Agreement ” has the meaning set forth in the preamble.

“ AJG ” has the meaning set forth in the preamble.

“ AJG-BI ” has the meaning set forth in the preamble.

“ AJG-GNC ” has the meaning set forth in the preamble.

“ AJG-NB ” has the meaning set forth in the preamble.

“ Ancillary Agreements ” means the Bill of Sale, the Assumption Agreement, the Non-Competition Agreements and the Employment Agreements.

“ Approvals ” has the meaning specified in Section 4.1(a).

“ Assigned Agreement ” has the meaning set forth in Section 4.6(a).

“ Associated Persons ” has the meaning set forth in Section 4.24(e).

“ Assumed Liabilities ” has the meaning set forth in Section 2.3.

“ Assumption Agreement ” has the meaning set forth in Section 2.3.

“ Base NWC ” has the meaning specified in Section 3.3.

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“ Bill of Sale ” has the meaning set forth in Section 2.1.

“ Business ” has the meaning set forth in the recitals.

“ Business Day ” means any day other than a Saturday, Sunday or other day on which banks are required or authorized to be closed in the State of Delaware.

“ Cash ” means all cash and cash equivalents (including marketable securities and short-term investments) on hand or in banks or other depositories calculated in accordance with GAAP applied on a basis consistent with the preparation of the Financial Statements.

“ Closing ” has the meaning set forth in Section 3.4.

“ Closing Certificate ” has the meaning specified in Section 3.3.

“ Closing Date ” has the meaning set forth in Section 3.4

“ Closing Date Statement ” has the meaning specified in Section 3.3.

“ Closing Payment ” has the meaning specified in Section 3.2(b)(i).

“ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended through the date hereof and any regulations promulgated thereunder.

“ COBRA Coverage ” has the meaning set forth in Section 4.12(d).

“ Code ” shall mean the Internal Revenue Code of 1986, as amended.

“ Confidentiality Agreement ” means the Confidential Disclosure Agreement, dated as of April 11, 2006, between Parent and AJG.

“ Consent ” has the meaning set forth in Section 4.6(a).

“ Contract ” means any contract, plan, undertaking, understanding, agreement, license, lease, note, mortgage or other binding commitment, whether written or oral.

“ Copyrights ” mean all copyrights (registered or otherwise) and registrations and applications for registration thereof, and all rights therein provided by multinational treaties or conventions.

“ Court ” means any court or arbitration tribunal of the United States, any domestic state, or any foreign country, and any political subdivision thereof.

“ Database ” means all data and other information recorded, stored, transmitted and retrieved in electronic form.

“ Disclosure Schedule ” means a schedule dated the date hereof from Seller and delivered to Purchaser upon the execution hereof.  The Disclosure Schedule shall be arranged in sections

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and subsections corresponding to the numbered and lettered sections and subsections contained in Article IV.

“ Documents ” means this Agreement together with the Ancillary Agreements, the Schedules and Exhibits hereto and thereto, the Disclosure Schedule and the other agreements, documents and instruments executed in connection herewith.

“ Employee Plans ” has the meaning set forth in Section 4.12(a).

“ Environmental Law ” means any Law or Regulation pertaining to: (i) the protection of health, safety and the indoor or outdoor environment; (ii) the conservation, management or use of natural resources and wildlife; (iii) the protection or use of surface water and ground water; (iv) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, emission, discharge, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any Hazardous Material; or (v) pollution (including any emission, discharge or release to air, land, surface water and ground water); and includes, without limitation, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980, as amended, and the Regulations promulgated thereunder and the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901 et seq.

“ Employment Agreements ” has the meaning set forth in Section 8.1(i).

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

“ Estimated NWC ” has the meaning specified in Section 3.3.

“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“ Excluded Assets ” has the meaning set forth in Section 2.2.

“ Excluded Liabilities ” has the meaning set forth in Section 2.4.

“ Foreign Competition Laws ” means any non-United States statutes, rules, Regulations, Orders, administrative and judicial directives, and other non-United States Laws, that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, lessening of competition or restraint of trade.

“ GAAP ” means United States generally accepted accounting principles and practices in effect from time to time consistently applied.

“ Governmental Authority ” means any governmental or legislative agency or authority (other than a Court) of the United States, any state within the United States, or any country, and any political subdivision or agency thereof, and includes any authority having governmental or quasi-governmental powers, including any administrative agency or commission.

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“ Hardware ” means all mainframes, midrange computers, personal computers, notebooks, servers, switches, printers, modems, drives, peripherals and any component of any of the foregoing.

“ Hazardous Substance ” means any “Hazardous Substance” (as defined in CERCLA) and any other substance, chemical, compound, product, solid, gas, liquid, waste, by-product, pollutant, contaminant or material which is hazardous or toxic and is regulated under any Environmental Law, and includes without limitation, asbestos or any substance containing asbestos, polychlorinated biphenyls or petroleum (including crude oil or any fraction thereof);.

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“ Indemnified Person ” has the meaning set forth in Section 9.4.

“ Indemnifying Person ” has the meaning set forth in Section 9.4.

“ Information System ” means any combination of Hardware, Software and/or Database(s) employed primarily for the creation, manipulation, storage, retrieval, display and use of information in electronic form or media.

“ Intellectual Property ” means (a) inventions, whether or not patentable, whether or not reduced to practice or whether or not yet made the subject of a pending Patent application or applications, (b) ideas and conceptions of potentially patentable subject matter, including, without limitation, any patent disclosures, whether or not reduced to practice and whether or not yet made the subject of a pending Patent application or applications, (c) Patents, (d) Trademarks,  (e) Copyrights, (g) Software, (h) trade secrets and confidential, technical or business information (including ideas, formulas, compositions, inventions, and conceptions of inventions whether patentable or unpatentable and whether or not reduced to practice), (i) whether or not confidential, technology (including know-how and show-how), manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information, (j) copies and tangible embodiments of all the foregoing, in whatever form or medium, (k) all rights to obtain and rights to apply for Patents, and to register Trademarks and Copyrights, (l) all rights under the License Agreements and any licenses, registered user agreements, technology or materials, transfer agreements, and other agreements or instruments with respect to items in (a) to (k) above; and (m) all rights to sue and recover and retain damages and costs and attorneys’ fees for present and past infringement of any of the Intellectual Property rights hereinabove set out.

“ Inventories ” means all inventories, including, without limitation, merchandise, raw materials, work-in-process, finished goods, replacement parts and office supplies related to the Business, maintained, held or stored by or for any Seller, at any location whatsoever and any prepaid deposits for any of the same.

“ IRS ” shall mean the United States Internal Revenue Service.

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“ Knowledge ” means (a) in the case of an individual, knowledge of a particular fact or other matter if (i) such individual is actually aware of such fact or other matter, or (ii) a prudent individual could be expected to discover or otherwise become aware of such fact or other matter in the course of conducting a reasonable investigation concerning the existence of such fact or other matter, and (b) in the case of a Person (other than an individual), such Person will be deemed to have Knowledge of a particular fact or other matter if any individual who is serving, or has at any time served, as a director, officer, partner, member, executor, or trustee of such Person (or in any similar capacity) has, or at any time had, Knowledge of such fact or other matter.

“ Law ” means all laws, statutes, ordinances and Regulations of any Governmental Authority including all decisions of Courts having the effect of law in each such jurisdiction.

“ Liabilities ” means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable, including, without limitation, those arising under any Law (including, without limitation, any Environmental Law), Action or Order, Liabilities for Taxes and those Liabilities arising under any Contract.

“ License Agreements ” has the meaning set forth in Section 4.20(c).

“ Licensed Intellectual Property ” means all Intellectual Property licensed or sublicensed by any Seller from a third party, including the License Agreements.

“ Lien ” means any mortgage, pledge, security interest, attachment, encumbrance, lien (statutory or otherwise), option, conditional sale agreement, right of first refusal, first offer, termination, participation or purchase or charge of any kind (including any agreement to give any of the foregoing); provided , however , that the term “Lien” shall not include (i) statutory liens for Taxes, which are not yet due and payable or are being contested in good faith by appropriate proceedings, (ii) statutory or common law liens to secure landlords, lessors or renters under leases or rental agreements confined to the premises rented, (iii) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance, old age pension or other social security programs mandated under applicable Laws, and (iv) statutory or common law liens in favor of carriers, warehousemen, mechanics and materialmen, to secure claims for labor, materials or supplies and other like liens.

“ Litigation ” means any suit, action, arbitration, cause of action, claim, complaint, criminal prosecution, investigation, inquiry, demand letter, governmental or other administrative proceeding, whether at law or at equity, before or by any Court, Governmental Authority, arbitrator or other tribunal.

“ Losses ” has the meaning set forth in Section 9.2(a).

“ Material Adverse Effect ” means, with respect to any Person, any fact, event, change, circumstance or effect that is materially adverse to the business, condition (financial or otherwise), operations, results of operations, assets, liabilities or prospects of such Person.

“ Multiemployer Plan ” has the meaning set forth in Section 3(37) of ERISA.

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“ Non-Competition Agreements ” has the meaning set forth in Section 8.1(h).

“ Objection Period ” has the meaning specified in Section 3.3.

“ Order ” shall mean any judgment, order, writ, injunction, ruling, stipulation, determination, award or decree of or by, or any settlement under the jurisdiction of, any Court or Governmental Authority.

“ Ordinary Course of Business ” means the ordinary course of the Business consistent with the past practice of Sellers.

“ Owned Intellectual Property ” means all Intellectual Property in or to which any Seller has, or has a right to hold, right, title and interest.

“ Owner ” and “ Owners ” have the respective meanings set forth in the preamble.

“ Parent ” has the meaning set forth in the preamble.

“ Purchaser Disclosure Schedule ” means a schedule dated the date hereof from Purchaser and delivered to Sellers upon the execution hereof.  The Purchaser Disclosure Schedule shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in Article V.

“ Parent SEC Reports ” has the meaning set forth in Section 5.4.

“ Parent Shares ” means shares of the common stock, $0.001 par value per share, of Parent.

“ Patent ” means all national (including the United States) and multinational statutory invention registrations, patents, patent registrations and patent applications, including all reissues, divisions, continuations, continuations-in-part, extensions and reexaminations, and all rights therein provided by multinational treaties or conventions and all improvements to the inventions disclosed in each such registration, patent or application.

“ Person ” means any natural person, corporation, limited liability company, unincorporated organization, partnership, association, joint stock company, joint venture, trust or any other entity.

“ Products ” has the meaning set forth in Section 4.27.

“ Purchase Price ” has the meaning set forth in Section 3.1.

“ Purchased Assets ” has the meaning set forth in Section 2.1.

“ Purchaser ” has the meaning set forth in the preamble.

“ Purchaser Event of Indemnification ” has the meaning set forth in Section 9.2(b).

“ Purchaser Indemnified Person ” has the meaning set forth in Section 9.2(c).

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“ Purchaser Indemnifying Person ” has the meaning set forth in Section 9.2(d).

“ Receivables ” means any and all accounts receivable, notes, book debts and other amounts due or accruing due to any Seller in connection with the Business, whether or not in the ordinary course, together with any unpaid financing charges accrued thereon and the benefit of all security for such accounts, notes and debts.

“ Regulation ” shall mean any rule or regulation of any Governmental Authority.

“ Securities Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“ Seller ” and “ Sellers ” have the respective meanings set forth in the preamble.

“ Seller Event of Indemnification ” has the meaning set forth in Section 9.2(e).

“ Seller Fees ” means the costs and expenses of Sellers and Owners (including fees and expenses of any broker, investment banker, financial advisor, legal advisor or accountant), whether incurred by them or on their behalf, in connection with this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;

“ Seller Financial Statements ” has the meaning set forth in Section 4.8.

“ Seller Indemnified Person ” has the meaning set forth in Section 9.2(f).

“ Seller Indemnifying Person ” has the meaning set forth in Section 9.2(g).

“ Seller Organizational Documents ” has the meaning set forth in Section 4.2.

“ Software ” means any and all (a) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code, (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (c) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, (d) the technology supporting any Internet site(s) operated by or on behalf of Sellers and (e) all documentation, including user manuals and training materials, relating to any of the foregoing.

“ Subsidiary ” or “ Subsidiaries ” of a specified Person means any other Person in which such Person owns, directly or indirectly, more than 50% of the outstanding voting securities or other securities convertible into voting securities, or which may effectively be controlled, directly or indirectly, by such Person.

“ Survival Date ” has the meaning set forth in Section 9.1.

“ Tax ” or “ Taxes ” means any and all United States federal, state and local, or non-United States, taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority or other taxing authority, including, without

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limitation: taxes or other charges on or with respect to income, franchises, windfall or other profits, business, occupation, gross receipts, property, sales, use, capital stock, payroll, employment, disability, social security, workers’ compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs’ duties, tariffs, and similar charges, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, whether disputed or not and including any obligation to indemnify or otherwise assume or succeed to the Tax liability of any other Person.

“ Tax Returns ” means returns, reports and information statements, including any schedule or attachment thereto, with respect to Taxes required to be filed with the IRS or any other Governmental Authority or other taxing authority or agency, wherever located throughout the world, including consolidated, combined and unitary tax returns.

“ Third Party Claim ” has the meaning set forth in Section 9.5.

“ Trademarks ” mean all trademarks, service marks, trade dress, logos, trade names and corporate names, whether or not registered, including all common law rights, and registrations and applications for registration thereof, including, but not limited to, all marks registered in the United States Patent and Trademark Office, the trademark offices of the states and territories of the United States of America, and the trademark offices of other nations throughout the world, and all rights therein provided by multinational treaties or conventions.

ARTICLE II

PURCHASE AND SALE OF ASSETS; ASSUMED LIABILITIES

2.1            Purchased Assets .  Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Sellers agree to sell, assign, transfer, convey and deliver to Purchaser pursuant to a Bill of Sale (the “ Bill of Sale ”) in substantially the form of Exhibit A attached hereto, and Purchaser agrees to purchase from Sellers, free and clear of all Liens, all of the assets and property used in connection with or otherwise relating to the Business (other than the Excluded Assets), whether real or personal, tangible or intangible, of every kind and description and wherever situated (collectively, the “ Purchased Assets ”), all with the intention that the Business shall be transferred to Purchaser as a going concern, including without limitation, the following:

(a)            Leases of Real Property .  All rights of any Seller (whether as lessor or lessee) under leases of real property, together with all leasehold improvements relating thereto, under the leases listed in Section 4.16 of the Disclosure Schedule;

(b)            Machinery, Equipment and Furniture .  All furniture, fixtures, equipment, machinery and other tangible personal property used or held for use by any Seller at the locations at which the Business is conducted, or otherwise owned or held by any Seller at the Closing Date for use in the conduct of the Business;

(c)            Inventories .  All Inventories;

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(d)            Accounts Receivable .  All Receivables;

(e)            Books and Records .  All books and records relating to the Business or the Purchased Assets (other than those required by law to be retained by Sellers, copies of which will be provided to Purchaser) including, without limitation, customer lists, sales records, price lists and catalogues, sales literature, advertising material, manufacturing data, production records, employee manuals, personnel records, supply records, inventory records and correspondence files (together with, in the case of any such information which is stored electronically, the media on which the same is stored);

(f)             Goodwill .  The goodwill of Sellers relating to the Business together with the exclusive right for Purchaser to represent itself as carrying on the Business in succession to Sellers and the right to use any words indicating that the Business is so carried on;

(g)            Intellectual Property .  All Sellers’ right, title and interest in, to and under the Licensed Intellectual Property and the Owned Intellectual Property;

(h)            Claims and Causes of Action .  All Actions of any kind (including rights to insurance proceeds and rights under and pursuant to all warranties, representations and guarantees made by suppliers of products, materials or equipment, or components thereof) pertaining to or arising out of the Business, and inuring to the benefit of any Seller, together with any and all Liens granted or otherwise available to any Seller as security for collection of any of the foregoing;

(i)             Prepaid Expenses .  All prepaid expenses of each Seller;

(j)             Contracts .  All rights under the Contracts of or relating to the Business that are listed in Section 4.6(a) of the Disclosure Schedule together with all of Sellers’ claims or rights of action now existing or hereafter arising thereunder;

(k)            Securities .  All securities owned legally or beneficially by any Seller;

(l)             Hardware and Software .  All of Sellers’ Information Systems and other Hardware, Software and Databases, including, without limitation, all rights under licenses and other agreements or instruments related thereto;

(m)           Permits .  To the extent transferable, all Approvals held or used by any Seller in connection with, or required for or useful for, the Business;

(n)            Adopted Employee Plans .  All rights in and with respect to the assets associated with the Adopted Employee Plans;

(o)            URLs .  All of each Seller’s right, title and interest in, to and under any domain name registrations and URLs used in connection with any aspect of the Business; and

(p)            Phone/Fax Numbers .  All telephone and facsimile numbers used in connection with the Business.

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2.2            Excluded Assets .  Notwithstanding the provisions of Section 2.1, the Purchased Assets shall not include any of the following property or assets of Sellers (collectively, the “ Excluded Assets ”):

(a)            Cash .  All Cash;

(b)            Inter-Seller Debt .  All indebtedness of any Owner or any of their Affiliates to Seller;

(c)            Income Taxes .  All income tax installments paid by Sellers and the right to receive any refund of income taxes paid by Sellers;

(d)            Corporate Records .  All corporate records, including, but not limited to, Sellers’ minute books and stock record books (but not including records of the Business relating to operation of the Business described in Section 2.1(f)); and

(e)            Certain Other Assets .  The specific assets listed on Schedule 2.2(e) attached hereto.

2.3            Assumed Liabilities .  At the Closing, Purchaser shall execute and deliver the Assignment and Assumption Agreement substantially in the form of Exhibit B attached hereto (the “ Assumption Agreement ”), pursuant to which, subject to the provisions of Section 2.4, it shall assume and agree to pay, perform and discharge only the following Liabilities of Sellers (the “ Assumed Liabilities ”):

(a)            Liabilities arising under the Contracts included in the Purchased Assets from and after the Closing Date (other than liabilities or obligations attributable to any failure by any Seller to comply with the terms thereof); and

(b)            The specific Liabilities set forth on Schedule 2.3(b) attached hereto.

2.4            Excluded Liabilities .  Sellers shall retain, and shall be jointly and severally responsible for paying, performing and discharging when due, and Purchaser shall not assume or have any responsibility for, any and all Liabilities of any Seller other than the Assumed Liabilities (the “ Excluded Liabilities ”).  Without limiting the generality of the foregoing, none of the following shall be Assumed Liabilities and each shall be an Excluded Liability for the purposes of this Agreement:

(a)            any Liabilities of any Seller for Taxes (including any Taxes that arise as a result of the transactions contemplated by this Agreement);

(b)            except to the extent expressly provided in Section 2.3(b), any Liabilities relating to employee benefits or compensation arrangements existing as of the end of the day on the day immediately preceding the Closing Date, including, without limitation, (i) any Liabilities under any of any Seller’s employee benefit agreements, plans or other arrangements listed on Schedule 7.2 and (ii) any “stay” or “retention” bonus or payment obligations;

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(c)            any Liabilities for any damages or injuries to persons or property or for any tort or strict liability arising from events, actions or inactions or the operation of the Business through the Closing Date, including without limitation the sale or use of any Product;

(d)            any Liability arising out of any pending or threatened Litigation;

(e)            any Liabilities arising under Environmental Laws or relating to Hazardous Substances;

(f)             any Liabilities arising under (x) the MPG Consulting Agreement, the Wachovia Loan and the Glocap Agreement (each as defined in Section 4.9 of the Disclosure Schedule), and (y) the Agreement for Philanthropic Support between AJG and AJG-BI (as successors to Boehringher Ingelheim Pharmaceuticals, Inc.) and Harvard Medical School Osher Institute and Division for Research and Education in Complementary Integrative Medical Therapies;

(g)            any Liabilities relating to an Excluded Asset; and

(h)            any Seller Fees and any indebtedness of any Seller to any Owner or any Affiliate of any Owner.

2.5            Collection of Receivables .  Each Seller agrees that, from and after the Closing Date, Purchaser shall have the right and authority to collect for its own account the Receivables, subject to the provisions hereof, and to endorse with the name of such Seller all checks received on account of the Receivables.  Each Seller agrees that it will, within five Business Days of its receipt thereof, transfer, assign and deliver to Purchaser all cash and other property which it may receive with respect to any Receivable from and after the Closing Date, and pending any such delivery to Purchaser of any such property, such Seller shall hold any such property in trust for the benefit of Purchaser.

ARTICLE III

PURCHASE PRICE OF ASSETS

3.1            Purchase Price .  As consideration for the purchase of the Purchased Assets, upon the terms and subject to the conditions set forth in this Agreement, Purchaser will (i) pay to Sellers the aggregate purchase price in accordance with Section 3.2 below and subject to adjustment in accordance with the terms and conditions of this Agreement (the “ Purchase Price ”) and (ii) assume the Assumed Liabilities.

3.2            Payment of Purchase Price .

(a)            Purchaser shall pay Sellers the Purchase Price as follows:

(i)             Closing Consideration : delivery at the Closing of the Closing Payment in cash by wire transfer of immediately available funds and delivery, within ten (10) business days following the earlier of (x) the date of completion of Parent’s independent auditors’ audit of Parent’s consolidated financial statements

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as at and for the year ended December 31, 2007 or (y) March 31, 2008 of (A) the Holdback Cash in cash by wire transfer of immediately available funds and (B) the Holdback Shares;

(ii)            First Earn-Out : delivery, within ten (10) business days following the earlier of (x) the date of completion of Parent’s independent auditors’ audit of Parent’s consolidated financial statements as at and for the year ended December 31, 2007 or (y) March 31, 2008, of (A) an amount equal to 27.91% of the Earn-Out Amount for such Earn-Out Period in cash by wire transfer of immediately available funds and (B) a number of Parent Shares equal to the result (rounded to the nearest whole number) obtained by dividing 72.09% of the Earn-Out Amount for such Earn-Out Period by the Closing Parent Share Price; and

(iii)           Second Earn-Out : delivery, within ten (10) business days following the earlier of (x) the date of completion of Parent’s independent auditors’ audit of Parent’s consolidated financial statements as at and for the year ended December 31, 2008 or (y) March 31, 2009, of (A) an amount equal to 13.95% of the Earn-Out Amount for such Earn-Out Period in cash by wire transfer of immediately available funds and (B) a number of Parent Shares equal to the result (rounded to the nearest whole number) obtained by dividing 86.05% of the Earn-Out Amount for such Earn-Out Period by the Closing Parent Share Price;

(iv)           Third Earn-Out : delivery, within ten (10) business days following the earlier of (x) the date of completion of Parent’s independent auditors’ audit of Parent’s consolidated financial statements as at and for the year ended December 31, 2009 or (y) March 31, 2010, of a number of Parent Shares equal to the result (rounded to the nearest whole number) obtained by dividing the Earn-Out Amount for such Earn-Out Period by the Closing Parent Share Price; and

(v)            Earn-Out Make-Up : If the sum of EBITDA for all of the Earn-Out Periods exceeds the Cumulative EBITDA Target, then the delivery, within ten (10) business days following the earlier of (x) the date of completion of Parent’s independent auditors’ audit of Parent’s consolidated financial statements as at and for the year ended December 31, 2009 or (y) March 31, 2010, of an amount equal to the amount, if any, by which the sum of the Maximum Earn-Out Amounts for each of the Earn-Out Periods exceeds the sum of the Earn-Out Amounts for each of the Earn-Out Periods, payable in a combination of cash (by wire transfer of immediately available funds) and Parent Shares (valued at the Closing Parent Share Price) that, when taken together with payments required pursuant to clauses (iii), (iv) and (v) of this Section 3.2(b), as nearly as practicable approximates the combination that would have been required pursuant to clauses (iii), (iv) and (v) of this Section 3.2(b) had the Maximum Earn-Out Amount been earned in each of the Earn-Out Periods.

(b)            Certain Definitions .  For purposes of this Section 3.2 and except as expressly provided otherwise herein, all financial measurements shall be determined in

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accordance with GAAP, as applied to Purchaser’s and Parent’s consolidated financial statements.  When used herein, the terms:

(i)             “ Closing Payment ” means $7,000,000, less (A) the amount of the Holdback Cash, (B) less the amount, if any, by which the Base NWC exceeds the Estimated NWC (as reported on the Closing Certificate), and (C) plus the amount, if any, by which the Estimated NWC exceeds the Base NWC (as reported on the Closing Certificate);

(ii)            “ Closing Parent Share Price ” means $5.6783, as adjusted from time to time after the date hereof for any stock dividend, stock split, combination, reorganization, recapitalization, reclassification, or other similar event involving a change in the capital structure of the Parent Shares;

(iii)           “ Cumulative EBITDA Target ” means $17,250,000;

(iv)           “ Earn-Out Amount ” means, for each Earn-Out Period: (A) if EBITDA for such Earn-Out Period is greater than or equal to the EBITDA Target for such Earn-Out Period, then the Maximum Earn-Out Amount, (B) if EBITDA for such Earn-Out Period is less than the EBITDA Target for such Earn-Out Period and greater than fifty percent (50%) of the EBITDA Target for such Earn-Out Period, then the Maximum Earn-Out Amount multiplied by a fraction, the numerator of which is equal to the amount by which EBITDA for such Earn-Out Period exceeds fifty percent (50%) of the EBITDA Target for such Earn-Out Period and the denominator of which is equal to fifty percent (50%) of the EBITDA Target for such Earn-Out Period, and (C) if EBITDA for such Earn-Out Period is not greater than fifty percent (50%) of the EBITDA Target for such Earn-Out Period, then zero;

(v)            “ Earn-out Periods ” means: (A) the one year period beginning on January 1, 2007 and ending on December 31, 2007 (the “ First Earn-Out Period ”), (B) the one year period beginning January 1, 2008 and ending on December 31, 2008 (the “ Second Earn-Out Period ”), and (C) the one year period beginning January 1, 2009 and ending on December 31, 2009 (the “ Third Earn-Out Period ”); and “ Earn-Out Period ” means each of the Earn-Out Periods;

(vi)           “ EBITDA ” means, for any period, earnings before interest, taxes, depreciation and amortization for the Business, as conducted by the Purchaser during such period and exclusive of the effect of the results of any other business acquired following the Closing Date, with only such adjustments as may be mutually agreed by the Parent and the Sellers and, in addition to any such agreed upon adjustments, for purposes of calculating EBITDA hereunder, (A) compensation expense in respect of the employment of the Owners shall be reflected only in an amount equal to fifty percent (50%) of their actual compensation, and (B) there shall be no allocation to the Business of general and administrative expenses of Parent;

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(vii)          “ EBITDA Target ” means: (x) for the First Earn-Out Period, $2,250,000, (y) for the Second Earn-Out Period, $6,000,000, and (x) for the Third Earn-Out Period, $9,000,000;

(viii)         “ Holdback Cash ” means $250,000;

(ix)            “ Holdback Shares ” means a number of Parent Shares equal to the result (rounded to the nearest whole number) obtained by dividing $500,000 by the Closing Parent Share Price; and

(x)             “ Maximum Earn-Out Amount ” means, for each Earn-Out Period, $3,583,000.

(c)            Deferral of Payments if Indemnification Claims Outstanding; Method of Payment .  If, at any time that Purchaser is obligated to make any payment or delivery of Purchase Price hereunder, there are one or more outstanding claims for indemnification under Article IX, then Purchaser shall be entitled to withhold that portion first, of the Holdback Cash and the Holdback Shares, pro rata , and second, the Earn-Out Amount for the First Earn-Out Period and any subsequent Earn-Out Period, as necessary, equal to the amount of the asserted claim(s).  Any Parent Shares so withheld shall be valued at the Closing Parent Share Price for such payment.  Upon final resolution of all such indemnification claim(s), any portion of the withheld payment not offset by allowed indemnification claim(s) shall be promptly paid by Purchaser, as applicable, in accordance with this Section 3.2.

(d)            Revision of Earn-Out Targets .  In the event that prior to the end of any Earn-Out Period the Parent or the Purchaser (i) sells, assigns or otherwise transfers for value any material portion of the Business or (ii) materially reduces the capital resources made available to the Business other than in response to the failure of the Business to perform according to projections, then in such event the Parent and the Sellers agree to negotiate in good faith such revisions to the provisions of this Section 3.2 (as the same apply to Earn-Out Periods ending after the date of such event) as the parties shall agree are appropriate to reflect the changed circumstances; provided , however , that in no event shall the aggregate Maximum Earn-Out Amounts for the remaining Earn-Out Periods be increased.

3.3            Net Working Capital Adjustment .

(a)            The parties acknowledge and agree that the aggregate amount of the Purchase Price has been established in part with reference to the net working capital of Sellers (calculated with reference only to Purchased Assets and Assumed Liabilities) in the amount of $1,967,000 (the “ Base NWC ”).  At the Closing, Sellers shall deliver to Purchaser a certificate (the “ Closing Certificate ”) detailing the calculation of the estimated net working capital of Sellers as of July 31, 2006 (the “ Estimated NWC ”) which estimate shall be prepared by Sellers in accordance with GAAP applied consistently with the Seller Financial Statements (calculated with reference only to Purchased Assets and Assumed Liabilities).  As promptly as practicable, but in any event within ninety (90) days after the Closing Date, Purchaser shall deliver to Sellers a statement of the net working capital of Sellers as of the Closing Date (the “ Closing Date Statement ”), which shall be prepared by Purchaser in accordance with GAAP (calculated with

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reference only to Purchased Assets and Assumed Liabilities).  The Closing Date Statement shall be conclusive and binding upon the parties hereto, unless Sellers object in writing to any item or items shown on the Closing Date Statement within twenty (20) days after delivery to Sellers of the Closing Date Statement (the “ Objection Period ”).  During the Objection Period, Sellers shall have reasonable access during normal business hours to all work papers of Purchaser’s accountant that were used in the preparation of the Closing Date Statement.  If Purchaser and Sellers shall be unable to resolve any dispute with respect to the Closing Date Statement within twenty (20) days after delivery of Sellers’ written objections, the matter or matters in dispute shall be submitted (at the equal expense of Purchaser and Sellers) to such firm of independent certified public accountants as Purchaser and Sellers may mutually agree.  The decision of such firm of independent certified public accountants shall be conclusive and binding upon Purchaser and Sellers.  The net working capital of Sellers as of the Closing Date conclusively determined as aforesaid is sometimes referred to herein as the “ Closing NWC ”.

(b)            Promptly following the conclusive determination of Closing NWC, the Purchase Price shall be adjusted as follows:

(i)             In the event that the Estimated NWC exceeds the Closing NWC, then the Purchase Price shall be adjusted downward in an amount equal to such excess, and Sellers shall promptly pay to Purchaser, by wire transfer of immediately available funds to an account designated by Purchaser, an amount equal to such excess; and

(ii)            In the event that Closing NWC exceeds the Estimated NWC, then the Purchase Price shall be adjusted upward in an amount equal to such excess and the Purchaser shall promptly pay to Sellers by wire transfer of immediately available funds to an account designated by Sellers, an amount equal to such excess.

3.4            Closing .  Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at the offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., One Financial Center, Boston, Massachusetts at 10:00 a.m. Boston, Massachusetts time, on the later of (i) August 17, 2006 and (ii) the fifth Business Day following the later to occur of (A) the expiration or termination of all applicable waiting periods under the HSR Act and any applicable Foreign Competition Laws, and (B) the satisfaction or waiver of all other conditions to the obligations of the parties set forth in Article VIII, or at such other place or time or on such other date as Sellers and Purchaser may mutually agree upon in writing (the day on which the Closing takes place being the “ Closing Date ”).

3.5            Purchase Price Allocation .  Purchaser shall prepare an allocation of the Purchase Price, the Assumed Liabilities and all other capitalized costs among the Purchased Assets and the Non-Competition Agreements in accordance with Code §1060 and the Treasury regulations thereunder (and any similar provision of state, local or foreign law, as appropriate).  Purchaser shall deliver such allocation to Sellers within sixty (60) days after the Closing Date.  Such allocation shall be binding upon Seller and Purchaser subject to Sellers’ consent which shall not be unreasonably withheld or delayed.  Owners and Purchaser and their respective Affiliates shall

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report and file Tax Returns (including, but not limited to Internal Revenue Service Form 8594), and shall act, in all respects and for all purposes consistent with such allocation.  Sellers and the Owners shall timely and properly prepare, execute, file and deliver all such documents, forms and other information as Purchaser may reasonably request to give effect to such allocation.  Neither Sellers, the Owners nor Purchaser shall take any position (whether in audits, Tax Returns or otherwise) which is inconsistent with such allocation unless required to do so by applicable Law.

3.6            Transfer Taxes .  Sellers shall be liable for and shall pay all federal and state sales Taxes (including any retail sales Taxes and land transfer Taxes) and all other Taxes, duties, fees or other like charges of any jurisdiction properly payable in connection with the transfer of the Purchased Assets by Sellers to Purchaser.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF SELLERS AND OWNERS

As an inducement to Purchaser to enter into this Agreement and to consummate the transactions contemplated hereby, Sellers and the Owners, jointly and severally, represent and warrant to Purchaser as follows:

4.1            Organization and Qualification; Subsidiaries .

(a)            Each Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Florida and has all the requisite power and authority, and is in possession of all franchises, grants, authorizations, licenses, permits, easements, consents, waivers, qualifications, certificates, and approvals (collectively, “ Approvals ”) necessary to own, lease and operate its properties and to carry on its business as it is now being conducted.  Each Seller is duly qualified or licensed as a foreign limited liability company 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 activities makes such qualification or licensing necessary, except where the failure to be so qualified could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Sellers taken as a whole or on the Business.

(b)            Each Seller does not (i) own of record or beneficially, directly or indirectly, (A) any shares of capital stock or securities convertible into capital stock of any other corporation or (B) any participating interest in any partnership, joint venture or other non-corporate business enterprise or (ii) control, directly or indirectly, any other entity.

4.2            Articles of Organization; Operating Agreement .   True, correct and complete copies of each of (a) the Articles of Organization, operating agreement, and any other similar organizational documents of each Seller, each as amended and in effect on the date hereof (collectively, the “ Seller Organizational Documents ”), and (b) the minute books of each Seller have been previously delivered to Purchaser.  Such minute books contain complete and accurate records of all meetings and other corporate actions of the managers and members of each Seller

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from the date of its organization to the date hereof and have been maintained in a manner consistent with good business practices.

4.3            Capitalization .

(a)            Section 4.3(a) of the Disclosure Schedule sets forth a true, complete and correct detailed list of all membership interests of each Seller that are authorized, issued, reserved for issuance or outstanding (collectively, the “ Seller Membership Interests ”) and the identity of the holder thereof.  Except as set forth in the Seller Organizational Documents, no Seller Membership Interests are subject to, nor were they issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right.  All outstanding Seller Membership Interests are duly authorized, validly issued, fully paid and nonassessable and not subject to any kind of preemptive (or similar) rights, except as set forth in the Seller Organizational Documents.  There are no bonds, debentures, notes or other indebtedness of any Seller with voting rights (or convertible into, or exchangeable for, securities with voting rights) on any matters on which members of any Seller may vote.  All of the issued and outstanding Seller Membership Interests were issued in compliance with applicable federal and state securities laws.

(b)            There are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind (contingent or otherwise) to which any Seller is a party or by which any Seller is bound obligating any Seller to issue, deliver or sell, or cause to be issued, delivered or sold, additional membership interests of any Seller or obligating any Seller to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking, except as set forth in the Seller Organizational Documents.  There are no outstanding contractual obligations of any Seller to repurchase, redeem or otherwise acquire any membership interests (or options to acquire any such membership interests) or other security or equity interest of any Seller.  There no stock-appreciation rights, security-based performance units, “phantom” stock or other security rights or other agreements, arrangements or commitments of any character (contingent or otherwise) pursuant to which any Person is or may be entitled to receive any payment or other value based on the revenues, earnings or financial performance, security price performance or other attribute of any Seller or assets or calculated in accordance therewith or to cause any Seller to file a registration statement under the Securities Act, or which otherwise relate to the registration of any securities of any Seller.

(c)            There are no voting trusts, proxies or other agreements, commitments or understandings of any character to which any Seller or any of the members of any Seller, is a party or by which any of them is bound with respect to the issuance, holding, acquisition, voting or disposition of any securities, membership interests or other equity interests of any Seller.

4.4            Authority of Seller; Enforceability .  Each Seller has all necessary power and authority to execute and deliver this Agreement, each Ancillary Agreement to which it is a party and each instrument required to be executed and delivered by it at the Closing, and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby.  The execution and delivery by each Seller of this Agreement and each Ancillary Agreement to which it is a party, the performance of its obligations hereunder and thereunder,

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and the consummation by each Seller of the transactions contemplated hereby and thereby, have been duly and validly authorized and approved by all necessary action and no other proceedings on the part of any Seller or Owner are necessary to authorize this Agreement or any Ancillary Agreement to which any Seller or Owner is a party or to consummate the transactions contemplated herein and therein.  This Agreement and each of the Ancillary Agreements to which any Seller or Owner is a party have been duly and validly executed and delivered by each Seller and Owner party thereto and, assuming the due authorization, execution and delivery thereof by Purchaser, constitutes the legal, valid and binding obligation of each Seller and Owner party thereto, enforceable in accordance with its terms, except that the enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar law now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

4.5            No Conflict; Required Filings and Consents .

(a)            The execution and delivery by each Seller and each Owner of this Agreement, the Ancillary Agreements to which they are a party and any instrument required by this Agreement to be executed and delivered by any Seller or any Owner at the Closing do not, the performance of this Agreement, the Ancillary Agreements to which they are a party or any instrument required by this Agreement to be executed and delivered by any Seller or any Owner at the Closing will not, and the consummation of the transactions contemplated hereby will not, (i) conflict with or violate the Seller Organizational Documents, (ii) conflict with or violate any Law or Order in each case applicable to any Seller or any Owner or by which their properties are bound or affected, or (iii) result in any breach or violation of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair any Seller’s rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the properties or assets of any Seller pursuant to, any note, bond, mortgage, indenture, Contract, agreement, lease, license, permit, franchise or other instrument or obligation to which any Seller is a party or by which any Seller or its or any of its properties are bound or affected, except as set forth in Section 4.5(a) of the Disclosure Schedule.

(b)            The execution and delivery by each Seller and each Owner of this Agreement, the Ancillary Agreements to which they are a party or any instrument required by this Agreement to be executed and delivered by any Seller or any Owner at the Closing do not, and the performance of this Agreement, the Ancillary Agreements to which they are a party and any instrument required by this Agreement to be executed and delivered by any Seller or any Owner at the Closing, shall not, require any Seller or any Owner to, except as set forth in Section 4.5(b) of the Disclosure Schedule, obtain any Approval of any Person or Approval of, observe any waiting period imposed by, or make any filing with or notification to, any Governmental Authority, domestic or foreign, except for (A) compliance with the pre-Merger notification requirements of the HSR Act, or any Foreign Competition Laws, or (B) where the failure to obtain such Approvals, or to make such filings or notifications, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Sellers taken as a whole or on the Business.

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4.6            Assigned Agreements .

(a)            Section 4.6(a) of the Disclosure Schedule sets forth a true and complete list, and, if oral, an accurate and complete summary, of all Contracts to which any Seller is a party or by which it or any of its properties or assets may be (collectively, the “ Assigned Agreements ”).  True and complete copies of all written Assigned Agreements have been delivered to Purchaser by Sellers and Section 4.6(a) of the Disclosure Schedule contains an accurate summary of all Assigned Agreements which are not in writing.  Except as set forth on Section 4.6(a) of the Disclosure Schedule, each Assigned Agreement is freely and fully assignable to Purchaser without penalty or other adverse consequences and no consent of or notice to any third party (a “ Consent ”) is required in order to validly assign and transfer the Assigned Agreements to Purchaser.

(b)            Each Assigned Agreement is in full force and effect, is a valid and binding obligation of each Seller party thereto and, to the Sellers’ Knowledge, of each other party thereto and is enforceable against such Seller in accordance with its terms and, to the Sellers’ Knowledge, is enforceable against each other party thereto, in each case except that the enforcement thereof may be limited by (i) the effects of bankruptcy, insolvency, reorganization, moratorium or other similar law now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law), and such Assigned Agreements will continue to be valid, binding and enforceable in accordance with their respective terms and in full force and effect immediately following the consummation of the transactions contemplated hereby with no material alteration or acceleration or increase in fees or liabilities.  No Seller is or has been alleged to be and, to the Sellers’ Knowledge, no other party is or is alleged to be in default under, or in breach or violation of, any Assigned Agreement and, to the Sellers’ Knowledge, no event has occurred which (whether with or without notice or lapse of time or both) would constitute such a default, breach or violation.

4.7            Compliance .  Each Seller is in compliance with, and is not in default or violation of, (i) Seller Organizational Documents, (ii) any Law or Order by which any of its assets or properties are bound or affected, or (iii) any note, bond, mortgage, indenture, Contract, permit, franchise or other instruments or obligations to which it is a party or by which it or any of its assets or properties are bound or affected, except, as to clauses (ii) and (iii) above, where such noncompliance, default or violation would not have a Material Adverse Effect on Sellers taken as a whole or on the Business.  Each Seller is in compliance in all material respects with the terms of all Approvals.  No Seller has received notice of any revocation or modification of any Approval of any federal, state, local or foreign Governmental Authority that is material to any Seller.

4.8            Financial Statements .

(a)            Attached to Section 4.8(a) of the Disclosure Schedule are the (i) audited combined Balance Sheet of Sellers as of December 31, 2005 and 2004 and the footnotes attached thereto, Income Statement of Sellers for the years ended December 31, 2005 and 2004, and the Statement of Cash Flows of Sellers for the years ended December 31, 2005 and 2004 and (ii) unaudited combined Balance Sheet of Sellers as of July 31, 2006, Income Statement of Seller for

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the seven months ended July 31, 2006, and the Statement of Cash Flows of Seller for the seven months ended July 31, 2006 (together, the “ Seller Financial Statements ”), together with all related compilations, reviews and other reports issued by Sellers’ independent certified public accountants with respect thereto, all of which statements (including the notes thereto) are complete and correct in all material respects and (i) were prepared in accordance with the books of account and other financial records of Sellers, (ii) were prepared in accordance with GAAP (except as may otherwise be indicated in the notes thereto), and (iii) present fairly the assets, liabilities and financial position of Sellers on the date of such statements, and the results of operations and changes in the financial condition of Sellers for the periods covered thereby, subject, in the case of unaudited financial statements, to normal recurring year-end adjustments (the effect of which shall not, individually or in the aggregate, have a Material Adverse Effect on Sellers taken as a whole or the Business) and the absence of notes that, if presented, would not differ materially from those included in the audited combined Balance Sheet of Sellers for the year ended December 31, 2005.

(b)            Section 4.8(b) of the Disclosure Schedule contains an aged list of the Receivables as of June 30, 2006.  Except as set forth on Section 4.8(b) of the Disclosure Schedule, all Receivables reflected on the Seller Financial Statements arose from, and the Receivables existing on the Closing Date will have arisen from, the delivery of products in the Ordinary Course of Business, consistent with past practice, to Persons not affiliated with any Seller and, except as reserved against on the Balance Sheet, constitute or will constitute, as the case may be, only valid, undisputed claims of Seller not subject to valid claims of set-off or other defenses or counterclaims.  All Receivables reflected on the Seller Financial Statements or arising from the date thereof until the Closing (subject to the reserve for bad debts, if any, reflected on the Seller Financial Statements) are owned by Sellers free and clear of any Liens and, to Seller’s Knowledge, are or will be good and have been collected or will be collectible in the aggregate face amounts thereof, without resort to litigation or extraordinary collection activity, within ninety (90) days of the Closing Date.

(c)            Each Seller maintains, or causes another Seller to maintain on its behalf, a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general and specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

4.9            Absence of Certain Changes or Events .  Except for the transactions expressly contemplated hereby or disclosed on Section 4.9 of the Disclosure Schedule, since December 31, 2005, the Sellers have not:

(a)            issued, sold, redeemed or repurchased any membership interests, bonds or other securities (including without limitation convertible securities) or any rights, options or warrants with respect thereto, or amended any of the terms (including without limitation the vesting of) any such securities, rights, options or warrants;

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(b)            split, combined or reclassified any of its membership interests, or declared, set aside or paid any dividend or other distribution with respect to any membership interests of Seller, whether in cash, securities or property, or any combination thereof;

(c)            made any loan, advance or capital contribution to or investment in any person;

(d)            borrowed any amount or incurred or become subject to any liabilities (absolute or contingent) except current liabilities incurred in the Ordinary Course of Business;

(e)            discharged or satisfied any claim or encumbrance or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the Ordinary Course of Business;

(f)             amended any of the Seller Organizational Documents;

(g)            instituted or settled any Litigation;

(h)            mortgaged or pledged any of its assets, tangible or intangible, or subjected itself or any portion of its assets, tangible or intangible, to any claim, except claims for current property taxes not yet due and payable;

(i)             acquired or sold, assigned, transferred or otherwise disposed of any amount of tangible assets, except the sale of Inventory to unaffiliated third parties in the Ordinary Course of Business, or canceled any debts or claims;

(j)             sold, assigned, licensed, sublicensed or transferred any intangible asset or intellectual property right, or disclosed any proprietary or confidential information to any person or entity not associated with the Sellers, unless such person or entity, prior to such disclosure executed and delivered a non-disclosure agreement in favor of the Sellers;

(k)            suffered any non-operating loss in excess of $10,000, or aggregate non-operating losses in excess of $20,000, in either case regardless of whether in the Ordinary Course of Business or covered by insurance;

(l)             waived any right of value in excess of $10,000, or aggregate rights in excess of $20,000 (including any insurance policy naming it as a beneficiary or a loss payable payee);

(m)           suffered any labor trouble, or any event or condition of any character, having a Material Adverse Effect on the business or plans of any Seller;

(n)            materially decreased expenditures with respect to maintenance and repairs;

(o)            made any single capital expenditure or commitment therefor in excess of $10,000, or aggregate capital expenditures or commitments therefor in excess of $20,000;

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(p)            done any of the following: (A) entered into, adopted or amended any employee benefit plan, (B) made any grant of any severance or termination pay to any director, officer, employee or individual providing services to any Seller, (C) entered into any employment, deferred compensation, change in control or other similar agreement (or any amendment to any such existing agreement) with any director, officer, employee or individual providing services to any Seller, (D) increased benefits payable under any existing severance or termination pay policies or employment agreements, or (E) increased compensation, bonus or other benefits payable to directors, officers, employees or individuals providing services to any Seller or any of their Affiliates, other than, in the case of clause (B), with respect to non-executive employees, and in the case of clause (E), in the Ordinary Course of Business;

(q)            entered into any joint venture, partnership or similar arrangement;

(r)             amended, modified or terminated any Contract, understanding, commitment or agreement referred to in or required to be set forth in Section 4.6(a) of the Disclosure Schedule, other than in the Ordinary Course of Business, except for any such item that terminated in accordance with its terms, or taken any action that would constitute a violation of or default under any material Contract;

(s)            changed its accounting methods, principles or practices, or revalued any of its assets (including without limitation the writing down of the value of inventory or the writing off of notes or accounts receivable other than in the Ordinary Course of Business);

(t)             taken any action that would have required the consent of Purchaser pursuant to Section 6.3 had such action or event occurred after the date hereof and prior to the Closing;

(u)            taken, or failed to take, any action which could reasonably be expected to prevent, hinder or materially delay the ability of Sellers to consummate the transactions contemplated by this Agreement or the Ancillary Agreements to which it is a party;

(v)            entered into any other transaction other than in the Ordinary Course of Business or entered into any other material transaction, whether or not in the Ordinary Course of Business; or

(w)           agreed in writing or otherwise to take any of the foregoing actions.

4.10          No Undisclosed Liabilities .   No Seller has any liabilities or obligations of any nature (whether known, unknown, asserted, unasserted, accrued, unaccrued, absolute, fixed, contingent, liquidated, unliquidated, due, to become due, or otherwise), and there is no existing fact, condition or circumstance which could reasonably be expected to result in such liabilities or obligations, except liabilities or obligations reflected in the Seller Financial Statements to the extent so reflected.

4.11          Absence of Litigation .  There is no Litigation or investigation pending or, to the Knowledge of any Seller, threatened against or otherwise adversely affecting any Seller or any of their respective properties, assets or rights, before or subject to any Court or Governmental Authority, nor does there exist any reasonable basis for any such Litigation.  No Seller is subject

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to any outstanding Litigation or Order which, individually or in the aggregate, would prevent, hinder or delay any Seller from consummating the transactions contemplated by this Agreement.  There is no Litigation pending or, to the Knowledge of any Seller, threatened that might call into question the validity of this Agreement or any action taken or to be taken pursuant hereto, nor does there exist any reasonable basis for any such Litigation.

4.12          Employee Benefit Plans .

(a)            All “employee benefit plans” (as defined in Section 3(3) of ERISA) and all bonus, stock or other security option, stock or other security purchase, stock or other security appreciation rights, incentive, deferred compensation, retirement or supplemental retirement, severance, golden parachute, vacation, cafeteria, dependent care, medical care, employee assistance program, education or tuition assistance programs, insurance and other similar fringe or employee benefit plans, programs or arrangements, and any employment or executive compensation or severance agreements, written or otherwise, which are sponsored or maintained by any Seller, or any trade or business (whether or not incorporated) which is a member of a controlled group or which is under common control with any Seller, within the meaning of Section 414 of the Code (an “ ERISA Affiliate ”), on the date hereof are listed in Section 4.12(a) of the Disclosure Schedule (together, the “ Employee Plans ”).  With respect to an Employee Plan that is a “group health plan” (within the meaning of Code Section 5000(b)(1)), Sellers have provided to Purchaser correct and complete copies of (where and if applicable) (1) the most recent plan document, summary plan description, summary of material modifications and amendments related to such plans, (2) the two most recent Form 5500 Annual Reports and summary annual reports and (3) the most recent agreement or insurance contract which implement each such Employee Plan.

(b)            To Sellers’ Knowledge, (1) there has been no “prohibited transaction,” as such term is defined in Section 406 of ERISA and Section 4975 of the Code, with respect to any Employee Plan; (2) there are no claims pending (other than routine claims for benefits) or threatened against any Employee Plan or against the assets of any Employee Plan, nor are there any current or threatened Liens on the assets of any Employee Plan; (3) all Employee Plans conform to, and in their operation and administration are in all material respects in compliance with the terms thereof and requirements prescribed by any and all statutes (including ERISA and the Code), orders, or governmental rules and regulations currently in effect with respect thereto (including without lim