ASSET PURCHASE AGREEMENT

EXHIBIT 2.1

ASSET PURCHASE AGREEMENT

dated as of

February 15, 2008

by and among

PLATINUM SELECT HEALTHCARE STAFFING, INC.,

AMN HEALTHCARE, INC. (as to certain provisions),

PLATINUM SELECT, L.P.,

and

the PARTNERS OF PLATINUM SELECT, L.P.

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ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “Agreement”) is entered into as of February 15, 2008, among Platinum Select Healthcare Staffing, Inc., a Texas corporation (“ Buyer ”), Platinum Select, L.P., a Texas limited partnership (“ Seller ”), Platinum Select Management, L.L.C., a Texas limited liability company and general partner of Seller (“ General Partner ”), Patrick Aunkst (“ Aunkst ”), Kristi Bomar (“ Bomar ”), Robert Quigley (“ Quigley ”), Stephanie Houston (“ Houston ”) and Lyle Seedig (“ Seedig ”) (each of Aunkst, Bomar, Quigley, Houston and Seedig, a “ Limited Partner ” and, together, the “ Limited Partners ,” and, together with General Partner, the “ Partners ”), and, with respect to Article 4, Section 7.2(f), Section 8.2 and Section 11.13 only, AMN Healthcare, Inc., a Nevada corporation (“ Guarantor ”). Capitalized terms used herein that are not otherwise defined shall have the meanings set forth in Article 12.

R E C I T A L S

WHEREAS , Seller is engaged in the Business.

WHEREAS , the Partners are the only partners of Seller and collectively own 100% of the rights and interest in Seller, including rights to receive distributions of revenues, allocations of income and loss and distribution of liquidation proceeds and all management rights, voting rights and rights to consent.

WHEREAS , Buyer desires to purchase and acquire certain assets, properties and contractual rights of Seller used in connection with the Business, and Seller desires to sell, transfer, assign and convey such assets, properties and contractual rights to Buyer, and in conjunction therewith, Buyer desires to assume certain identified obligations and liabilities associated with such assets so purchased, all on the terms and subject to the conditions described herein.

WHEREAS , concurrently with the execution and delivery of this Agreement, and as a condition and material inducement to Buyer’s willingness to enter into this Agreement, Landry Seedig is executing and delivering to Buyer an employment offer letter (including the non-competition and non-solicitation covenants set forth therein and the related Confidentiality and Assignment of Inventions Agreement attached as an exhibit thereto) (the “ Employment Agreement ”), which Employment Agreement shall become effective only at the Closing.

WHEREAS , as a further condition and inducement for Buyer to enter into this Agreement, concurrent with the execution and delivery of this Agreement, the Partners have, by resolutions duly adopted by the Partners, approved and adopted the terms of this Agreement and the transactions contemplated hereby.

A G R E E M E N T

In consideration of the mutual promises contained herein and intending to be legally bound, the parties agree as follows:

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ARTICLE 1

PURCHASE AND SALE OF ASSETS

The transactions contemplated by this Agreement are as follows:

1.1 Transfer of Assets . Subject to the terms and conditions of this Agreement, Seller hereby sells, transfers, irrevocably assigns and delivers to Buyer, and Buyer hereby purchases from Seller, free and clear of any Encumbrances, all of Seller’s right, title and interest in and to all of Seller’s property and assets, real, personal or mixed, tangible and intangible, of every kind and description, wherever located, including, without limitation, the following (but excluding the Excluded Assets):

(a) all intellectual property which is used in the Business or is necessary for the operation of the Business as presently conducted or as contemplated to be conducted, including any or all of the following and all rights in, arising out of, or associated therewith, including, without limitation, all such rights used in the operation of the Business: (i) any and all patents and/or patent applications which may be granted on or claim priority of (or serve as the basis for a priority claim by) and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, together with all priority rights and counterpart applications under any existing or future international patent conventions, agreements or treaties; (ii) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology, technical information, data and Customer lists, engineering procedures and all documentation relating to any of the foregoing; (iii) all Trademarks, Domain Names, Trade Secrets and all other rights corresponding thereto throughout the world; (iv) all copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; (v) all Software, including, without limitation, source code (but excluding “shrink wrapped” software which is generally available to the public); (vi) all works of authorship, databases and data collections and all rights therein throughout the world; and (vii) any similar or equivalent rights to any of the foregoing anywhere in the world, together with the goodwill and the business appurtenant thereto and the right to sue third parties for infringement (including, without limitation, damages and injunctive relief) of any of the foregoing based on activities occurring prior to and including the Closing Date, and any current or future right to receive royalties based on any of the foregoing, whether choate or inchoate, known or unknown, contingent or non-contingent (collectively, the “ Intellectual Property ”), including, without limitation, the specific items identified in Section 3.7(a) of the Disclosure Schedule;

(b) all existing documentation relating to the development, use, maintenance and operation of the Intellectual Property;

(c) all Tangible Personal Property, including those items described in Section 3.12 of the Disclosure Schedule, and all rights and interests in, or benefits under, any leases of Tangible Personal Property;

(d) all permits, licenses, franchises, consents and other approvals and operating rights relating to the Assets that are assignable or transferable, including those permits, licenses, franchises, consents and other approvals and operating rights described in Schedule 1.1(d) ;

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(e) all data and records in Seller’s or any of the Partner’s possession related to the Assets or the operation of the Business, including financial and accounting records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents;

(f) all claims of Seller against third parties relating to the Assets or the operation of the Business, whether choate or inchoate, known or unknown, contingent or noncontingent;

(g) all rights of Seller’s relating to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof relating to the Assets or the operation of the Business, including those rights described in Schedule 1.1(g) ;

(h) all rights and interests in and to the Contracts of Seller, including, without limitation, the Contracts of Seller listed in Schedule 1.1(h) and the Seller Contracts Workbook;

(i) all other tangible and intangible assets of Seller used in the Business which are not identified as “Excluded Assets” pursuant to Section 1.2;

(j) all data and information that is collected from, or on behalf of, visitors or users of Seller’s website (or the services provided by Seller’s website), including, without limitation, user names, passwords, account recovery detail, aggregate information, web analytics, all information collected, processed and/or stored through use of TKO software, and any other information necessary for operating the services provided by Seller’s website following the Closing as such website was running as of the date hereof and immediately prior to the Closing;

(k) all accounts receivable related to the Business and relating to services rendered (i) by Seller prior to the Closing or (ii) by Buyer after the Closing pursuant to any Contract not assigned to Buyer at the Closing by operation of Section 5.12 hereto;

(l) all A/R Bank Accounts; and

(m) all routing and billing information and components used in connection with the Business, including, without limitation, all routing and billing computer software and programs containing any Customer information.

All of the property and assets to be transferred to Buyer hereunder are herein referred to collectively as the “ Assets ”.

1.2 Assets Not Transferred . Notwithstanding anything to the contrary contained in Section 1.1 or elsewhere in this Agreement, the following assets of Seller (collectively, the “ Excluded Assets ”) are not part of the sale and purchase contemplated in Section 1.1, are excluded from the Assets and shall remain the property of Seller after the Closing:

(a) all minute books, stock records, ownership records, corporate seals, partnership seals and tax returns;

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(b) all personnel records and other records that Seller is required by Law to retain in its possession; provided , however , that Buyer has been provided copies of all personnel records for all Continuing Employees;

(c) all purchased tickets for the 2007-2008 National Basketball Association season to Dallas Mavericks basketball games (both regular and post-regular season games) and all rights to purchase tickets for future National Basketball Association seasons;

(d) all insurance policies of Seller other than those included in the Assumed Seller Benefits Arrangements;

(e) the laptop computers used by the Limited Partners; provided , however , that there shall be no more than five (5) of such computers and only one (1) computer per Limited Partner, and provided , further , that all data, records and other information related to the Assets shall be entirely and permanently deleted from each Limited Partner’s computer at or before the later of (i) the Closing and (ii) the termination of any consulting or employment arrangement between such Limited Partner and Buyer; and

(f) all rights of Seller and the Partners under the Transaction Documents.

1.3 Assumption of Certain Liabilities . Subject to the terms and conditions of this Agreement, Buyer hereby assumes, takes the Assets subject to and shall be liable for, only those liabilities and obligations identified on Schedule 1.3 (collectively, the “ Assumed Liabilities ”).

1.4 Other Liabilities Not Assumed . Except for the Assumed Liabilities, Buyer does not and shall not be deemed to assume any other liabilities or obligations of Seller in connection with the Transactions. All liabilities and obligations of Seller other than the Assumed Liabilities are referred to herein as the “ Excluded Liabilities ”. The Excluded Liabilities will include, without limitation, the following (but, for avoidance of doubt, will not include any Assumed Liabilities):

(a) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes (whether imposed on Seller or Buyer) and any Taxes of the Business for any period (or portion thereof) ending on or prior to, the Closing Date;

(b) any and all liabilities or obligations of Seller or the Partners payable to any Person identified on Schedule 2.2(b) hereto, whether or not such liabilities are set forth on Schedule 2.2(b) and whether or not such liabilities are accrued in connection with, or with respect to, any Asset or the Business;

(c) except for the Healthcare Employee Payroll Amount and any Undetermined Commissions set forth on Schedule 5.8(b) hereto, any liabilities or obligations arising out of or related to (i) the employment or other service relationship with Seller, and (ii) the termination or compensation by Seller of any Seller Employee or other current or former service provider of Seller, including, without limitation, any Taxes (including, without limitation, any employer withholding and similar

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obligations), compensation claims, workers’ compensation benefits or 401(k) Matching Payments, whether or not such liabilities are accrued in connection with, or with respect to, the Business or the sale of the Assets pursuant hereto; provided that any liability or obligation under or relating to any Assumed Seller Benefit Arrangement (other than any liability or obligation related to Seller’s 401(k) plan, including the 401(k) Matching Payments) with respect to an event or circumstance first occurring or arising after the Closing Date shall not be an Excluded Liability;

(d) any liabilities or obligations of Seller or the Partners incurred, arising from or out of or in connection with this Agreement or the events or negotiations leading up to this Agreement;

(e) all liabilities or obligations of Seller or the Partners in respect of any of the Excluded Assets, including, without limitation, liability for any breaches or nonfulfillments of representations, warranties and covenants (including support requirements and indemnification provisions);

(f) any liabilities or obligations under or relating to any Seller Benefit Arrangement, whether or not such liability or obligation arises prior to or after the Closing Date; provided that any liability or obligation under or relating to any Assumed Seller Benefit Arrangement (other than any liability or obligation related to Seller’s 401(k) plan, including the 401(k) Matching Payments) with respect to an event or circumstance first occurring or arising after the Closing Date shall not be an Excluded Liability; and

(g) any other liability or obligation to which a Seller Employee becomes entitled under any compensatory, benefit or severance policy, plan, agreement, arrangement or program which exists or arises, or may be deemed to exist or arise, under any Law or otherwise, as a result of, or in connection with, the sale of the Business hereunder.

ARTICLE 2

CLOSING DATE/PURCHASE PRICE

2.1 Closing Date . The closing of the transactions contemplated under this Agreement (the “ Closing ”) shall take place at the offices of Heller Ehrman LLP, 275 Middlefield Road, Menlo Park, California 94025 concurrently with the execution and delivery of this Agreement by all of the parties hereto (the “ Closing Date ”). All transactions shall be deemed to take place simultaneously and none of them shall be deemed to have occurred until all shall have occurred.

2.2 Purchase Price . As consideration for the sale to Buyer of the Assets, subject to the provisions of Section 2.4 hereof, Buyer shall pay to Seller cash in the amount of (i) thirty two million, eight hundred eighty four thousand, six hundred dollars ($32,884,600), less (ii) the amounts, if any, set forth on Schedule 2.2(b) hereto, plus (iii) the Net Working Capital Increase, if any, less (iv) the Net Working Capital Decrease, if any (“ Purchase Price ”). The Purchase Price shall be paid as follows:

(a) An amount in cash (the “ Initial Cash Payment ”) equal to (i) thirty two million, eight hundred eighty four thousand, six hundred dollars ($32,884,600), less (ii) the amounts, if any, set forth on Schedule 2.2(b) hereto, less (iii) the Holdback Amount to be paid to Seller at Closing in cash by wire transfer of immediately available funds;

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(b) The Transaction Expenses and Seller Closing Debt (including, without limitation, any Debt outstanding and payable to Bank of Texas and set forth in the Pay-Off Letter) set forth on Schedule 2.2(b) which shall be paid to those Persons identified on Schedule 2.2(b) hereto (which Schedule 2.2(b) hereto shall be delivered to Buyer immediately prior to the Closing) at Closing in cash by wire transfers of immediately available funds (the “ Liability Payments ”);

(c) Two million five hundred thousand dollars ($2,500,000) (the “ Holdback Amount ”) to be paid to Seller, if at all, subject to the provisions of Article 9 hereof; and

(d) The Net Working Capital Increase, if any, to be paid to Seller, if at all, subject to the provisions of Section 2.3 hereof.

2.3 Net Working Capital Adjustment . Within ten (10) Business Days after the Closing Date, Seller shall deliver to Buyer an unaudited balance sheet of Seller as of the close of business on the Closing Date (the “ Closing Balance Sheet ”), together with a certificate signed by Aunkst and Bomar (i) certifying that the Closing Balance Sheet fairly presents, on a good faith basis and using Seller’s commercially reasonable efforts, the financial position of Seller as of the Closing Date, (ii) setting forth the amount of Seller’s Net Working Capital as of the Closing Date, (iii) setting forth an accurate and complete list of Seller’s accounts receivable as of the Closing Date which indicates the aging of such accounts receivable and (iv) including Seller’s calculation of the Net Working Capital (the “ Closing Balance Sheet Certificate ”). Following the delivery by Seller of the Closing Balance Sheet Certificate, Buyer and its representatives shall be given all such access as they may reasonably require to those books and records of Seller in the possession of, and/or under the control of, Seller and/or the Partners, and access to such current or former Seller Employees or representatives of Seller as they may reasonably require for the purposes of resolving any disputes or responding to any matters or inquiries raised concerning the Closing Balance Sheet and/or the contents of the Closing Balance Sheet Certificate. Buyer shall have ten (10) Business Days following receipt of the Closing Balance Sheet Certificate to notify Seller in writing either that (i) the Net Working Capital as proposed by Seller is acceptable (“ Confirmation Certificate ”) or (ii) the Net Working Capital as proposed by Seller is not acceptable (a “ Balance Sheet Dispute Notice ”). If a Confirmation Certificate is delivered by Buyer, then the Net Working Capital set forth in the Closing Balance Sheet Certificate shall be the Net Working Capital for purposes of this Agreement. If a Balance Sheet Dispute Notice is delivered by Buyer, the Net Working Capital shall be determined by negotiation between Buyer and Seller. If Buyer and Seller shall be unable to reach agreement with respect to such calculation within thirty (30) days after delivery of a Balance Sheet Dispute Notice to Seller by Buyer, the determination of such amount shall be submitted to the San Diego office of Ernst & Young LLP, independent certified public accountants (the “ Independent Accountant ”), for review and such review by the Independent Accountant shall be limited to (a) such items and calculations as were addressed in the written notice of objection of Buyer that have not been resolved by the parties and (b) any factual or mathematical errors contained in the information provided by Seller. In the event that Buyer and Seller shall submit any dispute to the Independent Accountant, each such party may submit a “position paper” to the Independent Accountant setting forth the position of such party with respect to such dispute, to be considered

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by such Independent Accountant as it deems fit. The parties shall cause the Independent Accountant to review, subject to limitations of the previous sentence, as promptly as practicable, the calculation of Net Working Capital and to make, subject to the limitations of the previous sentence, such corrections thereto as it deems appropriate consistent with the terms of this Agreement. The Independent Accountant shall issue a written report of its review, setting forth in reasonable detail its calculation of Net Working Capital, which calculation shall be conclusive and binding on the parties to this Agreement and shall be the sole and exclusive means of resolving such disputes. If requested by the Independent Accountant, Buyer and Seller (on its own behalf and on behalf of the General Partner and the Limited Partners) shall execute an engagement letter with the Independent Accountant setting forth the terms and conditions of such engagement, which shall be consistent with the terms of this Section 2.3. If the Independent Accountant is engaged pursuant to this Section 2.3, Buyer and Seller shall use commercially reasonable efforts to cause the Independent Accountant to complete its review and written report as soon as reasonably practicable following such engagement. All fees and expenses relating to the engagement of the Independent Accountant shall be borne equally by Buyer and Seller, and the portion of such fees and expenses payable by Seller shall be “Seller Expenses” which Buyer may, in its sole discretion, elect to pay to the Independent Accountant, in which case the amount of Seller Expenses shall be “Losses” for purposes of Article 9 without regard to the Basket and shall, among other remedies available to Buyer, be subject to Buyer’s Rights of Set-Off. Following the determination of the Net Working Capital in accordance with this Section 2.3, (i) the Net Working Capital Increase, if any, shall be paid to Seller on the fifth (5th) Business Day following the date that the determination of the Net Working Capital shall become conclusive and binding on the parties to this Agreement in accordance with this Section 2.3 or (ii) the Net Working Capital Decrease, if any, shall, at the sole election of Buyer, be “Losses” for purposes of Article 9 without regard to the Basket and be deducted from the Holdback Amount and/or be subject to Buyer’s Rights of Set-Off.

2.4 Earnout .

(a) Earnout Payment . In addition to the Purchase Price payable to Seller pursuant to Section 2.2 hereof, Seller shall, subject to and contingent upon achievement of the EBITDA and revenue threshold (for the Business as conducted by Buyer following the Closing) set forth on Schedule 2.4 hereto and measured for the 12 months ending at the close of business on December 31, 2008 (the “ Earnout Period ”), be entitled to receive an amount of cash equal to the Applicable Earnout Amount set forth on Schedule 2.4 . The provisions of this Section 2.4(a) are subject to the provisions of Section 2.4(c) (regarding Buyer’s Rights of Set-Off) below.

(b) Time for Determination .

(i) As soon as reasonably practicable following December 31, 2008 and no earlier than the completion of Buyer’s annual audit, Buyer shall determine (A) the Earnout Period EBITDA, (B) the Earnout Period Total Revenue and (C) the resulting Applicable Earnout Amount. A copy of Buyer’s computation of the Earnout Period EBITDA, the Earnout Period Total Revenue, and the resulting Applicable Earnout Amount, in each case as set forth in, and (in the case of the Applicable Earnout Amount) calculated in accordance with, Schedule 2.4 hereto, shall be delivered to Seller on or prior to March 3, 2009 and, unless Seller shall object to such computation within ten (10) Business Days after receipt thereof in accordance with the provisions of Section 2.4(b)(ii) below, the computations shall be binding and conclusive on the parties to this Agreement for purposes of this Agreement.

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(ii) If Seller shall object to Buyer’s computations by notifying Buyer in writing within ten (10) Business Days after receipt of Buyer’s computations pursuant to Section 2.4(b)(i), the amount of Earnout Period EBITDA or Earnout Period Total Revenue and/or the resulting Applicable Earnout Amount shall be determined by negotiation between Buyer and Seller. If Buyer and Seller shall be unable to reach agreement with respect to such computations within thirty (30) days after such notification to Buyer by Seller, the determination of such amounts shall be submitted to the Independent Accountant for review, and such review by the Independent Accountant shall be limited to (A) such items and calculations as were addressed in the written notice of objection of Seller that have not been resolved by the parties and (B) any factual or mathematical errors contained in the information provided to or by Buyer. The parties shall cause the Independent Accountant to review, subject to limitations of the previous sentence, as promptly as practicable, the calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue and to make, subject to the limitations of the previous sentence, such corrections thereto as it deems appropriate consistent with the terms of this Agreement. The Independent Accountant shall issue a written report of its review, setting forth in reasonable detail its calculation of the Earnout Period EBITDA and the Earnout Period Total Revenue, which calculation with respect to matters solely involving the application of accounting principles or Tax rules shall be conclusive and binding on the parties to this Agreement and shall be the sole and exclusive means of resolving such disputes. If requested by the Independent Accountant, Buyer and Seller (on its own behalf and on behalf of the General Partner and the Limited Partners) shall execute an engagement letter with the Independent Accountant setting forth the terms and conditions of such engagement, which shall be consistent with the terms of this Section 2.4. If the Independent Accountant is engaged pursuant to this Section 2.4(b)(ii), Buyer and Seller shall use commercially reasonable efforts to cause the Independent Accountant to complete its review and written report as soon as reasonably practicable following such engagement. All fees and expenses relating to the engagement of the Independent Accountant shall be borne equally by Buyer and Seller. Buyer may, in its sole discretion, elect to (but under no circumstances shall be obligated to) pay to the Independent Accountant the fees and expenses for which Seller is responsible pursuant to this Section 2.4(b)(ii) (the “ Seller Expenses ”), in which case Buyer shall be reimbursed for such payment by deduction of the amount of the Seller Expenses from the Rights of Set-Off or the amounts due pursuant to this Section 2.4, if any, as “Losses” for purposes of Article 9; provided , however, that if and only if the Independent Accountant enters into an engagement letter with Buyer and Seller which provides that Buyer and Seller are severally and not jointly liable for equal portions of all of the Independent Accountant’s fees and expenses in excess of $30,000, Buyer will not deduct from the amounts due pursuant to Section 2.4 pursuant to Buyer’s Rights of Set-Off any amount of Seller Expenses which exceed $15,000 without Seller’s prior written consent, which shall not be unreasonably withheld.

(iii) The Applicable Earnout Amount, if any, shall be paid to Seller on the later of (A) March 17, 2009 and (B) the fifth (5 ^th ) Business Day following the date that the determination of the Applicable Earnout Amount shall become binding and conclusive on the parties to this Agreement in accordance with Section 2.4(b)(i) or 2.4(b)(ii) above, as the case may be.

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(c) Right of Set-Off . Buyer shall have the right to withhold and set off against any amount otherwise due to be paid pursuant to this Section 2.4 the amount of (i) any Net Working Capital Decrease and (ii) any Losses to which any Buyer Indemnified Party may be entitled under Article 9 of this Agreement or any other agreement entered into pursuant to this Agreement (the “ Rights of Set-Off ”).

(d) Conduct of the Business . For the period commencing on the Business Day immediately following the Closing Date and ending on the close of business on December 31, 2008, Buyer shall use commercially reasonable efforts to (i) conduct the Business in accordance with the operating and integration plan (the “ Operating and Integration Plan ”), which Operating and Integration Plan has been agreed upon by Buyer and Seller and is attached hereto as Exhibit A , and (ii) for each quarterly period of fiscal 2008, provide to the Partners financial information for the Business consisting of an income statement, a cash flow statement, a statement of budget versus actual results and a trial balance. Notwithstanding the foregoing, following the Closing Date, Buyer and Seller may, but shall not be obligated to, amend the Operating and Integration Plan, which amendment shall be binding on the parties to this Agreement and the Partners.

(e) Acknowledgement of Seller and the Partners . Seller and each Partner acknowledges that (i) upon the Closing and except as expressly provided to the contrary in Section 2.4(d) of this Agreement, Buyer has the right to operate the Business and Buyer’s other businesses in any way that Buyer deems appropriate in Buyer’s sole discretion, (ii) Buyer has no obligation to operate the Business in order to achieve any Applicable Earnout Amount or to maximize the amount of any Applicable Earnout Amount, (iii) there is no assurance that Seller will receive any Earnout Amount and Buyer has not promised or projected any Earnout Amount, (iv) Buyer has no fiduciary duty or express or implied duty to Seller or any Partner, including any implied duty of good faith and fair dealing, (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationship, (vi) the right of Seller to payment of the Earnout Amount, if any, shall not bear any interest and (vii) the right of Seller to a portion of the Earnout Amount, if any, shall not be represented by a certificate or other instrument, shall not represent an ownership interest in Buyer or the Business and shall not entitle Seller to any rights common to any holder of any equity security of Buyer. Each of Seller and each Partner hereby waives any fiduciary duty or express or implied duty of Buyer to Seller or such Partner, including any implied duty of good faith and fair dealing, with respect to the matters contemplated by this Section 2.4.

2.5 Certain Tax Matters .

(a) Seller shall be responsible for paying, shall promptly discharge when due, and shall reimburse, indemnify and hold harmless Buyer and any Buyer subsidiary from, any sales or use, transfer, real property gains, excise, stamp or other similar Taxes resulting from the sale of Assets and the assumption of the Assumed Liabilities contemplated by this Agreement (the “ Transfer Taxes ”). Buyer and Seller agree to cooperate to the extent commercially reasonable and legally permitted to minimize any Transfer Taxes.

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(b) For purposes of complying with the requirements of Section 1060 of the Code, the Purchase Price and any other amounts that may be treated as part of the total consideration for the Assets, as determined for Tax purposes, shall be allocated among the Assets in accordance with fair market value of the Assets as provided in the purchase price allocation schedule to be prepared by Buyer in its reasonable discretion after consultation with Seller (the “ Purchase Price Allocation Schedule ”). Each of Buyer and Seller agrees to prepare its federal, state and foreign income Tax Returns for all current and future tax reporting periods and file Form 8594 (and corresponding state forms) with respect to transfer of the Assets to Buyer in a manner consistent with such allocation. If any state, federal or foreign taxing authority challenges such allocation, the party receiving notice of such challenge shall give the other prompt written notice of such challenge, and the parties shall cooperate in good faith in responding to it in order to preserve the effectiveness of the allocation.

(c) Buyer shall be entitled to deduct and withhold from any payment made under this Agreement such amounts as may be required to be deducted and withheld under the Tax Laws of the United States, any state, or any political subdivision of either. To the extent amounts are so withheld and paid to any appropriate taxing authority, Buyer shall be treated as though it had paid that amount directly to the party entitled to receive such payment.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF SELLER AND EACH PARTNER

Except as otherwise indicated in the Disclosure Schedule attached hereto (it being understood that Disclosure Schedule statements and information referenced in the Disclosure Schedule shall be organized under sections and subsections that correspond to those contained in this Agreement and that a statement or reference under a particular section or subsection of the Disclosure Schedule shall be deemed an exception only to (or, as applicable, a disclosure for purposes of only) (a) the representations and warranties of Seller and/or the Partners, as applicable, that are contained in the corresponding section or subsection of this Agreement and (b) any other representations and warranties of Seller and/or the Partners that are contained in this Agreement, but only, in each case, if the relevance of that statement or reference as an exception to (or disclosure for purposes of) such other representations and warranties is reasonably apparent on its face), Seller hereby represents and warrants to Buyer, and each Partner (severally and not jointly) hereby represents and warrants to Buyer, as follows:

3.1 Organization, Power and Authority . Seller is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Texas. Section 3.1 of the Disclosure Schedule contains a complete and accurate list of any other jurisdiction in which Seller is qualified to do business. Seller is duly qualified to do business and is in good standing under the laws of each jurisdiction in which either ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification. Seller has all requisite partnership power and authority to own, operate and lease the Assets and to conduct the Business, to execute and deliver the Transaction Documents to which it is a party and to perform its obligations thereunder. Seller is not in violation of its certificate of limited partnership or the Limited Partnership Agreement. Seller has provided Buyer with true, correct and complete copies of its certificate of limited partnership and the Limited Partnership Agreement. The Limited Partnership Agreement is in full force and effect, has not been amended since the date thereof and is the only agreement in effect governing the respective rights and obligations of the Partners with respect to Seller.

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3.2 Subsidiaries . Seller does not have any subsidiaries or any equity or ownership interest (or any interest convertible or exchangeable for any equity or ownership interest), whether direct or indirect, in any Person. Seller is not obligated to make nor is it bound by any agreement or obligation to make any investment in or capital contribution in or on behalf of any other Person.

3.3 Authorization and Approval of Agreements .

(a) The execution, delivery and performance by Seller of the Transaction Documents, and the consummation by it of the Transactions, has been duly authorized by Seller and the Partners. This Agreement has been, and each other Transaction Document will be at the Closing, duly executed and delivered by Seller and constitute, or will constitute, when delivered, the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws relating to or limiting creditors’ rights generally and to the principles of equity (regardless of whether considered in a proceeding in equity or an action at law).

(b) This Agreement has been, and each other Transaction Document to which any Partner is a party will be at the Closing, duly executed and delivered by each such Partner and constitute, or will, when delivered, constitute the legal, valid and binding obligation of such Partner, enforceable against such Partner in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws relating to or limiting creditors’ rights generally and to the principles of equity (regardless of whether considered in a proceeding in equity or an action at law).

3.4 Effect of Agreement . The execution and delivery of the Transaction Documents to which Seller or any Partner is a party and each instrument required hereby to be executed and delivered by Seller or any Partner and the performance and consummation by Seller or any Partner of the Transactions will not (a) conflict with or violate the Limited Partnership Agreement or any Law to which Seller or any Partner is subject, or any judgment, award or decree applicable to Seller or any of the Assets, (b) conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice, consent or waiver under, or result in any loss of any benefit to which Seller is entitled under, any Material Contract or Permit, or (c) result in the creation or imposition of any Encumbrance upon the Business or any Asset.

3.5 Approvals . No Approval or Order or action of or filing with any Governmental Entity or other Person is required to be obtained by Seller or any Partner for the execution and delivery by Seller or any Partner of the Transaction Documents to which Seller or any Partner is a party or the consummation of the Transactions, including, without limitation, the sale, transfer, assignment and conveyance of all of Seller’s right, title and interests in and to the Assets to Buyer.

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3.6 Capitalization .

(a) Section 3.6(a) of the Disclosure Schedule sets forth the name, address, and percentage ownership interest of each Partner of Seller. All outstanding limited partnership ownership interests in Seller have been duly authorized and validly issued, are fully paid and nonassessable, were not issued in violation of and are not subject to any right of rescission, right of first refusal or preemptive right, have been offered, issued and sold and delivered by Seller in compliance with all requirements of applicable Law and all requirements set forth in applicable contracts and Seller has received all consideration due to it in connection with the sale and issuance of such limited partnership ownership interests.

(b) Except as set forth in Section 3.6(a) of the Disclosure Schedule, there are no ownership appreciation rights, options, warrants, calls, rights, commitments, conversion privileges or preemptive or other rights or Contracts outstanding to purchase or otherwise acquire any ownership interests of Seller or any securities or debt convertible into or exchangeable for Seller ownership interests or obligating Seller to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or Contract. There are no voting agreements, registration rights, rights of first refusal, preemptive rights, co-sale rights or other restrictions applicable to any outstanding ownership interests or securities of Seller.

3.7 Intellectual Property .

(a) Section 3.7(a) of the Disclosure Schedule lists all of the Intellectual Property owned, used or held by or licensed by or to Seller, including, without limitation:

(i) all patents and pending patent applications owned by Seller, including for each such patent or patent application the patent or serial number, country, filing date and title;

(ii) all registered trademarks and service marks of Seller, and all pending applications for registration by Seller of trademarks, including for each such trademark or service mark, the registration or application number, country, filing and expiration date;

(iii) to the Knowledge of Seller, all worldwide common law trademarks and service marks of Seller;

(iv) all registered copyrights of Seller and all applications by Seller for registration of copyrights, including the registration number, country and filing and expiration date of each such copyright;

(v) all Domain Names owned or used by Seller;

(vi) to the Knowledge of Seller, all unregistered Intellectual Property owned or used by Seller;

(vii) all material Software used in connection with the Business;

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(viii) all licenses or sublicenses by Seller to any person or entity of (A) any of the rights identified in subparagraphs (i) through (vii) above, and (B) any of Seller’s other proprietary information;

(ix) all licenses or sublicenses by any other person or entity to Seller of any other material Intellectual Property; and

(x) any other instrument or other Contract governing any Intellectual Property Right.

(b) Each license, sublicense or other agreement identified in Section 3.7(a)(viii) and Section 3.7(a)(ix) of the Disclosure Schedule (each a “ Seller License ”) is a valid and binding obligation of Seller, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws relating to or limiting creditors’ rights generally and to the principles of equity (regardless of whether considered in a proceeding in equity or an action at law). With respect to each Seller License, there is no default (or event that with the giving of notice or passage of time would constitute a default) by Seller or, to the Knowledge of Seller, the other party thereto. Seller has not received any written notice (and Seller has no knowledge) of claims asserted by any person related to the use of any patents, trademarks, service marks, trade names, copyrights, technology, know-how or processes licensed by or to Seller or challenging or questioning the validity or effectiveness of any Seller License. Neither the execution, delivery or performance of this Agreement or the Transaction Documents to which Seller is a party nor the consummation of the Transactions (i) constitute a material breach of or default under any Seller License; (ii) cause the forfeiture or termination of, or give rise to a right of forfeiture or termination of, any Intellectual Property Right; or (iii) materially impair the right of Seller to use, make, market, license, sell, copy, distribute or dispose of any Intellectual Property Right or portion thereof. There are no royalties, honoraria, fees or other payments payable by Seller to any third Person (other than salaries payable to employees and independent contractors not contingent on or related to use of their work product) as a result of the ownership, use, manufacture, marketing, license-in, sale, copying, distribution or disposition of any Intellectual Property Right by Seller, and none shall become payable as a result of the consummation of the Transactions.

(c) Seller has good and valid title to, or otherwise possesses adequate rights to use pursuant to the licenses listed in Section 3.7(a)(ix) of the Disclosure Schedule, all Intellectual Property necessary to permit Seller to conduct the business and operations of Seller in substantially the same manner as it had been conducted during the last fiscal year and immediately prior to the date hereof and the Assets include all such Intellectual Property.

(d) With respect to any Trademark used by Seller in the Business (each, a “ Seller Mark ”), to the Knowledge of Seller, (i) other than with respect to the Primary Marks, Seller has made prior use in commerce throughout the Territory of any Seller Mark as to any third party, (ii) other than with respect to the Primary Marks, such use by Seller has been continuous throughout the Territory since the initial use through to the present, (iii) each Seller Mark is valid, subsisting and enforceable, and (iv) Seller’s rights to each Seller Mark are superior to and enforceable against the rights of any third party. With respect to the Primary Marks, (A) Seller has made continuous use in commerce throughout the Territory of Primary Mark “A” since January 9, 2002 through to the present,

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(B) Seller has made continuous use in commerce throughout the Territory of Primary Mark “B” since January 22, 2003 through to the present, and (C) Seller has made continuous use in commerce throughout the Territory of the Logo since May 20, 2004 through to the present.

(e) Section 3.7(a)(ix) of the Disclosure Schedule lists all licenses by any other person or entity to Seller of any Intellectual Property which is used in or related to the Business or is necessary for the operation of the Business as presently conducted or as proposed to be conducted (including, without limitation, any “shrink wrapped” software ) and such licenses are assignable to Buyer without third party consent and shall be assigned to Buyer as of the Closing, except the “shrink wrapped” software, which is generally available to the public.

(f) Except as set forth in Section 3.7(f) of the Disclosure Schedule, neither Seller nor any other party authorized to act on its behalf has disclosed or delivered to any party, or permitted the disclosure or delivery to any escrow agent or other party of, any Seller Source Code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) shall, or would reasonably be expected to, result in the disclosure or delivery by Seller or any other party authorized to act on its behalf to any party of any Seller Source Code. Section 3.7(f) of the Disclosure Schedule identifies each Contract pursuant to which Seller has deposited, or is or may be required to deposit, with an escrow agent or other party, any Seller Source Code and further describes whether the execution of this Agreement or the Transaction Documents or the consummation of the Transactions, in and of itself, would reasonably be expected to result in the release from escrow of any Seller Source Code. As used in this Section 3.7, “ Seller Source Code ” means, collectively, any human readable software source code, or any material portion or aspect of the software source code, or any material proprietary information or algorithm contained in or relating to any software source code, that constitutes Seller-owned Intellectual Property Rights or any other Seller product or service marketed or currently proposed to be marketed by Seller.

(g) The Seller Employees have taken all actions necessary, appropriate or desirable to irrevocably assign or otherwise transfer to Seller all of their respective right, title and interest in and to any Intellectual Property Rights owned by them which are necessary to permit Seller to conduct the business and operations of Seller in substantially the same manner as it has been conducted during the last fiscal year and immediately prior to the date hereof. To the Knowledge of Seller, no current or former Seller Employee: (i) is in material violation of any term or covenant of any employment contract, patent disclosure agreement, invention assignment agreement, nondisclosure agreement, noncompetition agreement or any other Contract with any other party by virtue of such Seller Employee’s being employed by, or performing services for, Seller or using trade secrets or proprietary information of others without permission; (ii) has developed any technology, Software, or other copyrightable, patentable or otherwise proprietary work for Seller that (A) is subject to any Contract (written or oral) under which such Seller Employee has assigned or otherwise granted (or may be required to assign or grant) to any third party any rights (including Intellectual Property Rights) in or to such technology, Software or copyrightable, patentable or otherwise proprietary work, (B) was developed during the hours for which such Seller Employee was legally, contractually or otherwise required to be working for any third party, (C) was developed on any computers or other equipment owned by any third party or (D) is substantially similar or related to any technology, Software, or other

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copyrightable, patentable or otherwise proprietary work of any third party which has employed or hired such Seller Employee. To the Knowledge of Seller, neither the employment of any employee of Seller, nor the use by Seller of the services of any consultant or Partner subjects Seller to any liability to any third party (including for improperly soliciting such employee or consultant to work for Seller). Any Partner who was employed by another party during the time when such Partner provided services to Seller represents that he or she has informed and received approval from such other party with respect to such Partner’s involvement with Seller.

(h) Neither the operation of the Business nor the use, development, manufacture, marketing, license, sale, distribution or furnishing of any Seller product or service currently used, developed, made, marketed, licensed, sold, distributed or furnished by Seller (i) violates any Contract between Seller and any third party, or (ii) to the Knowledge of Seller, infringes or misappropriates any third party rights, including without limitation, property rights, intellectual property rights, moral rights and privacy rights. To the Knowledge of Seller, none of the Primary Marks infringes or misappropriates any third party rights, including without limitation, property rights, intellectual property rights, moral rights and privacy rights. Neither the use, development, manufacture, marketing, license, sale, distribution or furnishing of any Seller product or service currently under development by Seller (i) violates any Contract between Seller and any third party, or (ii) infringes or misappropriates any third party rights, including without limitation, property rights, intellectual property rights, moral rights and privacy rights.

(i) Seller has not received any written threat, demand or notice of any claim from any person or entity asserting that Seller’s use of any of the Intellectual Property or the registration thereof constitutes any infringement, interference, violation, misappropriation, breach or wrongful use of the intellectual property rights of any other person or entity and Seller is not a party to any proceeding or outstanding Order, agreement or stipulation restricting in any manner the use, transfer, sale, assignment and/or licensing by Seller of any Intellectual Property, or which may affect the validity, use or enforceability of such Intellectual Property by Seller. All Intellectual Property used by Seller in the Business is valid and enforceable. Seller has received no communications from any third parties raising the possibility of licensing discussions for intellectual property rights held by such third party, which Seller reasonably suspects or believes are made due to the third party’s belief that Seller has infringed or misappropriated such party’s intellectual property rights.

(j) The disclosure by Seller, and the use and further disclosure by Buyer to Affiliates of Buyer or other Persons, of the Intellectual Property assigned to Buyer hereunder will not violate any privacy policy, data-sharing agreement, confidentiality agreement or non-disclosure agreement of which Seller is a party, or infringe or violate the privacy rights of any party.

(k) Except as set forth in Section 3.7(k) of the Disclosure Schedule, all of the Intellectual Property, other than the licensed Intellectual Property identified in Section 3.7(a)(ix) of the Disclosure Schedule, was entirely internally-developed by employees of Seller or validly transferred by such employees to Seller, and all inventorship, ownership, authorship, patent, copyright, trademark, trade secret and other rights relating to such Intellectual Property are owned by Seller free and clear of any obligation or agreement to any other person and will not, as a result of the transactions contemplated by this Agreement, be the subject of any obligation or agreement to any third party. Seller has not transferred, sold, and/or assigned any of its ownership rights in such Intellectual Property to any person or entity.

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(l) Seller has taken all steps necessary, appropriate or desirable (including, without limitation, entering into appropriate confidentiality, non-disclosure and non-competition agreements with all officers, employees and consultants of Seller with access to or knowledge of Seller’s patents, Trademarks, copyrights, inventions, Trade Secrets, Software licenses and other proprietary information) to safeguard and maintain the secrecy and confidentiality of, and its proprietary rights in, all of Seller’s Intellectual Property. All current and former Seller Employees having access to proprietary information of Seller, its Customers or business partners and inventions owned by Seller have executed and delivered to Seller an agreement regarding the protection of such proprietary information and the assignment of inventions to Seller (in the case of proprietary information of Seller’s Customers and business partners, to the extent required by such Customers and business partners); and copies of all such agreements have been delivered to Buyer and, to the Knowledge of Seller, no such individual is in breach of such agreement. Section 3.7(l) of the Disclosure Schedule lists all agreements relating to the protection of such proprietary information and the assignment of inventions. Seller has secured valid written assignments from all current and former Seller Employees who were involved in, or who contributed to, the creation or development of any Intellectual Property Rights, of the rights to such contributions that may be owned by such persons or that Seller does not already own by operation of law. No current or former Seller Employee has any right, license, claim or interest whatsoever in or with respect to any Intellectual Property Rights. No current or former Seller Employee has (i) excluded works or inventions made prior to his or her employment with Seller from his or her assignment of inventions pursuant to such employee, officer or consultant’s proprietary information and inventions agreement or (ii) failed to affirmatively indicate in such proprietary information and inventions agreement that no such works or inventions made prior to his or her employment with Seller exist.

(m) Seller has not disposed of or abandoned or permitted to lapse any Intellectual Property Rights or disclosed to any person other than (i) representatives of Buyer or (ii) third parties subject to confidentiality or non-disclosure agreements, copies of which have been delivered to Buyer, any Trade Secret, proprietary information, formula, process or know-how of Seller not theretofore a matter of public knowledge.

(n) Section 3.7(n) of the Disclosure Schedule lists all software, documentation or other material that is distributed as “free software”, “open source software” or under a similar licensing or distribution model (including, without limitation, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Free Documentation License (FDL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL) the Sun Industry Standards License (SISL), the Apache License, or any Creative Commons License) (collectively, “ Open Source Materials ”) used by Seller in any way, and describes the manner in which such Open Source Materials were used (such description shall include, without limitation, whether (and, if so, how) the Open Source Materials were modified and/or distributed by Seller). Seller has not (i) incorporated Open Source Materials into, or combined Open Source Materials with, any Intellectual Property; (ii) distributed Open Source Materials in conjunction with or for use with any Intellectual Property; (iii) acquired any software from a third party that was or has become or that includes, as a result of such acquisition, Open Source Materials; or (iv) incorporated into Intellectual Property,

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combined or distributed with Intellectual Property, acquired or used any Open Source Materials that create, or purport to create, obligations for Seller with respect to Intellectual Property, or grant, or purport to grant, to any third party, any rights or immunities under Intellectual Property (including, without limitation, having incorporated into, combined or distributed with, acquired or used any Open Source Materials that require, as a condition of use, modification and/or distribution of such Open Source Materials or other software incorporated into, derived from or distributed with such Open Source Materials, that it be (x) disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge or with any restriction on the consideration charged therefor).

(o) Section 3.7(o) of the Disclosure Schedule sets out the physical location of the computer servers that are currently hosting Seller websites. Such servers are validly owned or leased by Seller. Section 3.7(o) of the Disclosure Schedule also sets out any applicable Internet hosting Contract including the term of the Contract, associated costs, corporate information of the host and amount of bandwidth to which the server is connected to the Internet. In addition, Section 3.7(o) of the Disclosure Schedule sets out the name and IP address of Seller’s Internet web homepage and lists all similar names and addresses owned by Seller, the date the homepage was granted and the date of the next annual payment. Seller’s websites contain all legal disclaimers that, in accordance with industry practice, are customarily contained on websites similar to Seller’s websites.

(p) Seller has entered into appropriate agreements, provided legally enforceable disclaimers and has otherwise conducted the Business and taken all actions necessary to eliminate its liability for software or other content developed by third parties that is posted on its website (“ Uploaded Materials ”). No claim has been made against, and no communication has been received by, Seller from any use of the Seller services or content alleging that Seller is liable to such user for any Uploaded Materials under any theory of liability, from third parties alleging that Seller is liable for infringement or misappropriation of its Intellectual Property Rights.

3.8 Material Contracts . Section 3.8 of the Disclosure Schedule lists each Contract to which the Assets are subject, by which the Assets are bound or to which Seller is a party which involves the expenditure or receipt by Seller, (a) with respect to any such Contract with a healthcare facility Customer, of $50,000 or more annually (each, a “ Facility Contract ”), or (b) with respect to all other such Contracts, of $10,000 or more annually (each such Contract, including any Facility Contract, a “ Material Contract ”). Each Material Contract is valid and subsisting; Seller has duly performed all its obligations thereunder to the extent that such obligations to perform have accrued; and, subject to the receipt of those third party waivers and/or consents identified on Schedule 5.12 hereto, no breach or default, alleged breach or default, or event which would (with the passage of time, notice or both) constitute a breach or default thereunder by Seller, or, to the Knowledge of Seller, any other party or obligor with respect thereto, has occurred or as a result of the Transactions will occur. True copies of all Material Contracts listed in Section 3.8 of the Disclosure Schedule, including all amendments and supplements thereto but excluding Facility Contracts to which Seller is a party which involve the receipt by Seller of less than $100,000 annually, have been delivered to Buyer. All Material Contracts are in written form. Other than the Material Contracts identified in Section 3.8 of the Disclosure Schedule, there are no Material Contracts to which the Assets are subject, by which the Assets are bound or to which Seller is a party.

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3.9 Tax Matters .

(a) All Tax Returns required to be filed by or on behalf of Seller have been duly and timely filed with the appropriate Tax authority in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns are true, complete and correct in all material respects. All Taxes payable by or on behalf of Seller (whether or not shown on a Tax Return) have been fully and timely paid. With respect to any period for which such Tax Returns have not yet been filed or for which such Taxes are not yet due or owing, Seller has made due and sufficient accruals for such Taxes on the Seller Balance Sheet. All required estimated Tax payments have been timely made by or on behalf of Seller.

(b) As of the Balance Sheet Date, Seller has no liability for unpaid Taxes, other than Taxes for which adequate reserves have been established. Since the Balance Sheet Date, Seller has not incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.

(c) Seller has complied with all applicable Laws relating to the payment and withholding of Taxes and has duly and timely withheld and paid over to the appropriate Tax authority all amounts required to be so withheld and paid under all applicable Legal Requirements.

(d) Buyer has received complete copies of (i) all material Tax Returns of or including Seller for Tax periods ending after December 31, 2002, and (ii) any audit, report or other similar correspondence issued relating to Taxes of Seller for such periods.

(e) No claim has been made by a Tax authority in a jurisdiction where Seller does not file a Tax Return that it is or may be subject to taxation in that jurisdiction.

(f) No Tax Return of Seller has ever been audited by the Internal Revenue Service or any other Tax authority, no such audit is in progress and Seller has not been notified of any request for such an audit or other examination. No deficiencies for any Tax have been threatened, claimed, proposed or assessed against Seller which have not been settled or paid. No federal, state, local or foreign audits, examinations, investigations or other administrative proceedings or court proceedings are presently pending with regard to any Taxes or Tax Returns filed by or on behalf of Seller. No issue has been raised by any Tax authority in any prior examination of Seller which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency for any subsequent Tax period. No adjustment relating to any Tax Returns filed by Seller has been proposed in writing by a Tax authority to Seller (or any representative thereof).

(g) There is not in effect any waiver by Seller of any statute of limitations with respect to any Taxes. Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Code.

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(h) There are no liens (other than Permitted Encumbrances) as a result of any unpaid Taxes upon any of the assets of Seller.

(i) There are no “nonqualified deferred compensation plans” (within the meaning of Section 409A of the Code) to which Seller is a party and that Buyer will assume or become obligated to make payments under as a result of the Transaction. No event has occurred that would be treated by Section 409A(b) as a transfer of property for purposes of Section 83 of the Code.

3.10 Seller Financial Statements .

(a) Section 3.10(a) of the Disclosure Schedule includes the Seller Financial Statements. The Seller Financial Statements: (i) are derived from and are in accordance with the books and records of Seller; and (ii) fairly present the financial condition of Seller at the dates therein indicated and the results of operations and cash flows of Seller for the periods therein specified. The reserves, if any, reflected on the Seller Financial Statements are adequate in light of the contingencies with respect to which they were made and, without limiting the foregoing, Seller has established adequate reserves for medical malpractice liability and tax liability on the Seller Balance Sheet. Seller has no liabilities, except for (A) liabilities included in the Seller Balance Sheet, (B) liabilities that were incurred after the Balance Sheet Date in the ordinary course of Seller’s business consistent with its past practices, and (C) liabilities which are set forth in Section 3.10(a) of the Disclosure Schedule.

(b) Seller has established and maintains a system of internal accounting controls that is appropriate for a privately-held corporation similarly situated with Seller in size and scope of operations. Neither Seller, nor to the Knowledge of Seller, any Seller Employee, has identified or been made aware of any fraud, whether or not material, that involved Seller’s management or other Seller Employees who have a role in the preparation of the financial statements or the internal accounting controls utilized by Seller, or any claim or allegation regarding any of the foregoing. Neither Seller nor, to the Knowledge of Seller, any Seller Employee, auditor, accountant or representative of Seller has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, in each case, regarding deficient accounting or auditing practices, procedures, methodologies or methods of Seller or its internal accounting controls or any material inaccuracy in Seller’s financial statements. No attorney representing Seller, whether or not employed by Seller, has reported to the management of Seller or any Partner or any committee thereof evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by Seller or any of its respective Partners, officers, managers, employees or agents. At the Balance Sheet Date, there were no material loss contingencies (as such term is used in Statement of Financial Accounting Standards No. 5 (“ Statement No. 5 ”) issued by the Financial Accounting Standards Board in March 1975) that are not adequately provided for in the Seller Balance Sheet as required by Statement No. 5. There has been no change in the Seller accounting policies since the Balance Sheet Date.

(c) Section 3.10(c) of the Disclosure Schedule sets forth the names and locations of all banks, trust companies, savings and loan associations and other financial institutions or third parties including related parties at which Seller maintains accounts of any nature and the names of all persons authorized to draw thereon or make withdrawals therefrom.

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(d) Schedule 3.10(d) of this Agreement lists all Debt of Seller, including, for each item of Debt, the Contract governing the Debt and the interest rate, maturity date and any assets or properties securing such Debt. All Debt may be prepaid at or prior to the Closing without penalty under the terms of the Contracts governing such Debt.

3.11 Legal Proceedings . Except as set forth in Section 3.11 of the Disclosure Schedule, there is no Order or Action pending, or, to the Knowledge of Seller, threatened, against or affecting Seller, the Assets or the Business. Section 3.11 of the Disclosure Schedule lists each Order and each Action that involves a claim or potential claim against, or that enjoins or seeks to enjoin, prevent, delay, make illegal or impose limitations or conditions or otherwise interfere with any activity or action by Seller or any Affiliate, including, without limitation, execution and delivery of the Transaction Documents and performance of Seller’s or the Partners’ obligations thereunder. There is no matter as to which Seller or any Affiliate has received any notice, claim or assertion, or which otherwise has been threatened or is reasonably expected to be threatened or initiated, against or affecting Seller, the Assets or the Business.

3.12 Title to Properties . Seller has good and marketable title to all of the Assets (including those shown on the Seller Balance Sheet) free and clear of all Encumbrances. Such Assets are sufficient for the continued operation of the Business. Section 3.12 of the Disclosure Schedule sets forth a list of each fixed asset of Seller included in the Seller Balance Sheet. All properties used in the operations of the Business are reflected on the Seller Balance Sheet. All Tangible Personal Property owned or leased by Seller or used in the Business is in good condition and repair, normal wear and tear excepted. All leases of real and personal property to which Seller is a party are fully effective and afford Seller a valid leasehold possession of the real or personal property that is the subject of the lease. Section 3.12 of the Disclosure Schedule also sets forth a complete and accurate list of Contracts governing the lease of any personal property by Seller, including the title, date of and the parties to each such Contract and, if reasonably necessary for understanding, a brief description of the item(s) of personal property leased thereby. Section 3.12 of the Disclosure Schedule also identifies each parcel of real property leased or sub-leased by Seller and the Contract pursuant to which such real property is leased or sub-leased. Seller has adequate ingress and egress into any real property used in the operation of the Business. A true and complete copy of each Contract under which Seller uses or occupies or has the right to use or occupy, now or in the future, any real property or facility, has been delivered to Buyer. Each such Contract is in written form. Seller does not own any real property. Following the Closing and upon delivery of the Bill of Sale and Assignment of Contract Rights, Buyer will have good and marketable title to, free of Encumbrances, all of the Assets.

3.13 Absence of Certain Changes . Since the Balance Sheet Date, there has not been with respect to Seller any:

(a) Material Adverse Change or any change, event, circumstance, condition or effect that would reasonably be expected to result in a Material Adverse Change;

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(b) amendment to or change in its certificate of limited partnership or the Limited Partnership Agreement;

(c) incurrence, creation or assumption of (i) any Encumbrance on any of its assets or properties, (ii) any liability for borrowed money other than Seller Closing Debt identified on Schedule 2.2(b) , or (iii) any liability as a guarantor or surety with respect to the obligations of others;

(d) payment or discharge of any Encumbrance on any of its assets or properties, or payment or discharge of any of its liabilities, in each case that was not shown on the Seller Balance Sheet;

(e) purchase, license, sale, grant, assignment or other disposition or transfer, or any agreement or other arrangement for the purchase, license, sale, assignment or other disposition or transfer, of any of its assets (including Seller’s right in its Intellectual Property and other intangible assets), properties or goodwill other than the sale or non-exclusive license of its products or services to its Customers in the ordinary course of its business consistent with its past practices;

(f) material damage, destruction or loss of property or assets, whether or not covered by insurance;

(g) change or increase in the compensation payable or to become payable to any current employee of Seller or any Partner, or in any bonus, pension, severance, retention, insurance or other benefit payment or arrangement made to or with any employee of Seller or any Partner, other than such change or increase made with respect to a non-officer employee of Seller in the ordinary course of Seller’s business consistent with its past practices;

(h) change with respect to its management, supervisory or other key personnel, any termination of employment of a material number of employees, or any labor dispute or claim of unfair labor practices;

(i) liability incurred by it to any Seller Employee, except for normal and customary compensation and expense allowances payable to Seller Employees in the ordinary course of its business consistent with its past practices;

(j) making by it of any loan, advance or capital contribution to, or any investment in, any Seller Employee or any firm or business enterprise in which any such person had a direct or indirect material interest at the time of such loan, advance, capital contribution or investment;

(k) entering into, amendment of, relinquishment, termination or nonrenewal by it of any Contract (or any other right or obligation), any default by it under such Contract (or other right or obligation), or any written or oral indication or assertion by the other party thereto of any material problems with its services or performance under such Contract (or other right or obligation) or such other party’s desire to so amend, relinquish, terminate or not renew any such Contract (or other right or obligation);

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(l) change in the manner in which it extends discounts, credits or warranties to Customers or otherwise deals with its Customers;

(m) any labor trouble or adverse relations with Seller Employees;

(n) any deferral of the payment of any accounts payable;

(o) any change which would adversely affect the validity, use, priority or enforceability of Seller’s rights to any Seller Mark; or

(p) announcement of, any negotiation with respect to or any entry into any Contract to do any of the things described in the preceding clauses (a) through (o) (other than negotiations and agreements with Buyer and its representatives regarding the transactions contemplated by this Agreement).

3.14 No Default; No Restrictions .

(a) Each of the Material Contracts is in full force and effect. There exists no material default or event of default or event, occurrence, condition or act, with respect to Seller or, to the Knowledge of Seller, with respect to any other contracting party, which, with the giving of notice, the lapse of time or the happening of any other event or conditions, would reasonably be expected to (i) become a default o