ASSET PURCHASE AGREEMENT

Asset Purchase Agreement

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C. R. Bard, Inc. | ConMed Corporation

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Title: ASSET PURCHASE AGREEMENT
Governing Law: New York Date: 11/9/2004
Industry: Medical Equipment and Supplies Law Firm: Simpson Thacher & Bartlett LLP Sector: Healthcare

Exhibit 2.1

ASSET PURCHASE AGREEMENT

between

C. R. Bard, Inc.

and

ConMed Corporation

Dated as of August 18, 2004

TABLE OF CONTENTS

	Page
ARTICLE I PURCHASE AND SALE OF ASSETS		1
1.1. Assets; Liabilities		1
1.2. Assumption of Liabilities; Purchase Price		9
1.3. Adjustment to Purchase Price		10

ARTICLE II CLOSING		14
2.1. Time and Place		14
2.2. Deliveries by Seller		14
2.3. Deliveries by Buyer		15

ARTICLE III REPRESENTATIONS AND WARRANTIES		16
3.1. Representations and Warranties of Seller		16
3.2. Representations and Warranties of Buyer		30
3.3. Survival of Representations and Warranties		34

ARTICLE IV COVENANTS		35
4.1. Access to Information Concerning Properties and Records		35
4.2. Conduct of the Business Prior to the Closing Date		35
4.3. Antitrust Laws		37
4.4. Further Actions		38
4.5. Covenant Not to Compete		42
4.6. Use of Names and Logos		44
4.7. Notification of Certain Matters		45
4.8. Intellectual Property License to Seller		46
4.9. Intellectual Property License to Buyer for Eye-Wire		47
4.10. Intellectual Property License to Buyer for Licensed Products		47
4.11. Best Efforts		48
4.12. Removal of Assets		48
4.13. Seller to Retain Physical Possession of Certain Purchased Assets		49
4.14. Non-Solicitation		49
4.15. Data Transfer		50
4.16. Customer Notification		51
4.17. Release of Employee Agreements		51
4.18. Transition Arrangement		51

ARTICLE V CONDITIONS PRECEDENT		52
5.1. Conditions Precedent to Obligations of Parties		52
5.2. Conditions Precedent to Obligation of Buyer		53
5.3. Conditions Precedent to Obligation of Seller		54


ARTICLE VI PROVISIONS AS TO TAX MATTERS				55
6.1. Transfer Taxes				55
6.2. Allocation of Purchase Price				56

ARTICLE VII LABOR MATTERS, EMPLOYEE RELATIONS AND BENEFITS				56
7.1. Scheduled Employees/Transferred Employees				56
7.2. Benefits for Transferred Employees				63
7.3. Severance Policy and Other Agreements				66
7.4. 2004 Bonus				67
7.5. Credit for Deductibles				68
7.6. Seller and Subsidiary Plans				69
7.7. Employee Notification Requirements				69
7.8. No Third Party Beneficiaries				71

ARTICLE VIII INDEMNIFICATION				72
8.1. Indemnification				72
8.2. Procedure				74
8.3. Limitations on Indemnification				75
8.4. Exclusive Remedy				78
8.5. Time Period				79
8.6. Adjustments to Purchase Price				79

ARTICLE IX MISCELLANEOUS				79
9.1. Termination and Abandonment				79
9.2. Fees and Expenses				81
9.3. Notices				81
9.4. Entire Agreement				82
9.5. Binding Effect; Benefit				83
9.6. Assignability				83
9.7. Amendment and Modification; Waiver				84
9.8. Public Announcements				84
9.9. Specific Performance				84
9.10. Bulk Sales Law				85
9.11. Section Headings				85
9.12. Counterparts				85
9.13. Applicable Law				85
9.14. Submission to Jurisdiction				85
9.15. Severability of Provisions				86
9.16. Schedules				86
9.17. Certain Defined Terms				87

SCHEDULES


Schedule 1.1(a)(vii)			Intellectual Property

Schedule 1.1(a)(ix)			Other Assets

Schedule 1.1(b)(ix)			Excluded Contracts

Schedule 1.3(a)			Matters with respect to the Initial Statement of Assets and
			Liabilities, Preliminary Closing Statement of Assets and Liabilities
			and Final Statement of Assets and Liabilities

Schedule 3.1(c)			Conflicts

Schedule 3.1(d)			Preparation of Initial Statement of Assets and Liabilities

Schedule 3.1(e)			Material Adverse Effect

Schedule 3.1(f)(i)			Taxes

Schedule 3.1(f)(ii)			Tax Audits

Schedule 3.1(g)			Title

Schedule 3.1(h)			Material Contracts

Schedule 3.1(i)			Legal Proceedings

Schedule 3.1(k)			Regulatory

Schedule 3.1(m)			Intellectual Property

Schedule 3.1(n)(i)			Employee Agreements and Benefit Plans

Schedule 3.1(n)(iv)			Tax Qualified Benefit Plans

Schedule 3.1(n)(v)			ERISA

Schedule 3.1(n)(vi)			Employee Benefits Claims

Schedule 3.1(n)(vii)			Payments under Benefit Plans

Schedule 3.1(n)(viii)			Multiemployer Plans

Schedule 3.1(n)(ix)			ERISA Liability

Schedule 3.1(p)(i)			Completeness of the Assets

Schedule 3.1(p)(ii)			Excluded Machinery, Tools and Equipment

Schedule 4.2			Conduct of the Business

Schedule 4.8			Licensed Patents

Schedule 4.13			Retained Assets

Schedule 7.1(a)(i)			Scheduled Employees

Schedule 7.1(a)(ii)			Glens Falls Employees

Schedule 7.3(b)			Severance and Employment Agreements

EXHIBITS


Exhibit A			Initial Statement of Assets and Liabilities

Exhibit B			Seller Severance Plan

Exhibit C			License and Supply Agreement (metal stents)

Exhibit D			License and Supply Agreement (biopsy kits)

Exhibit E			Supply Agreement (snares)

Exhibit F			Partial Asset Sale Agreement

Exhibit G			Sublease Agreement

Exhibit H			Transition and Supply Agreement

ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT, dated as of August 18, 2004, between C. R. Bard, Inc., a corporation organized and existing under the Laws of the State of New Jersey (“ Seller “), and ConMed Corporation, a corporation organized and existing under the Laws of the State of New York (“ Buyer “). All capitalized terms used herein but not defined previously are defined in Section 9.17.

Seller and its Subsidiaries are engaged in, among other things, the design and development, manufacture, production, marketing and sale of Endoscopic Gastrointestinal Products and Pulmonary Bronchoscopy Products as well as research related exclusively thereto (the “ Business “).

Seller and Buyer desire to enter into the other on-going and transitional arrangements contemplated hereby.

Upon the terms and subject to the conditions set forth herein, the parties hereto agree as follows:

ARTICLE I

PURCHASE AND SALE OF ASSETS

1.1. Assets; Liabilities.

(a) Asset Purchase . Except as otherwise provided in Section 1.1(b), upon the terms and subject to the conditions of this Agreement, at the Closing (or the French Closing in the case of Assets which are French Assets), Seller shall, or shall cause its Subsidiaries to, sell, convey, assign, transfer and deliver to Buyer and/or its Designees, and Buyer and/or its Designees shall purchase, acquire and accept from Seller or its Subsidiaries, as applicable, all of the Seller’s and its Subsidiaries’ right, title and interest as of the Closing Date (or the French Closing in the case of Assets which are French Assets) in and to all of the assets, wherever located, as set forth in clauses (i)-(ix) below, without duplication (such right, title and interest in and to such assets being sold, conveyed, assigned transferred and delivered to Buyer and/or its Designees referred to collectively as the “ Assets ”):

(i) the assets reflected on the Final Statement of Assets and Liabilities;

(ii) all packaging materials to the extent used or held for use exclusively in connection with the Business on the Closing Date (or the French Closing Date in the case of the foregoing to the extent that the foregoing is a French Asset);

(iii) to the extent transferable in accordance with applicable Laws, all records, data (whether in hard copy or computer form), customer lists, vendor lists and service provider lists used or held for use exclusively in connection with the Business on the Closing Date (or the French Closing Date in the case of the foregoing to the extent that the foregoing is a French Asset);

(iv) all equipment, furniture, furnishings, machinery, tools and other tangible personal property which are used exclusively in connection with the Business on the Closing Date (or the French Closing Date in the case of the foregoing to the extent that the foregoing is a French Asset) and all machinery, tools and equipment necessary for the manufacturing of the Products as manufactured on the Closing Date (or the French Closing Date in the case of the foregoing to the extent that the foregoing is a French Asset), including, with respect to such manufacturing equipment, machinery and tools, the related most current maintenance schedule and maintenance history;

(v) To the extent related to the Business on the Closing Date (or the French Closing Date in the case of the foregoing to the extent that the foregoing is a French Asset), Contracts to which Seller or one of its Subsidiaries is a party and which relate exclusively to the Endoscopic Technologies Division of Seller (subject to Section 4.4(c));

(vi) to the extent transferable, all licenses, permits, consents, approvals, authorizations, qualifications, orders or franchises issued by any Governmental Authority which relate exclusively to the Business on the Closing Date (or the French Closing Date in the case of the foregoing to the extent that the foregoing is a French Asset) (the “ Permits ”);

(vii) subject to Section 4.8, the Intellectual Property used exclusively in the Business on the Closing Date (or the French Closing Date in the case of the foregoing to the extent that the foregoing is a French Asset), including the items specifically identified in Schedule 1.1(a)(vii) hereto, including, with respect to any trademarks or related rights, the goodwill of the Business appurtenant thereto or symbolized thereby (“ Transferred Intellectual Property ”);

(viii) all research related exclusively to the Products as of the Closing Date (or the French Closing Date in the case of the foregoing to the extent that the foregoing is a French Asset); and

(ix) the other assets identified in Schedule 1.1(a)(ix) , except to the extent that any such assets have been disposed of not in violation of the provisions of Section 4.2 since the date of this Agreement.

(b) Excluded Assets . Notwithstanding any provision in this Agreement or the Ancillary Agreements, it is expressly understood and agreed that all of the Seller’s and its Subsidiaries’ right, title and interest as of the Closing Date in and to the following assets, properties, rights, goodwill, privileges, claims and contracts of every kind and nature, real personal and mixed, tangible or intangible, absolute or contingent (such right, title and interest being referred to herein as the “ Excluded Assets ”) are specifically excepted from the Assets to be transferred to Buyer and/or its Designees pursuant to Section 1.1(a):

(i) all cash and cash equivalents or similar types of investments, including, without limitation, checking accounts, bank accounts, lock box numbers, marketable securities, commercial paper, certificates of deposit and other bank deposits and Treasury bills;

(ii) any refund, credit, adjustment or similar benefit (including, without limitation, interest thereon or claims therefore) with respect to any Taxes for any period prior to the Closing Date;

(iii) subject to Section 8.3(d)(i) hereof, all insurance policies of Seller and its Subsidiaries and all rights of Seller and its Subsidiaries of every nature and description under or arising out of such insurance policies;

(iv) all receivables (including without limitation, receivables relating to VAT, freight and duty) of Seller and its Subsidiaries and other rights to receive money, all security related thereto, deposits, prepaid charges, sums and fees, offsets, credits balances, refunds and causes of action and any claim, remedy or other right related to any of the foregoing;

(v) without limiting the licenses granted in Section 4.9, Section 4.10 or the License and Supply Agreements, all intellectual property of any kind that is not Transferred Intellectual Property;

(vi) without limiting the Sublease, all owned or leased real property (including buildings, structures and leasehold and other improvements located thereon, fixtures contained therein and appurtenances thereto);

(vii) all rights of Seller under this Agreement and the agreements and instruments delivered by Buyer or its Affiliates pursuant to or in connection with this Agreement;

(viii) assets relating to the Benefit Plans;

(ix) the Contracts listed on Schedule 1.1(b)(ix);

(x) machinery, tools and equipment that are (x) necessary for the manufacturing of the Products as manufactured on the Closing Date, (y) used less than exclusively in connection with the Business on the Closing Date and (z) used for packaging, testing or molding;

(xi) tools that are (x) necessary for the manufacturing of the Products as manufactured on the Closing Date, (y) used less than exclusively in connection with the Business on the Closing Date and (z) readily available at a price of one thousand dollars ($1,000.00) or less; and

(xii) the van located at Seller’s Billerica Facility.

(c) Assumed Liabilities . Except as otherwise provided in Section 1.1(d), on the Closing Date (or in the case of Liabilities described in Section 1.1(c)(v), the French Closing Date), Buyer shall, or shall cause its Designees to, assume and agree to fully perform, pay and discharge when due, in accordance with the terms thereof, all Liabilities of Seller and its Subsidiaries set forth below (the “ Assumed Liabilities ”):

(i) Liabilities which are to be performed after the Closing Date (or, in the case of Contracts excluded from the Assets pursuant to Section 4.4(c), which are to be performed after the date such Contract is deemed to be assigned pursuant to Section 4.4(c)) under the Contracts which are Assets pursuant to Section 1.1(a)(v);

(ii) Liabilities reflected in the Final Statement of Assets and Liabilities;

(iii) Liabilities under the Permits transferred to Buyer and/or its Designees to the extent relating to periods after the Closing Date;

(iv) Liabilities which (A) are obligations undertaken under Article VII by the Buyer and/or its Designees, (B) arise out of or relate to any claims in respect of severance or termination of employment of any US Employee, Glens Falls Employee or UK Employee other than to the extent arising out of or relating to Seller’s conduct of the Business (other than conduct contemplated by this Agreement or requested by Buyer) prior to the Closing (or the Relocation Date in the case of any Glens Falls Employee), (C) arise out of or relate to the failure by Buyer or its Designees to provide information and, where appropriate, enable consultation to take place in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 1981 or (D) arise out of or relate to any claims in respect of employees/worker’s compensation or the employment of any Scheduled Employee or Glens Falls Employee arising as of or after the Closing Date (or the Relocation Date in the case of any Glens Falls Employee) or, if accrued on the Final Statement of Assets and Liabilities, arising before the Closing Date;

(v) Without limiting Seller’s obligations under Section 8.1(b), any Liability which becomes a Liability of Buyer or any of its Affiliates by operation of Law or pursuant to the Partial Asset Sale Agreement;

(vi) all Liabilities, obligations or commitments for Taxes, including business and registration Taxes but excluding value added taxes arising out of the transfer of the manufacturing Assets located on the Closing Date at Seller’s facility in Reynosa, Mexico, whether or not accrued, assessed or currently due and payable, relating to the operation or ownership of the Business for any period (or portion thereof in the case of a Straddle Period) that begins after the Closing Date (for purposes of this clause (vi), (A) all real property Taxes, personal and intangible property Taxes and similar ad valorem obligations levied with respect to the Business or the Assets for a taxable period that includes (but does not end on) the Closing Date (a “ Straddle Period ”) shall be apportioned based on the number of days falling before and after the Closing Date, (B) all Taxes based upon or related to income and gross receipts, sales or use taxes shall be determined on the basis that the relevant taxable period ended on and included the Closing Date and (C) the portion of any refunds or credits relating to a Straddle Period shall be determined on the basis that the relevant taxable period ended on and included the Closing Date); and

(vii) Liabilities for all warranties and returns of products manufactured or distributed in connection with the Business.

(d) Liabilities Not Assumed . Notwithstanding any provision in this Agreement or the Ancillary Agreements, Buyer and its Designees shall not assume, shall not take subject to and shall not be liable for (and the Assumed Liabilities shall not include) the Liabilities as set forth below except to the extent that any such Liability becomes a Liability of Buyer or any of its Affiliates by operation of Law or pursuant to the Partial Asset Sale Agreement (the “ Excluded Liabilities ”):

(i) to the extent accrued on the Final Statement of Assets and Liabilities, any Liabilities arising out of or relating to the Excluded Assets;

(ii) all Liabilities resulting from any Legal Proceedings pending or, to the Knowledge of Seller, threatened as of the Closing Date and claims relating to any property damage, personal injury, death, product recall or other similar Liability arising out of products manufactured or distributed prior to the Closing Date (other than such Liabilities to the extent arising out of or resulting from the shipment, storage, handling or labeling (or any acts or omissions in respect thereof) of such products by Buyer, any of its Affiliates or any of their direct or indirect distributors or agents (not including Seller) after the Closing Date);

(iii) except as provided under Section 4.4(c), Liabilities arising under any Contract excluded from the Assets pursuant to Section 4.4(c) until such time as such contract or agreement is deemed to be assigned to Buyer and/or its Designees pursuant to Section 4.4(c);

(iv) any Liabilities, obligations or commitments for Taxes, whether or not accrued, assessed or currently due and payable, relating to the operation or ownership of the Business for any period (or portion thereof in the case of a Straddle Period) ending on or prior to the Closing Date (for purposes of this clause (iv), Taxes for a Straddle Period shall be apportioned in the manner described in Section 1.1(c)(vi) above); or

(v) any Liabilities in respect of the (x) Benefit Plans, (y) Scheduled Employees to the extent arising or accruing prior to the Closing Date and the Glens Falls Employees to the extent arising or accruing prior to the Relocation Date or (z) employees of the Business who are not Scheduled Employees or Glens Falls Employees to the extent arising or accruing prior to, on or after the Closing Date, except in the case of clause (x), (y) or (z), to the extent (I) assumed or undertaken in Article VII, (II) accrued on the Final Statement of Assets and Liabilities or (III) caused by or resulting from any act or omission by or on the part of Buyer or its Subsidiaries or Designees.

1.2. Assumption of Liabilities; Purchase Price . (a) Subject to adjustment as set forth in Section 1.3, upon the terms and conditions of this Agreement, on the Closing Date, in consideration for the sale and transfer of the Assets (excluding the French Assets), Buyer, or its Designees, as applicable, shall assume and fully perform, pay and discharge when due, the Assumed Liabilities (excluding the Assumed Liabilities described in Section 1.1(c)(v)) in accordance with the terms thereof and pay to, or to the order of, Seller by wire transfer in immediately available funds in U.S. dollars an amount equal to $80,000,000 (the “ Purchase Price ”) in accordance with written instructions given by Seller to Buyer not less than five (5) business days prior to the Closing. The Purchase Price shall be allocated in accordance with the terms of Section 6.2 hereof.

(b) Upon the terms and conditions of this Agreement and the Partial Asset Sale Agreement, at the time of the French Closing, in consideration for the sale and transfer of the assets transferred pursuant to the Partial Sale Asset Agreement (the “ French Assets ”) relating to the French portion of the Business (the “ French Business ”), Linvatec France S.A.R.L. shall assume and fully perform, pay and discharge when due, the Assumed Liabilities described in Section 1.1(c)(v) in accordance with the terms thereof and pay to, or to the order of, Bard France S.A.S. by wire transfer in immediately available funds in Euros an amount which Buyer and Seller shall agree prior to Closing (the “ French Purchase Price ”) in accordance with written instructions given by Bard France S.A.S. to Linvatec France S.A.R.L. not less than five (5) business days prior to the French Closing. Concurrently therewith, Seller will pay to Buyer by wire transfer in immediately available funds in U.S. dollars the equivalent of the French Purchase Price at the U.S. dollar/Euro exchange rate as published on the second Business Day prior to the Closing Date in the Wall Street Journal, Eastern Edition (or the most recently published exchange rate published in the Wall Street Journal, Eastern Edition prior to such date if no such exchange rate is published on such date) in accordance with written instructions given by Seller to Buyer not less than five (5) business days prior to the French Closing. In the event that the French Closing shall occur subsequent to the Closing, the parties shall negotiate in good faith an amendment to this Agreement making such changes as are necessary or appropriate to preserve to the maximum extent possible the full benefits of this Agreement in light of the delayed transfer of the applicable Assets and Liabilities.

1.3. Adjustment to Purchase Price .

(a) Preparation of Preliminary Closing Statement of Assets and Liabilities . As soon as reasonably possible after the Closing Date (but not later than 60 days thereafter), Seller shall prepare or cause to be prepared, and deliver to Buyer at Seller’s expense an unaudited special purpose statement of assets and Liabilities of the Business (including the French Business) dated as of the Closing Date (the “ Preliminary Closing Statement of Assets and Liabilities ”). The Preliminary Closing Statement of Assets and Liabilities, after giving effect to the transactions contemplated by this Agreement, shall be prepared on a basis consistent with, and reflecting the same line items as, the special purpose statement of assets and liabilities of the Business as of June 30, 2004, delivered by Seller to Buyer and attached as Exhibit A hereto (the “ Initial Statement of Assets and Liabilities ”), subject to the exceptions and such other matters as are set forth in Schedule 1.3(a) hereto, and shall disclose the book value of inventory less accounts payable and accrued expenses without further adjustment (the “ Special Net Book Value ”) as of the Closing Date. Seller and its employees and advisors shall have full access upon reasonable notice and during normal business hours to the books, papers and records of Buyer and its Subsidiaries relating to the Business as necessary or helpful for the preparation of the Preliminary Closing Statement of Assets and Liabilities.

(b) Review of Preliminary Closing Statement of Assets and Liabilities . Buyer, upon receipt of the Preliminary Closing Statement of Assets and Liabilities, shall (i) review the Preliminary Closing Statement of Assets and Liabilities and (ii) to the extent Buyer may deem necessary, make reasonable inquiry of Seller relating to the preparation of the Preliminary Closing Statement of Assets and Liabilities. Buyer and its employees and advisors shall have full access upon prior written notice and during normal business hours to the books, papers and records of Seller and its Subsidiaries relating to the preparation of the Preliminary Closing Statement of Assets and Liabilities in connection with such inquiry. The Preliminary Closing Statement of Assets and Liabilities shall be binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall have notified Seller in writing of any objections thereto (the “ Buyer’s Objection ”) within 45 days after receipt of the Preliminary Closing Statement of Assets and Liabilities.

(c) Disputes . In the event of a Buyer’s Objection, Seller shall have 45 days to review and respond to the Buyer’s Objection, and Seller and Buyer shall attempt to resolve the differences underlying the Buyer’s Objection within 45 days following completion of Seller’s review of the Buyer’s Objection. Disputes between Buyer and Seller which cannot be resolved by them within such 45-day period shall be referred promptly after such 45th day for decision to a nationally-recognized independent public accounting firm as Seller and Buyer shall mutually agree upon (which firm shall not be the independent auditors for either Seller or Buyer) (the “ Auditor ”) who shall act as arbitrator and determine, based solely on presentations by Seller and Buyer and on the basis of the standards set forth in Section 1.3(a) hereof and only with respect to the remaining differences with respect to objections raised in the Buyer’s Objection, whether and to what extent, if any, the Preliminary Closing Statement of Assets and Liabilities requires adjustment. The Auditor shall deliver its written determination, including, without limitation, as to the adjustments, if any, to the Preliminary Closing Statement of Assets and Liabilities and the calculations supporting any adjustments, to Buyer and Seller no later than the 30th day after the remaining differences underlying the Buyer’s Objection are referred to the Auditor, or such longer period of time as the Auditor determines is necessary. The Auditor’s determination shall be conclusive and binding upon the parties. The fees and disbursements of the Auditor shall be allocated between Buyer and Seller in such a way that Seller shall be responsible for that portion of the fees and expenses equal to such fees and expenses multiplied by a fraction, the numerator of which is the aggregate dollar value of disputed items submitted to the Auditor that are resolved against Seller (as finally determined by the Auditor), and the denominator of which is the total dollar value of the disputed items so submitted, and Buyer shall be responsible for the remainder of such fees and expenses. Buyer and Seller shall make readily available to the Auditor all relevant information, books and records and any work papers relating to the Preliminary Closing Statement of Assets and Liabilities and all other items reasonably requested by the Auditor. In no event may the Auditor’s resolution of any difference be for an amount which is outside the range of Buyer’s and Seller’s disagreement.

(d) Final Statement of Assets and Liabilities . The Preliminary Closing Statement of Assets and Liabilities (after giving effect to any adjustment pursuant to Section 1.3(c)) shall become final and binding upon the parties upon the earliest of (i) the failure by Buyer to object thereto within the period permitted under Section 1.3(b), (ii) the agreement between Buyer and Seller with respect to the full resolution of the Buyer’s Objection and (iii) the decision by the Auditor with respect to any disputes under Section 1.3(c). The Preliminary Closing Statement of Assets and Liabilities, as adjusted pursuant to the agreement of the parties or decision of the Auditor, when final and binding is referred to herein as the “ Final Statement of Assets and Liabilities .”

(e) Adjustments to the Purchase Price . As soon as practicable (but not more than five business days) after the date on which the Final Statement of Assets and Liabilities shall have been determined in accordance with this Section 1.3, (A) Buyer shall pay to Seller by wire transfer in immediately available funds in U.S. dollars the amount, if any, by which the Special Net Book Value as at the Closing Date as reflected in the Final Statement of Assets and Liabilities is greater than $8,022,000, which shall constitute an immediate upward adjustment of the Purchase Price in such amount or (B) Seller shall pay to Buyer by wire transfer in immediately available funds in U.S. dollars the amount, if any, by which $8,022,000 is greater than the Special Net Book Value as at the Closing Date as reflected in the Final Statement of Assets and Liabilities, which shall constitute an immediate downward adjustment of the Purchase Price in such amount. If either party is required to make a payment pursuant to this Section 1.3(e), such party shall also be required to pay interest on the amount of such payment for each day during the period commencing as of (and including) the Closing Date and ending on (but not including) the date on which the payment is made by such party at a floating rate of interest equal to the ninety (90) day commercial paper rate for high grade unsecured notes as published from time to time in The Wall Street Journal, Eastern Edition in effect for such day, with such interest to be calculated on the basis of a 365 day year for actual days elapsed.

ARTICLE II

CLOSING

2.1. Time and Place . Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Section 9.1 hereof, the closing with respect to the purchase and sale of the Assets (the “ Closing ”) shall take place at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York, at 10:00 a.m. on the last day of the month during which all of the conditions to the Closing set forth in Article V hereof are satisfied or waived (other than the conditions to be satisfied on the Closing Date, but subject to waiver or satisfaction of such conditions) or on the next business day in The City of New York if such day is not a business day in The City of New York or such other place, time and date as the parties may agree. The actual date of the Closing is herein referred to as the “ Closing Date ”. For all purposes, the Closing shall be deemed to have occurred on, and the effective time of Closing shall be deemed to be, 11:59 p.m. New York City time on the Closing Date. Notwithstanding the foregoing, the closing with respect to the purchase and sale of the French Assets shall take place at the time of or after the Closing at a time and place in France as mutually agreed upon by the parties after Seller’s French Subsidiary, Bard France S.A.S., shall have obtained an opinion from the Bard France S.A.S. workers’ council regarding the sale of the French Business, as required pursuant to Article L 432-1 of the French Labor Code (the “ French Closing ”).

2.2. Deliveries by Seller . (a) Deliveries on the Closing Date . On the Closing Date and at the place specified in Section 2.1, upon the terms and subject to the conditions of this Agreement, Seller shall, and shall cause its Subsidiaries, as applicable, to deliver to Buyer and/or its Designees, as applicable:

(i) such deeds, bills of sale and other instruments of transfer, conveyance and assignment, duly executed and in valid form, as shall be sufficient to transfer the Assets and Assumed Liabilities to Buyer and/or its Designees, in each case, in such form reasonably satisfactory to Buyer and Seller;

(ii) the certificates, consents and other documents referred to herein as deliverable by Seller or its Subsidiaries at the Closing, including, without limitation, a certificate stating that Seller is not a “foreign” person within the meaning of Section 1445 of the Code, which certificate shall set forth all information required by, and otherwise be executed in accordance with, Treasury Regulation Section 1.1445-2(b)(2); and

(iii) a receipt for the Purchase Price.

(b) Delivery on or After the Closing Date . On or as promptly as practicable following the Closing Date, Seller shall, and shall cause its Subsidiaries to, take such action as shall be necessary to put Buyer and/or its Designees in the possession or control of the Assets.

2.3. Deliveries by Buyer . On the Closing Date, upon the terms and subject to the conditions of this Agreement, Buyer and/or its Designees shall deliver to, or to the order of, Seller:

(i) the Purchase Price;

(ii) such instruments as shall be necessary, in each case, in such form reasonably satisfactory to Seller and Buyer, duly executed and in valid form effective to evidence the assumption by Buyer or its Designees, as applicable, of the Assumed Liabilities; and

(iii) the certificates, consents and other documents referred to herein as deliverable by Buyer at the Closing.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

3.1. Representations and Warranties of Seller . Seller represents and warrants to Buyer as follows:

(a) Due Incorporation and Power . Seller is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of New Jersey and has all requisite corporate power and authority to enter into this Agreement and the Ancillary Agreements (and together with this Agreement, the “ Transaction Agreements ”) to which it is a party, perform its obligations hereunder and thereunder and own, operate and lease the Assets and to carry on the Business as it is currently conducted by the Seller and its Subsidiaries. Each Subsidiary of Seller that will be conveying Assets to Buyer and/or its Designees pursuant to Section 1.1 is, or on the Closing Date (or with respect to Bard France S.A.S., on the French Closing Date) will be, a corporation duly incorporated, validly existing and in good standing to the extent that the concepts of due incorporation, valid existence and good standing exist in the relevant jurisdiction, under the Laws of the jurisdiction of its incorporation and has, or on the Closing Date (or with respect to Bard France S.A.S., on the French Closing Date) will have, all requisite corporate power and authority to consummate the applicable transactions contemplated by the Transaction Agreements.

(b) Authorization and Validity of Agreements . The execution, delivery and performance by Seller of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by its Board of Directors. On or prior to the Closing Date (or with respect to Bard France S.A.S., on the French Closing Date), the execution, delivery and performance by Seller and each Subsidiary of Seller of the Ancillary Agreements to which it is a party and the consummation by it of the applicable transactions contemplated thereby will be duly authorized by its respective Board of Directors, and no other corporate action on its part or on the part of its stockholders will be necessary for the execution, delivery and performance by it of the Transaction Agreements to which it is a party and the consummation by it of the applicable transactions contemplated hereby and thereby. This Agreement has been, and at the Closing (or with respect to Bard France S.A.S., at the French Closing) each of the Ancillary Agreements will be, duly executed and delivered by Seller and its Subsidiaries, as applicable, and this Agreement is, and at the Closing (or with respect to Bard France S.A.S., at the French Closing) each of the Ancillary Agreements will be, a legal, valid and binding obligation of Seller and its Subsidiaries, as applicable, enforceable against each of Seller and its Subsidiaries, as the case may be, in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at Law) and an implied covenant of good faith and fair dealing.

(c) No Conflict . Except as set forth in Schedule 3.1(c) hereto, the execution, delivery and performance by Seller and its Subsidiaries, as applicable, of the Transaction Agreements to which they are a party and the consummation by Seller and its Subsidiaries, as applicable, of the transactions contemplated hereby and thereby does not and will not (i) violate or result in the breach of any provision of federal, state, local or foreign law, rule, regulation, order, injunction, judgment or decree (each, a “ Law ”) applicable to Seller or any of its Subsidiaries, as applicable, in connection with the consummation of any of the transactions contemplated hereby; (ii) except for the antitrust clearances under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (and the rules and regulations promulgated thereunder), foreign antitrust or competition regulations, if applicable, and the merger and competition regulations, if applicable, of the European Community or similar supranational bodies, if applicable, require any consent or approval of, or filing with or notice to, any Governmental Authority under any Law applicable to Seller or any of its Subsidiaries, as applicable, in connection with the consummation of any of the transactions contemplated hereby; (iii) violate any provision of the Certificate of Incorporation or By-laws of Seller; (iv) require any consent, approval or notice under, conflict with, or result in the breach, lapse, cancellation or termination of, or constitute a default under, or result in the acceleration (whether after the filing of notice or the lapse of time or both) of any right or obligation of, or the performance by, Seller or any of its Subsidiaries under, or result in a loss of any benefit to which Seller or any of its Subsidiaries is entitled or result in any penalty or adverse consequence under, any Contract to which Seller or one of its Subsidiaries is a party and which relates exclusively to the Business or Permit issued by any Governmental Authority which related exclusively to the Business; or (v) result in the creation or imposition of any Lien on any of the Assets (except in the case of clauses (i), (ii), (iv) or (v), for such violations, consents, approvals, filings, notices, conflicts, breaches, lapses, cancellations, terminations, defaults, accelerations, penalties, adverse consequences or losses, the absence of which or the result of which, as the case may be, would not be reasonably likely to have a Material Adverse Effect).

(d) Initial Statement of Assets and Liabilities . The amounts reflected on the Initial Statement of Assets and Liabilities for inventory, property, plant and equipment, intangibles, accounts payable and accrued expenses were (i) computed in accordance with GAAP and (ii) calculated consistent with the accounting policies, procedures and methodologies set forth in Schedule 3.1(d) .

(e) Absence of Material Adverse Effect . Except as disclosed in Schedule 3.1(e) , since December 31, 2003, (i) the Business has been conducted in the ordinary course of business consistent with past practice and (ii) there has not been any event, change, condition or development that, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect.

(f) Taxes . (i) Except as set forth in Schedule 3.1(f)(i) , there has been timely filed by or on behalf of Seller and its Subsidiaries, and with respect to the Business, all material returns, declarations, statements, reports, schedules, forms and information returns and any amended tax returns relating to any federal, state, local and foreign income, profits, franchise, gross receipts, payroll, sales, employment, use, real and personal property, real estate, excise, value added, estimated, stamp, alternative or add-on minimum, environmental, withholding and any other taxes, duties or assessments, together with all interest, penalties and additions imposed with respect to such amounts (collectively, “ Taxes ”) required to have been filed (the “ Tax Returns ”), and all Taxes, with respect to the Business, shown as due on such Tax Returns have been or will be paid in a timely fashion, and all such Tax Returns were true, complete and correct in all material respects as of filing.

(ii) Except as disclosed in Schedule 3.1(f)(ii) , no audit or other proceeding by any Governmental Authority is pending with respect to any Taxes of the Business.

(iii) There are no Liens for Taxes on any Asset, other than with respect to Taxes not yet due and payable or which are being contested in good faith.

(iv) The Seller and its Subsidiaries have withheld and paid in connection with the operation of the Business all material Taxes required to be withheld and paid with respect to any employee, creditor, independent contractor or other third party.

(g) Title; Liens and Encumbrances; Assets; No Other Interests . Except as set forth in Schedule 3.1(g) , on the Closing Date, Seller or the applicable Subsidiary of Seller will own and have good and valid title to the assets of Seller and its Subsidiaries in which Seller’s and its Subsidiaries’ right, title and interest are being transferred pursuant to Section 1.1, free and clear of any liens, pledges, mortgages or security interests, except (w) statutory liens arising or incurred in the ordinary course of business with respect to which the underlying obligations are not delinquent, (x) liens for Taxes the amount or validity of which are being contested in good faith or which are not yet delinquent, (y) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, supplier’s or other like liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith by appropriate proceedings and (z) any interest of any third party to a Contract that is an Asset, to the extent such interest arises from such Contract (the “ Liens ”).

(h) Material Contracts . Schedule 3.1(h) hereto sets forth each Material Contract to which Seller or one of its Subsidiaries is a party and which relate exclusively to the Business. For the purpose of this Agreement “ Material Contract ” shall mean any Contract which by its terms (A) after the date hereof, requires any party thereto to pay an amount or provide consideration of any nature (whether in a lump sum or in a series of installments) or provides for financial commitments or, in any case, has an aggregate future Liability in excess of $25,000, (B) has a remaining stated term in excess of one year and may not be terminated by any party thereto upon less than three months’ notice, other than maintenance and service agreements and leases for personal property entered into in the ordinary course of business or (C) provides for a component or material which is available from a sole source. None of Seller or any of its Subsidiaries is in material breach of or default in the performance of its obligations under any Material Contract and, to the Knowledge of Seller, no breach or default, alleged breach or default, or event which would (with the passage of time, notice or both) constitute a breach or default thereunder by Seller or any of its Subsidiaries (or, to the Knowledge of Seller, any other party or obligor with respect thereto) has occurred, or as a result of its performance will occur; except for such breaches or defaults which would not be reasonably likely to have a Material Adverse Effect. To the Knowledge of Seller, each Material Contract is in full force and effect. Complete and correct copies of each Material Contract, including, without limitation, all amendments and supplements thereto, have been provided to the General Counsel or Deputy General Counsel for the Buyer other than (x) all Contracts relating to the French Business, international tenders and international customers, each of which will be delivered to the General Counsel or Deputy General Counsel for Buyer as promptly as practicable and in any event no later than September 15, 2004 and (y) the Contracts referenced by Items 49, 51 and 52 (to the extent not to be delivered pursuant to clause (x)) on Schedule 3.1(h) , which will be made available to representatives of Buyer on and after August 23, 2004.

(i) Legal Proceedings . Except as identified in Schedule 3.1(i) hereto, there is no civil, criminal or administrative claim, action, proceeding, arbitration or governmental investigation (each, a “ Legal Proceeding ”) which is material and which is pending or, to the Knowledge of Seller, threatened in any jurisdiction, in each case, to which Seller or any of its Subsidiaries is a party or, in the case of an investigation, of which Seller or any of its Subsidiaries is the subject and which (i) seeks to restrain or enjoin the consummation of the transactions contemplated by this Agreement or (ii) involves the Business or any of the Assets.

(j) Government Licenses, Permits and Related Approvals . Within 14 days of the date hereof, Seller shall provide to Buyer a schedule listing each material license, permit, consent, certification, exemption, approval, authorization, qualification, order and franchise issued by any Governmental Authority used by Seller and its Subsidiaries to conduct the Business as presently conducted (the “ Material Permits ”). Except as set forth in such schedule and except as would not be reasonably likely to have a Material Adverse Effect, to the Knowledge of Seller, each item listed in such schedule that constitutes an Asset will as of the Closing be valid and in full force and effect and neither Seller nor any of its Subsidiaries has received any written notice from any Governmental Authority canceling, rescinding, materially modifying or refusing to renew any such item that constitutes an Asset.

(k) Conduct of Business in Compliance with Regulatory Requirements . All Products have been manufactured and marketed in compliance with all applicable U.S. Food and Drug Act, EU Medical Device Directive or other governmental requirements, except to the extent that failure to comply therewith would not be reasonably likely to have a Material Adverse Effect. Without limiting the generality of the preceding sentence, except as set forth on Schedule 3.1(k) , (i) Seller or one of its Subsidiaries are legally authorized to manufacture and to sell all Products under a 510(k) or CE mark issued in the name of the Seller or one of its Subsidiaries or is exempt from pre-market notification requirements; (ii) all Products are produced by properly registered facilities and have been correctly classified and listed with the appropriate Governmental Authority; (iii) all labeling/marketing literature, advertising and web content related to currently marketed indications and intended uses are covered by the applicable PMN/510(k) or CE mark and meet regulatory requirements; (iv) the Products and the facilities at which they are manufactured and the processes by which they are manufactured are not subject to recall or other regulatory action, including Form FDA 483 Inspection Observations, FDA Warning Letters or FDA injunction; (v) there are no previous or current product or labeling remediations that have not been reported to a Governmental Authority, to the extent such reporting is required; (vi) all Products properly bear or bore as applicable, a CE mark or otherwise comply or complied, as applicable, in all respects with any similar requirements imposed under the laws of any foreign country in which the Products are or were, as applicable, sold; (vii) Seller or one of its Subsidiaries has all required records relating to such compliance, including, without limitation, technical files, design history files, clinical studies and validations; and (viii) any clinical studies for Product approvals currently or previously undertaken have been approved by the necessary Governmental Authorities, to the extent such approval is required, and have been conducted in compliance with applicable regulatory rules of approval, conduct and patient rights.

(l) Labor Matters . Except as set forth in Schedule 3.1(l) hereto: (i) there are no collective bargaining agreements with any unions relating to any Scheduled Employees, Glens Falls Employees or the Business, nor is any such collective bargaining agreement presently being negotiated nor is there any duty on the part of Seller or any of its Subsidiaries to bargain with any labor organization with respect to any of the Scheduled Employees, Glens Falls Employees or the Business; (ii) there is no unfair labor practice charge or complaint pending or, to the Knowledge of Seller, threatened against the Seller or any of its Subsidiaries or relating to any of the Scheduled Employees or Glens Falls Employees; (iii) there is not now nor has there been in the three years prior to the date of this Agreement any strike, slowdown, work stoppage, lockout or other labor controversy in effect or, to the Knowledge of Seller, threatened against the Seller or any of its Subsidiaries affecting the Business; (iv) no action, suit, complaint, charge, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority or arbitration tribunal or body brought by or on behalf of any Scheduled Employee or Glens Falls Employee is pending or, to the Knowledge of Seller, threatened by any Scheduled Employee or Glens Falls Employee against the Seller or any of its Subsidiaries; and (v) neither the Seller nor any of its Subsidiaries is a party to or otherwise bound by any consent decree or judgment that is presently in effect and relating to employment practices affecting any of the Scheduled Employees or Glens Falls Employees.

(m) Intellectual Property . Except as set forth in Schedule 3.1(m) , to the Knowledge of the Seller: (A) Seller or one of its Subsidiaries owns, licenses or has the right to use the Transferred Intellectual Property free and clear of all Liens; (B) the issued and registered Transferred Intellectual Property is valid and is not being infringed by others; (C) except for disputes that have been resolved (and, in the case of disputes resolved since January 1, 2002, disclosed to Buyer), no third party has since January 1, 2002 threatened or made a written claim (or, to the actual knowledge of the General Counsel of Seller, made an unwritten claim other than an unwritten claim which the General Counsel determined was not a bona fide claim) against Seller or any of its Subsidiaries that the operation of the Business is infringing any Intellectual Property of such party except as would not be reasonably likely to have a Material Adverse Effect; (D) the operation of the Business by Seller does not infringe any third party Intellectual Property rights except as would not be reasonably likely to have a Material Adverse Effect and (E) Seller and its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all material trade secrets included in the Transferred Intellectual Property whose value would be impaired by public disclosure.

(n) Employee Benefit Plans .

(i) Except as described in Section 3.1(h), Schedule 3.1(n)(i) hereto contains a true and complete list of each employee benefit plan (within the meaning of Section 3(3), of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)) and each other material plan, agreement, program, policy, practice or arrangement, whether oral or written, providing employee benefits or compensation (including, without limitation, any stock purchase, stock option, fringe benefit, bonus or incentive, deferred compensation, retirement, pension, annuity, death, assurance, insurance, employment, severance or change of control agreements, plans, programs, policies or arrangements) under which any Scheduled Employee or Glens Falls Employee has any present or future right to benefits or compensation for which Buyer or any Affiliates of Buyer will have Liability after the Closing Date; excluding, however, any plans, programs, policies and arrangements which exist to provide benefits mandated by Law. All such plans, agreements, programs, polices and arrangements shall be collectively referred to as the “ Benefit Plans .”

(ii) Except for Benefit Plans relating to the French Business, with respect to each Benefit Plan, Seller has made available to Buyer a current, accurate and complete copy and, to the extent applicable, (A) any summary plan description and (B) the Seller Severance Plan.

(iii) Each Benefit Plan has been established and administered in accordance with its terms and is in compliance with applicable Law, including, without limitation, to the extent applicable, any foreign Laws, ERISA and the Internal Revenue Code of 1986, as amended (the “ Code ”), except where the failure to comply would not be reasonably likely to have a Material Adverse Effect.

(iv) Except as set forth in Schedule 3.1(n)(iv) , each Benefit Plan and related trust intended to be tax qualified under the Code has received a favorable determination from the Internal Revenue Service or will be timely submitted for such determinations. To the Knowledge of Seller, nothing has occurred since any such determination that would be reasonably likely to adversely affect such qualification.

(v) Except as set forth in Schedule 3.1(n)(v) , during the last 5 years with respect to any Benefit Plan, (i) no “reportable event” (as such term is used in section 4043 of ERISA) (other than those events for which the 30 day notice has been waived pursuant to the regulations) has occurred with respect thereto, (ii) no “accumulated funding deficiency” (as such term is used in section 412 or 4971 of the Code) has occurred, (iii) such Benefit Plan has not been terminated and (iv) no “prohibited transaction” (within the meaning of Section 406 of ERISA or Section 4975 of the Code) has occurred from which a material Liability is outstanding or which could reasonably be expected to result in material Liability to Buyer, where any such reportable event, deficiency, termination or prohibited transaction has resulted in a Material Adverse Effect.

(vi) Except as set forth in Schedule 3.1(n)(vi) hereto, no actions, suits or claims (other than routine claims for benefits in the ordinary course), whether under federal, state, local or foreign Laws or otherwise, are pending or, to the Knowledge of Seller, threatened with respect to any Benefit Plan which are reasonably likely to have a Material Adverse Effect.

(vii) Except as set forth in Schedule 3.1(n)(vii) , no Benefit Plan exists which could, after the Closing Date, result in the payment by Buyer to any Scheduled Employee or Glens Falls Employee of any money or other property or rights or the acceleration or provision of any other rights or benefits to any such Scheduled Employee or Glens Falls Employee as a result of the consummation of the transactions contemplated by this Agreement (regardless of whether such payment is a “parachute payment” within the meaning of Section 280G of the Code).

(viii) Except as set forth in Schedule 3.1(n)(viii) , no Benefit Plan is a “multiemployer plan” (within the meaning of Section 3(37) of ERISA) and neither Seller nor any member of its “controlled group” (such term to include any member of a controlled group of organizations within the meaning of Section 414(b), (c), (m), or (o) of the Code) has incurred any withdrawal Liability that (i) remains unsatisfied in a material amount or (ii) could reasonably be expected to subject Seller or any member of its controlled group to material controlled group Liability under Section 4001(b) of ERISA.

(ix) Except as set forth in Schedule 3.1(n)(ix) : (i) neither Seller nor any of its Subsidiaries has incurred any Liability for any excise tax arising under Section 4971, 4972, 4980 or 4980B of the Code which will result in a Liability to Buyer and no fact or event exists which could reasonably be expected to give rise to any such material Liability to Buyer; (ii) none of the assets of Seller or any of its Subsidiaries is the subject of any Lien arising under Section 302(f) of ERISA or Section 412(n) of the Code; and (iii) neither Seller nor any of its Subsidiaries has been required to post any security under Section 307 of ERISA or Section 401(a)(29) of the Code.

(o) Brokers, Finders, etc. With the exception of fees, commissions and expenses which shall be Seller’s sole responsibility, Seller has not employed, nor is it subject to any valid claim of, any broker, finder, consultant or other intermediary in connection with the transactions contemplated by this Agreement who might be entitled to a fee or commission in connection with such transactions.

(p) Completeness and Condition of Assets . Except as set forth in Schedule 3.1(p)(i) , the Assets constitute, in all material respects, all assets necessary to, or used in, the conduct of the Business as presently conducted except for the Excluded Assets. Schedule 3.1(p)(ii) sets forth the machinery, tools (not including tools readily available at a price of one thousand dollars ($1,000) or less) and equipment that are (x) necessary for the manufacturing of the Products as manufactured on the Closing Date, (y) used less than exclusively in connection with the Business on the Closing Date and (z) used for packaging, testing or molding. All items of equipment, furniture, furnishings, machinery, tools and other tangible personal property which are Assets are, in all material respects, suitable for the uses for which they are presently used in the Business and, as of the Closing Date, will be, in all material respects, in normal operating condition and free from any known significant defects excepting ordinary wear and tear.

(q) Environmental Matters . Except as set forth in a schedule that Seller will provide to the Buyer within 14 days of the date hereof and except as would not reasonably be expected to have a Material Adverse Effect: (i) Seller, its Subsidiaries and their predecessors-in-interest with respect to the operation of the Business are in compliance with all applicable Environmental Laws; (ii) in relation to the Business or the Assets, there have been no material Releases or threatened Releases on any property currently owned or operated by Seller, its Subsidiaries or their predecessors-in-interest or, during the period of ownership or operation, on any property formerly owned or operated by Seller, its Subsidiaries or their predecessors-in-interest; (iii) in relation to the Business or the Assets, neither Seller nor its Subsidiaries is or are subject to any material liability for Hazardous Substance disposal or contamination on any third party property; (iv) in relation to the Business or the Assets, neither Seller nor its Subsidiaries is or are subject to any material liability for any Release or threat of Release of any Hazardous Substance; (v) neither Seller, its Subsidiaries nor their predecessors-in-interest has or have received any written notice or communication relating to the Business from a Governmental Entity or third party indicating that it is in violation of or subject to liability under any Environmental Law and; (vi) in relation to the Business or the Assets, neither the Seller, its Subsidiaries nor their predecessors-in-interest is subject to any order, decree, injunction or other binding written agreement with any Governmental Entity or any material indemnity or other binding written agreement with any third party relating to liability under any Environmental Law. Within 14 days of the date hereof, the Seller will deliver to the General Counsel or Deputy General Counsel for Buyer copies of all written environmental reports, studies, assessments, sampling data and other relevant written environmental information in its possession prepared within the last five years relating to the Business or the Assets.

As used herein, the term “ Environmental Law “ means any applicable federal, state or local law, regulation, order, decree, permit, authorization, common law, or enforceable agency requirement in effect as of the Closing Date relating to: (i) the protection, investigation or restoration of the environment, occupational health and safety or natural resources, (ii) the handling, use, presence, disposal, Release or threatened Release of any Hazardous Substance or (iii) noise, odor, contamination of indoor air, employee exposure to Hazardous Substances, wetlands, pollution, contamination or any injury or threat of injury to persons or property relating to any Hazardous Substance, the term “ Hazardous Substance “ means any substance that is: (i) listed, classified or regulated pursuant to any Environmental Law as being toxic, hazardous or any other term of similar import; (ii) any petroleum product or by-product, asbestos-containing material in a friable condition or radioactive materials; or (iii) any other substance which is regulated under any Environmental Law as being toxic, hazardous or any other term of similar import and the term “ Release ” shall have the meaning provided for under 42 U.S.C. Section 9601(22).

For purposes of the representations set forth in this Section with respect to any predecessor-in-interest to Seller or its Subsidiaries, each such representation is made only to the Knowledge of Seller.

(r) Other Representations or Warranties . Except for the representations and warranties contained in this Agreement, neither Seller nor any other person makes any other express or implied representation or warranty on behalf of Seller or its Subsidiaries, including, without limitation, as to the probable success or profitability of the ownership, use or operation of the Business and the Assets by Buyer after the Closing.

3.2. Representations and Warranties of Buyer . Buyer represents and warrants to Seller as follows:

(a) Due Incorporation and Power . Buyer is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of New York and has all requisite corporate power and authority to enter into the Transaction Agreements to which it is a party and perform its obligations hereunder and thereunder. Each Designee of Buyer is, or on the Closing Date (or with respect to Linvatec France S.A.R.L., on the French Closing Date) will be, a corporation duly incorporated, validly existing and in good standing to the extent that the concepts of due incorporation, valid existence and good standing exist in the relevant jurisdiction, under the Laws of the jurisdiction of its incorporation and has, or on the Closing Date (or with respect to Linvatec France S.A.R.L., on the French Closing Date) will have, all requisite corporate power and authority to consummate the applicable transactions contemplated by the Transaction Agreements.

(b) Authorization and Validity of Agreements . The execution, delivery and performance by Buyer of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by its Board of Directors. On or prior to the Closing Date (or with respect to Linvatec France S.A.R.L., on the French Closing Date), the execution, delivery and performance by Buyer and each Designee of Buyer of the Ancillary Agreements to which it is a party and the consummation by it of the applicable transactions contemplated thereby will be duly authorized by its respective Board of Directors, and no other corporate action on its part or on the part of its stockholders will be necessary for the execution, delivery and performance by it of the Transaction Agreements to which it is a party and the consummation by it of the applicable transactions contemplated hereby and thereby. This Agreement has been, and at the Closing (or with respect to Linvatec France S.A.R.L., at the French Closing) each of the Ancillary Agreements will be, duly executed and delivered by Buyer and its Designees, as applicable, and this Agreement is, and at the Closing (or with respect to Linvatec France S.A.R.L., at the French Closing) each of the Ancillary Agreements will be, a legal, valid and binding obligation of Buyer and its Designees, as applicable, enforceable against each of Buyer and its Designees, as the case may be, in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at Law) and an implied covenant of good faith and fair dealing.

(c) No Conflict . The execution, delivery and performance by Buyer and its Designees, as applicable, of the Transaction Agreements to which they are a party and the consummation by Buyer and its Designees, as applicable, of the transactions contemplated hereby and thereby does not and will not (i) violate or result in the breach of any Law applicable to Buyer or any of its Designees, as applicable, in connection with the consummation of any of the transactions contemplated hereby; (ii) except for the antitrust clearances under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (and the rules and regulations promulgated thereunder), foreign antitrust or competition regulations, if applicable, and the merger and competition regulations of the European Community or similar supranational bodies, if applicable, require any consent or approval of, or filing with or notice to, any Governmental Authority under any Law applicable to Buyer and/or its Designees, as applicable, in connection with the consummation of any transactions contemplated hereby; (iii) violate any provision of the Certificate of Incorporation or By-laws or other constituent documents of Buyer and/or its Designees, as applicable; or (iv) require any consent, approval or notice under, conflict with, or result in the breach, lapse, cancellation, termination of, or constitute a default under, or result in the acceleration (whether after the filing of notice or the lapse of time or both) of any right or obligation of, or the performance by, Buyer or any of its Designees under, or result in a loss of any benefit to which Buyer or any of its Designees is entitled or result in any penalty or adverse consequence under any indenture, mortgage, deed of trust, lease, license, franchise, Contract, agreement, concession or other instrument to which Buyer and/or its Designees, as applicable, are a party or by which they, or their assets, are bound or encumbered (except in the case of clauses (i), (ii) or (iv), for such violations, consents, approvals, filings, notices, conflicts, breaches, lapses, cancellations, terminations, acceleration, penalties, adverse consequences, losses or defaults, the absence of which or the result of which, as the case may be, could not reasonably be likely to have a material adverse effect on the ability of Buyer and/or its Designees, as applicable, to consummate any of the transactions contemplated hereby).

(d) Brokers, Finders, etc . With the exception of fees, commissions and expenses which shall be Buyer’s sole responsibility, Buyer has not employed, nor is it subject to the valid claim of, any broker, finder, consultant or other intermediary in connection with the transactions contemplated by this Agreement who might be entitled to a fee or commission in connection with such transactions.

(e) Legal Proceedings . There is no Legal Proceeding which is material and which is pending or, to the Knowledge of Buyer, threatened in any jurisdiction, in each case, to which Buyer or any of its Designees is a party, or in the case of an investigation, of which Buyer or any of its Designees is the subject and which seeks to restrain or enjoin the consummation of the transactions contemplated by this Agreement.

(f) Compliance with Law . Buyer and each of its Designees is in compliance with each applicable Law, except to the extent that failure to comply therewith could not reasonably be likely to have a material adverse effect on the ability of Buyer and its Designees to consummate any of the transactions contemplated hereby.

(g) Financing . Buyer has the cash on hand and sufficient availability under its credit facilities to provide all funds necessary to consummate the transactions contemplated hereby and the payment of all of Buyer’s related fees and expenses. Buyer has no reason to believe that such available cash and financing shall not be available at the Closing.

(h) Disclaimer Regarding Projections . In connection with Buyer’s investigation of the Business, Buyer has received from the Seller and its Affiliates and their respective representatives and agents certain projections and other forecasts, including, without limitation, projected financial statements, certain business plan information and other data related to the Business. Buyer acknowledges that (a) there are uncertainties inherent in attempting to make such projections, forecasts and plans and, accordingly, is not relying on them, (b) Buyer is familiar with such uncertainties and is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections, forecasts and plans so furnished to it and (c) Buyer shall have no claim against anyone with respect to any of the foregoing. Accordingly, Buyer acknowledges that none of the Seller and its Affiliates has made any representation or warranty with respect to such projections and other forecasts and plans.

(i) No Other Representations or Warranties . Except for the representations and warranties contained in this Agreement, neither Buyer nor any other person makes any other express or implied representation or warranty on behalf of Buyer.

3.3. Survival of Representations and Warranties . Subject to Section 8.5, and other than with respect to the representations of Seller contained in Section 3.1(q) which shall survive until the date that is three years after the Closing Date, the respective representations and warranties of Seller and Buyer contained in this Article III, the certificate delivered by Seller pursuant to Section 5.2(c) and the certificate delivered by Buyer pursuant to Section 5.3(c) at the Closing shall survive until the date that is eighteen months after the Closing Date; provided , however , that the representations and warranties set forth in Section 3.1(f) shall expire at Closing.

ARTICLE IV

COVENANTS

4.1. Access to Information Concerning Properties and Records . (a) Access . During the period commencing on the date hereof and ending on the Closing Date, and subject to applicable Law, including, without limitation, antitrust Laws, Seller shall, and shall cause its Subsidiaries to, afford to Buyer, its counsel, accountants and other authorized representatives reasonable access during normal business hours, upon reasonable notice and in such manner as will not unreasonably interfere with the conduct of their respective businesses, to the facilities, books and records and personnel of the Business.

(b) Subsequent Access . Following the Closing, Seller shall provide Buyer and its representatives, and Buyer shall provide Seller and its representatives, reasonable access to its facilities, personnel and records of Seller and Buyer, relating to the Business to the extent Buyer or Seller shall reasonably request such access.

(c) Retention of Records . Following the Closing, Buyer agrees to, and agrees to cause its Designees to, retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the operation of the Business prior to the Closing Date for ten years from the creation of the document or for such longer period as may be required by any Law or court order applicable to Seller or any of its Subsidiaries and disclosed to Buyer and all Tax records (including Tax Returns and returns related to VAT) until the expiration of all applicable statutes of limitation.

4.2. Conduct of the Business Prior to the Closing Date . Seller agrees that, except as provided in this Agreement, as required by applicable Law or any Contract, as consented to or approved in writing by Buyer (which approval shall not be unreasonably withheld) or as set forth in Schedule 4.2 hereto, during the period commencing on the date hereof and ending at the Closing Date:

(i) the Business shall be conducted in the ordinary course of business consistent with past practice and Seller shall use commercially reasonable efforts to (a) preserve intact the Business and related relationships with material customers, suppliers and other parties with whom it has business relationships and (b) keep available the services of present employees (it being understood that Buyer assumes the risks associated with personnel changes customarily attendant to a change of ownership);

(ii) Seller and its Subsidiaries in connection with the Business will not (A) acquire, license, sub-license, dispose of, lease, sub-lease, transfer or subject to a Lien any properties or assets that will become Assets hereunder (or, in the case of a disposition, that would otherwise become an Asset hereunder), other than (1) in the ordinary course of business consistent with past practices or (2) properties or assets which are not material to the Business in the ordinary course; (B) grant or approve any increase in the compensation of Scheduled Employees (including, without limitation, any increase in existing, or any creation of new, severance or termination pay obligations), or grant or approve any bonus, in each case, except for increases or bonuses following five (5) business days prior written notice to Buyer listing each proposed change and (1) in the ordinary course of business and consistent with past practice, (2) as a result of collective bargaining or (3) as required by applicable Law, any employment or other agreement, any policy or any bonus, pension, profit-sharing or other plan or commitment presently in effect; (C) enter into employment agreements with any Scheduled Employee, except for any new hires or promotions in the ordinary course of business and consistent with past practice and consulting agreements terminable on not more than 30 days notice; (D) adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other plan, agreement trust, fund or arrangement for the sole benefit of Scheduled Employees, except as may be required to comply with applicable Law or as may have been contemplated by Seller and disclosed to Buyer in writing prior to the date hereof; (E) make any material capital expenditure, other than (1) in the ordinary course of business or (2) pursuant to existing business plans disclosed to Buyer prior to the date hereof; (F) terminate or extend any Material Contract that will constitute an Asset hereunder or enter into any Contract that would be a Material Contract and which will constitute an Asset hereunder; (G) fail to maintain insurance coverage at levels consistent with presently existing levels; (H) make any Tax elections that have a continuing Material Adverse Effect upon the Business after the Closing; or (I) agree, whether in writing or otherwise, to do any of the foregoing.

Nothing in this Agreement, including, without limitation, in this Section 4.2, shall limit the ability of Seller and its Subsidiaries to transfer Assets to, in the case of Seller, any Subsidiary of Seller and, in the case of any Subsidiary of Seller to Seller or another Subsidiary of Seller.

4.3. Antitrust Laws . Seller and Buyer agree to cooperate and use their best efforts to make as promptly as practicable (and in any event no later than 15 business days after the date hereof) all filings which are or may become required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ Antitrust Improvements Act ”) o

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