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STOCK PURCHASE AGREEMENT

Stock Purchase Agreement

STOCK PURCHASE AGREEMENT | Document Parties: Blackstone Mezzanine Management Associates | Critical Homecare Solutions Holdings, Inc | Kohlberg Company | Kohlberg Investors V, LP | Kohlberg Management V, LLC | MBF HEALTHCARE ACQUISITION CORP | SAC Capital Management, LLC You are currently viewing:
This Stock Purchase Agreement involves

Blackstone Mezzanine Management Associates | Critical Homecare Solutions Holdings, Inc | Kohlberg Company | Kohlberg Investors V, LP | Kohlberg Management V, LLC | MBF HEALTHCARE ACQUISITION CORP | SAC Capital Management, LLC

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Title: STOCK PURCHASE AGREEMENT
Governing Law: New York     Date: 2/7/2008
Industry: Misc. Financial Services     Law Firm: Pepper Hamilton;Akerman Senterfitt;Paul Weiss     Sector: Financial

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EXHIBIT 2.1
EXECUTION COPY
STOCK PURCHASE AGREEMENT
dated as of February 6, 2008
among
MBF HEALTHCARE ACQUISITION CORP.,
CRITICAL HOMECARE SOLUTIONS HOLDINGS, INC.
and
THE STOCKHOLDERS NAMED HEREIN

 


 
TABLE OF CONTENTS
         
    Page
ARTICLE I DEFINITIONS
    1  
1.1 Definitions
    1  
1.2 Other Capitalized Terms
    11  
1.3 Interpretive Provisions
    13  
 
       
ARTICLE II CALCULATION OF PURCHASE PRICE AND PAYMENT
    14  
2.1 Purchase and Sale of the Shares
    14  
2.2 Transactions to be Effected at the Closing
    15  
2.3 Purchase Price Adjustment
    16  
2.4 Treatment of Options
    18  
2.5 Escrow Funds
    19  
2.6 Relationship Among the Sellers
    20  
 
       
ARTICLE III THE CLOSING
    21  
3.1 Closing; Closing Date
    21  
 
       
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLERS
    21  
4.1 Organization
    21  
4.2 Binding Obligations
    21  
4.3 No Defaults or Conflicts
    22  
4.4 No Governmental Authorization Required
    22  
4.5 The Shares
    22  
4.6 Litigation
    22  
4.7 Exclusivity of Representations
    23  
 
       
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY
    23  
5.1 Organization and Qualification
    23  
5.2 Capitalization of the Company
    23  
5.3 Subsidiaries
    24  
5.4 Binding Obligation
    24  
5.5 No Defaults or Conflicts
    25  
5.6 No Governmental Authorization Required
    25  
5.7 Financial Statements
    25  
5.8 Intellectual Property
    26  
5.9 Compliance with the Laws
    27  
5.10 Contracts
    27  
5.11 Litigation
    29  
5.12 Taxes
    29  
5.13 Permits
    31  
5.14 Health Care Programs and Third Party Payor Participation
    31  
5.15 Health Care Regulatory
    32  
5.16 Medicare, Medicaid; Company’s Legal and Billing Compliance
    32  
5.17 Employee Benefit Plans
    36  
5.18 Environmental Compliance
    38  


 
TABLE OF CONTENTS
(Continued)
         
    Page
5.19 Insurance
    38  
5.20 Real Property
    39  
5.21 Affiliate Transactions
    40  
5.22 Absence of Certain Changes or Events
    40  
5.23 Labor and Employment Matters
    40  
5.24 Banks; Power of Attorney
    41  
5.25 Corporate Records
    41  
5.26 Accounts Receivable
    41  
5.27 Assets
    41  
5.28 Brokers
    41  
5.29 Exclusivity of Representations
    41  
 
       
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BUYER
    42  
6.1 Organization
    42  
6.2 Binding Obligation
    42  
6.3 Capitalization of the Buyer
    42  
6.4 Board of Directors Approval
    43  
6.5 No Defaults or Conflicts
    43  
6.6 No Authorization or Consents Required
    43  
6.7 Brokers
    44  
6.8 Available Funds
    44  
6.9 Sufficient Funds
    44  
6.10 Litigation
    45  
6.11 SEC Filings
    45  
6.12 Buyer’s Reliance
    45  
6.13 Investment Purpose
    46  
6.14 Requisite Vote
    46  
6.15 Investment Company Act
    46  
6.16 Operation of Business
    46  
6.17 No Material Liabilities
    46  
 
       
ARTICLE VII COVENANTS
    47  
7.1 Conduct of Business of the Company
    47  
7.2 Access to Information; Confidentiality; Public Announcements
    48  
7.3 Filings and Authorizations; Consummation
    49  
7.4 Resignations
    50  
7.5 Further Assurances
    51  
7.6 Transfer of Shares
    51  
7.7 Letters of Credit
    51  
7.8 Termination of Affiliate Obligations
    51  
7.9 Exclusivity
    51  
7.10 Waiver of Conflicts Regarding Representation
    52  

ii 


 
TABLE OF CONTENTS
(Continued)
         
    Page
7.11 Employee Matters
    52  
7.12 Restrictive Covenants.
    53  
7.13 Indemnification; Directors’ and Officers’ Insurance
    53  
7.14 Proxy Statement; Special Meeting
    54  
7.15 Other Actions
    55  
7.16 Required Information
    56  
7.17 Subscriptions
    56  
7.18 Releases
    56  
7.19 No Securities Transactions
    56  
7.20 No Claim Against Trust Fund
    56  
7.21 Tax Matters
    56  
7.22 Buyer’s Financing Obligations
    57  
7.23 Board Designation Rights
    58  
7.24 2007 Financial Statements
    58  
7.25 Additional Actions
    58  
 
       
ARTICLE VIII CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
    58  
8.1 Representations and Warranties Accurate
    58  
8.2 Performance
    58  
8.3 Officer’s Certificate
    58  
8.4 HSR Act; Legal Prohibition
    59  
8.5 Stock Certificates
    59  
8.6 Payoff Letters
    59  
8.7 FIRPTA Affidavit
    59  
8.8 Required Consents
    59  
8.9 Secretary’s Certificate
    59  
8.10 Escrow Agreement
    59  
8.11 General Release
    59  
8.12 Subscription Agreement
    59  
8.13 Stockholder Approval
    59  
8.14 Buyer Common Stock
    59  
 
       
ARTICLE IX CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS
    60  
9.1 Representations and Warranties Accurate
    60  
9.2 Performance
    60  
9.3 Officer Certificate
    60  
9.4 HSR Act; Legal Prohibition
    60  
9.5 Escrow Agreement
    60  
9.6 Stockholder Approval
    60  
9.7 Buyer Common Stock
    60  

iii 


 
TABLE OF CONTENTS
(Continued)
         
    Page
9.8 Subscription Agreement
    61  
 
       
ARTICLE X TERMINATION
    61  
10.1 Termination
    61  
10.2 Survival After Termination
    61  
 
       
ARTICLE XI INDEMNIFICATION
    62  
11.1 Survival
    62  
11.2 Indemnification by the Sellers; Indemnification by the Buyer
    62  
11.3 Limitations on Indemnification
    63  
11.4 Indemnification Claim Process
    65  
11.5 Indemnification Procedures for Non-Third Party Claims
    67  
11.6 Exclusive Remedy
    67  
11.7 Tax; Insurance; Other Indemnification
    67  
11.8 Tax Treatment of Indemnity Payments
    68  
 
       
ARTICLE XII TAX INDEMNITY AND PROCEDURES
    68  
12.1 Indemnification
    68  
12.2 Tax Returns
    69  
12.3 Cooperation
    71  
12.4 Contests
    71  
12.5 Refunds
    72  
12.6 Tax Elections
    72  
12.7 Payment for Use of Relevant Deductions
    72  
 
       
ARTICLE XIII MISCELLANEOUS
    73  
13.1 Expenses
    73  
13.2 Amendment
    73  
13.3 Entire Agreement
    73  
13.4 Headings
    73  
13.5 Notices
    73  
13.6 Exhibits and Schedules
    74  
13.7 Waiver
    75  
13.8 Binding Effect; Assignment
    75  
13.9 No Third Party Beneficiary
    75  
13.10 Counterparts
    75  
13.11 Release
    75  
13.12 Governing Law and Jurisdiction
    75  
13.13 Consent to Jurisdiction and Service of Process
    75  
13.14 WAIVER OF JURY TRIAL
    76  
13.15 Conveyance Taxes
    76  
13.16 Specific Performance
    76  

iv 


 
TABLE OF CONTENTS
(Continued)
         
    Page
13.17 Severability
    76  


 
TABLE OF CONTENTS
(Continued)
ANNEXES AND EXHIBITS
     
Annex A
  Sellers and Shares
Annex B
  List of Optionholders, Number of Options and Exercise Price
Annex C
  Adjustment Amount Transaction Percentage
Annex D
  Indemnity Escrow Allocation Percentage
 
   
Exhibit A
  Current Assets and Current Liabilities
Exhibit B
  Balance Sheet Rules
Exhibit C
  Form of Escrow Agreement
Exhibit D
  Form of Subscription Agreement
Exhibit E
  Form of Releases
Exhibit F
  Employment Agreement Persons
SCHEDULES
     
Schedule 1.1(a)
  Knowledge of the Company
Schedule 1.2
  Permitted Encumbrances
Schedule 4.3
  Seller Defaults or Conflicts
Schedule 4.4
  Seller Governmental Authorizations or Consents Required
Schedule 4.5
  Seller Ownership of Company
Schedule 5.2
  Company Capitalization
Schedule 5.3(a)
  Company Subsidiary
Schedule 5.3(b)
  Investments
Schedule 5.5
  Company Defaults or Conflicts
Schedule 5.6
  Governmental Authorizations Required
Schedule 5.8(a)
  Intellectual Property Rights
Schedule 5.8(b)
  Exceptions to Intellectual Property Rights
Schedule 5.8(d)
  Violation of Intellectual Property Rights
Schedule 5.10
  Contracts
Schedule 5.11
  Litigation
Schedule 5.12
  Taxes
Schedule 5.13
  Permits
Schedule 5.14(a)
  Programs; Program Agreements
Schedule 5.14(b)
  Third Party Payor Contracts
Schedule 5.15(a)
  Pending Program Participations/Enrollments
Schedule 5.15(b)
  Pending Reimbursement Audits/Appeals
Schedule 5.16(e)
  Company Accreditations
Schedule 5.16(f)
  Company Reimbursement Approvals
Schedule 5.16(g)
  Health Care Audits
Schedule 5.17(a)
  Company Benefit Plans

vi 


 
TABLE OF CONTENTS
(Continued)
     
Schedule 5.17(d)
  Multiemployer Plans
Schedule 5.17(g)
  Acceleration
Schedule 5.18
  Environmental Compliance
Schedule 5.20(a)(i)
  Owned Real Property
Schedule 5.20(a)(ii)
  Owned Real Property – Title; Owned Property Leases; Options
Schedule 5.20(a)(iv)
  Owned Real Property – Condition
Schedule 5.20(b)
  Leased Real Property
Schedule 5.21
  Affiliate Transactions
Schedule 5.22
  Certain Changes or Events
Schedule 5.24
  Banks; Power of Attorney
Schedule 6.3
  Buyer Capitalization
Schedule 6.5
  Buyer Defaults or Conflicts
Schedule 6.6
  Authorizations and Consents Required by Buyer
Schedule 7.1
  Conduct of Business of the Company
Schedule 7.11
  Employee Matters
Schedule 8.8
  Required Consents

vii 


 
STOCK PURCHASE AGREEMENT
     This STOCK PURCHASE AGREEMENT is dated as of February 6, 2008 (this “ Agreement ”) among MBF Healthcare Acquisition Corp., a Delaware corporation (the “ Buyer ”), Critical Homecare Solutions Holdings, Inc., a Delaware corporation (the “ Company ”), Kohlberg Investors V, L.P., (the “ Sellers’ Representative ”) and the other stockholders of the Company set forth on the signature pages hereto (each, together with the Sellers’ Representative, a “ Seller ” and collectively, the “ Sellers ”).
RECITALS
     WHEREAS, the Sellers own all of the issued and outstanding shares of Common Stock, $0.001 par value (the “ Shares ”), of the Company;
     WHEREAS, the Sellers desire to sell the Shares to the Buyer, and the Buyer desires to purchase the Shares from the Sellers, upon the terms and subject to the conditions set forth in this Agreement; and
     WHEREAS, concurrently with the execution hereof, the Company has entered into separate employment agreements with each of the individuals set forth on Exhibit F hereto (collectively, the “ Employment Agreements ”).
     NOW, THEREFORE, in consideration of the foregoing, the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
          1.1 Definitions . The following terms, whenever used herein, shall have the following meanings for all purposes of this Agreement.
     “ Accounting Methodology ” means the GAAP, methods and practices utilized in preparing the Interim Balance Sheet, applied on a consistent basis.
     “ Acquisition Cost ” means the purchase price for any acquisition of a business consummated after the date hereof but prior to the Effective Date by the Company or any Company Subsidiary and any out-of-pocket professional fees and expenses incurred in connection therewith.
     “ Acknowledgement of Liability Certificate ” means a written certificate pursuant to which the Indemnitor certifies to the Indemnitee in writing that, if a specific Third Party Claim were resolved in the favor of such third party claimant, the Indemnitee would be entitled to be indemnified from and against any Losses with respect to such Third Party Claim in accordance with the terms and limitations set forth in this Agreement.

 


 
     “ Adjustment Amount Transaction Percentage ” means, for each Seller and Optionholder, the percentage set forth next to such Seller’s or Optionholder’s name on Annex C attached hereto.
     “ Affiliate ” means as to any Person (a) any Person which directly or indirectly controls, is controlled by, or is under common control with such Person, and (b) any Person who is a director, officer, partner or principal of such Person or of any Person which directly or indirectly controls, is controlled by, or is under common control with such Person. For purposes of this definition, “control” of a Person shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by ownership of voting stock, by contract or otherwise.
     “ Antitrust Laws ” means the HSR Act, the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other United States federal or state or foreign statutes, rules, regulations, orders, decrees, administrative or judicial doctrines or other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.
     “ Assumed Indebtedness ” means all Company Indebtedness that is not being repaid at the Closing under Section 2.2 hereof.
     “ Balance Sheet Rules ” means, collectively, the Accounting Methodology and the rules set forth on Exhibit B attached hereto; provided that in the event of any conflict between the Accounting Methodology and the rules set forth on Exhibit B , the rules set forth on Exhibit B shall apply.
     “ Bank ” shall have the meaning as set forth in the definition of First Lien Credit Agreement.
     “ Base Amount ” shall have the meaning as set forth in the definition of Working Capital Overage.
     “ Benefit Plan ” means any “employee benefit plan” as defined in ERISA Section 3(3), including any retirement plan or arrangement which is an employee pension benefit plan (as defined in ERISA Section 3(2)), employee welfare benefit plan (as defined in ERISA Section 3(1)) or deferred compensation, stock purchase, stock option, severance pay, employment, change in control, vacation pay, salary continuation/disability, sick leave, bonus or other incentive compensation, life insurance or other employee benefit plan, contract, program, policy or other arrangement, whether funded or unfunded, written or oral, qualified or nonqualified, under which any present or former employee, leased employee or former leased employee or independent contractor of the Company or the Company Subsidiary has any present or future right to benefits sponsored or maintained by the Sellers, the Company or the Company Subsidiary.
     “ Business Day ” means any day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law or executive order to close.

2


 
     “ Buyer Material Adverse Effect ” means a material adverse effect on the business, results of operations, properties or assets of the Buyer; provided , however , that “ Buyer Material Adverse Effect ” shall not include the impact on such business, results of operations, properties or assets arising out of or attributable to (i) effects or conditions resulting from an outbreak or escalation of hostilities, acts of terrorism, political instability or other national or international calamity, crisis or emergency, or any governmental or other response to any of the foregoing, in each case whether or not involving the United States (in each case that do not disproportionately affect the Buyer relative to other businesses in the industry in which the Buyer operates), (ii) effects arising from changes in laws or GAAP, (iii) effects relating to the announcement of the execution of this Agreement or the transactions contemplated hereby, or (iv) effects resulting from compliance with the terms and conditions of this Agreement by the Buyer.
     “ Buyer SEC Reports ” means all reports, schedules, forms, and exhibits required to be filed by the Buyer with the SEC pursuant to the reporting requirements of the Exchange Act and all exhibits included therein and financial statements and schedules thereto, in each case to the extent required to be filed prior to the date of this Agreement.
     “ Buyer’s Stock ” means the common stock, $0.0001 par value, of the Buyer.
     “ CHS Stockholders Agreement ” means that certain Amended and Restated Stockholders Agreement, dated January 8, 2007, as amended by that certain Amendment No. 1 to Amended and Restated Stockholders Agreement, dated November 9, 2007 by and among KCHS Holdings, Inc., Kohlberg Investors V, L.P., Kohlberg Partners V, L.P., Kohlberg Offshore Investors V, L.P., Kohlberg TE Investors V, L.P., KOCO Investors V, L.P., Blackstone Mezzanine Partners II, L.P. Robert Cucuel, Mary Jane Graves, and Nitin Patel.
     “ Closing Date Value ” means the closing price of the Buyer’s Stock as listed on the American Stock Exchange (“AMEX”) on the trading day immediately preceding the Closing Date or, if the Buyer’s Stock is not listed on AMEX, such other exchange or quotation system on which the Buyer’s Stock is listed or quoted for trading.
     “ Closing Working Capital ” means the Working Capital as of the close of business in New York, New York on the Effective Date.
     “ Code ” means the Internal Revenue Code of 1986, as amended.
     “ Common Stock ” means the common stock, $0.001 par value, of the Company.
     “ Company Indebtedness ” means all Indebtedness of the Company and the Company Subsidiaries existing as of the Closing Date.
     “ Company SEC Report ” means the Company’s Registration Statement on Form S-1 (Registration Number 333-146618) filed with the SEC on December 31, 2007.
     “ Confidential Information ” means all confidential or proprietary business information, Intellectual Property Rights, know-how, research and development information, plans, proposals, technical data, copyright works, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information

3


 
related to the Company or any Company Subsidiary; provided , however , that, with respect to any Person bound by the provisions of Section 7.12(b), Confidential Information shall not include any of the foregoing to the extent that it (a) is or becomes generally available to the public other than as a result of a disclosure by such Person or its Affiliates or Representatives or (b) becomes available to such Person on a nonconfidential basis from another Person who is not otherwise bound by a confidentiality agreement with the Company or any Company Subsidiary.
     “ Credit Agreements ” means, collectively, the First Lien Credit Agreement and the Second Lien Credit Agreement.
     “ Credit Agreements Payoff Amount ” means the aggregate amount of outstanding principal and accrued but unpaid interest, fees and other amounts payable (including any prepayment penalties) as of the close of business in New York, New York on the Closing Date in respect of the Credit Agreements.
     “ Current Assets ” means, as of any date, the consolidated current assets of the Company and each Company Subsidiary, which current assets shall include only the line items set forth on Exhibit A attached hereto under the heading “Current Assets” and no other assets.
     “ Current Liabilities ” means, as of any date, the consolidated current liabilities of the Company and each Company Subsidiary, which current liabilities shall include only the line items set forth on Exhibit A attached hereto under the heading “Current Liabilities” and no other liabilities.
     “ date hereof ” means the date of this Agreement.
     “ Effective Date ” means the first day of the month in which the Closing occurs.
     “ Encumbrance ” means any and all liens, encumbrances, charges, mortgages, options, pledges, restrictions on transfer, security interests, hypothecations, easements, rights-of-way or encroachments of any nature whatsoever, whether voluntarily incurred or arising by operation of law.
     “ ERISA ” means the Employee Retirement Income Security Act of 1974.
     “ Escrow Agent ” means U.S. Bank National Association.
     “ Escrow Agreement ” means the escrow agreement entered into among the Buyer, the Sellers’ Representative and the Escrow Agent on the Closing Date, in form attached as Exhibit C hereto.
     “ Environment ” means soil, fill material, the land surface, or any other surface or subsurface strata, features, sediment, or material; surface waters, groundwater, wetlands, drinking water supplies or sources, or any other water bodies or other water features; any other natural resources or environmental features; outdoor air; any other environmental medium, environmental condition, or natural resource not described above; all biota, flora, and fauna; and any biota, flora, or fauna living in, on, or about any of the foregoing described above.

4


 
     “ Environmental Laws ” means any applicable and binding Laws arising under or in connection with (i) protection, conservation or regulation of the Environment (including concerning any and all environmental media) or any Hazardous Material (including those that are located at, on, under, from, about, adjacent to, or near the Owned Real Property or the Leased Real Property), (ii) the conservation, management, or use of natural resources and wildlife, (iii) the management, manufacture, possession, handling, presence, use, generation, transportation, treatment, storage, release, threatened release, investigation, assessment, abatement, corrective action, removal, or remediation of, or exposure to, Hazardous Material or (iv) the protection or use of surface water, groundwater, or other water bodies or other water features.
     “ Exchange Act ” means the Securities Exchange Act of 1934.
     “ Exercise Price ” means the applicable exercise price payable to the Company by an Optionholder upon the exercise of each Option to purchase one share of Common Stock pursuant to an Option Agreement.
     “ Financial Statements ” means, collectively, the historical financial statements of the Company and its Subsidiaries in each case to the extent set forth in the Company SEC Report for the period or periods indicated therein. For the avoidance of doubt, the Financial Statements shall not include pro forma financial statements of the Company or the Company Subsidiaries in the Company SEC Report.
     “ First Lien Credit Agreement ” means the Amended and Restated First Lien Credit Agreement, dated as of January 8, 2007, by and among Critical Homecare Solutions, Inc., KCHS Holdings, Inc., the other guarantors party thereto, the lenders party thereto, Jefferies Finance LLC (the “ Bank ”), Churchill Financial LLC, and Merrill Lynch Capital as amended by the First Amendment to Amended and Restated First Lien Credit Agreement and First Amendment to Security Agreement and Consent to Amendment to Intercreditor Agreement, dated as of July 25, 2007, among Critical Homecare Solutions, Inc., KCHS Holdings, Inc., the subsidiary guarantors party thereto, the lenders party thereto and the agents party thereto.
     “ GAAP ” means United States generally accepted accounting principles.
     “ Governmental Authority ” means any nation or government, any state, province, municipal or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administration functions of or pertaining to government, or any government authority, agency, department, board, tribunal, commission or instrumentality of the United State of America, any foreign government, any state of the United States of America, or any municipality or other political subdivision thereof, and any court, tribunal or arbitrator(s) of competent jurisdiction, and any governmental or non-governmental self-regulatory organization, agency or authority.
     “ Hazardous Material ” means toxic substances, hazardous substances, pollutants, contaminants, petroleum and its derivatives, hazardous wastes and any other substance, waste, or material regulated by any Environmental Laws.
     “ HIPAA ” means the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d.

5


 
     “ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
     “ Indebtedness ” means, of any Person, without duplication, (i) indebtedness for borrowed money or indebtedness issued or incurred in substitution or exchange for indebtedness for borrowed money, (ii) indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security, (iii) obligations under any interest rate, currency or other currency hedging agreement, (iv) obligations under any performance bond or letter of credit, but only to the extent drawn or called prior to the Closing Date, (v) all capitalized lease obligations as determined under GAAP, (vi) guarantees with respect to any indebtedness of any other Person of a type described in clauses (i) through (v) above, (vii) for clauses (i) through (vi) above, all accrued interest thereon, if any, and any termination fees, prepayment penalties, “breakage” cost or similar payments associated with the repayments of such Indebtedness on the Closing Date. For the avoidance of doubt, Indebtedness shall not include (A) any obligations under any performance bond or letter of credit to the extent undrawn or uncalled, (B) any intercompany Indebtedness between the Company and the Company Subsidiary, (C) any Indebtedness incurred by the Buyer and its Affiliates (and subsequently assumed by the Company or the Company Subsidiary) on the Closing Date, (D) any endorsement of negotiable instruments for collection in the ordinary course of business, (E) any deferred revenue, (F) any liability or obligation with respect to deferred Taxes and (G) any earnout arrangements.
     “ Indemnitor ” means any party hereto from which any Indemnitee is seeking indemnification pursuant to the provisions of this Agreement.
     “ Indemnity Escrow Amount ” means Thirty Million Dollars ($30,000,000) of the Buyer’s Stock valued at the price per share set forth in the Subscription Agreement, which Buyer’s Stock shall be the Buyer Stock acquired pursuant to Section 2.2(j) and which shall be contributed in the amounts set forth opposite the applicable Seller’s name on Annex D hereto.
     “ Indemnity Escrow Fund ” means the Indemnity Escrow Fund established pursuant to the Escrow Agreement excluding any dividends (other than stock dividends and stock splits) or other amounts earned thereon.
     “ Interim Balance Sheet ” means the unaudited balance sheet of the Company and the Company Subsidiaries as of December 31, 2007.
     “ IRS ” means the United States Internal Revenue Service.
     “ knowledge of the Company ” or any similar phrase means the actual knowledge of the individuals identified on Schedule 1.1(a) assuming the reasonable discharge of such individual’s professional responsibilities.
     “ Kohlberg Entities ” means Kohlberg Investors V, L.P., Kohlberg TE Investors V, L.P., Kohlberg Offshore Investors V, L.P., Kohlberg Partners V, L.P. and KOCO Investors V, L.P.
     “ Laws ” means any domestic or foreign laws, statutes, ordinances, rules, regulations, codes or executive orders enacted, issued, adopted, promulgated or applied by any Governmental Authority.

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     “ Material Adverse Effect ” means a material adverse effect on the business, results of operations, properties or assets of the Company and the Company Subsidiaries, taken as a whole; provided , however , that “Material Adverse Effect” shall not include the impact on such business, results of operations, properties or assets arising out of or attributable to (i) conditions or effects that generally affect the respective industries in which the Company and the Company Subsidiaries operate (including legal and regulatory changes) that do not disproportionately affect the Company and the Company Subsidiaries (taken as a whole) relative to other businesses in the industries in which the Company and the Company Subsidiaries operate, (ii) general economic conditions affecting the United States that do not disproportionately affect the Company and the Company Subsidiaries (taken as a whole) relative to other businesses in the industries in which the Company and the Company Subsidiaries operate, (iii) effects resulting from changes affecting capital market conditions in the United States that do not disproportionately affect the Company and the Company Subsidiaries relative to other businesses in the industries in which the Company and the Company Subsidiaries (taken as a whole) operate (in each of clauses (i), (ii) and (iii) above, including any effects or conditions resulting from an outbreak or escalation of hostilities, acts of terrorism, political instability or other national or international calamity, crisis or emergency, or any governmental or other response to any of the foregoing, in each case whether or not involving the United States), (iv) effects arising from changes in laws or GAAP, (v) effects relating to the announcement of the execution of this Agreement or the transactions contemplated hereby, (vi) failure of the Company and the Company Subsidiaries to meet any financial projections or forecasts, and (vii) effects resulting from compliance with the terms and conditions of this Agreement by the Sellers, or the Company. For the avoidance of doubt, a Material Adverse Effect shall not be measured against financial projections or forecasts of the Company or the Company Subsidiaries.
     “ Medicaid ” means the medical assistance program established by Title XIX of the Social Security Act (42 U.S.C. Section 1396 et seq.).
     “ Medicare ” means the health insurance program for the aged and disabled established by Title XVIII of the Social Security Act (42 U.S.C. Section 1395 et seq.).
     “ Multiemployer Plan ” has the meaning set forth in Section 3(37)(A) and 4001(a)(3) of ERISA and Section 414(f) of the Code.
     “ Option ” shall have the meaning as set forth in the definition of Option Agreements.
     “ Option Agreements ” means each of those certain Option Contracts between the Company and each of the Optionholders listed on Annex B attached hereto (the “ Optionholders ”), setting forth the terms of such Optionholder’s right to purchase Common Stock (each such right an, “ Option ”), including the Exercise Price thereof.
     “ Option Cancellation ” means the cancellation and payment of the Options immediately prior to the Closing pursuant to the terms and conditions of Section 2.4 hereof.
     “ Optionholders ” shall have the meaning as set forth in the definition of Option Agreements.

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     “ Per Diem Amount ” means an amount equal to the interest on the Estimated Purchase Price (determined without giving effect to the Per Diem Amount) for the period from and after the Effective Date through and including the Closing Date assuming an interest rate of 5% per annum.
     “ Permitted Encumbrances ” means, (i) Encumbrances for Taxes, assessments and other government charges not yet due and payable, or which are being contested in good faith by appropriate proceedings, (ii) mechanics’, workmens’, repairmens’, warehousemens’ or carriers’ Encumbrances arising in the ordinary course of business of the Company and the Company Subsidiaries, (iii) in respect of the Real Property: (A) easements, rights-of-way, servitudes, permits, licenses, surface leases, ground leases to utilities, municipal agreements and, railway siding agreements and other rights of record, (B) conditions, covenants or other similar restrictions of record, (C) easements for streets, alleys, highways, telephone lines, gas pipelines, power lines, railways and other non-monetary exceptions to title of record on, over or in respect of any Real Property, (D) encroachments and other similar matters that would be shown in an accurate survey of the Owned Real Property and (E) liens in favor of the lessors under the Leases, or encumbering the interests of the lessors under the Leases in the Leased Real Property, (iv) Encumbrances securing rental payments under capitalized and/or operating leases, (v) Encumbrances that do not otherwise materially detract from the value or current use of the applicable asset or Real Property, individually or in the aggregate, and (vi) the Encumbrances set forth on Schedule 1.2 .
     “ Person ” means any individual, corporation (including any not for profit corporation), general or limited partnership, limited liability partnership, joint venture, estate, trust, firm, company (including any limited liability company or joint stock company), association, organization, entity or Governmental Authority.
     “ Pre-Closing Date Taxable Period ” means any taxable period (or portion thereof) ending on or before the Closing Date. Except as provided in the following sentence, for the purpose of appropriately apportioning any Taxes relating to a Straddle Period to a Pre-Closing Date Taxable Period, such apportionment shall be made assuming that the Company had a taxable year that ended at the close of business on the Closing Date. In the case of property Taxes and similar Taxes which apply ratably to a taxable period, the amount of Taxes allocable to the portion of the Straddle Period that is a Pre-Closing Date Taxable Period shall equal the Tax for the period multiplied by a fraction, the numerator of which shall be the number of days in the period up to and including the Effective Date, and the denominator of which shall be the total number of days in the period.
     “ Prior Purchase Agreements ” means (i) that certain Stock Purchase Agreement by and among Specialty Pharma, Inc., Professional Home Care Services, Inc., Eureka I, L.P., the persons set forth on Schedule A thereto and Critical Homecare Solutions, Inc., dated as of August 10, 2006, as amended by that certain Letter Agreement amending the Stock Purchase Agreement by and among Specialty Pharma, Inc., Professional Home Care Services, Inc., Eureka I, L.P. and Critical Homecare Solutions, Inc., dated as of September 11, 2006, (ii) that certain Stock Purchase Agreement by and among New England Home Therapies, Inc., the persons set forth on Schedule A thereto and Critical Homecare Solutions, Inc., dated as of September 8, 2006, as amended by that certain First Amendment to Stock Purchase Agreement, dated as of

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September 19, 2006, by and among New England Home Therapies, Inc., Critical Homecare Solutions, Inc. and certain individuals named therein, (iii) that certain Stock Purchase Agreement by and among Critical Homecare Solutions, Inc., The Deaconess Associations, Inc. and Deaconess Enterprises, Inc., dated as of December 20, 2006, as amended by that certain First Amendment to Stock Purchase Agreement by and among Critical Homecare Solutions, Inc., The Deaconess Associations, Inc. and Deaconess Enterprises, Inc, dated as of January 8, 2007, (iv) that certain Stock Purchase Agreement by and among Infusion Solutions, Inc., the persons set forth on Schedule A thereto and Critical Homecare Solutions, Inc., dated as of March 14, 2007, (v) that certain Partnership Interest Purchase Agreement by and among Applied Health Care, Ltd., Applied HC, L.L.C., the persons set forth on Schedule A thereto, CHS Applied Healthcare GP, Inc., and CHS Applied Healthcare LP, Inc., dated as of June 27, 2007, (vi) that certain Stock Purchase Agreement dated as of July 25, 2007 by and among Option Care of Brunswick, Inc., Pradip Patel and Infusion Partners, Inc., (vii) that certain Stock Purchase Agreement dated as of July 25, 2007 by and among Option Care of Melbourne, Inc., Pradip Patel, Daksha Patel and Infusion Partners, Inc. and (viii) that certain Stock Purchase Agreement dated as of August 3, 2007 by and among East Goshen Pharmacy, Inc., Gary Needham and Dennis W. Wildasin and Infusion Partners, Inc.
     “ Purchase Price Adjustment Escrow Amount ” means Two Million Dollars ($2,000,000).
     “ Purchase Price Adjustment Escrow Fund ” means the Purchase Price Adjustment Escrow Fund established pursuant to the Escrow Agreement excluding any interest or other amounts earned thereon.
     “ Real Property ” means the Owned Real Property and the Leased Real Property.
     “ Reimbursement Approvals ” means all Program Agreements and Third Party Payor Contracts.
     “ Relevant Deduction ” means the sum of (x) any portion of the following payments that would result in a tax deduction by the Company: (i) the Aggregate Option Consideration; (ii) any “change in control,” “stay bonus” or similar payments included as a Company Expense; and (iii) the repayment of Indebtedness at Closing and (y) any other deduction in connection with the repayment of Indebtedness at Closing, including the deduction of unamortized debt issuance costs incurred in connection with the Indebtedness, in each case assuming unlimited taxable income for all relevant taxable periods.
     “ Representatives ” means any director, officer, agent, employee, general partner, member, stockholder, advisor or representative of such Person.
     “ SEC ” means the Securities and Exchange Commission.
     “ Second Lien Credit Agreement ” means the Second Lien Term Loan Agreement, dated as of January 8, 2007, among Critical Homecare Solutions, Inc., KCHS Holdings, Inc., the other guarantors party thereto, the lenders party thereto, Jefferies Finance LLC, Blackstone Corporate Debt Administration L.L.C. and Jefferies & Company, Inc. as amended by the First Amendment to Second Lien Term Loan Agreement and First Amendment to Security Agreement and Consent to Amendment of Intercreditor Agreement, dated as of July 25, 2007, among Critical Homecare

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Solutions, Inc., KCHS Holdings, Inc., the subsidiary guarantors party thereto, the lenders party thereto and the agents party thereto.
     “ Securities Act ” means the Securities Act of 1933, as amended.
     “ Seller Payment Transaction Percentage ” means, for each Seller, the percentage set forth in the third column next to such Seller’s name on Annex C attached hereto.
     “ Straddle Period ” means any taxable period that begins before and ends after the Closing Date.
     “ Subscription Agreement ” means the Subscription Agreement entered into by Buyer and each Seller in form and substance attached hereto as Exhibit D .
     “ Subsidiary ” means, of a specified Person, any corporation, partnership, limited liability company, limited liability partnership, joint venture, or other legal entity of which the specified Person (either alone and/or through and/or together with any other Subsidiary): (i) owns, directly or indirectly, more than 50% of the voting stock or other equity or partnership interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body, of such legal entity or (ii) of which the specified Person controls the management.
     “ Tax Returns ” means any report, declaration, return, information return, claim for refund, election, disclosure, estimate or statement required to be supplied to a taxing authority in connection with Taxes, including any schedule or attachment thereto, and including any amendments thereof.
     “ Taxes ” means (i) any and all federal, state, provincial, local, municipal, foreign and other taxes, levies, fees, imposts, duties, and similar governmental charges (including any interest, fines, assessments, penalties or additions to tax imposed in connection therewith or with respect thereto) including (x) taxes imposed on, or measured by, income, franchise, profits or gross receipts, and (y) ad valorem, value added, capital gains, sales, goods and services, use, real or personal property, capital stock, license, branch, payroll, estimated, withholding, employment, social security (or similar), unemployment compensation, utility, severance, production, excise, stamp, earnings, healthcare, occupation, premium, windfall profits, transfer and gains taxes, and customs duties, (ii) any liability in respect of any items described in clause (i) above whether as a result of transferee liability, being a member of an affiliated, consolidated, combined or unitary group for any period, or otherwise by operation of law, and (iii) any liability for the payment of amounts described in (i) or (ii) as a result of any tax sharing, tax indemnity, or tax allocation agreement or any other express or implied agreement to indemnify any other person.
     “ Termination Date ” means June 30, 2008; provided, however, that in the event the Buyer has not been advised by the SEC that all comments of the SEC with respect to the Preliminary Proxy Statement have been cleared on or prior to May 25, 2008, then the Termination Date shall be automatically extended until July 31, 2008.
     “ Third Party Claim ” means any claim or demand for which an Indemnitor may be liable to an Indemnitee hereunder which is asserted by a third party.

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     “ Unrestricted Claims ” means any claims pursuant to ARTICLE XI or ARTICLE XII with respect to: (i) any Specified Representations, (ii) any Specified Covenants, (iii) any intentional or willful breaches by the Seller or the Company of any covenants or agreements set forth herein, and (iv) any Seller Covenant to be made or performed following the Closing.
     “ Working Capital ” means, at any date, all Current Assets minus all Current Liabilities as of such date.
     “ Working Capital Overage ” shall exist when (and shall be equal to the amount by which) the Working Capital Estimate exceeds $24,891,432 (the “ Base Amount ”).
     “ Working Capital Underage ” shall exist when (and shall be equal to the amount by which) the Base Amount exceeds the Working Capital Estimate.
          1.2 Other Capitalized Terms . The following terms shall have the meanings specified in the indicated section of this Agreement:
     
Term   Section
2007 Audit
  7.24
Accounting Firm
  2.3(b)
Accredited Investor
  6.13
Aggregate Option Consideration
  2.4
Agreement
  Preamble
Alternative Financing
  7.22(a)
Basket Amount
  11.3(b)
Buyer
  Preamble
Buyer Adjustment Amount
  2.3(c)
Buyer Indemnitee
  11.2(a)
Buyer Stockholder Approval
  7.14(a)
Cap
  11.3(a)
Cash Equity
  6.9(b)
Claims Notice
  11.4(b)
Closing
  3.1
Closing Date
  3.1
COBRA
  5.17(j)
Commitment Letters
  6.9(b)
Company
  Preamble
Company Accreditation
  5.16(e)
Company Accreditations
  5.16(e)
Company Benefit Plans
  5.17(a)
Company Covenants
  11.2(a)
Company Expenses
  13.1
Company Health Care License
  5.16(j)
Company Health Care Licenses
  5.16(j)
Company Indemnified Parties
  7.13(a)
Company Reimbursement Approval
  5.16(f)
Company Reimbursement Approvals
  5.16(f)

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Term   Section
Company Representations
  11.1
Company Subsidiaries
  5.3
Company Subsidiary
  5.3
Confidentiality Agreement
  7.2(b)
Covered Entities
  5.16(i)(i)
Cut-Off Date
  11.1
Debt Commitment Letter
  6.9(a)
Debt Financing
  6.9(a)
Definitive Proxy Statement
  7.14(b)
DeMinimis Losses
  11.3(b)
DGCL
  6.4
Employees
  5.23(a)
Employment Agreements
  Recitals
Equity Commitment Letter
  6.9(b)
Equity Investor
  6.9(b)
Estimated Assumed Indebtedness Amount
  2.1(c)
Estimated Company Indebtedness Amount
  2.1(c)
Estimated Purchase Price
  2.1(a)
Evaluation Material
  7.2(b)
Evaluation Materials
  7.2(b)
Federal Privacy Regulations
  5.16(i)
Federal Security Regulations
  5.16(i)
Final Assumed Indebtedness
  2.3(c)
Final Purchase Price
  Other
Final Working Capital
  2.3(c)
Financing
  6.9(b)
General Release
  7.18
Health Care Audits
  5.16(g)
Health Care Licenses
  5.16(j)
Health Care Surveys
  5.16(g)
HIPAA Requirements
  5.16(i)
Indemnitee
  11.2(b)
Indemnitees
  11.2(b)
Insurance Policies
  5.19
Intellectual Property Rights
  5.8(b)
IP License
  5.8(a)
Leased Real Property
  5.20(b)
Leases
  5.20(b)
Lender
  6.9(a)
Losses
  11.2(a)
Material Contracts
  5.10(a)
Non-Contributing Seller
  11.3(c)
Notice of Disagreement
  2.3(b)
Owned Property Leases
  5.20(a)(ii)
Owned Real Property
  5.20(a)(i)

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Term   Section
Paul Weiss
  3.1
Pepper Hamilton
  7.10(b)
Per Share Price
  2.1(b)
Permits
  5.13
Post-Signing Returns
  7.21(a)
Preliminary Proxy Statement
  7.14(a)
Press Release
  7.15
Program Agreements
  5.14(a)
Programs
  5.14(a)
Seller
  Preamble
Seller Adjustment Amount
  2.3(c)
Seller Covenant
  11.2(a)
Seller Indemnitee
  11.2(b)
Seller Representations
  11.1
Sellers
  Preamble
Sellers’ Representative
  Preamble
Shares
  Recitals
Special Adjustment
  Exhibit B
Special Meeting
  7.14(a)
Specified Covenants
  11.1
Specified Representations
  11.1
Statement
  2.3(a)
Straddle Returns
  12.2(c)
Tax Indemnified Seller Parties
  12.1(c)
Third Party Payor Contracts
  5.14(b)
Third Party Payors
  5.14(b)
Trust Account
  6.8
Trust Agreement
  6.8
Trust Fund
  6.8
Trustee
  6.8
WARN
  5.17(h)
Withholding Amounts
  2.4
Working Capital Estimate
  2.1(c)
          1.3 Interpretive Provisions . Unless the express context otherwise requires:
               (a) the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
               (b) terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa;
               (c) the terms “Dollars” and “$” mean United States Dollars;

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               (d) references herein to a specific Section, Subsection, Recital, Schedule or Exhibit shall refer, respectively, to Sections, Subsections, Recitals, Schedules or Exhibits of this Agreement;
               (e) wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;
               (f) references herein to any gender shall include each other gender;
               (g) references herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and assigns; provided , however , that nothing contained in this clause (g) is intended to authorize any assignment or transfer not otherwise permitted by this Agreement;
               (h) references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity;
               (i) references herein to any contract or agreement (including this Agreement) mean such contract or agreement as amended, supplemented or modified from time to time in accordance with the terms thereof;
               (j) with respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”;
               (k) references herein to any law or any license mean such law or license as amended, modified, codified, reenacted, supplemented or superseded in whole or in part, and in effect from time to time; and
               (l) references herein to any law shall be deemed also to refer to all rules and regulations promulgated thereunder.
ARTICLE II
CALCULATION OF PURCHASE PRICE AND PAYMENT
          2.1 Purchase and Sale of the Shares .
               (a) The “ Estimated Purchase Price ” shall be equal to:
                    (i) $420,000,000,
                    (ii)  plus the sum of :
                         (A) the Working Capital Overage, if any;
                         (B) the Acquisition Costs, if any; and
                         (C) the Per Diem Amount;

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                    (iii)  minus the sum of:
                         (A) the amount of Company Expenses;
                         (B) the Estimated Company Indebtedness Amount;
                         (C) the Working Capital Underage, if any; and
                         (D) the Purchase Price Adjustment Escrow Amount.
     The Estimated Purchase Price shall be subject to adjustment following the Closing pursuant to Section 2.3 hereof (the Estimated Purchase Price as so adjusted, the “ Final Purchase Price ”).
               (b) At the Closing provided for in ARTICLE III , upon the terms and subject to the conditions of this Agreement, each Seller shall sell, transfer and deliver to the Buyer, and the Buyer shall purchase from each such Seller, the Shares owned by such Seller as listed on Annex A attached hereto at the Per Share Price. The “ Per Share Price ” shall be an amount equal to the quotient obtained by dividing (a) the excess of (i) the Estimated Purchase Price over (ii) the Aggregate Option Consideration by (b) the number of Shares outstanding as of the Closing Date (after giving effect to the Option Cancellation).
               (c) At least five (5) Business Days prior to the Closing Date, the Chief Financial Officer of Critical Homecare Solutions, Inc. shall deliver to the Buyer a good faith estimate of (i) Closing Working Capital prepared in accordance with Balance Sheet Rules and the resulting Working Capital Overage or Working Capital Underage (the “ Working Capital Estimate ”), (ii) the amount of Company Indebtedness (the “ Estimated Company Indebtedness Amount ”), which shall include the Credit Agreement Payoff Amount and the amount of Assumed Indebtedness prepared in accordance with the Balance Sheet Rules (the “ Estimated Assumed Indebtedness Amount ”), and (iii) the amount of Company Expenses.
          2.2 Transactions to be Effected at the Closing . At the Closing, the following transactions shall be effected by the parties:
               (a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer, with appropriate transfer Tax stamps, if any, affixed;
               (b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), the sum of the product of (i) the Per Share Price multiplied by (ii) the number of Shares owned by such Seller as listed on Annex A attached hereto; provided, further that, notwithstanding anything to the contrary contained herein, any portion of the Estimated Purchase Price attributable to a Special Adjustment shall be payable in either cash or Buyer’s Stock (which shall be valued at the Closing Date Value), in the Buyer’s sole and absolute discretion;

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               (c) the Buyer shall deliver to the Company by wire transfer of immediately available funds to such bank account of the Company designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing) an amount equal to the Aggregate Option Consideration;
               (d) the Company shall pay to each Optionholder (at the Company’s option, by wire transfer of immediately available funds, check or direct deposit) an amount equal to such Optionholder’s allocable portion of the Aggregate Option Consideration in accordance with Section 2.4 herein; provided that with respect to each Option, the amount paid to an Optionholder shall be reduced by all applicable Withholding Amounts, if any, with respect to the exercise of the underlying Option in accordance with Section 2.4 herein; provided, further that, notwithstanding anything to the contrary contained herein, any portion of the Estimated Purchase Price attributable to a Special Adjustment shall be payable in either cash or Buyer’s Stock (which shall be valued at the Closing Date Value), in the Buyer’s sole and absolute discretion;
               (e) the Buyer shall deliver to the Company by wire transfer of immediately available funds to such bank account of the Company designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreements Payoff Amount;
               (f) The Company shall pay the Credit Agreements Payoff Amount to the Bank;
               (g) the Buyer shall deliver to the Company by wire transfer of immediately available funds to such bank account of the Company designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount sufficient to pay the Company Expenses;
               (h) the Company shall pay the Company Expenses;
               (i) the Buyer shall deliver (a) the Buyer’s Stock to be held in the Indemnity Escrow Fund and (b) the Purchase Price Adjustment Escrow Amount by wire transfer of immediately available funds to the Escrow Agent; and
               (j) the Sellers party to the Subscription Agreement shall deliver by wire transfer by immediately available funds to such bank account of the Buyer designated in writing by the Buyer (such designation to be made two (2) Business Days prior to the Closing Date) an aggregate amount equal to $35,000,000, which amount shall be allocated as set forth on Schedule 2.2(j) .
          2.3 Purchase Price Adjustment .
               (a) Within sixty (60) calendar days after the Closing Date, the Buyer shall deliver to the Sellers’ Representative a statement (the “ Statement ”) of the Closing Working Capital and the Assumed Indebtedness, in each case prepared in accordance with the Balance Sheet Rules. The Buyer and the Sellers acknowledge that no adjustments shall be made to the Base Amount.

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          (b) The Statement shall become final and binding upon the parties on the thirtieth (30 th ) day following the date on which the Statement was delivered to the Sellers’ Representative, unless the Sellers’ Representative delivers written notice of its disagreement with the Statement (a “ Notice of Disagreement ”) to the Buyer prior to such date. Any Notice of Disagreement shall (i) specify in reasonable detail the nature of any disagreement so asserted and (ii) only include good faith disagreements based on Closing Working Capital and/or Assumed Indebtedness not being calculated in accordance with the Balance Sheet Rules. If a Notice of Disagreement is received by the Buyer in a timely manner, then the Statement (as revised in accordance with this sentence) shall become final and binding upon the Sellers and the Buyer on the earlier of (i) the date the Sellers’ Representative and the Buyer resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm pursuant to this Section 2.3(b) . During the thirty (30)-day period following the delivery of a Notice of Disagreement, the Sellers’ Representative and the Buyer shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. If at the end of such thirty (30)-day period the Sellers’ Representative and the Buyer have not resolved in writing the matters specified in the Notice of Disagreement, the Sellers’ Representative and the Buyer shall submit to an independent accounting firm (the “ Accounting Firm ”) for arbitration, in accordance with the standards set forth in this Section 2.3(b) , only such matters specified in the Notice of Disagreement that remain in dispute. The Accounting Firm shall be KPMG LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by the Sellers’ Representative and the Buyer in writing. The Sellers’ Representative and the Buyer shall use reasonable efforts to cause the Accounting Firm to render a written decision resolving the matters submitted to the Accounting Firm within thirty (30) calendar days of the receipt of such submission. The scope of the disputes to be resolved by the Accounting Firm shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with the Balance Sheet Rules and the Accounting Firm is not to make any other determination, including any determination as to whether the Base Amount, Working Capital Estimate or the Estimated Assumed Indebtedness are correct. The Accounting Firm’s decision shall be based solely on written submissions by the Sellers’ Representative and the Buyer and their respective representatives and not by independent review and shall be final and binding on all of the parties hereto. The Accounting Firm may not assign a value greater than the greatest value for such item claimed by either party or smaller than the smallest value for such item claimed by either party. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the party against which such determination is to be enforced. The fees and expenses of the Accounting Firm incurred pursuant to this Section 2.3(b) shall be borne pro rata as between the Sellers, on the one hand, and the Buyer, on the other hand, in proportion to the final allocation made by such Accounting Firm of the disputed items weighted in relation to the claims made by the Sellers’ Representative and the Buyer, such that the prevailing party pays the lesser proportion of such fees, costs and expenses.
          (c) For the purposes of this Agreement, “ Final Working Capital ” means the Closing Working Capital and “ Final Assumed Indebtedness ” means the Assumed Indebtedness, in each case as finally agreed or determined in accordance with Section 2.3(b) . The Estimated Purchase Price shall be increased (any such increase, the “ Seller Adjustment

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Amount ”) by the sum of (i) the amount, if any, that the Final Working Capital exceeds the Working Capital Estimate and (ii) the amount, if any, that the Estimated Assumed Indebtedness Amount exceeds the Final Assumed Indebtedness. The Estimated Purchase Price shall be decreased (any such decrease, the “ Buyer Adjustment Amount ”) by the sum of (i) the amount, if any that the Working Capital Estimate exceeds the Final Working Capital and (ii) the amount, if any, that the Final Assumed Indebtedness exceeds the Estimated Assumed Indebtedness Amount. If the Seller Adjustment Amount exceeds the Buyer Adjustment Amount, the Buyer shall, within five (5) Business Days after the Final Working Capital and the Final Assumed Indebtedness are determined, make payment by wire transfer of immediately available funds to the Sellers and the Optionholders in accordance with their respective Adjustment Amount Transaction Percentage in the amount of any such excess; provided, that, notwithstanding anything to the contrary contained herein, any portion of the Seller Adjustment Amount attributable to a Special Adjustment shall be payable in either cash or Buyer’s Stock (which shall be valued at the Closing Date Value), in the Buyer’s sole and absolute discretion. If the Buyer Adjustment Amount exceeds the Seller Adjustment Amount, the parties shall, within five (5) Business Days after the Final Working Capital and the Final Assumed Indebtedness are determined, cause the Escrow Agent to release a wire transfer of immediately available funds to the Buyer from the Purchase Price Adjustment Escrow Fund in an amount equal to any such excess in accordance with the terms of the Escrow Agreement; provided that in the event such payment amount exceeds the amount of the then available Purchase Price Adjustment Escrow Fund, the shortfall shall be paid from the available Indemnity Escrow Fund.
          (d) No actions taken by the Buyer on its own behalf or on behalf of the Company or any Company Subsidiary, on or following the Closing Date shall be given effect for purposes of determining the Closing Working Capital or Assumed Indebtedness. During the period of time from and after the Closing Date through the final determination and payment of Closing Working Capital and Assumed Indebtedness in accordance with this Section 2.3 , the Buyer shall afford, and shall cause the Company and each Company Subsidiary to afford, to the Sellers and any accountants, counsel or financial advisers retained by the Sellers in connection with the review of Closing Working Capital and Assumed Indebtedness in accordance with this Section 2.3 , direct access during normal business hours upon reasonable advance notice to all the properties, books, contracts, personnel, representatives (including the Company’s accountants) and records of the Company, each Company Subsidiary and such representatives (including the work papers of the Company’s accountants) relevant to the review of the Statement and the Buyer’s determination of Closing Working Capital and Assumed Indebtedness in accordance with this Section 2.3 .
     2.4 Treatment of Options . Immediately prior to the Closing, the Sellers shall cause the Company to take all actions necessary so all Options then outstanding shall become fully vested and exercisable (whether or not currently exercisable) and, immediately prior to the Closing, each Option not theretofore exercised shall be cancelled without any future liability to the Buyer, the Company or any other Person after the Closing, in exchange for the right to receive the payment described in the following sentence (such payments in the aggregate, the “ Aggregate Option Consideration ”). The Company shall cause each Optionholder exercising any Options prior to the Closing to agree in writing to become a party to this Agreement as a Seller and to be bound by, and subject to, all of the covenants, terms and conditions of this Agreement that are binding upon the Sellers and the Annexes attached hereto shall be deemed to

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have been updated without any further action of the parties hereto to reflect that each such Optionholder has become a Seller. Subject to the other provisions of this Section 2.4 , each holder of an Option that is cancelled pursuant to this Section 2.4 shall, in respect of each such Option, be entitled to a cash payment in an amount equal to the product of (I) the excess, if any, of (i) the quotient obtained by dividing (A) the Estimated Purchase Price plus the aggregate exercise price of all Options outstanding as of the time of cancellation by (B) the sum of the total number of Shares outstanding as of the Closing (after giving effect to the Option Cancellation) and the number of shares of Common Stock subject to all Options outstanding at the time of cancellation over (ii) the applicable Exercise Price of each Option, multiplied by (II) the number of shares of Common Stock underlying such Options. The Company shall be entitled to, and the Buyer will cause the Company at the Closing to, deduct and withhold from the amounts otherwise payable pursuant to this Section 2.4 to any Optionholder such amounts (the “ Withholding Amounts ”) as the Company is required to deduct and withhold in connection with the exercise of the underlying Option or with respect to the making of such payment under the Code, or any provision of state, local or foreign tax law and to properly remit such amount to the appropriate Tax authority. To the extent that Withholding Amounts are so deducted and withheld by the Company, such Withholding Amounts shall be treated for all purposes of this Agreement and shall be included in the Aggregate Option Consideration as having been paid to the Optionholder in respect of which such deduction and withholding were made by the Company. To the extent permissible by applicable law, the Sellers and the Buyer shall treat, and cause their Affiliates to treat, the U.S. federal and state income tax deductions resulting from the payment obligations of the Company in cancellation of the Options described in this Section 2.4, the U.S. federal and state income tax deductions resulting from the accrual or payment of any Indebtedness, “change in control” and “stay bonus” or similar payments as deductible in the Pre-Closing Date Taxable Period, and, in the case of a Straddle Period, as allocable for the purposes of this Agreement to the Pre-Closing Date Taxable Period included in such Straddle Period, and shall not take any position inconsistent therewith. For the avoidance of doubt, the Sellers and the Buyer shall not treat, and shall cause their Affiliates not to treat, the “next day” rule of Treasury Regulation Section 1.1502-76(b)(1)(ii)(B) or any similar provision of state or local Tax Law as applying to the deductions described in the previous sentence, and no elections that would result in the ratable allocation of such deductions shall be made under Treasury Regulation Section 1.1502-76(b)(2) or any similar provision of state or local Tax Law.
          2.5 Escrow Funds . The Purchase Price Adjustment Escrow Amount shall be used solely for the purposes set forth in Section 2.3(b) and Section 2.3(c) and shall terminate five (5) Business Days after the date on which each of the Final Working Capital and the Final Assumed Indebtedness are finally agreed or determined. The Indemnity Escrow Fund shall (a) be used solely to satisfy any claims of the Buyer for indemnification pursuant to Section 11.2(a) made from and after Closing but on or before the Cut-Off Date applicable to the representation, warranty or covenant to which such claim(s) relates, (b) to the extent that the amount payable by the Sellers pursuant to Section 2.3(c) , if any, exceeds the amount of the then available Purchase Price Adjustment Escrow Fund, be used solely for the purposes set forth in Section 2.3(b) and Section 2.3(c) and (c) terminate on the date which is fifteen (15) months after the Closing Date (other than with respect to claims in subparagraph (a) above). Any amounts in the Purchase Price Adjustment Escrow Fund not so used shall be distributed to the Sellers and the Optionholders in accordance with their respective Adjustment Amount Transaction Percentages. Any amounts in the Indemnity Escrow Fund not so used shall be distributed to the Sellers based

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on such Seller’s Indemnity Escrow Allocation Percentage as set forth opposite such Sellers name on Annex D. The Purchase Price Adjustment Escrow Fund and the Indemnity Escrow Fund shall each be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement.
          2.6 Relationship Among the Sellers .
               (a) Each Seller hereby irrevocably appoints the Sellers’ Representative as the sole representative of the Sellers to act as the agent and on behalf of such Sellers regarding any matter relating to or under this Agreement, including for the purposes of: (i) making decisions with respect to the determination of the Closing Working Capital and Assumed Indebtedness under Section 2.3 ; (ii) determining whether the conditions to closing in ARTICLE IX have been satisfied and supervising the Closing, including waiving any condition, as determined by the Sellers’ Representative, in its sole discretion; (iii) taking any action that may be necessary or desirable, as determined by the Sellers’ Representative, in its sole discretion, in connection with the termination of this Agreement in accordance with ARTICLE X ; (iv) taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative, in its sole discretion, in connection with the amendment of this Agreement in accordance with Section 13.2 ; (v) accepting notices on behalf of the Sellers in accordance with Section 13.5 ; (vi) taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative, in its sole discretion, in connection with negotiating or entering into settlements and compromises of any claim for indemnification pursuant to ARTICLE XI hereof, (vii) delivering or causing to be delivered to the Buyer at the Closing certificates representing the Shares to be sold by the Sellers hereunder; (viii) executing and delivering, on behalf of the Sellers, any and all notices, documents or certificates to be executed by the Sellers, in connection with this Agreement and the transactions contemplated hereby and (ix) granting any consent, waiver or approval on behalf of the Sellers under this Agreement. As the representative of the Sellers under this Agreement, the Sellers’ Representative shall act as the agent for all Sellers, shall have authority to bind each such Person in accordance with this Agreement, and the Buyer may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to the Buyer. The Buyer may conclusively rely upon, without independent verification or investigation, all decisions made by the Sellers’ Representative in connection with this Agreement in writing and signed by an officer of the Sellers’ Representative.
               (b) Each Seller hereby appoints the Sellers’ Representative as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in such Seller’s name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the sale of such Seller’s Shares as fully to all intents and purposes as such Seller might or could do in person. In acting as the sole representative of the Sellers hereunder prior to the Closing Date, the Seller’s Representative shall take such actions consistent with and in accordance with the terms of the CHS Stockholders Agreement.
               (c) The Sellers’ Representative (in its capacity as Sellers’ Representative) shall have no liability to the Buyer for any default under this Agreement by any

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other Seller. Except for fraud or willful misconduct on its part, the Sellers’ Representative shall have no liability to any other Seller under this Agreement for any action or omission by the Sellers’ Representative on behalf of the other Sellers.
               (d) The Company shall cause each Optionholder to execute a separate document pursuant to which such Optionholder shall grant the Sellers’ Representative all rights granted to the Sellers’ Representative by the Sellers pursuant to this Section 2.6 (as may be applicable to the Optionholders) and shall promptly provide the Buyer a copy thereof.
ARTICLE III
THE CLOSING
          3.1 Closing; Closing Date . The closing of the sale and purchase of the Shares contemplated hereby (the “ Closing ”) shall take place at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP (“ Paul Weiss ”), 1285 Avenue of the Americas, New York, New York 10019-6064, at 10:00 a.m. local time, on the second (2 nd ) Business Day after the date that all of the conditions to the Closing set forth in ARTICLE VIII and ARTICLE IX (other than those conditions which, by their terms, are to be satisfied or waived at the Closing) shall have been satisfied or waived by the party entitled to waive the same, or at such other time, place and date that the Sellers’ Representative and the Buyer may agree in writing. The date upon which the Closing occurs is referred to herein as the “ Closing Date .” Except as set forth herein and notwithstanding the date on which the Closing occurs, all of the incidents of economic ownership attributable to the Company shall be deemed transferred to the Buyer on the Effective Date as of 12:01 a.m. (New York City Time) on the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
     Each Seller represents and warrants to the Buyer as follows:
          4.1 Organization . Such Seller (other than any Seller that is an individual) is duly organized, validly existing and in good standing (or the equivalent thereof) under the laws of the jurisdiction of its formation.
          4.2 Binding Obligations . Such Seller (other than any Seller that is an individual) has all requisite corporate, partnership or other authority and power to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby and the execution, delivery and performance by such Seller of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such Seller and no other proceedings on the part of such Seller are necessary to authorize the execution and delivery and performance of this Agreement by such Seller. This Agreement has been duly executed and delivered by such Seller, and assuming that this Agreement constitutes the legal, valid and binding obligations of the Buyer, constitutes the legal, valid and binding obligations of such Seller, enforceable against such Seller in accordance with its terms, except to the extent that the enforceability thereof may be limited by (i) applicable

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bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws from time to time in effect affecting generally the enforcement of creditors’ rights and remedies, and (ii) general principles of equity.
          4.3 No Defaults or Conflicts . The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by such Seller and performance by such Seller of its obligations hereunder (i) do not result in any violation of the applicable organizational documents of such Seller, if applicable, (ii) except as set forth on Schedule 4.3 , do not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under any material agreement or instrument to which such Seller is a party or by which such Seller is bound or to which its properties are subject, and (iii) except for applicable requirements under the HSR Act, do not violate any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Authority having jurisdiction over such Seller or any of its properties; provided , however , that no representation or warranty is made in the foregoing clauses (ii) or (iii) with respect to matters that, individually or in the aggregate, would not reasonably be expected to materially impair such Seller’s ability to consummate the transactions contemplated hereby.
          4.4 No Governmental Authorization Required . Except for applicable requirements of the HSR Act or similar foreign competition or Antitrust Laws or as otherwise set forth in Schedule 4.4 , no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority will be required to be obtained or made by such Seller in connection with the due execution, delivery and performance by such Seller of this Agreement and the consummation by such Seller of the transactions contemplated hereby; provided , however , that no representation and warranty is made with respect to authorizations, approvals, notices or filings with any Governmental Authority that, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to materially impair the Sellers’ ability to consummate the transactions contemplated hereby.
          4.5 The Shares . Schedule 4.5 sets forth such Seller’s record ownership of the Company’s capital stock as of the date hereof. Other than the shares of capital stock of the Company owned by such Seller as listed on Schedule 4.5 hereto, such Seller has no other equity interests or rights to acquire equity interests in the Company as of the date hereof. Such Seller has good and valid title to the Shares, free and clear of all Encumbrances, except (i) Permitted Encumbrances against the Shares all of which will be discharged on or prior to the Closing Date, (ii) Encumbrances on transfer imposed under applicable securities laws, and (iii) Encumbrances created by the Buyer’s or its Affiliate’s acts. Assuming the Buyer has the requisite power and authority to be the lawful owner of such Shares, upon delivery to the Buyer at the Closing of certificates representing the Shares, duly endorsed by such Seller for transfer to the Buyer, and upon receipt of the Estimated Purchase Price by such Seller, good and valid title to the Shares will pass to the Buyer, free and clear of any Encumbrances, other than those arising from acts of the Buyer or its Affiliates and Encumbrances on transfer imposed under applicable securities laws. The Shares are not subject to any contract restricting or otherwise relating to the voting, dividend rights or disposition of such Shares.
          4.6 Litigation . There is no claim, action, suit or legal proceeding pending or, to the knowledge of such Seller, threatened against such Seller, before any Governmental

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Authority which seeks to prevent such Seller from consummating the transactions contemplated by this Agreement.
          4.7 Exclusivity of Representations . The representations and warranties made by such Seller in this Agreement are the exclusive representations and warranties made by such Seller. Such Seller hereby disclaims any other express or implied representations or warranties. Such Seller is not, directly or indirectly, making any representations or warranties regarding pro-forma financial information or financial projections of the Company or any Company Subsidiary.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
     The Company represents and warrants to the Buyer as follows:
          5.1 Organization and Qualification . The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Each Company Subsidiary is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its formation. The Company and each Company Subsidiary have all requisite organizational power and authority to own, lease and operate their respective properties and carry on their business as presently owned or conducted, except where the failure to be so organized, existing and in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to be material to the Company or any Company Subsidiary. The Company and each Company Subsidiary have been qualified, licensed or registered to transact business as a foreign corporation and is in good standing (or the equivalent thereof) in each jurisdiction in which the ownership or lease of property or the conduct of their business requires such qualification, license or registration, except where the failure to be so qualified, licensed or registered or in good standing (or the equivalent thereof) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in a material adverse effect on the Company’s or each such Company Subsidiary’s ability to consummate the transactions contemplated hereby. The Company has delivered to the Buyer true and correct copies of the charter and by-laws for the Company and each Company Subsidiary.
          5.2 Capitalization of the Company .
               (a)  Schedule 5.2 sets forth a complete and accurate list of the authorized, issued and outstanding capital stock of the Company. Except as set forth on Schedule 5.2 , there are no other shares of Capital Stock or other equity securities of the Company authorized, issued, reserved for issuance or outstanding and no outstanding or authorized options, warrants, convertible or exchangeable securities, subscriptions, rights (including any preemptive rights), calls or commitments of any character whatsoever, relating to the capital stock of, or other equity or voting interest in, the Company, to which the Company is a party or is bound requiring the issuance, delivery or sale of shares of capital stock of the Company. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the capital stock of, or other equity or voting

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interest in, the Company to which the Company is a party or is bound. The Company has no authorized or outstanding bonds, debentures, notes or other indebtedness the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the right to subscribe for or acquire securities having the right to vote). There are no contracts to which the Company or any Seller is a party or by which it is bound to (i) repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity or voting interest in, the Company or (ii) vote or dispose of any shares of capital stock of, or other equity or voting interest in, the Company. There are no irrevocable proxies and no voting agreements with respect to any shares of capital stock of, or other equity or voting interest in, the Company.
               (b) All of the issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable and free of any preemptive rights in respect thereto.
          5.3 Subsidiaries . Schedule 5.3  sets forth a complete and accurate list of the name and jurisdiction of each Subsidiary of the Company (each a “ Company Subsidiary ” and collectively, the “ Company Subsidiaries ”), and the authorized, issued and outstanding capital stock of the Company Subsidiary. Each of the outstanding shares of capital stock of the Company Subsidiary is duly authorized, validly issued, fully paid and non-assessable and is directly owned of record as set forth on Schedule 5.3 , free and clear of any Encumbrances other than (i) Permitted Encumbrances to be removed prior to or at Closing, (ii) Encumbrances on transfer imposed under applicable securities law and (iii) Encumbrances created by the Buyer’s or its Affiliates’ acts. There is no other capital stock or equity securities of any Company Subsidiary authorized, issued, reserved for issuance or outstanding and no outstanding or authorized options, warrants, convertible or exchangeable securities, subscriptions, rights (including any preemptive rights), stock appreciation rights, calls or commitments of any character whatsoever to which any such Company Subsidiary is a party or may be bound requiring the issuance, delivery or sale of shares of capital stock of such Company Subsidiary. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the capital stock of, or other equity or voting interest in, any Company Subsidiary to which the Company or any Company Subsidiary is bound. No Company Subsidiary has any authorized or outstanding bonds, debentures, notes or other indebtedness, the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the right to subscribe for or acquire securities having the right to vote) with the equity holders of such Company Subsidiary on any matter. There are no contracts to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary is bound to (i) repurchase, redeem or otherwise acquire any shares of the capital stock of, or other equity or voting interest in, such Company Subsidiary or (ii) vote or dispose of any shares of the capital stock of, or other equity or voting interest in, such Company Subsidiary. There are no irrevocable proxies and no voting agreements with respect to any shares of the capital stock of, or other equity or voting interest in, any Company Subsidiary. Except as set forth on Schedule 5.3 , neither the Company nor any Company Subsidiary owns, directly or indirectly, any capital stock of, or equity ownership or voting interest in, any Person (other than the Company Subsidiaries in the case of the Company).
          5.4 Binding Obligation . The Company has all requisite corporate authority and power to execute, deliver and perform this Agreement and to consummate the transactions

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contemplated hereby. This Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all required corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, assuming that this Agreement constitutes the legal, valid and binding obligation of the Buyer and the Sellers, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws from time to time in effect affecting generally the enforcement of creditors’ rights and remedies, and (ii) general principles of equity.
          5.5 No Defaults or Conflicts . The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by the Company and performance by the Company of its obligations hereunder (i) does not result in any violation of the charter or by-laws of the Company or the Company Subsidiaries, (ii) except as set forth on Schedule 5.5 , does not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under any Material Contract or material Lease, and (iii) except for the applicable requirements of the HSR Act, does not violate any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Authority having jurisdiction over the Company, the Company Subsidiaries or any of their respective properties; provided , however , that no representation or warranty is made in the foregoing clause (iii) with respect to matters that would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole.
          5.6 No Governmental Authorization Required . Except for applicable requirements of the HSR Act or similar foreign competition or Antitrust Laws or as otherwise set forth in Schedule 5.6 , no consent, order, authorization or approval or other action by, and no notice to or filing with, any Governmental Authority will be required to be obtained or made by the Company in connection with the due execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby; provided , however , that no representation and warranty is made with respect to any consents, orders, authorizations, approvals, notices or filings with any Governmental Authority that, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to be material to the business or the operation of the Company and the Company Subsidiaries, taken as a whole, or materially impair the Company’s ability to consummate the transactions contemplated hereby.
          5.7 Financial Statements .
               (a) The balance sheets included in the Financial Statements fairly present, in all material respects, the financial position of the Company as of their respective dates, and the other related statements included in the Financial Statements fairly present, in all material respects, the results of operations and cash flows for the periods indicated therein in accordance with GAAP applied on a consistent basis, subject to normal year end audit adjustments (none of which will individually or in the aggregate be material) and the absence of related notes, as applicable.

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               (b) The Company and its Subsidiaries do not have any material liabilities of any nature required to be included in the Financial Statements (including any notes thereto) or otherwise required to be disclosed in a balance sheet in accordance with GAAP except for liabilities (i) included or reserved in, or disclosed by, the Financial Statements or (ii) incurred after September 30, 2007, in the ordinary course of business consistent with past practice.
               (c) Except with respect to earn-out arrangements set forth on Schedule 5.7(c) , neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture or off-balance sheet partnership agreement (including any agreement or arrangement relating to any transaction or relationship between or among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC)), where the result, purpose or effect of such agreement is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company or any of its Subsidiaries in the Financial Statements.
               (d) The Company’s and the Company Subsidiaries’ “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) will be reasonably designed, as of the Closing Date, to ensure that (i) all information that would be required to be disclosed by the Company in the Financial Statements is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC (if, for this purpose, the Company was a reporting company under the Exchange Act), and (ii) the principal executive officer and principal financial officer of the Company could make the certifications that would be required under the Exchange Act with respect to such Financial Statements (if, for this purpose, the Company was a reporting company under the Exchange Act).
               (e) Except as set forth on Schedule 5.7(e) , neither the Company nor any Company Subsidiary has received any notification from its internal audit personnel or its independent public accountants of (i) a “significant deficiency” or (ii) a “material weakness” in the Company’s internal controls. For purposes of this Agreement, the terms “significant deficiency” and “material weakness” shall have the meanings assigned to them in Release 2004 001 of the Public Company Accounting Oversight Board.
          5.8 Intellectual Property .
               (a)  Schedule 5.8(a) sets forth, all registrations, issuances, filings and applications for all Intellectual Property Rights (as defined below) filed by, or issued or registered to, the Company or the Company Subsidiaries and all material license agreements relating to Intellectual Property Rights to which the Company or any Company Subsidiary is a party (other than licenses for “off-the-shelf” or other software widely available on generally standard terms and conditions) (each such license, an “ IP License ”).
               (b) Except as set forth on Schedule 5.8(b) , the Company or the Company Subsidiaries, as applicable, owns, or possesses licenses or other rights to use, all

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patents, trademarks and service marks (registered or unregistered), trade names (including the Company’s and each Company Subsidiary’s corporate name and logo), uniform resource locators and Internet domain names, copyright applications and registrations therefor, unregistered copyrights, computer software programs, industrial designs, inventions, invention disclosures, business methods, electronic databases, trade secrets and other intellectual property, whether or not subject to statutory registration or protection, which are material to the conduct of the business of the Company and the Company Subsidiaries, taken as a whole (the “ Intellectual Property Rights ”), free and clear of any Encumbrances other than Permitted Encumbrances. Each IP License to which the Company or any Company Subsidiary is a party (i) is a legal and binding obligation of the Company or such Company Subsidiary, as applicable, and, to the knowledge of the Company, the other relevant parties thereto, (ii) is in full force and effect and (iii) none of the Company, any Company Subsidiary, nor, to the knowledge of the Company, any other party thereto, is in default in the performance, observance or fulfillment of any obligation, covenant or condition contained in any IP License.
               (c) The validity of the Intellectual Property Rights and the title or rights to use thereof is not being challenged in any litigation to which the Company or any Company Subsidiary is a party, nor to the knowledge of the Company, is any such litigation threatened in writing.
               (d) Except as set forth on Schedule 5.8(d) , to the knowledge of the Company, no Person is infringing upon or violating any of the Intellectual Property Rights owned by the Company or any Company Subsidiary, and the manufacture, marketing, license, distribution, sale and use of products currently sold by the Company or any such Company Subsidiary, as applicable, does not violate any IP License.
          5.9 Compliance with the Laws . Other than with respect to Taxes, ERISA, Health Care or Environmental Laws, which matters are covered exclusively under Sections 5.12, 5.14, 5.15, 5.16, 5.17 and 5.18 , respectively and except as set forth on Schedule 5.9 , (a) the business of the Company and the Company Subsidiaries is not being conducted in any material respect in violation of any laws and (b) each of the Company and its Subsidiaries is, and since September 1, 2006, has been, in compliance in all material respects with all Laws applicable to it, its properties or other assets or its business or operations. Except as set forth on Schedule 5.9 , none of the Company and its Subsidiaries have received, since September 1, 2006, a notice or other written communication alleging or relating to a possible material violation of any Law applicable to it, its properties or other assets or its businesses or operations.
          5.10 Contracts .
               (a)  Schedule 5.10(a) lists or describes and true and complete copies have been made available to the Buyer, of all contracts, agreements and instruments (other than Company Benefit Plans, Leases and purchase orders) to which the Company or any Company Subsidiary is a party or to which their respective assets, property or business are bound or subject or which the Company or any Company Subsidiary has any outstanding rights or obligations (collectively, the contracts listed on Schedule 5.10(a) are referred to herein as the “ Material Contracts ”):

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                    (i) any agreement (or group of related agreements) (x) for the sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing of services, which involves consideration in excess of $400,000 in calendar year 2007 or (y) for the purchase of raw materials, commodities, supplies, products, or other personal property, or for the receipt of services by a third party, which involves payment by the Company or any Company Subsidiary of consideration in excess of $400,000 in calendar year 2007 or which the Company reasonably expects will involve payment by the Company or any Company Subsidiary of consideration in excess of $400,000 per annum in any future calendar year during the term of such agreement;
                    (ii) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $250,000 per annum;
                    (iii) in respect of (x) any Assumed Indebtedness having a principal amount outstanding in excess of $75,000 and (y) any of the items covered in the exclusions to the definition of Indebtedness (other than Indebtedness incurred by the Buyer or any of its Affiliates);
                    (iv) that contains a covenant not to compete, or other material covenant restricting the development, manufacture, marketing or distribution of products and services of the Company or any Company Subsidiary, in each case that materially limits the conduct of the business of the Company or any Company Subsidiary as presently conducted;
                    (v) that relates to the acquisition or disposition of any business by the Company or any Company Subsidiary (whether by merger, sale of stock, sale of assets or otherwise) since September 1, 2006 and any Prior Purchase Agreement;
                    (vi) that imposes any material confidentiality, standstill or similar obligation on the Company or any Company Subsidiary, except for those entered into in the ordinary course of business or in connection with the sale process of the Company or in connection with the proposed acquisition of any Person;
                    (vii) that contains a right of first refusal, first offer or first negotiation;
                    (viii) in respect of any joint venture, partnership or strategic alliance; and
                    (ix) pursuant to which the Company or any Company Subsidiary has granted any exclusive marketing, sales representative relationship, franchising, consignment or distribution right to any third party.
               (b) With respect to all Material Contracts, neither the Company, any Company Subsidiary nor, to the knowledge of the Company, any other party to any such contract is in material breach thereof or default thereunder and there does not exist under any Material Contract any event which, with the giving of notice or the lapse of time or both, would constitute such a material breach or default by the Company, any Company Subsidiary or, to the

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knowledge of the Company, any other party. Except as set forth on Schedule 5.10(b) , neither the Company nor any Company Subsidiary has made any claim against any other party to a Prior Purchase Agreement for indemnification or otherwise, and to the knowledge of the Company there is no reasonable basis for making any such claim.
          5.11 Litigation . Except as set forth in Schedule 5.11 and with respect to any workers’ compensation claims, there are no material claims, actions or legal proceedings pending or, to the knowledge of the Company, threatened in writing against the Company or any Company Subsidiary or any material portion of their respective properties or assets before any Governmental Authority against or involving the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary is subject to any material unsatisfied order, judgment, injunction, ruling, decision, award or decree of any Governmental Authority.
          5.12 Taxes . Except as set forth on Schedule 5.12 :
                    (i) all Tax Returns required to be filed by or with respect to the Company or any Company Subsidiary have been timely filed, and all such Tax Returns are true, complete and correct in all material respects;
                    (ii) the Company and each Company Subsidiary have fully and timely paid all Taxes shown to be due on the Tax Returns referred to in Section 5.12(i) ;
                    (iii) all deficiencies for Taxes asserted or assessed in writing against the Company or any Company Subsidiary have been fully and timely paid, settled or properly reflected in the Financial Statements;
                    (iv) no action, proceeding, investigation, inquiry or audit is pending with respect to any Taxes due from or with respect to the Company or any Company Subsidiary nor does the Company have knowledge of any pending or threatened action, proceeding, investigation, inquiry or audit by any taxing authority;
                    (v) there are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, Taxes due from the Company or any Company Subsidiary for any taxable period and no request for any such waiver or extension is currently pending;
                    (vi) neither the Company nor any Company Subsidiary has been included in any “consolidated”, “unitary”, or “combined” Tax Return provided under the law of the United States or any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitation has not expired, other than a group the common parent of which is the Company;
                    (vii) neither the Company nor any Company Subsidiary has taken any reporting position on a Tax Return, which reporting position (i) if not sustained would be reasonably likely, absent disclosure, to give rise to a penalty for substantial understatement of federal income Tax under Section 6662 of the Code (or any similar provision of state, local, or foreign Tax law), and (ii) has not adequately been disclosed on such Tax Return in accordance

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with Section 6662(d)(2)(B) of the Code (or any similar provision of state, local, or foreign Tax law);
                    (viii) neither the Company nor any Company Subsidiary has participated in any “reportable transaction,” as defined in Treasury Regulations Section 1.6011-4(b);
                    (ix) the Company and its Subsidiaries have each withheld (or will withhold) from their respective employees, independent contractors, creditors, stockholders and third parties and timely paid to the appropriate Governmental Authority proper and accurate amounts in compliance with all Tax withholding and remitting provisions of applicable laws and have each complied with all Tax information reporting provisions of all applicable laws;
                    (x) the Company has not made any payments, and is not and will not become obligated under any contract, agreement, plan, or arrangement (or combinations thereof) entered into on or before the Closing Date to make any payments, that, individually or collectively, will be non-deductible under Code Sections 280G or 162(m) of the Code or subject to the excise Tax under Code Section 4999 or that would give rise to any obligation to indemnify any Person for any excise Tax payable pursuant to Code Section 4999;
                    (xi) all Taxes incurred after the Effective Date and on or before the Closing Date have been incurred in the ordinary course of business of the Company or a Company Subsidiary;
                    (xii) there are no Encumbrances for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Company or any Company Subsidiary;
                    (xiii) neither the Company nor any Company Subsidiary will be required (A) as a result of a change in method of accounting for a taxable period ending on or prior to the Closing Date, to include any adjustment under Sections 481(c) or 263A of the Code in taxable income for any taxable period (or portion thereof) beginning after the Closing Date, (B) as a result of any “closing agreement,” as described in Section 7121 of the Code, to include any item of income or exclude any item of deduction from any taxable period (or portion thereof) beginning after the Closing Date, or (C) as a result of an election under Section 1362 of the Code, to include any amount under Section 1363(d) in any taxable period (or portion thereof) beginning after the Closing;
                    (xiv) neither the Company nor any Company Subsidiary is a party to or bound by any tax allocation or tax sharing agreement or has any current or potential obligation to indemnify any other Person with respect to Taxes other than as set forth in the Prior Purchase Agreements; and
                    (xv) no claim has been made in writing by a Governmental Authority in a jurisdiction where the Company or a Company Subsidiary does not file Tax Returns that the Company or such Company Subsidiary is or may be subject to Taxes assessed by such jurisdiction.

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          5.13 Permits . Schedule 5.13 sets forth for the Company and each Company Subsidiary all licenses, permits, authorizations, franchises and certifications of governmental authorities, registrations, waivers, privileges, exemptions, qualifications, quotas, certificates, filings, notices, permits and rights necessary held by the Company which are material to the Company and each Company Subsidiary for the lawful conduct of the Company’s and each Company Subsidiary’s businesses as presently conducted, or the lawful ownership of properties and assets or the operation of their businesses as conducted (collectively, “ Permits ”). There are no other material Permits required by the Company or any Subsidiary for the lawful conduct of the Company’s and each Company Subsidiary’s businesses as presently conducted. To the knowledge of the Company, no suspension, revocation or invalidation of any such Permit is pending or has been threatened. All such Permits are in full force and effect, and there has occurred no material default under any Permit by the Company or such Company Subsidiary. No representation is given under this Section 5.13 with respect to matters covered by Section 5.16 (Medicare, Medicaid; Company’s Legal and Billing Compliance).
          5.14 Health Care Programs and Third Party Payor Participation .
               (a) The Company Subsidiaries participate in and have not be excluded from the federal and state health care programs (the “ Programs ”) listed on Schedule 5.14(a) . A list of the Company Subsidiaries’ existing (x) Medicare and Medicaid Program provider agreements and (y) all other federal and state Program provider agreements that provide for payment in excess of $400,000 in calendar year 2007, including TRICARE and CHAMPUS, pertaining to the business of each Company Subsidiary or, if such contracts do not exist, other documentation evidencing such participation (collectively, the “ Program Agreements ”) are set forth on Schedule 5.14(a) , current, true and complete copies of which have been delivered to the Buyer.
               (b) The Company Subsidiaries have contractual arrangements with third party payors including, but not limited to, private insurance, managed care plans and HMOs (the “ Third Party Payors ”). A list of each Company Subsidiary’s existing contracts with Third Party Payor(s) that provide for payment in excess of $400,000 in calendar year 2007 pertaining to such Company Subsidiary’s business are set forth on Schedule 5.14(b) (the “ Third Party Payor Contracts ”), current, true and complete copies of which have been delivered to the Buyer.
               (c) The Program Agreements and Third Party Payor Contracts constitute legal, valid, binding and enforceable obligations of the Company Subsidiary that is a party thereto, and to the knowledge of the Company, the other parties thereto, are in full force and effect.
               (d) No Company Subsidiary is in material default under any Program Agreement or under any Third Party Payor Contract to which it is a party and, to the knowledge of the Company, the other parties thereto are not in material default thereunder.
               (e) The Company, and each Company Subsidiary are, in all material respects, in compliance with rules and policies respecting each Program Agreement and Third Party Payor Contract, including all certification, billing, reimbursement and documentation requirements. To the knowledge of the Company, no action has been taken or recommended by

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any Governmental Authority, either to revoke, withdraw or suspend any Program Agreement or to terminate or decertify any participation of any Company Subsidiary in any “Federal Health Care Program” (as that term is defined in 42 U.S.C. § 1320a-7b(f)) in which it participates (including, but not limited to Medicare, Medicaid, TRICARE and CHAMPUS), nor is there any decision by the Company not to renew any Program Agreement. To the knowledge of the Company, no party to a Third Party Payor Contract or government regulatory authority has threatened revocation, suspension, termination, probation, restriction, limitation or nonrenewal affecting any Third Party Payor Contract.
          5.15 Health Care Regulatory .
               (a) Except as set forth on Schedule 5.15(a) , there is no pending, or to the knowledge of the Company, threatened exclusion, revocation, suspension, termination, probation, material restriction, material limitation or nonrenewal affecting the Company or any Company Subsidiary’s participation or enrollment in any of the Programs. Neither the Company nor any Company Subsidiary has received written notice that the Company or such Company Subsidiary is currently the subject of any investigation, inquiry or proceeding by any Governmental Authority (or any Governmental Authority’s designated agent or agents), nor, to the knowledge of the Company, is there any reasonable grounds to anticipate the commencement of any investigation, inquiry or proceeding by any Governmental Authority, and no written notice of any violation, asserted deficiency, or other irregularity has been received by the Company or any Company Subsidiary from any Governmental Authority (or any Governmental Authority’s designated agent or agents) that would directly or indirectly, or with the passage of time:
                    (i) materially affect the Buyer’s ability to treat patients, furnish, claim, bill and receive reimbursement relative to health care products or services rendered to patients or health care professionals, providers or suppliers, or
                    (ii) result in the imposition of any material fine, sanction, or lower reimbursement rate for items or services furnished by such Company Subsidiary.
               (b) There are no current, pending or outstanding material Medicaid, Medicare or other reimbursement audits or appeals relating to the Company or any Company Subsidiary, except those set forth on Schedule 5.15(b) .
               (c) There are no current or pending material payment or reimbursement withhold, payment recoupment or suspension relative to the Company or any Company Subsidiary or to the health care items or services furnished by any Company Subsidiary other than payment or reimbursement withholds, or payment recoupments that are individually immaterial.
          5.16 Medicare, Medicaid; Company’s Legal and Billing Compliance .
               (a)  Activities and Contractual Relationships . To the knowledge of the Company, neither the Company nor any Company Subsidiary has engaged in any activity or contractual relationship, including the filing or submission or any claim for reimbursement, report or other documentation, in violation of 42 C.F.R. § 424.22(d), the False Claims Act

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(31 U.S.C. Section 3729), the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104 191,110 Stat. 1936 (1996), the Fraud and Abuse provisions of Section 1128B of the Social Security Act, the Medicare and Medicaid Patient and Program Protection Act of 1987 (42 U.S.C. Section 1320a 7b), Section 1877 of the Medicare Act (42 U.S.C. Section 1395nn) (the Stark anti referral amendments), or any directives, rules or regulations thereunder promulgated by the U.S. Department of Health and Human Services, or any comparable fraud and abuse rules and regulations promulgated by any other federal, state or local agency; or which results in the over utilization of health care services by patients or improper denial of health care services to patients.
               (b)  Inappropriate Payments . Neither the Company, any Company Subsidiary nor, to the knowledge of the Company, any officer, director, employee or agent acting on behalf of or for the benefit of any thereof, has, directly or indirectly: (i)  paid any remuneration, in cash or in kind, to, or made any financial arrangements with, any past or present customers, past or present suppliers, contractors or Third Party Payors of any Company Subsidiary to obtain business or payments from such person, other than in compliance with applicable Laws, negotiating the amount owed to any Company Subsidiary in the ordinary course of collecting amounts overdue; (ii) given any gift or gratuitous payment of any kind, nature or description (whether in money, property or services) to any customer or potential customer, supplier or potential supplier, contractor, Third Party Payor or any other person; and (iii) made any contribution, payment or gift of funds or property to, or for the private use of, any governmental official, employee or agent, where the contribution, payment or gift is or was illegal under applicable Laws.
               (c)  Compliance with Healthcare Laws . Neither the Company, any Company Subsidiary nor any of their respective officers or directors is a party to any contract, lease or other agreement, including any joint venture or consulting agreement, with any physician, hospital, nursing facility, home health agency, hospice or other person or entity who is in a position to make or influence referrals to or otherwise generate business for the Company or any Company Subsidiary that (i) does not comply in all material respects with a safe harbor under 42 U.S.C. 1320a-7b(b) (the Fraud and Abuse Anti-Kickback statute) or (ii) violates 42 U.S.C. 1395nn and 1395(q) (the Stark Law).
               (d)  Compliance with Billing Practices . To the knowledge of the Company, all billing practices by the Company and the Company Subsidiaries to all Third Party Payors and the Programs have been in material compliance with all applicable Laws, regulations and policies of all such Third Party Payors and Programs. The Company and each Company Subsidiary have filed all material reports required to be filed in connection with all Medicare and Medicaid programs due on or before the date hereof, which reports are complete and correct in all material respects. To the knowledge of the Company, there are no material claims, actions, payment reviews or (other than those set forth on Schedule 5.15(b) ) appeals pending or threatened before any commission, board or agency, including any intermediary or carrier, the Administrator of the Centers for Medicare and Medicaid Services, or any applicable state program, with respect to any Medicare or Medicaid claims filed by the Company or any Company Subsidiary on or before the date hereof or program compliance matters which would be reasonably expected to result in a Material Adverse Effect. No validation review or program integrity review related to the Company, any Company Subsidiary or their respective facilities

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has been conducted by any commission, board or agency in connection with the Medicare or Medicaid program, and, to the knowledge of the Company, no such reviews are scheduled, pending or threatened against or affecting the Company, any Company Subsidiary or their respective facilities or the consummation of the transactions contemplated hereby.
               (e)  Accreditations . Each Company Subsidiary holds all material Accreditations necessary or required by applicable Laws or Governmental Authority for the operation of the Business as conducted by the Company. Schedule 5.16(e) sets forth all such Accreditations held by the Company and the Company Subsidiaries (individually, a “ Company Accreditation ,” and collectively, the “ Company Accreditations ”). There are no pending or, to the knowledge of the Company, threatened suits or proceedings that would reasonably be expected to result in a suspension, revocation, restriction, amendment or nonrenewal of any Company Accreditation, and to the knowledge of the Company, no event which (whether with notice or lapse of time or both) would reasonably be expected to result in a suspension, revocation, restriction, amendment or nonrenewal of any Company Accreditation has occurred. Each Company Subsidiary is in compliance with the material terms of the Company Accreditations.
               (f)  Reimbursement Approvals . To the knowledge of the Company, the Company and each Company Subsidiary hold all material Reimbursement Approvals necessary or required by applicable Law or Governmental Authority for the operation of the Business as conducted by the Company. Schedule 5.16(f) sets forth all such Reimbursement Approvals held by the Company Subsidiaries as of the Closing Date or for which a Company Subsidiary has applied (individually, a “ Company Reimbursement Approval ,” and collectively, the “ Company Reimbursement Approvals ”). There are no pending or, to the knowledge of the Company, threatened suits or proceedings that would reasonably be expected to result in the suspension, revocation, restriction, amendment or nonrenewal of any Company Reimbursement Approvals, and to the knowledge of the Company, no event which (whether with notice or lapse of time or both) would reasonably be expected to result in a suspension, revocation, restriction, amendment or nonrenewal of any Company Reimbursement Approval has occurred. To the knowledge of the Company, each Company Subsidiary is in compliance with the material terms of the Company Reimbursement Approvals to which it is subject.
               (g)  Surveys, Audits and Investigations . Schedule 5.16(g) sets forth (i) a description of all material surveys performed (including the dates of such surveys, where available) by any Governmental Authority or pursuant to any Permits, Company Accreditation or Company Reimbursement Approval to which the Company was a party prior to the date hereof, and any material deficiencies for which a plan of correction was required (the “ Health Care Surveys ”) and (ii) a list of all notices of material compliance, requests for material remedial action, return of overpayment or imposition of fines (whether ultimately paid or otherwise resolved) by any Governmental Authority or pursuant to any Licenses and Permits, Company Accreditation or Company Reimbursement Approval prior to the date hereof (the “ Health Care Audits ”) in each case since the applicable acquisition date of each of the Company Subsidiaries. The Company and each Company Subsidiary has prepared and submitted timely all corrective action plans required to be prepared and submitted in response to any Health Care Surveys or Health Care Audits and has implemented all of the corrective actions described in such corrective action plans. Neither the Company nor any Company Subsidiary has any (i) material

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uncured deficiency which would reasonably be expected to lead to the imposition of a remedy or (ii) existing accrued and/or material unpaid indebtedness to any Governmental Authority or pursuant to any Company Reimbursement Approval, including Medicare or Medicaid.
               (h)  Medicare, Medicaid Fraud . Neither the Company nor any Company Subsidiary has been convicted of nor being indicted for a Federal Health Care Program or state health care program related offense, nor has the Company nor any of its officers, directors or stockholders been debarred, excluded or suspended from participation in Medicare, Medicaid or any other federal or state health program or been subjected to any order or consent decree of, or criminal or civil fine or penalty imposed by, any court or governmental agency related thereto. To the knowledge of the Company, neither the Company nor any Company Subsidiary has arranged or contracted with (by employment or otherwise) any Person that is excluded or suspended from participation in a federal or state health care program, for the provision of items or services for which payment may be made under such federal health care program. Neither the Company or nor any Company Subsidiary is party to any corporate integrity or other agreements with any Governmental Authority which apply to or are relevant to the transactions contemplated by this Agreement. None of the officers, directors, agents or managing employees (as such term is defined in 42 U.S.C. § 1320a-5(b)) of the Company or a Company Subsidiary has been excluded from the Programs or any other federal health care program (as defined in 42 U.S.C. § 1320a-7b(f)), been subject to sanction pursuant to 42 U.S.C. § 1320a-7a or 1320a-8, or been convicted of a crime described at 42 U.S.C. § 1320a-7b, nor to the knowledge of the Company is any such exclusion, sanction or conviction threatened or pending. Neither the Company nor any Company Subsidiary has been excluded from the Programs or any other federal health care program (as defined in 42 U.S.C. §1320a-7b(f)) or state health care program as a result of any civil or criminal wrongdoing.
               (i)  HIPAA Requirements . To the knowledge of the Company, each Company Subsidiary is in compliance in all material respects with the HIPAA, including the federal privacy regulations as contained in 45 C.F.R. Part 164 (the “ Federal Privacy Regulations ”), the federal security standards as contained in 45 C.F.R. Part 142 (the “ Federal Security Regulations ”), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, all collectively referred to herein as “ HIPAA Requirements .” To the knowledge of the Company, no Company Subsidiary has used or disclosed any Protected Health Information, as defined in 45 C.F.R. § 164.504, or Individually Identifiable Health Information, as defined in 42 U.S.C. § 1320d, other than as permitted by HIPAA requirements and the terms of this Agreement. Each Company Subsidiary has made its internal practices, books and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services to the extent required for determining compliance with the Federal Privacy Regulations.
                    (i) Each component of the Company or any Company Subsidiary that is a health plan, healthcare clearinghouse or healthcare provider, as such terms are defined in the Federal Privacy Regulations (collectively, the “ Covered Entities ”), is in material compliance with the administrative simplification section of the HIPAA, the Federal Privacy Regulations, the Federal Security Regulations or applicable state privacy laws.

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                    (ii) True and complete copies of each Covered Entity’s policies relating to the privacy of its patient’s Protected Health Information (as defined in 45 C.F.R. § 164.504) have been made available to the Buyer. An accurate copy of each Covered Entity’s privacy notice and any policy relating thereto, or the most recent draft thereof, has been furnished to the Buyer. An accurate and complete list of all HIPAA-related complaints filed against or with a Covered Entity is provided in Schedule 5.16(g) .
               (j)  Health Care Licenses . The Company and each Company Subsidiary holds all material health care licenses necessary or required by applicable Law or Governmental Authority for the operation of the business as conducted by the Company, any Company Subsidiary or any branch (“ Health Care Licenses ”). Schedule 5.16(j) sets forth all such Health Care Licenses held by the Company or the Company Subsidiaries or for which the Company or a Company Subsidiary has applied (individually, a “ Company Health Care License ,” and collectively, the “ Company Health Care Licenses ”). There are no pending or, to the knowledge of the Company, threatened suits or proceedings that would reasonably be expected to result in the suspension, revocation, restriction, amendment or nonrenewal of any Company Health Care License, and to the knowledge of the Company, no event which (whether with notice or lapse of time or both) would reasonably be expected to result in a suspension, revocation, restriction, amendment or nonrenewal of any Company or Company Subsidiary Health Care License has occurred. The Company and each Company Subsidiary is in compliance with the material terms of the reimbursement licenses to which it is subject. No Government Authority is required to give approval of a change of ownership of any Company or Company Subsidiary Health Care License prior to Closing except as set forth on Schedule 5.16 (j) .
     5.17 Employee Benefit Plans .
               (a)  Schedule 5.17(a) includes a true and complete list of all Benefit Plans currently maintained or contributed to by the Company or any Company Subsidiary (collectively, the “ Company Benefit Plans ”). Neither the Company nor any Company Subsidiary has any material liability with respect to any plan, arrangement or practice of the type described in this Section 5.17 other than the Company Benefit Plans set forth on Schedule 5.17(a) .
               (b) With respect to each Company Benefit Plan: (i) except as set forth on Schedule 5.17(b) , each Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter, which has not been revoked, from the IRS that any such plan is tax-qualified and each trust created thereunder has been determined by the IRS to be exempt from federal income tax under Code Section 501(a), and to the knowledge of the Company, nothing has occurred or is reasonably expected to occur through the Closing which would cause the loss of such qualification, (ii) no Company Benefit Plan is or at any time was a “defined benefit plan” as defined in Section 3(35) of ERISA or a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code, (iii) no reportable event (within the meaning of Section 4043 of ERISA) has occurred, (iv) there has been no termination or partial termination of any Company Benefit Plan which is a defined benefit plan within the meaning of Code Section 411(d)(3), and (iv) the Company does not participate currently in and has never participated in and is not required currently and has never been required to contribute to or otherwise participate in any plan, program, or arrangement subject to Title IV or ERISA or Section 412 of the Code.

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               (c) The Sellers’ Representative provided to the Buyer true and complete copies of (i) each Company Benefit Plan, including any related trust agreement or other funding instrument, (ii) the most recent summary plan description and summaries of material modifications for each Company Benefit Plan for which such a summary plan description is required, (iii) the most recent determination letters from the IRS with respect to each Company Benefit Plan, if applicable, (iv) the most recent Form 5500 for each Company Benefit Plan and audited financial statements (if such form or statement is required or applicable), (v) the most recent financial statements, the most recent actuarial reports, all agreements or contracts with any investment manager or investment advisor with respect to any Company Benefit Plan, and (vi) any insurance policy currently in effect related to any Company Benefit Plan. In the case of any material unwritten Company Benefit Plan, a written description of such plan, program or arrangement has been furnished to the Buyer.
               (d) Except as set forth in Schedule 5.17(d) , neither the Company nor any Company Subsidiary participate currently in and have participated in and are required currently and have been required to contribute to or otherwise participate in any Multiemployer Plan, or any “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code. Further, no Company Benefit Plan is a multiple employer welfare arrangement as defined in Section 3(40) of ERISA.
               (e) There is no material unsatisfied liability that has been incurred by the Company or any Company Subsidiary or any other entity that would be aggregated with the Company under Code Section 414(b), (c), (m) or (o), under Title IV of ERISA to any party with respect to any Benefit Plan, or with respect to any other “employee benefit plan” as defined in Section 3(3) of ERISA presently or heretofore maintained or contributed to within the past six (6) years by the Company or the Company Subsidiaries.
               (f) Except as would not reasonably be expected to result in a Material Adverse Effect, each Company Benefit Plan has been administered in accordance with its terms. The Company and the Company Subsidiaries, and any other entity that would be aggregated with the Company under Code Section 414(b), (c), (m) or (o), and all the Company Benefit Plans are in compliance with all applicable provisions of ERISA, the Code, all other applicable laws and the terms of all applicable collective bargaining agreements, except as would not reasonably be expected to result in a Material Adverse Effect.
               (g) Except as provided in Schedule 5.17(g) , neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event contemplated by this Agreement) (i) result in any material payment becoming due under a “change in control” (as defined in Section 280G of the Code), or increase the amount of any compensation due, to any current or former employee of Company, (ii) materially increase any benefits otherwise payable under any Company Benefit Plan, or (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits.
               (h) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act (“ WARN ”) or any similar state or local law within the last six (6) months which remains unsatisfied.

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               (i) With respect to each Company Benefit Plan: (i) no material non-routine audits, proceedings, claims or demands are pending with any Governmental Authority including the IRS and the Department of Labor, (ii) no litigation, actions, suits, claims, disputes or other proceedings (other than routine claims for benefits) are pending or, to the knowledge of the Company, have been asserted against any Company Benefit Plan, the trustee or fiduciary of such plan, or the Company with respect to such plan, (iii) all reports, returns and similar documents required to be filed with any Governmental Authority or distributed to any participant have been duly or timely filed or distributed, (iv) no “prohibited transactions”, within the meaning of ERISA or the Code, or breach of any duty imposed on “fiduciaries” pursuant to ERISA has occurred, and (v) all required or discretionary (in accordance with historical practices) payments, premiums, contributions, reimbursements or accruals for all periods ending prior to or as of the Closing shall have been made or properly accrued on the Financial Statements or will be properly accrued on the books and records of the Company as of the Closing, in each case except as set forth in Schedule 5.17(i ), and in the case of clause (iv) and (v), except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole.
               (j) The Company and each Company Benefit Plan that qualifies as a group health plan under the applicable statute is in material compliance, to the extent applicable, with (i) the notice and continuation of coverage requirements of Section 4980B of the Code, and the regulations thereunder (“ COBRA ”) and (ii) Part 6 of Title I of ERISA.
               (k) Any Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code Section 409A) that is subject to Code Section 409A has, since January 1, 2005, been operated in a manner intended to be in good faith compliance with the requirements of Code Section 409A.
          5.18 Environmental Compliance . Except as set forth on Schedule 5.18 , (a) the Company and the Company Subsidiaries are in material compliance with all Environmental Laws; (b) to the Company’s knowledge, the Owned Real Property and the Leased Real Property are in material compliance with all Environmental Laws; (c) the Company and the Company Subsidiaries possess and are in material compliance with all Permits required under Environmental Laws for the conduct of their respective operations; and (d) there are no material claims, actions, suits, arbitrations, litigations or legal proceedings pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary alleging a violation of or liability or obligation under any Environmental Laws. The representations and warranties made in this Section 5.18 are the Company’s sole representations and warranties with respect to environmental matters and Environmental Laws.
          5.19 Insurance . All material insurance policies (the “ Insurance Policies ”) with respect to the properties, assets, or business of the Company and the Company Subsidiaries are in full force and effect and all premiums due and payable thereon have been paid in full. Neither the Company nor any Company Subsidiary has received either a written notice that could reasonably be likely to be followed by a written notice of cancellation or non-renewal of any Insurance Policy.

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          5.20 Real Property .
               (a)  Owned Real Property .
                    (i)  Schedule 5.20(a)(i) contains a list of all real property owned by the Company or the Company Subsidiaries (together with all improvements located therein and all appurtenances related thereto, the “ Owned Real Property ”), and properly identifies the applicable owner and use of each parcel of Owned Real Property. All buildings, plants and structures located on the Owned Real Property lie wholly within the boundaries of the Owned Real Property and do not encroach upon the property of, or otherwise conflict with the property rights of, any other Person and no property adjacent to the Owned Real Property encroaches on the Owned Real Property.
                    (ii) Except as set forth in Schedule 5.20(a)(ii) , the Company or the Company Subsidiaries has fee title to each parcel of Owned Real Property free and clear of all Liens, except (A) Permitted Encumbrances, (B) zoning and building restrictions, and (C) Leases under which the Company or any Company Subsidiary is lessor disclosed on Schedule 5.20(a)(ii) (the “ Owned Property Leases ”). True and complete copies of the Owned Property Leases, if any, have previously been delivered to Buyer by the Company or the Sellers’ Representative.
                    (iii) Except as disclosed on Schedule 5.20(a)(iii) , to the knowledge of the Company, all buildings, structures, improvements and fixtures located on, under, over or within the Owned Real Property, are in good operating condition and repair.
                    (iv) To the knowledge of the Company, no condemnation or eminent domain proceeding against any part of any Owned Real Property is pending or threatened.
               (b) The Company and the Company Subsidiaries, as applicable, have valid leasehold interests in the real property specified on Schedule 5.20(b) under the heading “Leased Properties” (the “ Leased Real Property ”) subject only to Permitted Encumbrances (it being understood that the Company and the Company Subsidiaries make no representation about the status of the fee title to the Leased Real Property). Schedule 5.20(b) contains a complete and accurate list of all real property leased as lessee, including all subleases, licenses, and other arrangements relating to the use or occupancy of real property, together with all amendments, modifications and side letters and supplements thereto (collectively, the “ Leases ”), by the Company and the Company Subsidiaries, as applicable. Schedule 5.20(b) contains an accurate and complete list of all Leases, as the same may have been amended, supplemented or otherwise modified from time to time, including the address of the Leased Real Property, the lessor, the lessee, the date, the term and the base rent for all such Leases. True and complete copies of the Leases have previously been delivered to the Buyer. Neither the Company nor any Company Subsidiary, as applicable, has received notice of any conditions, which, if left uncured, would constitute a material breach in any material respects under the Leases to which each such entity is a party, and all such Leases are binding and in full force and effect and, to the knowledge of the Company, there are no outstanding material defaults or circumstances which, upon the giving of notice or passage of time or both, would constitute a material default or breach in any material

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respect by either party under any Lease. Except as set forth on Schedule 5.20(b) , the Company holds the leasehold estate in each Leased Real Property free and clear of all Encumbrances (except Permitted Encumbrances). Either the Company or the Company’s Subsidiaries is now in possession of the applicable Leased Real Property.
          5.21 Affiliate Transactions . Except for employment relationships and compensation, benefits, travel advances and employee loans in the ordinary course of business or as disclosed on Schedule 5.21 , neither the Company nor any Company Subsidiary is a party to any agreement with, or involving the making of any payment or transfer of assets to, the Sellers, any officer or director of any Seller, any Affiliate of any Seller or any officer or director of the Company or any Company Subsidiary.
          5.22 Absence of Certain Changes or Events . Except as set forth on Schedule 5.22 , or as otherwise contemplated by this Agreement, (i) during the period from the date of the Interim Balance Sheet to the date of this Agreement, the Company and the Company Subsidiaries have conducted their respective businesses in the ordinary course of business and they have not engaged in any of the activities prohibited by Section 7.1 of this Agreement and (ii) since the date of the Interim Balance Sheet, there has been no Material Adverse Effect.
          5.23 Labor and Employment Matters .
               (a) Neither the Company nor any of its Subsidiaries is a party to any labor or collective bargaining agreement and there are no labor or collective bargaining agreements which pertain to or cover employees of the Company or any of its Subsidiaries. No current employees of the Company or any of its Subsidiaries (the “ Employees ”) are represented by any labor organization. No labor organization or group of Employees has made a pending demand for recognition, and there are no representation proceedings or petitions seeking a representation proceeding presently pending or, to the knowledge of the Company, threatened to be brought or filed, with the National Labor Relations Board or other labor relations tribunal. There is no organizing activity involving the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened by any labor organization or group of Employees.
               (b) There are no outstanding (i) strikes, work stoppages, slowdowns, lockouts or arbitrations or (ii) material grievances or other labor disputes pending or, to the knowledge of the Company, threatened against or involving the Company or any of its Subsidiaries. There are no unfair labor practice charges, material grievances or material complaints pending or, to the knowledge of the Company or the knowledge of the Seller, threatened by or on behalf of any Employee or group of Employees.
               (c) There are no material complaints, charges or claims against the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened that could be brought or filed, with any Governmental Authority based on, arising out of, in connection with or otherwise relating to the employment or termination of employment of or failure to employ, any individual. Each of the Company and its Subsidiaries is in compliance in all material respects with all Laws relating to the employment of labor, including all such Laws relating to wages, hours, WARN and any similar state or local “mass layoff” or “plant closing” Law, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation

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and the collection and payment of withholding and/or social security taxes and any similar tax. There has been no “mass layoff” or “plant closing” (as defined by WARN) with respect to the Company or any of its Subsidiaries within the six (6) months prior to Closing.
          5.24 Banks; Power of Attorney . Schedule 5.24 contains a complete and correct list of the names and locations of all banks in which Company or any Subsidiary has accounts or safe deposit boxes. Except as set forth on Schedule 5.24 , no person holds a power of attorney to act on behalf of the Company or any Company Subsidiary.
          5.25 Corporate Records .
               (a) The Company has delivered to the Buyer true and complete copies of the certificate or articles of incorporation (each certified by the Secretary of State or other appropriate official of the applicable jurisdiction of organization) and by-laws (each certified by the secretary, assistant secretary or other appropriate officer) of the Company and each of its Subsidiaries in each case as amended, including all amendments thereto.
               (b) The minute books of the Company and each Subsidiary previously made available to the Buyer contain in all material respects true, correct and complete records of all meetings and accurately reflect in all material respects since September 1, 2006 all other corporate action of the stockholders and the directors (including committees thereof) as well the corporate action of the Company’s Subsidiaries. The stock certificate books and stock transfer ledgers of the Company and its Subsidiaries previously made available to the Buyer are true, correct and complete in all material respects. All stock transfer taxes levied, if any, or payable with respect to all transfers of shares of the Company and its Subsidiaries prior to the date hereof have been paid and appropriate transfer tax stamps affixed.
          5.26 Accounts Receivable . All of the accounts receivable of the Company and its Subsidiaries arose in the ordinary course of business from bona fide transactions.
          5.27 Assets . The Company and the Company Subsidiaries have valid title to all of its material tangible personal property and assets, subject to no Encumbrances other than Permitted Encumbrances. The Company and each Company Subsidiary own, lease or otherwise have the right to use all material tangible personal property used in its business as presently conducted. Such material tangible personal property, taken as a whole is in good working condition and repair, ordinary wear and tear excepted, and is suitable for the purposes for which it is being used.
          5.28 Brokers . Other than UBS Securities LLC, no broker, finder or similar intermediary has acted for or on behalf of the Company or any Company Subsidiary in connection with this Agreement or the transactions contemplated hereby, and no broker, finder, agent or similar intermediary is entitled to any broker’s, finder’s or similar fee or other commission in connection therewith based on any agreement with the Company or any Company Subsidiary or any action taken by them.
          5.29 Exclusivity of Representations . The representations and warranties made by the Company in this Agreement are the exclusive representations and warranties made by the Company. The Company hereby disclaims any other express or implied representations or

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warranties. The Company is not, directly or indirectly, making any representations or warranties regarding the pro-forma financial information or financial projections of the Company or any Company Subsidiary.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BUYER
     The Buyer represents and warrants to the Company and the Sellers as follows:
          6.1 Organization . The Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with requisite corporate power and authority to own its properties and carry on its business in all material respects as presently owned or conducted, except where the failure to be so organized, existing and in good standing or to have such power or authority would not reasonably be expected, individually or in the aggregate, to materially impair the Buyer’s ability to effect the transactions contemplated hereby.
          6.2 Binding Obligation . Except for the Buyer Stockholder Approval, the Buyer has all requisite corporate authority and power to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. Except for the Buyer Stockholder Approval, this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Buyer and no other corporate proceedings on the part of the Buyer are necessary to authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby by the Buyer. This Agreement has been duly executed and delivered by the Buyer and, assuming that this Agreement constitutes the legal, valid and binding obligations of the Sellers and the Company, constitute the legal, valid and binding obligations of the Buyer, enforceable against the Buyer in accordance with its terms, except to the extent that the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws from time to time in effect affecting generally the enforcement of creditors’ rights and remedies, and (ii) general principles of equity.
          6.3 Capitalization of the Buyer .
               (a)  Schedule 6.3 sets forth a complete and accurate list of the authorized, issued and outstanding capital stock of the Buyer as of the date hereof. Except as set forth on Schedule 6.3 , there are no other shares of capital stock or other equity securities of the Buyer authorized, issued, reserved for issuance or outstanding and no outstanding or authorized options, warrants, convertible or exchangeable securities, subscriptions, rights (including any preemptive rights), calls or commitments of any character whatsoever, relating to the capital stock of, or other equity or voting interest in, the Buyer, to which the Buyer is a party or is bound requiring the issuance, delivery or sale of shares of capital stock of the Buyer. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the capital stock of, or other equity or voting interest in, the Buyer to which the Buyer is a party or is bound. The Buyer has no authorized or outstanding bonds, debentures, notes or other indebtedness the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the right to subscribe for or acquire securities having the right to

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vote). Except as set forth on Schedule 6.3 , there are no contracts to which the Buyer is a party or by which it is bound to (i) repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity or voting interest in, the Buyer or (ii) vote or dispose of any shares of capital stock of, or other equity or voting interest in, the Buyer. Except as set forth on Schedule 6.3 , there are no registration rights, irrevocable proxies or voting agreements with respect to any shares of capital stock of, or other equity or voting interest in, the Buyer.
               (b) All of the issued and outstanding shares of capital stock of the Buyer as of the date hereof are duly authorized, validly issued, fully paid and non-assessable and free of any preemptive rights in respect thereto. All of the shares of capital stock to be issued to the Sellers in connection with the transactions contemplated hereby and by the Subscription Agreement will, when issued in accordance with the terms of the Subscription Agreement, have been duly authorized, be validly issued, fully paid and non-assessable and free and clear of any preemptive rights or Encumbrances.
          6.4 Board of Directors Approval . The board of directors of the Buyer has, as of the date of this Agreement, unanimously (i) approved this Agreement and the transactions contemplated hereby, (ii) determined that the consummation of the transactions contemplated hereby are in the best interests of the stockholders of the Buyer, and (iii) determined that the fair market value of the Company is equal to at least 80% of the balance of the Buyer’s Trust Account, less deferred underwriting discounts and commissions and taxes payable. Such board approval is sufficient to render inapplicable to this Agreement and the transactions contemplated hereby the provisions of Section 203 of the Delaware General Corporation Law (the “ DGCL ”).
          6.5 No Defaults or Conflicts . The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by the Buyer and performance by the Buyer of its obligations hereunder (i) do not result in any violation of the charter or by-laws or other constituent documents of the Buyer, and (ii) except as set forth on Schedule 6.5 , do not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under any indenture, mortgage or loan or any other agreement or instrument to which the Buyer is a party or by which it is bound or to which its properties may be subject, and (iii) except for applicable requirements u

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