PURCHASE AGREEMENT

EXHIBIT 2.3

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THIS PURCHASE AGREEMENT (this " Agreement "), is entered into and made as of May 17, 2006, by and between Mentor Corporation, a Minnesota corporation (" Seller "), and Coloplast A/S, a Danish corporation (" Buyer ") (Buyer and Seller may hereinafter be referred to individually as a " Party " and collectively as the " Parties ").

WITNESSETH:

WHEREAS, Seller is engaged, directly and through Subsidiaries, in the Business (as defined below); and

WHEREAS, upon and subject to the terms and conditions set forth herein, Seller desires to sell to Buyer and Buyer desires to purchase from Seller, certain of the assets of Seller, including the Equity Interests (as defined below) of the Transferred Subsidiaries (as defined below), related to the Business (as defined below), and Seller desires to transfer to Buyer and Buyer desires to assume from Seller and the Transferred Subsidiaries, certain of the liabilities related to the Business;

WHEREAS, it is the intention and desire of Seller, by this Agreement, to divest itself of, and transfer to Buyer, or otherwise provide Buyer the benefit of, the Business and all rights thereof; and

WHEREAS, accordingly, Seller will, by the terms of this Agreement transfer, license or provide by means of services agreements, to Buyer Seller's tangible and intangible assets and rights used by Seller in the conduct of the Business and necessary for Buyer to conduct the Business following the Closing (as defined below); and

WHEREAS, concurrently with the execution hereof, Seller and Buyer are entering into a Transition Services Agreement (as defined below) that provides for integration planning and transition services with respect to the conveyance of the Business from Seller to Buyer as contemplated by the terms hereof.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises herein made, and in consideration of the covenants, representations, warranties, conditions and agreements herein contained, Buyer and Seller hereby agree as follows:

Article 1

DEFINITIONS

(i)            As used in this Agreement, the following terms shall have the meanings specified or referred to in this Article 1 .

1.1                " AAA " has the meaning set forth in Section 13.7(b) .

1.2                " Acquired Entity " has the meaning set forth in Section 8.16 .

1.3                " Affiliate " means any entity which controls, is controlled by, or is under common control with, Seller or Buyer, as the case may be.  An entity shall be deemed to be in control of another entity only if, and for so long as, it owns or controls more than 50% of the voting power in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority) of such other entity.

1.4                " Agreement " has the meaning set forth in the first paragraph of this Agreement together with all schedules and exhibits attached hereto.

1.5                " Assigned Leases " has the meaning set forth in Section 5.15(a) .

1.6                " Assumed Liabilities " means the Liabilities of Seller and its Subsidiaries identified on Schedule 1.6 .

1.7                " Assumption Agreement " means an Assignment and Assumption Agreement in substantially the form set forth in Exhibit A (subject to substitution in certain cases by the Conveyance Documents pursuant to Section 2.3 ).

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1.8                " Automatic Transfer Employees " means those Employees of Transferred Subsidiaries whose Contracts of employment automatically transfer to Buyer (or a Subsidiary thereof) in accordance with applicable Laws in connection with the transactions contemplated by this Agreement.

1.9                " Bills of Sale " means Bills of Sale in substantially the form set forth in Exhibit B (subject to substitution in certain cases by the Conveyance Documents pursuant to Section 2.3 ).

1.10            " Business " means the surgical urology and consumer and clinical healthcare operating segments of Seller, whether conducted by Seller or its Subsidiaries, and consisting of the following diversified product portfolio of surgical and non-surgical products, that provide solutions for a broad range of urological problems:

(a)           the catheter products and operations, selling the following products for the management of bladder control and urinary retention: (i) the Self-Cath® brand line of intermittent catheters both with and without the Self-Cath HydroGel™, (ii) the Freedom® brand line of latex and latex free male external catheters, and (iii) catheter accessories, including leg bags, deodorizers and moisturizers;

(b)           the disposable urology products and operations, selling the following products for both hospital and outpatient settings for the management of urinary tract obstruction, urinary incontinence, or urinary retention: (i) urethral stents and catheters, dilators and guidewires, (ii) stone extractors, (iii) prostatic catheters and prostatic stents, (iv) urethral stents, (v) bladder drainage catheters, (vi) Foley catheters, (vii) bladder injection needles (currently under development), and (viii) general surgical devices including Elephants/Easivac;

(c)           clinical or consumer ostomy care products;

(d)           the women's health products and operations, selling the following surgically implantable products for the treatment of incontinence and pelvic organ prolapse: (i) synthetic slings for the surgical treatment of stress urinary incontinence under the brand Aris™, (ii) tissue-based slings and grafts for the surgical treatment of pelvic organ prolapse under the brands Axis™ and Suspend®, (iii) pelvic floor synthetic mesh systems for the treatment of cystocele and rectocele pelvic organ prolapse, (iv) minimally invasive office-based endometrial ablation product called Selene® for the treatment of excessive menstrual bleeding, and (v) the soon to be released NovaSilk™ synthetic mesh for treatment of pelvic organ prolapse;

(e)           the men's health products and operations, selling the following surgically implanted penile implants for the treatment of erectile dysfunction: (i) the Titan® three-piece inflatable penile implant, (ii) the Genesis™ one-piece malleable penile implant, (iii) One-Touch Pump development project to enhance the Titan, (iv) Excel® two-piece implant product, development efforts and operations, and (v) testicular implants; and

(f)            the brachytherapy products and operations, consisting of the following radioisotope products and loading products, supplies and systems  for the treatment of prostate cancer: (i) the Iodine-I-125 radio isotope brachytherapy seed, (ii) the Palladium-PD-103 radio isotope brachytherapy seed, (iii) Isoloader® all-in-one workstation automated needle loading, seed assay and reporting, and (iv) IsoStrand® automated stranding device. 

1.11            " Business Competitor " means that part of any Person engaged, directly or indirectly, in a Competing Business.

1.12            " Business Day " means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.

1.13            " Business Permits " has the meaning set forth in Section 5.4 .

1.14            " Buyer " has the meaning set forth in the first paragraph of this Agreement.

1.15            " Buyer Benefits Plans " means the Employee Benefits Plans of Buyer (or a Subsidiary thereof), as amended from time to time, under which some or all of the Employees will be eligible to participate following the Closing.

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1.16            " Buyer Indemnified Parties " has the meaning set forth in Section 11.3(a) .

1.17            " Buyer Employment Liabilities " has the meaning set forth in Section 7.6 .

1.18            " Buyer Material Adverse Effect " means any change that is materially adverse to the net assets or financial condition of Buyer and its Subsidiaries taken as a whole or to the ability of Buyer to consummate the transactions contemplated hereby or any agreements delivered or entered into in connection herewith.  For the avoidance of doubt, "Buyer Material Adverse Effect" does not include any requirement by Buyer to divest, license, hold separate (through the establishment of a trust or otherwise) or otherwise dispose, or agree to dispose, of assets as, or if, required to avoid or overcome the objections of the UK Competition Authorities to the transactions contemplated by this Agreement or to comply with the UK OFT Undertakings.

1.19            " Buyer Subsidiaries " has the meaning set forth in Section 2.3 .

1.20            " Cause " means (a) a Transferred Employee's breach of any trade secret or any confidential information agreement with Buyer (or a Subsidiary thereof), or written policy of Buyer or a Subsidiary thereof, (b) willful misconduct by a Transferred Employee, which is determined in good faith by Buyer to be injurious to the business of Buyer, (c) the conviction of, or entry of a guilty plea by, a Transferred Employee for the commitment of, a crime of moral turpitude (d) substance abuse including alcohol, (e) repeated and documented neglect of duty, (f) taking an action for the purpose of harming the Buyer or its business, (g) noncompliance with applicable Law in a manner that is injurious to the business of Buyer, (h) fraud or intentional misrepresentation, (i) continual, significant absenteeism, or (j) in any pertinent jurisdiction outside the United States, any action giving grounds for dismissal under applicable Laws, as applied to any Employee of a Transferred Subsidiary. 

1.21            " Change of Control " means, with respect to a Party, a transaction or series of related transactions that would directly or indirectly: (a) result in or have the effect of a third Person obtaining legal or beneficial ownership of more than 50% of the voting shares (or other voting interests) of such Party (even if such Party is the surviving entity, such as in the case of a reverse triangular merger); or (b) result in the sale, transfer, assignment, exclusive license or other disposition of all or substantially all of the Party's assets; other than, in the case of (a), a transaction pursuant to which the shareholders of such Party immediately prior to the relevant transaction continue to beneficially own at least 50% of the voting shares (or other voting interests) of such Party or its direct or indirect parent entity immediately following such transaction.

1.22            " Closing " has the meaning set forth in Section 3.1 .

1.23            " Closing Date " has the meaning set forth in Section 3.1 .

1.24            " Closing Date Balance Sheet " has the meaning set forth in Section 2.4(a) .

1.25            " Closing Date Net Working Capital Statement " has the meaning set forth in Section 2.4(a) .

1.26            " Closing Statements " has the meaning set forth in Section 2.4(a) .

1.27            " Code " means the Internal Revenue Code of 1986, as amended.

1.28            " Competing Business " means (1) the developing, manufacturing, marketing, selling, importing or distributing any or all of the following products: (a) surgically implantable substances, prostheses or other devices for the treatment of male impotence or erectile dysfunction; (b) substances, prostheses or other devices to replace or simulate the testicle; (c) clinical or consumer healthcare products for the management of urinary retention or incontinence, including external or internal catheters and adult incontinence diapers (but not baby diapers); (d) clinical or consumer ostomy care products; (e) surgically implantable (i) substances, (ii) prostheses or (iii) other devices, for the treatment of kidney or ureter stones, kidney or urethral obstructions, urinary retention or incontinence, or pelvic organ prolapse; (f) devices or methods to instill substances or devices in the uterus for the purpose of treating excessive endometrial bleeding; and (g) brachytherapy products, devices or substances for use or application in the Licensed Field, and/or (2) the wholesale or retail service of providing any or all of the above products to consumers or healthcare providers.  Notwithstanding the foregoing, however, a "Competing Business" shall not include: ( 1) the developing, manufacturing, marketing, selling, importing or distributing of (A) any oral pharmaceuticals or (B) any product or treatments involving dermal fillers or other bulking agents or toxins, including botulinum toxins, for any indication or application, including any urologic indication or application; or (2) any business(es) acquired (and thereafter operated) by Seller or its Affiliates for so long as such business(es) generate(s) less than $5,000,000 in aggregate annual revenues from any Competing Business.

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1.29            " Confidentiality Agreement " means that certain agreement between Citigroup Global Markets Inc., on behalf of Seller, and Buyer dated October 27, 2005. 

1.30            " Consensual Transfers " has the meaning set forth in Section 5.10(a) .

1.31            " Consent " has the meaning set forth in Section 8.5(a) .

1.32            " Constructive Termination " shall mean only a resignation of an Employee's employment within forty-five (45) days after the occurrence of any of the following events: (i) a material reduction in the Employee's responsibilities, provided that a change of title shall not constitute such a material reduction; (ii) a reduction in the Employee's base salary, other than a one-time reduction that applies to substantially all other employees of Buyer; or (iii) a relocation of the Employee's principal office to a location more than fifty (50) miles from the location of the Employee's principal office prior to such relocation in any case when the terms of employment made to the Employee by Buyer did not indicate that the Eligible Employee would be relocated to a principal office outside such fifty (50) mile radius; and provided in all the above cases the Buyer has failed to cure the facts and circumstances giving rise to the Constructive Termination within fifteen (15) days after receipt of notice of such resignation.

1.33            " Contracts " means all contracts, binding agreements, options, leases, licenses, sales, binding commitments and other similar instruments, whether oral or written.

1.34            " Conveyance Documents " has the meaning set forth in Section 2.3 .

1.35            " Copyrights " has the meaning set forth in Section 1.81 .

1.36            " Covenant Breach " means with respect to a Party, a breach of, nonfulfillment or failure to comply with a covenant or agreement made or to be performed pursuant to this Agreement or any other Operative Agreement by such Party or a Subsidiary thereof.

1.37            " CPA Firm " has the meaning set forth in Section 2.4(c) .

1.38            " Disclosure Letter " has the meaning set forth in the introduction to Article 5 .

1.39            " DOJ " has the meaning set forth in Section 8.5(c) .

1.40            " Downward Adjustment Amount " has the meaning set forth in Section 2.4(d) .

1.41            " Effect " has the meaning set forth in Section 1.151 .

1.42            " Eligible Employee " has the meaning set forth in Section 7.9 .

1.43            " Employee Benefits Plan " means, and whether written or oral: (a) any plan, fund, agreement or program which provides health, medical, surgical, hospital, vision or dental care or other welfare benefits, or benefits in the event of sickness, accident or disability, or death benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services; (b) any plan, fund, agreement or program which provides retirement income to Employees or results in a deferral of income by Employees for periods extending to the termination of covered employment or beyond; (c) any plan, fund, agreement, practice or program which provides severance, unemployment, vacation or fringe benefits (including dependent and health care accounts); (d) any incentive compensation plan, deferred compensation plan, stock option or stock‑based incentive or compensation plan, or stock purchase plan; (e) any other "employee pension benefit plan" (as defined in Section 3(2) of ERISA), any other "employee welfare benefit plan" (as defined in Section 3(1) of ERISA); and (f) any other written or oral plan, agreement or arrangement involving direct or indirect compensation including insurance coverage, severance benefits, disability benefits, fringe benefits, pension or retirement plans, profit sharing, deferred compensation, bonuses (including any sale bonuses), stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post‑retirement compensation, as well as any change in control agreements, managing director agreements and other retention arrangements.

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1.44            " Employees " means those individuals who are employed by (a) a Transferred Subsidiary, or (b) Seller or a Subsidiary thereof and who are primarily engaged in or dedicated to the Business and, in both cases (a) and (b) to be listed on Schedule 7.1(a) (as may be updated by Seller as of or prior to the Closing, subject to the consent of Buyer (such consent not to be unreasonably withheld, delayed or conditioned), to reflect as of the Closing Date those Employees who are primarily engaged in or dedicated to the Business).

1.45            " Encumbrance " means any lien, claim, charge, license, security interest, mortgage, pledge, easement, conditional sale or other title retention agreement, defect in title, covenant or other restrictions of any kind, other than a Permitted Encumbrance.

1.46            " End Date " means July 31, 2006 (or such later date as may be mutually agreed to by the Parties); provided, however , that if on or prior to July 31, 2006 (or such later date), Buyer has notified Seller that a Covenant Breach and/or a Warranty Breach has occurred with respect to Seller, then the End Date shall be automatically extended for such number of days as is necessary to provide Seller the full 60-day period to cure such breach from the date of notice pursuant to Section 12.2(c) .

1.47            " Enforceability Exceptions " has the meaning contained in Section 5.1(c) .

1.48            " Environmental Claim " means any actual or threatened complaint, judgment, demand, legal action, administrative proceeding, lien, order, directive, claim, citation or assessment made, presented, sought or alleged by any Person and that (i) arises out of events, acts or conditions existing on or prior to the Closing, (ii) relates to the Business or the Transferred Assets or the use, ownership or operation thereof, and (iii) arises under any Environmental Law.  Environmental Claims include any and all (x) enforcement, clean-up, Response Actions or other governmental regulatory actions initiated, completed, pending or threatened, (y) claims made, threatened or prosecuted by any third party, and (z) proceedings for the recovery of any damages, indemnification, contribution, cost recovery, compensation, Losses or injury, including personal injury.

1.49            " Environmental Condition " means any Hazardous Substance that is present on or prior to the Closing in, under, on or about any real property used for the Business or otherwise comprising any of the Transferred Real Property and that (i) requires any Response Action pursuant to any Environmental Law, or (ii) constitutes an endangerment of health, safety, property or the environment pursuant to any Environmental Law, including the presence or Release, or threatened Release, of any Hazardous Substances into, on or under the air, soil, surface water, groundwater or other media.

1.50            " Environmental Laws " means any and all Laws anywhere in the world relating to worker health, safety, exposure of any individual to a Hazardous Substance or pollution or protection of the environment, including those relating to emissions, discharges, spills or other releases or threatened releases into or impacting the environment or natural resources (including ambient air, surface water, groundwater or land), or otherwise relating to the manufacture, processing, distribution, use, treatment, recycling, storage, disposal, transport, sale, offer for sale, distribution or handling of Hazardous Substances, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (" CERCLA "), the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq., any amendments or successor statutes to any of the foregoing, and the rules, regulation, permits orders and decrees implementing the same and all analogous state and local laws, rules regulations, permits, orders and decrees. 

1.51            " Environmental Permits " means those Business Permits required to be held pursuant to Environmental Laws.

1.52            " Equity Interest " means capital stock, membership interests, options, warrants, stock appreciation rights, or rights to subscribe for, calls or other instruments exercisable for, or convertible into, the capital stock, membership interests or similar equity interests of any Person.

1.53            " ERISA " means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder.

1.54            " ERISA Affiliate " means any employer that is, or at any time for which any relevant statute of limitations remains open, was, together with Seller, treated as a "single employer" under section 414(b), section 414(c) or section 414(m) of the Code.

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1.55            " Escrow Agent " means Nordea Bank Finland plc.

1.56            " Escrow Agreement " has the meaning set forth in Section 8.25 .

1.57            "Escrow Amount" means an amount equal to $10,000,000.

1.58            "Escrow Fund " has the meaning set forth in Section 11.7 .

1.59            " Excluded Assets " means the assets of Seller and its Subsidiaries and Affiliates that are not Transferred Assets, including those assets identified on Schedule 1.59 .

1.60            " Excluded Liabilities " means any and all Liabilities of Seller and its Subsidiaries and Affiliates other than the Assumed Liabilities, including those Liabilities identified on Schedule 1.60 .

1.61            " Exclusivity Agreement " means that certain letter agreement between Seller and Buyer dated March 27, 2006, relating to the transactions contemplated hereby.

1.62            " Existing Supply Agreement " means that certain Agreement between Seller, SSL International Plc and Buyer dated September 29, 2001, (novation to Distribution Agreement between Seller and SSL International Plc dated September 1, 2001).

1.63            " Expenses " means any and all reasonable expenses actually incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding incident to any matter expressly indemnified against hereunder (including court filing fees, court costs, arbitration fees or costs, witness fees, and statutory or other reasonable and actual fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants and other professionals).

1.64            " FDA " has the meaning set forth in Section 5.23(a) .

1.65            " Final Balance Sheet " has the meaning set forth in Section 2.4(c) .

1.66            " Final Net Working Capital Statement " has the meaning set forth in Section 2.4(c) .

1.67            " Financial Statements " has the meaning set forth in Section 5.12 .

1.68            " Foreign Benefit Plans " has the meaning set forth in Section 5.13(b)(i) .

1.69            " FTC " has the meaning set forth in Section 8.5(c) .

1.70            " GAAP " means Generally Accepted Accounting Principles as established and understood under accounting standards in the United States of America.

1.71            " Governmental Actions " means any authorizations, consents, approvals, waivers, exceptions, variances, franchises, permissions, permits, and licenses of, and filings, notifications or  declarations with, any Governmental Authority worldwide, including the United States, the European Union, Canada, Australia and Japan.

1.72            " Governmental Authority " means any national, supranational, local or foreign court, governmental or administrative agency or commission or other governmental agency, authority, instrumentality, notified body, competent authority, third party governmental designate or regulatory body having appropriate jurisdiction worldwide.

1.73            " Hazardous Substances " means any material, substance, chemical or emission designated by any Governmental Authority as "toxic", "hazardous", "extremely hazardous", a "pollutant" or "contaminant" or words of similar import pursuant to Environmental Laws, including petroleum, waste or asbestos.

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1.71            " Governmental Actions " means any authorizations, consents, approvals, waivers, exceptions, variances, franchises, permissions, permits, and licenses of, and filings, notifications or  declarations with, any Governmental Authority worldwide, including the United States, the European Union, Canada, Australia and Japan.

1.72            " Governmental Authority " means any national, supranational, local or foreign court, governmental or administrative agency or commission or other governmental agency, authority, instrumentality, notified body, competent authority, third party governmental designate or regulatory body having appropriate jurisdiction worldwide.

1.73            " Hazardous Substances " means any material, substance, chemical or emission designated by any Governmental Authority as "toxic", "hazardous", "extremely hazardous", a "pollutant" or "contaminant" or words of similar import pursuant to Environmental Laws, including petroleum, waste or asbestos.

1.74            " Health Care Laws " has the meaning set forth in Section 5.22(c) .

1.75            " HSR " means the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended.

1.76            " Indemnified Party " has the meaning set forth in Section 11.4 .

1.77            " Indemnifying Party " has the meaning set forth in Section 11.4 .

1.78            " Industry‑Wide Plan " means any scheme, plan, fund or arrangement, which provides Retirement Benefits to or in respect of Automatic Transfer Employees in which employers may participate even if they are not within the same corporate group as the other participating employers.

1.79            " Infrastructure Assets " means all assets and Technology that are used in, or are a part of, the general operation of Seller's (including its Subsidiaries) business and not exclusively related to the Business, including network or telecommunications software and equipment, accounting software, IT systems, desktop computer software, database software, and general software development or control systems, tools or environments and including those assets identified on Schedule 1.79 .  Notwithstanding the foregoing, "Infrastructure Assets" exclude those items that are specifically listed in Schedule 1.186 as a Transferred Tangible Asset.

1.80            " Intellectual Property " or " IP " means Technology and Intellectual Property Rights in and to Technology.

1.81            " Intellectual Property Rights " or " IPR " means all rights associated with any of the following: (a) United States and foreign patents and applications  therefor, and including any patent or application that is a provisional application, reissue, re-examination, renewal, extension or continuation of a patent or patent application (" Patents "); (b) know-how, trade secret rights and all other rights in or to confidential business or technical information (" Trade Secrets "); (c) copyrights, copyright registrations and applications therefor and all other rights corresponding thereto throughout the world (" Copyrights "); (d) trademarks, service marks, logos, trade dress rights and similar designation of origin and rights therein, registrations and applications for registration therefor (" Marks "); (e) industrial design rights and any registrations and applications therefor; (f) URLs, WWW address, and domain names (" Internet Properties ") (g) databases and data collections (including knowledge databases, customer lists and customer databases); and (h) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.  Intellectual Property Rights specifically excludes contractual rights, including license grants, and the tangible embodiment of any of the foregoing.

1.82            " Interim Financials " has the meaning set forth in Section 5.12 .

1.83            " IPR Assignment " has the meaning set forth in Section 3.2(c) .

1.84            " Knowledge " means: (a) the knowledge of any of the individuals listed on Schedule 1.84 (a) ; or (b) the knowledge of any of the individuals on Schedule 1.84(b) , provided that prior to the Offer Date the particular individual listed on Schedule 1.84(b) communicated the subject matter of such knowledge in writing to one or more superiors of such individual.

1.85            " Landlord " means a landlord, sublandlord, licensor or other party granting the right to use or occupy real property.

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1.86            " Laws " means any applicable laws, statutes, ordinances, regulations, rules, interpretations, or orders of any Governmental Authority anywhere in the world.

1.87            " Lease " means a lease, sublease, license or other agreement permitting the use or occupancy of real property.

1.88            " Liabilities " means any and all debts, liabilities, obligations and duties (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether latent or patent, whether determined or undetermined, and whether due or to become due).

1.89            " License-Back Field " means: (a) the field (other than the Licensed Field) covering the types of products (other than the Products) sold by Seller and/or its Subsidiaries as of the date hereof; and (b) the field of aesthetics medicine including breast augmentation and reconstruction, body contouring and facial rejuvenation, with products including, breast implants, mammary prostheses, breast expanders, extremity tissue expanders, liposuction and body contouring products, dermal fillers and other bulking agents, toxins, including botulinum toxins, and derivatives and improvements of the foregoing products together with the Technology related thereto, irrespective of whether such products were sold by Seller and/or its Subsidiaries as the date hereof.

1.90            " License-Back Other IPR " means the Transferred IPR (other than Transferred Patents, the Transferred Marks, the Transferred Internet Properties and those Transferred Copyrights listed on Schedule 1.174 ), to the extent used as of or prior to the Closing Date in Seller's business (other than exclusively in the Business) or embodied in a product of Seller (other than exclusively in the Products).

1.91            " License-Back Patents " means any Transferred Patents and any Patent filed by Buyer following the Closing that claims  priority from any Transferred Patents.

1.92            " Licensed Field " means the diagnosis, treatment or management of medical or surgical conditions, disorders or diseases relating to (a) the urinary tract or any part thereof (being from kidney to distal urethra), (b) prostate, (c) anorectal canal, rectum and distal colon, (d) pelvic floor, and (e) male or female reproductive organs and the uterus; provided , however , that the License Field shall not include the Licensed-Back Field or any treatment or use involving a toxin, including botulinum toxins, a dermal filler, or bulking agent. 

1.93            " Licensed Other IPR " means all Intellectual Property Rights (other than Transferred IPR, Patents and Marks) owned or licensable (without the consent of or material payment of any consideration to any third Person) by Seller or its Subsidiaries as of the Closing, that are used in, or reasonably necessary to the operation of, the Business in the Licensed Field as of the Closing. 

1.94            " Licensed Patents " means any Patent owned by Seller as of the Closing Date, which is either (i) a Patent issued as of the Closing Date or (ii) which issues following the Closing Date from a Patent application of Seller filed before the Closing Date, and which Patent would, absent the license granted in Section 4.1(a) hereof, be infringed as of the Closing by the operation of the Business or the Products in the Licensed Field, including the Patents identified on Schedule 1.94 ; provided, that the Licensed Patents shall not include any Patent directed to a toxin, including botulinum toxins, a dermal filler, a bulking agent or use thereof.

1.95            " Licensor Party " and " Licensee Party " have the respective meanings set forth in Section 4.3(a) .

1.96            " Losses " means any and all losses, costs, obligations, Liabilities, settlement payments, awards, judgments, fines, penalties, damages, Expenses, deficiencies or other charges.

1.97            " Manages " (or " Management ," as the context requires) means uses, possesses, generates, treats, manufactures, processes, handles, stores, recycles, transports, or disposes of Hazardous Substances.

1.98            " Marks " has the meaning set forth in Section 1.81 .

1.99            " Minneapolis Claim " has the meaning set forth in Section 11.3(d)(i)(1) .

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1.100         " Minneapolis Environmental Losses " has the meaning set forth in Section 11.3(d)(i) .

1.101         " Minneapolis Property " has the meaning set forth in Section 11.3(d)(i) .

1.102         " MML " shall mean Mentor Medical Limited.

1.103         " Most Recent Balance Sheet " has the meaning set forth in Section 5.12 .

1.104         " Net Working Capital " has the meaning set forth in Schedule 1.104 .

1.105         " Net Working Capital Target " means the Net Working Capital derived from the 2006 Year-End Balance Sheet (as defined in Section 5.12(a) of the Disclosure Letter) to be delivered by Seller to Buyer in accordance with Section 5.12(a) of the Disclosure Letter.   The Net Working Capital Target will be calculated on a consistent basis with, and in accordance with the principles set forth on, the illustrative Closing Date Net Working Capital Statement (assuming the Closing Date had occurred on December 31, 2005) attached hereto as Exhibit D . 

1.106         " Objection " has the meaning set forth in Section 2.4(b) .

1.107         " Offer Date " means March 27, 2006.

1.108         " Offer Letter " means that certain binding offer letter dated March 27, 2006 from Buyer to Seller relating to the transactions contemplated hereby.

1.109         " Offered Employee " has the meaning set forth in Section 7.1(a) .

1.110         " Operative Agreements " means this Agreement, the Assumption Agreement, the Bills of Sale, the Escrow Agreement, any Conveyance Documents, the IPR Assignment, the Transition Services Agreement and the Real Property Agreements and any other document or agreement to be executed and delivered by either of the Parties at the Closing.

1.111         " Other Business Property Environmental Claim " has the meaning set forth in Section 11.3(d)(ii)(1) .

1.112         " Other Business Property " has the meaning set forth in Section 11.3(d)(ii) .

1.113         " Other Business Property Environmental Losses " has the meaning set forth in Section 11.3(d)(ii) .

1.114         " Patents " has the meaning set forth in Section 1.81 . 1.115         " Permitted Encumbrances " means any or all of the following (a) liens for taxes and other similar governmental charges and assessments which are not yet delinquent or liens for taxes being contested in good faith by any appropriate proceedings for which adequate reserves have been established, (b) liens of landlords and liens of carriers, warehousemen, mechanics and materialmen and other like liens arising in the ordinary course of business for sums not yet due and payable, (c) undetermined or inchoate liens, charges and privileges existing as of the Closing Date and any statutory liens, licenses, charges, adverse claims, security interests or encumbrances of any nature whatsoever existing as of the Closing Date and claimed or held by any Governmental Authority that have not at the time been filed or registered against title to the Transferred Assets or that are related to obligations that are not due or delinquent, (d) licenses or other non‑exclusive rights to any Transferred IPR granted prior to the date of this Agreement by Seller or any Affiliate thereof to any third Person, (e) restrictions on resale of securities imposed by applicable federal, state and foreign securities Laws, (f) security given in the ordinary course of business as of the Closing Date to any public utility, Governmental Authority or other statutory or public authority in connection with the Transferred Assets, (g) Encumbrances imposed on the underlying fee interest in the leased property, (h) with respect to U.S. properties, those Permitted Encumbrances listed on Schedule 1.115 , and with respect to all Real Property all other Encumbrances of record that affect such Real Property and such encroachments or other state of facts which an inspection or survey of any Real Property would disclose and (i) other Encumbrances that do not materially impair the use of the Real Property by Seller in respect of the Business.

9

 

1.116         " Person " means any individual, corporation, partnership, limited liability company, trust, unincorporated organization, association, firm, joint venture, joint stock company, Governmental Authority or other entity.

1.117         " Poor Performance " means the failure of a Transferred Employee to substantially perform his or her duties to Buyer, or a Subsidiary of Buyer, after having been provided written notice of such failure and 30 days to cure such failure.

1.118         " Porges " shall mean Porges S.A.S.

1.119         " Porges Asset Sale " shall mean the sale of all IPR (which, for purposes of this Section 1.119, shall be read to exclude clause (g) of the definition of IPR) owned by Porges to Buyer to be effected one day prior to the Closing Date pursuant to Section 8.26 hereof.

1.120         " Potential Contributor " has the meaning set forth in Section 11.9 .

1.121         " Pre-Closing Taxes " has the meaning set forth in Section 8.7(a)(i) .

1.122         " Pre‑Closing Tax Period " has the meaning set forth in Section 8.7(a)(i) .

1.123         " Preliminary Purchase Price " means $456,137,500.

1.124         " Product Liability Claim " shall mean any civil action or claim for money damages brought by an individual recipient and user of product, or any derivative action or claim for money damages including loss of consortium and survival actions and claims, where such action or claim arises out of an alleged defect in design, manufacture, materials, testing, workmanship, or performance of such product, or any alleged failure to warn, or from any alleged breach of warranty, express or implied, or any alleged noncompliance with any applicable Laws, or any alleged negligence, with respect to such product.  A Product Liability Claim will be deemed to be " Made " on the first date a written notice is received by Seller or Buyer, as the case may be, asserting a Product Liability Claim that includes a claim for money damages other than a claim for reimbursement under an express written warranty for such product.  

1.125         " Products " means any and all products of the Business in the Licensed Field: (a) which are currently manufactured and/or sold or licensed by Seller and/or any of its Subsidiaries, including those identified on Schedule 1.125(a) ; (b) which are under development by Seller and/or its Subsidiaries, including those identified on Schedule 1.125(b) ; and (c) which were developed, manufactured, distributed, licensed and/or sold, as applicable, at any time before the Closing Date by or on behalf of Seller and/or its Subsidiaries.  

1.126         " Programs " has the meaning set forth in Section 5.22(a) .

1.127         " Purchase Price " means the Preliminary Purchase Price, as adjusted pursuant to Section 2.4(d) .

1.128         " Purchase Price Allocation " has the meaning set forth in Section 8.8 .

1.129         " Real Property " has the meaning set forth in Section 5.15(a) .

1.130         " Real Property Agreements " means the Real Property Lease Assignments.  Notwithstanding the foregoing, if the relevant Landlord consent to the assignment of an Assigned Lease has not been received prior to the Closing Date as set forth in Section 8.17(a) below, the Real Property Lease Assignment as to such premises shall not be considered Real Property Agreements for purposes of Section 3.2 and Section 3.3 .

1.131         " Real Property Lease Assignments " has the meaning set forth in Section 8.17(a)(i) .

1.132         " Recall " has the meaning set forth in Section 5.20(b) .

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1.133         " Released " (or " Release ," as the context requires) means released, spilled, leaked, discharged, disposed of, pumped, poured, emitted, emptied, injected, leached, or dumped Hazardous Substances.

1.134         " Remedial Action " has the meaning set forth in Section 8.5(b) .

1.135         " Remediation " has the meaning set forth in Section 5.16(a) .

1.136         " Response Action " means any action or activities of "response" as that term is defined in 42 U.S.C. § 9601(25), without regard to any limitation of that term (or terms included therein by reference) to "hazardous substances" as defined under CERCLA.

1.137         " Retirement Benefits " means any pension, lump sum, installment, annuity or similar benefit provided or to be provided on or after retirement (including early retirement), death or disability in respect of an Employee's employment, but excluding benefits provided under an arrangement, the sole purpose of which is to provide benefits on the accidental injury or death of a Transferred Employee.

1.138         " Returns " has the meaning set forth in Section 5.8(a) .

1.139         " Rules " has the meaning set forth in Section 13.7(b) .

1.140         " Schedules " means the schedules to this Agreement as of the Offer Date, except that Schedule 1.94 (Licensed Patents),  Schedule 1.186 (Transferred Tangible Assets) and Schedule 7.1(a) (Employees) may be updated by the Seller prior to the Closing, subject to the consent of Buyer (such consent not to be unreasonably withheld, delayed or conditioned) to the extent contemplated by or otherwise provided for under this Agreement.

1.141         " SEC " means the Securities and Exchange Commission.

1.142         " Securities Act " has the meaning set forth in Section 5.2(c) .

1.143         " Seller " has the meaning specified in the first paragraph of this Agreement.

1.144         " Seller Benefits Plans " means the Employee Benefits Plans of Seller (or a Subsidiary thereof) under which some or all of the Transferred Employees are eligible to participate immediately prior to the date of this Agreement.

1.145         " Seller Caused Environmental Claim " has the meaning set forth in Section 11.3(d)(iii)(1).

1.146         " Seller Caused Environmental Losses " has the meaning set forth in Section 11.3(d)(iii).

1.147         " Seller Domestic Benefit Plan " has the meaning set forth in Section 5.13(a)(i) .

1.148         " Seller Employment Liabilities " has the meaning set forth in Section 7.7 .

1.149         " Seller's Environmental Indemnification Obligations " means (i) Seller's obligation to indemnify the Buyer Indemnified Parties for any breach of the representations contained in Section 5.16 hereof to the extent required in (and subject to the other terms and conditions of) Article 11 hereof; and (ii) Seller's obligation to indemnify the Buyer Indemnified Parties for the Seller's Special Environmental Indemnity in Section 11.3(d) hereof to the extent required in (and subject to the other terms and conditions of) Article 11 hereof.

1.150         " Seller Indemnified Parties " has the meaning set forth in Section 11.2 .

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1.151         " Seller Material Adverse Effect " means any change, event, state of facts, or effect (each an " Effect ") that is materially adverse to the Business; provided, however , that none of the following shall be deemed, either alone or in combination, to constitute a Seller Material Adverse Effect: any Effect resulting from or arising out of (a) the announcement of this Agreement or the pendency of the transactions contemplated hereby, including actions taken in connection with the separation of the Business in furtherance of the transactions contemplated hereby, (b) the performance by a Party of its obligations under this Agreement or as required by applicable Laws or accounting requirements, (c) general economic conditions in any country where the Business is conducted that do not disproportionately and adversely affect the Business in any material respect, (d) general conditions in any industry in which the Business is conducted that do not disproportionately and adversely affect the Business in any material respect, (e) any natural disaster or any acts of terrorism, sabotage, military action or war (whether or not declared) or any escalation or worsening thereof, (f) any Environmental Condition existing on or before the Closing in the soil and/or groundwater on, or migrating on or before the Closing from, all properties owned, leased or occupied at any time by Seller or any of Seller's Subsidiaries in connection with the Business or (g) any Effect for which an adjustment to the Preliminary Purchase Price is required to be made pursuant to Section 2.4 .

1.152         " Seller Representatives " means the directors, officers, employees, agents, investment bankers, attorneys, accountants and other advisors to, or representatives of, Seller and/or its Subsidiaries.

1.153         " Seller Retirement Plan " means each scheme, plan, fund or arrangement of Seller, whether written or oral, which provides Retirement Benefits to or, in respect of Automatic Transfer Employees (not including any mandatory state or social security plan or Industry‑Wide Plan in which any member of Seller participates for the benefit or, in respect of Automatic Transfer Employees).

1.154         " Seller's Special Environmental Indemnity " means the indemnity provided by Seller to the Buyer Indemnified Parties set forth in Section 11.3(d) hereof to the extent required in (and subject to the other terms and conditions of) Article 11 hereof.

1.155         " Shared Benefit Employees " means those Offered Employees (i) who do not accept an offer of employment made by Buyer pursuant to Section 7.1(a) , which offer of employment contemplates a relocation of the Offered Employee's principal office to a location of more than fifty (50) miles from the location of the Offered Employee's principal office prior to such relocation and (ii) whose employment is terminated for any reason, other than for Cause or Poor Performance, which termination occurs on or after the date of the offer and on or before the ninetieth (90th) day after the Closing Date.

1.156         " Straddle Period " has the meaning set forth in Section 8.7(a)(i) .

1.157         " Subsidiary " means with respect to a Party, any other corporation, limited liability company, general or limited partnership, unincorporated association or other business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Party, or one or more of the other Subsidiaries of such Party or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Party, or one or more Subsidiaries of such Party or a combination thereof.

1.158         " Subsidiary Consents " has the meaning set forth in Section 5.10(b) .

1.159         " Subsidiary Contract " has the meaning set forth in Section 5.10(b) .

1.160         " Subsidiary Leases " has the meaning set forth in Section 5.15(a) .

1.161         " Subsidiary Real Property " means the real property described on Schedule 1.161 hereof .

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1.162          " Tax(es) " means any tax of any kind including United States or other national, state, provincial, regional, local or foreign income, net income, alternative or add on minimum, gross income, gross receipts, profits, windfall profits, property, ad valorem, franchise, sales, value‑added, use, capital, transfer, gains, license, excise, employment, payroll, premium, services, environmental transfer, withholding or minimum tax, or any other tax custom, duty, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest and any penalty, addition to tax or additional amount imposed by any Governmental Authority.

1.163         " Tax Return " means any return, declaration, report, statement or information return or other document required to be filed with respect to any Taxes (including any attached schedules, statements or other documents), including any information return, claim for refund, amended return and declaration of estimated Tax.

1.164         " Technology " means inventions, works of authorship, mask works, models, know-how, and other information, including all designs, design and manufacturing documentation (such as bills of materials, build instructions and test reports), schematics, algorithms, routines, patterns, compilations, programs, methods, techniques, unpatented inventions, manufacturing and production processes and techniques, software, databases, lab notebooks, development and lab equipment, process, prototypes, published and unpublished research regarding products, clinical or otherwise, customer and supplier lists, formulas, pricing and cost information and devices.  Technology shall not include Intellectual Property Rights, including any Intellectual Property Rights in any of the foregoing.

1.165         " Territory " means worldwide.

1.166         " Third Party Licenses " means the Contracts identified on Schedule 1.166 .

1.167         " Trade Secrets " has the meaning set forth in Section 1.81 .

1.168         " Transfer " means the sale and transfer of the Transferred Assets from Seller (including the Subsidiaries of Seller) to Buyer (including the Buyer Subsidiaries).

1.169         " Transfer Taxes " means all transfer, documentary, sales, registration, value‑added, use and other Taxes, excluding income Taxes, arising in connection with the consummation of the transactions contemplated hereby.

1.170         " Transferred Accounts Receivables " means the accounts receivable of Seller included on the Final Net Working Capital Statement.

1.171         " Transferred Assets " means all right, title and interest of Seller and its Subsidiaries (excluding IPR) in and to the Transferred Equity Interests, the Transferred Inventory, the Transferred Tangible Assets, the Transferred Contracts, the Transferred Accounts Receivables, the Assigned Leases, the Subsidiary Leases, the Transferred Employee Records and the Transferred Real Property.

1.172         " Transferred Business " means such portion of the Business that constitutes the Transferred Assets, Transferred IPR and the Assumed Liabilities under this Agreement and the transactions contemplated hereby.

1.173         " Transferred Contracts " means the Contracts listed on Schedule 1.173 and any Subsidiary Contracts.

1.174         " Transferred Copyrights " means (a) the registered Copyrights listed on Schedule 1.174 and (b) the Copyrights owned by Seller in works of authorship that are used exclusively in the Business in the Licensed Field as of the Closing.  Notwithstanding, Buyer shall have full, unlimited ownership of the Transferred Copyrights as of the date of Closing, and shall have no limitation on the use of the Transferred Copyrights whether in the Licensed Field or otherwise.

1.175         " Transferred Employee " means each Employee that either (a) becomes an employee of Buyer (or a Subsidiary thereof) upon the Closing or (b) is an Automatic Transfer Employee; provided , however , the parties acknowledge that if an Employee of Seller does not accept an employment offer from Buyer, such Employee would never become a Transferred Employee for any purposes.

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1.176         " Transferred Employee Records " means (with such Transferred Employee's consent where legally required) the employment data, which discloses the terms and conditions under which an Employee is employed immediately prior to the Closing, and copies of all personnel files related thereto.

1.177         " Transferred Equity Interests " means the Equity Interests owned of record or beneficially by Seller and its Subsidiaries in the Transferred Subsidiaries. 

1.178         " Transferred Internet Properties " means the Internet Properties that are exclusively used in the Business as identified on Schedule  1.178 .

1.179         " Transferred Inventory " means the raw materials, work in process, and finished goods used or held for use in the Business as of the Closing Date (including any on consignment or in transit, and wherever located).

1.180         " Transferred IPR " means (a) the Transferred Marks, (b) the Transferred Internet Properties, (c) the Transferred Trade Secrets, (d) the Transferred Copyrights, and (e ) the Transferred Patents.

1.181         " Transferred Marks " means the Marks that are listed on Schedule 1.181(a) and all of the goodwill of the Business associated with or appurtenant to such Marks as of the Closing; provided , however , that in no event will such Marks include the term "Mentor", those terms identified on Schedule 1.181(b) or any variations thereof, or any trade marks or trade names incorporating such name or the "Mentor" logo, or any trade marks, logos or designs confusing therewith.

1.182           " Transferred Patents " means (i) the Patents (including applications) identified on Schedule 1.182 (ii) any Patent filed by Seller prior to the Closing that claims priority from a Patent identified on Schedule 1.182 as of the Offer Date  (in which case such Schedule shall be amended to add such Patent), and (iii) any Patent filed by Buyer following the Closing which claims priority from a Patent identified on Schedule 1.182 and which invention is in the Licensed Field and a Transferred Trade Secret.

1.183         " Transferred Real Property " means for non-U.S. Real Property, the Real Property identified on Schedule 1.183(a) , and for U.S. Transferred Real Property, the Real Property identified on Schedule 1.183(b) .

1.184         " Transferred Subsidiaries " means those direct and indirect Subsidiaries of Seller identified on Schedule 1.184 .

1.185         " Transferred Subsidiary Employee " has the meaning set forth in Section 7.1(a) .

1.186          " Transferred Tangible Assets " means the fixed and other tangible assets (other than real property and buildings and inventory) owned by Seller or any Seller Subsidiaries, other than Transferred Subsidiaries, listed in Schedule 1.186 , including (a)  the Transferred Technology, (b) the tangible embodiments of the Transferred Trade Secrets, (c)  all personal productivity assets owned by Seller or any Seller Subsidiaries associated with Transferred Employees such as personal data assistants, cellular phones and personal computers, and (d) all notes, correspondence, document files, records, marketing materials, pamphlets and literature exclusively relating to the Business or the Products, in each case of clauses (a), (b), (c) and (d), as the same may be depleted or augmented prior to the Closing Date in the ordinary course of business; provided , however , that in no event will such assets include any Excluded Assets.

1.187         " Transferred Technology " means the Technology (other than Excluded Assets) owned by Seller or any Seller Subsidiaries that is used exclusively in the Business in the Licensed Field as of the Closing and the tangible embodiments of the Transferred Trade Secrets and the Transferred Copyrights .  Notwithstanding, Buyer shall have full, unlimited ownership of the Transferred Copyrights as of the date of Closing, and shall have no limitation on the use of the Transferred Copyrights whether in the Licensed Field or otherwise.

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1.188         " Transferred Trade Secrets " means the Trade Secrets (other than the Excluded Assets) owned by Seller or any Seller Subsidiaries that are exclusively used in the Business in the Licensed Field as of the Closing Date.  Notwithstanding, Buyer shall have full, unlimited ownership of the Transferred Trade Secrets as of the date of Closing, and shall have no limitation on the use of the Transferred Trade Secrets whether in the Licensed Field or otherwise.

1.189         " Transition Services Agreement " means the Transition Services Agreement of even date herewith in the form attached hereto as Exhibit C .

1.190         " Upward Adjustment Amount " has the meaning set forth in Section 2.4(d) .

1.191         " UK " means the United Kingdom.

1.192         " UK Competition Authorities " means the UK OFT, the UK Competition Commission and any other Governmental Authority in the United Kingdom responsible for the enforcement of antitrust or merger control Laws.

1.193         " UK OFT " means the UK Office of Fair Trading.

1.194         " UK OFT Undertakings " means the undertakings given to the UK Secretary of State for Trade and Industry under Section 88(2) of the Fair Trading Act 1973 by Coloplast A/S, Coloplast Limited and 4C Health Limited following the report of the UK Competition Commission entitled "Coloplast A/S and SSL International plc: A report on the merger situation" (Cm 5811, May 2003) and announced in a Department of Trade and Industry Press Notice dated 22 July 2003 (P/2003/420), or any variations or amended versions thereof.

1.195         " U.S. Employee " has the meaning set forth in Section 7.1(a) .

1.196         " Voluntary Transfer Employee " means each Offered Employee who becomes a Transferred Employee pursuant to the terms of this Agreement.

1.197         " Voting Debt " means bonds, debentures, notes or other indebtedness having the right to vote on any matters on which holders of other Equity Interests may vote. 

1.198         " Warranty Breach " means with respect to a Party, an inaccuracy or breach of a representation or warranty expressly made by such Party in an Operative Agreement.

1.199         " Year‑End Financials " has the meaning set forth in Section 5.12 .

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1.200         " Years of Service " means, with respect to any Transferred Employee's prior service as an employee of either Seller or a Subsidiary of Seller, fully completed calendar years plus the pro rated time described in the following sentence.  Not fully completed calendar years shall be counted towards Years of Service at the rate of 1/12 ^th for each full calendar month of service.

(ii)             For all purposes of and under this agreement, the following capitalized terms shall have the respective meanings ascribed thereto in the section of this Agreement set forth opposite each such capitalized term below:

Capitalized Term	Section
ABISS	8.27
ABISS Agreement	8.27
Anoka Facility	8.24(b)(ii)
Anoka Sale	8.24(a)
Assigned Lease Premises	8.17(a)(ii)
Assumed Taxes	8.7(a)(i)
CERCLA	1.50
Changes	8.7(b)
CP UK	8.24(a)
Environmental Insurance	8.21
Evaluation Material	8.15(a)
FIFO	4.11(d)
Foreign Benefit Plan	5.13(b)(i)
FTC Amount	8.6(b)
Insurance Payment	11.6(a)
Internet Properties	1.81
Licensed MEC Mark	8.24(b)(viii)
Made	1.124
MEC	8.24(b)(i)
MENTOR CLEAR ADVANTAGE Mark	8.24(c)
Minneapolis Environmental Losses	11.3(d)(i)
Mitigation Payment	11.6(a)
MML Sale	8.24(a)
Offered Employees	7.1(a)
Other Business Property	11.3(d)(ii)
Party	Preamble
Patent Covenant	4.8
Preliminary Purchase Price Allocation	8.8
Qualifying Loss	11.3(b)
Residuals	4.4
Retained MEC Marks	8.24(b)(viii)
Retained Subsidiaries	8.28
Retention Payment	7.9
RMC	8.24(a)
RM UK	8.24(a)
Sarlat Property	11.3(d)(ii)(2)
SMEC	8.24(b)(ii)
Structural Representations	11.1
Termination	8.24(a)
Third Party Payment	11.6(a)
Threshold	11.3(b)
Transferred Names	8.19(a)
Transition Marks	4.11(e)
Transition Products	4.11(e)
UK MEC Marks	8.24(b)(viii)
UK MEC Products	8.24(b)(iii)
Year‑End Financials	5.12(a)

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Article 2

PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES

2.1                Transferred Assets ; Transferred IPR

(a)                 Upon the terms and subject to the conditions set forth herein, including Section 2.3 , Article 9 and Article 10 , as of the Closing Date, Seller shall, and/or shall cause its Subsidiaries to, sell, transfer, convey, assign and deliver to Buyer, or if so requested by Buyer, to a Subsidiary of Buyer, free and clear of all Encumbrances, and Buyer shall purchase and accept from Seller and its Subsidiaries, the Transferred Assets.

(b)                 Upon the terms and subject to the conditions set forth herein, including Section 2.3 , Article 9 and Article 10 , as of the Closing Date Seller shall, and/or shall cause its Subsidiaries to, sell, transfer, convey, assign and deliver to Buyer, or if so requested by Buyer, to a Subsidiary of Buyer, free and clear of all Encumbrances, all right, title and interest of Seller and its Subsidiaries in and to the Transferred IPR, including the right to pursue past damages based on third‑party infringement of the Transferred IPR, and also including the goodwill of the Business appurtenant to the Transferred Marks included in the Transferred IPR .

(c)                 Buyer hereby waives compliance with the provisions of any applicable Laws which relate to the sale of property in bulk in connection with the transfer of the Transferred Assets to the Buyer.

2.2                Assumed Liabilities

Upon the terms and subject to the conditions hereof, as of the Closing Date, Seller shall, or shall cause its Subsidiaries to, assign and transfer to Buyer, and Buyer shall, or shall cause the Buyer Subsidiaries to, assume and fully perform and discharge, on a timely basis and in accordance with their respective terms, the Assumed Liabilities.  Notwithstanding the foregoing, other than the Assumed Liabilities specifically listed on Schedule 1.6 , Buyer assumes no Liabilities of Seller, its Subsidiaries or any of its Affiliates.  Notwithstanding anything to the contrary, nothing shall include or be deemed to include among or within the Transferred Business, Transferred Assets, Transferred IPR, Transferred Internet Properties, any assets, Liabilities, IP, IPR or other property rights, or any Liabilities whatsoever with respect to, the ObTape® brand products, including any components thereof, any instruments or other accessories sold in conjunction with and for use strictly with ObTape®, and Marks, advertising and marketing materials used strictly with ObTape®.

2.3                Conveyances

Promptly following the execution and delivery of this Agreement, each of Buyer and Seller will cooperate in good faith to prepare and execute appropriate Contracts to convey or transfer the Transferred Assets, Transferred IPR and Assumed Liabilities held by Seller or its Subsidiaries to Buyer in connection with the Closing, or if so requested by Buyer, Subsidiaries of Buyer (the " Buyer Subsidiaries ").  Each of the Parties will use commercially reasonable efforts to cause such transfers to be effected on the most efficient basis, including minimizing Transfer Taxes.  Such transfers shall be on terms (including conditions to Closing, representations and warranties, covenants and indemnification obligations) consistent with this Agreement, including the Purchase Price Allocation, except and only to the extent of modifications required to provide for the intent of this Agreement under applicable Laws (and in such case the minimal modifications required to do so) as may be required by applicable Laws.  Where appropriate, each of Buyer and Seller will cause its Subsidiaries to comply with any applicable Laws prior to entering into the Conveyance Documents.  With respect to any Transferred Assets, Transferred IPR or Assumed Liabilities, one or more bills of sale, assignment and assumption agreement, or similar conveyance documents as may be required under the Laws of the applicable jurisdiction to validly convey, assign and transfer such Transferred Assets, Transferred IPR or Assumed Liabilities (the " Conveyance Documents ") may be used by Buyer or Seller in place of the Bills of Sale or the Assumption Agreement, as applicable.  The Parties agree that the Conveyance Documents are not intended to expand or limit the rights and obligations of Seller and Buyer beyond those provided for in this Agreement, and that the Conveyance Documents shall not provide for any additional rights or obligations of the Parties or their respective Subsidiaries that are not provided for in this Agreement or the other Operative Agreements (it being understood that for purposes of this sentence only, Operative Agreements shall not include the Conveyance Documents).  In the event of any conflict between the terms of the Conveyance Documents and this Agreement, the Parties agree and acknowledge that the terms of this Agreement shall control and that, if necessary, the Parties shall deliver such additional instruments as may be necessary to accomplish the foregoing.

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2.4                Net Working Capital Adjustment

(a)                 Within 60 days after the Closing Date, Buyer will prepare (i) a balance sheet as of the Closing Date, (the " Closing Date Balance Sheet "), which Closing Date Balance Sheet shall be prepared in accordance with GAAP on a consistent basis with the Year-End Financials, and (ii) a statement of Net Working Capital as of the Closing Date (the " Closing Date Net Working Capital Statement ", and together with the Closing Date Balance Sheet, the " Closing Statements "), which Closing Date Net Working Capital Statement shall be derived from the Closing Date Balance Sheet.  Seller will assist and cooperate with Buyer in the preparation of the Closing Statements, including by providing Buyer with reasonable access to any relevant personnel, books and records related to the Transferred Assets, the Transferred IPR and the Assumed Liabilities and historical financial data that are in Seller's possession.   A spreadsheet illustrating the Closing Date Balance Sheet and the Closing Date Net Working Capital Statement (assuming in each case that the Closing Date had occurred on December 31, 2005) is attached as Exhibit D hereto for illustrative purposes.

(b)                 Following the delivery by Buyer to Seller of the Closing Statements, Seller shall have a period of 30 days in which to review the Closing Statements.  Seller and its accountants shall be provided with reasonable access to the Transferred Assets and the Transferred IPR, the work papers of Buyer and its accountants and to the books and records relating to the Transferred Assets, the Transferred IPR and the Assumed Liabilities in connection with such review.  In the event that Seller determines that the Closing Statements have not been prepared on a basis consistent with the requirements of Section 2.4(a) , Seller shall, on or before the last day of such 30‑day period, inform Buyer in writing of such determination (the " Objection "), setting forth in reasonable detail a specific description of the basis of the Objection, the adjustments to the Closing Statements which Seller believes should be made, and Seller shall be deemed to have accepted any items not specifically disputed in the Objection.  Failure to so notify Buyer shall constitute acceptance and approval of Buyer's preparation of the Closing Statements.

(c)                 Buyer shall then have 30 days following the date it receives the Objection to review and respond to the Objection, during which period Buyer and Seller shall negotiate in good faith to resolve the Objection.  If Buyer and Seller are unable to resolve all of their disagreements with respect to the determination of the foregoing items by the 30th day following the date on which Buyer receives the Objection, after having used their good faith efforts to reach a resolution, they shall refer their remaining differences to KPMG LLP (or, if KPMG refuses to act in such capacity, such other nationally recognized accounting firm as the Parties shall reasonably agree) (the " CPA Firm "), who shall, acting as experts in accounting and not as arbitrators, determine on a basis consistent with the requirements of Section 2.4(a) , whether and to what extent, if any, the Closing Statements require adjustment.  Buyer and Seller shall request the CPA Firm to use all reasonable efforts to render its determination within 45 days following submission of such matters to the CPA Firm.  The CPA Firm's determination shall be final, conclusive and binding upon Buyer and Seller, and nonappealable to any Person, court or forum absent manifest error or manifest bias.  Buyer and Seller shall promptly make reasonably available to the CPA Firm access to the Transferred Assets, all relevant books and records, any work papers (including those of the Parties' respective accountants, to the extent applicable) and supporting documentation relating to the Closing Statements and all other items reasonably requested by the CPA Firm.  The " Final Balance Sheet " and the " Final Net Working Capital Statement " shall mean, respectively, the Closing Date Balance Sheet and the Closing Date Net Working Capital Statement, as the case may be, (i) as submitted by Buyer pursuant to Section 2.4(a) , in the event that (1) no Objection is delivered to Buyer during the initial 30‑day period specified above or (2) Buyer and Seller so agree, (ii) as adjusted in accordance with the Objection, in the event that (A) Buyer does not respond to the Objection during the 30‑day period specified above following receipt by Buyer of the Objection or (B) Buyer and Seller so agree, (iii) as adjusted in accordance with the agreement of Buyer and Seller, if the Parties so agree during the 30‑day period following receipt by Buyer of the Objection, or (iv) as adjusted by the CPA Firm, if it has been submitted to the CPA Firm for review, together with any other modifications to the Closing Statements agreed upon by the Parties.  All fees and expenses of the CPA Firm shall be shared equally by Buyer and Seller.

(d)                 If the Net Working Capital Target is greater than the Net Working Capital as reflected on the Final Net Working Capital Statement (the amount of such excess, the " Downward Adjustment Amount "), then Seller shall pay within ten (10) days to Buyer cash equal to the amount of the Downward Adjustment Amount.  If the Net Working Capital as reflected on the Final Net Working Capital Statement is greater than the Net Working Capital Target (the amount of such excess, the " Upward Adjustment Amount "), then Buyer shall pay within ten (10) days to Seller cash equal to the amount of the Upward Adjustment Amount.  Any payment pursuant to this Section 2.4(d) will be treated by the Parties as an adjustment to the Purchase Price.

2.5                No Withholding

Buyer shall make all payments required to be made to Seller hereunder free and clear of and without reduction for any withholding taxes which shall be the sole responsibility of Buyer.

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Article 3

CLOSING

3.1                The Closing

The transactions contemplated by this Agreement shall be consummated (the " Closing ") at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, at 650 Page Mill Road, Palo Alto, California, no later than two Business Days after all of the conditions set forth in Article 9 and Article 10 shall have been satisfied or waived (other than those conditions that by their terms are not capable of being satisfied or waived until the Closing), or such other place, time and date as the Parties shall agree in writing.  The time and date on which the Closing is actually held is sometimes referred to herein as the " Closing Date ."

3.2                Deliveries by Seller

At the Closing, Seller will deliver or cause to be delivered to Buyer (unless previously delivered) the following:

(a)                 duly executed share certificates or evidence of membership interests (as applicable), stock powers in blank or membership interest powers in blank (as applicable) in respect of each of the Transferred Equity Interests;

(b)                 duly executed counterparts to the Bills of Sale;

(c)                 duly executed counterparts of the assignments of the Transferred IPR in substantially the forms as set forth in Exhibit E-1 and Exhibit E-2 (collectively, the " IPR Assignment ");

(d)                 limited or special warranty deeds transferring the Transferred Real Property to Buyer or its Subsidiaries, subject to any and all Permitted Encumbrances;

(e)                 duly executed counterparts of the Real Property Agreements;

(f)                  the certificate referred to in Section 9.5 ;

(g)                 the applicable Conveyance Documents with respect to each of the jurisdictions set forth in Schedule 3.2(g) ;

(h)                 certificates satisfying the requirements of Treasury Regulation § 1.1445-2 that exempt Buyer and the Buyer Subsidiaries from any requirement to withhold Taxes under Code § 1445;

(i)                   a duly executed counterpart of the Escrow Agreement;

(j)                  all Schedules and other documents, instruments, declarations, affidavits and writings as may be necessary to assign, convey, transfer and deliver to Buyer good and valid title to the Transferred Assets and Transferred IPR, free of Encumbrances, or as required to be delivered by Seller (or a Subsidiary thereof) at or prior to the Closing pursuant to the Operative Agreements; provided, however , that Buyer and Seller shall each file or record or cause to be filed and recorded such documents, instruments, declarations, affidavits or other writings as may be necessary in accordance with applicable Laws; provided, further , that the responsibility for the payment of all fees for applicable recordation and filings of documents, instruments, declarations, deeds, affidavits or other writings necessary to effect any applicable assignments or transfers under this Agreement and for recording any such assignments, including assignments with respect to the Transferred Real Property and the Transferred IPR, shall be split equally between Buyer and Seller;

(k)                 all documents and instruments necessary to effect filings with any Governmental Authority which are required to properly register the Products and relevant establishments in the Buyer's name effective as of the Closing Date (for example, FDA and its overseas counterparts' products and establishment licenses and environmental permits, etc.);

(l)                   the advice of the Workers' Council of Porges;

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(m)               evidence of release of the Encumbrances against the Transferred Assets identified on Schedule 3.2(m) ;

(n)                 all other documents, instruments and writings required to be delivered by Seller (or a Subsidiary thereof), at or prior to the Closing pursuant to the Operative Agreements.

3.3                Deliveries by Buyer

(a)                 At the Closing, Buyer will deliver or cause to be delivered to Seller (unless previously delivered) the following:

(i)            an amount equal to  the Preliminary Purchase Price less the Escrow Amount, which shall be paid by wire transfer of immediately available funds to an account designated by Seller; provided, however , that, if applicable, an appropriate portion of the Preliminary Purchase Price shall be paid in accordance with the terms of the Conveyance Documents (as determined by Seller in its reasonable judgment), with the remainder paid to Seller;

(ii)            a duly executed counterpart of the Assumption Agreement;

(iii)            a duly executed counterpart of the Escrow Agreement;

(iv)            duly executed counterparts to the applicable Conveyance Documents with respect to each of the jurisdictions set forth in Schedule 3.2(g) ;

(v)            the certificates referred to in Section 10.5 ;

(vi)            duly executed counterparts of the Real Property Agreements; and

(vii)            all other documents, instruments and writings required to be delivered by Buyer (or a Subsidiary thereof) at or prior to the Closing pursuant to the Operative Agreements.

(b)                 At the Closing, Buyer will deliver or cause to be delivered to the Escrow Agent the Escrow Amount in accordance with the terms of the Escrow Agreement.

Article 4

INTELLECTUAL PROPERTY LICENSES

4.1                Licensed IPR

Subject to the terms and conditions of this Agreement, effective as of the Closing, Seller hereby does grant, and shall  grant and cause its Subsidiaries to grant, to Buyer and its Subsidiaries, a worldwide, perpetual, irrevocable, non‑terminable, fully paid‑up, non‑exclusive, right and license:

(a)                 under all of Seller's rights in the Licensed Patents, to make, have made, use, sell, offer for sale, export and import products in the Licensed Field, and to practice any claimed method within such Licensed Patents in the Licensed Field. The Licensed Patents shall not be sublicensable by Buyer except in the ordinary course of business and only in connection with general license of all or substantially all of the Patents owned by Buyer in the Licensed Field to a third Person; and

(b)                 under all of Seller's rights in the Licensed Other IPR, to copy, use, perform, display, distribute, otherwise transfer products and services, and otherwise fully exploit (including by the granting of sublicenses) the Licensed Other IPR and conduct the business of Buyer following the Closing, subject to any restrictions on Buyer with respect to the Trade Secrets of Seller set forth in Section 4.6 .

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4.2                License‑Back Patents

Subject to the terms and conditions of this Agreement, effective as of the Closing, Buyer and its Subsidiaries shall and do hereby grant to Seller and its Subsidiaries, and Seller and its Subsidiaries retain, a worldwide, perpetual, irrevocable, non‑terminable, fully paid‑up, non‑exclusive, right and license under all of Buyer's rights in the License‑Back Patents, to make, have made, use, sell, offer for sale, and import any product, and to practice any claimed method within the License‑Back Patents in the License-Back Field.  The License-Back Patents shall not be sublicensable by Seller except in the ordinary course of business and only in connection with general license of all or substantially all of the Patents in the License-Back Field owned by Seller to a third Person.

4.3                Limitations

(a)                 Existing Licenses .  All licenses granted by a Party (" Licensor Party ") to the other Party or its Subsidiaries, as applicable (" Licensee Party ") under this Article 4 are subject to any and all Contracts between the Licensor Party and any third Person entered into prior to the date hereof.

(b)                 Maintenance of Patents .  Where a Licensor Party no longer wishes to prosecute or maintain a Licensed Patent or License-Back Patent in force that could be so reasonably prosecuted or maintained in force, it shall offer assignment of the said application or Patent to the Licensee Party at no cost but shall retain a perpetual, irrevocable, non-terminable, royalty free, sublicensable, license to such transferred Patent.

4.4                License-Back Other IPR

Subject to Section 8.16 , Buyer and its Subsidiaries shall and do hereby grant to Seller and its Subsidiaries under all rights in the License-Back Other IPR transferred to Buyer hereunder, and Seller and its Subsidiaries retain thereunder, a non-exclusive, worldwide, non-terminable, irrevocable, perpetual, assignable, sublicensable license to use, copy, distribute, otherwise transfer, create derivative works from, display, and perform the Licensed-Back Other IPR (and associated Technology) in all fields; provided , that (i) Seller agrees that it will not knowingly and specifically assign or sublicense such Licensed-Back Other IPR to a third party on a stand-alone basis in the Licensed Field and that the foregoing licenses shall be subject to Section 4.6 with respect to any Trade Secrets included in the License-Back Other IPR; (ii) the forgoing license to the Transferred Trade Secrets included in the Licensed Back Other IPR is limited in the Licensed Field to a license to Residuals only; and (iii) the foregoing license to the Transferred Copyrights included in the Licensed Back Other IPR excludes the use of the tangible embodiments of any such Copyrights in the Licensed Field.  " Residuals " means Trade Secret information retained in the unaided memory of employees that have been exposed to such Trade Secret information.

4.5                Reservation of Rights

Each of the Licensor Parties hereby reserves all rights not expressly granted hereunder.  No implied licenses are granted by Seller with respect to any of the Transferred Assets or pursuant to any term of this Agreement.

4.6                Trade Secret Protection and Use

Notwithstanding the retention of ownership of any Trade Secrets by Seller (and the license granted thereto to Buyer), or transfer of ownership of Trade Secrets to Buyer (with a license retained thereto by Seller) hereunder, each Party agrees (i) nothing set forth herein shall limit either Party's rights to enforce its rights with respect to the any misappropriation following the Closing by third parties of such Trade Secrets or to protect the confidentiality of such Trade Secrets regardless of whether such Trade Secrets are licensed to, or owned by such Party, and (ii) each Party shall treat the Trade Secrets of the other with at least the same degree of care, as its does its own like Trade Secrets, but in no event with less than reasonable care; provided that each Party may use and disclose the Trade Secrets of the other within the scope of the licensed granted hereunder.

4.7                Transfer

The Licensee Party may transfer or assign, in whole or in part, the licenses granted to it hereunder in connection with a Change of Control of the Licensee Party or the sale of substantially all of the assets of a business of the Licensee Party to which the license to be transferred or assigned relates.

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4.8                Products Outside of Licensed Field and License-Back Field

In the event that Seller and/or its Subsidiaries shall make, have made, use, sell, offer for sale, or import a product outside of the License-Back Field that, absent a license, infringes or would infringe any of the Transferred Patents, Seller shall so notify Buyer, and thereafter, Buyer shall license to Seller such Transferred Patents for use in such field of use (but in no event within the Licensed Field) upon commercially reasonable terms, which such terms shall be negotiated in good faith by Buyer and Seller (the foregoing, the " Patent Covenant ").  If Seller infringes any Transferred Patents outside the License-Back Field and does not seek a license to such Patents in accordance with the foregoing Patent Covenant, Buyer's sole and exclusive remedy shall be to bring an action seeking a reasonable royalty for a license to such Patents and for past royalty payments that would have been due; provided , however , Buyer (or any successor to the Transferred Patents) shall not have the right to seek or obtain an injunction against Seller's infringement of such Patents and if Buyer is the prevailing party in such action, Buyer shall be entitled to payment of Buyer's legal fees and expenses by Seller.  Buyer agrees that in the event of an assignment or transfer of any of the Transferred Patents, Buyer (and any subsequent transferee) shall obtain the agreement of the transferee or successor to such Transferred Patents, for the benefit of Buyer and its successors, to the Patent Covenant.  In the event that Buyer (or any subsequent transferee of the Transferred Patents) fails to obtain agreement to such Patent Covenant, the Seller shall be deemed to have, effective as of the date hereof, a non-exclusive, royalty free, perpetual worldwide license to such Patents in all fields other than the Licensed Field.

4.9                Bulking Agent and/or Toxin

In the event that Seller shall seek to first commercialize a dermal filler or other bulking agent or toxin (including a botulinum toxin), as the case may be, in the Licensed Field after the Closing Date, then Seller shall provide Buyer the reasonable opportunity to discuss in good faith a mutually beneficial arrangement for the commercialization of such dermal filler or other bulking agent or toxin, as the case may be, in the Licensed Field; in no event such opportunity to be later than thirty (30) days prior to Seller entering into an agreement, if any, for such first commercialization with a third party.  Seller's obligations under this Section 4.9 shall terminate on the tenth (10 ^th ) anniversary of the Closing Date.

4.10            Exclusive Patent

If Schedule 1.182 omits any Patents owned by Seller as of the Closing Date that as of the Closing Date claim an invention that is exclusive to the Licensed Field, Buyer shall, as its sole and exclusive remedy for such omission, be granted and shall have effective as of the Closing Date, a perpetual, worldwide, royalty free, paid-up license in the Licensed Field to such Patent with the right to bring an action for the infringement of such Patent or Patents in the Licensed Field.  Such license shall be exclusive in the Licensed Field as of the date the determination is made that such Patent was omitted from Schedule 1.182 .

4.11            License to Transition Marks

(a)                 Seller hereby grants to Buyer, effective as of the Closing Date, a worldwide, non-exclusive, non-transferable license under the Transition Marks (as defined below) to use such Transition Marks in connection with the marketing, packaging, sale and promotion of Transition Products (as defined below) in substantially the same manner that such Transition Marks were used by Seller prior to the Closing.  All goodwill associated with the use of such Transition Marks shall inure to the benefit of Seller.

(b)                 Buyer shall maintain the quality of the goods with which such Transition Marks are used at least at the same level maintained by Seller prior to the Closing.  Without limiting the foregoing, Buyer shall not (i) use the Transition Marks in a manner that detracts from the goodwill associated with such Transition Marks or in a manner contrary to the reasonable instructions of Seller, (ii) co-brand the Products with any other Marks without the prior written consent of Seller, or (iii) sell any Transition Product beyond its shelf life or in any other improper manner.  Buyer shall not make any warranty, express or implied, to any third party on behalf of Seller with respect to the Transition Products and except as may be otherwise provided under this Agreement shall be solely responsible for all Transition Products sold by it.

(c)                 Notwithstanding the license set forth in Section 4.1(a) , Buyer will use reasonable commercial efforts, subject to regulatory requirements, to cease using the Transition Marks as promptly as practicable following the Closing, and replace such Marks with new Marks owned by Buyer.  Without limiting the generality of the foregoing, in no event may Buyer market, package, sell or promote any product under or bearing a Transition Mark that shall have been manufactured by or for Buyer which manufacture shall have occurred after the last day of the 18th month following the Closing Date.

(d)                 Buyer will sell Transition Products in inventory on a first-in-first-out (FIFO) basis.  Buyer will not increase inventory levels of Transition Products beyond levels consistent with historic inventory levels of such Transition Products.

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(e)                 For the purposes of this Section 4.11 , (A) " Transition Products " means (i) all Products in Seller's inventory as of the Closing Date and (ii) all such Products manufactured by or for Buyer in accordance herewith and sold by Buyer under a Transition Mark; and (B) " Transition Marks " means all Marks used by Seller prior to the Closing Date in connection with the marketing, sale, promotion and packaging of the Transition Products.

Article 5

REPRESENTATIONS AND WARRANTIES OF SELLER

Subject to the Schedules and the disclosures and exceptions set forth in the Disclosure Letter delivered by Seller to Buyer on the date hereof (the " Disclosure Letter ") (which disclosures and exceptions will reference the appropriate section of this Article 5 to which they relate and each of which disclosures and exceptions shall be deemed to be incorporated by reference into the representations and warranties; provided , that any information disclosed in the Disclosure Letter shall be deemed disclosed and incorporated in any other section, subsection, clause and paragraph hereof where it is reasonably apparent that such disclosure is applicable to such other section, subsection, clause or paragraph) Seller hereby makes the following representations and warranties to Buyer as of the Offer Date:

5.1                Organization and Authority

(a)                 Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota.  Seller has the requisite corporate power and authority to execute and deliver this Agreement and each of the Operative Agreements to which it is a party and to perform its obligations hereunder and thereunder.  Seller is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on Seller or prevent the performance by Seller of its obligations under this Agreement or the other Operative Agreements to which it is a party.

(b)                 Each of the Transferred Subsidiaries is duly organized, validly existing and in good standing (to the extent such jurisdiction recognizes the concept or similar concept) under the laws of the jurisdiction in which it was formed.  Each of the Transferred Subsidiaries has the requisite corporate power and authority to execute and deliver each of the Operative Agreements (if applicable) to which it is a party and to perform its obligations thereunder.  Each of the Transferred Subsidiaries is duly qualified to do business in and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified or in good standing would not, individually or in the aggregate, be reasonably likely to have a material adverse effect on Seller or prevent the performance by Seller of its obligations under this Agreement or the other Operative Agreements to which it is a party.

(c)                 This Agreement is as of the date hereof, and each of the other Operative Agreements to which Seller or a Subsidiary is a party will be, upon their execution and delivery, duly and validly authorized, executed and delivered by Seller or the applicable Subsidiary and this Agreement constitutes, and each of the other Operative Agreements to which Seller or a Subsidiary is a party will constitute, the valid and binding agreement of Seller or the applicable Subsidiary, enforceable against Seller or the applicable Subsidiary in accordance with its respective terms, subject to bankruptcy and debtor creditor laws of general application, rules of equity and rules concerning specific performance (collectively, the " Enforceability Exceptions ").  No other actions or proceedings on the part of Seller are necessary to authorize Seller's execution or performance of this Agreement or any of the other Operative Agreements to which it is a party or the transactions contemplated hereby or thereby.

5.2                Transferred Subsidiaries; Capitalization

(a)                 Except for the Transferred Equity Interests, Seller does not own or hold, directly or indirectly, any Equity Interest of any kind in any Person that owns assets or properties or conducts operations used or held for use in the Business.  All of the Transferred Equity Interests have been duly authorized and validly issued and are fully paid and non-assessable, to the extent such terms are applicable to such Transferred Equity Interests, with no personal liability attaching to ownership thereof, and such Transferred Equity Interests are owned by Seller, in each case free and clear of any Encumbrances.  Upon consummation of the transactions contemplated hereby, Buyer and/or a Subsidiary of Buyer will acquire good and valid title to the Transferred Equity Interests free and clear of all Encumbrances, other than Encumbrances placed upon such Transferred Equity Interests by Buyer or its Subsidiaries or generally applicable to the assets of Buyer and/or its Subsidiaries. Except for this Agreement, the Transferred Equity Interests and as described in Section 5.2(a) of the Disclosure Letter, there are no outstanding Equity Interests in the Transferred Subsidiaries.  There are no Contracts or other arrangements by which the Transferred Subsidiaries are, may be or become bound to issue additional Equity Interests in the Transferred Subsidiaries.

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(b)                 Neither Seller nor any of its Subsidiaries is subject to any obligation or requirement to provide funds to or make any investment (whether in the form of a loan, capital contribution or otherwise) in any of the Transferred Subsidiaries.

(c)                 The jurisdiction of organization and authorized Equity Interests of each Transferred Subsidiary is set forth in Section 5.2(c) of the Disclosure Letter.  There are no outstanding obligations of the Transferred Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or membership interests of the Transferred Subsidiaries or pursuant to which any Transferred Subsidiary is required to register any Equity Interests under the Securities Act of 1933, as amended (the " Securities Act ") or under any other Laws.   None of the Transferred Subsidiaries has any outstanding Voting Debt.

5.3                No Violation

The execution and delivery by Seller of this Agreement, and by Seller and its Subsidiaries under each of the other Operative Agreements to which any of them is a party, does not, and the performance by Seller of its obligations hereunder, and by Seller and its Subsidiaries under each of the other Operative Agreements to which any of them is a party, will not: (a) conflict with, or result in a breach of, any of the provisions of any of their respective charter documents, bylaws or similar organizational documents; (b) materially breach, violate or contravene any applicable Laws; (c) create any right of termination or acceleration or Encumbrance that would prevent Seller or any of its Subsidiaries from performing its obligations under this Agreement or any other Operative Agreement to which any of them is a party; (d) assuming that the Consensual Transfers identified in Section 5.10(a) of the Disclosure Letter are obtained, conflict with, or result in a breach of or default under, any Transferred Contract in any material respect; or (e) conflict with, or result in a breach of or default under, any material Subsidiary Contract in any material respect.

5.4                Compliance with Laws ; Business Permits

No Governmental Actions on the part of Seller or any of its Affiliates or Subsidiaries are required in connection with the execution or delivery by Seller of this Agreement or by Seller or any of its Subsidiaries under any of the Operative Agreements to which it is a party or the consummation by Seller of the transactions contemplated hereby or the consummation by Seller or any of its Subsidiaries of the transactions contemplated thereby, other than pursuant to HSR and such other Governmental Actions identified on Section 5.4 of the Disclosure Letter.  For the avoidance of doubt, neither Seller nor any of its Subsidiaries hereby make any representations or warranties to Buyer as to the compliance with the UK OFT Undertakings of Buyer, any of its Subsidiaries or other parties to the UK OFT Undertakings.  Seller and the Transferred Subsidiaries, as the case may be, hold, to the extent legally required, all material permits, licenses, variances, clearances, consents, commissions, foreclosures, exemptions, orders, authorizations and approvals from Governmental Authorities that are required for them to conduct the Business in accordance with all applicable Laws (the " Business Permits ").  Seller and the Transferred Subsidiaries have conducted and operated, and are conducting and operating, the Business in accordance with the terms of the Business Permits and in compliance with all Laws applicable to the Business, its properties and affairs, including employment and immigration Laws, in all material respects.

5.5                No Broker

None of Seller or any Subsidiary of Seller, has engaged any Person, other than Citigroup Global Markets Inc. (the fees of which shall be paid by Seller), which is entitled to any fee or commission as a finder or a broker in connection with this Agreement or the transactions contemplated hereby.

5.6                Absence of Changes

Since the date of the Most Recent Balance Sheet and through the Offer Date there has not been:

(a)                 any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or could reasonably be expected to have a Seller Material Adverse Effect;

(b)                 any creation or other incurrence of any Encumbrance on any Transferred Asset other than Encumbrances created or incurred in the ordinary course of business;

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(c)                 any Contract entered into by Seller primarily relating to the Business or any Transferred Assets (including the acquisition or disposition of any assets) material to the Business or to the Transferred Assets and Transferred IPR, taken as a whole or exceeding $100,000 per annum, other than Contracts entered into in the ordinary course of business and those contemplated by this Agreement and the other Operative Agreements; or any Contract entered into by Seller resulting in an Encumbrance other than a Permitted Encumbrance with respect to Real Property;

(d)                 any receipt of written notice by Seller of any termination by any customer, supplier or other third Person in connection with, and material to, the Business;

(e)                 any material damage, destruction or loss to the assets of the Business;

(f)                  any (i) employment, deferred compensation, severance, retirement or other similar Contract entered into with any Transferred Employee (or any amendment to any such existing Contract) other than as required by Law or in the ordinary course of business, (ii) grant of any right to severance or termination pay to any Transferred Employee, other than in the ordinary course of business, (iii) change in compensation or other benefits payable to any Transferred Employee pursuant to any severance or retirement plans or policies thereof, other than in the ordinary course of business, or (iv) other change in the compensation or benefits structure applicable to the Transferred Employees in a manner that adversely affects in a material respect the cost structure of the Business ;

(g)                 any payment, discharge or satisfaction of any claim, Encumbrance, obligation or Liability of the Business, other than (i) Permitted Encumbrances, (ii) the payment, discharge or satisfaction of claims, Encumbrances, obligations or liabilities reflected or reserved against in the Most Recent Balance Sheet or (iii) in the ordinary course of business;

(h)                 any write down or write up in the value of any Transferred Inventory, or any determination as collectible of any Transferred Accounts Receivable or any part thereof which were previously considered uncollectible, or any write off as uncollectible of any Transferred Accounts Receivable or any part thereof, except in each case for write downs, write ups, and write offs in the ordinary course of business consistent with past practice;

(i)                   except in the ordinary course of business, any disposition of or permission to lapse of any right to the use of any of the Transferred IPR, or application therefor or any disposition of, or to Seller's Knowledge any disclosure of any Transferred Trade Secrets or other confidential information constituting Transferred IPR to Persons not bound by confidentiality obligations;

(j)                  except in the ordinary course of business and except for the capital expenditure commitments described on Section 5.6(j) of the Disclosure Letter, making by the Business of any capital expenditure or commitment in excess of $500,000 for additions to property, plant, equipment, intangible or capital assets or for any other purpose, other than for emergency repairs or replacements;

(k)                 any entry related to the Business, into any collective bargaining or labor Contract, or any experience of any organized slowdown, work interruption, strike or work stoppage;

(l)                   sale, transfer or other disposition of any of the Transferred Assets except in the ordinary course of business;

(m)               any grant or incurrence of any obligation for any increase in the compensation of any Transferred Employee (including same pursuant to any bonus, pension, profit sharing, retirement or other plan or commitment) except for raises to Transferred Employees in the ordinary course of business consistent with past practices;

(n)                 any change in any method of accounting or accounting principles, practices or policies of Seller with respect to the Financial Statements except as required by a concurrent change in GAAP or the rules and regulations of the Securities and Exchange Commission;

(o)                 any Contract, whether in writing or otherwise, to take any of the actions set forth in this Section 5.6 except as otherwise specifically permitted or contemplated by this Agreement or any other Operative Agreement.

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5.7                Contracts

As of the Offer Date, neither Seller nor any of the Transferred Subsidiaries is a party to or bound by, nor has Seller or any Transferred Subsidiary made any commitment with respect to any of the following with respect to the Business:

(a)                 any Contract relating to the pending acquisition or disposition of any business or product line (whether by merger, sale of stock, sale of assets or otherwise);

(b)                 any Contract which creates any Encumbrance on any Transferred Asset or Transferred IPR;

(c)                 any Contract concerning the establishment or operation by the Business of a partnership, joint venture or limited liability company;

(d)                 any Contract relating to the Business concerning or containing restrictions on business activities, including noncompetition or nonsolicitation (other than noncompetition or nonsolicitation agreements entered into with Employees in the ordinary course of business);

(e)                 any employment Contract (other than "at will" employment Contracts and Contracts arising as a matter of applicable Law) with any Transferred Employee or consulting Contract with any Person (other than consulting Contracts terminable by Seller or its Subsidiaries without cause or penalty and with no more than 30 days advance notice) providing for fixed annual cash compensation in excess of $50,000 or any employee retention, stay or bonus Contracts;

(f)                  any collective bargaining, workers' council or similar Contract relating to the Business entered into with any trade union, workers' council or other group of employee representatives;

(g)                 any Contract (excluding Assigned Leases and Subsidiary Leases) under which the consequences of a default or termination would reasonably be expected to have a Seller Material Adverse Effect; or

(h)                 any Contract (excluding Assigned Leases and Subsidiary Leases) which contains any provisions requiring Seller or any Transferred Subsidiary to indemnify any other party (other than (i) indemnities against breach of the obligations contained in Contracts which were entered into in the ordinary course of business, including ordinary course, generic director, officer and employee indemnification agreements not relating to specific or particular subjects and (ii) indemnities against IPR infringement contained in non-exclusive licenses entered into in the ordinary course).

5.8                Taxes

(a)                 To the extent that failure to do so would materially adversely impact the Transferred Assets or the Buyer's ownership of the Transferred Assets or operation of the Business, Seller and the Transferred Subsidiaries (a) have timely paid all Taxes they are required to pay or have provided adequate accruals on its Financial Statements for all Taxes it is required to pay and (b) have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports (collectively, " Returns ") relating to any and all Taxes concerning or attributable to the Transferred Assets or the Business and such Returns are true, correct and complete, prepared in accordance with applicable Laws and have timely filed all other material Tax returns required to be filed by them.

(b)                 Seller and the Transferred Subsidiaries have timely paid or withheld with respect to their Employees and other third parties (and timely paid over any withheld amounts to the appropriate Taxing authority) all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paid.

(c)                 There are no Encumbrances with respect to any Taxes upon any of the Transferred Assets, other than with respect to Taxes not yet due and payable.

(d)                 Seller does not know of any basis for the assertion of any claim for any liabilities for unpaid Taxes of Seller or the Transferred Subsidiaries for which Buyer would become liable as a result of the transactions contemplated by this Agreement or that would result in any Encumbrance on any of the Transferred Assets.

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(e)                 To the extent applicable to the Transferred Assets or the Buyer's ownership of the Transferred Assets or operation of the Business, Seller has not been delinquent in the payment of any material Tax, nor is there any Tax deficiency outstanding, assessed or proposed against Seller, nor has Seller executed any outstanding waiver of any statute of limitations on or extension of the period for the assessment or collection of any Tax.

(f)                  To the extent applicable to the Transferred Assets or the Buyer's ownership of the Transferred Assets or operation of the Business, (i) no audit or other examination of any Return of Seller is presently in progress, nor has Seller been notified of any request for such an audit or other examination; (ii) no adjustment relating to any Return filed by Seller has been proposed formally or, to the Knowledge of Seller, informally by any tax authority to Seller or any representative thereof; and (iii) no claim has ever been made by an authority in a jurisdiction where Seller does not file Returns that it is or may be subject to taxation by that jurisdiction.  

5.9                Transferred Tangible Assets

Seller or its Subsidiaries have good and marketable title to the Transferred Tangible Assets, free and clear of any Encumbrances.  To the Knowledge of Seller, such Transferred Tangible Assets are in good operating condition, free of any material defects (except those resulting from normal wear and operation).  The Transferred Tangible Assets will constitute at the Closing, all of the material tangible assets (other than Infrastructure Assets) held by Seller or any of its Subsidiaries and primarily used or held for use in the Business.

5.10            Transferred Contracts; Subsidiary Contracts

(a)                 Each Transferred Contract is a valid and binding agreement of Seller or a Subsidiary of Seller, is in full force and effect and, to the Knowledge of Seller, is enforceable according to its terms, subject to the Enforceability Exceptions.  Each of Seller and its Subsidiaries has performed or is performing all material obligations required to be performed by it under the Transferred Contracts and is not in breach or default in any material respect thereunder and, to the Knowledge of Seller, no other party to any Transferred Contract is in breach or default in any material respect thereunder.  True and complete copies of each Transferred Contract have been made available to Buyer.  Section 5.10(a) of the Disclosure Letter sets forth a list of all consents to transfers, assignments and novations required as of the Closing in connection with the assignment of the Transferred Contracts as contemplated by this Agreement (the " Consensual Transfers ").  Notwithstanding the foregoing, Seller makes no representation or warranty with respect to the Transferred Contracts regarding infringement or misappropriation of Intellectual Property Rights except those expressly made pursuant to Section 5.11 .

(b)                 Each Contract (excluding Subsidiary Leases) to which a Transferred Subsidiary is a party (each such Contract, a " Subsidiary Contract "), is a valid and binding agreement of such Transferred Subsidiary and is in full force and effect and, to the Knowledge of Seller, is enforceable according to its terms, subject to the Enforceability Exceptions.  Each Transferred Subsidiary has performed or is performing all material obligations required to be performed by it under the Subsidiary Contracts and is not in breach or default in any material respect thereunder and, to the Knowledge of Seller, no other party to any Subsidiary Contract is in breach or default in any material respect thereunder.  True and complete copies of each material Subsidiary Contract have been made available to Buyer.  Section 5.10(b) of the Disclosure Letter sets forth a list of all consents to transfers and assignments required in respect of the Subsidiary Contracts as of the Closing in connection with the transactions contemplated by this Agreement (the " Subsidiary Consents ").

(c)   &n