ASSET PURCHASE AGREEMENT

Exhibit 2.1

ASSET PURCHASE AGREEMENT

BETWEEN

NUVASIVE, INC.

AND

RADIUS MEDICAL, LLC

January 23, 2007

TABLE OF CONTENTS

ASSET PURCHASE AGREEMENT

     This ASSET PURCHASE AGREEMENT (the “ Agreement ”), dated as of January 23, 2007, is entered into by and among NuVasive, Inc., a Delaware corporation (“ Buyer ”), Radius Medical, LLC, a California limited liability company (“ Seller ”), and, with respect to Section 6.7, 6.8 and Article 9 hereof only, Biologic, LLC, a California limited liability company (“ Biologic ”), Antone Family Partners, a California general partnership (“ Antone Partners ”), and Russell Cook and Duraid Antone, each individual residents of the state of California (each, a “ Manager ,” and collectively, the “ Managers ”).

RECITALS

     WHEREAS, Seller owns certain assets in connection with the design, development, marketing and distribution by Seller of the Products (collectively, the “ Business ”); and

     WHEREAS, subject to the terms and conditions of this Agreement, Seller desires to sell, and Buyer desires to buy, all of Seller’s right, title and interest in and to substantially all of the assets used in or necessary for the operation of the Business, except the Excluded Assets as hereinafter defined;

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

ARTICLE 1

DEFINITIONS

     1.1 Definitions . In this Agreement, the following terms have the meanings specified or referred to in this Section 1.1 and shall be equally applicable to both the singular and plural forms. Any agreement referred to below shall mean such agreement as amended, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement.

     “ Accounts Receivable ” has the meaning specified in Section 4.8(a) hereof.

     “ Additional Agreements ” means all agreements (including exhibits), instruments and documents being or to be executed and delivered under this Agreement or in connection herewith, including, but not limited to the following: (i) the Assignment and Assumption Agreement; (ii) the Assignment of Patents; (iii) the Assignment of Copyrights; (iv) the Assignment of Trademarks; (v) the Bill of Sale; (vi) the Assignment and Assumption of Contracts; (vii) the Escrow Agreement; and (viii) the Manager Agreements, each in the form attached as an exhibit hereto.

     “ Additional Consideration ” has the meaning specified in Section 2.4(b) hereof.

     “ Additional Payment Date ” has the meaning specified in Section 2.4(b) hereof.

     “ Affiliate ” means, as to any Person, any other Person which is controlling, controlled by or under common control with such Person.

     “ Antone Partners ” has the meaning specified in the first paragraph of this Agreement.

     “ Assignment and Assumption Agreement ” means that certain Assignment and Assumption Agreement dated as of the Closing Date, by and between Buyer and Seller, in substantially the form attached hereto as Exhibit A .

     “ Assignment and Assumption of Contracts ” means that certain Assignment and Assumption of Contracts dated as of the Closing Date, by and between Buyer and Seller, in substantially the form attached hereto as Exhibit B .

     “ Assignment of Copyrights ” means that certain Assignment of Copyrights dated as of the Closing Date, by and between Buyer and Seller, in substantially the form attached hereto as Exhibit C .

     “ Assignment of Patents ” means that certain Assignment of Patents dated as of the Closing Date, by and between Buyer and Seller, in substantially the form attached hereto as Exhibit D .

     “ Assignment of Trademarks ” means that certain Assignment of Trademarks dated as of the Closing Date, by and between Buyer and Seller, in substantially the form attached hereto as Exhibit E .

     “ Assumed Liabilities ” has the meaning specified in Section 2.3(a) hereof.

     “ Balance Sheet ” has the meaning specified in Section 4.14 hereof.

     “ Bill of Sale ” means that certain Bill of Sale dated as of the Closing Date, by and between Buyer and Seller, relating to the sale of certain of the Purchased Assets, in substantially the form attached hereto as Exhibit F .

     “ Biologic ” has the meaning specified in the first paragraph of this Agreement.

     “ Business ” has the meaning specified in the recitals to this Agreement.

     “ Buyer ” has the meaning specified in the first paragraph of this Agreement.

     “ Buyer Affiliates ” has the meaning specified in Section 9.1(a) hereof.

     “ Buyer’s Damages ” has the meaning specified in Section 9.1(a) hereof.

     “ Cash Consideration ” has the meaning specified in Section 2.4(a)(i) hereof.

     “ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

     “ Claims and Losses ” has the meaning specified in Section 9.1(a) hereof.

     “ Closing ” has the meaning specified in Section 3.1 hereof.

     “ Closing Date ” has the meaning specified in Section 3.1 hereof.

     “ Closing Price ” means the Reference Market Value on the Closing Date (as adjusted for stock splits, stock dividends, reclassifications or similar events).

     “ Code ” means the United States Internal Revenue Code of 1986, as amended.

     “ Common Stock ” means the Common Stock of Buyer, $0.001 par value per share.

     “ Competitive Activity ” means directly or indirectly (or having any material interest in a Person) (i) engaging in any activity that is the same as, materially similar to, or competitive with the Business; (ii) engaging in the development or distribution of any product that is the same as, materially similar to, or competitive with any of the Products developed or sold by Buyer during the Noncompetition Period; or (iii) diverting or attempting to divert from Buyer or any Affiliate of Buyer any business of any kind relating to the Business, including the solicitation of or interference with any suppliers, consultants, contractors, or customers of such operations; provided, however, that the development or distribution of a product that does not have a principal application in spinal surgery shall not be deemed a Competitive Activity.

     “ Contracts ” has the meaning specified in Section 4.9 hereof.

     “ Effectiveness Date ” means the date that the Registration Statement to be filed pursuant to Section 6.5 is first declared effective by the SEC.

     “ Effectiveness Price ” means the Reference Market Value on the Effectiveness Date (as adjusted for stock splits, stock dividends, reclassifications or similar events).

     “ Encumbrance ” means any lien, claim, charge, security interest, mortgage, pledge, easement, conditional sale or other title retention agreement, defect in title, covenant or other restrictions of any kind.

     “ Environmental and Safety Requirements ” means all federal, state, local and foreign statutes, regulations, ordinances and other provisions having the force or effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law, in each case concerning public health and safety, worker health and safety and pollution or protection of the environment (including, without limitation, all those relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, Release, threatened Release, control or cleanup of any hazardous or otherwise regulated materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise, radiation or radon), each as amended and. as now or hereafter in effect.

     “ Environmental Lien ” means any lien, whether recorded or unrecorded, in favor of any governmental entity, relating to any liability of Seller arising under any Environmental and Safety Requirements.

     “ Escrow Agent ” shall mean Wells Fargo Bank, National Association.

     “ Escrow Agreement ” means that certain Escrow Agreement dated as of the Closing Date, by and between Buyer, Seller and the Escrow Agent, in substantially the form attached hereto as Exhibit I .

     “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

     “ Excluded Assets ” has the meaning specified in Section 2.2 hereof.

     “ FDA ” means the United States Food and Drug Administration.

     “ Financials ” has the meaning specified in Section 4.14 hereof.

     “ 510(k) ” has the meaning specified in Section 4.17(d) hereof.

     “ GAAP ” means the United States generally accepted accounting principles.

     “ Governmental Body ” means any foreign, federal, state, county, local, district, public authority, public agency or any other political subdivision, public corporation or governmental or regulatory authority, whether foreign or domestic.

     “ Governmental Order ” means any judgment, order, award or decree of any foreign, federal, state, local or other court or tribunal, or any Governmental Body and any award in any arbitration proceeding.

     “ Governmental Permits ” has the meaning specified in Section 4.5(a) hereof.

     “ IDE ” has the meaning specified in Section 4.17(d) hereof.

     “ Indebtedness ” means, with respect to any Person, any indebtedness, secured or unsecured, (a) in respect of borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof), and evidenced by bonds, notes, debentures or similar instruments or letters of credit, to the extent of the face value thereof (or, in the case of evidence of indebtedness issued at a discount, the current accredit value thereof) or (b) representing the balance deferred and unpaid of the purchase price of property or services (other than accounts payable (including trade payables) in the ordinary course of business) and shall also include, to the extent not otherwise included, (i) any capitalized lease obligations and (ii) the face value of guaranties of items of other Persons which would be included within this definition for such other Persons (whether or not such items would appear upon the balance sheet of the guarantor).

     “ Indemnified Party ” has the meaning specified in Section 9.2(b) hereof.

     “ Indemnifying Party ” has the meaning specified in Section 9.2(b) hereof.

     “ Intellectual Property ” means all of the intellectual property used in the Business or Products, including: (a) inventions, whether or not patentable, whether or not reduced to practice,

and 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) all worldwide 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 law, multinational treaties or conventions and all improvements to the inventions disclosed in each such registration, patent or application (collectively, “ Patents ”); (d) trademarks, service marks, trade dress, logos, limited liability company names and trade names, including all of the goodwill associated therewith, whether or not registered, including all common law rights and registrations and applications for registration thereof (collectively, “ Trademarks ”); (e) copyrights, whether or not registered, and registrations and applications for registration thereof, and all rights therein provided by law, multinational treaties or conventions (collectively, “ Copyrights ”); (f) trade secrets and confidential, technical information (including ideas, formulas, compositions, inventions and conceptions of inventions, whether patentable or unpatentable and whether or not reduced to practice) (collectively, “ Trade Secrets ”); (g) technology (including know-how and show-how), manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data and copyrightable works, whether secret or confidential or not; (h) copies and all tangible embodiments of all of the foregoing, in whatever form or medium; (i) all rights to obtain and rights to apply for patents, and to register trademarks and copyrights; (j) all rights to sue for and recover and retain damages, costs or attorneys’ fees for present and past infringement of any of the Intellectual Property rights described above; (k) any non-infringement and/or invalidity opinions received by Seller with respect to any of the Intellectual Property rights described above; and (l) the names used and associated with any of the Products.

     “ Interim Financial Statements ” has the meaning specified in Section 4.14 hereof.

     “ Inventory ” has the meaning specified in Section 4.8(b) hereof.

     “ IRS ” means the Internal Revenue Service of the United States of America.

     “ Manager(s) ” has the meaning specified in the first paragraph of this Agreement.

     “ Manager Agreements ” means those certain Consulting and Non-Competition Agreements dated as of the Closing Date, by and between Buyer and each of the Managers, each in substantially the form attached hereto as Exhibit G .

     “ Material Adverse Event ” means any change, circumstance or effect that, individually or in the aggregate with all other changes, circumstances and effects, is or would be reasonably likely to have a material adverse effect on (i) the Purchased Assets, or (ii) the Business.

     “ MBI ” means Maxigen Biotech, Inc., an entity organized under the laws of Taiwan, and any successor thereto.

     “ Member(s) ” means, individually, Biologic and Antone Partners, and collectively, Biologic and Antone Partners.

     “ Net Sales ” means the total amount of gross receipts of Buyer in connection with sales of Products to non-Affiliate third parties less deduction of all of the following to the extent applicable to such sales: (a) all trade and quantity credits, discounts, charge backs from wholesalers, refunds or rebates which are actually allowed and taken; (b) all amounts of insurance and freight expenses included in any invoice; (c) all allowances or credits for returns or rejected products to the extent such amounts are included in the original gross receipts; and (d) all sales taxes (including value added taxes), duties or other governmental charges incurred.

     “ Net Working Capital ” means (A) Seller’s consolidated total current assets (as defined by and determined in accordance with GAAP) to be transferred to Buyer as of the Closing Date less (B) Seller’s consolidated total current liabilities (as defined by and determined in accordance with GAAP) to be transferred to Buyer as of the Closing Date. For purposes of calculating Net Working Capital, Seller’s current liabilities shall include all indebtedness being assumed by Buyer whether or not such indebtedness would be treated as a current liability under GAAP.

     “ Net Working Capital Certificate ” means a certificate executed by the Managers dated as of the Closing Date, certifying the amount of Net Working Capital (including (i) an itemized list of each element of Seller’s consolidated current assets being transferred to Buyer, (ii) an itemized list of each element of Seller’s consolidated current liabilities being transferred to Buyer, and (iii) any other supporting documentation, information and calculations as are, in Seller’s good faith reasonable judgment, necessary for Buyer to verify and determine the amount of the Net Working Capital and indebtedness).

     “ Net Working Capital Threshold ” means $250,000.

     “ Noncompetition Period ” has the meaning specified in Section 6.2 hereof.

     “ Nondisclosure Agreement ” means that certain Mutual Non-Disclosure and Non-Use Agreement, dated as of July 31, 2006, by and between Buyer and Seller.

     “ Permitted Encumbrances ” means (a) liens for taxes and other governmental charges and assessments which are not yet due and payable, (b) liens of landlords and liens of carriers, warehousemen, mechanics and materialmen and other like liens arising in the ordinary course of business for sums not yet due and payable and (c) other liens or imperfections on property which are not material in amount or do not materially detract from the value of or materially impair the existing use of the property affected by such lien or imperfection.

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

     “ Products ” means any collagen-based medical biomaterials products or any other products designed, developed, manufactured or marketed by Buyer or Seller that incorporate the Patents or Intellectual Property, including without limitation, (i) the synthetic bone graft substitute consisting of resorbable purified fibrillar collagen and partially or fully resorbable hydroxyapatite and/or tricalcium phosphate ceramics marketed and distributed by Seller under the name Formagraft, and (ii) a bone marrow aspiration needle.

     “ Purchase Price ” has the meaning specified in Section 2.4 hereof.

     “ Purchased Assets ” has the meaning specified in Section 2.1 hereof.

     “ Records ” has the meaning specified in Section 2.1(a)(vii) hereof.

     “ Reference Market Value ” means the average closing sale price, as published in the Wall Street Journal, of a share of Common Stock on the Nasdaq Global Market for the ten (10) consecutive trading day period ending three (3) business days prior to the date on which such Reference Market Value is determined.

     “ Registration Statement ” has the meaning specified in Section 6.5(a) hereof.

     “ Release ” has the meaning specified in CERCLA.

     “ Requirements of Laws ” means any applicable foreign, federal, state and local laws, statutes, regulations, rules, codes, ordinances, enforceable judgments, injunctions, decrees and orders, permits, approvals, treaties, enacted, adopted, issued or promulgated by any Governmental Body (including, without limitation, those pertaining to electrical, building, zoning, environmental and occupational safety and health requirements) or common law in effect as of the Closing Date.

     “ Restricted Territory ” means North America (the United States, Canada and Mexico), EU countries, South America and Central America countries, Australia and New Zealand, and each of their respective territories.

     “ Retained Liabilities ” has the meaning specified in Section 2.3(b) hereof.

     “ Schedules ” has the meaning specified in the introductory paragraph to Article 4 hereof.

     “ SEC ” means the United States Securities and Exchange Commission.

     “ Securities Act ” means the United States Securities Act of 1933, as amended.

     “ Seller ” has the meaning specified in the first paragraph of this Agreement.

     “ Seller Affiliates ” has the meaning specified in Section 9.1(b) hereof.

     “ Seller Damages ” has the meaning specified in Section 9.1(b) hereof.

     “ Shares ” has the meaning specified in Section 2.4(a)(ii) hereof.

     “ Share Consideration ” has the meaning specified in Section 2.4(a)(ii) hereof.

     “ Supply Agreement ” means that certain Supply Agreement, dated November 4, 2004, as amended, between Seller and MBI.

     “ Supply Agreement Amendment ” means an amendment to the Supply Agreement, to be dated on or before the Closing Date, and to be entered into by and among Seller and MBI.

     “ Tax ” means any federal, state, local or foreign net income, alternative or add-on minimum, gross income, gross receipts, property, sales, use, transfer, gains, license, excise, employment, payroll, withholding or minimum tax, or any other tax custom, duty, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional amount imposed by any Governmental Body.

     “ Tax Return ” means any return, report or similar statement required to be filed with respect to any Taxes (including any attached schedules), including, without limitation, any information return, claim for refund, amended return and declaration of estimated Tax.

     “ Third Party Expenses ” has the meaning specified in Section 10.10 hereof.

     “ Transfer Taxes ” has the meaning specified in Section 2.5 hereof.

     “ Transferred Agreements ” has the meaning specified in Section 2.1(a)(viii) hereof.

     “ Transferred Permits ” has the meaning specified in Section 2.1(a)(ix) hereof.

     “ Transition Activities ” means the activities and obligations set forth on Schedule 6.7 hereto.

     “ 2005 Financial Statements ” has the meaning specified in Section 4.14 hereof.

     “ Unpaid Indemnification Claims ” has the meaning specified in Section 2.4(b) hereof.

ARTICLE 2

PURCHASE AND SALE

     2.1 Purchase and Sale .

          (a) On the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, convey, assign and transfer to Buyer, and Buyer shall purchase from Seller, all right, title and interest of Seller in and to substantially all of the tangible and intangible properties and assets owned or held by Seller and relating to or used, or held for use, in connection with the Business (collectively, the “ Purchased Assets ”) free and clear of all Encumbrances (except for Permitted Encumbrances), but excluding the Excluded Assets (as defined in Section 2.2), such Purchased Assets to include, but not be limited to:

               (i) all Inventory set forth on Schedule 4.8(b) hereto;

               (ii) all packaging and labeling equipment and materials set forth on Schedule 2.1(a)(ii) hereto;

               (iii) all license agreements related to the Purchased Assets and the Business, including without limitation, past and current licenses and licenses relating to all Products;

               (iv) the goodwill and going concern value of the Business;

               (v) all Intellectual Property;

               (vi) the names of the Products and any similar sounding names and variants thereof and any other names used by Seller in the sales and marketing materials or on the Products, however labeled, which shall expressly include the right of Buyer to market, distribute and sell any existing Products or existing Inventory bearing any corporate names or variants thereof of Seller;

               (vii) all existing supplier lists, customer lists, pricing lists, records, books, ledgers, files, documents, correspondence, repair and maintenance records, operation manuals, advertising, promotional and marketing materials (including, without limitation, catalogues, brochures, trade show equipment, field inventory, loaners, sales force inventory and consignments), studies and reports related primarily to the Purchased Assets or the Business and complete and accurate copies of all applications, registrations, agreements and other documents referenced on Schedule 4.7(a) hereto (collectively, the “ Records ”);

               (viii) all contracts, agreements, commitments, licenses, undertakings, arrangements, and other legally binding contractual rights or obligations to which Seller is a party and which are listed on Schedule 2.1(a)(viii) hereto (collectively, the “ Transferred Agreements ”), including, without limitation, the rights contained in the Supply Agreement;

               (ix) all licenses, permits, approvals, clearances, variances, waivers or consents issued by any Governmental Body used in or necessary to the operation of the Business (collectively, the “ Transferred Permits ”), to the extent transferable;

               (x) all prepaid expenses, advance payments, deposits, surety accounts and other similar assets related to the Business, including without limitation, prepaid deposits with suppliers;

               (xi) all rights, claims and benefits of Seller in, to or under, any (i) (A) employee confidentiality agreements entered into by Seller and (B) confidentiality or secrecy agreements entered into by Seller with third parties that relate to the use or disclosure of information concerning the Purchased Assets or the Business, and (ii) express or implied warranties from the suppliers of goods or services (including any coverage rights under product liability or other insurance maintained by any of such suppliers for the benefit of Seller);

               (xii) any unfilled purchase and sale orders of Seller related to the Business; and

               (xiii) all other assets, properties and rights of Seller of every kind associated with the Business, whether tangible or intangible, and wherever situated, including without limitation, Seller’s books and records, other than the Excluded Assets.

     2.2 Assets Not to be Transferred . Seller shall retain and Buyer shall not acquire (i) any Accounts Receivable or (ii) all of the assets, properties and rights, if any, set forth on Schedule 2.2(b) hereto, which together shall constitute the “ Excluded Assets .”

     2.3 Liabilities and Obligations .

          (a) On the Closing Date, Buyer shall accept, assume and agree to pay, perform or otherwise discharge, in accordance with the respective terms and subject to the respective conditions thereof and hereof, all those liabilities set forth on Schedule 2.3 (the “ Assumed Liabilities ”). Notwithstanding the fact that obligations under the Transferred Agreements are included on Schedule 2.3 , except as expressly set forth on such Schedule, Buyer is only assuming the obligation to perform Seller’s obligations under such Transferred Agreements after the Closing Date, and nothing contained herein shall have the effect of causing Buyer to have assumed or be responsible for any obligations that arose under such Transferred Agreements prior to or on the Closing Date regardless of whether such pre-Closing Date obligations arose in the ordinary course or as a result of any breach or default by Seller.

          (b) Except as expressly set forth in Section 2.3(a) above, Buyer shall not assume or have any responsibility for any liability, obligation or commitment of any nature of Seller prior to the Closing, whether now or hereafter existing, known or unknown, accrued or unaccrued or due to come due, including, without limitation, those liabilities and obligations specifically identified as “Retained Liabilities” throughout this Agreement (herein collectively, the “ Retained Liabilities ”). Seller acknowledges and agrees that it shall be fully responsible for all such Retained Liabilities. The parties agree that notwithstanding the disclosure of a liability on a Schedule hereto (other than Schedule 2.3 ), such liability shall constitute a Retained Liability unless it is explicitly set forth on Schedule 2.3 .

     2.4 Purchase Price .

          (a) In consideration for the Purchased Assets, Buyer shall pay or do the following (collectively referred to as the “ Purchase Price ”):

               (i) Buyer shall pay to Seller at Closing $5,800,000 less the amount by which Net Working Capital is less than the Net Working Capital Threshold at the Closing by wire transfer of immediately available funds to such account as Seller shall, not less than three (3) business days prior to the Closing Date, designate in writing to Buyer (the “ Cash Consideration ”); and

               (ii) Buyer shall issue to Seller at Closing that number of shares of Common Stock (the “ Shares ”) equal to the quotient obtained by dividing $10,200,000 (the “ Share Consideration ”) by the then applicable Reference Market Value on the Closing Date.

          (b) At the Closing buyer shall deposit with the Escrow Agent $2,000,000 (the “ Additional Consideration ”) to be held in escrow to secure any and all Claims and Losses suffered or incurred by Buyer or any Buyer Affiliates during the 18 month period following the Closing for which Buyer or such Buyer Affiliates are entitled to indemnification pursuant to Article 9 of this Agreement and in respect of which Buyer and such Buyer Affiliates have not been actually indemnified by Seller, the Members or the Managers (“ Unpaid Indemnification Claims ”).

     2.5 Transfer Taxes . All use, value-added, gross receipts, excise, registration, stamp duty, sales, transfer or other similar taxes or governmental fees (“ Transfer Taxes ”) imposed,

levied or payable by reason of the signing of this Agreement and by reason of the transfer of assets and assumption of liabilities contemplated hereby shall be paid by Buyer. Seller shall cooperate with Buyer to the extent reasonably requested and legally permitted to minimize any Transfer Taxes.

ARTICLE 3

CLOSING

     3.1 The Closing .

          (a) The consummation of the transactions contemplated by this Agreement shall be consummated (the “ Closing ”) at the offices of Heller Ehrman LLP in San Diego, California on January 23, 2007, or such other place, time and date as the parties shall agree in writing. The time and date on which the Closing is actually held is referred to herein as the “ Closing Date .”

          (b) Subject to fulfillment or waiver of the conditions set forth in Article 7, at the Closing, Buyer shall deliver to Seller each of the following:

               (i) the Cash Consideration;

               (ii) a certificate representing the Shares;

               (iii) the certificate contemplated by Section 8.1 below, duly executed by an authorized officer of Buyer; and

               (iv) the Additional Agreements duly executed by Buyer.

          (c) Subject to fulfillment or waiver of the conditions set forth in Article 8, at the Closing, Seller shall deliver to Buyer each of the following:

               (i) certificates of title or origin (or like documents) with respect to any asset included in the Purchased Assets for which a certificate of title or origin is required in order to transfer title;

               (ii) all consents, waivers or approvals listed on Schedule 4.2 hereto;

               (iii) the certificate contemplated by Section 7.1 below, duly executed by the Managers;

               (iv) certified copies of the resolutions duly adopted by the Members authorizing the execution, delivery and performance of this Agreement and the Additional Agreements and the consummation of the transactions contemplated hereby and thereby;

               (v) good standing certificates for Seller from the Secretary of State of the State of California dated not more than ten (10) days prior to the Closing Date;

               (vi) the legal opinion of Rutan & Tucker, LLP, counsel to Seller, substantially in the form attached hereto as Exhibit H ;

               (vii) releases, including without limitation, termination statements under the Uniform Commercial Code of any financing statements filed against any of the Purchased Assets, evidencing discharge, removal and termination of all Encumbrances to which such Purchased Assets are subject (other than Permitted Encumbrances), which releases shall be effective at or prior to the Closing;

               (viii) all Records maintained with respect to the Business;

               (ix) such other bills of sale, assignments and other instruments of transfer or conveyance as Buyer may reasonably request or as may be otherwise necessary to evidence and effect the sale, assignment, transfer, conveyance and delivery of the Purchased Assets to Buyer;

               (x) the Additional Agreements duly executed by Seller; and

               (xi) the Net Working Capital Certificate.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF SELLER

     As an inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereby, subject to the schedules prepared by Seller relating to this Article 4 (the “ Schedules ”), Seller represents and warrants to Buyer as follows:

     4.1 Organization of Seller . Seller is a limited liability company duly formed, validly existing and in good standing under the laws of the State of California. Seller is duly qualified to carry on the Business as now conducted and is in good standing in each of the jurisdictions in which the ownership or leasing of the Purchased Assets or the conduct of the Business requires such qualification except where such failure to be so qualified or in good standing would not result in a Material Adverse Event. Seller has full corporate power and authority to own or lease and to operate and use the Purchased Assets and to carry on the Business as now conducted.

     4.2 Authorization .

          (a) Seller has full power and authority to execute, deliver and perform this Agreement and all of the Additional Agreements and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and the Additional Agreements by Seller have been duly and validly authorized and approved by the Members. No other limited liability company proceedings on the part of Seller are necessary to authorize the consummation of the transactions contemplated by this Agreement and the Additional Agreements. This Agreement has been, and the Additional Agreements, upon execution and delivery by Seller, will be duly authorized, executed and delivered by Seller and constitutes, or upon execution and delivery will constitute, as the case may be, legal, valid and binding obligations of Seller enforceable against Seller in accordance with their terms, except (i)

as such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights, and (ii) as the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

          (b) Except as set forth on Schedule 4.2 , neither the execution, delivery and performance of this Agreement or any of the Additional Agreements nor the consummation of any of the transactions contemplated hereby or thereby nor compliance with or fulfillment of the terms, conditions and provisions hereof or thereof will: (i) violate, conflict with or result in the breach of any provision of Seller’s operating agreement or any other organizational documents of Seller, (ii) violate or conflict with any Requirement of Laws or Governmental Order applicable to Seller, (iii) violate, conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default, an event of default or an event creating rights of acceleration, termination or cancellation or a loss of rights under any agreement listed (or required to be listed) on Schedule 4.9 , or result in the creation or imposition of any Encumbrance upon any of the Purchased Assets, or (iv) require the approval, consent, authorization or act of, or the making by Seller of any declaration, filing or registration with, any Person.

     4.3 Taxes .

          (a) All Tax Returns that were required to be filed by, or with respect to, Seller on or before the Closing Date have been filed on a timely basis in accordance with the laws, regulations and administrative requirements of the appropriate Governmental Body in all jurisdictions in which such Tax Returns were required to be filed. All such Tax Returns that have been filed were, when filed, and continue to be, true, correct and complete.

          (b) All Taxes due and payable on or before the Closing Date that are either (i) required to be shown on any Tax Return filed by, or with respect to, Seller or (ii) which were not required to be shown on any Tax Return but which were required to be paid by or with respect to Seller, have been timely paid on or before the Closing Date. All Taxes that Seller was required by law to withhold or collect have been (in the case of those that were already required to be withheld or collected) duly withheld or collected and, to the extent required, have been (in the case of those that were already required to be paid) paid to the appropriate Governmental Body. There are no Encumbrances, and will be no Encumbrances on the Closing Date, with respect to Taxes upon any of the Purchased Assets. Any liability of Seller for Taxes not yet due and payable has adequately been provided for by Seller on the Financials (whether or not required to be disclosed under GAAP).

          (c) There is no action, dispute, suit, proceeding, investigation, assessment, audit or claim now pending against, or with respect to, Seller in respect of any Tax nor is any action, dispute, suit, procedure, investigation, assessment, audit or claim for additional Tax expected by Seller to be asserted by any Governmental Body. No Governmental Body has proposed any adjustment with respect to any action, dispute, suit, proceeding, investigation, assessment, audit or claim against or with respect to Seller. All deficiencies proposed (plus any interest, penalties and additions to Tax that were or are proposed to be assessed thereon, if any) with respect to Seller have been paid. There are no outstanding waiver or extensions of any

statute of limitations relating to either the filing of any Tax Return or the payment of any Tax for which Seller may be liable and no Governmental Body has either formally or informally requested such a waiver or extension.

          (d) No claim has ever been made by any Governmental Body in any jurisdiction in which no Tax Return is filed by, or with respect to, Seller that Seller may be subject to taxation by that jurisdiction.

          (e) Seller has never been included in a consolidated, combined or unitary Tax Return nor has Seller ever been a party to any tax sharing or similar agreement or arrangement.

          (f) Seller does not have any liability (whether contingent or otherwise) for Taxes of any other Person (i) under Treasury Regulations Section 1.1502-6 (or any successor provision thereto or any similar provision under state, local or foreign law); (ii) as a successor or transferee or (iii) by contract (whether written or unwritten).

          (g) Seller is a limited liability company treated as a partnership for income Tax purposes for all years of its existence and has not elected at any time to be taxed as a corporation in any jurisdiction.

          (h) No property owned by Seller is property that Buyer or Seller will be required to treat as being owned by another person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately before the enactment of the Tax Reform Act of 1986, or is “tax-exempt use property” within the meaning of Section 168(h)(1) of the Code.

          (i) Seller is neither subject to an adjustment under Section 481 of the Code nor has been required by, nor has requested or received the permission of, any Governmental Body to change its methods of accounting.

          (j) Seller is not a foreign person within the meaning of Section 1445 of the Code.

          (k) Seller does not have in effect any tax elections for Federal income tax purposes under Sections 108, 168, 338, 441, 471, 1017, 1033 or 4977 of the Code.

          (l) There is no contract, agreement, plan or arrangement covering any Person that, individually or collectively, could give rise to the payment of any amount that would not be deductible by Buyer or Seller by reason of Sections 162(m) or 280G of the Code or as excessive or unreasonable compensation.

          (m) Seller is not a party (other than as an investor) to any industrial development bond.

          (n) Seller has never engaged in any exchange under which the gain realized on such exchange was not recognized due to Section 1031 of the Code.

     4.4 Condition and Sufficiency of Assets . The Purchased Assets are suitable for the uses to which they are being put or have been put in the ordinary course of business of the Business, and (ii) the Purchased Assets constitute all of the assets necessary to conduct the Business as currently conducted, except for the Excluded Assets.

     4.5 Governmental Permits .

          (a) Seller owns, holds or possesses all licenses, franchises, permits, privileges, immunities, approvals and other authorizations from all Governmental Bodies which are necessary to entitle it to own or lease, operate and use the Purchased Assets and to carry on and conduct the Business as currently conducted (collectively, the “ Governmental Permits ”). Complete and correct copies of all of the Transferred Permits have heretofore been delivered or will be delivered prior to the Closing Date to Buyer by Seller.

          (b) Except as set forth on Schedule 4.5(b) : (i) Seller has fulfilled and performed its obligations under each of the Governmental Permits, and to its knowledge, no event has occurred or condition or state of facts exists which constitutes or, after notice or lapse of time or both, would constitute a breach or default or violation under any such Governmental Permit or which permits or, after notice or lapse of time or both, would permit revocation or termination of any such Governmental Permit, or which might adversely affect in any material respect the rights of Seller under any such Governmental Permit; (ii) no notice of cancellation, of default, of violation or of any material dispute concerning any Governmental Permit, or of any event, condition or state of facts described in the preceding clause, has been received by, or is known to, Seller; and (iii) each of the Transferred Permits is valid, subsisting and in full force and effect, and may, subject to applicable law, be assigned and transferred to Buyer in accordance with this Agreement, and will continue in full force and effect thereafter, in each case without (A) the occurrence of any breach, default or forfeiture of rights thereunder, or (B) the consent, approval or act of, or the making of any filing with, any Governmental Body.

     4.6 Title to Purchased Assets . Seller has good, marketable and insurable title to all of the Purchased Assets, free and clear of all Encumbrances, except for Permitted Encumbrances and those Encumbrances that will be removed at the Closing. The Purchased Assets are not subject to any liability or obligation of whatever nature, whether known or unknown, absolute, accrued, contingent or otherwise. Upon delivery to Buyer on the Closing Date of the instruments of transfer contemplated by Section 3.1(c) above, Seller will thereby transfer to Buyer good, marketable and insurable title to the Purchased Assets, free and clear of Encumbrances other than Permitted Encumbrances.

     4.7 Intellectual Property .

          (a) Schedule 4.7(a) sets forth the following:

               (i) a complete list of all Patents, Trademarks and Copyrights, and any applications therefor in respect of any of the foregoing, included in the Intellectual Property, which specifies, where applicable, the jurisdictions in which such Intellectual Property right has been issued or registered or in which an application for such issuance and registration has been filed, including the respective registration or application numbers and the names of all registered

owners. All registered Patents, Trademarks and Copyrights included in the Intellectual Property and held by Seller are valid and subsisting;

               (ii) all licenses, sublicenses and other agreements as to which Seller is a party and pursuant to which Seller is authorized to use any Intellectual Property belonging to any third party ( provided , however , that Seller need not list object code end-user licenses granted to end-users in the ordinary course of business that permit use of software products without a right to modify, distribute or sublicense the same), including the identity of all parties thereto, a description of the nature and subject matter thereof, the applicable royalty and the term thereof; and

               (iii) all licenses, sublicenses and ot