ASSET PURCHASE AGREEMENT

 

Exhibit (10) CC.

      ASSET PURCHASE AGREEMENT

between

EASTMAN KODAK COMPANY

and

ONEX HEALTHCARE HOLDINGS, INC.

 

 

Dated as of January 9, 2007

TABLE OF CONTENTS

				Page
ARTICLE I
DEFINITIONS AND TERMS
Section	1.1		Certain Definitions	1
Section	1.2		Other Terms	18
Section	1.3		Other Definitional Provisions	18
ARTICLE II
PURCHASE AND SALE OF THE BUSINESS
Section	2.1		Purchase and Sale of Assets	19
Section	2.2		Excluded Assets	20
Section	2.3		Assumption of Liabilities	22
Section	2.4		Excluded Liabilities	23
Section	2.5		Purchase Price	24
Section	2.6		Closing	25
Section	2.7		Deliveries by Buyer	26
Section	2.8		Deliveries by Seller	27
Section	2.9		Intracompany Arrangements	29
Section	2.10		Non-Assignability of Assets	30
Section	2.11		Obtaining Consents and Approvals	31
Section	2.12		Intellectual Property Agreement	31
Section	2.13		IRR Payment	31
Section	2.14		Deferred Closings	37
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Section	3.1		Organization and Qualification	38
Section	3.2		Subsidiaries	39
Section	3.3		Corporate Authorization	40
Section	3.4		Consents and Approvals	40
Section	3.5		Non-Contravention	40
Section	3.6		Binding Effect	41
Section	3.7		Financial Statements	41
Section	3.8		Litigation and Claims	42
Section	3.9		Taxes	42
Section	3.10		Employee Benefits	43
Section	3.11		Labor	45

 

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Section	3.12		Compliance with Laws	45
Section	3.13		Environmental Matters	45
Section	3.14		Intellectual Property	46
Section	3.15		Contracts	47
Section	3.16		Absence of Changes	48
Section	3.17		Sufficiency of Assets	48
Section	3.18		Title to Property	48
Section	3.19		Real Property	49
Section	3.20		Warranties/Product Liability	50
Section	3.21		Insurance	50
Section	3.22		Finders’ Fees	51
Section	3.23		Customers and Suppliers	51
Section	3.24		Affiliated Transactions	51
Section	3.25		No Other Representations or Warranties	51
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Section	4.1		Organization and Qualification	52
Section	4.2		Corporate Authorization	52
Section	4.3		Consents and Approvals	52
Section	4.4		Non-Contravention	53
Section	4.5		Binding Effect	53
Section	4.6		Finders’ Fees	53
Section	4.7		Financing	53
Section	4.8		Litigation and Claims	54
Section	4.9		No Other Representations or Warranties	54
Section	4.10		Subsidiaries	54
Section	4.11		Business of Buyer	54
ARTICLE V
COVENANTS
Section	5.1		Access and Information	55
Section	5.2		Conduct of Business	56
Section	5.3		Commercially Reasonable Efforts	60
Section	5.4		Tax Matters	62
Section	5.5		Employee Matters	69
Section	5.6		Ancillary Agreements	77
Section	5.7		Transfer and Assignment of Assets of Transferred Subsidiary	77
Section	5.8		Transfer of Excluded Assets	78
Section	5.9		Non-Solicitation	78
Section	5.10		Further Assurances	78
Section	5.11		Trademarks	79
Section	5.12		Confidentiality	79

 

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Section	5.13		Non-Competition	80
Section	5.14		Contractual Arrangements	84
Section	5.15		Real Estate Matters	84
Section	5.16		Financing	87
Section	5.17		Financial Information	89
Section	5.18		Kodak-Trophy SAS Name Change	90
Section	5.19		Certificates of Delivery	90
Section	5.20		GECC Arrangements	90
Section	5.21		Certain Accounts Payable	90
Section	5.22		Closing and Deferred Closings	90
Section	5.23		Exclusivity	91
Section	5.24		Right of First Offer on Kodak Colorado Sensitizing and Polyester Operation	91
Section	5.25		Indemnification by Buyer	93
Section	5.26		Execution of Ancillary Agreements	93
Section	5.27		Consents Regarding Certain Leased Real Property	93
ARTICLE VI
CONDITIONS TO CLOSING
Section	6.1		Conditions to the Obligations of Buyer and Seller	94
Section	6.2		Conditions to the Obligations of Buyer	95
Section	6.3		Conditions to the Obligations of Seller	96
ARTICLE VII
SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES
Section	7.1		Survival	96
Section	7.2		Indemnification by Seller	97
Section	7.3		Indemnification by Buyer	98
Section	7.4		Third-Party Claim Indemnification Procedures	99
Section	7.5		Environmental Indemnity Claims	100
Section	7.6		Consequential Damages	101
Section	7.7		Payments	101
Section	7.8		Adjustments to Losses	101
Section	7.9		Characterization of Indemnification Payments	102
Section	7.10		Mitigation	102
Section	7.11		Remedies	102
Section	7.12		Specific Performance	103
ARTICLE VIII
TERMINATION
Section	8.1		Termination by Mutual Consent	103
Section	8.2		Termination by Either Buyer or Seller	103
Section	8.3		Effect of Termination	103

 

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ARTICLE IX
MISCELLANEOUS
Section	9.1		Notices	104
Section	9.2		Amendment; Waiver	105
Section	9.3		No Assignment or Benefit to Third Parties	105
Section	9.4		Entire Agreement	106
Section	9.5		Fulfillment of Obligations	106
Section	9.6		Public Disclosure	106
Section	9.7		Expenses	106
Section	9.8		Interpretation	106
Section	9.9		Bulk Sales	107
Section	9.10		Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury	107
Section	9.11		Dispute Resolution	107
Section	9.12		Counterparts	108
Section	9.13		Headings	108
Section	9.14		Precedence	108
Section	9.15		Severability	108

 

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E XHIBITS AND S CHEDULES

(i) EXHIBITS

Exhibit	Ancillary Agreement
A	Form of Diagnostic Films and Emulsions, Photo Chemicals Supply Agreement – Kodak to Buyer
B	Form of Tolling Agreement – Kodak to Buyer
C	Form of Equipment Components Supply Agreement – Kodak to Buyer
D	Form of Technical Services Agreement – Kodak to Buyer
E	Form of Transition Services Agreement – Kodak to Buyer
F	Form of Intellectual Property Agreement
G	Form of Transitional Trademark Use Agreement
H	Form of Trademark License Agreement
I	Form of Lease Agreement
J	Form of Sublease
K	Form of Master License Agreement (re: Leased and Owned Properties) – Kodak to Buyer
L	Kodak Park Building 12 Lease Term Sheet (Kodak as Landlord)
M	Kodak Park Building 14 Lease Term Sheet (Kodak as Landlord)
N	Kodak Park Building 35 Lease Term Sheet (Kodak as Landlord)
O	Kodak Park Building 42 Lease Term Sheet (Kodak as Landlord)
P	Kodak Park Building 117 Lease Term Sheet (Kodak as Landlord)
Q	Kodak Park Building 81 Lease Term Sheet (Kodak as Landlord)
R	Kodak Park Building 82C Lease Term Sheet (Kodak as Landlord)
S	Kodak Park Building 6 Lease Term Sheet (Kodak as Landlord)
T	Kodak Colorado Building C15 Lease Term Sheet (Kodak as Landlord)
U	Kodak de Mexico (Warehouse) Lease Term Sheet (Kodak as Landlord)
V	Kodak de Mexico (Manufacturing) Lease Term Sheet (Kodak as Landlord)
W	Kodak Park Building 28 Lease Term Sheet (Kodak as Landlord)
X	Kodak Park Building 320 Lease Term Sheet (Kodak as Landlord)
Y	Kodak Park Building 605 (Warehouse) Lease Term Sheet (Kodak as Landlord)
Z	Stuttgart (Germany) Sublease Term Sheet (Kodak as Landlord)
AA	Chalon (France) Lease Term Sheet (Kodak as Landlord)
BB	Kodak Park Building 214 Lease Term Sheet (Buyer as Landlord)
CC	Haicang, China Manufacturing Plant Lease Term Sheet (Kodak as Landlord)
DD	Moriya Warehouse – Japan Sublease Term Sheet (Kodak as Sublandlord)
EE	Kodak Colorado Building C20 Lease Term Sheet (Buyer as Landlord)
FF	Kodak Office Building 20 Lease Term Sheet (Buyer as Landlord)
GG	Kodak Colorado Building C42 Lease Term Sheet (Buyer as Landlord)
HH	Kodak Colorado Building C20 Lease Term Sheet (Buyer as Landlord)
II	Kodak Office Building 20 Parking Agreement Term Sheet (Lot “D”)

 

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Exhibit	Ancillary Agreement
JJ	Utility Services Agreement (and related agreements) Term Sheet for Building 214 at Kodak Park and Building 20 at Kodak Office
KK	Utility Services Agreement (and related agreements) Term Sheet for KCD Plant Site
LL	Form of Bill of Sale
MM	Form of General Conveyance Assignment Agreement
NN	Form of Site Access Agreement – Buyer to Kodak
OO	Form of Technical Services Agreement – Buyer to Kodak
PP	Form of Tolling Agreement – Buyer to Kodak (re: Windsor, Colorado)
QQ	Form of Tolling Agreement – Buyer to Kodak (re: White City, Oregon)
RR	Form of Transition Services Agreement – Buyer to Kodak
SS	Form of Manaus Wide Roll Supply Agreement – Buyer to Kodak
TT	Fotochemische Werke GmbH (Berlin) Lease Term Sheet (Kodak as Landlord)

 

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(ii) SCHEDULES

Schedule	Title
	Definition and Terms
1.1(a)(i)	Assigned Leases
1.1(a)(ii)	Leased Transferred Subsidiary Real Property
1.1(b)	Employees
1.1(c)	Knowledge
1.1(d)	Material Adverse Effect
1.1(e)	Owned Real Property
1.1(f)	Title Matters
1.1(g)	Scheduled Intellectual Property
1.1(h)	Designated Executives
2.1	Purchase and Sale of Assets
	Excluded Assets
2.2(d)	Insurance Policies Exception
2.2(i)	Contracts
2.2(j)	Fixtures and Equipment
2.2(l)	Ancillary Agreements Exception
2.2(o)	Books and Records
2.2(p)	Inventory
2.2(s)	Other Excluded Assets
2.4	Excluded Liabilities
2.8(q)	Estoppel Certificates
2.9(d)	Intracompany Arrangements
2.14	Deferred Closing
	Subsidiaries
3.2(a)	Transferred Subsidiaries List
3.2(d)	Transferred Subsidiary Capital Stock Ownership
	Seller Consents and Approvals
3.4(a)	Seller Required Approvals
3.4(b)	Seller Consents
3.7	Financial Statements
3.7(c)	Undisclosed Liability
3.8	Litigation and Claims
3.9	Taxes
	Employee Benefits
3.10(a)	U.S. Benefit and Compensation Plans
3.10(d)	Funding Waiver Reportable Events
3.10(g)	Certain U.S. Benefit Plans
	Labor
3.11(a)(i)	Material U.S. Labor Agreements
3.11(a)(ii)	Material Foreign Labor Agreements

 

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Schedule	Title
3.11(c)	Fair Labor Practices
3.12(a)	Compliance with Laws
3.13	Environmental Matters
3.14	Intellectual Property
3.15	Contracts
3.16	Absence of Changes
3.17	Sufficiency of Assets
3.18(b)	Title to Property
f3.19	Real Property
3.20	Warranties/Product Liability
3.21	Insurance
3.23	Customers and Suppliers
3.24	Affiliated Transactions
	Buyer Consents and Approvals
4.3(a)	Buyer Required Approvals
4.3(b)	Buyer Consents
4.10	Buyer Subsidiaries
4.11	Business of Buyer
5.2	Conduct of Business
	Commercially Reasonable Efforts
5.3(b)	Commercially Reasonable Efforts (re: Business Books and Records)
5.4	Tax Matters
	Employee Matters
5.5(c)	Countries with Seller Retained Post Retirement Welfare Benefits
5.5(d)	Individual Severance Arrangements
5.5(o)	U.S. and Non-U.S. Pension Replacement Plan Requirements
5.5(p)(i)	Non-U.S. Jurisdictions with Defined Benefit Pension Plans to Transfer, by Country and Plan
5.5(p)(ii)	Non-U.S. Pension Plan Asset Transfer and Other Guidelines,
5.5(p)(iii)	Actuarial Method and Assumptions for Valuation of Actuarial Liability of Pension Plans, by                     Country and Plan
5.14	Contractual Arrangements
5.27	Consents Regarding Certain Leased Real Property
	Conditions to the Obligations of Buyer
6.2(i)	Resignations of Directors and Officers of the Transferred Subsidiaries
6.2(j)	Consents Obtained and Delivered to Buyer

 

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      ASSET PURCHASE AGREEMENT, dated as of January 9, 2007, is entered into by and between Eastman Kodak Company, a New Jersey corporation (“ Seller ”), and Onex Healthcare Holdings, Inc., a Delaware corporation (“ Buyer ”).

W I T N E S S E T H:

      WHEREAS, Seller and its Affiliates are engaged worldwide in the manufacturing, marketing, selling, distributing, service and support operations of, and research and development activities related to, medical and dental products and services, comprised of the Medical Business, the Dental Business and the Molecular Imaging Systems Business (collectively, the “ Business ”); and

      WHEREAS, Buyer is a subsidiary of Onex Corporation, an Ontario corporation; and

      WHEREAS, Seller and its Affiliates desire to sell, transfer, assign, license and lease to Buyer, and Buyer desires to purchase, license, lease and assume from Seller and its Affiliates, certain assets and liabilities of the Business, as more particularly set forth herein; and

      WHEREAS, in connection with such transfers, the parties or their Affiliates will upon the Closing enter into the Ancillary Agreements.

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

ARTICLE I

DEFINITIONS AND TERMS

      Section 1.1 Certain Definitions . As used in this Agreement, the following terms have the meanings set forth below:

     “ AA Rate ” has the meaning set forth in Section 2.13(c)(v).

      “ Accounts Payable and Other Current Liabilities ” means, other than Intracompany Payables, all trade accounts, deferred service revenue, accrued vacation and all other current liabilities incurred by Seller or its Affiliates as of the opening of business on the Closing Date to the extent Related to the Business, determined in accordance with GAAP and on a basis consistent with the Unaudited Interim Pro Forma Transaction Balance Sheet.

 

     “ Accounts Receivable ” means, other than Intracompany Receivables, all trade accounts and notes receivable and other miscellaneous receivables of Seller or its Affiliates as of the opening of business on the Closing Date arising out of the sale or other disposition of goods or services of the Business, determined in accordance with GAAP and on a basis consistent with the Unaudited Interim Pro Forma Transaction Balance Sheet.

      “ Acquired Rights ” means (a) Council Directive 2001/23/EC or any directive replacing or amending the same and the implementing Laws in the relevant countries and (b) other applicable Laws which provide for the automatic transfer of employees and their rights in the event of the sale of a business or other undertaking.

      “ Affiliate ” means, with respect to any Person, any Person directly or indirectly controlling, controlled by, or under common control with, such other Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise. However, for purposes of Section 5.3(e) and Section 5.3(f) (other than the first reference to the term Affiliate in Section 5.3(f)), the term “Affiliate” shall have the meaning set forth in this definition, except that the term “control” (including the correlative meanings of the terms “controlled by” or “under common control with”) shall mean only a relationship that would cause the “controlled” Person to be a Subsidiary of the “controlling” Person.

     “ Affiliated Person ” has the meaning set forth in Section 3.24.

      “ Agreement ” means this Asset Purchase Agreement, as the same may be amended or supplemented from time to time in accordance with the terms hereof.

     “ Alternative Transaction ” has the meaning set forth in Section 5.23.

      “ Ancillary Agreements ” means, collectively, those agreements set forth in Exhibits A-TT attached hereto, to be executed as of the Closing between Buyer and/or its Affiliates and Seller and/or its Affiliates, substantially in the forms so attached and finalized by mutual agreement of Buyer and Seller as contemplated by Section 5.26.

     “ Ancillary Economic Terms ” has the meaning set forth in Section 5.24(a).

     “ Antitrust Filings ” has the meaning set forth in Section 5.3(d).

     “ Applicable Employees ” has the meaning set forth in Section 5.5.

      “ Asset Transferring Subsidiary ” means those Subsidiaries of Seller, other than the Transferred Subsidiaries, that have title to any Transferred Assets.

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      “ Assigned Leases ” means those leases and subleases listed on Schedule 1.1(a), pursuant to which Seller or any of its Affiliates (but specifically excluding any Transferred Subsidiary) has been granted and holds the right to use and occupy the real property demised thereunder, which real property is used by Seller or any of its Affiliates (but specifically excluding any Transferred Subsidiary) in the operation of the Business, together with all amendments, modifications, extensions, renewals and restatements thereof.

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

      “ Audited Carve-Out Financial Statements ” means the combined statement of earnings, combined statement of financial position, combined statement of invested equity and comprehensive income (loss) and combined statement of cash flows for the Business (excluding Non-Destructive Testing and Personal Monitoring), as of, and for the fiscal years ended, respectively, 2004 and 2005.

     “ Benefit Plans ” has the meaning set forth in Section 3.10(a).

      “ Books and Records ” means all books, ledgers, files, reports, plans, records, correspondence, lists, plats, architectural plans, drawings, specifications, creative materials, advertising and promotional materials, studies, manuals, maps and engineering data, tests, and other similar materials of Seller and its Affiliates.

      “ Building 214 Facility ” means Building 214 located at Kodak Park, 1041 Ridge Road West, Rochester, New York 14652, together with approximately 26 acres of land under and surrounding such building, as depicted on the drawing thereof attached hereto and made a part of Schedule 1.1(e).

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

      “ Business Books and Records ” means all Books and Records (in any form or medium as it currently exists or in such other form as reasonably determined by Seller in consultation with Buyer) relating to the Business, but excluding any Books and Records that are (i) corporate minutes and records of Seller and its Affiliates (other than the Transferred Subsidiaries) or (ii) governing instruments of Seller and its Affiliates (other than the Transferred Subsidiaries). Business Books and Records shall not include any Tax Returns or Tax-related Books and Records, including tax accrual work papers, related to any Tax Returns of Seller or any of its Affiliates, other than the following (which shall be included in “Business Books and Records”): (a) Tax Returns and related Books and Records of any Transferred Subsidiary which does not file such Tax Return on an affiliated, consolidated, combined, unitary or similar basis with Seller or any of its Affiliates that is not a Transferred Subsidiary for all taxable periods for which the statute of limitations remains open as of the Closing Date, and (b) in the case of any Transferred Subsidiary which does file any Tax Returns on an affiliated, consolidated, combined, unitary or similar basis with Seller or any of its Affiliates that is not a Transferred Subsidiary, copies of the portion of such Tax Returns that relate solely to such Transferred Subsidiary for all taxable periods for which the statute of limitations remains open as of the Closing Date.

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      “ Business Day ” means any day other than a Saturday, a Sunday or a day on which banks in New York City are authorized or obligated by Law or executive order to close.

     “ Buyer ” has the meaning set forth in the Preamble.

      “ Buyer Disclosure Schedule ” means the Buyer Disclosure Schedule attached hereto.

     “ Buyer Indemnified Parties ” has the meaning set forth in Section 7.2(a).

      “ Buyer Plans ” means, collectively, the employee benefit plans, agreements, programs, policies and arrangements of Buyer, whether existing as of the date hereof or established by Buyer or one of its Affiliates in connection with the transactions contemplated by this Agreement.

      “ Buyer Required Approvals ” means all consents, approvals, waivers, authorizations, registrations, notices and filings from or with any Government Entity or Self-Regulatory Organization that are required to be listed on Schedule 4.3(a) of the Buyer Disclosure Schedule (without regard to the qualification as to Knowledge in Section 4.3(a)).

     “ Closing ” means the closing of the Transaction.

     “ Closing Date ” has the meaning set forth in Section 2.6.

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

      “ Confidential Information ” means information, knowledge and data that a party knows, or should reasonably expect, to be of a confidential or proprietary nature. Notwithstanding anything to the contrary contained herein, Confidential Information does not include information that the receiving party can demonstrate (i) was or becomes publicly available other than as result of any disclosure by the receiving party, (ii) is lawfully acquired by the receiving party from a source not under any obligation to the disclosing party regarding disclosure of such information or (iii) in the case where the receiving party is Buyer, is developed by or on behalf of the receiving party by individuals who have not received confidential information hereunder. For purposes of this definition, Seller shall be deemed to be the “receiving party” with respect to information, knowledge and data of the Business that was in existence any time prior to the Closing, and the activities of the Business prior to the Closing shall not be deemed to be activities of Seller as “receiving party”.

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      “ Confidentiality Agreement ” means the letter agreement between Seller and Onex Partners Manager LP, dated May 12, 2006.

      “ Consent Certificates ” means certificates evidencing the consent of third parties that are required in order to effectuate a legally binding assignment, transfer or sublease of the Assigned Leases or leased Transferred Subsidiary Real Property in compliance with the terms of the applicable Assigned Lease, lease for any of the leased Transferred Subsidiary Real Property or by applicable Law.

     “ Consideration ” has the meaning set forth in Section 5.4(k).

     “ Continuation Period ” has the meaning set forth in Section 5.5(c).

      “ Contracts ” means all legally binding agreements, contracts, leases and subleases, purchase orders, tenders, arrangements, understandings, instruments, commitments and licenses (other than this Agreement, the Ancillary Agreements, and those governing Seller Leased Property) that are Related to the Business as of the Closing, or to which any of the Transferred Assets or assets of the Transferred Subsidiaries are subject, or to which any of the Transferred Subsidiaries is a party or by which it is bound, except to the extent included in Excluded Assets.

      “ Current Employment Terms ” means (i) the same or substantially similar position and work location (within a 50 mile radius), (ii) aggregate total cash compensation (consisting of salary or wages, and bonus opportunities, including variable and other incentives) at least equal and (iii) other benefits (but excluding any stock-based benefits, “pension benefits” as defined below and post-retirement welfare benefits) and material employment terms that are substantially similar in the aggregate, to those provided to an Employee by Seller and its Affiliates immediately prior to the Closing Date (or, with respect to any STD Employee, provided by Seller and its Affiliates immediately prior to the date the relevant leave commenced), including, but not limited to, pursuant to any contract entered into in the ordinary course covering such Employee previously provided to Buyer or as required by applicable local law; provided , however, that for Employees who are deemed to be “executives” of Seller as of the date hereof, the Current Employment Terms with respect to each such Employee’s bonus and equity incentive opportunities and other benefits shall instead be comparable in the aggregate (while still excluding any “pension benefits” and post-retirement welfare benefits as defined below and recognizing that equity incentives, if any, provided by Buyer may be with respect to a non-public illiquid security); provided further that for the Designated Executives, the terms set forth in a written employment agreement between Buyer and a Designated Executive shall supersede any definition of Current Employment Terms as set forth herein with respect to such Designated Executive; provided further that the exclusion of “pension benefits” shall apply only to the extent Buyer provides the benefits required to be provided pursuant to Sections 5.5(o) and (p) hereof and the exclusion for post-retirement welfare benefits shall apply only if consistent with applicable Law and if such exclusion would not provide an Employee a claim for severance or termination benefits. For purposes of this definition, “pension benefits” means only those benefits provided pursuant to a “defined benefit pension plan” within the meaning of FAS87, but does not include a benefit under a cash balance or similar feature of a defined benefit pension plan.

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     “ Debt Financing ” has the meaning set forth in Section 4.7.

     “ Debt Financing Commitments ” has the meaning set forth in Section 4.7.

     “ Delayed Closing Payment ” has the meaning set forth in Section 2.5(c).

      “ Dental Business ” means that portion of the Business consisting of (i) Dental Film Products, including Film, Screens, Cassettes and Chemistry and Anesthetics, (ii) Dental Digital Products, including Digital Radiography, Computed Radiography, Digital Photographic and Video Cameras, Dental CAD and Imaging Software, (iii) Dental Practice Management Software, including Dental Software, Oral Surgery Software, Orthodontic Software and E-Services, and (iv) all service and services associated with the foregoing.

      “ Designated Executives ” means those senior management Employees with whom Buyer intends to enter into written employment agreements, effective as of the Closing Date, as listed on Schedule 1.1(h).

     “ Divesting Business Offer ” has the meaning set forth in Section 5.13(a).

      “ Divesting Business Offer Period ” has the meaning set forth in Section 5.13(a).

     “ Divestiture Deadline ” has the meaning set forth in Section 5.13(a).

      “ Divisible Contracts ” means all contracts that serve several business activities of Seller, including the Business, pursuant to which rights and obligations of Seller are partially assigned to Buyer, to the extent of such partial assignment, in accordance with the terms and conditions of such Divisible Contracts. Schedule 5.14 sets forth the Divisible Contracts.

      “ EC Merger Regulation ” means Council Regulation (EC) No. 139/2004 of January 20, 2004.

      “ Employees ” means, as of the Closing Date, (i) all current employees of Seller or any of its Affiliates (including those employees who are on the active payroll of Seller or any of its Affiliates but who are not actively at work on the Closing Date, such as employees on vacation or similar leave, on a regularly scheduled day off from work, on temporary leave for purposes of jury or annual national service/military duty, on maternity, paternity or adoption leave, on leave under the Family and Medical Leave Act of 1993 (or any similar state or local Law), on leave under the Kodak Family Medical

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Leave Plan, or on other nonmedical leave of absence, and including all employees on military leave with veteran’s reemployment rights under applicable Law whether or not such employees are on the active payroll of Seller or any of its Affiliates on the Closing Date) who are identified by Seller as allocated to the Business, as set forth on Schedule 1.1(b), which schedule shall include (1) the name of such employee and (2) where no employee has been designated prior to the date hereof, a description of the job function to be filled prior to Closing with Buyer’s consent (such Schedule to be amended at least 15 days prior to the Closing Date to include the employee names agreed upon for such positions), (ii) all current and former employees of the Transferred Subsidiaries and (iii) such other individuals as are mutually agreed on in good faith by Seller and Buyer at any time. Any Employees described in clauses (i) and (iii) of the immediately preceding sentence who are on leave on the Closing Date and have been receiving short-term disability pay or workers compensation supplement pay as of the date hereof shall be referred to as “STD Employees”.

      “ Encumbrance ” means any lien (including environmental and Tax liens), pledge, charge, claim, encumbrance, security interest, option, put, preferential arrangement, right of first refusal, mortgage, deed of trust, title retention device, conditional sale or other security arrangement, collateral assignment, easement, imperfection of title, encroachment, or other restriction of any kind (including any restriction on the use, voting, transfer, receipt of income or other exercise of any attribute of ownership) or other similar encumbrance.

      “ Environmental Law ” means any Law concerning the protection of human health as it relates to Hazardous Substances exposure, the environment, worker safety as it relates to Hazardous Substance exposure, or the use, storage, recycling, treatment, generation, transportation, arrangement for transportation, processing, handling, labeling, management, release or disposal of any Hazardous Substance.

     “ Equity Financing ” has the meaning set forth in Section 4.7.

      “ Equity Financing Commitments ” has the meaning set forth in Section 4.7.

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

     “ ERISA Affiliate ” has the meaning set forth in Section 3.10(c).

     “ Estimated IRR Payment ” has the meaning set forth in Section 2.13(b).

     “ EU ” means the European Union.

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

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

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

      “ Excluded Trademarks ” means all Trademarks included in the Excluded Assets.

     “ Financing ” has the meaning set forth in Section 4.7.

     “ Financing Commitments ” has the meaning set forth in Section 4.7.

      “ Fixtures and Equipment ” means all furniture, furnishings, vehicles, equipment, computers, tools and other tangible personal property (other than Inventory) Related to the Business, wherever located, including any of the foregoing purchased subject to any conditional sales or title retention agreement in favor of any other Person, except to the extent included in Excluded Assets.

      “ Funding Waiver Reportable Event ” has the meaning set forth in Section 3.10(d).

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

      “ Goodwill ” means the goodwill associated with the reputation of Seller and its Affiliates as well as any amounts required by GAAP to be included on the balance sheets of Seller to the extent Related to the Business, but shall not include rights to any Trademarks or refer to any goodwill associated therewith.

      “ Government Antitrust Entity ” means any Government Entity with jurisdiction over the enforcement of any U.S. Antitrust Law, EU competition Law or other similar Law.

      “ Government Entity ” means, other than a Self-Regulatory Organization, any federal, state, local, provincial or regional court, arbitrator, administrative body, government, political subdivision or other governmental or quasi-governmental entity, or any agency or instrumentality of any such court, arbitrator, administrative body, government, political subdivision or other governmental or
quasi-governmental entity.

      “ Governmental Authorizations ” means all licenses, permits, certificates, consents, orders, registrations, variances, franchises, concessions and other authorizations and approvals required to carry on the Business as currently conducted under applicable Laws and issued by or obtained from a Government Entity or Self-Regulatory Organization.

      “ Hazardous Substance ” means any substance that is listed, defined, designated or classified as hazardous, toxic or otherwise harmful or as a pollutant or contaminant under applicable Environmental Laws including petroleum products and byproducts, asbestos-containing material, polychlorinated biphenyls and radon.

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      “ Healthcare Field ” has the meaning set forth in the Intellectual Property Agreement.

      “ Historical Carve-Out Financial Statements ” means, collectively, the Audited Carve-Out Financial Statements and Unaudited Carve-Out Financial Statements.

      “ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

      “ Indebtedness ” means (i) all Liabilities for borrowed money, whether current or funded, or secured or unsecured, (ii) all Liabilities evidenced by bonds, debentures, notes or similar instruments, or under any interest rate swap agreements, (iii) all Liabilities in respect of mandatorily redeemable or purchasable capital stock or securities convertible into capital stock, (iv) all Liabilities created or arising under any conditional sale or other title retention agreement with respect to property acquired (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (v) all Liabilities involving deferred payment plans negotiated outside of the Ordinary Course of Business, contingent or otherwise, as obligor or otherwise, including any Liability (whether earn-outs, indemnity payments, non-compete payments, consulting payments or other similar payment, or, other than the Selected Compensation Payments, retention bonuses or severance payments) that may be payable as a result of or in connection with any acquisition of, or investments in, or sale to another Person or the consummation of any of the transactions contemplated hereby (other than trade payables), (vi) all Liabilities in respect of any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which liabilities are required to be classified and accounted for under GAAP as capital leases, (vii) all Liabilities for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction securing obligations of a type described in clauses (i) through (vii) above to the extent of the obligation secured, and all Liabilities as obligor, guarantor, or otherwise, to the extent of the obligation secured, and (viii) all cash, book or bank account overdrafts.

     “ Indemnified Parties ” has the meaning set forth in Section 7.2(a).

     “ Indemnifying Party ” has the meaning set forth in Section 7.4(a).

     “ Initial Purchase Price ” has the meaning set forth in Section 2.5(a).

      “ Intellectual Property ” means (i) trademarks, service marks, Internet domain names, trade dress, logos, trade names, corporate names, d/b/a’s and other indicia of origin, applications and registrations for the foregoing, and all goodwill associated therewith and symbolized thereby (collectively, “ Trademarks ”); (ii) inventions and discoveries, whether patentable or not, and patents, registrations, invention disclosures

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and applications therefor, including divisions, continuations, continuations-in-part, reexaminations and renewal applications, and including renewals, extensions and reissues; (iii) confidential and proprietary information, including trade secrets and know-how (collectively, “ Trade Secrets ”); (iv) published and unpublished original works of authorship (including software and databases), copyrights therein and thereto, applications and registrations therefor, and renewals, extensions, restorations and reversions thereof; and (v) any other intellectual property or proprietary rights, in each case to the extent entitled to legal protection as such.

      “ Intellectual Property Agreement ” means the Intellectual Property Agreement between Seller and Buyer substantially in the form set forth in Exhibit F.

      “ Intracompany Agreements ” means all agreements between Seller or any of its Affiliates, on the one hand, and Seller or any of its Affiliates, on the other hand, related to the Business (including, for the avoidance of doubt, any tax grouping and group tax payment arrangements).

      “ Intracompany Payables ” means all account, note or loan payables recorded on the books of the Business for goods or services purchased by or provided to the Business, or advances (cash or otherwise) or any other extensions of credit to the Business from Seller or any Subsidiary, including amounts recorded on the Historical Carve-Out Financial Statements, whether current or non-current, as either intracompany, affiliate or related party payables, on a gross or net basis.

      “ Intracompany Receivables ” means all account, note or loan receivables recorded on the books of the Business for goods or services sold or provided by the Business to Seller or any of its Subsidiaries or advances (cash or otherwise) or any other extensions of credit made by the Business to Seller or any of its Subsidiaries, including amounts recorded on the Historical Carve-Out Financial Statements, whether current or non-current, as either intracompany, affiliate or related party receivables, on a gross or net basis.

      “ Inventory ” means all inventory Related to the Business, wherever located, including raw materials, wrapping, supply and packaging items, purchased goods, work in process, supplies (including storeroom supplies), service parts and finished goods, whether held at any location or facility of Seller or any of its Affiliates or in transit to Seller or any of its Affiliates, in each case as of the opening of business on the Closing Date, except to the extent included in Excluded Assets, determined in accordance with GAAP and on a basis consistent with the Unaudited Interim Pro Forma Transaction Balance Sheet.

      “ Knowledge ” or any similar phrase means, as to Seller, the actual knowledge, following reasonable inquiry, of any of the Persons listed in Schedule 1.1(c)(i), and as to Buyer, the actual knowledge, following reasonable inquiry, of any of the Persons listed on Schedule 1.1(c)(ii). The foregoing standard of reasonable inquiry shall be limited to making reasonable inquiry of those Persons who report directly to any of the Persons named above.

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      “ Kodak Colorado Sensitizing and Polyester Operation ” means the chemical making, coating and polyester operation and supporting infrastructure in buildings C40, C41, C42, C43, C46 and C48A, C48B, C48C and C50 at the Kodak Windsor, Colorado site.

      “ Kodak Colorado Sensitizing and Polyester Operation Offer ” has the meaning set forth in Section 5.24(a).

      “ Law ” means any law, statute, ordinance, rule, regulation, code, order, judgment, injunction or decree enacted, issued, promulgated, enforced or entered by a Government Entity or Self-Regulatory Organization.

      “ Leased Real Property ” means all real property together with all buildings, structures and improvements located thereon and all fixtures attached thereto, together with all easements, rights-of-way, appurtenances and other rights benefiting such real property, in each case, if any, that is demised under the Assigned Leases.

      “ Liabilities ” means any and all debts, liabilities, commitments and obligations of any kind, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or otherwise, whenever or however arising (including, whether arising out of any contract or tort based on negligence or strict liability) and whether or not the same would be required by GAAP to be reflected in financial statements or disclosed in the notes thereto.

     “ Losses ” has the meaning set forth in Section 7.2(a).

      “ Material Adverse Effect ” means any change, circumstance or effect that, individually or together with any other change, circumstance or effect, is, or is reasonably likely to be, materially adverse to the Business, the Transferred Assets, the Assumed Liabilities or the condition (financial or otherwise), results of operations of the Business, taken as a whole; provided that none of the following (or the results thereof) shall be taken into account: (i) any change in GAAP or other accounting standards which the Business would be required to adopt under applicable authoritative accounting pronouncements or (ii) any change, impact or effect to or on any Excluded Asset or Excluded Liability (but any related effect on the Business, the Transferred Assets and the Assumed Liabilities shall be taken into account); (iii) circumstances, changes or effects that generally affect the industries in which the Business operates (including legal and regulatory changes), to the extent such circumstances, changes or effects do not affect the Business in a disproportionately adverse manner; (iv) general economic or political conditions or events, circumstances, changes or effects affecting the securities markets generally, to the extent such conditions or events, circumstances, changes or effects do not affect the Business in a disproportionately adverse manner; (v) any adverse effect that

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Seller reasonably demonstrates resulted directly from the execution of this Agreement or the announcement of the transactions contemplated hereby or the identity of Buyer; (vi) acts of God or national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, to the extent not affecting the Business in a disproportionately adverse manner relative to other businesses in the United States; or (vii) any event, occurrence or circumstance set forth in Schedule 1.1(d).

     “ Material Contract ” has the meaning set forth in Section 3.15(a).

      “ Medical Business ” means that portion of the Business consisting of (i) Medical Film Products, including Radiology Systems, Digital Output Systems, Mammography Solutions and Personal Monitoring, (ii) Medical Digital Capture Solutions, including Computed Radiography, Digital Radiography, Oncology Solutions and Non-Destructive Testing, (iii) Medical Healthcare Information Solutions, including Computer-Aided Detection and Other Clinical Applications, Picture Archiving and Communications Systems, Radiology Information Systems, Information Management Solutions and Professional Services, and (iv) all service and services associated with the foregoing.

      “ Molecular Imaging Business ” means that portion of the Business consisting of (i) MIS Film Products, (ii) MIS Digital Products, (iii) MIS Digital Imaging Probes, and (iv) all service and services associated with the foregoing.

      “ Newco Formation ” means any transactions undertaken by Seller in order to create a newly-formed entity which is a Transferred Subsidiary.

      “ Newco Entities ” means those Transferred Subsidiaries created for purposes of the Transaction, which are set forth on Schedule 3.2(a).

      “ Non-Governmental Authorizations ” means all licenses, permits, certificates, consents, orders, registrations, variances, franchises, concessions and other authorizations and approvals other than Governmental Authorizations that are (i) held by Seller or any of its Affiliates and (ii) Related to the Business.

      “ Non-U.S. Competition Law ” means any and all national or supra-national statutes, rules, regulations, orders, decrees, administrative and judicial doctrines, and other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade in all jurisdictions which have or may claim jurisdiction over the transactions contemplated by this Agreement or by the Ancillary Agreements other than the United States of America.

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      “ Non-U.S. Merger Clearances ” means approval of the Transaction by (i) the European Commission pursuant to the EC Merger Regulation and, in the event of referral pursuant to Article 9 of the EC Merger Regulation of any aspect of the Transaction to any competent authority of a member state of the European Union, approval by such competent authority of the aspect that was so referred; and (ii) the relevant competition authorities and/or public bodies responsible under the merger control rules of the applicable Non U.S. Competition Laws.

     “ NYSE ” means the New York Stock Exchange, Inc.

      “ Ordinary Course ” or “ Ordinary Course of Business ” means the conduct of the Business in accordance with Seller’s and its Affiliates’ normal day-to-day customs, practices and procedures.

      “ Owned Real Property ” means only those parcels of real property listed on Schedule 1.1(e), including any and all buildings, plants, structures, and improvements located thereon, fixtures attached thereto and all easements, rights-of-way, appurtenances and other rights benefiting such real property and all of Seller’s right, title and interest, if any, in and to (a) all oil, gas and mineral rights related to the foregoing and (b) any condemnation award or any payment in lieu thereof for any taking thereof or for any change in grade of any street, road or avenue adjacent thereto.

      “ Permitted Encumbrances ” means the following and no others: (i) Encumbrances reflected or reserved against in the Unaudited Interim Pro Forma Transaction Balance Sheet in accordance with GAAP; (ii) mechanics’, materialmen’s, warehousemen’s, carriers’, workers’, or repairmen’s liens or other similar common law or statutory Encumbrances arising or incurred in the Ordinary Course for sums not yet due and payable or which are being contested by appropriate proceedings; (iii) liens for Taxes, assessments and other governmental charges not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings and for which appropriate reserves are reflected on the Unaudited Interim Pro Forma Transaction Balance Sheet; (iv) in the case of Real Property, (A) easements, quasi-easements, licenses, covenants, rights-of-way, rights of re-entry or other restrictions or Encumbrances (other than monetary encumbrances, judgments and monetary liens), including any other agreements, conditions or restrictions that are shown by a current title report or other similar report or listing, copies of which easements and other agreements and title reports have been, in each case, provided or made available to Buyer prior to the date hereof, exclusive of those title matters set forth on Schedule 1.1(f) attached hereto, (B) any conditions that may be shown by a current and accurate survey or physical inspection, provided that such conditions, individually or in the aggregate, would not reasonably be likely to materially adversely affect the operation of the Business at the Owned Real Property affected thereby, (C) zoning, building, subdivision, land use, environmental regulations or other similar requirements or restrictions, (D) leases or other occupancy agreements pursuant to which third parties unrelated to Seller or its Affiliates occupy a portion of the Owned Real Property, provided that Seller has

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disclosed such leases and agreements to Buyer in the schedules attached hereto and further provided that complete and accurate executed copies of such leases and agreements have been delivered or made available to Buyer prior to the date hereof, (E) in the case of Leased Real Property, Encumbrances (other than monetary encumbrances, judgments and monetary liens) that would not, individually or in the aggregate, reasonably be likely to materially adversely affect the operation of the Business, and (F) in the case of Owned Real Property, Encumbrances (other than monetary encumbrances, judgments and monetary liens) that would not, individually or in the aggregate, reasonably be likely to materially adversely affect the operation of the Business at the Owned Real Property affected thereby; (v) Encumbrances incurred in the Ordinary Course since the Unaudited Interim Pro Forma Transaction Balance Sheet as of September 30, 2006; and (vi) with respect to Intellectual Property, Encumbrances arising pursuant to any license or other agreement relating thereto.

      “ Person ” means an individual, a corporation, a partnership, an association, a limited liability company, a Government Entity, a trust or other entity or organization.

      “ Pre-Closing Tailoring Transfer ” means any transfer into any Transferred Subsidiary (including any Newco Entity) prior to the Closing of any asset or liability (which asset or liability would otherwise have been a Transferred Asset or Assumed Liability).

     “ Private Offer Notice ” has the meaning set forth in Section 5.24(a).

      “ Real Property ” means, collectively, the Leased Real Property and the Owned Real Property.

      “ Reasonably Required Confidential Information ” has the meaning set forth in Section 5.3(d).

      “ Registered ” means issued by, registered with, renewed by or the subject of a pending application before any Governmental Entity or domain name registrar.

      “ Reimbursable Value Added Tax ” has the meaning set forth in Section 5.4(f).

      “ Related to the Business ” means primarily related to or used primarily in connection with, the Business as conducted by Seller and its Affiliates prior to the Closing.

      “ Scheduled Intellectual Property ” means the Intellectual Property listed on Schedule 1.1(g), which shall be completed as of the date hereof, except that Schedule 1.1(g) shall be amended by mutual agreement of Seller and Buyer in good faith to add any issuances, reissues, reexaminations, divisions, continuations, continuations-in-part, substitutions or extensions which may arise with respect to any existing patent or patent applications which appear on Schedule 1.1(g) on or prior to the Closing Date. Seller and

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Buyer shall further amend Schedule 1.1(g) to add any applications filed or invention disclosures made after the date hereof and on or prior to the Closing Date that are Related to the Business. Any representation or warranty made with respect to such Schedule on or prior to the Closing Date shall take into account that any such added items would not have been in existence and may not be issued until after the Closing Date.

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

      “ Selected Compensation Payments ” means the unpaid compensation amounts, whether or not earned as of the Closing Date, payable in the Ordinary Course consistent with past practice and in accordance with the applicable terms as in effect immediately prior to the Closing Date under Seller’s and its Affiliates’ (A) sales commission/incentive programs, (B) annual variable compensation plans, (C) group or individual performance bonus programs and (D) any individual letter agreement, in each case in respect of any performance period commencing on or after January 1, 2007 and prior to the Closing Date, to eligible Employees who shall become Transferred Employees. Notwithstanding anything to the contrary herein, the Selected Compensation Payments shall not include (1) any amounts under the Kodak Executive Compensation for Excellence and Leadership Plan (EXCEL) or the Kodak Wage Dividend Plans, (2) any sales completion bonus amounts payable solely in connection with the transactions contemplated by this Agreement or (3) any stay bonus retention payments payable to certain eligible Employees who shall become Transferred Employees (a list of such Employees shall be provided separately to Buyer).

      “ Self-Regulatory Organization ” means the National Association of Securities Dealers, Inc, the American Stock Exchange, the NYSE, any national securities exchange (as defined in the Exchange Act), or any other similar self-regulatory body or organization.

     “ Seller ” has the meaning set forth in the Preamble.

      “ Seller Disclosure Schedule ” means the Seller Disclosure Schedule attached hereto.

      “ Second Divesting Business Offer ” has the meaning set forth in Section 5.13(a).

     “ Seller Indemnified Parties ” has the meaning set forth in Section 7.3.

      “ Seller Leased Property ” means those assets or rights not included in the Transferred Assets that are to be leased, subleased, licensed or otherwise provided by Seller and/or any of its Affiliates to Buyer and/or any of its Affiliates pursuant to this Agreement or any Ancillary Agreement, excluding the Leased Real Property.

      “ Seller Required Approvals ” means all consents, approvals, waivers, authorizations, registrations, notices and filings from or with any Government Entity or Self-Regulatory Organization that are required to be listed on Schedule 3.4(a) of the Seller Disclosure Schedule (without regard to the qualification as to Knowledge in Section 3.4(a)).

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     “ Seller’s Business ” has the meaning set forth in Section 5.12(a).

     “ Special Representations ” has the meaning set forth in Section 7.1.

      “ STD Employees ” has the meaning set forth in the definition of “Employees”.

      “ Subsidiary ” of a Person means any other Person (i) whose securities or other ownership interests having by their terms the power to elect a majority of the board of directors or other persons performing similar functions are owned or controlled, directly or indirectly, by the first Person and/or one or more of its Subsidiaries, or (ii) whose business and policies the first Person and/or one or more of its Subsidiaries have the exclusive power to direct. When used without reference to a specific Person, Subsidiary means Subsidiary of Seller.

     “ Target Closing Date ” has the meaning set forth in Section 2.5(c).

      “ Tax Returns ” means all reports and returns required to be filed with respect to Taxes.

      “ Taxes ” means all U.S. federal, state and local and all foreign taxes, including income, gross receipts, windfall profits, value added, property, production, sales, use, duty, license, excise, franchise, employment, withholding or similar taxes, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

     “ Third-Party Buyer ” has the meaning set forth in Section 5.24(a).

     “ Third-Party Claim ” has the meaning set forth in Section 7.4(a).

      “ Third-Party Divesting Buyer ” has the meaning set forth in Section 5.13(a).

     “ Total Purchase Price ” has the meaning set forth in Section 2.5(a).

      “ Trade Secrets ” has the meaning set forth in the definition of “Intellectual Property”.

      “ Trademarks ” has the meaning set forth in the definition of “Intellectual Property”.

      “ Transaction ” means the purchase and sale of all of the issued and outstanding capital stock of the Transferred Subsidiaries and the Transferred Assets, the assumption of the Assumed Liabilities and the other transactions contemplated by Sections 2.1, 2.2, 2.3 and 2.4 hereof pursuant to the terms and conditions of this Agreement.

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     “ Transaction Transfer Taxes ” has the meaning set forth in Section 5.4(f).

     “ Transfer ” has the meaning set forth in Section 5.13(a).

     “ Transfer Taxes ” has the meaning set forth in Section 5.4(f).

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

     “ Transferred Employees ” has the meaning set forth in Section 5.5(a)(ii).

      “ Transferred Employees’ Records ” means all personnel records with respect to the Transferred Employees to the extent the delivery to Buyer is required by applicable Law, and the following current employment and current personal information with respect to each Transferred Employee, to the extent the delivery to Buyer is permitted by applicable Law after giving effect to any consent or waiver given by the Transferred Employee to which it relates: salary, wage grade, job function, variable compensation targets and business and personal mailing addresses and telephone numbers, including as applicable, any “Kodak Employee Agreement”, FMLA (or similar) records, Forms I-9 and “Kodak Employee Development Plans” related to such Transferred Employee, provided that unless otherwise required by Law, Transferred Employees’ Records shall not include any medical records (other than pursuant to Section 5.5(r)) or performance counseling, performance appraisal and/or Goal Setting and Appraisal documentation, other than the most recent Goal Setting and Appraisal documentation.

      “ Transferred Intellectual Property ” means the Scheduled Intellectual Property, Intellectual Property (other than issued patents and patent applications and registered trademarks and applications therefor and other than trademarks including KODAK, KODA or EKTA) owned by Seller or its Affiliates (other than the Transferred Subsidiaries) and used solely in the Business (or documented by Seller as of the Closing Date as having potential application solely in the Business), and Transferred Subsidiary Intellectual Property.

      “ Transferred Subsidiaries ” means the Subsidiaries set forth on Schedule 3.2(a).

      “ Transferred Subsidiaries Indebtedness ” means the aggregate amount necessary to fully pay and retire all Indebtedness of the Transferred Subsidiaries as of the Closing Date (including all interest, prepayment penalties, premiums, fees and expenses and any other payments to be incurred as a result of such payment).

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      “ Transferred Subsidiary Intellectual Property ” means the Intellectual Property owned by the Transferred Subsidiaries.

      “ Transferred Subsidiary Real Property ” means all the real property owned or leased from third parties by the Transferred Subsidiaries.

      “ Transition Services Agreement ” means the Transition Services Agreement between Seller and Buyer substantially in the form set forth in Exhibit E (Kodak to Buyer) and RR (Buyer to Kodak).

      “ Transitional Trademark Use Agreement ” means the Transitional Trademark Use Agreement between Seller and Buyer substantially in the form set forth in Exhibit G.

      “ Unaudited Carve-Out Financial Statements ” means the unaudited combined statement of earnings, combined statement of financial position, combined statement of invested equity and comprehensive income (loss) and combined statement of cash flows for the Business (excluding Non-Destructive Testing and Personal Monitoring) as of, and for the nine month periods, respectively, ended September 30, 2005 and 2006.

      “ Unaudited Interim Pro Forma Transaction Balance Sheet ” means the unaudited balance sheet as of September 30, 2006 prepared to reflect Transferred Assets, Excluded Assets, Assumed Liabilities and Excluded Liabilities.

      “ U.S. Antitrust Laws ” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal and state statutes, rules, regulations, orders, decrees, administrative and judicial doctrines, and other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.

     “ WARN ” means the Worker Adjustment and Retraining Notification Act.

      “ Wholly-Owned Subsidiary ” of a Person means any other Person whose equity securities or other equity ownership interests (other than director’s qualifying shares and similar interests) are owned only by the first Person and/or its Wholly-Owned Subsidiaries.

      Section 1.2 Other Terms . Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning throughout this Agreement.

      Section 1.3 Other Definitional Provisions . Unless the express context otherwise requires:

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      (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) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

     (c) the terms “Dollars” and “$” mean United States Dollars;

      (d) references herein to a specific Section, Subsection or Schedule shall refer, respectively, to Sections, Subsections or Schedules 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”, unless already so followed; and

     (f) references herein to any gender include each other gender.

ARTICLE II

PURCHASE AND SALE OF THE BUSINESS

      Section 2.1 Purchase and Sale of Assets . On the terms and subject to the conditions set forth herein, at the Closing, Seller shall, and shall cause one or more of its Affiliates, as applicable, to, sell, convey, transfer, assign and deliver to Buyer and its Wholly-Owned Subsidiaries (as designated by Buyer), and Buyer shall, and shall cause its Wholly-Owned Subsidiaries (as designated by Buyer) to purchase from Seller and its Affiliates (as applicable), free and clear of all Encumbrances (other than Permitted Encumbrances), (i) all of the issued and outstanding capital stock of the Transferred Subsidiaries set forth on Schedule 3.2(a) and listed thereon as a “Top-Tier Transferred Subsidiary” and (ii) all of Seller’s and each of its Affiliates’ (other than the Transferred Subsidiaries’) right, title and interest in and to all of the assets and properties of every kind Related to the Business, whether tangible or intangible, real, personal or mixed, except for the Excluded Assets (collectively, the “ Transferred Assets ”), including all of such right, title and interest in and to the following (in each case, except to the extent included in the Excluded Assets and except that the Transferred Assets described in Section 2.1(r) shall remain assets of the applicable Transferred Subsidiary):

     (a) all Accounts Receivable;

     (b) Inventory;

     (c) Contracts;

     (d) Transferred Intellectual Property;

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      (e) Business Books and Records and Transferred Employees’ Records;

     (f) Fixtures and Equipment;

     (g) Leased Real Property;

     (h) Goodwill;

     (i) Owned Real Property;

      (j) all causes of action, choses in action, lawsuits, judgments, claims and demands of any nature available to or being pursued by Seller or any of its Affiliates to the extent Related to the Business whether arising by way of counterclaim or otherwise;

      (k) all credits, prepaid expenses, deferred charges, refunds, advance payments, security deposits, rights of recovery, rights of set-off, rights of recoupment, rights to proceeds of insurance and prepaid items to the extent Related to the Business;

      (l) to the extent their transfer is permitted by Law, all Governmental Authorizations Related to the Business and Non-Governmental Authorizations and all applications therefor;

      (m) all guaranties, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates to the extent Related to the Business;

     (n) Divisible Contracts;

      (o) Intracompany Agreements, to the extent provided in Section 2.9(d);

     (p) assets and rights to the extent provided for in Section 5.5;

     (q) all assets set forth on Schedule 2.1; and

      (r) all assets and rights of a Transferred Subsidiary that would constitute a Transferred Asset if held by Seller or any Affiliate of Seller other than a Transferred Subsidiary.

      Section 2.2 Excluded Assets . Notwithstanding anything herein to the contrary, from and after the Closing, Seller and its Affiliates shall retain all of their existing right, title and interest in and to, and there shall be excluded from the sale, conveyance, assignment or transfer to Buyer hereunder, and the Transferred Assets shall not include, the following (collectively, the “ Excluded Assets ”):

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      (a) any asset or class of assets excluded from the defined terms set forth in Section 2.1 by virtue of the limitations expressly stated therein;

      (b) all Tax assets (including refunds, credits, prepayments and loss carryforwards, and any deferred tax assets recorded pursuant to GAAP) of Seller or any of its Affiliates, which, for clarification, does not include any Affiliate that is a Transferred Subsidiary, and, for further clarification, Tax assets of Transferred Subsidiaries shall be subject to the provisions of Section 5.4(h);

     (c) all assets and rights to the extent provided for in Section 5.5;

      (d) all casualty insurance policies and rights thereunder (other than those listed on Schedule 2.2(d)), including all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing and that relate to events, circumstances or occurrences prior to the Closing, unless such proceeds are reflected in the Historical Carve-Out Financial Statements or are received or receivable from damage or casualty insurance policies relating to any physical loss of or damage to any Leased Real Property, Owned Real Property or Inventory, arising from any event, circumstance or occurrence between the date hereof and the Closing Date, but only to the extent any loss or damage or portion thereof is not actually repaired or replaced by Seller;

      (e) all Intellectual Property (other than the Transferred Intellectual Property) owned, used or held for use by Seller or any of its Affiliates (other than the Transferred Subsidiaries);

      (f) all invoices, shipping documents, purchase orders and other preprinted business forms that have any Trademark thereon other than those Trademarks included in the Transferred Intellectual Property or Transferred Subsidiary Intellectual Property or subject to a license to be granted to Buyer;

      (g) all cash and cash equivalents of the Business, except to the extent (x) a check is deposited but uncleared as of the Closing or (y) representing proceeds of insurance not constituting an Excluded Asset under Section 2.2(d);

      (h) all Intracompany Receivables and Intracompany Agreements, to the extent provided in Section 2.9;

     (i) all Contracts listed on Schedule 2.2(i);

     (j) all Fixtures and Equipment listed on Schedule 2.2(j);

      (k) all personnel records, other than the Transferred Employees’ Records;

      (l) all assets (other than Inventory) primarily used in the provision of products or services to be provided pursuant to any Ancillary Agreement in which Seller or one of its Affiliates is providing products or services to Buyer or one of its Affiliates, other than those items set forth on Schedule 2.2(l);

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      (m) all claims with respect to debtors or debtors-in-possession subject to proceedings under Chapter 11 of Title 11 of the United States Bankruptcy Code to the extent such claims are subject to an order entered by a United States Bankruptcy Court that would void or otherwise materially affect the Transaction in the event any relevant consent is not obtained from such Bankruptcy Court or the relevant debtor or debtor-in-possession prior to the Closing;

      (n) all claims, causes of action, lawsuits, judgments and demands related to Eastman Kodak Company v. Agfa Gevaert N.V. and Agfa Corp . (Case No. 6:02-CV-6564T);

      (o) all Business Books and Records (i) that are stored in Seller’s enterprise systems, other than current, open or active data necessary to make replicated systems operational for the Business, (ii) that are not separable from those Books and Records that relate to any Excluded Assets or Excluded Liabilities or relate to any business of Seller or any of its Affiliates other than the Business except as set forth on Schedule 2.2(o), despite Seller’s use of commercially reasonable efforts pursuant to Section 5.3(b), (iii) the transfer of which is prohibited by Law or (iv) the transfer of which otherwise would subject Seller or any of its Affiliates to any material liability;

     (p) all Inventory listed on Schedule 2.2(p);

      (q) to the extent their transfer is not permitted by law, all Governmental Authorizations and Non-Governmental Authorizations;

     (r) all duty drawbacks in connection with the Dental Business;

     (s) all assets set forth on Schedule 2.2(s); and

      (t) all assets and rights of any Transferred Subsidiary that would not constitute a Transferred Asset if held by any Seller or any Affiliate of Seller other than a Transferred Subsidiary.

      Section 2.3 Assumption of Liabilities . Except as otherwise specifically set forth in Section 2.4 and subject to the conditions set forth herein, at the Closing, Buyer agrees to assume the Liabilities of Seller and its Affiliates set forth below (the “ Assumed Liabilities ”), except that the Assumed Liabilities described in Section 2.3(h) as they relate to the Transferred Subsidiaries shall not be assumed and shall remain obligations of the applicable Transferred Subsidiary:

      (a) all Liabilities of Seller or any of its Affiliates to the extent relating to, arising out of or resulting from the conduct of the Business on or prior to the Closing;

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      (b) all Liabilities relating to, arising out of or resulting from the conduct of the Business after the Closing;

     (c) all Liabilities for the Selected Compensation Payments;

      (d) all Liabilities relating to, arising out of or resulting from the Contracts (other than those Contracts that are not assigned to Buyer) and the Divisible Contracts (but only to the extent of Buyer’s portion of the rights and obligations thereunder as mutually agreed upon by Buyer and Seller in their reasonable judgment in good faith between the date hereof and Closing based upon the historical allocation of such rights and obligations between the Business and Seller’s and its Affiliates’ businesses (other than the Business)), but excluding any Liability related to any breach thereof occurring on or prior to the Closing;

      (e) all Liabilities to the extent provided for in Section 5.4 or Section 5.5;

      (f) all Liabilities to the extent relating to, arising out of or resulting from Intracompany Agreements, to the extent provided in Section 2.9(d);

     (g) all Accounts Payable and Other Current Liabilities;

      (h) all Liabilities of a Transferred Subsidiary that would constitute an Assumed Liability if they were Liabilities of Seller or any Affiliate of Seller other than a Transferred Subsidiary.

      Section 2.4 Excluded Liabilities . Notwithstanding anything herein to the contrary, Buyer shall not assume or in any way become liable for any Liability of Seller or any of its Affiliates, of any nature whatsoever, other than the Assumed Liabilities (all such Liabilities, the “ Excluded Liabilities ”), and all such Liabilities shall remain the sole responsibility of Seller and its Affiliates and shall be retained, paid, performed and discharged solely by Seller and its Affiliates. Without limiting the generality of the foregoing, Excluded Liabilities shall include:

      (a) any Liabilities of Seller or any of its Affiliates to the extent relating to, arising out of or resulting from the ownership or operation of the Excluded Assets or any business other than the Business;

      (b) all Intracompany Payables and Liabilities to the extent relating to, arising out of or resulting from Intracompany Agreements, to the extent provided in Section 2.9;

     (c) all Indebtedness of Seller and its Affiliates;

      (d) all Liabilities arising out of or relating to any claims made by a Government Entity concerning (x) any soil and groundwater conditions at Building 214 existing prior to the Closing and (y) the Kodak Park Consent Decree and the matters which it addresses, except to the extent that such Liabilities arise out of the activities of Buyer in contravention of this Agreement, in either case on or prior to the fifth anniversary of the Closing Date;

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      (e) all Liabilities to the extent provided for in Section 5.4 or Section 5.5;

      (f) any Liability of Seller or any of its Affiliates to indemnify any Person by reason of the fact that such Person was a director, officer, employee, or agent of Seller or any of its Affiliates or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement, or otherwise);

      (g) any Liability of Seller or any of its Affiliates (including any of the Transferred Subsidiaries) for costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, except to the extent otherwise explicitly agreed to herein, any Ancillary Agreement or any other agreement;

     (h) all Liabilities set forth on Schedule 2.4;

      (i) any Liability of Seller or any of its Affiliates for Taxes that have been withheld or collected but not paid to the appropriate Taxing Authority;

      (j) any Liability or obligation of Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements (or under any other agreement between Seller or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, entered into on or after the date of this Agreement in connection with the transactions contemplated herein); for the avoidance of doubt, Transferred Subsidiaries are Affiliates of Buyer after the Closing;

      (k) all Liabilities relating to, arising out of or resulting from checks and drafts issued by Seller or any of its Affiliates prior to the Closing which are uncleared as of the Closing; and

      (l) all Liabilities of a Transferred Subsidiary that would constitute an Excluded Liability if they were liabilities of Seller or any Affiliate of Seller other than a Transferred Subsidiary.”

      Section 2.5 Purchase Price . (a) On the terms and subject to the conditions set forth herein, in consideration of the sale of the Transferred Assets, at the Closing, in addition to the assumption of the Assumed Liabilities and the payment, if any, called for by Section 2.13, Buyer shall pay (or caused to be paid) to Seller (on behalf of itself and its Affiliates) in the aggregate an amount in cash equal to $2,350,000,000 (the “ Initial Purchase Price ”), in the manner set forth in Section 2.5(b) and Section 2.7(a) (the Initial Purchase Price, together with the payment contemplated by Section 2.13, the “ Total Purchase Price ”). The Initial Purchase Price does not include the amount of any Transfer Taxes that may be due in respect of the sale, which shall be handled separately in accordance with Section 5.4(f).

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      (b) The Initial Purchase Price shall be allocated among the Transferred Assets in accordance with the allocation prepared in accordance with Section 5.4(k) and the amount allocated to each jurisdiction shall be paid directly to the entity identified by Seller (which entity may be Seller, the transferor of the portion of the Transferred Assets located in that jurisdiction, or another Affiliate of Seller).

      (c) Notwithstanding anything to the contrary herein, in the event the Closing occurs after May 31, 2007 (the “ Target Closing Date ”), at the Closing, Seller shall pay to Buyer an amount equal to $6,400,000 for each calendar month that elapses after the Target Closing Date until the Closing Date; if the Closing occurs other than on the last day of a calendar month, the portion of the Delayed Closing Payment attributable to the calendar month in which the Closing occurs shall be prorated based on the number of days elapsed in such month through the Closing Date relative to the number of days in such month (the aggregate amount of any such payment, the “ Delayed Closing Payment ”). However, no Delayed Closing Payment shall become due or payable if Buyer has breached in any material respect any of its covenants under this Agreement in any manner that shall have proximately contributed to the failure of the Closing to occur. No dispute between the parties as to whether Buyer has breached in any material respect any of its covenants under this Agreement shall serve as a basis to delay the Closing; the parties shall enter into a reasonable escrow arrangement in connection with any Delayed Closing Payment related to any such dispute and shall resolve such dispute as soon as is reasonably practicable. For the avoidance of doubt, if the Closing does not occur, Seller shall have no obligation to make a Delayed Closing Payment.

      Section 2.6 Closing . (a) The Closing shall take place at the offices of Kaye Scholer LLP, 425 Park Avenue, New York, New York 10022, New York City time, on the last calendar day of the month in which the last of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing but subject to the fulfillment or waiver of those conditions) have been satisfied or waived, or at such other time and place as the parties hereto may mutually agree; provided , however, that the Closing shall be deemed effective as of the end of the calendar day on which it occurs. The date on which the Closing occurs is called the “ Closing Date ”. All proceedings to be taken and all documents to be executed and delivered by all parties at the Closing will be deemed to have been taken and executed simultaneously, and no proceeding will be deemed to have been taken nor documents executed or delivered until all have been taken, executed and delivered.

      (b) In the event that the last calendar day of the month in which the last condition set forth in Article VI is satisfied is not a Business Day, the parties shall,

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subject to the agreement of the financing parties providing the Debt Financing, (i) enter into a mutually agreeable escrow agreement to document, inter alia , the arrangements set forth in this paragraph, (ii) in the case of Buyer, enter into related arrangements to provide for (A) the funding into escrow of the Equity Financing on the last Business Day prior to the Closing, (B) the delivery at the Closing of an irrevocable commitment of the financing parties to provide the Debt Financing for the purpose of financing the payment of the Initial Purchase Price and (C) the release to Seller of the Initial Purchase Price on the first Business Day following the Closing and (iii) in the case of Seller, enter into related arrangements to provide for the funding into escrow of the $20,000,000 payment by Seller required by the third sentence of Section 5.5(p)(iii) on the last Business Day prior to the Closing and the release to Buyer of such $20,000,000 payment on the first Business Day following the Closing. Such escrow arrangements will provide (1) for the payment to Buyer of any interest on the amount of the Equity Financing accruing with respect to the period from the inception of the escrow until, and including, the Closing Date, (2) for the payment to Seller of any interest on the amount of the Equity Financing accruing with respect to the period from but excluding the Closing Date until the release of the escrow, (3) for the payment to Seller of any interest on the $20,000,000 payment by Seller accruing with respect to the period from the inception of the escrow until, and including, the Closing Date and (4) for the payment to Buyer of any interest on the $20,000,000 payment by Seller accruing with respect to the period from but excluding the Closing Date until the release of the escrow. On the first Business Day following the Closing Date, Buyer shall pay (or cause to be paid) to Seller (on behalf of itself and its Affiliates) an amount in cash equal to (i) an amount equal to the Initial Purchase Price, less the amount of the Equity Financing, multiplied by (ii) the number of days between the Closing Date and the release of the escrow, divided by (iii) 365, multiplied by (iv) the AA Rate.

      Section 2.7 Deliveries by Buyer . Subject to the terms and conditions hereof, at the Closing, Buyer shall deliver to Seller (or to the Person otherwise indicated herein) the following:

      (a) the Initial Purchase Price in immediately available funds by one or more wire transfers to those accounts which are designated by Seller at least two (2) Business Days prior to the Closing Date (subject to the escrow arrangement contemplated by Section 2.6 of this Agreement, if applicable), with the portion of the Initial Purchase Price being delivered to each account as designated by Seller;

      (b) such instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to Buyer and Seller, as may be necessary to effect Buyer’s assumption of the Assumed Liabilities and the effective assignment of any Contracts, Divisible Contracts or other Transferred Assets;

      (c) a duly executed counterpart by Buyer or its Affiliate(s) of each Ancillary Agreement that is to be executed on the Closing Date;

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     (d) evidence of the obtaining of, or the filing with respect to, the Buyer Required Approvals that are obtained prior to the Closing;

     (e) a duly executed counterpart by Buyer or its Affiliate(s) of each of the assignments of the Assigned Leases, and one or more sublease or license agreements under which Seller or one or more of its Affiliates (or its Transferees) shall sublet or license the real property listed on Schedule 1.1(a), to Buyer or one of its Affiliates, in each case in form and substance reasonably acceptable to Buyer and Seller;

     (f) the certificate to be delivered pursuant to Section 6.3(d); and

     (g) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Seller, as may be required to give effect to this Agreement.

     Section 2.8 Deliveries by Seller . Subject to the terms and conditions hereof, at the Closing, Seller shall deliver, or cause to be delivered, to Buyer the following:

     (a) bills of sale or other appropriate documents of transfer, in form and substance reasonably acceptable to Buyer and Seller, transferring the tangible personal property included in the Transferred Assets to Buyer (including, to the extent required by the financing parties providing the Debt Financing. with respect to all Encumbrances arising under the Secured Credit Agreement dated October 18, 2005 among Kodak, Kodak Graphic Communications Canada Company, Citicorp USA, Inc., as Agent relating to the Transferred Assets or the assets of the Transferred Subsidiaries, all termination statements and other filings required to effect and evidence the release of such Encumbrances);

     (b) one or more general assignments, in form and substance reasonably acceptable to Buyer, assigning to Buyer all rights of Seller and its Affiliates in and to the Transferred Intellectual Property; provided that, as between Buyer and Seller, Buyer shall be responsible for preparing and filing any assignments required by any Government Entity with which Seller’s or any of its Affiliates’ rights to any Transferred Intellectual Property have been filed (including any recordation necessary to evidence the assignment of such Transferred Intellectual Property to Seller or such Affiliate); provided , further , that Seller shall reasonably cooperate with Buyer, at Buyer’s request and expense, in the execution and filing of any such assignments;

     (c) a duly executed counterpart of each of the assignments of the Assigned Leases, in form and substance reasonably acceptable to Buyer and Seller;

     (d) limited warranty deeds with covenant against grantor’s acts (or comparable deeds) in recordable form and sufficient to vest in Buyer good and marketable title to, and fee simple ownership of, each parcel of Owned Real Property, free and clear of all Encumbrances other than Permitted Encumbrances;

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     (e) copies or, if related to Real Property, originals in recordable form, of all instruments, certificates, documents, releases and other filings necessary to release the Transferred Assets and the assets of the Transferred Subsidiaries from all Encumbrances, other than Permitted Encumbrances;

     (f) any documents, affidavits (in respect of title), certificates or such other information from Seller or its Affiliates, in a form reasonably acceptable to Seller, that is customarily obtained and which is sufficient to enable a nationally recognized title insurance company to issue title insurance with respect to the Owned Real Property as of the Closing insuring Buyer’s title as owner thereof, subject only to Permitted Encumbrances, it being understood and agreed that Buyer shall have the right in its reasonable discretion to select such title insurance company;

     (g) stock certificates representing all of the outstanding shares of capital stock or other equity interests of the Transferred Subsidiaries, duly endorsed or with stock powers executed in blank or otherwise in form suitable for transfer, designated as Top-Tier Transferred Subsidiaries on Schedule 3.2(a);

     (h) a duly executed counterpart of an assignment and assumption agreement, in form and substance reasonably acceptable to Buyer and Seller, assigning to Buyer all rights of Seller and its Affiliates in and to all of the Contracts, exclusive of any Excluded Liabilities, other than any Contracts that are the sole responsibility of a Transferred Subsidiary;

     (i) a duly executed instrument operating as partial assignment and assumption, as required under the terms and conditions of each of the partially assigned Divisible Contracts, in a form and substance reasonably acceptable to Buyer and Seller, assigning to Buyer the agreed portion of the rights of Seller and its Affiliates in and to such Divisible Contracts, exclusive of any Excluded Liabilities;

     (j) a duly executed certificate (in the form provided for in Treasury Regulations Section 1.1445-2) from Seller and each Affiliate of Seller that will be transferring any Transferred Asset either that such transferor is not a “foreign person” for U.S. federal income tax purposes or that none of the assets being transferred by that transferor is a “United States real property interest” for U.S. federal income tax purposes;

     (k) a duly executed counterpart of each Ancillary Agreement that is to be executed on the Closing Date;

     (l) evidence of the obtaining of, or with respect to, the Seller Required Approvals that are obtained prior to the Closing;

     (m) the certificate to be delivered pursuant to Section 6.2(h);

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      (n) such other customary instruments of transfer, assumptions, filings, and documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement;

      (o) the Consent Certificates that are obtained by Seller prior to the Closing;

      (p) the Consent Certificates required to be delivered by Seller pursuant to Section 6.2(j) of this Agreement;

      (q) estoppel certificates relating to the Real Property, or any portion thereof, that are obtained by Seller prior to the Closing from each of the Persons identified on Schedule 2.8(q) attached hereto;

      (r) to the extent available and practicable, a copy of the certificate of incorporation (or equivalent organizational document) of each Transferred Subsidiary, certified by the Secretary of State (or similar official) of its jurisdiction of organization;

      (s) to the extent available and practicable, a certificate of good standing of each Transferred Subsidiary as of a recent date by the Secretary of State (or similar official) of its jurisdiction of organization;

      (t) a certificate of the Secretary or an Assistant Secretary of each Transferred Subsidiary, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, as to (i) the lack of amendments to the certificate of incorporation (or equivalent organizational document) of such Transferred Subsidiary since the date of the certificate referred to in Section 2.3(n) above; and (ii) the bylaws (or equivalent organizational document) of each Transferred Subsidiary;

      (u) certified copies of resolutions of Seller’s board of directors authorizing and approving this Agreement and the transactions contemplated hereby;

      (v) the Delayed Closing Payment, if any, payable in accordance with Section 2.5(c), in immediately available funds by one or more wire transfers to those accounts which are designated by Buyer at least two (2) Business Days prior to the Closing Date; and

      (w) the $20,000,000 payment required by the third sentence of Section 5.5(p)(iii), in immediately available funds by one or more wire transfers to those accounts which are designated by Buyer at least two (2) Business Days prior to the Closing Date (subject to the escrow arrangement contemplated by Section 2.6 of this Agreement, if applicable).

      Section 2.9 Intracompany Arrangements . (a) Seller shall cause each Intracompany Payable that is between a Transferred Subsidiary, on the one hand, and an entity that is not a Transferred Subsidiary, on the other hand, and each Intracompany

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Receivable that is between a Transferred Subsidiary, on the one hand, and an entity that is not a Transferred Subsidiary, on the other hand, to be, at Seller’s discretion, settled or cancelled, effective no later than immediately prior to the Closing; (b) each Intracompany Receivable and Intracompany Payable that is between two entities that are Transferred Subsidiaries may remain outstanding as of the Closing and such items shall not constitute an Excluded Asset or an Excluded Liability; (c) each Intracompany Receivable and Intracompany Payable that is between two entities that are not Transferred Subsidiaries may remain outstanding as of the Closing but such items shall constitute an Excluded Asset or an Excluded Liability, as the case may be; and (d) except as set forth on Schedule 2.9(d), Intracompany Agreements shall cease to be effective as of the Closing; notwithstanding the foregoing, the cessation of effectiveness of any Intracompany Agreement shall not affect any balance due under any such Intracompany Agreement which shall be covered by clause (a), (b) or (c) of this Section 2.9, as applicable.

      Section 2.10 Non-Assignability of Assets . Notwithstanding anything to the contrary contained in this Agreement, to the extent that the sale, assignment, sublease, transfer, conveyance or delivery or attempted sale, assignment, transfer, conveyance or delivery to Buyer of any Transferred Asset (other than with respect to the Owned Real Property, or any portion thereof, the non-transferability of which is covered by Section 5.15 of this Agreement) or any claim or right or any benefit arising thereunder or resulting therefrom is prohibited by any applicable Law or would require any governmental or third party authorizations, approvals, consents or waivers and such authorizations, approvals, consents or waivers shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or any attempted sale, assignment, transfer, conveyance or delivery, thereof. Following the Closing, Seller and Buyer shall use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers. Pending such authorization, approval, consent or waiver, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the full rights and benefits of use of each such Transferred Asset (including enforcement for the benefit of Buyer of any and all rights of Seller or any of its Affiliates against any other party arising out of such Transferred Asset and, if requested by Buyer, acting as an agent on behalf of Buyer or as Buyer shall otherwise reasonably require, at Buyer’s expense) and to provide Buyer or its Subsidiaries the benefits of the transfer of such Transferred Asset (but solely to the extent that Buyer receives the benefits of use of such Transferred Asset). Once authorization, approval, consent or waiver for the sale, assignment, transfer, conveyance or delivery of any Transferred Asset not sold, assigned, transferred, conveyed or delivered at the Closing is obtained, Seller shall, or shall cause its Affiliates to, as the case may be, assign, transfer, convey and deliver such Transferred Asset to Buyer at no additional cost. To the extent that any such Transferred Asset cannot be transferred or the full rights and benefits of use of any such Transferred Asset cannot be provided to Buyer following the Closing despite Seller’s use of commercially reasonable efforts in accordance with this Section 2.10, then Buyer and Seller shall enter into such arrangements (including subleasing or subcontracting if permitted) to provide to Buyer the economic and operational

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equivalents, to the extent permitted, and designed to provide Buyer with the rights and benefits (including enforcement for the benefit of Buyer of any and all rights of Seller or any of its Affiliates against any other party arising out of such Transferred Asset and, if requested by Buyer, acting as an agent on behalf of Buyer or as Buyer shall otherwise reasonably require, at Buyer’s expense) of obtaining such authorization, approval, consent or waiver and the performance by Buyer of the obligations thereunder and Buyer shall direct the operations of such Transferred Assets. With respect to the provisions of this Section 2.10, Seller shall pay promptly to Buyer, when received, all income, proceeds and other monies (other than the Initial Purchase Price) received by Seller or any of its Affiliates to the extent related to any Transferred Asset (net of any Taxes (and any other costs) imposed upon Seller or any Subsidiary in connection with the arrangements under this Section 2.10), with such Tax costs to be determined by assuming that such Transferred Assets and related operations were taxable on a stand-alone basis). If the Taxes (as so determined) and other costs imposed upon Seller or any Subsidiary in respect of such Transferred Asset exceed the monies received by Seller or any Subsidiary in respect thereof, Buyer shall promptly reimburse Seller or the applicable Subsidiary for such excess. To the extent permitted under applicable Tax law, for all Tax purposes the parties shall treat all such assets as having been transferred by Seller to Buyer at the Closing.

      Section 2.11 Obtaining Consents and Approvals . In the event that any payment of money or other consideration is required in connection with obtaining any of the consents, approvals, waivers or authorizations contemplated by Section 2.10, and Buyer determines that any such payment should be made, Buyer and Seller shall each pay 50% of such payment; provided , however , that neither Seller nor Buyer shall be required to pay more than $2,500,000, respectively, in the aggregate to obtain such consents, approvals, waivers or authorizations.

      Section 2.12 Intellectual Property Agreement . Notwithstanding anything to the contrary contained in this Agreement, at and following the Closing, Buyer’s and the Transferred Subsidiaries’ right, title and interest in and to the Transferred Intellectual Property and Transferred Subsidiary Intellectual Property shall be subject in all respects to the terms and conditions of the Ancillary Agreements, including the Intellectual Property Agreement. Nothing in this Section 2.12 shall limit the representations and warranties of Seller in Article III or Seller’s obligations under Article VII.

     Section 2.13 IRR Payment .

      (a) If the Closing has occurred and on the terms set forth in this Agreement, in addition to the Initial Purchase Price payable at the Closing in accordance with Section 2.5(a), upon the occurrence of each IRR Payment Event, the IRR Payment, if any, resulting from such IRR Payment Event shall be paid to Seller in accordance with Section 2.13(b), provided that any IRR Payment otherwise required hereunder shall be reduced to the extent necessary so that the aggregate IRR Payments made hereunder do

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not exceed $200,000,000, and the obligation to make any IRR Payment hereunder shall cease and terminate upon the earlier to occur of (i) such time as the aggregate IRR Payments made to Seller hereunder equal $200,000,000 and (ii) such time as (A) the Investors cease to hold any Investors Equity Interests or any property or securities other than cash or Readily Marketable Securities received by the Investors with respect to, or as consideration or in exchange for, Investors Equity Interests (such property or securities, the “Non-Marketable Property”) and (B) all IRR Payments, if any, required to be paid hereunder in connection with the IRR Payment Event, if any, arising from the Investors’ ceasing to hold any Investors Equity Interests or such property or securities have been paid in full (the earlier to occur of such events, the “ Termination Event ”).

      (b) Subject to any adjustments that may be made in accordance with Section 2.13(c), contemporaneously with the receipt by the Investors of any Cash Inflow on any IRR Payment Event, Buyer shall pay (or cause to be paid) to Seller (for the benefit of itself and its Affiliates in accordance with Section 2.5(b)) its good faith estimate of the IRR Payment (the “ Estimated IRR Payment ”), if any, by wire transfer of immediately available funds and, to the extent that the Cash Inflow from which it results consists of any Readily Marketable Securities, by transfer of Readily Marketable Securities. The percentage of any IRR Payment that is made in the form of Readily Marketable Securities shall be the same as the percentage of the Cash Inflow in the IRR Payment Event from which such IRR Payment results that consists of Readily Marketable Securities, and the portion of any IRR Payment that consists of Readily Marketable Securities shall be valued at the Fair Market Value thereof as of the date of the related IRR Payment Event.

      (c) (i) No later than 10 days following the receipt by the Investors of any Cash Inflow or the receipt by the Company of any Cash Outflow, (A) in the case of a Cash Inflow, Buyer shall deliver, or cause to be delivered, to Seller a statement that notifies Seller of such Cash Inflow (if not previously so notified) and sets forth in reasonable detail its calculation of IRR and IRR Payment, if any, as of the date of such receipt (an “ IRR Statement ”), and (B) in the case of a Cash Outflow, Buyer shall deliver, or cause to be delivered, to Seller a statement that notifies Seller of such Cash Outflow and sets forth in reasonable detail its calculation of the Fair Market Value of any Non-Marketable Property included in such Cash Outflow as of the date of receipt by the Company of such Non-Marketable Property (an “ FMV Statement ”).

      (ii) In the case of a Cash Inflow, if Seller disagrees with the determination of IRR or IRR Payment, if any, in such IRR Statement, Seller may, within 30 days after receipt of such IRR Statement, deliver a notice (an “ IRR Objection Notice ”) to Buyer setting forth in reasonable detail its calculation of IRR and IRR Payment.

      (iii) In the case of a Cash Outflow, if Seller disagrees with the determination of Fair Market Value in such FMV Statement, Seller may, within 30 days after receipt of such FMV Statement, deliver a notice (an “ FMV Objection Notice ”) to Buyer setting forth in reasonable detail its calculation of Fair Market Value.

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      (iv) If Seller does not deliver an IRR Objection Notice or FMV Objection Notice to Buyer within 30 days after receipt of the IRR Statement or the FMV Statement, respectively, then Seller and Buyer will be deemed to have agreed to the IRR Statement or the FMV Statement, respectively, and such determinations shall be deemed to be finally determined as set forth therein. Buyer and Seller shall use commercially reasonable efforts to resolve any disagreements as to the computation of IRR, IRR Payment or Fair Market Value, as the case may be, but if they do not obtain a final resolution within 15 days after Buyer has received an IRR Objection Notice or FMV Objection Notice, as the case may be, Buyer and Seller shall jointly retain the New York City office of an independent “Big Four” accounting firm reasonably acceptable to both Seller and Buyer (the “ Firm ”) to resolve any remaining disagreements. Buyer and Seller shall direct the Firm to render a determination within 15 days of its engagement, and Buyer and Seller and their respective Affiliates and representatives shall cooperate with the Firm during the terms of its engagement. The Firm will be directed to consider only those items and amounts in the IRR Statement or the FMV Statement, as the case may be, set forth in the IRR Objection Notice or the FMV Objection Notice, as the case may be, which Buyer and Seller are unable to resolve. Buyer and Seller shall each make a submission to the Firm promptly (and in any event within 10 days after the Firm’s engagement), which submission shall contain such party’s determination of IRR, IRR Payment or Fair Market Value, as the case may be, and all relevant information, arguments, and support for such party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Firm’s determination will be based on the definition of IRR, IRR Payment or Fair Market Value, as the case may be, included herein. The determination of the Firm will be conclusive and binding upon Buyer and Seller. Seller and Buyer shall each bear 50% of the costs and expenses of the Firm.

     (v) The IRR Payment, if any, as finally determined in accordance with this Section 2.13(c) shall be referred to herein as the “ Actual IRR Payment .” If any Estimated IRR Payment is made as of an IRR Payment Event pursuant to Section 2.13(b), and such Estimated IRR Payment is less than the Actual IRR Payment as of such IRR Payment Event, then Buyer shall pay (or cause to be paid) to Seller (for the benefit of itself and its Affiliates in accordance with Section 2.5(b)) an amount equal to such shortfall, plus interest calculated at the bond rate for AA corporate bonds with a maturity of one year, or, if a rate is not available for that maturity, for the closest maturity for which such a rate is available (the “ AA Rate ”) for bonds most similar to such bonds) prevailing as of the date of such payment by wire transfer of immediately available funds and, to

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the extent that the Cash Inflow from which such IRR Payment results consists of any Readily Marketable Securities, by transfer of Readily Marketable Securities. If any Estimated IRR Payment is made as of an IRR Payment Event pursuant to Section 2.13(b), and such Estimated IRR Payment is greater than the Actual IRR Payment as of such IRR Payment Event, then Seller shall pay (or cause to be paid) to Buyer an amount equal to such excess plus interest calculated at the AA Rate prevailing as of the date of such payment by wire transfer of immediately available funds and, to the extent that the Cash Inflow from which such IRR Payment results consists of any Readily Marketable Securities, by transfer of Readily Marketable Securities. The percentage of any Readily Marketable Securities to be included in any such payment, if applicable, shall be determined in accordance with the last sentence of Section 2.13(b).

      (d) Buyer hereby covenants that during the period commencing on the Closing Date and expiring on the occurrence of the Termination Event:

      (i) Buyer shall cause the Company and its Subsidiaries not to enter into any agreement that would, by its terms, or should reasonably be expected to, prohibit or restrict the payment of any IRR Payment required by this Section 2.13, provided that, notwithstanding the foregoing, Buyer, the Company and its Subsidiaries may enter into or become subject to agreements that restrict the making of payments which, if made, would directly or indirectly constitute, create or result in, Cash Inflows;

      (ii) without the prior written consent of Seller (which consent shall not be unreasonably withheld or delayed), Buyer shall not, and shall not permit any of its Subsidiaries to, enter into any transaction with any of the Investors, other than (A) such transactions pursuant to which Cash Inflows or Cash Outflows are made, including the entry of any management agreement or similar agreement providing for fees all of which would constitute Cash Inflows and any subscription agreement, purchase agreement or similar agreement that would result in Cash Outflows or (B) the entry of any shareholders agreement, registration rights agreement, voting agreement or other agreement related to the rights or obligations related to the Investors Equity Interests and which do not involve any Cash Inflows or Cash Outflows or any other payments by Buyer or its Subsidiaries to any Investor; and

      (iii) Buyer shall not take any action for the purpose of frustrating the intent of the parties, as reflected in this Section 2.13, that if the Investors realize a “cash-on-cash” IRR in excess of 25% on their investment in Buyer, Seller will receive IRR Payments equal to 25% of the excess return, but not exceeding $200,000,000 in the aggregate. The parties intend that this Section 2.13 shall be interpreted by the parties, any Firm, and any Governmental Entity to give maximum effect to the intent of the parties, as reflected in this Section 2.13, that if the Investors realize a “cash-on-cash” IRR in excess of 25% of their investment in Buyer, Seller will receive IRR Payments equal to 25% of the excess return, but not exceeding $200,000,000 in the aggregate.

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      (e) The right of Seller to receive any IRR Payment hereunder is solely a contractual right and is not a security for purposes of any federal or state securities laws, and Seller hereby acknowledges and agrees that the obligations of the Company under this Section 2.13 shall confer upon Seller only the rights of a general unsecured creditor under applicable state law.

     (f) For purposes of this Section 2.13:

     “ Cash Inflow ” means the sum of:

      (i) cash payments actually received by the Investors from the Company or an Independent Third Party with respect to, or as consideration or in exchange for, Investors Equity Interests, including, without duplication, all cash payments actually received by the Investors with respect to, or as consideration or in exchange for, any property (other than Readily Marketable Securities) received by the Investors with respect to, or as consideration or in exchange for, Investors Equity Interests and all cash dividends or other cash distributions received with respect to Investors Equity Interests, net of documented out-of-pocket costs and expenses payable or paid to Independent Third Parties incurred by the Investors in connection with the transactions in which such cash payments are received; and

      (ii) the Fair Market Value (determined as of date on which Readily Marketable Securities are actually received by the Investors) of all Readily Marketable Securities actually received by the Investors from an Independent Third Party as consideration or in exchange for Investors Equity Interests, or as consideration or in exchange for, any property (other than Investors Equity Interests or Readily Marketable Securities) received by the Investors with respect to, or as consideration or in exchange for, Investors Equity Interests, but excluding any Readily Marketable Securities of the Company received by the Investors by way of dividend, distribution or any subdivision or combination with respect to or of Investors Equity Interests, net of documented out-of-pocket costs and expenses payable or paid to Independent Third Parties incurred by the Investors in connection with the transactions in which such property or Readily Marketable Securities are received.

In addition, all transaction, advisory, consulting, management and similar fees paid by the Company or any of its Subsidiaries to the Investors, in any capacity, shall be treated as Cash Inflows.

      “ Cash Outflows ” means the aggregate amount of cash payments made, and the Fair Market Value of property contributed, by the Investors to the Company or an Independent Third Party to purchase or otherwise in exchange for Investors Equity Interests, including, but not limited to, the investment made by the Investors to acquire Investors Equity Interests in connection with the Closing.

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      “ Company ” means (i) either Buyer or a Person holding 100% of the outstanding equity securities of Buyer, (ii) any Wholly-Owned Subsidiary of Buyer that acquired capital stock of the Transferred Subsidiaries and Transferred Assets pursuant to this Agreement or (iii) any successor to such a Person by reason of a merger, consolidation or other business combination.

      “ Excess Cash Inflows ” means, with respect to an IRR Payment Event, an amount equal to the amount by which the Cash Inflow in such IRR Payment Event could be reduced (but not below 0) without resulting in an IRR as of the date of such Cash Inflow of 25% or less.

      “ Fair Market Value ” means: (i) with respect to any Readily Marketable Securities, as of any date, the officially quoted closing price of such securities on the stock exchange or automatic quotations systems on which such securities are listed; and (ii) with respect to Non-Marketable Property, as of such date on which any Cash Outflows are received by the Company or an Independent Third Party in the form of Non-Marketable Property, the price a willing buyer would pay a willing seller in an arms’ length transaction, as determined in accordance with Section 2.13(c).

      “ Independent Third Party ” means any Person who, immediately prior to the contemplated transaction, is not an Investor or a Person within the definition of the Company.

     “ Investors ” means, collectively, Onex Partners II LP and Onex Corporation and their respective Affiliates, excluding any Person within the definition of the Company.

      “ Investors Equity Interests ” means all capital stock or other equity securities of the Company held by the Investors as of the Closing and at any time thereafter, including any capital stock or other equity securities of the Company issued to Investors directly or indirectly with respect to Investors Equity Interests by way of dividend, distribution or any subdivision or combination, but excluding any Readily Marketable Securities taken into account pursuant to clause (ii) of the definition of Cash Inflows.

      “ IRR ” means the annual interest rate (compounded annually), if any, which, when used to calculate the net present value as of the Closing Date of all Cash Inflows and all Cash Outflows through the date of determination, causes such net present value of all Cash Inflows to equal such net present value of all Cash Outflows.

      “ IRR Payment ” means, with respect to any IRR Payment Event, an amount equal to 25% of the Excess Cash Inflow in such IRR Payment Event.

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      An “ IRR Payment Event ” occurs if an IRR in excess of 25% is achieved immediately after giving effect to any Cash Inflow.

      “ Readily Marketable Securities ” means readily marketable securities listed or quoted on a U.S. national stock exchange or the NASDAQ Stock Market or a major international stock exchange or automatic quotation system.

     Section 2.14 Deferred Closings .

      (a) Notwithstanding anything to the contrary contained herein, in the event that all of the conditions to the Closing set forth in Article VI have been satisfied (or waived in writing) with respect to all of the countries in which the Transferred Assets are physically located or from which the Business derived revenues in 2005, other than one or more countries which in the aggregate contributed less than ten (10) percent of the Business’ 2005 revenues (the “ Deferred Closing Countries ”), based on the allocation of the Business’ 2005 revenues set forth on Schedule 2.14, the Closing shall be effected, including the payment of the Initial Purchase Price; provided , however , that the evidence to be delivered in connection with the Closing pursuant to Article VI shall be required only with respect to all of such countries, other than the Deferred Closing Countries. One or more subsequent closings (“ Deferred Closings ”) shall occur as soon as practicable following the receipt of all of the evidence to be delivered, with respect to each such Deferred Closing Country. Until such time as a Deferred Closing occurs with respect to a Deferred Closing Country, Seller shall, with any necessary cooperation from Buyer, operate the portion of the Business located in such Deferred Closing Country in trust for the account of Buyer in a manner consistent with the terms of this Agreement. In connection therewith, (i) Buyer and Seller shall net out the costs and benefits associated with the portion of the Business in each such Deferred Closing Country for the period between the Closing Date and the date of the Deferred Closing for such Deferred Closing Country on the date of the Deferred Closing for such Deferred Closing Country, (ii) all assets that would be Transferred Assets, but for the failure to receive the evidence to be delivered in connection with the Closing, shall be regarded as Transferred Assets for purposes of the calculations required under Section 2.5(b), (iii) the Assumed Liabilities relating to such Deferred Closing Country shall be deemed to have been assumed as of the Closing for purposes of Section 2.5(b) and (iv) the parties hereto shall use commercially reasonable efforts, and cooperate with each other, to obtain promptly the remaining evidence to be delivered to effectuate a Deferred Closing with respect to such Deferred Closing Country. To the extent that Buyer is required to pay any cash consideration for the Transferred Assets located in any Deferred Closing Countries at a Deferred Closing, Seller shall remit to Buyer, in immediately available funds, the amount of cash consideration allocated to such Deferred Closing Country in accordance with Section 5.4(k), and Buyer shall pay such consideration at such Deferred Closing.

      (b) Buyer and Seller shall use commercially reasonable efforts between the date hereof and Closing to develop and implement provisional arrangements for each potential Deferred Closing Country, including engaging in the activities set forth in Section 5.22.

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      (c) In the event that a Deferred Closing does not occur with respect any Deferred Closing Country within 180 days after the Closing Date (the “ Deferred Closing Deadline ”), either Buyer or Seller may give notice to the other of its election to terminate the arrangements set forth in this Section 2.14 with respect to such Deferred Closing Country; if such notice is given, (i) within five (5) Business Days after such notice, Seller shall pay to Buyer such portion of the Initial Purchase Price allocable to the Business conducted at such Deferred Closing Country, as set forth on Schedule 5.4, together with interest thereon from the Closing Date to the date of payment at the rate of interest borne by Buyer and its Wholly-Owned Subsidiaries under the senior debt included in the Debt Financing, (ii) the temporary arrangements entered into prior to the Deferred Closing Deadline pursuant to Section 2.14(a) in respect of such Deferred Closing Country shall cease as of such time the payment contemplated in clause (i) immediately foregoing is made to Buyer and (iii) at Seller’s request, subject to Section 5.13, Seller and Buyer shall enter into mutually agreeable, commercially reasonable arrangements to allow Seller to continue to conduct the Business in such Deferred Closing Country. However, a party that has breached in any material respect any of its covenants under this Agreement in any manner that proximately contributed to the failure of a Deferred Closing to occur prior to the Deferred Closing Deadline with respect to a Deferred Closing Country may not give a notice pursuant to the immediately preceding sentence with respect to such Deferred Closing Country.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

      Seller represents and warrants to Buyer, as of the date hereof and as of the Closing, except as set forth on the Seller Disclosure Schedule (each of which disclosures shall clearly indicate the Section, and, if applicable, the Subsections of this Article III to which it relates), as follows:

      Section 3.1 Organization and Qualification . Seller is a corporation duly organized, validly existing and in good standing under the laws of New Jersey and has all requisite corporate power and authority to own, lease and operate its assets, and to carry on the Business as currently conducted. Seller is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of the Transferred Assets or the conduct of the Business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect.

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     Section 3.2 Subsidiaries .

      (a) Schedule 3.2(a) of the Seller Disclosure Schedule sets forth a complete and accurate list of each Transferred Subsidiary, including the Newco Entities, together with its jurisdiction of organization and its authorized and outstanding capital stock or other equity interests as of the date hereof. Each Asset Transferring Subsidiary and each Transferred Subsidiary is duly organized, validly existing, and in good standing or active under the Laws of its jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its portion of the Business as currently conducted and is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so duly organized, validly existing, qualified or in good standing that would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect. Seller has heretofore delivered or made available to Buyer complete and correct copies of the certificate of incorporation and the by-laws (or similar organizational documents) of each of the Transferred Subsidiaries as presently in effect. Seller or one or more of its Affiliates owns all right, title and interest in and to all outstanding stock and other equity interests of the Transferred Subsidiaries. All of the outstanding stock and other equity interests of the Transferred Subsidiaries have been duly authorized, and are validly issued, fully paid and non-assessable.

      (b) There are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which the Transferred Subsidiaries are or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any shares of the capital stock or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any shares of the capital stock or other equity interests, of the Transferred Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The outstanding stock and other equity interests of the Transferred Subsidiaries are not subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend rights or disposition of such stock or other equity interests. There are no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the stock or other equity interests of the Transferred Subsidiaries.

      (c) Seller or one or more of its Affiliates has good and valid title to the outstanding stock and other equity interests of the Transferred Subsidiaries, free and clear of all Encumbrances, other than Permitted Encumbrances, and upon delivery by Seller and/or any of its Affiliates of the outstanding stock and other equity interests of the Transferred Subsidiaries at Closing, good and valid title to the outstanding stock and other equity interests of the Transferred Subsidiaries, free and clear of all Encumbrances, other than Permitted Encumbrances and those resulting from Buyer’s ownership, will pass to Buyer.

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      (d) Except as set forth on Schedule 3.2(d), no Transferred Subsidiary owns, directly or indirectly, any capital stock or other equity interests of any Person (other than a Transferred Subsidiary) or has any direct or indirect equity or ownership interest in any business (other than a Transferred Subsidiary), or is a member of or participant in any partnership, joint venture or similar Person (other than a Transferred Subsidiary).

      Section 3.3 Corporate Authorization . Seller has full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party, and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Seller of this Agreement and each of the Ancillary Agreements to which it is a party have been duly and validly authorized and no additional corporate or shareholder authorization or consent is required in connection with the execution, delivery and performance by Seller of this Agreement or any of the Ancillary Agreements to which it is a party. Each Affiliate of Seller has or prior to the Closing will have full corporate power and authority to execute and deliver each Ancillary Agreement or Closing document to which it is a party and to perform its obligations thereunder. The execution, delivery and performance by each Affiliate of Seller of each Ancillary Agreement or Closing document to which it is a party have been or prior to the Closing will have been duly and validly authorized, and no additional corporate or shareholder authorization or consent is or will be required in connection with the execution, delivery and performance by any Affiliate of Seller of the Ancillary Agreements or Closing documents to which such Affiliate is a party or signatory.

      Section 3.4 Consents and Approvals . (a) Except as set forth on Schedule 3.4(a), to the Knowledge of Seller, no consent, approval, waiver, authorization, notice or filing is required to be obtained by Seller or any of its Affiliates from, or to be given by Seller or any of its Affiliates to, or made by Seller or any of its Affiliates with, any Government Entity or Self-Regulatory Organization, in connection with the execution, delivery and performance by Seller or any of its Affiliates of this Agreement and the Ancillary Agreements.

      (b) Except as set forth on Schedule 3.4(b), no consent, approval, waiver, authorization, notice or filing is required to be obtained by Seller or any of its Affiliates from, or to be given by Seller or any of its Affiliates to, or made by Seller or any of its Affiliates with, any Person which is not a Government Entity or Self-Regulatory Organization in connection with the execution, delivery and performance by Seller or any of its Affiliates of this Agreement and the Ancillary Agreements.

      Section 3.5 Non-Contravention . The execution, delivery and performance by Seller and its Affiliates of this Agreement and the Ancillary Agreements, and the consummation of the transactions contemplated hereby and thereby, do not and will not (a) violate any provision of the certificate of incorporation, bylaws or other organizational documents of Seller or any of its Affiliates, (b) except as set forth on Schedule 3.4(b) of the Seller Disclosure Schedule, conflict with, or result in the breach

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of, or constitute a default under, or result in the termination, right of cancellation, modification or acceleration (whether after the filing of notice or the lapse of time or both) of any right or obligation of Seller or any of its Affiliates under, or result in a loss of any benefit to which Seller or any of its Affiliates is entitled under, any material Contract, or result in the creation of any material Encumbrance upon any of the Transferred Assets or any of the assets of the Transferred Subsidiaries, or (c) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings set forth on Schedules 3.4(a) and 3.4(b) of the Seller Disclosure Schedule, or required to be made or obtained by Seller, violate or result in a breach of or constitute a default under any Law to which Seller or any of its Affiliates is subject, or under any material Governmental Authorization.

      Section 3.6 Binding Effect . Each of this Agreement and the Ancillary Agreements, when executed and delivered by Buyer and the other parties thereto, constitutes a valid and legally binding obligation of Seller and each Affiliate of Seller party to such agreements, enforceable against Seller and each such Affiliate, subject to bankruptcy, insolvency, reorganization, moratorium, or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, in accordance with their respective terms.

      Section 3.7 Financial Statements . Schedule 3.7 sets forth true and complete copies of the Historical Carve-Out Financial Statements and the Unaudited Interim Pro Forma Transaction Balance Sheet and:

      (a) Except as described in the notes to the Historical Carve-Out Financial Statements, the Historical Carve-Out Financial Statements (i) have been prepared in accordance with GAAP (except for the absence of a five-year table as required by Regulation S-K) consistently applied, and fairly present, in all material respects, the financial position and results of operations and cash flows of the Business as of the dates thereof or the periods then ended and (ii) were derived from the books and records of Seller and its affiliates;

      (b) The Unaudited Interim Pro Forma Transaction Balance Sheet has been prepared based on adjustments to the Unaudited Carve-Out Financial Statements, such adjustments representing management’s good faith estimate (determined using reasonable judgment) of the Transferred Assets, Excluded Assets, Assumed Liabilities and Excluded Liabilities, as contemplated by this Agreement; and

      (c) Except as specifically set forth on Schedule 3.7(c), neither Seller nor any of its Affiliates has any material Liabilities related to the Business, except (a) to the extent accrued, reflected or reserved against in the Unaudited Interim Pro Forma Transaction Balance Sheet or the unaudited combined statement of financial position for the Business (excluding Non-Destructive Testing and Personal Monitoring) as of September 30, 2006; (b) Liabilities incurred in the Ordinary Course of Business since the date of the Unaudited Interim Pro Forma Transaction Balance Sheet, none of which

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relates to a breach of contract (other than customer write-offs, discounts or adjustments in the Ordinary Course of Business consistent with past custom and practice), breach of warranty, tort, violation of Law, any action, suit or proceeding (including, without limitation, any proceeding in eminent domain or other similar proceeding affecting any portion of any real property), any writ, injunction, decree, order, judgment or litigation affecting the ownership, lease, occupancy or operation of any real property; (c) Liabilities relating to any of the proceedings set forth on Schedule 3.8; (d) Liabilities under the Contracts or Divisible Contracts, other than Liabilities for breaches thereof; and (e) Liabilities under this Agreement and the Ancillary Agreements. This Section 3.7(c) does not apply to any Liabilities arising in connection with Intellectual Property which is addressed exclusively in Section 3.14.

     Section 3.8 Litigation and Claims . Except as set forth on Schedule 3.8:

      (a) There is no material civil, criminal, investigative, appellate or administrative action, suit, demand, claim, hearing, proceeding or investigation pending, or to the Knowledge of Seller threatened, against or relating to Seller or any of its Affiliates in connection with the Transferred Assets, any of the assets of the Transferred Subsidiaries, the Business or the transactions contemplated hereby.

      (b) None of the Transferred Assets or any of the assets of the Transferred Subsidiaries is subject to any material order, writ, judgment, award, injunction or decree of any court or governmental or regulatory authority of competent jurisdiction or any arbitrator or arbitrators.

      Section 3.9 Taxes . Except as set forth on Schedule 3.9 or as would not have a Material Adverse Effect, (a) all Tax Returns with respect to the Business that are required to be filed on or before the date of Closing (taking into account extensions) and any other Tax Returns required to be filed by each Transferred Subsidiary on or before the date of Closing (taking into account extensions) have been or will have been duly filed and all amounts shown to be due and owing thereon have been or will have been duly and timely paid; (b) there is no outstanding audit examination, deficiency or litigation with respect to material Taxes involving any Transferred Subsidiary; (c) there is no request for a ruling or determination in respect of any Tax pending between any Transferred Subsidiary and any Taxing authority; (d) no Transferred Subsidiary has been a member of a group that files any Tax Return on a consolidated, combined, unitary or similar basis with Seller or any of its Affiliates; (e) on the Closing Date, no Transferred Subsidiary will be a party to any Tax sharing agreement; (f) there is no outstanding waiver of the statute of limitations with respect to Taxes relating to any Transferred Subsidiary; (g) there is no lien for Taxes upon any of the Transferred Assets or any of the assets of the Transferred Subsidiaries other than liens for Taxes that are not yet due and payable or for Taxes the validity or amount of which is being contested by Seller or one of its Affiliates in good faith by appropriate action; (h) no Taxing authority has asserted in writing to any Transferred Subsidiary that such Transferred Subsidiary was required to file a material Tax Return in any jurisdiction where the Transferred Subsidiary has not

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filed a Tax Return; and (i) all Taxes that are or were required to be withheld or collected with respect to the Business or by any Transferred Subsidiary have been duly withheld or collected and, to the extent required, have been paid to the appropriate Taxing authority.

     Section 3.10 Employee Benefits .

      (a) All material benefit and compensation plans, contracts, policies or arrangements covering Applicable Employees, including any trust instruments and insurance contracts forming a part thereof, any “employee benefit plans” within the meaning of Section 3(3) of ERISA, any material deferred compensation, stock option, stock purchase, stock appreciation rights, stock based, incentive, bonus, workers’ compensation supplement, short term disability, vacation and severance plans and all material employment, severance and change in control agreements, and all amendments thereto (the “ Benefit Plans ”), other than Benefit Plans maintained outside of the U.S. primarily for the benefit of Employees working outside of the U.S. (such plans hereinafter referred to as “ Non-U.S. Benefit Plans ”) and Benefit Plans that are individual arrangements, are listed on Schedule 3.10(a). Benefit Plans other than Non-U.S. Benefit Plans are hereinafter referred to as “ U.S. Benefit Plans ”. All Benefit Plans sponsored by any Transferred Subsidiary for the benefit of Applicable Employees are hereinafter referred to as “ Transferred Subsidiary Benefit Plans ”; all U.S. Benefit Plans that are Transferred Subsidiary Benefit Plans, if any, are identified as such on Schedule 3.10(a) (the “ U.S. Transferred Subsidiary Benefit Plans ”). Seller has delivered or made available to Buyer (A) with respect to each U.S. Benefit Plan a copy of, or a plan level summary describing the types of benefits provided under, such U.S. Benefit Plan and any amendments thereto, and, a copy of any summary plan descriptions and summaries of material modifications to any such plan required to be prepared under applicable Law, and (B) with respect to each U.S. Transferred Subsidiary Benefit Plan: (i) if required to be prepared under ERISA or the Code, a copy of the two most recent annual reports(including all required attachments, schedules and financial statements), and the two most recent actuarial reports; (ii) if the Benefit Plan is funded through a trust or any third-party funding vehicle, a copy of the trust or other funding agreement or document and the latest statement of assets and/or financial statements thereof; and (iii) a copy of the most recent favorable determination letter issued by the IRS with respect to each Benefit Plan intended to be qualified under Section 401(a) of the Code.

      (b) (i) Each U.S. Transferred Subsidiary Benefit Plan has been administered and complied in all material respects with its terms and all applicable Laws, or to the extent Section 409A of the Code applies to such plan, in reasonable good faith compliance in all material respects with the applicable requirements of Section 409A since January 1, 2005, (ii) no actions, suit, claims, litigation or disputes are pending, or to Seller’s Knowledge threatened, with respect to any U.S. Benefit Plan that would be material to the Business, and no audits, inquiries, reviews, proceedings or, to Seller’s Knowledge, investigations, involving any U.S. Benefit Plan that would be material to the Business are pending before the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity, (iii) each U.S.

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Transferred Subsidiary Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS that it is so qualified, and, to Seller’s Knowledge, nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of such qualification, and (iv) there are no outstanding liabilities for material taxes, penalties or fees with respect to any U.S. Transferred Subsidiary Benefit Plan.

      (c) Neither Seller nor any of its Affiliates has incurred or expects to incur any obligation to contribute to, or any withdrawal liability under Subtitle E of Title IV of ERISA with respect to, any U.S. Benefit Plan that is a “multiemployer plan” within the meaning of Section 3(37) of ERISA under Subtitle E of Title IV of ERISA (regardless of whether based on contributions of any of its Affiliates under Section 4001 of ERISA or Section 414 of the Code (an “ ERISA Affiliate ”)).

     (d) No notice of a “reportable event”, within the meaning of Section 4043 of ERISA for which the 30 day reporting requirement has not been waived or extended, other than pursuant to PBGC Reg. Section 4043.66 (“ Funding Waiver Reportable Event ”), has been required to be filed for any U.S. Benefit Plan which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA or by any ERISA Affiliate within the 24 month period ending on the date hereof. Schedule 3.10(d) contains a description of the facts concerning any Funding Waiver Reportable Event.

      (e) With respect to each of the U.S. Transferred Subsidiary Benefit Plans, as of the date hereof, all required contributions have been timely made and all obligations have been properly accrued and reflected on the books and records of the Business. As of the date hereof, none of the U.S. Benefit Plans has any risk of incurring liability under Title IV or Section 302 of ERISA that would be material to the Business. No U.S. Transferred Subsidiary Benefit Plan is a “multiemployer plan” within the meaning of Section 3(37) of ERISA.

      (f) The U.S. Transferred Subsidiary Benefit Plans have complied in all material respects with the requirements of Section 4980B of the Code.

      (g) Except as set forth on Schedule 3.10(g), no U.S. Benefit Plan exists that, as a result of the execution of this Agreement or the transactions contemplated thereby (whether alone or in connection with any subsequent event(s)), could result in the material increase, acceleration or provision of any payments, benefits or other rights to any Transferred Employee, whether or not any such payment, benefit or right would constitute a “parachute payment” within the meaning of Section 280G of the Code, or the immediate funding or financing of any compensation or benefits.

      (h) All Non-U.S. Benefit Plans comply in all material respects with the applicable Laws of the relevant jurisdiction (including any local regulatory or tax approval requirements), and the governing provisions of the relevant Non-U.S. Benefit Plan (hereinafter referred to as “ Applicable Local Law ”). As of the date hereof, there is no pending or, to the Knowledge of Seller, threatened material litigation relating to Non-U.S. Benefit Plans.

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All the Non-U.S. Benefit Plans which are intended, to the extent allowable under Applicable Local Law, to obtain tax exemption on contributions, benefits and/or invested assets under Applicable Local Law now meet, and since their inception have met, the requirements for such tax exemption under Applicable Local Law except as would not reasonably be likely to have a Material Adverse Effect. To Seller’s Knowledge, the tax exemption of no Non-U.S. Benefit Plan is the subject of examination by any Government Entity or pending cancellation. To Seller’s Knowledge, no event has occurred that would subject any party to the imposition of any material penalty with respect to the administration of any Non-U.S. Benefit Plan so far as it relates to Transferred Employees. With respect to each Non-U.S. Benefit Plan, the benefits to be provided under such plan or in respect of Transferred Employees which have accrued in accordance with Applicable Local Law prior to the date hereof (but excluding any severance or similar such benefits outside of the U.S.), have been paid and/or properly reflected on the books and records and other financial reports of Seller.

      Section 3.11 Labor . Except as set forth on Schedule 3.11(a)(i) with respect to the U.S. and except as set forth on Schedule 3.11(a)(ii) for other jurisdictions, neither Seller nor any of its Affiliates is a party to or bound by any material labor agreement, union contract or collective bargaining agreement respecting the Employees.

      (a) There is no pending, or to the Knowledge of Seller threatened, strike, walkout or other work stoppage or any union organizing effort by any of the Employees.

      (b) Except as set forth on Schedule 3.11(c), there is no unfair labor practice, charge or complaint against the Business pending, or to Seller’s Knowledge threatened, before the National Labor Relations Board or other Government Entity.

      Section 3.12 Compliance with Laws . (a) Except as disclosed on Schedule 3.12(a), the Business has been since January 1, 2004 and currently is being conducted in all material respects in compliance with all applicable Laws, (b) neither Seller nor any of its Affiliates has received any notice alleging any material violation under any applicable Law, and (c) the Business has all material Governmental Authorizations necessary for the conduct of the Business as currently conducted.

      Section 3.13 Environmental Matters . Except for the matters set forth on Schedule 3.13:

      (a) the Business as currently conducted and the Real Property are in compliance in all material respects with all applicable Environmental Laws;

      (b) the Business possesses all material permits, licenses, registrations, identification numbers, authorizations and approvals required under applicable Environmental Laws for the operation of the business as presently conducted and the Real Property, as presently conducted is in compliance in all material respects with all terms and conditions of such permits and licenses and has timely filed any application required for renewal of such material permits and licenses;

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      (c) during the past five years Seller has not received from any Person any written notice, demand, claim, letter or request for information, relating to any material violation or alleged material violation of or liability under any Environmental Law in connection with the Business;

      (d) there are no writs, injunctions, decrees, orders or judgments outstanding, or any actions, suits, proceedings or investigations pending or, to Seller’s Knowledge, threatened, relating to compliance with or liability under any Environmental Law affecting the Business;

      (e) there has been no transportation, release, discharge or disposal of any Hazardous Substance at the Real Property which has or is expected to result in material liability under Environmental Laws; and

      (f) Seller has made available to Buyer copies of any material reports, studies and assessments in its possession or control relating to the compliance with or liability under Environmental Laws of the Business and the Real Property.

      Notwithstanding any other representation and warranty in Article III, the representations and warranties contained in this Section 3.13 constitute the sole representations and warranties of Seller relating to any Environmental Law.

      Section 3.14 Intellectual Property . Except as set forth on Schedule 3.14, in all material respects, (a) Seller and/or its Affiliates own all the Scheduled Intellectual Property, free and clear of all Encumbrances, other than Permitted Encumbrances, (b) to the Knowledge of Seller, the Scheduled Intellectual Property is valid, subsisting and enforceable, (c) to the Knowledge of Seller, Seller and its Affiliates have the right to use the Transferred Intellectual Property and Transferred Subsidiary Intellectual Property as such Intellectual Property is currently used in the Business, (d) to the Knowledge of Seller, neither the conduct of the Business nor any of the products sold or services provided by Seller or any of its Affiliates in connection therewith, infringes upon or otherwise violates the Intellectual Property of any other Person, and no claim is pending or, to the Knowledge of Seller, threatened in writing since January 1, 2004, against Seller or any of its Affiliates alleging any of the foregoing, (e) to the Knowledge of Seller, no Person is engaging in any activity that infringes upon or otherwise violates in any material respect any Transferred Intellectual Property or Transferred Subsidiary Intellectual Property, (f) there is no litigation, opposition, cancellation, proceeding, objection or claim pending or, to the Knowledge of Seller, threatened in writing since January 1, 2004, against Seller or any of its Affiliates concerning the ownership, validity, registerability, enforceability or use of any Transferred Intellectual Property or Transferred Subsidiary Intellectual Property, and (g) Seller and its Affiliates have taken reasonable measures to protect the secrecy, confidentiality and value of the Trade Secrets that are included in the Transferred Intellectual Property or Transferred Subsidiary Intellectual Property.

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      Section 3.15 Contracts . (a) Schedule 3.15 sets forth a complete and accurate list of all of the following Contracts (each such Contract, a “ Material Contract ”):

           (i) any agreement involving annual revenues during the year ended December 31, 2005 of the Business in an amount in excess of $10,000,000;

           (ii) any sales representative, distribution or marketing agreement providing for annual payments during the year ended December 31, 2005 by Seller or any of its Affiliates relating to the Business of $10,000,000 or more;

           (iii) any agreement for the purchase of materials, supplies, goods, services, equipment or other assets involving annual payments during the year ended December 31, 2005 by Seller or any of its Affiliates relating to the Business of $7,500,000 or more;

           (iv) any lease of personal property providing for annual rental payments to or from Seller or its Affiliates relating to the Business in excess of $1,000,000;

           (v) any partnership, joint venture or other similar agreement or arrangement of Seller or its Affiliates;

           (vi) any agreement relating to the acquisition or disposition of any interest in another entity (whether by merger, sale of stock, sale of assets or otherwise);

           (vii) any agreement that limits the freedom of Seller or any of its Affiliates to compete in any line of business or with any Person or in any area, in each case, that would so limit the freedom of Buyer after the Closing Date;

           (viii) any Contract (or group of related Contracts) under which Seller or any of its Affiliates has created, incurred, assumed, or guaranteed any Indebtedness related to the Transferred Assets or Transferred Subsidiaries in excess of $1,000,000 or under which it has imposed an Encumbrance (other than a Permitted Encumbrance) on any of its assets, tangible or intangible;

           (ix) any Contract under which Seller or any of its Affiliates has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;

           (x) any commitment of Seller or any of its Affiliates to make a capital expenditure or to purchase any capital asset in excess of $5,000,000 Related to the Business;

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           (xi) any license agreement providing for annual payments during the year ended December 31, 2005 by Seller or its Affiliates relating to the Business in excess of $3,000,000.

      (b) Seller has delivered or made available to Buyer a correct and complete copy of each Material Contract (including all amendments thereto), except to the extent such delivery would constitute a breach of such Material Contract, in which event Seller has delivered to Buyer a true and correct summary of the material terms and conditions thereof (other than any material terms and conditions the summary of which would constitute a breach of such Material Contract). Each of the agreements, contracts, leases and subleases, purchase orders, tenders, arrangements, understandings, instruments, commitments and licenses set forth on Schedule 3.15 is in full force and effect and is enforceable against each party thereto in accordance with the express terms thereof. There does not exist under any Material Contract any material violation, breach or event of default, or alleged violation, breach or event of default, or event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder on the part of Seller or any of its Affiliates or, to the Knowledge of Seller, any other party thereto. There are no material disputes pending or threatened under any Material Contract.

      Section 3.16 Absence of Changes . Between October 1, 2006 and the date hereof, (a) Seller and its Affiliates have conducted the Business only in the Ordinary Course; and (b) the Business has not experienced any event or condition, and to Seller’s Knowledge no event or condition is threatened, that, individually or in the aggregate, has had or is reasonably likely to have, a Material Adverse Effect. Except as set forth on Schedule 3.16, since October 1, 2006, none of the actions or events prohibited or circumscribed by Section 5.2 have been taken or have occurred, except as expressly permitted by this Agreement. 

      Section 3.17 Sufficiency of Assets . Except for the services and assets set forth on Schedule 3.17, the Transferred Assets and the assets of the Transferred Subsidiaries, when taken together with any assets, services or rights to be provided by Seller or its Affiliates pursuant to the Ancillary Agreements, constitute all the assets that will be necessary for Buyer to continue to operate and conduct the Business immediately following the Closing in all material respects as currently conducted. The tangible assets included in such assets have been maintained substantially in accordance with normal industry practice, are in good operating condition (subject to normal wear and tear) and are suitable for the purposes for which they are presently used.

      Section 3.18 Title to Property . Except as set forth on Schedule 3.18, Seller and its Affiliates have, and at the Closing Seller and its Affiliates will transfer to Buyer or its Affiliates, (a) good and marketable fee simple title to, or subject to any required consents, a valid and binding leasehold interest in, the Owned Real Property and Leased Real Property, respectively, that are included in the Transferred Assets or any of the assets of the Transferred Subsidiaries and (b) good and valid title to the personal

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tangible property they own or lease that is included in the Transferred Assets or any of the assets of the Transferred Subsidiaries, in each case free and clear of all Encumbrances, except Permitted Encumbrances.

      Section 3.19 Real Property . Seller has delivered to Buyer complete and accurate copies of each of the Assigned Leases. Schedule 1.1(a)(i) lists all parcels of Leased Real Property. Schedule 1.1(a)(ii) lists all parcels of leased Transferred Subsidiary Real Property.

      (b) Schedule 1.1(e) lists all parcels of Owned Real Property, including a legal description thereof, except with respect to the Building 214 Facility and the parcels of Owned Real Property located in Windsor, Colorado, to the extent either such legal description has not been obtained by Seller as of the date hereof. Except as set forth or listed on Schedule 3.19, neither the Owned Real Property (or any portion thereof) nor the owned Transferred Subsidiary Real Property (or any portion thereof) is subject to any written or oral lease, sublease, license, sublicense or other occupancy agreement, and no Person other than Seller or its Affiliates occupies or has the legal right to use the Owned Real Property or the owned Transferred Subsidiary Real Property except with respect to any such agreements that have been disclosed to, and delivered to or made available to, Buyer.

      (c) There are no pending or, to the Knowledge of Seller, threatened appropriation, condemnation, eminent domain or like proceedings relating to the Owned Real Property, the owned Transferred Subsidiary Real Property or, to the Knowledge of Seller, the Leased Real Property or the leased Transferred Subsidiary Real Property, except as set forth on Schedule 3.19, or, in respect of proceedings commencing from and after the date hereof.

      (d) None of the Owned Real Property, the Transferred Subsidiary Real Property or the Leased Real Property have suffered any material damage by fire or other casualty which has not heretofore been repaired and restored in all material respects, except as set forth on Schedule 3.19 or, with respect to damage occurring from and after the date hereof, except for any such damage that would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.

      (e) Except for assessments occurring on a regular basis or in accordance with applicable Laws or as a result of the transactions described herein, to the Knowledge of Seller, there is no contemplated reassessment of any parcel of Owned Real Property that would materially adversely increase the real estate tax assessment for such parcel.

      (f) Neither Seller nor its Affiliates are obligated under or a party to, any option, right of first refusal or other contractual right or obligation to purchase, acquire, sell or dispose of any portion of the Owned Real Property or any interest therein.

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      (g) Other than those of the following, the breach of which would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect, (i) Seller or an Affiliate, as applicable, is in quiet, peaceful and exclusive possession of the Leased Real Property and the leased Transferred Subsidiary Real Property, except (solely with respect to the exclusivity of Seller’s possession) for those agreements, if any, that have been disclosed to and delivered or made available to Buyer, (ii) each Assigned Lease and each lease for any of the leased Transferred Subsidiary Real Property is in full force and effect, (iii) all rent and other sums and charges due and payable by Seller or its Affiliate, as lessee or sublessee thereunder, are current, (iv) Seller or its Affiliate, as the case may be, has complied in all material respects with the terms of each Assigned Lease and lease for any of the leased Transferred Subsidiary Real Property and (v) Seller or a Transferred Subsidiary has not received any notice of default from any of the landlords under any of the Assigned Leases or under a lease for any of the leased Transferred Subsidiary Real Property.

      Section 3.20 Warranties/Product Liability . Except as set forth on Schedule 3.20, as reflected or reserved against in the Historical Carve-Out Financial Statements or incurred since the date of the Historical Carve-Out Financial Statements in the Ordinary Course of Business and at a level consistent with past experience, (a) there is no notice, demand, claim, action, suit, inquiry, hearing, proceeding, notice of violation or investigation from, by or before any Governmental Entity relating to any product, including the packaging and advertising related thereto, designed, formulated, manufactured, processed, sold or placed in the stream of commerce by the Business or any services provided by the Business (a “ Product ”), or claim or lawsuit involving a Product which is pending or, to Seller’s Knowledge, threatened, by any Person, and (b) there has not been, nor is there under consideration by the Business, any Product recall or post-sale warning of a material nature conducted by or on behalf of the Business concerning any Product. All Products materially complied and comply with applicable Governmental Authorizations, contractual commitments, express and implied warranties and Laws, and there have not been and there are no material defects or deficiencies in such Products. The applicable standard terms and conditions of sale or lease of products sold or provided by Seller or any of its Affiliates prior to the Closing is generally not subject to any guaranty, standard warranty, or other indemnity beyond a term of 18 months.

      Section 3.21 Insurance . Schedule 3.21 of the Seller Disclosure Schedule lists all material insurance policies covering the properties, assets, employees and operations of the Business (including policies providing property, casualty, liability, and workers’ compensation coverage), and a description of each such policy, and also includes (a) a summary of the loss experience since January 1, 2004 related to the Business under each policy and (b) a statement describing each claim since January 1, 2004, to the extent such claims can be identified as being solely related to the Business. All of such policies or renewals thereof are in full force and effect. All premiums with respect to such policies that are currently due have been paid. Neither Seller nor any of its Affiliates has within the past three years (i) been in breach or default in any material

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respect (including with respect to the payment of premiums or the giving of notices) with respect to its obligations under any such insurance policies, and no event has occurred which, with notice or the lapse of time, would constitute such a breach or default in any material respect, or permit termination, modification or acceleration under such policies, (ii) repudiated any provision of any such insurance policies or (iii) been denied insurance coverage related to the Business.

      Section 3.22 Finders’ Fees . Except for Goldman, Sachs & Co. and Lazard, Freres & Co., LLC, whose fees will be paid by Seller, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Seller or any of its Affiliates who might be entitled to any fee or commission from Seller or any of its Affiliates in connection with the transactions contemplated hereby.

      Section 3.23 Customers and Suppliers . Schedule 3.23 accurately sets forth a list of the top ten (10) customers (the “ Top Customers ”) and suppliers (the “ Top Suppliers ”) of the Business by dollar volume of sales and purchases, respectively, for the fiscal year ended December 31, 2005. Neither Seller nor any of its Affiliates has received any written notice from any Top Supplier to the effect that such supplier will stop, decrease the rate of, or change the material terms (whether related to payment, price or otherwise) with respect to, supplying materials, products or services to the Business (whether as a result of the consummation of the transactions contemplated hereby or otherwise). Neither Seller nor any of its Affiliates has received any written notice from any Top Customer to the effect that such customer will stop, or materially decrease the rate of, purchasing services and/or products of the Business (whether as a result of the consummation of the transactions contemplated hereby or otherwise).

     Section 3.24 Affiliated Transactions . Except as set forth on Schedule 3.24, no Affiliated Person is party to any Material Contract or has any interest in any material property, asset or right used by, or necessary for, the Business or, since January 1, 2006, has received any funds in excess of $250,000 from or on behalf of the Business (other than compensation paid to employees of the Business in the Ordinary Course of Business). For purposes hereof, an “ Affiliated Person ” means (a) any officer or director of Seller or any of its Affiliates or any Person reporting directly to any officer or director of Seller or any of its Affiliates and (b) any immediate family member of any such Person, officer or director.

      Section 3.25 No Other Representations or Warranties . Except as otherwise provided in this Article III, the Transferred Assets and any of the assets of the Transferred Subsidiaries will be transferred to Buyer “AS IS”, “WHERE IS” and “WITH ALL FAULTS”, and Seller expressly disclaims all other representations and warranties, express or implied, with respect to the execution, delivery or performance of this Agreement, the Business, the Transferred Assets or any of the assets of the Transferred Subsidiaries or the Assumed Liabilities, including warranties of merchantability or fitness for a particular purpose and representations and warranties arising by course of dealing or

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performance, custom or usage in the trade or otherwise, notwithstanding the delivery or disclosure to Buyer or its representatives of any documentation or other information with respect to any one or more of the foregoing.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BUYER

      Buyer represents and warrants to Seller, as of the date hereof and as of the Closing, except as set forth on the Buyer Disclosure Schedule (each of which disclosures shall clearly indicate the Section, and, if applicable, the Subsections of this Article IV to which it relates), as follows:

      Section 4.1 Organization and Qualification . Buyer is a corporation duly organized, validly existing and in good standing under the laws of Delaware. Buyer has all requisite corporate power and authority to own and operate its respective properties and assets and to carry on its respective business as currently conducted. Buyer is duly qualified to do business and is in good standing in each jurisdiction where the ownership or operation of its respective properties and assets or the conduct of its respective business requires such qualification, except for failures to be so qualified or in good standing that would not, individually or in the aggregate, materially impair or delay Buyer’s ability to perform its obligations hereunder.

      Section 4.2 Corporate Authorization . Buyer has full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements has been duly and validly authorized and no additional corporate, shareholder or similar authorization or consent is required in connection with the execution, delivery and performance by Buyer of this Agreement or any of the Ancillary Agreements.

      Section 4.3 Consents and Approvals . (a) Except as set forth on Schedule 4.3(a), to the Knowledge of Buyer, no consent, approval, waiver, authorization, notice or filing is required to be obtained by Buyer or any of its Affiliates from, or to be given by Buyer or any of its Affiliates to, or made by Buyer or any of its Affiliates with, any Government Entity or Self-Regulatory Organization, in connection with the execution, delivery and performance by Buyer or any of its Affiliates of this Agreement and the Ancillary Agreements or the conduct of the Business by Buyer and its Affiliates immediately following the Closing.

      (b) Except as set forth on Schedule 4.3(b), no consent, approval, waiver, authorization, notice or filing is required to be obtained by Buyer or any of its Affiliates from, or to be given by Buyer or any of its Affiliates to, Buyer or any of its Affiliates with, any Person which is not a Government Entity or Self-Regulatory

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Organization, in connection with the execution, delivery and performance by Buyer or any of its Affiliates of this Agreement and the Ancillary Agreements.

      Section 4.4 Non-Contravention . The execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements, and the consummation of the transactions contemplated hereby and thereby, do not and will not (a) violate any provision of the certificates of incorporation, bylaws or other organizational documents of Buyer or any of its Affiliates, (b) except as set forth on Schedule 4.3(b) of the Buyer Disclosure Schedule, conflict with, or result in the breach of, or constitute a default under, or result in the termination, right of cancellation, modification or acceleration (whether after the filing of notice or the lapse of time or both) of any right or obligation of Buyer or any of its Affiliates under, or result in a loss of any benefit to which Buyer or any of its Affiliates is entitled under, any material Contract, or result in the creation of any material Encumbrance upon any of the Transferred Assets or any of the assets of the Transferred Subsidiaries, or (c) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings set forth on Schedules 4.3(a) and 4.3(b) of the Buyer Disclosure Schedule, or required to be made or obtained by Buyer, violate or result in a breach of or constitute a default under any Law to which Buyer or any of its Affiliates is subject, or under any material Governmental Authorization.

      Section 4.5 Binding Effect . This Agreement, when executed and delivered by Seller, and each of the Ancillary Agreements, when executed and delivered by Seller and its Affiliates parties thereto, will constitute a valid and legally binding obligation of Buyer enforceable against it, subject to bankruptcy, insolvency, reorganization, moratorium, or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, in accordance with its terms.

      Section 4.6 Finders’ Fees . Except for Credit Suisse Securities (USA) LLC, whose fees will be paid by Buyer , there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Buyer or any Affiliate of Buyer who might be entitled to any fee or commission from Buyer in connection with the transactions contemplated hereby.

      Section 4.7 Financing . Buyer has delivered to Seller true and correct copies of (a) the commitment letter dated January 9, 2007 from Credit Suisse, Credit Suisse Securities (USA) LLC and Goldman Sachs Credit Partners L.P. to Buyer (the “ Debt Financing Commitments ”), pursuant to which the financing parties thereto have agreed to lend the amounts set forth therein (the “ Debt Financing ”), and (b) the equity commitment letter dated January 9, 2007 from Onex Partners II LP to Buyer (the “ Equity Financing Commitments ” and together with the Debt Financing Commitments, the “ Financing Commitments ”), pursuant to which Onex Partners II LP has committed to invest the amounts set forth therein (the “ Equity Financing ” and together with the Debt Financing, the “ Financing ”). Each of the Financing Commitments is valid and in full force and effect and the respective commitments contained therein have not been

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withdrawn or rescinded in any respect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitments. Buyer has fully paid any and all commitment fees or other fees required by the Commitment Letters to be paid as of the date of this Agreement. Subject to receipt in full of the financing contemplated by the Financing Commitments, Buyer will have on the Closing Date the financial ability to pay the aggregate purchase price payable by Buyer to Seller pursuant to Section 2.5 and for Buyer to pay Buyer’s fees and expenses in connection with the Transaction. As of the date of this Agreement, Buyer does not have any reason to believe, after due inquiry, that any of the conditions to the Financing will not be satisfied or that the Financing will not be available on the Closing Date, provided that no representation or warranty is made as to any condition to the Financing or risk that the Financing will not be available to the extent that such condition or risk relates to the Business, the Transferred Assets or Assumed Liabilities.

      Section 4.8 Litigation and Claims . There are no civil, criminal or administrative actions, suits, demands, claims, hearings, proceedings or investigations pending or, to the Knowledge of Buyer, threatened against Buyer or any of its Affiliates that, individually or in the aggregate, would impair or delay the ability of Buyer to effect the Closing. Neither Buyer nor any of its Affiliates is subject to any order, writ, judgment, award, injunction or decree of any court or governmental or regulatory authority of competent jurisdiction or any arbitrator or arbitrators that, individually or in the aggregate, would impair or delay the ability of Buyer to effect the Closing. As of the date of this Agreement, there are no administrative actions, suits, demands, claims, hearings, proceedings or investigations by or against Buyer or any of its Affiliates pending or, to the Knowledge of Buyer, threatened, which would affect the legality, validity or enforceability of any Financing Commitment.

      Section 4.9 No Other Representations or Warranties . Except for the representations and warranties contained in this Article IV, neither Buyer nor any other Person makes any other express or implied representation or warranty on behalf of Buyer and Buyer expressly disclaims all other representations and warranties, express or implied, including representations and warranties arising by course of dealing or performance, custom or usage in the trade or otherwise, notwithstanding the delivery or disclosure to Seller or its representatives of any documentation or other information with respect to any one or more of the foregoing.

      Section 4.10 Subsidiaries . Set forth on Schedule 4.10 is a complete and accurate list of each subsidiary, whether direct or indirect, of Buyer, together with its jurisdiction of organization and its authorized and outstanding capital stock or other equity interests as of the date hereof.

      Section 4.11 Business of Buyer . As of the date hereof, to the Knowledge of Buyer, neither Buyer nor any of its Affiliates derives any revenue in the

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lines of business indicated in the NAICS Codes listed in Schedule 4.11 or is party to, or is negotiating, a contract to acquire a Person that derives revenue in such lines of business.

ARTICLE V

COVENANTS

     Section 5.1 Access and Information .

      (a) From the date hereof until the Closing, subject to any applicable Laws, Seller shall, and shall cause its Affiliates to: (i) afford Buyer and its representatives (including representatives of entities providing or arranging financing for Buyer) reasonable access, during regular business hours and upon reasonable advance notice, to the Employees, the Business, Business Books and Records and Transferred Assets, (ii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information that is available with respect to the Business as Buyer from time to time reasonably requests, (iii) instruct the Employees, its counsel and financial advisors to cooperate with Buyer in its investigation of the Business, and (iv) otherwise cooperate and assist, to the extent reasonably requested by Buyer, with Buyer’s investigation of the Business and the Transferred Assets; provided , however , that in no event shall Buyer have access to any data, information or documentation that (w) based on reasonable advice of Seller’s counsel, would create any potential Liability under applicable Laws, including U.S. Antitrust Laws, Non-U.S. Competition Law or other similar Law, or would destroy any legal privilege, (x) in the reasonable judgment of Seller, would (A) result in the disclosure of any trade secrets of third parties or (B) violate any obligation of Seller or any Affiliate with respect to confidentiality or data protection Laws, or (y) is data, information or documentation that (I) is excluded from the definition of “Business Books and Records” set forth in Section 1.1 or (II) relate solely to any Excluded Assets, Excluded Liabilities or any business of Seller or any of its Affiliates other than the Business; it being understood that Buyer shall reimburse Seller promptly for reasonable and documented out-of-pocket expenses it incurs in complying with any such request by or on behalf of Buyer; and it being further understood that any access shall be at the risk of Buyer and its representatives and agents, and in connection therewith, Buyer hereby agrees to indemnify and hold harmless the Seller Indemnified Parties with respect to any Losses resulting from or arising out of such access. All requests made pursuant to this Section 5.1(a) shall be directed to an officer of Seller or such Person or Persons as may be designated by Seller. All information received pursuant to this Section 5.1(a) shall be governed by the terms of the Confidentiality Agreement.

      (b) Following the Closing and until such time as any applicable statute of limitations (including periods of waiver) has run, Buyer and any of its Affiliates agree to retain all Business Books and Records included in the Transferred Assets in existence on the Closing Date, and to the extent permitted by Law and subject to confidentiality obligations, grant to Seller and any of its Affiliates and representatives, during regular

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business hours, upon reasonable advance notice and subject to reasonable rules and regulations, the right, at the expense of Seller (i) to inspect and copy the Business Books and Records included in the Transferred Assets that are in the possession of Buyer or any of its Affiliates or (ii) to have personnel of Buyer or any of its Affiliates made available to Seller or any of its Affiliates or have Buyer and any of its Affiliates otherwise cooperate to the extent reasonably necessary, including in connection with (A) preparing and filing Tax returns and/or any Tax inquiry, audit, investigation or dispute or (B) any litigation or investigation.

      (c) Following the Closing, Seller and its Affiliates shall retain all Business Books and Records included in the Excluded Assets in existence on the Closing Date consistent with its retention policies as in effect as of the date hereof. Following the Closing and until such time as any applicable statute of limitations (including periods of waiver) has run, Seller and its Affiliates agree, to the extent permitted by Law and subject to confidentiality obligations, to grant to Buyer and its representatives, during regular business hours, upon reasonable advance notice and subject to reasonable rules and regulations, the right, at the expense of Buyer, (i) to inspect and copy any Business Books and Records included in the Excluded Assets that are in the possession of Seller or any of its Affiliates or (ii) to have personnel of Seller or any of its Affiliates made available to Buyer or have Seller and any of its Affiliates otherwise cooperate to the extent reasonably necessary, including in connection with (A) preparing and filing Tax returns and/or any Tax inquiry, audit, investigation or dispute or (B) any litigation or investigation. Notwithstanding anything to the contrary herein, to the extent Buyer requests in writing that Seller and its Affiliates retain specified Business Books and Records for a specified period in order to comply with any change in Law relating to the Business, Seller and its Affiliates shall retain such Business Books and Records for such period irrespective of Seller’s retention policies as in effect as of the date hereof.

      (d) For the period commencing on the Closing Date and ending six (6) months thereafter, Buyer shall have reasonable access to all technical notebooks/ databases/experimental chemicals existing on the Closing Date relating to the Business that are not included in the Transferred Assets with a right to copy relevant portions of such notebooks or use relevant portions of such databases and chemicals, for the period commencing on the six-month anniversary of the Closing and ending on the 12-month anniversary thereof, up to 10 of Buyer’s employees shall be permitted reasonable access as set forth above. Thereafter, such items existing on the Closing Date shall be provided by Seller to Buyer’s employees upon reasonable request of Buyer to Seller and Buyer shall reimburse Seller for its reasonable costs in providing such access.

      Section 5.2 Conduct of Business . (a) During the period from the date hereof to the Closing, except as otherwise contemplated by this Agreement, as set forth on Schedule 5.2 of the Seller Disclosure Schedule or as Buyer otherwise agrees in writing in advance, Seller shall conduct, and shall cause its Affiliates to conduct, the Business in the Ordinary Course and use its commercially reasonable efforts, to preserve intact the Business and its relationships with its customers, suppliers, creditors and employees.

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Without limiting the generality of the foregoing, during the period from the date hereof to the Closing, Seller shall, and shall cause each of its Affiliates to:

           (i) operate the Business’ cash management in the Ordinary Course in accordance with past practices, including the payment of Indebtedness, collection of receivables, purchase of inventory, provision of services, payment of payables and incurrence of and payment or financing of capital expenditures;

           (ii) maintain the Transferred Assets and the assets of the Transferred Subsidiaries in a state of repair and condition consistent with the Ordinary Course;

           (iii) maintain all Books and Records in the Ordinary Course; and

           (iv) diligently pursue effectuating the subdivision of the Building 214 Facility in accordance with the drawing set forth as part of Schedule1.1(e), provided that Buyer shall reasonably cooperate with Seller in effectuating the foregoing.

      (b) During the period from the date hereof to the Closing, except as otherwise expressly contemplated by this Agreement or any Ancillary Agreement or as Buyer shall otherwise consent (such consent not to be unreasonably withheld or delayed (except for subsections (ii), (iii), (vi), (vii), (x), (xiv), (xv) and (xx) below, and with respect to the foregoing subsections only, subsection (xxiii), for which Buyer may withhold its consent in its sole discretion)) or as set forth on Schedule 5.2 of the Seller Disclosure Schedule, Seller shall not, and shall cause each of its Affiliates not to, except to the extent such failure would violate applicable Law, with respect to the Business:

           (i) incur, create or assume any Encumbrance on any of its assets other than a Permitted Encumbrance;

           (ii) sell, lease, license, transfer or dispose of any assets with a fair market value in excess of $1,000,000 in the aggregate, other than sales of inventory in the Ordinary Course of Business and other than sales and dispositions of obsolete Equipment;

           (iii) sell, lease, sublease, license, transfer or dispose of any portion of the Owned Real Property;

           (iv) terminate, amend or modify in any manner any Assigned Lease other than pursuant to its terms or in the Ordinary Course of Business or enter into any new lease, sublease or occupancy agreement except in the Ordinary Course of Business;

           (v) enter into any contract, arrangement or commitment that, had it been in place as of the date hereof would have been a Material Contract, or

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terminate or materially amend any Material Contract, or make any capital expenditure related to the Business, in each case other than any expenditure, contract or any extensions thereof which involve $5,000,000 or less and which are entered into or modified in the Ordinary Course of Business;

           (vi) amend in any material respect the certificate of incorporation, by-laws or other organizational documents of the Transferred Subsidiaries;

           (vii) issue, sell, pledge, transfer (other than to Seller or any Subsidiary of Seller), dispose of or Encumber any shares of the Transferred Subsidiaries’ capital stock or securities convertible into or exchangeable for any such shares, or any rights, warrants, options, calls or commitments to acquire any such shares or other securities;

           (viii) split, combine, subdivide, reclassify or redeem, or purchase or otherwise acquire, any outstanding securities of the Transferred Subsidiaries (other than any acquisition by Seller or any Subsidiary of Seller);

           (ix) (i) dispose of or permit to lapse any rights in, to or for the use of any Transferred Intellectual Property or Transferred Subsidiary Intellectual Property, other than in the Ordinary Course of Business (subject to clause (ii) immediately following) or as required by Law, or (ii) license, transfer, agree not to assert or otherwise grant any rights in or with respect to any Transferred Intellectual Property or Transferred Subsidiary Intellectual Property, except as permitted under the Intellectual Property Agreement as if such agreement had been in effect from and after the date hereof;

           (x) assume or enter into any labor or collective bargaining agreement relating to the Business other than as required by Law;

           (xi) (i) increase the compensation of any of the Employees, except in the Ordinary Course of Business or pursuant to the terms of agreements or plans currently in effect and, as applicable, listed on Schedule 3.10(a) of the Seller Disclosure Schedule or (ii) hire any employee for the Business with annual remuneration in excess of $300,000;

           (xii) make any material loans, advances or capital contributions to, or investments in, any other Person (other than customary loans or advances to employees in amounts not material to the maker of such loan or advance and other than to any Seller Subsidiary in the Ordinary Course);

           (xiii) settle any claims, actions, arbitrations, disputes or other proceedings that would result in Seller or any of its Affiliates being enjoined in any respect with respect to the Transaction or the Business;

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           (xiv) accelerate the delivery or sale of products or the incurrence of capital expenditures or offer discounts on the sale of products or premiums on the purchase of raw materials other than in the Ordinary Course of Business;

           (xv) permit any Transferred Subsidiary to adopt a plan of complete or partial liquidation or authorize or undertake a dissolution, consolidation, restructuring, recapitalization or other reorganization to the extent, in each case, inconsistent with the consummation of the Transaction, other than the liquidation or dissolution of a Transferred Subsidiary that does not contain any assets Related to the Business or an equity interest in any Transferred Subsidiary that contains assets Related to the Business;

           (xvi) make or rescind any election relating to Taxes of any Transferred Subsidiary in a manner that is inconsistent with prior practice; or (ii) make any change in any Transferred Subsidiary’s method of accounting, keeping of books of account, accounting practices, or material method of Tax accounting, unless required by GAAP (under applicable authoritative accounting pronouncements) or applicable Law;

           (xvii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein (other than any interest in a Transferred Subsidiary);

           (xviii) cancel or compromise any material debt or claim or waive any rights of material value to the Business without the Business receiving a realizable benefit of similar or greater value, or voluntarily suffer any material loss;

           (xix) create, incur or assume any Indebtedness that will not be satisfied or discharged at or prior to the Closing;

           (xx) institute any material increase in, enter into, adopt, terminate or materially amend any profit sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, severance, termination, welfare or other employee benefit plan with respect to employees of the Business, other than in the Ordinary Course of Business, as required by any such existing plan, or pursuant to any existing employment or collective bargaining agreement or by Law, provided, that Seller and its Affiliates shall take all necessary action to cause the Transferred Subsidiaries to terminate participation in all applicable Benefit Plans other than the Transferred Subsidiary Benefit Plans immediately prior to the Closing;

           (xxi) change the manner in which Seller or any of its Affiliates provides warranties, discounts, credits, accommodations or other concessions to direct customers of the Business other than in the Ordinary Course;

           (xxii) terminate or permit the lapse of any material insurance policies (unless replaced with a comparable insurance policy); or

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           (xxiii) authorize or enter into any agreement or commitment with respect to any of the foregoing.

     Section 5.3 Commercially Reasonable Efforts .

      (a) Seller and Buyer shall cooperate and use commercially reasonable efforts to fulfill as promptly as practicable the conditions precedent to the other party’s obligations hereunder, including securing as promptly as practicable all consents, approvals, waivers and authorizations required in connection with the transactions contemplated hereby. Without limiting the generality of the foregoing, subject to Section 2.11, neither Seller nor Buyer shall be required to pay any money or to pay or agree to any other consideration or condition in connection with obtaining the consent, approval, waiver or authorization of any Person that is not a Governmental Entity. To the extent that, as an accommodation to Buyer and with Buyer’s prior written consent, Seller incurs costs that Buyer otherwise would have to incur in order to secure any authorization, consent, waiver, license or approval, Buyer shall promptly reimburse Seller for any such costs that are invoiced by Seller to Buyer.

      (b) Without limiting the generality of the foregoing, Seller shall use commercially reasonable efforts to separate, to the extent reasonably practicable, prior to the Closing the Business Books and Records from those Books and Records that relate to any Excluded Assets or Excluded Liabilities or relate to any business of Seller or any of its Affiliates other than the Business. For the avoidance of doubt, Seller shall be deemed to use “commercially reasonable efforts” for purposes of the prior sentence if Seller engages in the separation activities set forth on Schedule 5.3(b).

      (c) Without limiting the generality of the foregoing, Buyer and Seller will make all filings and submissions required by U.S. Antitrust Laws and for the purpose of obtaining the Non-U.S. Merger Clearances as soon as practicable after the date of signing of this Agreement or, if applicable, after determination by the parties, as soon as reasonably practicable thereafter and promptly file any additional information requested as soon as practicable after receipt of such request therefor and promptly file any other information that is necessary, proper or advisable to permit consummation of the Transaction. Buyer shall pay the filing fee under the HSR Act.

      (d) Seller and Buyer shall cooperate with each other and shall furnish to the other party all information necessary or desirable in connection with making any filing under the HSR Act and for any application or other filing to be made pursuant to U.S. Antitrust Laws and in connection with the Non-U.S. Merger Clearances and in connection with resolving any investigation or other inquiry by any Governmental Entity under any competition Laws with respect to the transactions contemplated by this Agreement (all such filings, the “ Antitrust Filings ”). Notwithstanding the foregoing, to the extent that any such information consists of confidential information or business secrets, the party otherwise required to furnish such confidential information or business secrets in accordance with the sentence immediately foregoing may withhold it and notify

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the other party of the existence of such confidential information or business secrets, describing in reasonable detail the reason such confidential information or business secrets are treated as such, and, to the extent that the other party reasonably determines that such confidential information or business secrets, or any portion thereof, must be furnished to such other party because they will be required by such other party in connection with making the Antitrust Filings (the extent of such confidential information or business secrets, the “ Reasonably Required Confidential Information ”), the furnishing party shall be required to furnish only such Reasonably Required Confidential Information to the other party’s outside antitrust counsel, but only if such outside antitrust counsel enters into an agreement reasonably satisfactory to the furnishing party to keep such Reasonably Required Confidential Information confidential, not to disclose it to any person (including its client and its client’s transactional counsel (even if within the same law firm as antitrust counsel)) and to use such Reasonably Required Confidential Information solely in connection with the Antitrust Filings. Each of the parties shall promptly inform the other party of any communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filings or any such transaction. Neither Seller nor Buyer shall participate in any meeting or substantive conversation with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other party prior notice of and reasonable opportunity to participate in the meeting or substantive conversation unless such Governmental Entity objects, provided, however that if a Governmental Entity objects to the other party’s participation in the meeting or substantive conversation, the party that does participate in the meeting or substantive conversation shall inform the other party that such a meeting or conversation took place and provide a summary of such meeting or conversation. The parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with all meetings, actions and proceedings under or relating to the HSR Act, the Non-U.S. Merger Clearances or other competition Laws (including, with respect to making a particular filing, by providing copies of all such documents (which may be redacted to exclude confidential information and business secrets) to the non-filing party and their advisors prior to filing and, if requested, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith).

      (e) During the period from the date hereof to the Closing Date, Buyer agrees not to enter into, or permit any of its Affiliates (excluding any Affiliate, other than Onex Corporation, that has outstanding publicly-traded equity securities and the Subsidiaries of such Affiliates) to enter into, any transaction, or any contract to effect any transaction (including any merger or acquisition), that would cause the representation and warranty set forth in Section 4.11 not to be true and correct assuming such representation and warranty is read without giving effect to the words “As of the date hereof,” contained therein.

      (f) In the event that Buyer or any of its Affiliates enters into any transaction, or any contract to effect any transaction (including any merger or acquisition)

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(i) before the date of this Agreement that causes the representation and warranty contained in Section 4.11 to be inaccurate (assuming such representation and warranty is read without giving effect to the words “to the Knowledge of Buyer” contained therein) or (ii) between the date of this Agreement and the Closing that would cause the representation and warranty contained in Section 4.11 to be inaccurate (assuming that such representation and warranty were made on the date of such contract or transaction and is read without giving effect to the words “to the Knowledge of Buyer” contained therein), and in either case entry into such transaction or contract materially delays or prevents the consummation of the Transaction under any antitrust, competition or trade regulation or law, Buyer agrees to, and to cause all of its Affiliates (excluding any Affiliate that controls Onex Corporation and any Affiliate, other than Onex Corporation, that has outstanding publicly-traded equity securities and the Subsidiaries of such Affiliates) to take any and all steps necessary to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation Law that may be asserted as a result of such breach, so as to enable the parties hereto to close the Transaction as promptly as possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture or disposition of such of its or its Affiliates’ (excluding any Affiliate that controls Onex Corporation and any Affiliate, other than Onex Corporation, that has outstanding publicly-traded equity securities and the Subsidiaries of such Affiliates) assets, properties or businesses or of the Transferred Assets to be acquired by it pursuant hereto, and the entry into such other arrangements, as are necessary or reasonably advisable in order to avoid the entry of and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order or decision in any suit or proceeding, in each case, except as would (i) individually or in the aggregate result in a Material Adverse Effect or materially impair the benefits of the Transaction to be realized by Buyer or (ii) require Buyer to hold separate a material portion of the Business. In addition, Buyer shall use its reasonable efforts to defend through litigation on the merits any claim asserted in court by any party in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the Closing from occurring as promptly as practicable.

      Section 5.4 Tax Matters . For purposes of this Section 5.4 and Se