ASSET PURCHASE AGREEMENT

TABLE OF CONTENTS

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This ASSET PURCHASE AGREEMENT (the “ Agreement ”) is made and entered into as of the 1st day of October, 2008 (the “ Effective Date ”), by and among NDS Nutritional Products, Inc., a Nebraska corporation (“ Seller ”), Bond Laboratories, Inc., a Nevada corporation (“ Buyer ”), and Cory Wiedel and Ryan Zink (together, the “ Shareholders ”).

A.   Seller is engaged in the business of selling products and providing services in the weight loss, sports nutrition, general health and related categories (hereinafter the “ Seller’s Business ” or , the “ Business ”).

B.   The Shareholders own all of the issued and outstanding capital stock of Seller.

C.   Buyer desires to purchase from Seller and Seller desires to sell to Buyer all of the assets, properties and rights of Seller relating to Seller’s Business (except for the Excluded Assets) on the terms and conditions hereinafter set forth.

D.   As additional consideration, and as a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereby, Seller and Shareholders desire to make certain representations, warranties, indemnities, covenants and agreements relating to the sale of Seller’s Business.

E.   Capitalized terms used herein shall have the meaning set forth in the Table of Definitions attached hereto as Schedule 1.0 .

NOW, THEREFORE, in consideration of the foregoing premises and the covenants, agreements, representations and warranties contained herein, the parties hereto hereby agree as follows:

 1.1.   Acquired Assets .

(a)   Subject to the terms and the conditions set forth in this Agreement and on the basis of the representations and warranties herein, Seller agrees to sell, convey, transfer, assign and deliver to Buyer and Buyer agrees to purchase, receive and accept from Seller all right, title and interest in and to the assets and properties of every kind, character and description (other than property and rights specifically excluded in this Agreement), used in Seller’s Business, whether tangible, intangible, real, personal or mixed, and wherever located, including any assets of any of Seller’s Affiliates which are primarily used in Seller’s Business or otherwise owned by Seller (collectively referred to hereinafter as the “ Acquired  Assets ”), including but not limited to the assets set forth at Schedule 1.1 hereto.

(b)   Without limitation of the foregoing, the Acquired Assets shall include all tangible property, equipment, tenant improvements (regardless of whether they are accounted for as an asset on the books of Seller, of any Affiliate of Seller, or of a landlord or other third party), customer accounts, customer lists, goodwill, software, Intellectual Property, Assigned Contracts, Assigned Personal Property Leases, books and records, any Seller policies and procedures relating to the Seller’s Business, telephone and facsimile numbers, all Licenses of Seller and other permits and other authorizations necessary for the conduct of Seller’s Business (to the extent transferable to Buyer), the Component Inventory listed on Schedule 2.1(v), and all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities prior to the Effective Date, unless expended in accordance with this Agreement.

 1.2.   Excluded Assets

 1.3 .   Assumed Liabilities .  As of the Closing Date, Seller shall assign to Buyer and Buyer shall assume Seller’s obligations arising from events occurring on or after the Closing Date under (i) those outstanding purchase orders of the Seller set forth on Schedule 1.3 ; (ii) customer product returns in the ordinary course of business (but excluding any returns, pursuant to large-scale product recalls and other product returns not in the ordinary course of business, of products that were sold by Seller prior to the Closing Date); (iii) the Unassigned Obligations as provided in Section 6.3; (iv) the bonus and PTO obligations under Section 1.5; and (v) those agreements and contracts (or responsibilities under agreements or contracts) designated specifically on Schedule 4.8 as Assigned Personal Property Leases and on Schedule 4.20 as Assigned Contracts, except to the extent that any such executory obligations result from, arise out of, relate to, or are caused by, any one or more of the following: (a) a breach of any of the Assigned Personal Property Leases or Assigned Contracts occurring prior to the Closing Date; (b) a breach of warranty (except a breach of warranty that leads solely to a customer product return as contemplated in subpart(ii) above), infringement or violation of law occurring prior to the Closing Date; or (c) an event or condition occurring or existing prior to the Closing Date which, through the passage of time or the giving of notice or both, would constitute a breach or default by Seller under any of the Assigned Personal Property Leases or Assigned Contracts (collectively, the “ Assumed Liabilities ”).

 1.4.   Excluded Liabilities .  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER DOES NOT ASSUME AND SHALL NOT BE LIABLE FOR ANY OF THE DEBTS, OBLIGATIONS OR LIABILITIES OF SELLER, SELLER’S BUSINESS, ANY SHAREHOLDER OR ANY AFFILIATE OF SELLER, WHENEVER ARISING AND OF WHATEVER TYPE OR NATURE.  In particular, but without limiting the foregoing, Buyer shall not assume, and shall not be deemed by anything contained in this Agreement (other than to the extent expressly provided in Section 1.3 Assumed Liabilities ) to have assumed, and shall not be liable for any debts, obligations or liabilities of Seller, any Affiliate of Seller or Seller’s Business whether known or unknown, contingent, absolute or otherwise and whether or not they would be   included or disclosed in financial statements prepared in accordance with GAAP (the “ Excluded Liabilities ”).  Without limitation of the foregoing, the Excluded Liabilities shall include debts, liabilities and obligations:  (a) under any real estate lease or any contract or agreement to which Seller is a party or by which Seller or Seller’s Business is bound that has not been listed as an Assigned Contract on Schedule 4.20 hereof or any Personal Property Lease by which Seller or Seller’s Business is bound that has not been listed as an Assigned Personal Property Lease on Schedule 4.8 hereof, except as otherwise provided in Section 6.3; (b) with respect to any Assigned Contract or Assigned Personal Property Lease, arising from the period prior to the Closing Date; (c) arising out of any collective bargaining agreement to which Seller is a party; (d) for any Employee Benefit Plan; (e) for any obligation for Taxes; (f) for any liability for local or state sales, use or transfer tax and taxes that may be imposed upon the sale or assignment of the Acquired Assets pursuant to this Agreement and the Assignment and Assumption and Bill of Sale, regardless of when such obligations may become known and due; (g) for any damages or injuries to persons or property or for any tort or strict liability arising from events, actions or inactions in Seller’s Business or the operation of Seller’s Business prior to the Closing Date; (h) arising out of any litigation arising with respect to the period prior to the Closing Date, whether or not threatened or pending on or before the Closing Date; (i) incurred by Seller or by Seller’s Business for borrowed money; (j) with respect to any warranty claims related to sale by Seller of products and services prior to the Closing Date (except product warranty claims that lead solely to customer product returns as contemplated in Section 1.3(ii) above), and (k) for any accounts payable of Seller or any Affiliate of Seller.  The intent and objective of Buyer and Seller is that, except for liabilities explicitly assumed by Buyer hereunder, including the Unassigned Obligations, Buyer does not assume, and no transferee liability shall attach to Buyer pertaining to, any of the Excluded Liabilities.

 1.5.   Employees .  Within thirty (30) days following the Closing Date, (A) Buyer or an Affiliate of Buyer shall offer employment to each employee of Seller who is principally employed in Seller’s Business (collectively, the “ Seller Employees ”), provided , however , that such employee (i) is listed on Schedule 1.5 attached hereto, and (ii) if required by Buyer, agrees to the release of his or her employment files to Buyer or its Affiliate prior to hiring of such Seller Employee (and agrees to performance of any reasonable background checks, if required by Buyer), and (B) Seller covenants and agrees to terminate the employment of the Seller Employees who accept Buyer’s or its Affiliate’s offer of employment, and to reasonably cooperate with Buyer in the transition of such Seller Employees to Buyer or its Affiliate.  Those Seller Employees who accept Buyer’s or its Affiliate’s offer of employment shall be designated on Schedule 1.5 as “ Transferring Employees ” and referred to hereinafter as such.  Except as otherwise provided in this Section 1.5, Seller acknowledges and agrees that, as between the parties, it is responsible for paying to the Transferring Employees all compensation and benefits accrued up to the date that such Transferring Employee accepts an offer of employment with Buyer or its Affiliate (each such date, a “ Transfer Date ”), including without limitation PTO, provided, however, that Buyer shall pay the compensation and benefits (including without limitation PTO) for each Transferring Employee for the period beginning on the Closing Date and ending on the earlier to occur of (i) the date such Transferring Employee accepts an offer of employment with Buyer, and (ii) immediately after the second payroll after Closing with respect to such Transferring Employee.  Buyer shall pay the 2008 bonus for each employee that is designated on Schedule 1.5 as a Transferring Employee’s once such amounts are determined (which bonuses shall be calculated in accordance with the existing criteria for each bonus, which criteria have been provided to the Buyer); provided , however , Seller shall reimburse Buyer for that portion of each Transferring Employee’s bonus earned through the Closing Date which reimbursed amounts shall be equal to the amount of such bonus paid by Buyer multiplied by the quotient of (x) the amount of the Sales revenue generated by the Business for the period beginning on January 1, 2008 and ending on the Closing Date divided by (y) the amount of the Sales revenue generated by the Business for the fiscal year ended December 31, 2008, and which reimbursed amounts Buyer shall offset, as these amounts are paid by Buyer to the Transferring Employees, at its election against amounts owed to Seller pursuant to the Notes or the Earnout Amount.  With respect to each Transferring Employee, the parties agree that Seller shall transfer and Buyer shall assume up to eighty (80) hours of PTO per employee which has accrued through the Closing Date (the “ Assumed PTO ”), and the payment obligations of Buyer pursuant to the Notes or the Earnout Amount shall be reduced by the aggregate value of such Assumed PTO.  Any PTO in excess of Assumed PTO shall be paid by Seller to each Transferring Employee in the next Seller payroll disbursed, whether at or following the applicable Transfer Date for each such Transferring Employee, but in any event no more than fourteen (14) business days following the applicable Transfer Date.   Schedule 1.5 sets forth with respect to each of the Seller Employees such person’s position, date of hire, current salary, bonus range/potential, accrued PTO through the Closing Date, and amount of any other accrued benefits to which such person may be entitled or for which such person has made either written or oral claim to Seller.  Seller shall provide an updated Schedule 1.5 at Closing, which schedule shall be updated each time a Transferring Employee officially commences employment with Buyer or its Affiliate.  All Transferring Employees shall be employees at will, subject to Buyer’s or its Affiliate’s employment policies ; provided , however , that Buyer shall provide all Transferring Employees with health/dental and other similar benefits that are substantively equivalent to (or greater than) the benefits offered to such Transferring Employees by Seller.  Nothing herein shall obligate Buyer or an Affiliate of Buyer to employ the Transferring Employees for any specific time period.  Nothing in this Section shall be construed to grant any employee any rights as a third party beneficiary.  Seller shall retain all liabilities with respect to any and all Seller Employees who are not Transferring Employees.  Buyer shall not terminate Ryan Zink’s employment with Buyer without “cause” (as defined in the Zink Employment Agreement) for a period of at least eighteen (18) months following the Closing Date.

Buyer agrees unconditionally to indemnify, defend and hold Seller and Shareholders harmless, on demand, from and against any and all Losses of every kind, nature or description which arise out of or result from or as a consequence of any claims of any nature brought by any Transferring Employees against Seller on and following the Closing Date through the applicable Transfer Date  of such Transferring Employee (the “ Transition Period ”) which claim relates to such Transition Period except for those Losses arising out of the acts or omissions of Seller.  The indemnification obligations set forth in this Section 1.5 shall be subject to the terms and provisions of Article IX hereof, but shall not be subject to any of the limitations set forth in Section 9.5 .

      1.6.   Purchases of Product Inventory .  Buyer covenants and agrees that to the extent applicable, it shall fill all customer product orders it receives after the Closing by first purchasing such products from Seller at Seller’s cost   out of the Product Inventory (as the Product Inventory exists as of Closing); provided , however , that Buyer shall not be obliged to purchase, and Seller shall not sell to Buyer, any expired, defective or spoiled products.  Buyer shall make all payments owed Seller for the Product Inventory by the date that is the earlier of fifteen (15) days from invoice date for such shipment of products, or Buyer’s receipt of such products.  To the extent that Buyer receives a product order for a product that is not in the Product Inventory, Buyer shall be entitled to purchase that product from any other source.  Buyer shall be responsible for the costs of storing, insuring, handling and shipping the Product Inventory, and Buyer shall accept and dispose of, at its own cost, any returned products. 

 1.7.   Instruments of Transfer .  The sale of the Acquired Assets and the assumption of the Assumed Liabilities as herein provided shall be effected at Closing by the Assignment and Assumption and Bill of Sale in the form attached hereto as Exhibit A (the “ Bill of Sale ”).

 1.8.   Payment of Sales Taxes .  Seller covenants and agrees to pay any and all sales, use or other transfer taxes payable by reason of the transfer and conveyance of the Acquired Assets hereunder.  The parties will prepare and deliver and if necessary file at or before Closing all transfer tax returns and other filings necessary to vest in Buyer full right, title and interest in the Acquired Assets.

  2.1.   Purchase Price .  Subject to any adjustments pursuant to this Article II, and in reliance on Seller’s and Shareholders’ representations, warranties and covenants, the purchase price to be paid by Buyer to Seller for the Acquired Assets and the other rights set forth herein shall be payable as follows:

(i)   Seven Hundred Thousand Dollars ($700,000) payable in cash at the Closing (the “ Cash Purchase Price ”);

(ii)   Three Hundred Fifty Thousand Dollars ($350,000) in the form of a secured promissory note payable in eighteen (18) fixed monthly installments and accruing interest at the rate of six percent (6%) per annum, substantially in the form of Exhibit B-1 attached hereto (the " Installment Note ");

(iii)   An amount equal to the book value of those fixed assets of Seller listed on Schedule 2.1(iii) hereto (the “ Fixed Assets ”), such amount to be determined prior to the Closing, in the form of a secured promissory note, substantially in the form of Exhibit B-2 attached hereto (the " FAP Note ");

(iv)   An earn-out payment in the amount of Three Hundred Fifty Thousand Dollars ($350,000) (subject to adjustment based on Gross Profits from the Business, as described below), payable in six (6) consecutive, equal, quarterly installments (the " Earn-Out Amount ");

(v)   An amount equal to the book value of the Product Inventory which consists of component parts (i.e., lids, labels, bottles, boxes, packaging, etc.) listed on Schedule 2.1(v) hereto (the “ Component Inventory ”), such amount to be determined prior to the Closing, in the form of a secured promissory note,  payable in twelve (12) fixed monthly installments and

(vi)   accruing interest at the rate of six percent (6%) per annum, substantially in the form of Exhibit B-3 attached hereto (the " Component Inventory Note " and together with the Installment Note and the FAP Note, the “ Notes ”); and

(vii)   Issuance by Buyer at the Closing of One Million Five Hundred Fifty Thousand (1,550,000) shares of unregistered Common Stock, par value $0.001 per share, of Buyer (the “ Shares ”), which Shares shall have such transfer rights and be subject to certain restrictions on resale and transfer as set forth herein and in that certain Stock Rights and Restriction Agreement by and among Buyer, Seller and the Shareholders in substantially the form of Exhibit C attached hereto (the “ Stock Rights and Restriction Agreement ”) (the “ Equity Purchase Price ” and together with the Cash Purchase Price, the Notes and the Earn-Out Amount, the “ Purchase Price ”).

In connection with the Notes, Earn-Out Amount and Buyer’s obligations with respect to the purchase of the Product Inventory after the Closing, Buyer will enter into a Security Agreement, substantially in the form attached hereto as Exhibit D (the “ Security Agreement ”), pursuant to which Buyer will grant Shareholders, for purposes of securing Buyer’s payment obligations under the Notes, and with respect to the Earn-Out Amount and Product Inventory purchases, a first priority security interest in and to the Acquired Assets and Product Inventory (assuming the Acquired Assets and Product Inventory are transferred to Buyer free and clear of all Liens).

 2.2.   Gross Profit Adjustments to Earn-Out Amount .

(a)   Determination of Adjustment Amount .  The projected Earn-Out Amount of $350,000 shall be payable in six (6) cash installments of Fifty-Eight Thousand Three Hundred Thirty-Three Dollars and Thirty-Three Cents ($58,333.33) (each a “ Target Quarterly Earn-Out Payment ” and collectively the “ Target Quarterly Earn-Out Payments ”) payable over the six (6) consecutive quarters, which quarters will be measured commencing as of the Effective Date and terminating on March 30, 2010 (the “ GP Period ”).  Notwithstanding the foregoing, each Target Quarterly Earn-Out Payment shall be subject to adjustment based on Gross Profits earned during the relevant quarter of the GP Period as follows: To the extent that Gross Profits during the relevant quarter are (i) more than Seven Hundred Ninety-Nine Thousand Eight Hundred Twenty-Four Dollars ($799,824) (such amount, hereinafter the “ GP Quarterly Target ” ), then the accompanying Target Quarterly Earn-Out Payment will be increased by the amount of the overage multiplied by 0.22 (e.g., if the amount of the overage is $100,000, then the applicable Target Quarterly Earn-Out Payment will be increased by $22,000 (100,000 x 0.22 = 22,000) for an actual payment of $80,333.33 for such quarter) or, (ii) less than the GP Quarterly Target, then the accompanying Target Quarterly Earn-Out Payment will be reduced, but not below zero, by the amount of the shortfall multiplied by 0.22 (e.g., if the amount of the shortfall is $100,000, then the applicable Target Quarterly Earn-Out Payment will be reduced by $22,000 (100,000 x 0.22 = 22,000) from $58.333.33 to $36, 333.33) ; provided , however , that if the amount of the product of the shortfall multiplied by 0.22 in a given quarter is greater than the applicable Target Quarterly Earn-Out Payment, then the amount of any such shortfall that cannot be applied to the applicable Target Quarterly Earn-Out Payment shall, at the discretion of Buyer, either be applied to reduction of the subsequent Target Quarterly Earn-Out Payment(s) as necessary to fully reflect the amount of such shortfall or carried over to the final Target Quarterly Earn-Out Payment (at which time, Seller shall pay any amounts due and owing to Buyer as a result of such shortfall; provided, however, Seller’s obligation to pay Buyer the amount of such shortfall shall in no event exceed the Actual Quarterly Earn-Out Payments previously received from Buyer).  The amount by which each Target Quarterly Earn-Out Payment is adjusted each quarter may hereinafter be referred to as a “ GP Adjustment Amount ” and collectively as the “ GP Adjustment Amounts ”.  Each Target Quarterly Earn-Out Payment, as reduced or increased by the applicable GP Adjustment Amount, shall hereinafter be referred to as an “ Actual Quarterly Earn-Out Payment ” and collectively as the “ Actual Quarterly Earn-Out Payments ”.

(b)   Adjustment Procedure .  Buyer shall deliver to the Shareholders no later than ten (10) business days after expiration of each quarter during the GP Period its calculations of the GP Adjustment Amount and the Actual Quarterly Earn-Out Payment for such quarter and such other supporting materials reasonably necessary to allow the Shareholders to validate such GP Adjustment Amount and such Actual Quarterly Earn-Out Payment (collectively, the “ Earn-Out Materials ”).  The auditors preparing the Earn-Out Materials will be auditors selected by Buyer.  Upon receipt of the Earn-Out Materials, the Shareholders shall have five (5) business days to review the Earn-Out Materials (the “ GP Objection Period ”).  The Earn-Out Materials and the calculations pertaining to each GP Adjustment Amount and each Actual Quarterly Earn-Out Payment shall be conclusive and binding on the parties unless the Shareholders provide the Buyer with written notice (a “ GP Objection Notice ”) within the GP Objection Period that the Shareholders dispute such computations.  In the event that a GP Objection Notice is provided to Buyer within the GP Objection Period, Buyer and the Shareholders shall use best efforts to resolve the dispute within ten (10) business days of Buyer’s receipt of the GP Objection Notice.  If Buyer and the Shareholders are unable to agree upon the dispute within such ten (10) business day period,   Buyer and the Shareholders agree to resolve such dispute in accordance with Section 2.2(d) below.

(c)   Payment of Target Quarterly Earn-Out Payments .  Buyer shall pay undisputed Actual Quarterly Earn-Out Payments within seven (7) business days of the termination of the applicable GP Objection Period; provided , however , that if a GP Objection Notice is tendered to Buyer within a GP Objection Period, then the applicable Actual Quarterly Earn-Out Payment shall be payable (A) within seven (7) business days of the date that Buyer, Seller and Shareholders resolve amongst themselves any dispute set forth in a GP Objection Notice pursuant to Section 2.2(b) above, or, (B) if the parties are unable to resolve such dispute amongst themselves pursuant to Section 2.2(b) as contemplated by clause (A) above, then the GP Adjustment Amount shall be payable within seven (7) business of the date that the Auditor (as defined below) renders final determination of the Actual Quarterly Earn-Out Payment as described in Section 2.2(d) below.

(d)   Dispute Resolution .  If Buyer and the Shareholders are unable to resolve a dispute within fifteen (15) business days of Buyer’s receipt of the GP Objection Notice as contemplated by Section 2.2(b) above, Buyer and the Shareholders will mutually select an independent accounting firm (the “ Auditor ”) to make a determination of the GP Adjustment Amount Price.  In the event the parties are unable to agree on an independent accounting firm, the parties will select by lot (from a pool of three recognized accounting firms mutually selected by the parties) an independent, national accounting firm to serve as the Auditor.  The Auditor will render final determination of the Actual Quarterly Earn-Out Payment within thirty (30) days of its selection and such determination will be binding upon the parties.  The fees, costs and expenses of the accounting firm so selected will be borne by the party whose positions generally did not prevail in such determination, or if the accounting firm determines that neither party could be fairly found to be the prevailing party, then such fees, costs and expenses will be borne 50% by Buyer and 50% by the Shareholders.  In the event the Auditor rules in favor of Seller with respect to a particular Actual Quarterly Earn-Out Payment, Seller shall be entitled to interest from Buyer at the rate of six percent (6%) on said amount from the date said payment was payable by Buyer had Buyer not disputed said amount.

(e)   Operation of Business .  During the GP Period, Buyer shall use commercially reasonable best efforts to operate the Business substantially consistent with Seller’s past practices.

 2.3.   Pro-Rations .  All ordinary course of business expenses incurred, such as utilities, will be pro-rated as of the Closing Date, such that Buyer is responsible for amounts incurred on or after the Closing Date and Seller is responsible for amounts incurred prior to the Closing Date.

 2.4.   Allocation of Purchase Price .  Buyer and Seller acknowledge and agree that the Purchase Price shall be allocated to the Acquired Assets in accordance with Schedule 2.4 hereto, which allocation shall include asset valuation and an amount attributable to the covenants not to compete set forth in the Non-Competition Agreements.  Seller further acknowledges and agrees that (a) execution of the Non-Competition Agreements is a material inducement to Buyer to enter into this Agreement, and Buyer is doing so in reliance upon full compliance by Seller and each Shareholder agreeing to be bound by such covenants; and (b) in light of such reliance, the amount allocated herein to the covenants not to compete is not intended by the parties as a measure of damages that might be incurred by Buyer in the event of a breach of such covenant.  Buyer and Seller agree to report the transactions contemplated by this Agreement for federal and state income tax purposes in accordance with such allocation.  The parties shall execute all forms required to be filed for tax purposes with any taxing authority in a manner consistent with the allocation on Schedule 2.4 hereto.

 2.5.   Negotiated Value .  The parties agree that the Purchase Price and the Purchase Price allocation set forth on Schedule 2.4 reflect the fair value of the Seller’s Business and the fair values of the Acquired Assets, respectively, agreed to by the parties hereto as a result of arms’ length negotiations.

 2.6.   Distribution of Shares to Shareholders .  Seller shall be entitled to transfer the Shares to the Shareholders as provided in the Stock Rights and Restriction Agreement.

 2.7.   Bulk Sales Compliance .  Seller represents and warrants to Buyer that Nebraska does not have any laws with respect to the bulk transfer of assets which would be applicable to the sale of the Acquired Assets.

The closing of the sale and purchase of the Acquired Assets (the “ Closing ”) shall take place on October 1, 2008 (the “ Closing Date ”) by facsimile or other electronic transmission (with original copies to follow via United States or overnight mail).  Buyer, Seller and Shareholders shall use their respective good faith efforts to close this transaction as promptly as possible after the Effective Date.  Closing shall be deemed to have occurred at 12:01 a.m. local time at the location of Seller’s Business on the Closing Date.

Seller jointly and severally and Shareholders severally (in proportion to the stock ownership of each in Seller as of immediately prior to the Closing) hereby represent and warrant to Buyer, as of the Effective Date and as of the Closing Date (except for those representations and warranties that are made as of the Closing Date only, which are true and correct as of the Closing Date), as follows:

 4.1.   Organization, Good Standing and Qualification .  Seller is a corporation duly organized, validly existing and in good standing under the provisions of the laws of the State of Nebraska, and, except as set forth on Schedule 4.1 hereto, is qualified and licensed to do business in every other jurisdiction in which it conducts business or the nature of its business and operations would require qualification as a foreign corporation, except where the failure to be qualified would not, individually or in the aggregate, cause a Seller Material Adverse Effect.  Seller has all requisite power and authority to own and operate its properties and to carry on its business as now conducted.  Seller has all power and authority to enter into all of the Acquisition Agreements to which Seller is a party and to carry out and perform its obligations under the Acquisition Agreements.

 4.2.   Authorization; Binding Obligation .  Seller and each Shareholder have full legal and corporate (in the case of Seller) right, power, and authority to execute and deliver the Acquisition Agreements to which Seller is a party, and to carry out the transactions contemplated thereby. The execution and delivery by Seller of the Acquisition Agreements and all of the documents and instruments required thereby and the consummation of the transactions contemplated thereby have been duly authorized by all requisite action on the part of Seller.  The Acquisition Agreements to which Seller and the Shareholders are a party and each of the other documents and instruments required thereby or delivered in connection therewith have been duly executed and delivered by Seller and the Shareholders, and constitute the legal, valid and binding obligations of Seller and Shareholders, enforceable against them in accordance with their respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

 4.3.   Consents and Approvals .

(a)   Governmental Consents and Approvals .  Except as set forth on Schedule 4.3(a) , to the Knowledge of Seller no registration or filing with, or consent or approval of, or other action by, any federal, state or other governmental agency or instrumentality is or will be necessary for the valid execution, delivery and performance of this Agreement or any other Acquisition Agreement by Seller and the Shareholders, the transfer of the Acquired Assets to Buyer and the operation of the Seller’s Business by Buyer after Closing (each, a “ Governmental Approval ”).

(b)   Third Party Consents .  Except as set forth on Schedule 4.3(b) , to the Knowledge of Seller, no consent, approval or authorization of any non-governmental third party is required in order to consummate the transactions or perform the related covenants and agreements contemplated hereby or to vest full right, title and interest in the Acquired Assets free and clear of any Lien upon Buyer, all without any change in the Acquired Assets and all rights therein after Closing (each, a “ Third Party Consent ”).

 4.4.   No Violation.   The execution, delivery, compliance with and performance by Seller and the Shareholders of the Acquisition Agreements and each of the other documents and instruments delivered in connection therewith do not and will not (a) violate or contravene the organizational certificates, documents and agreements, as amended to date, of Seller, (b) violate or contravene any law, statute, rule, regulation, order, judgment or decree to which Seller or any Shareholder is subject except where such violation or contravention would not, individually or in the aggregate, cause a Seller Material Adverse Effect, (c) except for any Third Party Consents which are not obtained, conflict with or result in a breach of or constitute a default by any party under any contract, agreement, instrument or other document to which Seller or any Shareholder is a party or by which Seller or any Shareholder or any of their assets or properties are bound or subject or to which any entity in which Seller or any Shareholder has an interest, is a party, or by which any such entity is bound, or (d) result in the creation of any Lien upon the Acquired Assets or Seller’s Business or any interest of the Shareholders therein.

 4.5.   Licenses and Permits.    Schedule 4.5 attached hereto contains a true, correct and complete list and summary description of all Licenses which have been issued to Seller in connection with the Acquired Assets or Seller’s Business (the “ Seller Licenses ”).  Each Seller License is valid and in full force and effect as of the date hereof, no Seller License is subject to any Lien, limitation, restriction, probation or other qualification and there is no default under any Seller License or any basis for the assertion of any default thereunder.   Schedule 4.5 specifies the holder of each Seller License and whether or not such Seller License is transferable to Buyer.  There is no investigation or proceeding, pending or, to the Knowledge of Seller, threatened that could result in the termination, revocation, limitation, suspension, restriction or impairment of any Seller License or the imposition of any fine, penalty or other sanctions for violation of any legal or regulatory requirements relating to any Seller License or, to Seller’s Knowledge, any basis therefor.  To Seller’s Knowledge, Seller and the Shareholders have, and have had at all relevant times, all Licenses that are or were necessary in order to enable Seller to own the Acquired Assets and conduct Seller’s Business.

 4.6 .   Ownership; No Subsidiaries .  The Shareholders own all of the issued and outstanding shares of capital stock of Seller, and there are no other outstanding rights (contingent or otherwise) to acquire, directly or indirectly, any securities of Seller nor are there outstanding any securities (other than the Shares) directly or indirectly convertible into or exercisable or exchangeable for shares of capital stock of Seller.  Seller does not own and has not owned, either directly or indirectly, any interest or investment (whether debt or equity) in or been a member of any corporation, partnership, joint venture, business trust or other entity, except as set forth on Schedule 4.6 hereto.

 4.7.   Acquired Assets .  Except for that portion of the Shared Assets owned by Complete Nutrition, Inc., Seller is the sole and exclusive legal and equitable owner of all right, title and interest in, and has good, clear, indefeasible, insurable and marketable title to, all of the Acquired Assets free of all Liens.  All of the Acquired Assets have been maintained in accordance with normal industry practice, and are in good operating condition and repair.  During the past three (3) years, there has not been any interruption of the operations of the Seller’s Business due to the condition of any of the Acquired Assets.  Except for the Excluded Assets, the Acquired Assets include all assets, properties and rights used by Seller in connection with the Seller’s Business and which are necessary or desirable for Buyer to continue the Seller’s Business as historically and currently conducted following Closing.  Seller will convey to Buyer on the Closing Date all of the Acquired Assets free and clear of any Lien, including the conveyance to Buyer of any Acquired Asset not owned by Seller on the Effective Date or not owned free of any Lien by Seller on the Effective Date, which items are set forth on Schedule 4.7 .

 4.8.   Leases of Personal Property .  For the purposes of this Agreement, “ Personal Property Leases ” means any lease, conditional or installment sale contract, Lien or similar arrangement to which any tangible personal property used by Seller in connection with the operation of Seller’s Business is subject.  Except as set forth on Schedule 4.8 , none of the tangible personal property used by Seller in connection with the operation of Seller’s Business is subject to a Personal Property Lease.  Seller has delivered to Buyer a complete and correct copy of each Personal Property Lease listed on Schedule 4.8 .  All of such Personal Property Leases are valid, binding and enforceable in accordance with their respective terms and are in full force and effect.  Seller is not in default under any of such Personal Property Leases and there has not been asserted, either by or against Seller under any of such Personal Property Leases, any notice of default, set-off or claim of default.  To Seller’s Knowledge, the parties to such Personal Property Leases other than Seller are not in default of their respective obligations under any of such Personal Property Leases.  To Seller’s Knowledge, there has not occurred any event which, with the passage of time or giving of notice (or both), would constitute such a default or breach under any of such Personal Property Leases by any other party thereto.  Each Personal Property Lease is separately designated on Schedule 4.8 as either a Personal Property Lease that Seller has agreed to assign and that Buyer has agreed to assume (each, an “ Assigned Personal Property Lease ”) or as a Personal Property Lease that shall be paid off by Seller prior to Closing at its own expense or paid off at Closing with a portion of the Purchase Price (each, a “ Terminated Personal Property Lease ”).

 4.9.   Financial Statements .  Set forth on Schedule 4.9 are (a) the unaudited balance sheets of Seller as of December 31, 2006 and December 31, 2007, and the related statements of income for each of the applicable 12-month periods then ended, prepared in accordance with GAAP (the “ Year-End Financial Statements ”), and (b) the unaudited balance sheets of Seller as of August 30, 2008 and the related unaudited statements of income for the period then ended, prepared in accordance with GAAP (the “ Interim Financial Statements ”).  The Year-End Financial Statements and the Interim Financial Statements are referred to herein collectively as the “ Financial Statements .”  The Financial Statements fairly present the financial condition and the results of operations and cash flow of Seller’s Business as of the respective dates of and for the periods referred to in such financial statements, in all material respects, all in accordance with GAAP, subject to the absence of footnotes, provided that any disclosure omitted due to the absence of such footnotes does not either individually or in the aggregate cause a Seller Material Adverse Effect.  The Financial Statements reflect the consistent application of GAAP throughout the periods involved, subject to normal recurring year-end adjustments and the absence of footnotes.

    4.10.   Absence of Certain Events .  Except as noted on Schedule 4.10 , since the date of the Interim Financial Statements, Seller’s Business has been conducted only in the ordinary course and in a manner consistent with past practices.  As amplification and not in limitation of the foregoing, since the date of the Interim Financial Statements, with respect to Seller’s Business, there has not been:

(a)   any decrease in the value of the Acquired Assets other than ordinary depreciation consistent with past practices;

(b)   any voluntary or involuntary sale, assignment, license or other disposition, of any kind, of any property or right included in the Acquired Assets, except as specifically contemplated by this Agreement and except for sale of product inventory in the ordinary course of business;

(c)   any Lien imposed or created on the Acquired Assets;

(d)   any Seller Material Adverse Effect or event which could reasonably be expected to cause a Seller Material Adverse Event;

(e)   any damage or destruction of any of the assets that are material (either individually or in the aggregate with other damaged or destroyed assets) in Seller’s Business by fire or other casualty, whether or not covered by insurance;

(f)   any sale, transfer, assignment, termination, modification or amendment of any Contract, except for terminations, modifications and amendments of Contracts made in the ordinary course of business consistent with past practice and which would not have a Seller Material Adverse Effect;

(g)   any notice (written or oral) to Seller that any Contract has been breached or repudiated or will be breached or repudiated;

(h)   except in the ordinary course of business, or otherwise as necessary to comply with any applicable minimum wage law, any increase in the salary or other compensation of any employee or consultant engaged in Seller’s Business, or any increase in or any addition to other benefits to which any such employee or consultant may be entitled;

(i)   any extraordinary compensation, bonus or distribution to Seller or to any Affiliate of Seller;

(j)   any pending or threatened litigation against Seller or any Shareholder;

(k)   any failure to pay or discharge when due any liabilities which arose out of the ownership or operation of Seller’s Business;

(l)   any change in any of the accounting principles adopted by Seller, or any change in Seller’s policies, procedures, or methods with respect to applying such principles;

(m)   any transaction or Contract outside the ordinary course of business or involving an amount in excess of $5,000;

(n)   any termination of key personnel of Seller;

(o)   any dividends or distributions paid to Shareholders or to any other Affiliates of  Seller; or

(p)   any action that if taken after the Effective Date would constitute a breach of any of the covenants in Section 6.1 hereof.

 4.11.   Legal Proceedings .  Except as set forth on Schedule 4.11 , there is no action, suit, litigation, proceeding or investigation pending or, to the Knowledge of Seller, threatened by or against Seller or any Shareholder (but in the case of Shareholders, relating directly or indirectly to Seller’s Business or the Acquired Assets or a Shareholder’s ownership interest in Seller and right to enter into the transactions contemplated hereby), and neither Seller nor any Shareholder has received any written or oral claim, complaint, incident, report, threat or notice of any such proceeding or claim and neither Seller nor any Shareholder is aware of any basis therefor.  Neither Seller nor any Shareholder has received any opinion or memorandum or advice from legal counsel to the effect that it is exposed, from a legal standpoint, to any liability or claim relating to the Acquired Assets or to the business, prospects, financial condition, operations, property or affairs of Seller’s Business.  There are no outstanding orders, writs, judgments, injunctions or decrees of any court, governmental agency or arbitration tribunal against, involving or affecting Seller or the Acquired Assets, and to the Knowledge of Seller there are no facts or circumstances which may result in the institution of any such action, suit, claim or legal, administrative or arbitration proceeding or investigation against, involving or affecting Seller, the Acquired Assets or the transactions contemplated hereby.  Seller is not in default with respect to any order, writ, injunction or decree known to or served upon it from any court or any Federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign.

  4.12 .   Solvency and Value of Transfer .  There is no bankruptcy or insolvency proceeding of any character including without limitation, bankruptcy, receivership, reorganization, dissolution or arrangement with creditors, voluntary or involuntary, affecting Seller or any Shareholder, and neither Seller nor any Shareholder has taken any action in contemplation of, or which would constitute the basis for, the institution of any such proceedings.  Neither Seller nor any Shareholder is insolvent under any bankruptcy, receivership or insolvency law, and since September 30, 2005 has been paying debts as they become due and within vendor terms.  The value of the Purchase Price is equal to the negotiated value of the Acquired Assets and the other rights granted to Buyer herein, as indicated on Schedule 2.4 .  As of the Closing Date, after the Purchase Price is paid as provided for under this Agreement, the fair value of all of Seller’s assets will be equal to or greater than the total amount of the retained debts of Seller.  Seller’s sale of the Acquired Assets has not been undertaken with the intention to hinder, delay or defraud Seller’s current or future creditors.

        4.13.   Compliance with FDA and FTC Regulations .

(b)   To the Knowledge of Seller, Seller has all material authorizations, approvals, licenses, permits, certificates, registration or exemptions for the FDA or other comparable governmental authorities required to conduct its business and produce, market, sell and distribute its products as currently conducted and as contemplated to be conducted (“ Registrations ”).  To the Knowledge of Seller, each of the Registrations is valid and is in full force and effect.  To Seller’s Knowledge, neither the FDA nor any other governmental authority is or may consider limiting, suspending, or revoking such Registrations or changing the marketing classification or labeling of Seller’s products.  There is no false or misleading information, or, to the Knowledge of Seller, significant omission in any product application or other submission of Seller to the FDA or any comparable governmental authority.  To the Knowledge of Seller, Seller has fulfilled and performed all material obligations under each Registration , and no event has occurred or condition or state of facts exists that would reasonably be expected to constitute a violation or cause revocation or termination of any such Registration.  To Seller’s Knowledge, all third parties that are manufacturers, contractors, or suppliers for the Seller are in compliance with all applicable FDA Laws  insofar as they pertain to the manufacture of products for the Seller.

(c)   To the Knowledge of Seller, all products developed, manufactured, distributed or marketed by or on behalf of Seller that are subject to the jurisdiction of the FDA or any comparable governmental authority or the FTC have been and are being developed, manufactured, distributed and marketed in compliance with FDA Laws and marketed and sold in compliance with the requirements of the FTC.

(d)   Seller has not received any written notice during the past five (5) years from the FD  or any comparable governmental authority nor the FTC or any comparable governmental authority that alleges that Seller is not in compliance in any respect with FDA Laws or the laws, rules, regulations and orders of the FTC or any comparable governmental authority.  To the Knowledge of Seller, Seller is not subject to any obligation arising under an administrative or regulatory action or commitment made to the FDA, the FTC or any comparable governmental authorities.  Seller has appropriately responded to all observations made by the FDA during inspections and to all allegations made in other correspondence from the FDA, the FTC or any comparable governmental authorities.

(e)   No product has been seized, withdrawn, detained or subject to a suspension of manufacturing and, to the Knowledge of Seller, there are no facts or circumstances likely to cause the FDA, the FTC or any comparable governmental authorities to require (i) the seizure, recall, detention, safety alert or any suspension of manufacturing, distribution or sale of any product, or (ii) a change in the labeling of any product of Seller.  No proceedings in the United States or any other jurisdiction seeking the withdrawal, recall, suspension, or seizure of any product are pending or, to the Knowledge of Seller, threatened against Seller.

4.14.   Compliance with Laws .

              (b)   To Seller’s Knowledge, Seller has not violated and is in compliance with all applicable Laws.  Seller has not received any notice to the effect that, or otherwise been advised that, it is not in compliance with any Laws, and to Seller’s Knowledge no existing circumstances are likely to result in a violation of any Law.

(c)   To Seller’s Knowledge, Seller has complied with all Environmental Laws and Seller has not received any notice alleging any violation of any Environmental Laws with respect to Seller’s Business or the Acquired Assets.  Any past noncompliance with Environmental Laws by or with respect to Seller’s Business is identified by Seller on Schedule 4.14 , and has been resolved without any pending or threatened, ongoing or future obligation, cost or liability.  To Seller’s Knowledge, there has been no Release of Hazardous Materials in violation of any Environmental Law on the Premises.  To Seller’s Knowledge, there is no asbestos or asbestos-containing material on the Premises.  To Seller’s Knowledge, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will require any Remedial Action or notice to or consent of any governmental authority or third party pursuant to any applicable Environmental Law.

(d)   To Seller’s Knowledge, Seller has complied with all applicable requirements of the Occupational Safety and Health Act and all applicable state equivalents, and with all applicable regulations promulgated under any such legislation, and with all orders, judgments, and decrees of any tribunal under such legislation, that apply to Seller’s Business, the Acquired Assets or the Premises, and, except as set forth on Schedule 4.14 , Seller has not received any notice alleging any violation thereof.

 4.15.   Employment Matters .

(a)   Schedule 1.5 hereto contains a true and accurate list of each Seller Employee, together with such person’s position, date of hire, current salary, accrued paid time off, and amount of any other accrued benefits to which such person may be entitled or for which such person has made either written or oral claim to Seller, whether or not such Seller Employee is designated as a Transferring Employee.  Seller has paid or made provision for the payment of all accrued benefits and wages for all Seller Employees through the Closing Date.

(b)   Except as indicated on Schedule 1.5 , no Transferring Employee (i) has an employment agreement with Seller, whether written or oral or (ii) has indicated that he or she intends  to terminate his or her employment with Seller or seek a material change in his or her duties or status.  To Seller’s Knowledge, each Seller Employee, including without limitation each Transferring Employee, who is required to be licensed by applicable law is so licensed, and copies of such Licenses are attached to Schedule 1.5 hereto.

(c)   Except as listed on Schedule 4.15(c) , (i) Seller is not a party to any collective bargaining contracts or any other contracts, agreements or understandings with any labor unions or other representatives of the Seller Employees (a “ Labor Contract ”); (ii) Seller is not subject to any union organizing activities; (iii) Seller has not breached or otherwise failed to comply with any provision of any Labor Contract, and there are no grievances outstanding against Seller under any Labor Contract; (iv) there are no unfair labor practice complaints pending against Seller with respect to the Seller Employees before the National Labor Relations Board or any current union representation questions involving the Seller Employees; and (v) there is no strike, slowdown, work stoppage or lockout or, to Seller’s Knowledge, threat thereof, by or with respect to the Seller Employees.  The consent of any labor union which is a party to any Labor Contract is not required to consummate the transactions contemplated by this Agreement.

(d)   Buyer shall not assume any liability or responsibility for any benefit or other obligations arising out of or under any Employee Benefit Plan to which any Transferring Employee or Seller Employee is or may be entitled to without regard to whether such obligation or responsibility arises under the terms of such Employee Benefit Plan or applicable Law.  Seller shall retain all liability and responsibility for benefits, administration and compliance with the terms of any and all Employee Benefit Plans and applicable Laws with regard to any and all Employee Benefit Plans.

(e)   To Seller’s Knowledge, no person employed by or affiliated with Seller has employed or proposes to employ any trade secret or any information or documentation proprietary to any former employer and, no person employed by or affiliated with Seller has violated any confidential relationship which such person may have had with any third party while working on behalf of Seller, and Seller has no reason to believe that any such event could occur.

 4.16.   Benefit Plan Compliance with Provisions of Applicable Law .  Except as described in Schedule 4.16 , Seller, for the benefit of any of Seller Employees or Transferring Employees, does not maintain or contribute to, nor have any liability or responsibility with respect to any Employee Benefit Plan.  Seller has not incurred any liability (other than normal claims for benefits under its welfare plans) under any provision of ERISA or other applicable Law relating to any Employee Benefit Plan.  Each Employee Benefit Plan has been established, maintained and administered in compliance with its terms and complies, both in form and operation, with the applicable provisions of ERISA (including without limitation the funding and prohibited transactions provisions thereof), the Code, and all other state and federal applicable Laws, except where any such failure to comply would not, individually or in the aggregate, have a Seller Material Adverse Effect.  No Employee Benefit Plan is funded through a trust intended to be exempt from tax pursuant to Section 501 of the Code.  Neither Seller nor any ERISA Affiliate has ever maintained or contributed to any plan or arrangement subject to Title IV of ERISA or Section 412 of the Code, a multiemployer plan as described in Section 3(37) of ERISA or a “multiple employer plan” as described in Section 3(40) of ERISA or Section 413(c) of the Code, and Seller has never had any liability with respect to any such plan sponsored or maintained by an ERISA Affiliate.  No Employee Benefit Plan provides benefits, including, without limitation, death or medical benefits (through insurance or otherwise) with respect to employees or former employees beyond their retirement or other termination of service other than coverage mandated by applicable Law.  No Employee Benefit Plan which is a group health plan, as described in Section 5000(b)(1) of the Code is self-insured.  No Employee Benefit Plan liability, contingent or otherwise, shall affect any of the Acquired Assets, including but not limited to subjecting such Acquired Assets to attachment, forfeiture, seizure liquidation or use as collateral.

 4.17.   No Undisclosed Liability .  Except as and to the extent of the amounts specifically accrued or disclosed in the Financial Statements, Seller does not have any liabilities or obligations of any nature whatsoever, due or to become due, accrued, absolute, contingent or otherwise, required by GAAP to be reflected on a balance sheet, except for such liabilities or obligations that would not, individually or in the aggregate, cause a Seller Material Adverse Effect.  Such liabilities and obligations were incurred in the ordinary course of business and consistent with past practice.  To Seller’s Knowledge, there is no basis for the assertion against Seller of any liability or obligation required by GAAP to be fully and expressly accrued or disclosed in the Financial Statements.  Seller has not incurred any liabilities to customers or suppliers for discounts, returns, promotional allowances or otherwise in connection with Seller’s Business or any liability for rebates, refunds, allowances or returns for goods or services provided to, by or for the account of Seller which have not been accrued or disclosed in the Financial Statements.

 4.18.   No Brokers .  Neither Seller nor any Affiliate of Seller has employed, either directly or indirectly, or incurred any liability to, any broker, finder or other agent in connection with the transactions contemplated by this Agreement.  Seller and its Affiliates agree to indemnify and hold harmless Buyer for any claims brought by any broker, finder or other agent claiming to have acted on behalf of Seller or an Affiliate of Seller in connection with the purchase and sale of the Acquired Assets or Seller’s Business.

 4.19.   Taxes .  Seller has filed, or has caused to be filed, on a timely basis and subject to all permitted extensions, all Tax Returns with the appropriate governmental agencies in all jurisdictions in which such Tax Returns are required to be filed, and all such Tax Returns were correct and complete.  All Taxes that are shown as due on such Tax Returns have been timely paid, or delinquencies cured with payment of any applicable penalties and interest, as of the Closing Date.  There are no Liens for Taxes on any Acquired Assets of Seller, to the Knowledge of Seller no basis exists for the imposition of any Liens and the consummation of the transactions contemplated by this Agreement will not give rise to any Liens for Taxes on any Acquired Assets.  No adjustment of or deficiency of any Tax or claim for additional Taxes has been proposed, asserted, assessed or to the Knowledge of Seller threatened against Seller or any member of any affiliated or combined group of which Seller is or was a member or for which Seller could be liable, and to Seller’s Knowledge there is no basis therefor.  Except as set forth on Schedule 4.19 , Seller has no dispute with any taxing authority as to Taxes of any nature.  To Seller’s Knowledge, there are no audits or other examinations being conducted or threatened, and there is no deficiency or refund litigation or controversy in progress or threatened with respect to any Taxes previously paid by Seller or with respect to any returns previously filed by Seller or on behalf of Seller.  Seller has not made any extension or waiver of any statute of limitations relating to the assessment or collection of Taxes. There are in effect no powers of attorney or other authorizations to any persons or representatives of Seller with respect to any Tax.  Buyer shall have no liability for any Taxes related to the ownership or operation of the Acquired Assets or the Seller’s Business for the periods prior to the Closing Date.

 4.20.   List of Contracts .

(a)   For purposes of this Agreement, “ Contracts ” means all material agreements, contracts and commitments, written or oral, to which Seller is a party or by which Seller or any of its properties, the Acquired Assets or the Seller’s Business is bound including, without limitation: (i) notes, loans, credit agreements, mortgages, indentures, security agreements, operating leases, capital leases and other agreements and instruments relating to the borrowing of money or extension of credit and any contract of suretyship or guaranty; (ii) all employment and consulting agreements and arrangements, and all bonus, compensation, pension, insurance, retirement, deferred compensation and other plans, agreements, trusts, funds and other arrangements for the benefit of employees; (iii) agreements, orders or commitments for the purchase by Seller of inventories and supplies which involve annual purchases exceeding $5,000; (iv) agreements, orders or commitments for the sale or lease to customers of goods or services which involve annual sales exceeding $5,000; (v) licenses of patents, copyrights, trademarks and other intangible property rights; (vi) agreements or commitments for capital expenditures in excess of $5,000 for any single project; (vii) any joint venture, partnership or other agreement involving a share of profits or losses; (viii) any contract, agreement or arrangements with any Affiliate; (ix) any agreement restricting competition or the business activities of any person or entity; (x) any agreement for the purchase or sale of any Acquired Asset; (xi) all leases of real property; and (xii) any other agreements or obligations material to Seller’s Business or the Acquired Assets.   Schedule 4.20 hereto contains a complete and correct list of Contracts, including a complete description for any oral Contracts.  Each Contract is separately designated on Schedule 4.20 as either a Contract that Seller has agreed to assign and that Buyer has agreed to assume (each, an “ Assigned Contract ”) or as a Contract that shall be retained or terminated by Seller, in its discretion and at its own expense (each, a “ Retained Contract ”).

(b)   Seller is not in default under the terms of any Contract, except where such de