ASSET PURCHASE AGREEMENT BY AND BETWEEN CHEMETALL CORP. AND NALCO COMPANY

Exhibit 10.1

EXECUTION COPY

ASSET PURCHASE AGREEMENT

BY AND BETWEEN

CHEMETALL CORP.

AND

NALCO COMPANY

Dated as of July 24, 2008

SALE OF FINISHING TECHNOLOGIES BUSINESS

TABLE OF CONTENTS

 -iv-

LIST OF EXHIBITS

LIST OF SCHEDULES

 v

ASSET PURCHASE AGREEMENT

     THIS AGREEMENT (this “ Agreement ”) is made as of July 24, 2008, by and between Chemetall Corp., a Delaware corporation (“ Purchaser ”), and Nalco Company, a Delaware corporation (“ Seller ”). Capitalized terms not otherwise defined in this Agreement are used as defined in Exhibit A hereto.

WITNESSETH:

     WHEREAS, Seller is engaged in part in the business of producing (or having produced), marketing, distributing and selling (i) the Transferred Products and (ii) the products listed on Exhibit B (the “ Dual Products ”) for FTG Applications in the Territory (collectively, the “ Primary FTG Business ”);

     WHEREAS, Seller is engaged in part in the business of marketing, distributing and selling the products listed on Exhibit C (the “ Supplied Products ”) to the Supplied Products Customers in the Territory (the “ Supplied Products Business ”, and together with the Primary FTG Business, the “ Business ”);

     WHEREAS, Seller desires to sell and transfer, or cause to be sold and transferred, to Purchaser, and Purchaser desires to purchase the Acquired Assets from Seller and its Affiliates, on the terms and subject to the conditions set forth herein; and

     WHEREAS, Seller desires to sell and transfer, or cause to be sold and transferred, to Purchaser, and Purchaser desires to purchase the Supplied Products from Seller and its Affiliates, on the terms and subject to the conditions set forth in the Distribution Agreement (as defined herein).

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

ARTICLE I
PURCHASE AND SALE
OF ACQUIRED ASSETS

     1.1 Purchase and Sale of Acquired Assets . Upon the terms and subject to the conditions of this Agreement, and for the consideration set forth in Section 2.1 , at the Closing, Seller shall (and shall cause its appropriate Affiliates to) sell, convey, transfer and assign to Purchaser, and Purchaser shall purchase from Seller and its Affiliates, all right, title and interest of Seller and its Affiliates in and to the following Assets, whether or not in the possession or control of Seller or its Affiliates (collectively, the “ Acquired Assets” ), free and clear of all Liens.

          (a) (i) raw materials located at the Owned Real Property; (ii) raw materials located elsewhere in the Territory and used exclusively for the manufacture of the Transferred Products; and (iii) work-in-process, finished goods inventories and related packaging of the Transferred Products, in each case located in the Territory (collectively, the “ Inventory ”);

          (b) (i) U.S. and foreign patents (including all reissues, divisions, continuations and extensions thereof), patent applications and Trademark Rights, in each case as listed on Schedule 1.1(b) , and (ii) without limitation of clause (i), all other Intellectual Property Rights related exclusively to the Transferred Products within the Territory (collectively, “ Transferred Intellectual Property ”), together with the goodwill of the Primary FTG Business in the Territory in connection with which all such Trademark Rights are used;

          (c) (i) all formulas for the Transferred Products, and (ii) without limitation of clause (i), all Technology related exclusively to the Transferred Products, including products under development exclusively for FTG Applications, including those products under development listed on Schedule 1.1(c) , and testing procedures and analytical techniques used exclusively in support of the Transferred Products (“ Transferred Technology ”);

          (d) all customer lists, files and records relating to the sale of (x) the Transferred Products in the Territory, (y) the Dual Products for FTG Applications in the Territory and (z) the Supplied Products to the Supplied Products Customers;

          (e) all supplier lists with respect to or regarding the Primary FTG Business and all other books, records, files and papers with respect to or regarding the Business, the Use of the Transferred Products or the Dual Products for FTG Applications or the Use of the Supplied Products by the Supplied Products Customers, in each case in the Territory (including sales reports, cost sheets, bills of material, production data, information with respect to product development, inventory data, business development plans; all documents evidencing Transferred Technology or Transferred Intellectual Property; product formulations with respect to the Transferred Products and batch tickets; specifications of raw materials used in the manufacture of the Transferred Products in the Territory; marketing and other advertising and promotional materials, catalogs, correspondence, mailing lists, sales materials and records, sales order files; copies of information from accounting and employee records related to the Business Employees); provided , however , Seller may keep copies of all such information to the extent relating to any Retained Business;

          (f) subject to Section 1.2(b)(iv) , all Contracts listed on Schedule 1.1(f) and all open customer purchase orders of the Business (the “ Assumed Contracts ”);

          (g) the real property (including easements, rights of way and other privileges relating thereto) and associated fixtures and improvements described on Schedule 1.1(g) (the “ Owned Real Property ”);

          (h) (i) all machinery, installations, equipment, office equipment, laboratory, research and development and technical service equipment, tools, furniture, raw materials, packaging, spare parts, supplies and other fixed Assets or tangible personal property used or held by or acquired for the Business, in each case that are located at the Owned Real Property, including those items described on Schedule 1.1(h)-1 , (ii) all laboratory, research and development and technical service equipment, vehicles and field equipment listed on Schedule 1.1(h)-2 , and (iii) any machinery, equipment and other tangible personal property of the Primary FTG Business owned by Seller or any of its Affiliates that is (x) related exclusively to the production of Transferred Products in the Territory and (y) held by customers;

          (i) all Approvals of the Business related to the ownership or operation of the Owned Real Property to the extent currently in effect, including the Approvals listed on Schedule 1.1(i) (“ Permits ”);

          (j) all warranties in favor of Seller or its Affiliates with respect to any of the Acquired Assets;

          (k) the right to (i) produce (or have produced), market, distribute and sell the (x) the Transferred Products (subject to the License Agreement) and (y) the Dual Products within the Territory and, in the case of the Dual Products, being limited to FTG Applications and being subject to the terms of the licenses granted by Seller to Purchaser pursuant to Sections 1.6(a) and 1.7 , and (ii) market, distribute and sell the Supplied Products subject to the terms of the Distribution Agreement; and

          (l) the goodwill associated with the Assets listed above in this Section 1.1 .

     1.2 Excluded Assets .

          (a) For the avoidance of doubt, the parties acknowledge that (i) Seller is engaged in, among other businesses, (x) the business of producing (or having produced), marketing, distributing and selling Products for FTG Applications in the Retained Territory (the “ Retained Territory Business ”), (y) the business of producing (or having produced), marketing, distributing and selling the Dual Products for applications other than the FTG Applications inside and outside the Territory (the “ Dual Products Business ”), (z) the business of producing (or having produced) the Supplied Products and (zz) the business of marketing, distributing and selling the Supplied Products to customers other than the Supplied Products Customers for, among other applications, water treatment and wastewater treatment applications (excluding, for the avoidance of doubt, FTG Applications) (clauses (z) and (zz) collectively, the “ Water Treatment Business ”), (ii) the Retained Territory Business, the Dual Products Business and the Water Treatment Business are not included in the Acquired Assets, (iii) nothing in this Agreement shall be interpreted to preclude Seller from conducting the Retained Territory Business, Dual Products Business, the Water Treatment Business or any other Retained Business, (iv) subject to the terms of Sections 1.6(a) and 1.7 and the licenses granted in the Distribution Agreement, none of the product formulas, product names or any other Intellectual Property Rights and Technology of Seller or its Affiliates related to (x) the Dual Products (the “ Dual Products IP and Technology ”) and (y) the Supplied Products (the “ Supplied Products IP and Technology ”) is included in the Acquired Assets and (v) Seller intends to continue to engage in the Retained Territory Business, the Dual Products Business, the Water Treatment Business and the other Retained Businesses from and after the Closing.

          (b) Notwithstanding the provisions of Section 1.1 or anything to the contrary in this Agreement and without limiting Section 1.2(a) , Seller and its Affiliates shall not sell to Purchaser, and Purchaser shall not purchase from Seller and its Affiliates, any Assets other than the Acquired Assets (the “ Excluded Assets ”). Without limiting the foregoing, the Excluded Assets shall include:

     (i) all cash on hand and in deposit or bank accounts and cash equivalents held by or on behalf of Seller and its Affiliates;

     (ii) all accounts receivable arising in connection with, or related to the Business;

     (iii) subject to the terms of Sections 1.6(a) and 1.7 and the Distribution Agreement, all Dual Products IP and Technology and Supplied Products IP and Technology and all other Intellectual Property Rights and Technology of Seller and its Affiliates (other than Transferred Intellectual Property and Transferred Technology), including all Trademark Rights together with product codes, including “YSLD” codes, listed on Schedule 1.2(b)(iii) ;

     (iv) all payments due to Seller from Calvary Industries, Inc. under sections 8 and 12 of the Stipulation and Order on Consent made as of January 31, 2008, by Seller, Susan L. Kimball, Calvary Industries, Inc. and Pete Neff; and

     (v) without limitation of clauses (i), (ii), (iii) and (iv) above, all Assets of Seller and its Affiliates other than the Acquired Assets, including the Retained Business and all Assets described in clauses (i), (ii) and (iii) related to the Retained Business.

     1.3 Assumed Liabilities . Subject to Sections 1.4 and 1.5 , upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, and agree to pay, perform and discharge, as of the Closing, the following liabilities and obligations arising in connection with the Business (collectively, the “ Assumed Liabilities ”):

          (a) Liabilities of Seller or any of its Affiliates under each Assumed Contract to the extent arising from and after the Closing with respect to periods after the Closing ( provided , however , that Purchaser and its Affiliates shall not assume any Liability under any Assumed Contract arising out of a breach or default by Seller or any of its Affiliates under any Assumed Contract (including any event prior to the Closing that with the passage of time or the giving of notice, or both, would become such a breach or default);

          (b) Except as provided in the Ancillary Agreements, Liabilities to the extent arising from and after the Closing with respect to periods after the Closing arising as a result of, or with respect to, the operation of the Business, Acquired Assets and Owned Real Property after the Closing, other than Liabilities described in the proviso to Section 1.3(a) ; and

          (c) Subject to Purchaser’s rights of indemnification pursuant to Article XI , Other Environmental Liabilities.

     1.4 Retained Liabilities . Notwithstanding any provision of this Agreement to the contrary, except for the Assumed Liabilities, Purchaser and its Affiliates shall not assume any Liabilities of, or arising as a result of or with respect to actions or omissions of, Seller or any of its Affiliates (whether arising before or after the Closing) (collectively, “ Retained Liabilities ”). The Retained Liabilities include the following:

          (a) Except as provided in Article XII , Liabilities arising out of, or with respect to, any Benefit Plan or any other current or former benefit plan, policy or arrangement of Seller or any of its Affiliates and Liabilities with respect to current or former employees, or current or former agents or independent contractors, of Seller or any of its Affiliates or any its or their predecessors, or any of their beneficiaries, heirs and assigns, in each case whether arising before or after the Closing;

          (b) Off-Site Environmental Liabilities;

          (c) Liabilities arising or resulting from the distribution, sale or use (whether or not intended) of products manufactured or sold by Seller or any of its Affiliates prior to the Closing (regardless of whether the particular Liability occurs prior to or following the Closing), including, without limitation, Liabilities constituting or arising out of death, personal injury, other injury to natural persons, property or consumer fraud;

          (d) Liabilities of Seller and its Affiliates for Taxes, except to the extent provided in Section 13.1 and excluding, for the avoidance of doubt, any Taxes imposed on Purchaser attributable to its operation of the Business from and after the Closing;

          (e) Except as provided in Section 1.3(c) , Liabilities arising out of, in connection with or as a result of the operation of the Business, Acquired Assets or Owned Real Property prior to the Closing (including the matters set forth on Schedule 3.7 and all Actions relating thereto or arising therefrom); and

          (f) Liabilities to Seller or any of its Affiliates.

     1.5 Certain Provisions Regarding Assignments .

          (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign or transfer any Assumed Contract or other Acquired Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if an assignment or transfer thereof, without a Consent or Approval of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of Purchaser under such Contract or other Acquired Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof. Seller will use reasonable best efforts to obtain any such Consent or Approval at or prior to the Closing, and if such Consent or Approval is not obtained at or prior to the Closing, the provisions of Section 1.5(b) will apply.

          (b) Without limitation of the rights or obligations of Seller or Purchaser under Article XI or otherwise, if any Assumed Contract, Permit or other Acquired Asset to be assigned, transferred, conveyed or reissued to Purchaser pursuant to this Article I is not capable of being validly and fully assigned, transferred, conveyed or reissued to Purchaser without a Consent or Approval, and such Consents and Approvals have not been obtained prior to the Closing or do not remain in full force and effect at or after the Closing, then until such time as such Consent or Approval is obtained, (i) Seller shall, and shall cause its Affiliates to, use their reasonable best efforts to obtain such Consents or Approvals and (ii) Seller and Purchaser shall cooperate in any

reasonable and lawful arrangement designed to provide to Purchaser the benefits of any Assumed Contract, Permit or other Acquired Asset as to which such Consent or Approval has not been obtained or does not remain in full force and effect. To the extent that Purchaser is provided the benefits pursuant to this Section 1.5 of any such Assumed Contract, Permit or other Acquired Asset, Purchaser shall perform the obligations of Seller and its Affiliates thereunder or in connection therewith with respect to periods following the Closing, but only to the extent that such obligation would have been an Assumed Liability but for the fact that such a Consent or Approval has not been so obtained.

     1.6 Shared Product Names and Trademarks .

          (a) For the period from the Closing Date through the six-month anniversary of the Closing Date, Seller (on behalf of itself and its Affiliates) hereby grants to Purchaser a fully paid-up, royalty-free, non-exclusive, license to use in the Territory all Trademark Rights together with the product codes, including “YSLDs”, used in the Business prior to the date of this Agreement or the Closing Date that refer, as applicable, to (x) the Transferred Products or (y) the Dual Products for FTG Application in the Territory, but are not included in the Transferred Intellectual Property, including the Trademark Rights listed on Schedule 1.6(a) (the “ Seller Shared Trademarks ”), in each case solely for FTG Applications in the Territory. On or before the six-month anniversary of the Closing Date, Purchaser shall cease and discontinue any use of the Seller Shared Trademarks.

          (b) For the period from the Closing Date through the six-month anniversary of the Closing Date, Purchaser hereby grants to Seller a fully paid-up, royalty-free, non-exclusive, license to use the Trademark Rights listed on Schedule 1.6(b) (“ Purchaser Shared Trademarks ”) used in the Retained Business prior to the date of this Agreement and the Closing Date that refer to products of the Retained Business solely for applications within the Retained Business. On or before the six-month anniversary of the Closing Date, Seller shall cease and discontinue any use of the Purchaser Shared Trademarks.

     1.7 Shared Intellectual Property Rights and Technology .

          (a) Effective as of the Closing Date, Seller (on behalf of itself and its Affiliates) hereby grants to Purchaser a fully paid-up, royalty-free, exclusive (except that such license as it relates to Plastic Facia Applications shall be non-exclusive), perpetual right and license to Use in the Territory solely for FTG Applications and Plastic Facia Applications in the Territory (the “ FTG IP License ”) (x) any and all Dual Products IP and Technology and (y) other Intellectual Property Rights and Technology of Seller and its Affiliates, in each case of clauses (x) and (y) if in existence and used in the Primary FTG Business prior to the Closing Date (other than Seller Shared Trademarks, which are addressed in Section 1.6(a)) ; provided , however , that the exclusivity of the FTG IP License to Purchaser shall not be deemed to prohibit Seller from using any Intellectual Property Rights and Technology that derives independent economic value from not being generally known and that enters the public domain (other than Intellectual Property Rights and Technology which becomes known to the public through a breach by Seller of its obligations under this Agreement or any other obligation of confidentiality of Seller or any of its Affiliates to Purchaser or any of its Affiliates). Purchaser shall have the right to freely grant sublicenses with respect to or to assign (in whole or in part) the FTG IP License, in each

case consistent with the terms of this Agreement. At the Closing, subject to the confidentiality provisions contained in Section 13.10 , Seller shall, or shall cause its Affiliates to, disclose any and all formulas for the Dual Products and any and all Technology related to the production of the Dual Products for use in FTG Applications in the Territory (the “ Disclosed Dual Products Information ”), it being agreed that the Purchaser may use such formulas only in accordance with the license grant in this Section 1.7 .

          (b) Seller shall have the sole right to prosecute and maintain the patents and patent applications included in the Nalco Licensed IP and Dual Products IP and Technology at its own expense, and to select patent counsel of its choosing to conduct such prosecution and maintenance. Seller shall have no obligation to Purchaser to maintain any such patents or patent applications. With respect to the patent and patent applications listed on Schedule 1.7(b) (the “ Designated Patents ”), if Seller chooses not to prosecute or maintain the Designated Patents in the Territory, Seller will promptly notify Purchaser and Purchaser will have the right to prosecute and maintain such Designated Patents and pay the applicable prosecution and/or maintenance fees.

          (c) Each party shall promptly notify the other party in writing when it becomes aware of any infringement or suspected infringement of any of the Designated Patents (including provision of any supporting evidence of which that party has knowledge). No litigation or other assertions of infringement or unauthorized use of the Designated Patents shall be undertaken by Purchaser without prior notice to and the express prior written consent of Seller. Notwithstanding the foregoing, if Seller, after being given a reasonable opportunity of not less than thirty (30) days to do so, fails, refuses or is otherwise unwilling or unable to undertake any such litigation or assertion with respect to infringement or unauthorized use of any one of the Designated Patents in the Territory, Purchaser shall have the right, but not the obligation, to undertake at its own expense such litigation or assertion. The party that takes action with respect to any infringement or unauthorized use of any one of the Designated Patents in the Territory (the “ Enforcing Party ”) shall be reimbursed for any out-of-pocket costs and expenses incurred by it in connection with such suit out of funds recovered in any such action, and the balance of such funds shall be allocated in accordance with the damages incurred by each party. Seller agrees to cooperate with Purchaser to the extent necessary to enable Purchaser to institute and prosecute any such action or proceeding. In any such suit or proceeding brought by Seller with respect to the Designated Patents, Purchaser agrees to cooperate with Seller. The Enforcing Party shall obtain the prior written approval (not to be unreasonably withheld) of the other party before entering into any settlement of any such suit or proceeding, if pursuant to or as a result of such settlement, injunctive or other equitable relief would be imposed against such party or its Affiliates or such settlement could reasonably be expected to have a material adverse effect upon the Business (in the case of Purchaser) or the Retained Business (in the case of Seller).

          (d) In the event that a third party institutes litigation or otherwise alleges or claims that any one of the Designated Patents is invalid or unenforceable in the Territory, and Seller, after being given a reasonable opportunity to do so, fails, refuses or is otherwise unwilling or unable to undertake the defense of such claims of invalidity or unenforceabilty, Purchaser shall have the right, but not the obligation, to undertake at its own expense such defense. Seller

agrees to cooperate with Purchaser to the extent necessary to enable Purchaser to prosecute any such defense.

ARTICLE II
PURCHASE PRICE; TERMS OF PAYMENT

     2.1 Purchase Price . The purchase price for the Acquired Assets and the covenants contained in Sections 6.1 and 6.2 shall be U.S. $75 million, subject to adjustment pursuant to this Section 2. 1 and Section 5.7 (the “ Purchase Price ”). At the Closing, Purchaser shall pay to Seller an amount equal to the Purchase Price in accordance with Section 7.3 . The parties agree that the Acquired Assets will include Inventory in full containers conforming with the representations and warranties set forth in Section 3.17 as if for such purposes such representations and warranties were made as of the date such Inventory is delivered to Purchaser as provided herein and in the Transition Services Agreement and valued on a cost basis at $2.5 million as of the expiration or termination of the Transition Services Agreement, such valuation to be determined in accordance with GAAP applied on the basis set forth in Schedule 2.1 . The parties agree that (x) a portion of such Inventory will be located at the Owned Real Property as of the Closing and (y) a portion of such Inventory will be located at other facilities of the Seller until the expiration or termination of the Transition Services Agreement (the “ Off-Site Inventory ”), with such Off-Site Inventory to be delivered to Purchaser in accordance with the Transition Services Agreement and Section 5.4 of this Agreement. If and to the extent that as of the expiration or termination of the Transition Services Agreement the value of all such Inventory included in the Acquired Assets (determined on such basis) is (a) more than $2.5 million, Purchaser will pay to Seller an amount equal to the excess or (b) less than $2.5 million, Seller will pay to Purchaser an amount equal to the shortfall. Purchaser and Seller will cooperate in verifying the value of all such Inventory included in the Acquired Assets. Any payment made to Purchaser pursuant to the fifth sentence of this Section 2.1 will be deemed to be an adjustment to the Purchase Price and will be made within fifteen (15) Business Days of the determination of the value of all Inventory included in the Acquired Assets by wire transfer of immediately available funds to a bank account designated by Purchaser in writing to the Seller. Any payment made to Seller pursuant to the fifth sentence of this Section 2.1 will be deemed to be an additional payment made pursuant to the Transition Services Agreement (and, for the avoidance of doubt, will not be deemed to be an adjustment to the Purchase Price) and will be made within fifteen (15) Business Days of the determination of the value of all Inventory included in the Acquired Assets by wire transfer of immediately available funds to a bank account designated by Seller in writing to the Purchaser.

     2.2 Allocation of the Purchase Price . Within 15 days of the date hereof, Seller shall deliver to Purchaser a schedule allocating the Purchase Price and Assumed Liabilities (the “ Allocation ”) among (x) the Owned Real Property and (y) each of the countries in which the Business is conducted. If, within 15 days of receipt of the Allocation from Seller, Purchaser notifies Seller in writing that Purchaser objects to one or more items reflected in the Allocation, Purchaser and Seller shall negotiate in good faith to resolve such dispute. If Purchaser and Seller fail to resolve any such dispute within 15 days of Seller’s receipt of Purchaser’s objections, Purchaser and Seller shall submit the dispute for resolution of the dispute to a mutually acceptable nationally recognized public accounting firm with no material relationship to either Purchaser or Seller (the “ Selected Accountant ”), which resolution shall be final and binding on

Purchaser and Seller. One-half of the fees and expenses of the Selected Accountant shall be borne by Seller and one-half shall be borne by Purchaser. Purchaser and Seller will each report the federal, state, local and foreign income and other Tax consequences of the transactions contemplated by this Agreement in a manner consistent with the Allocation as agreed to by the parties or determined by the Selected Accountant and cooperate in the preparation and filing of IRS Form 8594 under section 1060 of the Code (or any successor form or successor provision of any future Tax law, or any comparable provisions of state, local or foreign Tax law), with their respective federal, state and local income Tax returns for the taxable year that includes the Closing Date.

     2.3 Returns . Following the Closing, Purchaser may grant credits and refunds in respect of Products sold by the Business prior to the Closing due to the failure of such Products to meet Seller’s manufacturing specifications in effect at the time of sale of such Products (“ Returns ”). Seller shall from time to time at the request of Purchaser reimburse Purchaser for the cost of such Returns (which cost, for purposes of this Section 2.3 , shall equal the full amount of the return or credit, plus any disposal costs).

     2.4 Proration of Certain Items . Purchaser and Seller agree that the following expenses of the Business shall be calculated and prorated as of the Closing, with Seller responsible for such expenses for the period up to the Closing, and Purchaser to be responsible for the period on and after the Closing Date: (i) real property and personal property Taxes, water, electric, fuel, gas, telephone, sewer and other utility charges, in each case, to the extent relating to the Owned Real Property and the Business, (ii) rentals and other charges under Assumed Contracts, and (iii) fees under Permits to be transferred to Purchaser as part of the Acquired Assets. Such proration shall be preliminarily made at the Closing and completed within 45 days of the Closing, and any amount due from one party to the other in respect of such proration shall be paid within ten days thereafter.

ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF SELLER

     Seller hereby represents and warrants to Purchaser as follows:

     3.1 Organization, Existence and Standing . Seller is a corporation validly existing and in good standing under the laws of the State of Delaware. Seller is qualified to do business and in good standing or its functional equivalent in each jurisdiction where the nature of the Business requires such qualification, with such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

     3.2 Capacity to Sell; Authorization . Seller has full corporate power and authority to own, lease and operate the Acquired Assets owned, leased or operated (as the case may be) by it and to carry on the Business as now being conducted by it. Seller has full corporate power and authority to execute, deliver and perform this Agreement and the Ancillary Agreements to be executed and delivered by Seller and to consummate the transactions contemplated hereby and thereby to be consummated by Seller. The execution, delivery and performance of this Agreement and the Ancillary Agreements to be executed and delivered by Seller or any of its

Affiliates and the consummation of the transactions contemplated hereby and thereby to be consummated by Seller and its Affiliates have been duly authorized by all necessary corporate action on the part of Seller and, in the case of the Ancillary Agreements to be executed and delivered by an Affiliate of Seller, at the Closing Date will have been duly authorized by all necessary corporate (or other Entity) action on the part of such Affiliate. Except as set forth on Schedule 3.2 , the execution, delivery and performance of this Agreement and the Ancillary Agreements to be executed and delivered by Seller or any of its Affiliates, and the consummation of the transactions contemplated hereby and thereby to be consummated by Seller and its Affiliates do not and will not (i) contravene or violate the certificate of incorporation or by-laws (or comparable governing instruments) of Seller or such Affiliate; (ii) conflict with, violate, result in a breach or termination of, result in any default under, entitle any Person (with due notice or lapse of time or both) to terminate, cancel, accelerate, modify or call a default with respect to, any contract, agreement, mortgage, Lien, lease, order, arbitration award, judgment or decree or other commitment to which Seller or any of its Affiliates is a party or by which Seller or any of its Affiliates or any of their respective Assets is bound, or result in the acceleration of the due date of any Liability of Seller or any of its Affiliates; (iii) require Seller or any of its Affiliates to obtain, secure or make any Approval or Consent, require Seller or any of its Affiliates to obtain, secure or make any Approval or Consent, other than compliance with and filings under the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), and under the Anti Monopoly Law in the People’s Republic of China (the “ AML ”); or (iv) conflict with, or result in a breach of, any Legal Requirement to which Seller or any of its Affiliates is subject. No Consent or other action by the stockholders, security holders or other equity holders of Seller or any of its Affiliates is required in connection with the execution, delivery and performance by Seller or any of its Affiliates of this Agreement and the Ancillary Agreements to be executed and delivered by Seller or such Affiliates, as the case may be, that has not heretofore been irrevocably obtained. This Agreement has been, and the Ancillary Agreements to be executed and delivered by Seller or any Affiliate of Seller will at the Closing have been, duly executed and delivered by Seller or such Affiliate, as the case may be. This Agreement constitutes, and as of the Closing the Ancillary Agreements to be executed and delivered by Seller or any Affiliate of Seller will constitute, the legal, valid and binding obligation of Seller or such Affiliate, as the case may be, enforceable against Seller or such Affiliate, as the case may be, in accordance with their respective terms, except as such enforceability may be limited by applicable Legal Requirements relating to bankruptcy, insolvency, reorganization, moratorium or other similar Legal Requirements relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

     3.3 Statements of Revenues . A true, correct and complete copy of unaudited statements of revenues of the Business, less cost of goods sold and direct selling expenses for the twelve-month periods ended December 31, 2006 and December 31, 2007 are attached as Schedule 3.3 (all such statements of revenues, the “ Statements of Revenues ”). The Statements of Revenues fairly present the revenues of the Business, less cost of goods sold and direct selling expenses for the periods indicated, in each case, in a manner consistent with past practices applied by Seller for its other business units, applied on a consistent basis throughout the periods specified.

     3.4 Operation of the Business . Except as set forth on Schedule 3.4 , since December 31, 2007 the Business has been conducted only in the ordinary course of business consistent with past practices and there has not been:

          (a) any change, event or occurrence that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

          (b) any amendment or modification to, or waiver of any rights by Seller or any other Person under, any Assumed Contract;

          (c) any increase in the compensation, pension, or other benefits payable or to become payable to any Business Employee, or any bonus payments or arrangements made or promised to or with any of them, except for increases or bonuses paid in the ordinary course of business consistent with past practices pursuant to periodic evaluations of employees;

          (d) any sale or transfer of any of the Acquired Assets, except in the ordinary course of business and consistent with past practices;

          (e) any mortgage, pledge or subjection to any Lien of any of the Acquired Assets;

          (f) any transaction entered into by Seller or any of its Affiliates with respect to the Business, other than in the ordinary course of business consistent with past practices;

          (g) any change or modification in any material respect in the Business’ credit and collection policies, procedures and practices with respect to accounts receivable;

          (h) any settlement of any material claim or Action involving money damages or waiver or release any material rights or claims in connection with the Business, except in the ordinary course of business consistent with past practices; or

          (i) any authorization, approval, agreement or commitment, whether in writing or otherwise, to do any of the foregoing.

     3.5 Acquired Assets; Title .

          (a) Seller has, and at the Closing will convey to Purchaser good, marketable and indefeasible fee simple title to the Owned Real Property, free and clear of all Liens, except as set forth on Schedule 3.5(a) , Liens for Taxes, assessments and other governmental charges which are not due and payable and which may thereafter be paid without penalty and public rights of ways and other easements benefiting the property.

          (b) No condemnation or eminent domain proceeding against or affecting all or any portion of the Owned Real Property is pending or, to the Knowledge of Seller, threatened. Seller’s and its Affiliates’ use of the Owned Real Property is in compliance in all material respects with all Legal Requirements and other applicable requirements relating to the use thereof, and all necessary occupancy and other certificates and Approvals for the occupancy and lawful use thereof have been issued and are in full force and effect. The Owned Real Property

does not encroach on property or rights of others, and the property of others does not encroach upon the Owned Real Property. The Owned Real Property has direct and unrestricted access over currently utilized facilities and land to such public roads, owned roads and driveways presently in use (which include at least one public road), and such utilities and other services, as are necessary for the uses thereof and the conduct of the Business as currently conducted by Seller and its Affiliates. No use of any of the Owned Real Property in connection with the Business as currently conducted by Seller and its Affiliates is dependent upon the continuance of a nonconforming use, zoning variance or other Approval. Neither Seller nor any of its Affiliates has applied for any change in the zoning or land use classification of the Owned Real Property. The fixtures and improvements on the Owned Real Property and all tangible Acquired Assets located on the Owned Real Property are in good operating condition, ordinary wear and tear excepted, and are suitable for the purposes for which they are being used by Seller and have been maintained in accordance with normal industry practice.

          (c) Except as set forth on Schedule 3.5(c) , the Acquired Assets include all Assets required for the conduct of the Business as currently conducted by Seller and its Affiliates.

          (d) Seller has, and at the Closing will convey to Purchaser, good and marketable title to, all of the Acquired Assets (other than the Owned Real Property), free and clear of all Liens.

     3.6 Intellectual Property; Technology .

          (a) Schedule 3.6(a) contains a true, complete and correct list of all Transferred Intellectual Property and Nalco Licensed IP for which registration has been issued by, or has been applied for and is pending with, the United States Patent and Trademark Office (the “ PTO ”), the United States Copyright Office, any state trademark offices and the patent, trademark, copyright and other corresponding offices of foreign jurisdictions within the Territory; specifying as to each, as applicable: (i) the owner of such Transferred Intellectual Property and Nalco Licensed IP and (ii) the jurisdictions within the Territory in which such Transferred Intellectual Property and Nalco Licensed IP has been registered, or in which an application for registration has been filed, and the registration or application numbers. Schedule 3.6(a) further sets forth a true, complete and correct list of all domain name registrations that are included in the Transferred Intellectual Property.

          (b) To the Knowledge of Seller, each item of the Transferred Intellectual Property and Nalco Licensed IP will be valid and enforceable as of the Closing Date, and all registrations thereof are valid and subsisting. All necessary registration, maintenance, renewal fees, annuity fees and Taxes in connection with such Transferred Intellectual Property and Nalco Licensed IP for which registration has been issued have been duly paid (and no such payment is overdue or requires a paid extension of time), and all necessary documents and certificates in connection with such Transferred Intellectual Property and Nalco Licensed IP for which registration has been issued have been filed with the relevant trademark, patent, copyright or other authorities in the United States or foreign jurisdictions within the Territory, as the case may be, for the purposes of maintaining such Transferred Intellectual Property and Nalco Licensed IP.

          (c) There are no licenses or other agreements from or with third parties under which Seller or any of its Affiliates uses or exercises any rights with respect to any of the Transferred Intellectual Property, Transferred Technology or Nalco Licensed IP (other than standard, commercially available off-the-shelf software). Neither Seller nor any of its Affiliates has received (and Seller has no Knowledge of) any written notice from any other Person pertaining to or challenging the right of Seller or any of its Affiliates or any other Person) to use any of the Transferred Intellectual Property, Transferred Technology or Nalco Licensed IP, and there is no interference, opposition, cancellation, reexamination or other Action, pending or to Seller’s Knowledge threatened with respect to any Transferred Intellectual Property, Transferred Technology or Nalco Licensed IP. Except as set forth on Schedule 3.6(c) , no licenses have been granted and neither Seller nor any of its Affiliates have an obligation to grant licenses with respect to any Transferred Intellectual Property, Transferred Technology or Nalco Licensed IP. No claims have been made by Seller or any of its Affiliates of any violation or infringement by others of rights with respect to any Transferred Intellectual Property, Transferred Technology or Nalco Licensed IP, and Seller has no Knowledge of any basis for the making of any such claim. To the Knowledge of Seller, the use by Seller and its Affiliates of the Transferred Intellectual Property, Transferred Technology and Nalco Licensed IP has not violated or infringed any rights of other Persons, or constituted a breach of any Contract (or other agreement or commitment).

          (d) The Transferred Intellectual Property, Transferred Technology, the Nalco Licensed IP and the licenses of Intellectual Property Rights contained in the Distribution Agreement include all such rights necessary to produce (with respect to Transferred Products and Dual Products), market, distribute and sell the Products in the manner now conducted by the Business, without the payment of a royalty or other fee to any Person, and such rights will not be adversely affected by the execution and delivery of this Agreement, the Ancillary Agreements or the consummation of the transactions contemplated hereby and thereby.

          (e) Seller and its Affiliates have used reasonable best efforts to protect all of their rights in confidential information and trade secrets related to the Transferred Products or the Business or provided by any other Person to the Business subject to a duty of confidentiality.

     3.7 Pending or Threatened Actions . Except as set forth on Schedule 3.7 , there is no material Action pending or, to the Knowledge of Seller, threatened against Seller or any of its Affiliates relating to the Business or the Transferred Products, at law or in equity, before or by any Governmental Authority. Neither Seller, any of its Affiliates nor any of their officers or employees is subject to any judgment, decree, writ, injunction or order of any Governmental Authority relating to the Business or the Transferred Products.

     3.8 Permits .

          (a) Schedule 3.8(a) lists all Approvals issued to Seller or its Affiliates which are necessary to market, distribute and sell the Products (“ Product Approvals ”) in all material respects in the manner currently conducted by the Business. None of the Product Approvals are assignable to Purchaser.

          (b) Attached as Schedule 3.8(b) hereto is a true, complete and correct list of all Permits issued to Seller or its Affiliates in effect as of the date hereof. Seller has been granted

and holds, and has made, all Approvals necessary for Seller’s operation of the Business as conducted on the Owned Real Property. Each of the Permits is in full force and effect, Seller and its Affiliates are in compliance in all material respects with all of its obligations with respect thereto, and to the Knowledge of Seller, no event has occurred which permits, or upon the giving of notice or lapse of time or otherwise would permit, revocation, early termination or non-renewal of any of the Permits. True, complete and correct copies of the Permits have heretofore been delivered to Purchaser. Seller has not received written notice that Seller or the Owned Real Property is not in compliance with the Permits.

     3.9 Compliance with Legal Requirements . Excluding Legal Requirements relating to the protection of public health or the environment (as to which reference is made to Section 3.15 ), Seller and its Affiliates are conducting the Business in compliance in all material respects with all applicable Legal Requirements. No notice of non-compliance by Seller or any of its Affiliates with any Legal Requirement applicable to the Business has been received by Seller or any of its Affiliates (and Seller has no Knowledge of any such notice delivered to any other Person), except in respect of instances of non-compliance that are not material (individually and in the aggregate) and have been discharged without Liability to, or adverse effect on, the Business following the Closing.

     3.10 Transactions with Affiliates . Set forth on Schedule 3.10 is a true, correct and complete list and description of (i) each Assumed Contract between the Business, on the one hand, and Seller and/or one or more of its Affiliates, on the other hand, (ii) all intercompany transactions between the Business, on the one hand, and Seller and/or one or more of its Affiliates, on the other hand, that have occurred since January 1, 2005.

     3.11 Employees; Labor Relations .

          (a) Schedule 3.11 sets forth a complete and correct list of all employees of Seller and its Affiliates that perform services primarily for the Business as of the date hereof (“ Business Employees ”), including for each such Business Employee the name of the entity by which each such employee is employed and his or her (i) name, (ii) job title and description, (iii) status as a full-time, part-time or temporary employee, (iv) base salary or wage rate and (v) 2007 bonus. Schedule 3.11 also lists each Business Employee who is not actively at work for any reason other than vacation and the reason for such absence.

          (b) None of the Business Employees as of the date hereof are covered by a collective bargaining agreement or bound by any other agreement with a labor union. To the Knowledge of Seller, there are no employee organizing efforts pending or threatened with respect to the Business Employees. No collective bargaining agreement or any other agreement with a labor union is currently being negotiated by Seller or its Affiliates with respect to the Business Employees. Since January 1, 2005, there has been no strike, work slowdown or other material labor dispute with respect to Business Employees, and, to the Knowledge of Seller, no strike, work slowdown or other material labor dispute involving any of the Business Employees is pending or threatened. There are no unfair labor practice claims or charges pending or, to the Knowledge of Seller, threatened, involving Seller or any of its Affiliates with respect to the Business Employees.

          (c) Seller and its Affiliates are in compliance in all material respects with all applicable Legal Requirements relating to labor and employment practices, including those relating to terms and conditions of employment, wages, hours, discrimination, harassment, occupational safety and health, wage and hour laws, and/or social contribution Taxes and similar Taxes, national pension, national medical insurance, worker’s compensation insurance, unemployment insurance and other mandatory social security matters, with respect to the Business Employees. No Action of any kind with respect to the Business Employees is pending in any agency, commission, court or other tribunal, and Seller has no Knowledge of any such threatened Action.

          (d) There are no complaints, audits or Actions pending or to Seller’s Knowledge, threatened by or on behalf of (i) the National Workers’ Housing Fund Institute ( Instituto del Fondo Nacional de la Vivienda para los Trabajadores ), pursuant to the Mexican Labor Law or the National Housing Fund Law ( Ley del Instituto del Fondo Nacional de la Vivienda para los Trabajadores ), or (ii) the Mexican Social Security Institute (Instituto Mexicano del Seguro Social ) or the Social Security Law ( Ley del Seguro Social ) with respect to the Mexican Employees.

     3.12 Employee Benefits .

          (a) Schedule 3.12 sets forth a complete and correct list of (i) any “employee benefit plan” within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), (ii) any other employee benefit plan, arrangement or policy, including, without limitation, any stock option, stock purchase, stock award, stock appreciation, phantom stock, deferred compensation, pension, retirement, savings, profit sharing, incentive, bonus, health, life insurance, cafeteria, flexible spending, dependent care, fringe benefit, vacation pay, holiday pay, disability, sick pay, workers compensation, unemployment, severance, employee loan or educational assistance plan, arrangement or policy, and (iii) any employment, indemnification, consulting, severance or change-in-control agreement, in each case, which is sponsored or maintained by Seller or its Affiliates, or to which Seller or its Affiliates contributes or is required to contribute, on behalf of current or former employees, consultants or directors of the Business or their beneficiaries or dependents (“ Benefit Plans ”). Neither Seller nor its Affiliates has communicated to present or former employees of the Business or formally adopted or authorized any additional Benefit Plan or any change in or termination of any existing Benefit Plan.

          (b) Seller has delivered to Purchaser complete and correct copies of each Benefit Plan, or written summaries of any unwritten Benefit Plan, any employee handbook applicable to the Business Employees, and, with respect to each such Benefit Plan, the current summary plan description.

          (c) Each Benefit Plan is and has been operated and administered in accordance with its terms and all applicable Legal Requirements. Each such Benefit Plan intended to be tax-qualified under section 401(a) of the Code has received a favorable determination letter from the IRS as to its tax-qualified status under the Code and nothing has occurred since the date of such favorable determination letter which would adversely affect the

qualified status of such plan. All contributions and premium payments required to have been paid under or with respect to any Benefit Plan have been timely paid.

          (d) No event has occurred and no condition exists with respect to any Benefit Plan or any employee benefit plan currently or formerly maintained, sponsored, or contributed to by Seller of any of its Affiliates which has resulted in, or could reasonably be expected to result in, the imposition of a Lien on the Assets of the Business or the Acquired Assets or which could reasonably be expected to subject Purchaser or any of its Affiliates or their respective officers, directors, employees or agents, directly or indirectly (through indemnification or otherwise) to any Tax, penalty, fine or other Liability.

          (e) All amounts owed by Seller or its Affiliates, and payable to the Mexican Employees in connection with PTU, have been fully paid.

     3.13 Taxes .

          (a) Seller and its Affiliates have timely filed all Tax returns which are required to be filed by them, which returns are true, correct and complete in all material respects, and timely paid in full all Taxes that are required to be shown as due pursuant to such returns or otherwise required to be paid.

          (b) Solely as relates to the Business, there are no Actions now pending, nor, to the Knowledge of Seller, are there any Actions or claims pending or threatened against Seller or its Affiliates, nor are there any pending audits, investigations or examinations by any Governmental Authority relating to any Taxes or assessments, or any claims or deficiencies asserted with respect thereto.

     3.14 Assumed Contracts . Except as set forth on Schedule 3.14 , as of the date of this Agreement there are no (i) open orders (other than blanket purchase orders or Assumed Contracts) in North America for more than $5,000 with the Business or (ii) Contracts (other than purchase orders) pursuant to which customers of the Business purchase Products from Seller or any of its Affiliates. Schedule 1.1(f) lists all Contracts (other than purchase orders) (a) pursuant to which customers of the Business purchase Products from the Business as of the date of this Agreement and (b) pursuant to which Seller or any of its Affiliates purchase goods and services exclusively for the Business as of the date of this Agreement. Schedule 3.14 sets forth a complete and correct list of all Contracts (other than Assumed Contracts) as of the date of this Agreement providing for the services of any distributor, sales representative or similar representative related to the marketing, distribution and/or sale of the Products by the Business. Neither Seller nor any of its Affiliates, nor, to the Knowledge of Seller, any other party to any Assumed Contract, is in breach or default under any Assumed Contract, and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach or default under any Assumed Contract by Seller or any of its Affiliates or, to the Knowledge of Seller, any other party to any Assumed Contract. True, complete and correct copies of all Assumed Contracts listed on Schedule 1.1(f) and all Contracts listed on Schedule 3.14 (other than purchase orders), if any, have heretofore been delivered to Purchaser.

     3.15 Environmental Matters .

          (a) Seller and its Affiliates are conducting the Business in compliance in all material respects with all applicable Legal Requirements relating to the protection of public health or the environment. To the Knowledge of Seller, there are no material Environmental Liabilities. Neither Seller nor any of its Affiliates has received (or has Knowledge of) with respect to the Business or the Owned Real Property (i) a request for information from any Governmental Authority with respect to any discharge or removal of any Hazardous Material, or (ii) written notice that Seller or any of its Affiliates in respect of the Business has been or may be identified in any Action as a responsible party or a potentially responsible party for any Liability under any Legal Requirement with respect to the generation, use, handling, storage, transportation, treatment or Release of any Hazardous Material, except for any of the above that have been resolved without material Liability to the Business during the five years prior to the date of this Agreement and have had no substantive action for more than five years prior to the date hereof. Neither Seller nor any of its Affiliates has filed any notice under any Legal Requirement reporting a Release of a Hazardous Material at the Owned Real Property, except for any such notice that has been resolved without material Liability to the Business during the five years prior to the date of this Agreement and has had no substantive action for more than five years prior to the date hereof.

          (b) Neither Seller nor any of its Affiliates in respect of the Business has entered into any negotiations, agreements or undertakings with any Person relating to any Remedial Action in respect of the Owned Real Property, except for any of the above that have been resolved without material Liability to the Business during the five years prior to the date of this Agreement and have had no substantive action for more than five years prior to the date hereof. There are no underground storage tanks located on the Owned Real Property, and Seller and its Affiliates have at all times complied with all Legal Requirements applicable to any such tanks previously located on the Owned Real Property, including those governing removal or abandonment of underground storage tanks. Seller has made available to Purchaser all material reports, analyses, data and investigatory materials in the possession of Seller related to surface and subsurface environmental conditions at the Owned Real Property.

          (c) Notwithstanding any other provision of this Agreement, the representations and warranties set forth in this Section 3.15 are the only representations and warranties relating to Environmental Liabilities, Hazardous Materials, or Remedial Actions made by Seller under this Agreement.

     3.16 Warranties . Except for such terms and conditions (including guaranty, warranty and indemnity provisions) as may be set forth in purchase orders for Products from the Business (other than blanket purchase orders) or Assumed Contracts, complete and correct copies of the standard written terms and conditions for sale for the Products in the Territory (containing all applicable guaranty, warranty and indemnity provisions) in connection with the Business as of the date of this Agreement have heretofore been delivered to Purchaser. Except as may be (i) set forth on Schedule 3.16 , (ii) set forth in purchase orders for products (other than blanket purchase orders) or in the Assumed Contracts or (iii) required by any Legal Requirement, as of the date of this Agreement no Product manufactured, sold or delivered by or on behalf of Seller or its Affiliates in connection with the Business is subject to any written guaranty, warranty or other indemnity expressly given, made or agreed by Seller or its Affiliates beyond such standard terms and conditions.

     3.17 Inventory . All of the Inventory (i) is of good and merchantable quality, fit for the purpose for which it is intended and saleable and useable in the ordinary course of business and (ii) meets the current manufacturing standards and specifications of Seller and has not aged beyond its applicable shelf-life.

     3.18 Customers . Schedule 3.18 sets forth (in each case with respect to customers of the Business in North America only) (a) the names and addresses of all customers of Seller that ordered Products from the Business from Seller with an aggregate value for each customer of $20,000 or more during either of the twelve-month periods ended December 31, 2006 and December 31, 2007 (each, a “ Significant Customer ”), and (b) the amount for which each Significant Customer was invoiced during each such period. As of the date of this Agreement, Seller and its Affiliates have not received any written notice, nor do Seller and its Affiliates have any reason to believe, that any Significant Customer (i) has ceased, or will cease, to use the Products of the Business, (ii) has substantially reduced, or will substantially reduce, the purchase of Products of the Business or (iii) has sought, or is seeking, to reduce the price it will pay the Business for Products of the Business. To the Knowledge of Seller as of the date of this Agreement, no Significant Customer has otherwise threatened to take any action described in the preceding sentence as a result of the consummation of the transactions contemplated by this Agreement.

     3.19 Brokers or Finders . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby based upon any agreements, written, oral or otherwise, made by or on behalf of Seller or any of its Affiliates.

     The parties agree as follows:

     3.20 Exclusivity of Representations and Warranties . EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE III , SELLER MAKES NO REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER IMPLIED WARRANTY CONCERNING THE ACQUIRED ASSETS, THE BUSINESS, OR ANY OTHER MATTER WHATSOEVER. PURCHASER HEREBY DISCLAIMS ANY RELIANCE UPON SUCH OTHER OR IMPLIED REPRESENTATIONS OR WARRANTIES, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE BY SELLER OR ANY OTHER PERSON TO PURCHASER OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, OF ANY DOCUMENTATION OR OTHER INFORMATION IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF PURCHASER

     Purchaser hereby represents and warrants to Seller as follows:

     4.1 Organization, Existence and Standing . Purchaser is a corporation validly existing and in good standing under the laws of the State of Delaware.

     4.2 Capacity; Authorization . Purchaser has full corporate power and authority to execute, deliver and perform this Agreement and the Ancillary Agreements to be executed and delivered by Purchaser and to consummate the transactions contemplated hereby and thereby to be consummated by Purchaser. The execution, delivery and performance of this Agreement and the Ancillary Agreements to be executed and delivered by Purchaser, and the consummation of the transactions contemplated hereby and thereby to be consummated by Purchaser have been duly authorized by all necessary corporate action on the part of Purchaser. The execution, delivery and performance of this Agreement and the Ancillary Agreements to be executed and delivered by Purchaser, and the consummation of the transactions contemplated hereby and thereby to be consummated by Purchaser do not and will not (i) contravene or violate the certificate of incorporation or by-laws of Purchaser; (ii) conflict with, violate, result in a breach or termination of, result in any default under, entitle any Person (with due notice or lapse of time or both) to terminate, cancel, accelerate, modify or call a default with respect to any contract, agreement, mortgage, Lien, lease, order, arbitration award, judgment or decree or other commitment to which Purchaser or any of its Affiliates is a party or by which Purchaser or any of its Affiliates or any of their respective Assets is bound or result in the acceleration of the due date of any Liability of Purchaser or any of its Affiliates; (iii) require Purchaser or any of its Affiliates to obtain, secure or make any Approval or Consent, other than compliance with and filings under the HSR Act and under the AML; or (iv) conflict with, or result in a breach of, any Legal Requirement to which Purchaser or any of its Affiliates is subject. No Consent or other action by the shareholders or other security holders of Purchaser or any of its Affiliates is required in connection with the execution, delivery and performance by Purchaser of this Agreement or the Ancillary Agreements to be executed and delivered by Purchaser that has not heretofore been irrevocably obtained. This Agreement has been, and the Ancillary Agreements to be executed and delivered by Purchaser will at the Closing have been, duly executed and delivered by Purchaser. This Agreement constitutes, and as of the Closing the Ancillary Agreements to be executed and delivered by Purchaser will constitute, the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with their respective terms, except as such enforceability may be limited by applicable Legal Requirements relating to bankruptcy, insolvency, reorganization, moratorium or similar Legal Requirements relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

     4.3 Brokers or Finders . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby based upon any agreements, written, oral or otherwise, made by or on behalf of Purchaser or its Affiliates.

     The parties agree as follows:

     4.4 Exclusivity of Representations and Warranties . EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE IV , PURCHASER MAKES NO REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY CONCERNING ANY MATTER WHATSOEVER. SELLER HEREBY DISCLAIMS RELIANCE UPON ANY SUCH OTHER OR IMPLIED REPRESENTATIONS OR WARRANTIES, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE BY PURCHASER OR ANY OTHER PERSON TO SELLER OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, OF ANY DOCUMENTATION OR OTHER INFORMATION IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

ARTICLE V
COVENANTS OF THE PARTIES

     5.1 Covenants of Seller . Seller covenants and agrees with Purchaser as follows:

          (a) Conduct of the Business . Between the date hereof and the Closing, Seller shall, and shall cause its Affiliates to, conduct the Business only in the ordinary course of business consistent with past practice. Seller will, and will cause its Affiliates to, use their reasonable best efforts consistent with past practice to preserve intact the business organization of Seller, to keep available to Purchaser the services of all Business Employees and to preserve for Purchaser the goodwill of the suppliers, distributors, customers and others having business relationships with the Business. In furtherance and without limitation of the foregoing, Seller agrees that Seller will not, and will cause its Affiliates not to, without the prior consent of the Purchaser:

     (i) sell, lease or transfer any Acquired Assets, or purchase any Asset that would be an Acquired Asset, except for (x) the sale, lease, transfer or purchase of an Asset that has a book value of less than $50,000 in the ordinary course of the Business consistent with past practice or (y) sales of Inventory in the ordinary course of business consistent with past practice;

     (ii) make, or enter into any Contract involving consideration of in excess of $50,000 (excluding purchase or sales orders entered into in the ordinary course of business consistent with past practice) or having a term of more than one year, or terminate, amend, modify, waive any provision of, or fail to observe any covenant or agreement contained in, any Assumed Contract;

     (iii) mortgage, pledge or subject to any Lien any of the Acquired Assets;

     (iv) engage in bargaining with any union representing any Business Employee, except bargaining that is done after notice to and consultation with Purchaser;

     (v) change any compensation or benefits or grant, establish, adopt, enter into or institute any material new compensation or benefits payable to or in respect of any Business Employee (except for regularly scheduled increases in the ordinary course of business consistent with past practice or as required by Legal Requirements), enter into any employment, consulting, special retirement, change of control, separation, severance or retention agreement with any Business Employee or terminate the employment of any Business Employee;

     (vi) change or modify in any material respect the Business’ existing inventory management or credit and collection policies, procedures and practices with respect to accounts receivable;

     (vii) enter into any transaction (with respect to the Business) with Seller or any Affiliate of Seller;

     (viii) settle any material claim or Action involving money damages or waive or release any material rights or claims in connection with the Business, except in the ordinary course of business consistent with past practice;

     (ix) transfer or dispose of or permit to lapse any right to the use of any Transferred Intellectual Property or Transferred Technology, or dispose of or disclose (except as necessary in the conduct of the Business consistent with past practice) to any Person, other than representatives of Purchaser, any Transferred Technology that is not a matter of public knowledge prior to such disclosure; or

     (x) authorize any of, or commit or agree to take, whether in writing or otherwise, any of the foregoing actions.

          (b) Access . At the reasonable request of Purchaser, and upon reasonable advance notice, Seller shall from time to time prior to the Closing use reasonable best efforts to give or cause to be given to the officers, employees, accountants, counsel and other authorized representatives of Purchaser (x) access during normal business hours to any and all properties, including the Owned Real Property, files, books, records, documents and other information and employees, officers and directors of Seller and its Affiliates relating to the Business, the Acquired Assets and/or the Assumed Liabilities and (y) all such other information in Seller’s or its Affiliates’ possession otherwise concerning the Business, the Acquired Assets and the Assumed Liabilities, as Purchaser may reasonably request; provided , however , that such access shall not include the right to conduct physically invasive tests of soil, groundwater or other environmental media on the Owned Real Property unless a proposal for the same by Purchaser is approve