{"id":43293,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/asset-purchase-agreement-enhance-pharmaceuticals-inc-and-barr.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"asset-purchase-agreement-enhance-pharmaceuticals-inc-and-barr","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/asset-purchase-agreement-enhance-pharmaceuticals-inc-and-barr.html","title":{"rendered":"Asset Purchase Agreement &#8211; Enhance Pharmaceuticals Inc. and Barr Laboratories Inc."},"content":{"rendered":"<pre>                            ASSET PURCHASE AGREEMENT\n\n                              DATED MARCH 16, 2002\n\n                                 BY AND BETWEEN\n\n                    ENHANCE PHARMACEUTICALS, INC., AS SELLER,\n\n                                       AND\n\n                      BARR LABORATORIES, INC., AS PURCHASER\n\n                                Table of Contents\n                                -----------------\n\n                                                                           Page\n                                                                           ----\nARTICLE I  PURCHASE AND SALE, PURCHASE PRICE, CERTAIN PURCHASE PRICE\n           ADJUSTMENTS ASSUMED LIABILITIES, RETAINED ASSETS, TAX PAYMENTS,\n           AND ALLOCATION FOR TAX PURPOSES...................................1\n  1.1   Purchase and Sale of the Purchased Assets............................1\n  1.2   Payment of the Purchase Price........................................1\n  1.3   Assumed Liabilities..................................................2\n  1.4   Retained Assets......................................................3\n  1.5   Prorations...........................................................3\n  1.6   Transfer Tax Payments................................................3\nARTICLE II DEFINITIONS.......................................................4\n  2.1   General..............................................................4\n  2.2   Definitions..........................................................4\n  2.3   Interpretation......................................................11\nARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER........................11\n  3.1   Status of Seller; Enforceability; Conflicts; Consents...............11\n  3.2   Ownership of Seller.................................................12\n  3.3   Financial Statements................................................13\n  3.4   Undisclosed Liabilities.............................................13\n  3.5   Title to Properties.................................................13\n  3.6   Real Property.......................................................13\n  3.7   Equipment and Improvements..........................................14\n  3.8   No Commitments......................................................14\n  3.9   Continued Use of Real Property......................................14\n  3.10  Real Estate and Personal Property Taxes; Assessments................14\n  3.11  Inventory...........................................................14\n  3.12  Accounts Receivable.................................................14\n  3.13  Contracts...........................................................15\n  3.14  Equity Interests....................................................15\n  3.15  Intellectual Property...............................................15\n  3.16  Required Assets; Sufficiency of Assets..............................16\n  3.17  Suppliers...........................................................16\n  3.18  Personnel Identification and Compensation...........................16\n  3.19  Existing Employment Related Contracts...............................16\n  3.20  Compliance with Laws................................................16\n  3.21  Litigation..........................................................17\n  3.22  Environmental.......................................................17\n  3.23  Employee Benefit Plans..............................................19\n  3.24  Tax Matters.........................................................19\n  3.25  Consents............................................................20\n  3.26  Licenses and Permits................................................20\n  3.27  Occupational Safety and Health......................................21\n  3.28  Insurance...........................................................21\n  3.29  Certain Transactions................................................21\n\n\n                                        i\n\n                                Table of Contents\n                                -----------------\n                                   (continued)\n                                                                           Page\n                                                                           ----\n  3.30  Regulatory Compliance...............................................22\n  3.31  Conduct of Business Since Most Recent Balance Sheet Date............23\n  3.32  Broker's or Consultant's Fees.......................................24\n  3.33  Claims Against Insiders.............................................24\n  3.34  Disclosure..........................................................24\n  3.35  No Other Representations and Warranties.............................24\nARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER......................24\n  4.1   Status of Purchaser.................................................24\n  4.2   Authority of Purchaser..............................................24\n  4.3   Due Authorization...................................................25\n  4.4   Enforceability......................................................25\n  4.5   Consents............................................................25\n  4.6   Broker's or Consultant's Fees.......................................25\nARTICLE V PRE-CLOSING COVENANTS.............................................25\n  5.1   Ordinary Conduct....................................................25\n  5.2   Right of Inspection; Access to Books and Personnel..................27\n  5.3   Notification of Material Events.....................................27\n  5.4   Supplemental Disclosures............................................27\n  5.5   Exclusivity.........................................................28\n  5.6   Publicity...........................................................28\n  5.7   Preparation of Pre-Closing Estimated Purchase Price Certificate.....28\n  5.8   Power of Attorney; Right of Endorsement, Etc........................28\n  5.9   Covenants Not to Compete, Solicit or Disparage......................29\n  5.10  Post-Closing Confidentiality........................................30\n  5.11  Performance of Contracts............................................30\n  5.12  Employees...........................................................30\n  5.13  Allocation for Tax Purposes.........................................31\n  5.14  Mitsubishi Agreement................................................31\n  5.15  Administrative Agreement............................................31\n  5.16  Assumed Contracts...................................................31\n  5.17  The Population Council Agreement....................................31\nARTICLE VI CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS..................32\n  6.1   Obligations to be Satisfied on or Prior to Closing Date.............32\n  6.2   Procedure for Failure to Satisfy Conditions.........................33\nARTICLE VII CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS....................34\n  7.1   Obligations to Be Satisfied on or Prior to Closing Date.............34\n  7.2   Procedure for Failure to Satisfy Conditions.........................34\nARTICLE VIII CLOSING........................................................35\n  8.1   Time and Place......................................................35\n  8.2   Closing Transactions................................................35\n  8.3   Deliveries by Seller to Purchaser...................................35\n  8.4   Deliveries by Purchaser to Seller...................................36\n  8.5   Determination of Final Purchase Price...............................37\n\n\n                                       ii\n\n                                Table of Contents\n                                -----------------\n                                   (continued)\n                                                                           Page\n                                                                           ----\nARTICLE IX OTHER AGREEMENTS.................................................38\n  9.1   Further Assurances..................................................38\n  9.2   Access to Records After Closing.....................................38\n  9.3   Collection of Receivables...........................................38\n  9.4   Third Party Consents................................................39\n  9.5   Milestone Payments..................................................39\nARTICLE X INDEMNIFICATION...................................................39\n  10.1  Survival of Representations, Warranties and Indemnity...............39\n  10.2  Indemnification by Seller...........................................39\n  10.3  Limits on Indemnification by Seller.................................40\n  10.4  Indemnification by Purchaser........................................40\n  10.5  Specific Breaches...................................................41\n  10.6  Cross-indemnification for Broker's, Consultant's or Finder's Fees...41\n  10.7  Procedure for Indemnification.......................................42\n  10.8  Payment.............................................................42\n  10.9  Limited Recourse against Seller and its shareholders................43\n  10.10 Reduction for Insurance and Taxes...................................43\n  10.11 Remedies Exclusive..................................................43\n  10.12 No Consequential Damages............................................43\n  10.13 Escrow..............................................................43\n  10.14 Bulk Sales..........................................................44\nARTICLE XI TERMINATION......................................................44\n  11.1  Rights to Terminate.................................................44\n  11.2  Effects of Termination..............................................44\nARTICLE XII MISCELLANEOUS PROVISIONS........................................45\n  12.1  Notices.............................................................45\n  12.2  Assignment..........................................................46\n  12.3  Benefit of the Agreement............................................46\n  12.4  Exhibits and Schedules..............................................46\n  12.5  Headings............................................................46\n  12.6  Entire Agreement....................................................46\n  12.7  Modifications and Waivers...........................................46\n  12.8  Counterparts........................................................47\n  12.9  Severability........................................................47\n  12.10 GOVERNING LAW.......................................................47\n  12.11 Expenses............................................................47\n  12.12 JURISDICTION; WAIVER OF JURY TRIAL; VENUE...........................47\n  12.13 Seller Acknowledgement..............................................48\n\n\n                                      iii\n\nEXHIBITS\n\n      Exhibit A   Assumption Agreement\n      Exhibit B   Retained Assets\n      Exhibit C   Capital Expenditures\n      Exhibit D   Non-Competition and Non-Solicitation Agreement\n      Exhibit E   Escrow Agreement\n\nSCHEDULES\n\n      Schedule 2.2      Assumed Contracts\n      Schedule 3.1      Status of Seller\n      Schedule 3.2      Ownership\n      Schedule 3.5      Title to Properties\n      Schedule 3.6      Real Property\n      Schedule 3.13     Contracts\n      Schedule 3.15     Intellectual Property\n      Schedule 3.17     Suppliers\n      Schedule 3.18     Personal Identification and Compensation\n      Schedule 3.19     Existing Employment Related Contracts\n      Schedule 3.21     Litigation\n      Schedule 3.22     Environmental\n      Schedule 3.23     Employee Benefit Plans\n      Schedule 3.25     Consents\n      Schedule 3.26     Licenses and Permits\n      Schedule 3.27     Occupational Safety and Health\n      Schedule 3.28     Insurance\n      Schedule 3.29     Certain Transactions\n      Schedule 3.30     Regulatory Compliance\n      Schedule 3.31     Conduct of Business\n      Schedule 5.12     Employees\n      Schedule 6.1(d)   Consents to Closing\n      Schedule 6.1(k)   Individuals Subject to Non-Competition and \n                        Non-Solicitation Agreements\n      Schedule 6.2      Consents\n\n\n                                       iv\n\n                            ASSET PURCHASE AGREEMENT\n\n      THIS ASSET PURCHASE AGREEMENT is entered into this 16th day of March,\n2002, by and between Enhance Pharmaceuticals, Inc., a Delaware corporation\n(\"Seller\"), and Barr Laboratories, Inc., a New York corporation\n(\"Purchaser\").\n\n                                    RECITALS\n\n      WHEREAS, (A) Seller is engaged in the business of research and development\nof silicone elastomer and other polymer-based immediate and sustained release\nproducts that deliver one or more drug compounds through either a vaginal or\nsub-dermal route of administration for application in health care (the\n\"Business\");\n\n            (B) Seller desires to sell the Business and substantially all of its\nassets to Purchaser, and Purchaser desires to purchase the Business and\nsubstantially all of the assets of Seller; and\n\n            (C) each term defined in this Agreement shall have the meaning\nascribed to it in Article II,\n\n      NOW, THEREFORE, in consideration of the mutual agreements and covenants\ncontained herein, and for other good and valuable consideration, the receipt and\nsufficiency of which hereby are acknowledged, Purchaser and Seller hereby agree\nas follows:\n\n                                   ARTICLE I\n            PURCHASE AND SALE, PURCHASE PRICE, CERTAIN PURCHASE PRICE\n        ADJUSTMENTS ASSUMED LIABILITIES, RETAINED ASSETS, TAX PAYMENTS,\n                        AND ALLOCATION FOR TAX PURPOSES\n\n\n      1.1 Purchase and Sale of the Purchased Assets. Subject to the terms and\nconditions of this Agreement, at the Closing, Seller shall sell, assign, convey,\ntransfer and deliver to Purchaser and Purchaser shall purchase from Seller the\nPurchased Assets, free and clear of all Liens, claims, options, charges,\nencumbrances and restrictions of any kind, other than those Liens set forth on\nSchedule 3.5 hereto.\n\n      1.2 Payment of the Purchase Price. Subject to the terms and conditions of\nthis Agreement, Purchaser shall, at the Closing, pay (or in the case of the\nAssumption Agreement referred to below, execute and deliver) the purchase price\nfor the Purchased Assets (the \"Purchase Price\") consisting of:\n\n            (a) cash in the amount of Forty-Four Million Dollars ($44,000,000),\nwhich amount shall be, subject to the provisions of Section 5.7 and Section 8.5,\nincreased by the amount of the Acquired Working Capital and further increased by\nthe amount of the Unbilled Reimbursable Expenses and decreased by the amount of\nany Milestone Payments received by\n\nSeller after the date hereof and prior to the Closing, of which Purchaser shall\nremit (i) Forty-One Million Dollars ($41,000,000) (subject to adjustment for\nAcquired Working Capital, Unbilled Reimbursable Expenses and Milestone Payments\nas provided in the immediately preceding clause) to a bank account designated in\nwriting by Seller at least three days prior to the Closing and (ii) the sum of\nThree Million Dollars ($3,000,000) (the \"Escrow Amount\") to an escrow agent to\nbe agreed upon at or prior to the Closing by Purchaser and Seller (the \"Escrow\nAgent\"); and\n\n            (b) an assumption agreement in the form attached as Exhibit A hereto\n(the \"Assumption Agreement\") pursuant to which Purchaser assumes specific\nliabilities of Seller set forth in Section 1.3(a).\n\n      1.3 Assumed Liabilities.\n\n            (a) Subject to and pursuant to Section 1.5, Purchaser shall, at the\nClosing, irrevocably and absolutely, assume, agree to perform, and, when due,\npay and discharge, only the obligations and liabilities of Seller relating to\nthe Assumed Contracts (excluding any liabilities set forth in Section 1.3(b)),\nwhich arise after the Closing Date or are attributable to the period following\nthe Closing Date and only to the extent such obligations and liabilities are not\noverdue or delinquent on the Closing Date without regard to any grace period and\nwithout the incurrence of any increase in amounts due (the \"Assumed\nLiabilities\").\n\n            (b) Purchaser shall not assume or pay and Seller shall continue to\nbe responsible for any debt, obligation or liability, of any kind or nature\n(fixed or contingent, known or unknown) of Seller whether or not relating to the\nBusiness, not expressly assumed by Purchaser pursuant to Section 1.3(a) (the\n\"Excluded Liabilities\"). Without limiting the foregoing, Purchaser shall not\nassume:\n\n                  (i) any action, suit or proceeding pending as of the Closing\n      Date notwithstanding the disclosure thereof on the Most Recent Balance\n      Sheet, or any subsequent claim, action, suit or proceeding arising out of\n      or relating to such pending matters, any other similar event occurring on\n      or prior to the Closing Date or, resulting from the conduct of the\n      Business by Seller on or prior to the Closing Date;\n\n                  (ii) any liability of Seller for any Taxes for any periods\n      prior to or subsequent to the Closing whether or not relating to the\n      Business and notwithstanding the disclosure thereof on the Most Recent\n      Balance Sheet;\n\n                  (iii) any obligation or liability arising from claims,\n      proceedings or causes of action resulting from property damage or personal\n      injuries (including death) caused by products, materials or services\n      invoiced, sold, performed or shipped by Seller or the Business on or prior\n      to the Closing Date;\n\n                  (iv) any obligation or liability arising from product warranty\n      or product liability claims, with respect to products, materials or\n      services invoiced, sold, performed or shipped by Seller or the Business on\n      or prior to the Closing Date; provided, that the\n\n\n                                       2\n\n      obligation or liability does not arise from acts of commission or omission\n      by Purchaser subsequent to the Closing;\n\n                  (v) any obligation or liability related to any actual or\n      alleged violation or liability arising under any Environmental Laws,\n      including, without limitation, any Release or threatened Release of\n      Hazardous Substances, as those terms are defined herein, occurring prior\n      to or, if as a result of Seller's activities, present, or if, not as a\n      result of Seller's activities, to the extent present, on the Closing Date,\n      regardless of whether such obligations or liabilities relate to Seller's\n      ownership or operation of the Purchased Assets, to any predecessor, owner,\n      tenant, occupant or user of the Purchased Assets, or to any other party\n      unrelated to the Purchased Assets, and any Environmental Claims as herein\n      defined, including, without limitation, any matters disclosed by Seller in\n      Schedule 3.22 and any matters identified in the Phase I Environmental Site\n      Assessments provided by Seller to Purchaser (the \"Environmental Reports\");\n\n                  (vi) any obligation or liability of Seller arising from the\n      transactions contemplated by this Agreement, including those (i) relating\n      to the negotiation and preparation of this Agreement and the transactions\n      contemplated herein and (ii) incurred by Seller with respect to its legal\n      counsel, accounting, brokerage and investment advisors fees and expenses;\n\n                  (vii) any obligation or liability arising from or related to\n      the Retained Assets; or\n\n                  (viii) any trade payable or accrued expenses.\n\n      1.4 Retained Assets. Seller shall not sell, transfer, convey or deliver to\nPurchaser, and Purchaser shall not purchase from Seller the assets, properties,\ninterests and rights of Seller set forth on Exhibit B hereto (the \"Retained\nAssets\"), except as provided in Section 5.16.\n\n      1.5 Prorations. All obligations and liabilities assumed by Purchaser under\nthis Agreement, including payments made by Seller with respect to the promissory\nnotes of Seller payable to General Electric Capital Corporation set forth on\nSchedule 2.2 (\"GE Notes\"), shall be prorated as of the close of business on the\nClosing Date between Purchaser and Seller, whether or not such adjustment would\nnormally be made as of such time. It is the intention of the parties that Seller\nshould operate the Business for its own account pursuant to this Agreement until\nthe close of business on the day immediately prior to the Closing Date, and that\nPurchaser shall operate the Business, including the Purchased Assets, for its\nown account from and after the Closing Date. Any overdue or delinquent\nobligations or liabilities of Seller on the close of business on the day\nimmediately prior to the Closing Date shall not be prorated and shall remain the\nproperty of Seller.\n\n      1.6 Transfer Tax Payments. Purchaser shall pay any transfer, sales,\npurchase, use, value added, excise or similar Tax arising out of the transfer of\nany of the Purchased Assets to Purchaser.\n\n\n                                       3\n\n                                   ARTICLE II\n                                   DEFINITIONS\n\n      2.1 General. Each term defined in the first Article of this Agreement and\nin the Recitals shall have the meaning set forth below whenever used herein,\nunless otherwise expressly provided or unless the context clearly requires\notherwise.\n\n      2.2 Definitions. As used herein, the following terms shall have the\nmeanings ascribed to them in this Section 2.2:\n\n            Administrative Services Agreement. The Administrative Services\nAgreement dated as of October 26, 2001 by and among FEI Products, Inc., FEI\nEnterprises, Ltd. and Seller.\n\n            Accounts Receivable. All present and future rights to payment for\ngoods or services rendered whether or not earned by performance, including,\nwithout limitation, all accounts or notes receivable owned or held by Seller,\nbut specifically excluding any Billed Reimbursable Expenses or Unbilled\nReimbursable Expenses.\n\n            Acquired Working Capital. The sum of all deposits and prepaid\nexpenses of Seller as of the Closing and the pro rata portion of any payments\nmade by Seller as of the Closing with respect to the GE Notes, other than\nprepaid insurance premiums, prepaid taxes and deposits on capital expenditures\nand subject to Section 1.5.\n\n            Affiliate. As set forth in Rule 12b-2 of the general rules and\nregulations under the Securities Exchange Act of 1934, as amended.\n\n            Agreement. This Asset Purchase Agreement, together with all Exhibits\nand Schedules referred to herein, as amended, modified or supplemented from time\nto time in accordance with the terms hereof.\n\n            Assumed Contracts. (i) Contracts listed on Schedule 2.2 hereto as\nmay be supplemented pursuant to Section 5.16, (ii) such Contracts entered into\nby Seller after the date hereof in the Ordinary Course of Business as Purchaser\nexpressly agrees to assume and (iii) all Contracts entered into by Seller after\nthe date hereof in the Ordinary Course of Business and individually in an amount\nnot in excess of $10,000.00; provided, however, Seller shall have the right to\nenter into Contracts (and Purchaser shall be deemed to assume such Contracts\nsubject to the immediately following sentence) after the date hereof in the\nOrdinary Course of Business and individually in an amount in excess of\n$10,000.00 if Purchaser does not object to Seller's entering into such Contracts\nwithin three Business Days following Purchaser's receipt from Seller of the\nwritten notification of Seller's intention to enter into such Contracts.\nNotwithstanding anything in this Agreement to the contrary, it is expressly\nunderstood and agreed by the parties hereto that Purchaser will assume Contracts\nentered into by Seller after the date hereof and all purchase orders only to the\nextent that the delivery of services, products or other items pursuant to such\nContracts or purchase orders is made to Purchaser after the Closing Date.\n\n            Assumed Liabilities. As defined in Section 1.3.\n\n\n                                       4\n\n            Assumption Agreement. As defined in Section 1.2.\n\n            Authority. Any governmental, regulatory or administrative body,\nagency or authority, any court or judicial authority, any arbitrator or any\npublic, private or industry regulatory authority, whether foreign, federal,\nstate or local.\n\n            Billed Reimbursable Expenses. As of the Closing Date, the sum of all\nexpenses (as calculated in accordance with past practices consistently applied)\nof Seller theretofore invoiced by Seller to Schering for which Schering is\nobligated to reimburse Seller pursuant to the Schering Agreement.\n\n            Business. As defined in the Recitals hereto.\n\n            Business Day. Any day other than a Saturday, Sunday or a day on\nwhich banks in New York are not open for business.\n\n\n            CERCLA. Comprehensive Environmental Response, Compensation and\nLiability Act, 42 U.S.C. Section 9601, et seq., as amended.\n\n            Closing. The actual sale, conveyance, transfer, assignment and\ndelivery of the Purchased Assets to Purchaser.\n\n\n            Closing Date. The date which is the later of: (a) thirty (30) days\nfollowing the execution of this Agreement or (b) three (3) Business Days\nfollowing the date on which all closing conditions have been satisfied or\nwaived, or such other date as Seller and Purchaser may mutually agree in\nwriting, and upon which the Closing shall occur.\n\n            Code. Internal Revenue Code of 1986, as it may be amended from time\nto time.\n\n\n            Contracts. All contracts, leases, subleases, arrangements,\ncommitments and other agreements of Seller relating to the Business or Purchased\nAssets, including, without limitation, all customer agreements, vendor\nagreements, purchase orders, installation and maintenance agreements, computer\nsoftware licenses, hardware lease or rental agreements.\n\n            Disclosing Party. As defined in Section 5.10.\n\n            Disputed Items Notice. As defined in Section 8.5.\n\n            Employees. As defined in Section 5.12.\n\n            Employee Benefit Plan. Any employee benefit plan within the meaning\nof Section 3(3) of ERISA which (a) is maintained for employees of Seller or any\nof its ERISA Affiliates or (b) has at any time within the preceding six (6)\nyears been maintained for employees of Seller or any current or former ERISA\nAffiliates, and any bonus or other incentive compensation, deferred\ncompensation, salary continuation, sick or disability pay, severance, stock\naward, stock option, stock purchase, tuition assistance, vacation, vacation pay\nor other benefit plan or arrangement, and each employment, termination or other\ncompensation\n\n\n                                       5\n\narrangement or agreement, in each case with respect to current or former\nemployees or consultants of or to Seller or any ERISA Affiliate, and under which\nSeller or any ERISA Affiliate could reasonably be expected to have any\nliability.\n\n            Employment Agreement. As defined in Section 6.1.\n\n            Environmental Claims. As defined in Section 3.22.\n\n            Environmental Laws. As defined in Section 3.22.\n\n            Environmental Reports. As defined in Section 1.3.\n\n            Equipment and Improvements. All facilities and structures,\nbuildings, installations, fixtures, improvements, betterments, additions, spare\nparts, stores, supplies, fuel and lubes, machinery, equipment, cranes,\nforklifts, platforms, vehicles, trucks, chassis, generators, containers, spare\ntires and parts, tools, appliances, furniture, office furniture, fixtures,\noffice supplies and office equipment, computers, computer terminals and\nprinters, computer software, telephone systems, telecopiers and photocopiers,\nand other tangible personal property of every kind and description, which are\nowned or leased by Seller, or are utilized in connection with Seller's operation\nother than such assets located at 300 International Drive, Williamsville, New\nYork.\n\n            ERISA. The Employee Retirement Income Security Act of 1974, as it\nmay be amended from time to time, and the regulations promulgated thereunder.\n\n            ERISA Affiliate. Any corporation, partnership or trade or business\nwhich is a member of a group that includes Seller and is treated as a single\nemployer within the meaning of Section 414(b), (c), (m) or (o) of the Code.\n\n            Escrow Agent. As defined in Section 1.2.\n\n            Escrow Agreement. As defined in Section 10.13.\n\n            Escrow Amount. As defined in Section 1.2(a).\n\n            Estimated Purchase Price Certificate. As defined in Section 5.7.\n\n            Excluded Liabilities. As defined in Section 1.3.\n\n            FDA. The Federal Food and Drug Administration.\n\n            Final Purchase Price. Forty-Four Million Dollars ($44,000,000)\nsubject to adjustment as provided for in Section 1.2(a) as determined in\naccordance with Section 8.5.\n\n            Final Purchase Price Certificate. As defined in Section 8.5.\n\n            Financial Statements. The financial statements of Seller for the\nfiscal years ended on September 30, 1999, 2000, and 2001, together with the\nnotes thereto, which are\n\n\n                                       6\n\nincluded in the consolidated financial statements of FEI Enterprises, Ltd., in\nthe case of the fiscal years ended on September 30, 1999 and 2000, and in the\nconsolidated financial statements of FEI Shares, Inc., in the case of the fiscal\nyear ended September 30, 2001, each audited by Ernst &amp; Young LLP, independent\ncertified public accountants, and accompanied by the opinion of such accountants\nrelating to such statements.\n\n            Food and Drug Laws. The Federal Food, Drug, and Cosmetic Act of\n1938, as amended, and all similar state, local, and foreign laws or ordinances.\n\n            GAAP. Generally accepted accounting principles.\n\n            Galen Agreement. The Subsublease Agreement dated January 7, 1996\nbetween Seller and Galen Advisors L.L.C.\n\n\n            Hazardous Substance. As defined in Section 3.22.\n\n            Indemnified Party. As defined in Section 10.7.\n\n            Indemnifying Party. As defined in Section 10.7.\n\n            Indemnity Basket. As defined in Section 10.3.\n\n\n            Indemnity Cap. As defined in Section 10.3.\n\n\n            Inventories. All of Seller's raw materials, packaging, service\nparts, supplies, work-in-process and finished goods and any and all other\ninventories of Seller, plus any replacements for or additions to such\ninventories acquired on or before the Closing Date, and minus any items of\ninventory consumed, sold or otherwise disposed of in the Ordinary Course of\nBusiness by Seller on or before the Closing Date.\n\n            IRS. Internal Revenue Service.\n\n\n            Law. Any law, statute, regulation, rule, ordinance, requirement,\nannouncement or other binding action or requirement of an Authority.\n\n            Leased Real Property. The parcels of land more fully described on\nSchedule 3.6 under the heading \"Leased Real Property,\" together with all rights\nand privileges under such leases (hereinafter referred to collectively as the\n\"Real Property Leases\") to the real property subject to such leases.\n\n            Legal Provisions. As defined in Section 3.1.\n\n            Lien. Any lien (statutory or other), mortgage, pledge,\nhypothecation, assignment, deposit arrangement, encumbrance or preference,\npriority or security agreement or preferential arrangement of any kind or nature\nwhatsoever (including, without limitation, the interest of a vendor or lessor\nunder any conditional sale, capitalized lease or other title retention\nagreement).\n\n\n                                       7\n\n            Milestone Payments. As provided for in Article 6.2.1 of the Schering\nAgreement.\n\n            Mitsubishi-Tokyo Agreement. The Material Transfer Agreement dated as\nof November 20, 2000 by and between Mitsubishi-Tokyo Pharmaceuticals, Inc. and\nSeller.\n\n            Most Recent Balance Sheet. The balance sheet of Seller dated\nDecember 31, 2001.\n\n            Most Recent Balance Sheet Date. December 31, 2001.\n\n            Multiemployer Plan. A \"multiemployer plan\" as defined in Section\n4001(a)(3) of ERISA to which Seller or any ERISA Affiliate is making, or is\naccruing an obligation to make, contributions or has made, or been obligated to\nmake, contributions within the preceding six (6) years.\n\n            Non-Competition Agreement. As defined in Section 6.1.\n\n\n            Nonconsenting Third Party. As defined in Section 5.17.\n\n\n            Order. Any decree, order, judgment, writ, award, injunction,\nstipulation or consent of or by an Authority.\n\n            Ordinary Course of Business. The ordinary course of business of\nSeller, in accordance with past custom and practice (including, without\nlimitation, with respect to quantity and frequency).\n\n            PBGC. The Pension Benefit Guaranty Corporation.\n\n            Pending Claims. As defined in Section 10.13.\n\n            Pension Plan. At any time an employee pension benefit plan that is\ncovered by Title IV of ERISA or subject to the minimum funding standards under\nSection 412 of the Code and is maintained either: (i) by Seller or any ERISA\nAffiliate or (ii) pursuant to a collective bargaining agreement or any other\narrangement under which more than one employer makes contributions and, with\nrespect to either (i) or (ii), Seller or any ERISA Affiliate is then making or\naccruing an obligation to make contributions or has within the preceding six (6)\nplan years made contributions.\n\n            Permits. As defined in Section 3.26.\n\n            Person. Any natural person, corporation, limited liability company,\npartnership, firm, joint venture, joint-stock company, trust, association,\nunincorporated entity or organization of any kind, Authority or other entity of\nany kind.\n\n            Population. Population Council, Inc., a New York not-for-profit\ncorporation.\n\n\n                                       8\n\n            Population Council Agreement. The Joint Development and Supply\nAgreement dated as of October 31, 1994 among The Population Council, Inc., FEI\nEnterprises, Ltd., FEI Products, Inc. and FEI Technologies, Inc. (n\/k\/a Enhance\nPharmaceuticals, Inc.)\n\n            Purchase Price. As defined in Section 1.2.\n\n            Purchased Assets. The Business and all assets, rights and properties\nowned by Seller on the Closing Date, whether or not carried and reflected on the\nbooks of Seller (excluding the Retained Assets), including, but not limited to,\nthe following:\n\n            (a) all Accounts Receivable;\n\n            (b) all Unbilled Reimbursable Expenses;\n\n            (c) all deposits (including, without limitation, deposits on capital\n      expenditures) and prepaid expenses, other than prepaid insurance premiums\n      and prepaid taxes;\n\n            (d) the Inventories;\n\n            (e) the Equipment and Improvements;\n\n            (f) the Real Property Leases;\n\n            (g) the Assumed Contracts;\n\n            (h) all of the following intellectual property: all trade names\n      (including the name \"Enhance\" and any similar names used by Seller),\n      trademarks, trademark registrations, trademark applications, service\n      marks, service mark registrations, service mark applications; all\n      copyrights, copyright registrations, copyright applications; all patent\n      rights (including, without limitation, issued patents, applications,\n      divisions, continuations and continuations-in-part, reissues, patents of\n      addition, utility models and inventors' certificates); all licenses with\n      respect to any of the foregoing; all trade secrets, proprietary\n      manufacturing information and know-how; all inventions, inventors' notes,\n      drawings and designs; and, all customer and vendor lists and the goodwill\n      associated with any of the foregoing;\n\n            (i) any Permits and licenses of Seller to the extent any of the same\n      are transferable or assignable to Purchaser;\n\n            (j) choses in action, claims and causes of action or rights of\n      recovery or set-off of every kind and character, in each case only to the\n      extent related to the Purchased Assets or the Assumed Liabilities;\n\n            (k) all of Seller's files, papers, documents and records relating to\n      the Business, and all other miscellaneous assets of Seller relating to the\n      Business wherever located, including, without limitation, credit, sales\n      and accounting records, price sheets, catalogues and sales literature,\n      books, processes, formulae, manufacturing data,\n\n\n                                       9\n\n      advertising material, stationery, office supplies, forms, catalogues,\n      manuals, correspondence, production records, employment records and any\n      other information reduced to writing relating to the Business of Seller;\n      and\n\n            (l) the Business of Seller as a going concern.\n\nAnything to the contrary notwithstanding, neither the term \"Purchased Assets\"\nnor any of the defined asset groups nominally comprising \"Purchased Assets\"\nshall include any asset specifically referred to in Section 1.4 above; provided,\nhowever, that for purposes of this Agreement, the term \"Purchased Assets\" shall\nmean all of the goodwill, assets, properties and rights of every nature, kind\nand description, whether tangible or intangible, real, personal or mixed,\nwherever located and whether or not carried or reflected on the books and\nrecords of the Seller, which are used in, or which were acquired in connection\nwith, the operation of the Business, excepting only the Retained Assets and any\nof the above which relate exclusively to the Retained Assets.\n\n            Purchaser. As defined in the heading hereto.\n\n\n            Purchaser Losses. As defined in Section 10.2.\n\n\n            Real Property. The Leased Real Property.\n\n\n            Real Property Leases. As defined in the definition of Leased Real\nProperty.\n\n\n            Release. As defined in Section 3.22.\n\n\n            Resolved Claims. As defined in Section 10.13.\n\n\n            Retained Assets. As defined in Section 1.4.\n\n\n            Schering. Schering Aktiengesellschaft, a German corporation.\n\n\n            Schering Agreement. The Product Development and Product License\nAgreement between Seller and Schering dated as of June 5, 2001.\n\n\n            Seller. As defined in the heading hereto.\n\n            Seller Parties. As defined in Section 5.9.\n\n            Subsidiary. A Subsidiary of any Person means (i) a corporation more\nthan 50% of the combined voting power of the outstanding stock of which is\nowned, directly or indirectly, by such Person or by one or more other\nSubsidiaries of such Person or by such Person and one or more Subsidiaries\nthereof, or (ii) any other Person (other than a corporation) in which such\nPerson, or one or more other Subsidiaries of such Person or such Person and one\nor more other Subsidiaries thereof, directly or indirectly, has the power to\ndirect the policies, management and affairs thereof.\n\n            Tail Insurance. As defined in Section 6.1.\n\n\n                                       10\n\n              Taxes.  As defined in Section 3.24.\n\n              Third-Party Claim.  As defined in Section 10.7.\n\n              Third-Party Notice.  As defined in Section 10.7.\n\n              Time Covenant.  As defined in Section 5.9.\n\n            Unbilled Reimbursable Expenses. As of the Closing Date, the sum of\nall expenses (as calculated in accordance with past practices consistently\napplied) of Seller not then invoiced by Seller to Schering for which Schering is\nobligated to reimburse Seller pursuant to the Schering Agreement.\n\n            Uncontested Claims. As defined in Section 10.13.\n\n      2.3 Interpretation. Unless otherwise expressly provided or unless the\ncontext requires otherwise, (a) all references in this Agreement to Articles,\nSections, Schedules and Exhibits shall mean and refer to Articles, Sections,\nSchedules and Exhibits of this Agreement; (b) all references to statutes and\nrelated regulations shall include all amendments of the same and any successor\nor replacement statutes and regulations; (c) words using the singular or plural\nnumber also shall include the plural and singular number, respectively; (d)\nreferences to \"hereof,\" \"herein,\" \"hereby\" and similar terms shall refer to this\nentire Agreement (including the Schedules and Exhibits hereto); and (e)\nreferences to any Person shall be deemed to mean and include the successors and\npermitted assigns of such Person (or, in the case of an Authority, Persons\nsucceeding to the relevant functions of such Person).\n\n                                  ARTICLE III\n                    REPRESENTATIONS AND WARRANTIES OF SELLER\n\n      As an inducement to Purchaser to enter into and perform this Agreement,\nand in consideration of the covenants of Purchaser contained herein, Seller\nrepresents and warrants to Purchaser (which representations and warranties shall\nsurvive the Closing (subject to Section 10.1) regardless of any examinations,\ninspections, audits and other investigations Purchaser has heretofore made, or\nmay hereafter make, with respect to such representations and warranties) as\nfollows:\n\n      3.1   Status of Seller; Enforceability; Conflicts; Consents.\n\n            (a) Seller is a corporation duly organized, validly existing and in\ngood standing under the laws of the State of Delaware. Seller has full corporate\npower and authority and possesses all governmental franchises, licenses,\npermits, authorizations and approvals necessary to enable it to use its name and\nto own, lease or otherwise hold its properties and assets and to carry on its\nbusiness as presently conducted, except where the failure to possess any such\nfranchise, license, permit, authorization or approval would not have a material\nadverse effect on Seller or the Business. Seller is duly qualified and in good\nstanding to do business in each jurisdiction in which the nature of its business\nor the ownership, leasing or holding of its\n\n\n                                       11\n\nproperties makes such qualification necessary, except where the failure to be so\nduly qualified and in good standing would not have a material adverse effect on\nSeller or the Business. Seller has no Subsidiaries.\n\n            (b) Seller has the requisite power and authority to execute and\ndeliver this Agreement and to perform its obligations hereunder. The execution\nand delivery by Seller of this Agreement, and the performance by Seller of its\nobligations hereunder, have been duly and validly authorized and approved by all\nnecessary action on the part of Seller.\n\n            (c) This Agreement is binding upon, and enforceable against, Seller\nin accordance with its terms, subject, as to enforcement, to bankruptcy,\ninsolvency, reorganization and other laws affecting creditors' rights generally\nand by general principles of equity (whether in a proceeding at law or in\nequity).\n\n            (d) Except as set forth on Schedule 3.1, neither the execution or\ndelivery of this Agreement by Seller nor the performance by Seller of its\nobligations under this Agreement will (assuming the receipt of all consents and\napprovals referred to in Section 3.25), conflict with or result in a breach of\nany of the terms or provisions of, or constitute a default under, any contract,\nlease, license, franchise, permit, indenture, mortgage, deed of trust, note\nagreement or other agreement or instrument to which Seller is a party or is\nbound or any judgment, order or decree, statute, law, ordinance, rule or\nregulation applicable to Seller or the property or assets of Seller (including,\nwithout limitation, the Purchased Assets) or the certificate of incorporation or\nby-laws of Seller, or any applicable Law or Order (collectively, \"Legal\nProvisions\"), except for conflicts, breaches or defaults which would not have a\nmaterial adverse effect on Seller or the Business.\n\n            (e) No consent, approval, license, Permit, Order or authorization\nof, or registration, declaration or filing with, any court, administrative\nagency or commission or other governmental authority or instrumentality,\ndomestic or foreign, is required to be obtained or made by or with respect to\nSeller in connection with (i) the execution and delivery of this Agreement or\nthe consummation of the transactions contemplated hereby, or (ii) the conduct by\nSeller of its business following the Closing as conducted on the date hereof\nother than (A) the consents and approvals referred to in Section 3.25, (B) those\nthat may be required solely by reason of Purchaser's (as opposed to any other\nthird party's) participation in the transactions contemplated hereby, and (C)\nsuch other consents or approvals the failure of which to obtain would not have a\nmaterial adverse effect on Purchaser or the ability of any party to consummate\nthe transactions contemplated hereby.\n\n            (f) Seller has delivered to Purchaser true and complete copies of\nits certificate of incorporation and by-laws, as amended to date.\n\n      3.2   Ownership of Seller.\n\n            (a) The sole shareholders of Seller are the Persons set forth on\nSchedule 3.2 and each such shareholder is the registered and beneficial owner of\nthe number of shares set forth opposite such Person's name free and clear of all\nLiens of any nature whatsoever; and each such shareholder has the sole right to\nvote and to sell the shares owned by such shareholder.\n\n\n                                       12\n\n            (b) There are no outstanding warrants, options, agreements,\nconvertible or exchangeable securities, phantom stock or other commitments\npursuant to which Seller is or may become obligated to issue, sell, purchase,\nreturn or redeem any shares of capital stock or other securities of Seller and\nno equity securities of Seller are reserved for issuance for any purpose.\n\n      3.3 Financial Statements. The Financial Statements have been prepared in\naccordance with GAAP, consistently applied during the periods covered thereby,\nfairly present in all material respects the financial condition and the results\nof operations for the periods covered thereby, and are in accordance with the\nbooks and records of Seller. Seller has provided Purchaser with the Financial\nStatements and the Most Recent Balance Sheet.\n\n      3.4 Undisclosed Liabilities. On the Most Recent Balance Sheet Date, Seller\nhad no debts, liabilities, Liens, claims, encumbrances or other obligations of\nany nature (whether accrued, absolute, contingent or otherwise) of the type\nwhich should be reflected in balance sheets (including the notes thereto)\nprepared in accordance with GAAP consistently applied in accordance with the\nprior Financial Statements of Seller, which were not disclosed, reflected or\nreserved against on the Financial Statements or the Most Recent Balance Sheet;\nand, except for liabilities which have been incurred since the Most Recent\nBalance Sheet Date in the Ordinary Course of Business, since the Most Recent\nBalance Sheet Date Seller has not incurred any liability of any nature (whether\naccrued, absolute, contingent or otherwise) of the type which should be\nreflected on the Most Recent Balance Sheet prepared in accordance with GAAP\nconsistently applied in accordance with the Financial Statements.\n\n      3.5 Title to Properties. Except as set forth on Schedule 3.5, Seller has\ngood and marketable title to all of the assets and properties reflected on the\nMost Recent Balance Sheet or used in the Business constituting Purchased Assets\nfree and clear of all Liens of any nature.\n\n      3.6 Real Property.\n\n            (a) Schedule 3.6 contains accurate descriptions of each parcel of\nReal Property leased or occupied under Permit by Seller. No other Real Property\nis used in the Business or occupied by Seller. The Seller owns no real property.\nAll of the Real Property Leases are valid and in full force and effect, and\nthere does not exist any default or event that with notice or lapse of time, or\nboth, would constitute a default by Seller under any of the Real Property\nLeases, and to the knowledge of Seller, there does not exist any default or\nevent that with notice or lapse of time, or both, would constitute a default by\nany other party under any of the Real Property Leases.\n\n            (b) All the buildings, fixtures and leasehold improvements used by\nSeller in the Business are located on the Real Property and, to Seller's\nknowledge, none of such buildings, fixtures or improvements encroach on any\nadjoining property owned by others or public rights of way. Each parcel of Real\nProperty abuts on at least one side a public street or road in a manner so as to\npermit reasonable, customary and adequate vehicular and pedestrian ingress,\negress and access to such parcel, or has adequate easements across intervening\nproperty to permit reasonable, customary and adequate vehicular and pedestrian\ningress, egress and access to such parcel from a public street or road. There\nare no restrictions on entrance to or exit from the Real\n\n\n                                       13\n\nProperty to adjacent public streets and, to Seller's knowledge, no conditions\nwhich will result in the termination of the present access from the Real\nProperty to existing highways or roads.\n\n            (c) Seller has good and marketable leasehold interests in the Leased\nReal Property, free and clear of all Liens, except for Liens for taxes not yet\ndue and payable and any Liens on the underlying fee interest in the Leased Real\nProperty. Subject to the Real Property Leases, Seller has enjoyed the continuous\nand uninterrupted quiet possession, use and operation of the Real Property\nwithout any material complaint or objection by any Person.\n\n      3.7 Equipment and Improvements. The Equipment and Improvements located on\nthe Real Property are in compliance with all applicable Laws and Orders, and are\nin reasonable and serviceable condition and repair, normal wear and tear\nexcepted, except for any such non-compliance which would not have a material\nadverse effect on Seller or the Business. Neither the Real Property nor the use\nor occupancy thereof by Seller violates in any way any applicable Laws, Orders,\nPermits, covenants, conditions and restrictions, whether federal, state, local\nor, to Seller's knowledge, private, except for any such violation which would\nnot have a material adverse effect on Seller or the Business.\n\n      3.8 No Commitments. There are no outstanding, defaulted or unsatisfied\ncontracts, commitments, agreements or understandings which have been made to,\nwith or for the benefit of any utility companies, school districts, water\ndistricts, improvement districts or other Authorities which could reasonably be\nexpected to impose any obligation, liability or condition on Seller or, to the\nknowledge of Seller, the owner of any Leased Real Property to grant any\neasements or to make any payments, contributions or dedications of money or land\nor to construct, install or maintain or to contribute to the construction,\ninstallation or maintenance of any improvements of a public or private nature,\nwhether on or off the Real Property.\n\n      3.9 Continued Use of Real Property. There are no claims, governmental\ninvestigations, litigation or proceedings which are pending against Seller, or,\nto the knowledge of Seller, threatened against Seller, or, to the knowledge of\nSeller, pending or threatened against the owner of any Leased Real Property\nwhich could reasonably be expected to affect the continued use of the Real\nProperty in substantially the same manner as presently used by Seller.\n\n      3.10 Real Estate and Personal Property Taxes; Assessments.\n\n            (a) All obligations of Seller with respect to real estate taxes and\npersonal property taxes and assessments which may be due and payable with\nrespect to the Purchased Assets have been paid.\n\n            (b) Seller has not received any notice of any special tax assessment\naffecting any property owned or leased by it, and, to Seller's knowledge, no\nsuch assessments are pending or threatened.\n\n      3.11 Inventory. Seller owns no Inventory.\n\n      3.12 Accounts Receivable. The Accounts Receivable reflected on the Most\nRecent Balance Sheet: (a) were acquired by Seller in the Ordinary Course of\nBusiness and represent\n\n\n                                       14\n\nfully completed bona fide transactions that require no further act on the part\nof Seller to make such Accounts Receivable payable by the account debtors; (b)\nexcept as reserved against on the Most Recent Balance Sheet, are not subject to\nany claim, counterclaim, set-off or deduction and are fully collectible at the\nface amounts thereof; (c) represent valid obligations owing to Seller by account\ndebtors that are not Affiliates of Seller, which are enforceable in accordance\nwith their respective terms; and (d) are owned by Seller free and clear of all\nLiens.\n\n      3.13 Contracts. (a) Schedule 3.13 to this Agreement contains a complete\nlist of all material Contracts (including, without limitation, all Assumed\nContracts) entered into or agreed to by Seller or by which Seller is currently\nbound and true and complete copies of such written Contracts have been provided\nto Purchaser or its counsel. Identified with an asterisk on Schedule 3.13 are\nthose Contracts which contain a prohibition on assignment. All such Contracts\nare valid and binding upon Seller, and to Seller's knowledge, the other parties\nthereto except as limited by bankruptcy and insolvency laws and by other laws\naffecting the rights of creditors generally. There is no default or event that\nwith notice or lapse of time, or both, would constitute a default by Seller\nunder any of such Contracts, and to the knowledge of Seller, there is no default\nor event that with notice or lapse of time, or both, would constitute a default\nby any other party under any of such Contracts. Seller has not received notice\nthat any party to any of such Contracts intends to cancel or terminate any of\nsuch agreements or to exercise or not exercise any options under any of such\nagreements. True, correct and complete copies (or, if oral, written summaries)\nof each Contract have been delivered to Purchaser, except for purchase orders a\ncomplete and accurate list of which is set forth on Schedule 3.13.\n\n            (b) The Assumed Contracts are adequate and appropriate for the\ncontinued conduct of the Business as conducted in the Ordinary Course of\nBusiness since January 1, 2001. The purchase commitments and other agreements\nfor the provision of raw materials for use in the manufacture of Business\nproducts to be assumed by Purchaser will provide Purchaser with a supply of each\nraw material necessary in such manufacture which is not materially excessive or\nmaterially inadequate for the continued manufacture of such products in the\nOrdinary Course of Business in the quantities in which they have been produced\nsince January 1, 2001.\n\n      3.14 Equity Interests. Seller does not directly or indirectly own any\ncapital stock of, or other equity interests in, any corporation, partnership,\njoint venture or other entity.\n\n      3.15 Intellectual Property. Schedule 3.15 contains a true and complete\nlist and brief description of all patents, trademarks, service marks, trade\nnames, and copyrights (whether or not such trademarks, trade names, service\nmarks and copyrights are registered), and all pending applications therefor, if\nany, owned by Seller or in which Seller has any rights or licenses. No other\npatents, trademarks, trade names, service marks or copyrights are reasonably\nnecessary for the conduct of the Business in substantially the same manner as\npresently operated by Seller. To Seller's knowledge, there is no infringement or\nalleged infringement by any Person of any such trademark, service mark, trade\nname, copyright or patent. Seller has not received any notice from any Person\nalleging Seller is infringing upon, and, to Seller's knowledge, Seller has not\ninfringed and is not now infringing on, any trademark, service mark, trade name,\ncopyright or patent belonging to any other Person. Schedule 3.15 also contains a\ntrue and complete list of all agreements between each employee of Seller and\nSeller relating to confidential information of\n\n\n                                       15\n\nSeller, including but not limited to patents, trademarks, service marks, trade\nnames, and copyrights, and the ownership of any intellectual property developed\nby such employee under the scope of his employment.\n\n      3.16 Required Assets; Sufficiency of Assets. There are no significant\nassets used or required by Seller in the conduct of the Business as presently\nconducted by Seller that are not either owned by it or licensed or leased to it\nand, in each case conveyed to Purchaser under this Agreement other than\ninsurance, working capital and those assets required to provide accounting\nservices for the Business. The Purchased Assets constitute all of the assets,\ngoodwill, properties and rights of every nature, kind and description, whether\ntangible or intangible, real, personal or mixed, necessary to conduct the\nBusiness in substantially the same manner as presently conducted by Seller other\nthan insurance, working capital and those assets required to provide accounting\nservices for the Business.\n\n      3.17 Suppliers. Schedule 3.17 sets forth the lists of all suppliers whose\nsupplies to Seller and the Business as presently conducted exceeded $25,000\nduring the most recent calendar year of Seller through and including February\n28, 2002. During the period from January 1, 2001 through the date hereof, none\nof such suppliers has canceled or substantially modified its agreement or\ncommitment with Seller to supply products or services (or threatened in writing\nto do any of the foregoing). To the knowledge of Seller, the relationship of\nSeller with each of such suppliers of Seller is a good commercial working\nrelationship. Seller has no knowledge that any such supplier intends to cancel\nor otherwise substantially modify its relationship with Seller or limit\nmaterially its services, supplies or materials to Seller either as a result of\nthe transactions contemplated hereby or otherwise, or has any pending or\nthreatened controversy with any Authority with respect to its relationship with\nSeller, except for such controversy that would not have a material adverse\neffect on Seller.\n\n      3.18 Personnel Identification and Compensation. Schedule 3.18 contains a\ntrue and complete list of the names, titles and compensation of all current\nofficers, directors and employees of Seller whose compensation from Seller\nexceeded $40,000.00 during the most recent calendar year of Seller.\n\n      3.19 Existing Employment Related Contracts. Schedule 3.19 contains a list\nof all written and oral (with a short description thereof) arrangements or\ncontracts relating to employment, compensation, bonuses, severance, pension and\nother related issues and collective bargaining agreements to which Seller is a\nparty or by which Seller is bound. All these contracts and arrangements are in\nfull force and effect, and neither Seller nor, to Seller's knowledge, any other\nPerson is in default under any such contract or arrangement. There have been no\nclaims of default and there are no facts or conditions which, with the passage\nof time or upon notice, will result in a default by Seller, or to the knowledge\nof Seller, any other Person, under these contracts or arrangements. There is no\npending or, to Seller's knowledge, threatened labor dispute, strike, or work\nstoppage affecting Seller or the Business.\n\n      3.20 Compliance with Laws. Except as set forth in Schedule 3.21 and\nsubject to the provisions of Sections 3.22, 3.26, 3.27 and 3.30, Seller, all of\nthe products manufactured, tested, and\/or distributed by the Seller, and the\nPurchased Assets have complied with all, and are not in\n\n\n                                       16\n\nviolation of any, applicable Laws, Permits and Orders (including, without\nlimitation, any applicable building, zoning, environmental protection, water\nuse, Food and Drug Laws and related regulations, occupational health and safety,\nemployment, disability rights or food service facilities law, ordinance, or\nregulation) affecting Seller's properties, the operation of the Business, or the\nPurchased Assets, except for any such non-compliance or violation which would\nnot have a material adverse effect on Seller or the Business. No material\ncapital expenditures are required for compliance with Laws by Seller in order to\nconduct the Business as presently conducted by Seller.\n\n      3.21 Litigation. Except as set forth in Schedule 3.21, there are no suits,\nactions, arbitrations, and legal, administrative and other proceedings and\ngovernmental investigations, pending or, to Seller's knowledge, threatened,\nagainst or, to Seller's knowledge, affecting Seller or the Business, involving\n$25,000.00 or more in dispute or, if determined adversely to Seller, could\nresult in the expenditure or recovery of $25,000.00 or more by Seller in\nconnection therewith. None of the matters set forth in Schedule 3.21, if decided\nadversely to Seller would result in a material adverse change, taken\nindividually or in the aggregate, to the Business or Seller. Seller is not\npresently engaged in any legal action to recover moneys due to it or damages\nsustained by it.\n\n      3.22  Environmental.\n\n            (a) Definitions. For purposes of this Agreement, the following terms\nshall have the following meanings:\n\n                  (i) The term \"Environmental Law(s)\" means each and every Law,\n      Order, Permit, or similar requirement of each and every Authority and\n      common law, pertaining to (A) the protection of human health, safety, the\n      environment, natural resources and wildlife or (B) the management,\n      manufacture, possession, presence, use, generation, transportation,\n      treatment, storage, disposal, Release, threatened Release, abatement,\n      removal, remediation or handling of, or exposure to, any Hazardous\n      Substance or (C) pollution, including without limitation, as amended,\n      CERCLA, the Solid Waste Disposal Act, 42 U.S.C.Section 6901 et seq., the\n      Clean Air Act, 42 U.S.C.Section 7401 et seq. and the Federal Water\n      Pollution Control Act, 33 U.S.C.Section 1251, et seq.\n\n                  (ii) The term \"Hazardous Substance\" means any substance which\n      is (A) defined as a hazardous substance, hazardous material, hazardous\n      waste, pollutant or contaminant under any Environmental Laws, (B) a\n      petroleum hydrocarbon, including crude oil or any fraction thereof, (C)\n      hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive\n      or carcinogenic or (D) regulated pursuant to any Environmental Laws.\n\n                  (iii) The term \"Release\" means any spilling, leaking, pumping,\n      pouring, emitting, emptying, discharging, injecting, escaping, leaching,\n      dumping, or disposing into the environment (including without limitation\n      the abandonment or discarding of barrels, containers, and other\n      receptacles containing any Hazardous Substance).\n\n\n                                       17\n\n            (b) Compliance with Environmental Laws. Seller, the use by Seller of\nthe Real Property, and the Business have been and are in compliance in all\nmaterial respects with all applicable Environmental Laws, and there has been and\nis no liability against Seller under any applicable Environmental Laws. The use\nby Seller of any real property formerly owned or leased by Seller or otherwise\nrelated to the Business was in compliance in all material respects with all\napplicable Environmental Laws during Seller's period of ownership or operation.\nSeller has no knowledge of any facts or circumstances concerning any alleged\nviolation or liability arising under any Environmental Law with respect to the\nReal Property, the Business or any formerly owned or operated real property or\nany use or condition thereof.\n\n            (c) No Release of Hazardous Substances. Except in accordance with\napplicable Environmental Laws, there has been no Release or threatened Release\nby Seller, or to Seller's knowledge, by any other Person of any Hazardous\nSubstance existing on, beneath or from the surface, subsurface, ground water,\nsediment, rivers or other bodies of water associated with the Real Property, nor\nis there or has there been any Release or threatened Release by Seller, or, to\nthe knowledge of Seller, by any other Person, of any Hazardous Substances on,\nbeneath from or in the vicinity of the Real Property currently occurring or, to\nthe knowledge of Seller, occurring at any time in the past.\n\n            (d) Permits. All Permits required by or issued pursuant to any\nEnvironmental Law for the ownership, use or operation of the Real Property by\nSeller or the Business have been obtained in a timely manner and are presently\nmaintained in full force and effect. Schedule 3.22 contains a true and complete\nlisting of all such Permits. The Real Property and the operations of Seller are\nin material compliance with all terms and conditions of such Permits. Seller has\nnot received any notice or other communication and has no knowledge of any facts\nor circumstances concerning any alleged violation of any such Permits.\n\n            (e) No Proceedings. There exists no Order, notice of violation, nor\nany suit, claim, proceeding, citation, directive, summons, investigation,\ninformation request or other notice pending or, to the knowledge of Seller,\nthreatened pursuant to any Environmental Law relating to (i) Seller's ownership,\nlease, occupation or use of the Real Property, or any real property formerly\nowned, leased, occupied or used by Seller or, to Seller's knowledge, any other\npresent or former owner, tenant, occupant or user of the Real Property, (ii) any\nalleged violation of, or liability under, any Environmental Law by Seller, or\n(iii) to Seller's knowledge, the suspected presence, Release or threatened\nRelease of any Hazardous Substance on, under, in or from the surface,\nsubsurface, groundwater, sediment, rivers or other bodies of water associated\nwith the Real Property, or any formerly owned, leased, occupied or used real\nproperty nor does there exist any valid basis for any such Order, suit, claim,\nproceeding, citation, directive, summons investigation, information request,\nnotice of violation, or other notice (collectively, the \"Environmental Claims\").\n\n            (f) No Tanks, Asbestos or PCB's. To Seller's knowledge, there are\nand were no aboveground or underground storage tanks currently or formerly\nlocated on the Real Property used or formerly used for the purpose of storing\nany Hazardous Substance. There is no asbestos-containing building material on\nthe Real Property, and, to Seller's knowledge, no asbestos abatement or\nremediation work has been performed on the Real Property. To Seller's\n\n\n                                       18\n\nknowledge, there is no PCB-containing equipment or PCB-containing material\nlocated on the Real Property.\n\n            (g) Documents. Seller has provided Purchaser with all environmental\nassessment reports in its possession with respect to the Leased Real Property\nand with copies of all Permits required to conduct the Business as presently\nconducted by Seller.\n\n      3.23  Employee Benefit Plans.\n\n            (a) Schedule 3.23 contains a true and complete list of all Employee\nBenefit Plans. There are no Multiemployer Plans. -------------\n\n            (b) All obligations of any nature under any Employee Benefit Plan\nwill constitute a Retained Liability, and Purchaser shall have no obligation or\nduty with respect thereto.\n\n      3.24  Tax Matters.\n\n            (a) The term \"Taxes\" means all net income, capital gains, gross\nincome, gross receipts, sales, use, transfer, ad valorem, franchise, profits,\nlicense, capital, withholding, payroll, employment, excise, goods and services,\nseverance, stamp, occupation, premium, property, assessments, or other\ngovernmental charges of any kind whatsoever, together with any interest, fines\nand any penalties, additions to tax or additional amounts incurred or accrued\nunder applicable federal, state, local or foreign tax law or assessed, charged\nor imposed by any Authority, domestic or foreign; provided that any interest,\npenalties, additions to tax or additional amounts that relate to Taxes for any\ntaxable period (including any portion of any taxable period ending on or before\nthe Closing Date) shall be deemed to be Taxes for such period, regardless of\nwhen such items are incurred, accrued, assessed or charged. For the purposes of\nthis Section 3.24, Seller shall be deemed to include any predecessor to Seller,\nor any Person from which Seller incurs a liability for Taxes as a result of\ntransferee liability, joint and several liability, or otherwise.\n\n            (b) Seller has duly and timely filed (and prior to the Closing Date\nwill duly and timely file) true, correct and complete tax returns, reports or\nestimates, all prepared in accordance with applicable Laws, for all years and\nperiods (and portions thereof), for all jurisdictions (whether federal, state,\nlocal or foreign) in which any such returns, reports or estimates were due, and\nfor all such returns, reports and estimates which are required to be filed by\nany applicable Law on or prior to the Closing Date. All Taxes shown as due and\npayable on such returns, reports and estimates have been paid (or will be paid\nprior to the Closing), and there is no current liability for any Taxes due and\npayable in connection with any such returns. Any charges, accruals and reserves\nfor Taxes provided for on the Financial Statements are adequate. There are no\nexisting Liens for Taxes upon any of the Purchased Assets. Seller has provided\nto Purchaser copies of all federal, state and foreign tax returns filed by\nSeller for the past three (3) years. All applicable sales and transfer taxes\nwith respect to the Purchased Assets, to the extent due, were paid when the\nPurchased Assets were acquired by Seller.\n\n\n                                       19\n\n            (c) Seller has: (i) withheld all required amounts from its\nemployees, agents, contractors and nonresidents and remitted such amounts to the\nproper Authorities; (ii) paid all employer contributions and premiums required\nto be remitted to proper Authorities; and (iii) filed all federal, state, local\nand foreign returns and reports with respect to withholding taxes, and social\nsecurity and unemployment Taxes and premiums, all in compliance in all material\nrespects with the withholding provisions of the Code, or any prior provision of\nthe Code and other applicable Laws.\n\n            (d) None of the Purchased Assets is tax exempt use property under\nCode Section 168(h). None of the Purchased Assets is property that Seller is\nrequired to treat as being owned by any other Person pursuant to the safe harbor\nlease provision of former Code Section 168(f)(8).\n\n            (e) No portion of the cost of any Purchased Assets was financed\ndirectly or indirectly from the proceeds of any tax exempt state or local\ngovernment obligation described in Code Section 103(a).\n\n            (f) Seller has no (and has not previously had any) permanent\nestablishment in any foreign country and Seller does not engage (and has not\npreviously engaged) in a trade or business within the meaning of the Code\nrelating to the creation of a permanent establishment in any foreign country.\n\n            (g) Seller is not a foreign person within the meaning of Code\nSection 1445. Neither the Code nor any other provision of Law requires Purchaser\nto withhold any portion of the Purchase Price.\n\n            (h) Seller is not a partner in a partnership or joint venture that\ncould be treated as a partnership for federal income tax purposes.\n\n            (i) Except for consolidated group which includes or has included FEI\nEnterprises, Ltd., FEI Shares, Inc., FEI Products, Inc. and Seller, Seller has\nnever been a member of any consolidated, combined or unitary group for federal,\nstate, local or foreign Tax purposes.\n\n            (j) The tax returns of Seller have not been audited for any tax\nperiod ending after September 30, 1995 and there are no current proceedings by\nor discussions with any Authority relating to any Taxes.\n\n            (k) Seller has not consented to the application of Code section\n341(f).\n\n      3.25 Consents. Except as disclosed on Schedule 3.25, no consent, approval,\norder or authorization of, or registration, declaration or filing with, any\nAuthority or any other Person is required to be obtained or made by Seller in\nconnection with the execution and delivery of this Agreement or the performance\nby Seller of its obligations hereunder other than consents which have been\nobtained and disclosed on Schedule 3.25.\n\n      3.26 Licenses and Permits. Subject to the provisions of Section 3.22 and\nSection 3.30, Schedule 3.26 lists and describes all qualifications,\nregistrations, filings, privileges, franchises,\n\n\n                                       20\n\nimmunities, licenses, permits, authorizations and approvals of Authorities which\nare used or required in order for Seller to own and\/or operate the Business,\nincluding, without limitation, all certificates of occupancy and certificates,\nlicenses and permits relating to building, safety, Environmental Laws, Food and\nDrug Laws, fire and health (collectively, the \"Permits\"), other than any such\nqualification, registration, filing, privilege, franchise, immunity, license,\npermit, authorization and approval of Authority where the failure of Seller to\nso possess such qualification, registration, filing, privilege, franchise,\nimmunity, license, permit, authorization and approval of Authority would not\nhave a material adverse effect on Seller or the Business. Except as set forth in\nSchedule 3.26, each Permit is in good standing, valid and subsisting, and in\nfull force and effect in accordance with its terms.\n\n      3.27 Occupational Safety and Health. Except as set forth on Schedule 3.27,\nSeller has not received any notice, citation, claim, assessment or proposed\nassessment as to, or alleging, any violation of any federal, state or local\noccupational safety and health laws by it, nor has Seller, to Seller's\nknowledge, been subject to any investigation relating to the Business by any\nfederal, state or local occupational safety and health agency within the three\n(3) years preceding the date hereof, and no such violation exists, other than\nany such violation which would not have a material adverse effect on Seller or\nthe Business. Seller is not a party to any pending dispute with respect to\ncompliance with any federal, state or local occupational safety and health law.\n\n      3.28 Insurance. Schedule 3.28 contains a list of the insurance policies,\nother than those related to employee benefits, that Seller currently maintains\nwith respect to the Business and its assets and properties and employees as of\nthe date hereof, each of which is in full force and effect and a complete and\ncorrect copy of each has been delivered to Purchaser. All insurance premiums\ncurrently due with respect to such policies have been paid and Seller is not\notherwise in default with respect to any such policy, nor has Seller failed to\ngive any notice or present any claim under any such policy in a due and timely\nmanner. Seller has not received notice of cancellation or non-renewal of any\nsuch policy. Such policies are sufficient for compliance with all requirements\nof law and all agreements to which Seller is a party. All obligations and claims\nof any nature pertaining to insurance policies, including Employment Practices\nLiability, Fiduciary and Directors' and Officers' Liability, relating to actions\nprior to the Closing Date, will constitute a retained liability of Seller, and\nPurchaser shall have no obligation or duty with respect thereto.\n\n      3.29 Certain Transactions. All purchases and sales or other transactions,\nif any, between Seller, on the one hand, and any officer, director or employee\nthereof or Affiliate thereof, on the other hand, within the three (3) years\nimmediately preceding the date hereof have been made on the basis of prevailing\nmarket rates and terms such that, from the perspective of Seller, all such\ntransactions have been made on terms no less favorable than those which would\nhave been available from unrelated third parties. Except as set forth on\nSchedule 3.29, neither any officer, director nor employee of Seller, nor any\nspouse, child or other relative of any of such persons, owns, or has any\ninterest, directly or indirectly, in any of the real or personal property owned\nby or leased to Seller or any copyrights, patents, trademarks, trade names or\ntrade secrets owned or licensed by Seller.\n\n\n                                       21\n\n      3.30  Regulatory Compliance.\n\n            (a) Seller has not received any major adverse written notice within\nthe past two years from the FDA or any other Authority (i) regarding the\napprovability or approval of a Permit concerning, or the labeling of, any\nproducts of Seller or (ii) alleging any violation of any Legal Provision by\nSeller which, in the case of either clause (i) or (ii), individually or in the\naggregate has had or would have a material adverse effect on Seller or the\nPurchased Assets. Schedule 3.30 sets forth (i) all of Seller's regulatory\ncorrespondence relating to the Food and Drug Laws received from the FDA or any\nother similar Authority over the last five years and (ii) all of the Permits\nissued to Seller by the FDA or any other similar Authority.\n\n            (b) Except as described in Schedule 3.30, no Permit, permission for\nclinical testing, or product of Seller has been denied, placed on hold,\nwithdrawn, suspended or discontinued as a result of any action by the FDA or any\nother similar Authority, by Seller or, to the knowledge of Seller, by any\nlicensee or customer of any product of Seller, in the United States or outside\nthe United States (whether voluntarily or otherwise), in each case within the\npast five years. No proceedings in the United States or outside of the United\nStates of which Seller has knowledge (whether completed or pending) seeking the\nwithdrawal, suspension or seizure of any Permit, or product of Seller are\npending against Seller, Seller's products, or, to the knowledge of Seller, any\nlicensee or customer of any product of Seller, nor have any such proceedings\nbeen pending at any prior time, in each case which has had or would have a\nmaterial adverse effect on Seller or the Purchased Assets.\n\n            (c) For products that Seller is currently manufacturing, testing, or\nsubjecting to clinical evaluation, each of Seller's applicable Permits under the\nFood and Drug Laws is complete, accurate, and up to date in all material\nrespects, and the subject of each such Permit can be effectively, efficiently,\nand legally manufactured, tested, and clinically evaluated in material\ncompliance with the current version of each applicable Permit.\n\n            (d) Except for instances that have not had and would not have a\nmaterial adverse effect on Seller, (i) to the knowledge of Seller, during the\nlast five years no officer, employee or agent of Seller, has made an untrue\nstatement of a material fact or fraudulent statement to the FDA or any other\nAuthority, failed to disclose a material fact required to be disclosed to the\nFDA or any other Authority, or committed an act, made a statement, or failed to\nmake a statement that, at the time such disclosure was made, could reasonably be\nexpected to provide a basis for the FDA or any other Authority to invoke with\nrespect to Seller its policy respecting \"Fraud, Untrue Statements of Material\nFacts, Bribery, and Illegal Gratuities\", set forth in 56 Fed. Reg. 46191\n(September 10, 1991) or any similar policy, and (ii) nor has, to the knowledge\nof Seller, any officer, Employee or agent of Seller, has been convicted of any\ncrime or engaged in any conduct for which debarment is mandated by 21 U.S.C.\nSection 335a(a) or any similar Legal Provision or permitted by 21 U.S.C. Section\n335a(b) or any similar Legal Provision.\n\n\n                                       22\n\n            (e) Seller has not received any written notice within the past two\nyears that the FDA or any other Authority has commenced, or overtly threatened\nto initiate, any action to enjoin production or clinical evaluation of any\nproduct included within the Purchased Assets.\n\n      3.31 Conduct of Business Since Most Recent Balance Sheet Date. Except as\nset forth on Schedule 3.31, since the Most Recent Balance Sheet Date:\n\n            (a) the business of Seller has been conducted only in the Ordinary\n      Course of Business;\n\n            (b) Seller has neither declared any dividends or distributions nor\n      issued or redeemed any equity securities nor made any payments to any of\n      its shareholders or any Affiliate thereof (other than compensation and\n      expense reimbursement payments made in the Ordinary Course of Business\n      consistent with past practices);\n\n            (c) except for supplies purchased, sold or otherwise disposed of in\n      the Ordinary Course of the Business, Seller has not purchased, sold,\n      leased, mortgaged, pledged or otherwise acquired or disposed of any\n      properties or assets;\n\n            (d) Seller has not changed the terms of any receivables or cancelled\n      any debts owed to Seller or entered into, changed, modified, cancelled or\n      terminated any agreement or contract involving the payment by (or to)\n      Seller of more than $25,000 in any twelve- month period other than in the\n      Ordinary Course of Business;\n\n            (e) Seller has not sustained or incurred any loss or damage (whether\n      or not insured against) on account of fire, flood, accident or other\n      calamity;\n\n            (f) Seller has not increased the compensation of any employee,\n      officer, director or consultant other than in the Ordinary Course of\n      Business consistent with past practice and has not granted any unusual or\n      extraordinary bonuses, benefits or other forms of direct or indirect\n      compensation to any employee, officer, director or consultant;\n\n            (g) Seller has not adopted, increased, terminated, amended or\n      otherwise modified any plan for the benefit of any employees other than in\n      the Ordinary Course of Business consistent with past practice.\n\n            (h) there has been no material adverse change in or with respect to\n      the condition (financial or otherwise), operations, business, prospects,\n      rights, properties, assets or liabilities of Seller;\n\n            (i) Seller has not changed any accounting methods or practices\n      (including, without limitation, any change in depreciation or amortization\n      policies or rates); and\n\n            (j) Seller has not agreed to take any of the actions described in\n      paragraphs (b), (c), (d), (f), (g) or (i) above and Seller has not taken\n      any other action proscribed by Section 5.1.\n\n\n                                       23\n\n      3.32 Broker's or Consultant's Fees. Seller has not dealt with any broker,\nfinder or similar consultant other than Burrill &amp; Company and Context Capital\nGroup in connection with any of the transactions contemplated by this Agreement\nand no other Person is entitled to any commission or finder's fee in connection\nwith the sale of the Purchased Assets to Purchaser. Seller shall pay any\ncompensation and expenses owing to Burrill &amp; Company and Context Capital Group\narising out of the transactions contemplated hereby.\n\n      3.33 Claims Against Insiders. To the knowledge of Seller, Seller does not\nhave any claim against, debt owing by, or cause of action against, any\nshareholder, officer or director of Seller.\n\n      3.34 Disclosure. None of the representations and warranties made by Seller\nin this Agreement contains or will contain any untrue statement of a material\nfact, or omits to state any material fact necessary to make the statements\ncontained in this Agreement not misleading. There is no fact known to Seller\nwhich (so far as Seller reasonably foresees) materially adversely affects, or in\nthe future may materially adversely affect, individually or in the aggregate,\nthe condition (financial or otherwise), assets, liabilities, business,\noperations or prospects of Seller or the ability of Seller to consummate the\ntransactions contemplated hereby that has not been set forth herein or\nheretofore communicated to Purchaser in writing pursuant hereto.\n\n      3.35 No Other Representations and Warranties. Except for the\nrepresentations and warranties contained in this agreement, Seller makes no\nother representation and warranty as to any fact or matter, and no party shall\nbe entitled to rely upon any such other representation or warranty.\n\n                                   ARTICLE IV\n                   REPRESENTATIONS AND WARRANTIES OF PURCHASER\n\n      As an inducement to Seller to enter into and perform this Agreement, and\nin consideration of the covenants of Seller contained herein, Purchaser\nrepresents and warrants to Seller (which representations and warranties shall\nsurvive the Closing (subject to Section 10.1) regardless of any examinations,\ninspections, audits and other investigations Seller have heretofore made, or may\nhereafter make, with respect to such representations and warranties) as follows:\n\n      4.1 Status of Purchaser. Purchaser is a corporation duly organized,\nvalidly existing and in good standing under the laws of the State of New York\nand, at or prior to the Closing, will be duly qualified to do business in each\nstate where Seller is now qualified to do business. Purchaser has full corporate\npower and authority and possesses all governmental franchises, licenses,\npermits, authorizations and approvals necessary to enable it to use its name and\nto own, lease or otherwise hold its properties and assets and to carry on its\nbusiness as presently conducted, except where the failure to possess any such\nfranchise, license, permit, authorization or approval would not have a material\nadverse effect on Purchaser.\n\n      4.2 Authority of Purchaser. Purchaser has the requisite power and\nauthority to execute and deliver this Agreement and to perform its obligations\nhereunder. Neither the\n\n\n                                       24\n\nexecution or delivery of this Agreement by Purchaser nor the performance by\nPurchaser of its obligations under this Agreement will conflict with or result\nin a breach of any of the terms or provisions of, or constitute a default under,\nany contract, lease, license, franchise, permit, indenture, mortgage, deed of\ntrust, note agreement or other agreement or instrument to which Purchaser is a\nparty or is bound, its certificate of incorporation or by-laws or any applicable\nLaw or Order.\n\n      4.3 Due Authorization. The execution and delivery by Purchaser of this\nAgreement, and the performance by Purchaser of its obligations hereunder, have\nbeen duly and validly authorized and approved by all necessary action on the\npart of Purchaser.\n\n      4.4 Enforceability. This Agreement is binding upon, and enforceable\nagainst, Purchaser in accordance with its terms, subject, as to enforcement, to\nbankruptcy, insolvency, reorganization and other laws affecting creditors'\nrights generally and by principles of equity (whether in a proceeding at law or\nin equity).\n\n      4.5 Consents. No consent, approval, order or authorization of, or\nregistration, declaration or filing with, any Authority or any other Person is\nrequired to be obtained or made by Purchaser in connection with its execution\nand delivery of this Agreement or the performance by it of its obligations\nhereunder.\n\n      4.6 Broker's or Consultant's Fees. Purchaser has not dealt with any\nbroker, finder or consultant other than Banc of America Securities LLC in\nconnection with any of the transactions contemplated by this Agreement, and no\nother Person is entitled to any commission or finder's fee in connection with\nthe sale of the Purchased Assets to Purchaser. Purchaser shall pay any\ncompensation and expenses owing to Banc of America Securities LLC arising out of\nthe transactions contemplated hereby.\n\n                                   ARTICLE V\n                              PRE-CLOSING COVENANTS\n\n      Seller and Purchaser covenant and agree that from the date hereof through\nand including the Closing Date:\n\n      5.1 Ordinary Conduct. (a) From the date hereof to the Closing, Seller\nshall conduct the Business in the Ordinary Course of Business. Seller shall use\nall commercially reasonable efforts to preserve and protect its goodwill,\nrights, properties, assets and business, to keep available to itself and\nPurchaser the services of its employees, and to preserve and protect its\nrelationships with its employees, officers, advertisers, suppliers, customers,\ncreditors and others having business relationships with it. In addition, from\nthe date hereof to the Closing, Seller shall not do any of the following without\nthe prior written consent of Purchaser, such consent not to be unreasonably\nwithheld or unreasonably delayed:\n\n            (i) fail to continue to conduct the Business of Seller in conformity\n      with the representations and warranties set forth in Section 3.31;\n\n\n                                       25\n\n            (ii) amend its certificate of incorporation or by-laws;\n\n            (iii) incur any liabilities, obligations or indebtedness for\n      borrowed money or guarantee any such liabilities, obligations or\n      indebtedness, or increase (other than increases resulting from the\n      calculation of reserves in the Ordinary Course of Business), or experience\n      any change in any assumptions underlying or methods of calculating, any\n      bad debt, contingency or other reserves;\n\n            (iv) permit, allow or suffer any of its assets, including, without\n      limitation, the Purchased Assets, to be subjected to any mortgage, pledge,\n      Lien, encumbrance, restriction or charge of any kind which is not\n      disclosed in this Agreement;\n\n            (v) pay, discharge or satisfy any claims, encumbrances, liabilities\n      or obligations (whether absolute, accrued, contingent or otherwise and\n      whether due or to become due) other than the payment when due in the\n      Ordinary Course of Business of liabilities and obligations reflected or\n      reserved against in the Most Recent Balance Sheet or incurred in the\n      Ordinary Course of Business since the date thereof;\n\n            (vi) pay, lend or advance any amount to, or sell, transfer or lease\n      any of the Purchased Assets to, or enter into any agreement or arrangement\n      with, any of the officers, directors or equity owners of Seller or any of\n      its Affiliates;\n\n            (vii) acquire or agree to acquire by merging or consolidating with,\n      or by purchasing a substantial portion of the assets of, or by any other\n      manner, any business or any corporation, partnership, association or other\n      business organization or division thereof or otherwise acquire or agree to\n      acquire any assets (other than Inventory or other assets acquired in the\n      Ordinary Course of Business);\n\n            (viii) enter into any Contract, except for Contracts entered into in\n      the Ordinary Course of Business and individually in an amount not in\n      excess of $10,000.00 (other than any confidentiality, non-disclosure,\n      non-competition or similar Contract); provided, however, that Seller shall\n      have the right to enter into Contracts in the Ordinary Course of Business\n      and individually in an amount in excess of $10,000.00 (other than any\n      confidentiality, non-disclosure, non-competition or similar Contract) only\n      if Purchaser does not object to Seller's entering into such Contracts\n      within three Business Days following Purchaser's receipt from Seller of\n      the written notification of Seller's intention to enter into such\n      Contracts;\n\n            (ix) make, or commit to make, any capital expenditures other than\n      those set forth on Exhibit C hereto and not in excess of the amounts set\n      forth on such Exhibit;\n\n            (x) fail to pay any account payable when due in accordance with its\n      terms unless contested by Seller in good faith;\n\n            (xi) make any other material change in the Business or the operation\n      of Seller; or\n\n\n                                       26\n\n            (xii) agree, whether in writing or otherwise, to do any of the\n      foregoing.\n\n            (b) From the date hereof to the Closing, Seller shall not enter into\nany licensing or similar arrangement with respect to or affecting the Business\nor the Purchased Assets.\n\n            (c) From the date hereof to the Closing, subject to the terms and\nconditions of this Agreement, Seller shall use its reasonable efforts (i) to\npreserve the Purchased Assets and the Business intact, (ii) to keep available to\nPurchaser the services of the employees of the Business, and (iii) to preserve\nthe goodwill of customers and others having business relations with Seller to\nthe extent such business relations relate to the Purchased Assets.\n\n      5.2 Right of Inspection; Access to Books and Personnel. Seller shall and\nshall cause each of Seller's officers, directors, employees, auditors and agents\nto afford to Purchaser and Purchaser's officers, directors, employees, auditors,\nagents and lenders the right at any time prior to the Closing, on reasonable\nnotice during normal business hours, access to Seller's employees, auditors,\nagents, facilities, books and records as Purchaser reasonably shall deem\nnecessary or desirable and subject to such reasonable restrictions as Seller may\nrequest to maintain the confidentiality of this Agreement and the transactions\ncontemplated hereby and shall furnish such financial and operating data and\nother information with respect to Seller as Purchaser may reasonably require.\nExcept as otherwise set forth herein, no such access, examination or review\nshall in any way affect, diminish or terminate any of the representations,\nwarranties or covenants of Seller set forth herein.\n\n      5.3 Notification of Material Events.\n\n            (a) Seller shall promptly notify Purchaser in writing of any event\nfollowing the date hereof of which Seller is or becomes aware that will or may\nreasonably be expected to have a material effect, including but not limited to a\nmaterial adverse effect, on the condition (financial or otherwise), rights,\nproperties, assets or prospects of Seller or the Business or the performance by\nSeller of its obligations under this Agreement.\n\n            (b) Each of the parties to this Agreement shall promptly notify the\nother party to this Agreement of (a) the occurrence or non-occurrence of any\nfact or event (regardless of the time of the occurrence or non-occurrence of\nsuch fact or event) which would be reasonably likely (i) to cause any\nrepresentation or warranty contained in this Agreement to be untrue or\ninaccurate in any material respect at any time from the date hereof to the\nClosing Date or (ii) to cause any material covenant, condition or agreement\nhereunder not to be complied with or satisfied in all material respects and (b)\nany failure of any party to this Agreement to comply with or satisfy any\ncovenant, condition or agreement to be complied with or satisfied by it\nhereunder in any material respect.\n\n      5.4 Supplemental Disclosures. Seller shall have the continuing obligation\nto supplement promptly and amend the Schedules as necessary or appropriate with\nrespect to any matter hereafter arising or discovered which, if existing or\nknown at the date of this Agreement, would have been required to be set forth or\ndescribed in the Schedules; provided, however, that for the purpose of the\nrights and obligations of the parties hereunder, any such supplemental or\n\n\n                                       27\n\namended disclosure shall not, except as Purchaser may otherwise agree in\nwriting, be deemed to have cured any breach of any representation or warranty\nmade in this Agreement. Notwithstanding the foregoing, if Purchaser elects to\nproceed with the Closing, Purchaser shall be deemed to have waived the right\nthereafter to assert any claim pursuant to Article X hereunder with respect to\nany matter specifically and accurately disclosed by Seller in such supplemental\nor amended disclosure.\n\n      5.5 Exclusivity. Until the earlier to occur of (i) the termination of this\nAgreement in accordance with Article XI or (ii) the Closing, (a) Seller shall\nnot, and shall not permit or authorize, as the case may be, any of Seller's\nAffiliates, directors, officers, employees, agents or advisors to, initiate,\npursue or encourage (by way of furnishing information or otherwise) any\ninquiries or proposals, or enter into any discussions, negotiations or\nagreements (whether preliminary or definitive) with any Person, contemplating or\nproviding for any merger, acquisition, purchase or sale of stock or all or\nsubstantially all of the assets or any business combination or change in control\nof Seller or the Business, and (b) Seller shall deal exclusively with Purchaser\nwith respect to the sale of the Purchased Assets or the Business or assets and\nproperties of Seller.\n\n      5.6 Publicity. Seller and Purchaser agree that no public release or\nannouncement concerning the transactions contemplated hereby shall be issued by\neither party without the prior consent (which consent shall not be unreasonably\nwithheld) of the other party, except as such release or announcement may be\nrequired by Law or the rules or regulations of any Authority, in which case the\nparty required to make the release or announcement shall allow the other party\nreasonable time to comment on such release or announcement in advance of such\nissuance.\n\n      5.7 Preparation of Pre-Closing Estimated Purchase Price Certificate. At\nleast two (2) Business Days prior to the Closing, Seller shall furnish to\nPurchaser a certificate setting forth Seller's estimated calculation of the\nFinal Purchase Price (the \"Estimated Purchase Price Certificate\"), such\ncalculations to include an itemization of the components of the Acquired Working\nCapital and Unbilled Reimbursable Expenses as of the Closing Date and a list of\nthose Contracts entered into since the date hereof and which Seller requests\nPurchaser to assume in each case to be satisfactory to Purchaser.\n\n      5.8 Power of Attorney; Right of Endorsement, Etc. Effective as of the\nClosing, Seller hereby constitutes and appoints Purchaser and its successors and\nassigns the true and lawful attorney of Seller with full power of substitution,\nin the name of Purchaser or the name of Seller, on behalf of and for the benefit\nof Purchaser, (a) to collect all Purchased Assets, (b) to endorse, without\nrecourse, checks, notes and other instruments attributable to the Purchased\nAssets, (c) to defend and compromise all actions, suits or proceedings with\nrespect to any of the Purchased Assets (subject to Section 10.7) and (d) to do\nall such reasonable acts and things with respect to the Purchased Assets as\nPurchaser may deem advisable. Seller agrees that the foregoing powers are\ncoupled with an interest and shall be irrevocable by Seller directly or\nindirectly by the dissolution of Seller or in any other manner. Purchaser shall\nretain for its own account any amounts lawfully collected pursuant to the\nforegoing powers and Seller shall promptly pay to Purchaser any amounts received\nby Seller after the Closing with respect to the Purchased Assets.\n\n\n                                       28\n\n      5.9 Covenants Not to Compete, Solicit or Disparage.\n\n            (a) For the period of three years after the Closing Date (the \"Time\nCovenant\"), Seller covenants that neither it, FEI Enterprises, Ltd. nor FEI\nShares, Inc. (collectively, for purposes of this Section 5.9 only, \"Seller\nParties\") shall, either individually or as a partner, joint venturer,\nconsultant, shareholder, member or representative of another Person or\notherwise, directly or indirectly, participate in, engage in, or have a\nfinancial or management interest in, or assist any other Person in any business\noperation or any enterprise if such business operation or enterprise engages, or\nwould engage, in the Business anywhere in the world, provided, however, that the\nforegoing shall not prohibit a Seller Party from owning up to five percent (5%)\nof a publicly traded company.\n\n            (b) During the Time Covenant, each of Seller Parties shall not,\ndirectly or indirectly, whether for its own account or for the account of any\nPerson (other than Purchaser) that is in competition with Purchaser (A) solicit,\nrecruit, hire, engage in any activity that would cause any Person who is as of\nthe Closing Date, or was during the 12 months prior to the Closing Date,\nemployed by Seller to violate any agreement with Purchaser, endeavor to entice\naway any such Person from Purchaser, interfere with the relationship of\nPurchaser with such Person or induce any such Person to reject any employment\noffer by Purchaser or (B) solicit, entice or induce any Person who is, or was a\nCustomer or Supplier to (i) become a Customer or Supplier of any other Person\nengaged in any business activity that competes with the Business, (ii) cease\ndoing business with Purchaser or (iii) otherwise interfere with the relationship\nof Purchaser with any such person, team, Customer or Supplier. For purposes of\nthis Section 5.9, a \"Customer\" means any Person which has been during the\n12-month period prior to the Closing Date a customer, distributor or agent of\nSeller or shall have been contacted by Seller in the six-month period prior to\nthe Closing for the purpose of soliciting it to become a customer, distributor\nor agent of Seller; and a \"Supplier\" means any Person which has been during the\n12-month period prior to the Closing Date a supplier, vendor, manufacturer or\ndeveloper of Seller for any product or service or significant component used in\nany product or service. Seller covenants that it will not, directly or\nindirectly, in any capacity whatsoever, make any statement, written or oral, or\nperform any other act or omission that is intended to be materially detrimental\nto the goodwill of the business of Seller, except as compelled by judicial or\nadministrative process.\n\n            (c) If, during the Time Covenant, Seller Parties subject to the\naforementioned restrictions are not in compliance with such restrictions, then\nPurchaser shall be entitled, among other remedies, to compliance by the\nbreaching Seller Party with the terms of such provisions for an additional\nnumber of days that equals the number of days during which such noncompliance\noccurred.\n\n            (d) The parties hereby agree that all restrictions and agreements\ncontained in this Section 5.9, including, without limitation, those relating to\nthe Time Covenant, are necessary and fundamental to the protection of the\nBusiness and any objections or reservations to such restrictions or agreements\nare hereby waived. Seller Parties hereby agree that the remedy at law for any\nbreach of this Agreement will be inadequate, and that the damages flowing from\nsuch breach are not readily susceptible to being measured in monetary terms.\nAccordingly, the parties agree that upon any Seller Party's breach of this\nSection 5.9, Purchaser shall be entitled to\n\n\n                                       29\n\nimmediate injunctive relief and may obtain a temporary order restraining any\nthreatened further breach. Nothing in this Agreement shall be deemed to limit\nPurchaser's remedies at law or in equity for any breach by any Seller Party of\nany of the provisions of this Agreement that may be pursued by or made available\nto Purchaser.\n\n            (e) Each of the foregoing agreements and covenants is in addition to\nany other similar agreement and covenant contained in any other document entered\ninto in connection herewith and is not intended in any way, form or fashion to\nlimit the applicability of such other agreement or covenant.\n\n      5.10 Post-Closing Confidentiality. From and after the Closing, Seller\nwill, and will cause each of its Affiliates which it controls to, hold in strict\nconfidence and not use to the detriment of Purchaser or any of its Affiliates,\nall information with respect to the Business and the Purchased Assets. Without\nlimiting the generality of the foregoing, Seller agrees, covenants and\nacknowledges that, from and after the Closing Date, Seller will not, and will\ncause its Affiliates which it controls not to, disclose, give, sell, use, or\notherwise divulge any confidential or secret information (including but not\nlimited to any technology, process, trade secrets, know-how, other intellectual\nproperty rights, strategies, financial statements or other financial information\nnot otherwise publicly available, forecasts, operations, business plans, prices,\ndiscounts, products, product specifications, designs, plans, data or ideas).\nNotwithstanding the foregoing, Seller may disclose such information (i) if\ncompelled to disclose the same by judicial or administrative process or by other\nrequirements of applicable Law or of any national securities exchange (but\nsubject to the following provisions of this Section 5.10), (ii) if the same\ncurrently is, or hereafter is, in the public domain through no fault of Seller,\nor (iii) if the same is later acquired by Seller from another source and Seller\nis not aware that such source is under an obligation to another Person to keep\nsuch information confidential. If Seller or any of its Affiliates (the\n\"Disclosing Party\") is requested or required (by oral questions,\ninterrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any\nsuch information, the Disclosing Party shall provide Purchaser with prompt\nwritten notice of any such request or requirement so that Purchaser may seek, at\nits expense, a protective order or other appropriate remedy and\/or waive\ncompliance with the provisions of this Section 5.10. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by Purchaser, the\nDisclosing Party nonetheless, based on the advice of counsel, is required to\ndisclose such information to any tribunal, the Disclosing Party, without\nliability hereunder, may disclose that portion of such information which such\ncounsel advises the Disclosing Party it is legally required to disclose.\n\n      5.11 Performance of Contracts. With respect to each Contract, Seller shall\nduly perform and comply with all covenants, agreements and conditions required\nthereby to be performed or complied with by it prior to or on the Closing Date.\n\n      5.12 Employees. Upon the Closing, Seller shall terminate the employment of\neach employee who is listed on Schedule 5.12 hereto (the \"Employees\"). The\nPurchaser shall offer employment to all the Employees on such terms as\nPurchaser, in its sole discretion, shall determine; provided, however, that\nPurchaser shall provide all such Employees who accept such employment with group\nhealth insurance immediately upon such employment.\n\n\n                                       30\n\n      5.13 Allocation for Tax Purposes. The parties shall cooperate in good\nfaith to agree on the allocation of the Purchase Price prior to the Closing and,\nsubsequent to the Closing, shall file all federal, state and local tax returns\nconsistent with such allocation. The parties shall complete and separately file\nForm 8594 with their federal income tax years for the tax year in which the\nClosing occurs in accordance with such allocation, and no party hereto shall\nhave any liability to the other arising out of any challenge to such tax\nallocation by any federal or state taxing authority so long as the party does\nnot take a position inconsistent with such allocation in any tax filing or\nadministrative or judicial proceeding.\n\n      5.14 Mitsubishi Agreement. The parties shall use their reasonable best\nefforts to enter into an agreement with respect to the custody and\nconfidentiality of the results of the feasibility study developed by Seller\npursuant to the Mitsubishi-Tokyo Agreement.\n\n      5.15 Administrative Agreement. The parties shall use their reasonable best\nefforts to cooperate in order for Purchaser to enter into an agreement to obtain\nservices similar to those provided pursuant to the Administrative Services\nAgreement.\n\n      5.16 Assumed Contracts. If after the date hereof and prior to the Closing\nDate, Purchaser determines that a Contract not listed on Schedule 2.2 (other\nthan the Administrative Services Agreement, the Mitsubishi-Tokyo Agreement, the\nPopulation Council Agreement, Seller's insurance Contracts, Seller's Contracts\nrelating to employee benefits and the Confidential Non Disclosure Agreement,\ndated as November 8, 1999, between Seloc France, on one part, and Seller and\nInterchem Corporation, on the other part) shall constitute an Assumed Contract,\nPurchaser shall have the right, in its sole and absolute discretion, to assume\nsuch Contract and to treat such Contract as an Assumed Contract without any\nadjustment of the Purchase Price or the Final Purchase Price. Seller shall use\nits reasonable best efforts to obtain any necessary consent for the assignment\nof such Contract to Purchaser.\n\n      5.17 The Population Council Agreement. Seller shall use its reasonable\nbest efforts to terminate the Population Council Agreement prior to the Closing.\nThe parties agree that, if Seller determines in its reasonable judgment that\nmonetary compensation to Population will be required in order to obtain\nPopulation's agreement to terminate of the Population Council Agreement, Seller\nshall be authorized and required to offer Population an amount up to $1,000,000\nto compensate Population for its agreement to terminate the Population Council\nAgreement. In addition, if Seller determines in its reasonable judgment that it\nis necessary in order to obtain Population's agreement to terminate of the\nPopulation Council Agreement, Seller shall be authorized to offer Population in\nconsideration of the termination of the Population Council Agreement a\nnon-exclusive royalty-free license to Seller's intellectual property rights in\nthe technology to be acquired by Purchaser under this Agreement, such license to\nbe explicitly limited to uses contemplated in Section 4.2 and Section 7.1 of the\nPopulation Council Agreement and further limited to territories outside Europe,\nNorth America and South America. Purchaser shall reimburse Seller for fifty\n(50%) percent of any amounts paid by Seller to Population in connection with the\ntermination of the Population Council Agreement, up to a maximum reimbursement\nof $500,000.\n\n\n                                       31\n\n                                   ARTICLE VI\n                 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS\n\n      6.1 Obligations to be Satisfied on or Prior to Closing Date. The\nobligation of Purchaser to purchase the Purchased Assets under this Agreement is\nsubject to the satisfaction (or waiver by Purchaser), on or prior to the Closing\nDate, of the following conditions:\n\n            (a) Accuracy of Representations and Warranties. Each of the\nrepresentations and warranties made by Seller in this Agreement that is\nqualified as to materiality shall be true, correct and complete in all respects\nand those that are not so qualified shall be true, correct and complete in all\nmaterial respects as of the date hereof and on the Closing Date as though made\non such date.\n\n            (b) Compliance with Agreement. Seller shall have performed or\ncomplied in all material respects with the covenants, agreements and obligations\nrequired by this Agreement to be performed or complied with by Seller on or\nprior to the Closing Date.\n\n            (c) Investigation. Each of Purchaser and Purchaser's agents shall\nhave been afforded access to Seller's books and records, officers, employees,\nagents, facilities and personnel, as provided in Section 5.2.\n\n            (d) Consents. All consents, approvals, orders, authorizations,\nregistrations, declarations, agreements and filings of any Person and\nAuthorities set forth on Schedule 6.1(d) shall have been obtained or made by\nSeller in a form reasonably satisfactory to Purchaser and delivered to Purchaser\nand shall be in full force and effect as of the Closing Date, and no such\nauthorizations, agreements and consents shall impose any burdensome or, in\nPurchaser's reasonable determination, unsatisfactory conditions or requirements\non Purchaser.\n\n            (e) No Adverse Proceedings. No Law shall have been enacted or\npromulgated, and no investigation, action, suit or proceeding shall have been\nthreatened or instituted against Seller or Purchaser as of the Closing Date,\nwhich, in any such case, in the reasonable judgment of Purchaser, challenges, or\nmight result in a challenge to, the consummation of the transactions\ncontemplated hereby, or which claims, or might give rise to a claim for, damages\nagainst Purchaser as a result of the consummation of such transactions.\n\n            (f) No Material Adverse Change. There shall have occurred no\nmaterial adverse change in or with respect to the condition (financial or\notherwise), business, rights, prospects, properties or assets or supplier,\ncustomer or employee relationships of Seller or the Business since the Most\nRecent Balance Sheet Date.\n\n            (g) Schedules. All amendments or supplements to the Schedules made\nby Seller pursuant to Section 5.4 shall be reasonably acceptable to Purchaser.\n\n            (h) Closing Documents. Seller shall have delivered all reports,\nagreements, certificates, instruments, opinions and other documents required to\nbe delivered by Seller on the Closing Date pursuant to Section 8.3, and the form\nand substance of all such reports, agreements,\n\n\n                                       32\n\ncertificates, instruments, opinions and other documents shall be reasonably\nsatisfactory to Purchaser.\n\n            (i) UCC, Tax Lien and Judgment Search Results. Purchaser shall have\nobtained, at Seller's sole cost and expense, a report, in form and substance\nsatisfactory to Purchaser, as to the results of an examination of financing\nstatements filed under the Uniform Commercial Code, and tax lien and judgment\nrecords, in each office in each such jurisdiction as Purchaser shall require,\nand such report shall indicate no material security interests, tax liens,\njudgments or other Liens not previously disclosed in writing to Purchaser.\n\n            (j) Environmental Matters. Purchaser shall have completed such\nenvironmental audits and investigations, at Purchaser's sole cost and expense,\nas Purchaser may require with respect to the properties and operations of\nSeller, and such audits and investigations shall not have uncovered any\ncondition or conditions which could have a material adverse effect on the\nBusiness or properties of Seller.\n\n            (k) Non-Competition. Each Person listed in Schedule 6.1(k) shall\nhave executed and delivered to Purchaser a non-competition and non-solicitation\nagreement in the form of Exhibit D (the \"Non-Competition Agreement\").\n\n            (l) Employment Agreement. Mr. Lance J. Bronnenkant shall have\nexecuted and delivered to Purchaser an employment agreement with Purchaser on\nterms and conditions substantially similar to those terms and conditions set\nforth in that certain offer letter of Purchaser to Mr. Lance J. Bronnenkant\ndated as of March 13, 2002 (the \"Employment Agreement\").\n\n\n            (m) Additional Insurance. Seller shall have acquired and delivered\nto Purchaser a five year \"tail\" insurance policy with a minimum acceptable limit\nof liability equal to $5,000,000 (the \"Tail Insurance\").\n\n            (n) Termination of Certain Agreements. Seller shall have delivered\nto Purchaser evidence reasonably satisfactory to Purchaser of the termination of\nthe Population Council Agreement and the Galen Agreement.\n\n            (o) Intellectual Property. Seller shall have delivered to Purchaser\nevidence reasonably satisfactory to Purchaser of the assignment to Purchaser of\ncertain intellectual property rights of Seller.\n\n      6.2 Procedure for Failure to Satisfy Conditions. In the event that any of\nthe conditions precedent set forth above in Section 6.1 have not been satisfied,\nPurchaser shall notify Seller in writing indicating its election to (a) waive\nsuch condition precedent, (b) terminate this Agreement pursuant to Section 11.1,\nor (c) close the transactions contemplated by this Agreement, reserving its\nrights and remedies, without waiving such conditions precedent. In lieu of the\nforegoing, Purchaser and Seller may agree to consummate the transactions\ncontemplated by this Agreement on such additional terms as are agreed to by\nPurchaser and Seller in writing. If, despite Seller's commercially reasonable\nbest efforts, a third party that is not an Affiliate of Seller (the\n\"Nonconsenting Third Party\") refuses to grant any consent necessary for\nPurchaser to\n\n\n                                       33\n\nassume Seller's rights and obligations under a Contract listed on Schedule 6.2\nhereof, Seller shall promptly notify Purchaser of its inability to obtain such\nconsent and shall designate Purchaser as its agent for purposes of obtaining\nsuch consent. Purchaser shall reimburse Seller for any consideration that\nPurchaser, in its capacity as Seller's agent, obligates Seller to pay the\nNonconsenting Third Party to obtain such consent. If Purchaser elects to close\nthe transactions contemplated under this Agreement in the absence of such\nconsent, then Purchaser shall indemnify Seller for any liability of Seller to\nthe Nonconsenting Third Party under that Contract that arises after the Closing\nDate or is attributable to the period following the Closing Date or from\nPurchaser's decision to close in the absence of such consent.\n\n                                  ARTICLE VII\n                  CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS\n\n      7.1 Obligations to Be Satisfied on or Prior to Closing Date. The\nobligations of Seller to sell the Purchased Assets under this Agreement are\nsubject to the satisfaction (or waiver by Seller), on or prior to the Closing\nDate, of the following conditions:\n\n            (a) Accuracy of Representations and Warranties. Each of the\nrepresentations and warranties made by Purchaser in this Agreement that is\nqualified as to materiality shall be true, correct and complete in all respects\nand those that are not so qualified shall be true, correct and complete in all\nmaterial respects as of the date hereof and on the Closing Date as though made\non such date.\n\n            (b) Compliance with Agreement. Purchaser shall have performed or\ncomplied in all material respects with the covenants, agreements and obligations\nrequired by this Agreement to be performed or complied with by it on or prior to\nthe Closing Date.\n\n            (c) No Adverse Proceedings. No Law shall have been enacted or\npromulgated, and no investigation, action, suit or proceeding shall have been\nthreatened or instituted against Seller or Purchaser as of the Closing Date,\nwhich, in any such case, in the reasonable judgment of Seller, challenges, or\nmight result in a challenge to, the consummation of the transactions\ncontemplated hereby, or which claims, or might give rise to a claim for, damages\nagainst Seller as a result of the consummation of such transactions.\n\n            (d) Closing Documents. Purchaser shall have delivered all reports,\nagreements, certificates, instruments, opinions and other documents required to\nbe delivered by it on the Closing Date pursuant to Section 8.4, and the form and\nsubstance of all such certificates, instruments, opinions and other documents\nshall be reasonably satisfactory to Seller.\n\n            (e) Termination of the Population Council Agreement. Seller shall\nhave obtained the termination of the Population Council Agreement.\n\n      7.2 Procedure for Failure to Satisfy Conditions. In the event that any of\nthe conditions precedent set forth above in Section 7.1 have not been satisfied,\nSeller shall notify Purchaser in writing indicating its election to (a) waive\nsuch condition precedent, (b) terminate this Agreement pursuant to Section 11.1\nor (c) close the transactions contemplated by this\n\n\n                                       34\n\nAgreement, reserving their rights and remedies, without waiving such condition\nprecedent. In lieu of the foregoing, Purchaser and Seller may agree to\nconsummate the transactions contemplated by this Agreement on such additional\nterms as are agreed to by Purchaser and Seller in writing.\n\n                                  ARTICLE VIII\n                                     CLOSING\n\n      8.1 Time and Place. The Closing shall take place at 10:00 a.m. on the\nClosing Date at the offices of Winston &amp; Strawn, 200 Park Avenue, New York, New\nYork 10166 or at such other time and place as Seller and Purchaser may mutually\nagree.\n\n      8.2 Closing Transactions. All documents and other instruments required to\nbe delivered at the Closing shall be regarded as having been delivered\nsimultaneously, and no document or other instrument shall be regarded as having\nbeen delivered until all have been delivered.\n\n      8.3 Deliveries by Seller to Purchaser. At the Closing, Seller shall\ndeliver or cause to be delivered to Purchaser (except insofar as the conditions\nrelated to such delivery have been waived by Purchaser):\n\n            (a) all such certificates, assignments and other documents and\ninstruments of sale, assignment, conveyance and transfer, as Purchaser or its\ncounsel may reasonably deem necessary or desirable to effect the transfer of the\nPurchased Assets to Purchaser;\n\n            (b) the certificate of incorporation of Seller, as amended,\ncertified as of a date not earlier than twenty (20) days prior to the Closing\nDate by the Secretary of State of the State of Delaware;\n\n            (c) a certificate of the Secretary or an Assistant Secretary of\nSeller certifying to: (i) the by-laws, as amended, of Seller; (ii) resolutions\nof the board of directors of Seller authorizing and approving the execution,\ndelivery and performance by Seller of this Agreement and any agreements,\ninstruments, certificates or other documents executed by Seller pursuant to this\nAgreement; and (iii) incumbency and signatures of the officers of Seller;\n\n            (d) certificates of good standing, dated as of a recent date, for\nSeller from any state where Seller is required to be qualified to do business\nand bring down certificates of good standing in each of such jurisdictions dated\nthe Closing Date;\n\n            (e) a certificate executed by Seller dated as of the Closing Date,\ncertifying that all representations and warranties of Seller herein contained\nthat are qualified as to materiality were true, correct and complete in all\nrespects when made and are true, correct and complete in all respects as of the\nClosing Date as if made thereon (and to the extent that any representation or\nwarranty herein contained refers to \"the date hereof,\" such date shall be deemed\nto be the Closing Date) and those not so qualified were true, correct and\ncomplete in all material respects when made and are true, correct and complete\nin all material respects as of the\n\n\n                                       35\n\nClosing Date as if made thereon (and to the extent that any representation or\nwarranty herein contained refers to \"the date hereof,\" such date shall be deemed\nto be the Closing Date), and that Seller has performed or complied in all\nmaterial respects with all of the covenants and obligations required by this\nAgreement to be performed or complied with by Seller on or prior to the Closing\nDate;\n\n            (f) an executed original of each consent required to be obtained\npursuant to Section 6.1(d);\n\n            (g) all amendments or supplements to the schedules made by Seller\npursuant to Section 5.4;\n\n            (h) the Non-Competition Agreements;\n\n            (i) the Employment Agreement;\n\n            (j) the Tail Insurance;\n\n            (k) a certificate executed by the Chief Executive Officer of Seller\ncertifying that Seller has not received, or, if received, the amount of, the\nMilestone Payments;\n\n            (l) an instrument or document evidencing the termination of the\nPopulation Council Agreement; and\n\n            (m) such other instruments and documents as are required by any\nother provisions of this Agreement to be delivered on the Closing Date by Seller\nto Purchaser.\n\n      The foregoing shall not be construed to require Seller to use other than\ncommercially reasonable best efforts to deliver or cause to be delivered the\ndocuments and instruments set forth in Section 8.3(f), Section 8.3(h), Section\n8.3(i), Section 8.3(j) and Section 8.3(l); provided, however, that\nnotwithstanding the foregoing, the obligations of Purchaser to purchase the\nPurchased Assets is subject to the delivery of each of the documents and\ninstruments set forth in this Section 8.3.\n\n      8.4 Deliveries by Purchaser to Seller. At the Closing, Purchaser shall\ndeliver or cause to be delivered to Seller (except insofar as the conditions\nrelated to such delivery have been waived by Seller):\n\n            (a) the cash portion of the Purchase Price in accordance with\nSection 1.2(a);\n\n            (b) a certificate executed by an officer of Purchaser, dated as of\nthe Closing Date, certifying that all representations and warranties of\nPurchaser herein contained that are qualified as to materiality were true,\ncorrect and complete in all respects when made and are true, correct and\ncomplete in all respects as of the Closing Date as if made thereon and those not\nso qualified were true, correct and complete in all material respects when made\nand are true, correct and complete in all material respect as of the Closing\nDate as if made thereon, and that Purchaser has performed or complied in all\nmaterial respects with all of the covenants and obligations\n\n\n                                       36\n\nrequired by this Agreement to be performed or complied with by Purchaser on or\nprior to the Closing Date;\n\n            (c) the Non-Competition Agreements;\n\n            (d) the Employment Agreement; and\n\n            (e) such other instruments and documents as are required by any\nother provisions of this Agreement to be delivered on the Closing Date by\nPurchaser to Seller.\n\n      The foregoing shall not be construed to require Purchaser to use other\nthan commercially reasonable best efforts to deliver or cause to be delivered\nthe documents and instruments set forth in Section 8.4(c) and Section 8.4(d);\nprovided, however, that notwithstanding the foregoing, the obligations of Seller\nto sell the Purchased Assets are subject to the delivery of each of the\ndocuments and instruments set forth in this Section 8.4.\n\n      8.5 Determination of Final Purchase Price.\n\n            (a) Within 75 days after the Closing Date, Purchaser shall deliver\nto Seller a certificate (the \"Final Purchase Price Certificate\"), executed by\nPurchaser setting forth the calculation of the Final Purchase Price, including\nAcquired Working Capital and the Unbilled Reimbursable Expenses.\n\n            (b) If Seller delivers written notice (the \"Disputed Items Notice\")\nto Purchaser within 15 days after receipt by Seller of the Final Purchase Price\nCertificate, stating that Seller objects to any items on the Final Purchase\nPrice Certificate, specifying the basis for such objection and setting forth\nSeller's proposed modification to the Final Purchase Price, Seller and Purchaser\nshall attempt to resolve and finally determine and agree upon the Final Purchase\nPrice as promptly as practicable.\n\n            (c) If Seller and Purchaser are unable to agree upon the Final\nPurchase Price within 15 days after delivery of the Disputed Items Notice,\nSeller and Purchaser will select an independent accounting firm to resolve the\ndisputed items and make a determination of the Final Purchase Price. Such\ndetermination will be made within 30 days after such selection and will be\nbinding upon the parties. The fees, costs and expenses of the accounting firm so\nselected will be borne by the party whose positions generally did not prevail in\nsuch determination, or if the accounting firm determines that neither party\ncould be fairly found to be the prevailing party, then such fees, costs and\nexpenses will be borne 50% by Seller and 50% by Purchaser.\n\n            (d) If Seller does not deliver the Disputed Items Notice to\nPurchaser within 15 days after receipt by Seller of the Final Purchase Price\nCertificate, the Final Purchase Price specified in the Final Purchase Price\nCertificate will be conclusively presumed to be true and correct in all respects\nand will be binding upon the parties.\n\n            (e) At such time as the Final Purchase Price is finally determined,\neither (i) Purchaser shall pay Seller in cash, an aggregate amount equal to the\nFinal Purchase Price less the amount paid at Closing under Section 1.2(a) or\n(ii) Seller shall pay Purchaser in cash an\n\n\n                                       37\n\naggregate amount equal to the excess of the amount paid at Closing under Section\n1.2(a) over the Final Purchase Price.\n\n                                   ARTICLE IX\n                                OTHER AGREEMENTS\n\n      9.1 Further Assurances. At any time and from time to time from and after\nthe Closing, Seller and Purchaser shall, at the request of the other, execute,\nacknowledge and deliver, or cause to be executed, acknowledged and delivered,\nsuch instruments and other documents and perform or cause to be performed such\nacts and provide such information, as may reasonably be required to evidence or\neffectuate the sale, conveyance, transfer, assignment and delivery to Purchaser\nof the Purchased Assets or for the performance by Seller or Purchaser of any of\ntheir other respective obligations under this Agreement.\n\n      9.2 Access to Records After Closing. From and after the Closing Date, each\nparty hereto and its representatives shall have reasonable access to inspect and\ncopy all books and records relating to Seller or the Business that the other\nparties hereto or their respective Affiliates may retain after the Closing Date.\nSuch access shall be afforded by the party maintaining such records upon receipt\nof reasonable advance notice and during normal business hours. Nothing contained\nin this Section 9.2 shall require Purchaser or Seller to retain any books or\nrecords longer than such books or records would otherwise have been retained in\nthe Ordinary Course of Business but for the transactions contemplated by this\nAgreement; provided, however, that if the party maintaining such records shall\ndesire to dispose of any of such books and records, such party shall, prior to\nsuch disposition, give the other party hereto a reasonable opportunity, at such\nother party's expense, to segregate and remove such books and records as such\nother party may select.\n\n      9.3 Collection of Receivables. From and after the Closing, Purchaser shall\nhave the right and authority to collect for its own account all Accounts\nReceivable and other items that are included in the Purchased Assets and to\nendorse with the name of Seller, as applicable, any checks or drafts received\nwith respect to any such Accounts Receivable or other items and Seller agrees\npromptly to deliver to Purchaser any cash or other property received directly or\nindirectly by it with respect to such Account Receivables and other items,\nincluding any amounts payable as interest. If any Accounts Receivable included\nin the Purchased Assets shall not have been collected by Purchaser within 120\ndays after the Closing Date, Purchaser shall have the option so to advise Seller\nand to assign any or all such Accounts Receivable to Seller without recourse.\nPromptly after any such assignment, Seller shall pay to Purchaser an amount\nequal to the aggregate uncollected amount of such assigned Accounts Receivable\nby wire transfer to an account to be specified by Purchaser. From and after the\nClosing, Purchaser agrees that if it receives any payments with respect to any\nBilled Reimbursable Expenses, Purchaser shall promptly, and in any event within\nfourteen (14) days after receipt thereof by Purchaser, remit such amounts to\nSeller. From and after the Closing, Seller agrees that if it receives any\npayments with respect to any Unbilled Reimbursable Expenses, Seller shall\npromptly, and in any case within fourteen (14) days after receipt thereof by\nSeller, remit such amounts to Purchaser.\n\n\n                                       38\n\n      9.4 Third Party Consents. To the extent that Seller's rights under any\nAssumed Contract may not be assigned without the consent of another Person which\nhas not been obtained as of the Closing Date, this Agreement shall not\nconstitute an agreement to assign the same if an attempted assignment would\nconstitute a breach thereof or be unlawful. If any such consent shall not be\nobtained or if any attempted assignment would be ineffective or would impair\nPurchaser's rights under the Purchased Assets such that Purchaser would not in\neffect acquire the benefit of all such rights, then, Seller, to the maximum\nextent permitted by law and the Purchased Assets, shall act after the Closing\nDate as Purchaser's agent in order to obtain for it the benefits thereunder and\nshall cooperate with Purchaser in any other arrangement designated to provide\nsuch benefits to Purchaser.\n\n      9.5 Milestone Payments. From and after the Closing, Purchaser shall have\nthe right and authority to collect for its own account all Milestone Payments\nand to endorse with the name of Seller any checks or drafts received with\nrespect to any such Milestone Payments, and Seller agrees promptly, but not\nlater than fourteen (14) days after receipt thereof by Seller, to notify\nPurchaser of such Milestone Payments and to remit to Purchaser any cash or other\nproperty received directly or indirectly by Seller with respect to such\nMilestone Payments, including any amounts payable as interest.\n\n                                   ARTICLE X\n                                 INDEMNIFICATION\n\n      10.1 Survival of Representations, Warranties and Indemnity. The\nrepresentations and warranties of the parties hereto contained in Articles III\nand IV and the indemnification obligations contained in this Article X shall\nsurvive the Closing and expire two years following the Closing Date; provided,\nhowever, that Purchaser's indemnification obligations pursuant to Section\n10.4(a)(ii) and Section 10.4(b) shall not expire and shall survive the Closing\nindefinitely; and provided, further, that any claims which involve fraud or\nintentional misrepresentation shall survive the Closing indefinitely; and\nprovided, further, that if at the stated expiration of any indemnification\nobligation there shall be pending any indemnification claim by a Person pursuant\nto which notice has been given pursuant to Section 10.7, such Person shall\ncontinue to have the right to seek such indemnification with respect to such\nclaim notwithstanding such expiration.\n\n      10.2 Indemnification by Seller. Seller shall indemnify, defend and hold\nharmless Purchaser, its members, officers, directors, employees and agents after\nthe Closing Date from and against any loss, liability, obligation, Lien, damage,\ncost and expense (including reasonable legal and accounting fees incurred in\ndefending or prosecuting any claim for any such liability, loss or damage)\n(\"Purchaser Losses\") arising out of or resulting from:\n\n            (a) the untruth or inaccuracy as of the date hereof or on the\nClosing Date of any representation or warranty of Seller contained in this\nAgreement or the Schedules hereto (or in any document, writing, or certificate\ndelivered by Seller under Article VIII of this Agreement);\n\n\n                                       39\n\n            (b) any Excluded Liability;\n\n            (c) whether or not disclosed by Seller in this Agreement or on\nSchedule 3.22, any obligation or liability of Seller related to any actual or\nalleged violation or liability arising under any Environmental Laws, including,\nwithout limitation, any Release or threatened Release of Hazardous Substances\noccurring prior to, or if as a result of Seller's activities, present, or if,\nnot as a result of Seller's activities, to the extent present on, the Closing\nDate, and any Environmental Claims arising out of events or circumstances\noccurring prior to or continuing on the Closing Date;\n\n            (d) any obligation or liability arising from claims, proceedings or\ncauses of action arising from product warranty or product liability claims with\nrespect to products, materials or services produced, invoiced, sold, performed\nor shipped by Seller on or prior to the Closing Date;\n\n            (e) any action, suit or proceeding pending on the Closing Date,\nnotwithstanding disclosure thereof in this Agreement or on the Most Recent\nBalance Sheet or any subsequent claim, action, suit or proceeding arising out of\nor relating to such pending matters;\n\n            (f) the failure by Seller to perform any of its covenants or\nobligations hereunder; or\n\n            (g) the failure of Schering to fully reimburse Purchaser for any\nUnbilled Reimbursable Expenses.\n\n      10.3 Limits on Indemnification by Seller. The amount of liability of\nSeller for the Purchaser Losses shall be subject to the following limitations:\n\n            (a) Indemnity Basket. Except as otherwise provided in Section\n10.3(c), Seller shall have no liability under Section 10.2(a), (c), (d) or (e)\nuntil the aggregate amount of all Purchaser Losses for which Seller would, but\nfor this Section 10.3(a), be liable exceeds $250,000 (the \"Indemnity Basket\"),\nin which event Seller shall, subject to Section 10.3(b), be liable for the total\namount of all Purchaser Losses to the extent such Purchaser Losses exceed\n$250,000.\n\n            (b) Limit of Liability. Except as provided in Section 10.3(c), the\naggregate liability of Seller under Section 10.2 (after giving effect to the\napplication of Section 10.3(a)), shall not exceed the amount of the Escrow\nAccount (the \"Indemnity Cap\").\n\n            (c) The Indemnity Basket shall not be applicable to Purchaser Losses\n(i) arising or resulting from the untruth or inaccuracy of the representations\nmade in Sections 3.1 3.2, 3.22 or 3.24, (ii) arising or relating to any breach\nor violation of any agreement or covenant contained in this Agreement or other\ndocuments contemplated hereby, or (iii) arising or resulting from Seller's\nviolation of bulk sales laws.\n\n      10.4 Indemnification by Purchaser. (a) Purchaser shall indemnify, defend\nand hold harmless Seller, its directors, officers, employees and agents after\nthe Closing Date from and\n\n\n                                       40\n\nagainst any liability, obligation, loss, Lien, cost, damage and expense\n(including reasonable legal and accounting fees incurred in defending or\nprosecuting any claim for any such liability, loss or damage) arising out of or\nresulting from:\n\n               (i) the untruth or inaccuracy as of the date hereof or on the\nClosing Date of any representation or warranty of Purchaser contained in this\nAgreement (or in any document, writing or certificate delivered by Purchaser\nunder this Agreement), or the failure by Purchaser to perform any of its\ncovenants or obligations hereunder;\n\n               (ii) any liability of Seller assumed by Purchaser hereunder\nand\/or pursuant to the Assumption Agreement; or\n\n               (iii) the operation of Purchaser and conduct of Purchaser's\nbusiness following the Closing, including, without limitation, any loss,\nliability, obligation, Lien, damage, cost or expense arising from products\nproduced or processed by Purchaser after the Closing.\n\n            (b) Purchaser shall indemnify, defend and hold harmless Seller\nParties after the Closing Date from and against any liability, obligation, loss,\nLien, cost, damage and expense (including reasonable legal fees incurred in\ndefending or prosecuting any claim for any such liability, loss or damage)\narising out of or resulting from the use or operation by Purchaser of the\nPurchased Assets from the Closing Date until October 25, 2005 which use or\noperation of the Purchased Assets directly causes any liability of the Seller\nParties by reason of Seller's obligations described in Section 2 of that certain\nNon-Competition, Non-Solicitation and Non-Disclosure Agreement dated as of\nOctober 26, 2000 by and between Seller and FEI Acquisition Corp.\n\n      10.5 Specific Breaches. The breach of a specific representation, warranty,\nor agreement by Seller or Purchaser, as applicable, shall be determined\nindependently of any other representation, warranty or agreement made by Seller\nor Purchaser, as applicable, whether or not, apart from such specific\nrepresentation, warranty or agreement, the transactions provided for in this\nAgreement prove to be more favorable to Purchaser or Seller, as applicable, and\nwhether or not the facts and circumstances covered by any one or more of the\nother representations, warranties or agreements made by Seller or Purchaser, as\napplicable, prove to be more favorable than so represented and warranted.\n\n      10.6 Cross-indemnification for Broker's, Consultant's or Finder's Fees.\nSubject to the provisions of Section 3.31 and Section 4.6, Purchaser and Seller\neach agree to indemnify and hold harmless the other from and against any and all\nlosses, liabilities, obligations, Liens, damages, costs and expenses of any kind\nor character arising from any claims for broker's, consultant's or finder's fees\nor commissions or other similar fees in connection with the transactions covered\nby this Agreement, insofar as such claims shall be based upon alleged\narrangements or agreements made by such party or on its behalf, which indemnity\nexpressly shall survive any termination of this Agreement or any Closing\nhereunder.\n\n\n                                       41\n\n      10.7 Procedure for Indemnification.\n\n            (a) If any Person shall claim indemnification (the \"Indemnified\nParty\") hereunder for any claim other than a third party claim, the Indemnified\nParty shall promptly give written notice to the other party from whom\nindemnification is sought (the \"Indemnifying Party\") of the nature of the claim\nin detail and amount of the claim. If an Indemnified Party shall claim\nindemnification hereunder arising from any claim or demand of a third party (a\n\"Third-Party Claim\"), the Indemnified Party shall promptly give written notice\n(a \"Third-Party Notice\") to the Indemnifying Party of the basis for such claim\nor demand, setting forth the nature of the claim or demand in detail and the\namount of the claim.\n\n            (b) In the event that an Indemnifying Party which receives notice of\nan indemnification claim contests its liability for such indemnification claim,\nsuch party shall send written notice to the Indemnified Party of its dispute of\nindemnification within 15 days thereof. If the parties are unable to resolve\nsuch dispute of indemnification within 60 days after the date of the notice of\ndispute, the Indemnified Party may bring an action against the Indemnifying\nParty to enforce such indemnification claim.\n\n            (c) The Indemnifying Party shall have the right to compromise or, if\nappropriate, defend at its own cost and through counsel of its own choosing, any\nclaim or demand giving rise to any such claim for indemnification. In the event\nthe Indemnifying Party undertakes to compromise or defend any such claim or\ndemand, it shall promptly (and in any event, no later than fifteen (15) days\nafter receipt of a Third-Party Notice) notify the Indemnified Party in writing\nof its intention to do so. The Indemnified Party shall fully cooperate with the\nIndemnifying Party and its counsel in the defense or compromise of such claim or\ndemand. After the assumption of the defense by the Indemnifying Party, the\nIndemnified Party shall not be liable for any legal or other expenses\nsubsequently incurred by the Indemnifying Party, in connection with such defense\n(unless the Indemnifying Party disputes its liability for such indemnification\nclaim and an arbitration pursuant to Section 12.12 determines that the\nIndemnifying Party is not liable to indemnify the Indemnified Party), but the\nIndemnified Party may participate in such defense at its own expense. No\nsettlement of a Third-Party Claim defended by the Indemnifying Party shall be\nmade without the written consent of the Indemnified Party, such consent not to\nbe unreasonably withheld. The Indemnifying Party shall not, except with the\nwritten consent of the Indemnified Party, consent to the entry of a judgment or\nsettlement of a Third-Party Claim which does not include as an unconditional\nterm thereof, the giving by the claimant or plaintiff to the Indemnified Party\nof an unconditional release from all liability in respect of such Third-Party\nClaim.\n\n      10.8 Payment. Except for Third-Party Claims being defended in good faith\nby the Indemnifying Party in accordance with Section 10.7, the Indemnifying\nParty shall satisfy its obligations hereunder within fifteen (15) days after\nreceipt of notice of a claim, unless the Indemnifying Party has contested its\nliability for indemnification pursuant to Section 10.7(b) in which case no\npayment shall be due from the Indemnifying Party unless its liability therefor\nis established by final nonappealable court order or judgment and fifteen (15)\ndays have passed since the entry of such order or judgment. Any amount not paid\nto the Indemnified Party by such date shall bear interest at a rate equal to the\nprime as announced by Bank of America, N.A.,\n\n\n                                       42\n\nor, if Bank of America, N.A. ceases to exist, any other major New York bank\nreasonably selected by the Indemnified Party.\n\n      10.9 Limited Recourse against Seller and its shareholders. Any claims for\nindemnification or damages against Seller which arise after the Closing shall be\nsatisfied solely from funds contained in the escrow provided for in Section\n10.13; provided, however, there shall be no limitations and the Seller and its\nAffiliates shall remain liable for any claims involving fraud or willful\nmisrepresentation.\n\n      10.10 Reduction for Insurance and Taxes. The amount of any payment to any\nIndemnified Party pursuant to this Article X shall be reduced by the amount of\nany insurance proceeds actually received by or on behalf of the Indemnified\nParty in reduction of the related indemnifiable loss. An Indemnified Party which\nsubsequently receives insurance proceeds in respect of the related indemnifiable\nloss shall pay to the Indemnifying Party the amount of such actually received\ninsurance proceeds. Where any tax benefit is available to the Indemnified Party\nwith respect to an indemnifiable event, the amount of any payment with respect\nto such indemnifiable loss shall be reduced dollar for dollar by the amount of\nsuch tax benefit actually received.\n\n      10.11 Remedies Exclusive. The remedies provided in this Article X shall be\nthe exclusive remedies of the parties hereto after the Closing in connection\nwith any breach of a representation or warranty, non-performance, partial or\ntotal, of any covenant or agreement contained herein or any other matter\nrelating to the transactions contemplated hereby. Purchaser agrees to pursue all\nclaims for Purchaser Losses solely against Seller as provided in this Agreement.\nNothing contained herein, however, shall preclude a party from seeking\ninjunctive relief or specific performance, under circumstances where such relief\nmight be appropriate, provided that the moving party shall not be entitled to\nancillary relief in the nature of damages or fee awards unless specifically so\nprovided for herein.\n\n      10.12 No Consequential Damages. The Indemnifying Party shall not be liable\nto the Indemnified Party for consequential, enhanced, punitive or special\ndamages or the like unless such damages are included in a Third-Party Claim and\nthe Indemnified Party is liable to the third party claimant for such damages.\n\n      10.13 Escrow.\n\n            (a) As provided for in Section 1.2, on the Closing Date, the\nPurchaser shall pay the Escrow Amount to the Escrow Agent. The Escrow Agent\nshall retain, invest and disburse such funds pursuant to the escrow agreement\nattached as Exhibit E hereto (the \"Escrow Agreement\"). Any interest or earnings\non such funds shall be for the account of Seller.\n\n            (b) The Escrow Agreement shall provide that the funds retained\npursuant thereto shall be applied, subject to the conditions provided for in\nArticle X, to pay claims for Purchaser Losses that have not been contested as\nprovided for in Section 10.7(b) (\"Uncontested Claims\") and claims for Purchaser\nLosses that have been resolved in favor of Purchaser (to the extent so resolved)\npursuant to a final nonappealable court judgment or by agreement of Seller and\nPurchaser (\"Resolved Claims\") and to secure claims for the Purchaser Losses as\nto which\n\n\n                                       43\n\nPurchaser shall have notified Seller (pursuant to Section 10.7(a)) and the\nEscrow Agent and which are neither Uncontested Claims nor Resolved Claims\n(\"Pending Claims\"). Upon the expiration of two (2) years following the Closing\nDate, Escrow Agent shall release to Seller an amount equal to all of the funds\nthen held in the escrow account, less the aggregate amount of the then Pending\nClaims and shall continue thereafter to retain funds equal to the amount of the\nPending Claims until directed otherwise by agreement of Purchaser and Seller or\nby court order.\n\n      10.14 Bulk Sales. Notwithstanding anything herein to the contrary, Seller\nwill indemnify and hold harmless Purchaser and the other Purchaser Indemnities\nfrom and against any and all Losses resulting from or arising out of any\nnoncompliance or alleged noncompliance by Purchaser or Seller with bulk sales\nlaws.\n\n                                   ARTICLE XI\n                                   TERMINATION\n\n      11.1 Rights to Terminate. This Agreement may be terminated at any time\nprior to the Closing only as follows:\n\n            (a) by mutual written consent of Seller and Purchaser;\n\n            (b) by Seller if Purchaser is in material breach of any\nrepresentation, warranty or covenant under this Agreement (and Seller is not\nthen in material breach of any representation, warranty or covenant);\n\n            (c) by Purchaser if Seller is in material breach of any\nrepresentation, warranty or covenant under this Agreement (and Purchaser is not\nthen in material breach of any representation, warranty or covenant);\n\n            (d) by Seller or by Purchaser if, at or before the Closing Date, any\ncondition set forth herein for the benefit of Seller or Purchaser, respectively,\nshall not have been timely met and cannot be met on or before the Closing Date\nand has not been waived; or\n\n            (e) by Purchaser or Seller if the Closing shall not have occurred on\nor before June 30, 2002.\n\n      Each party's right of termination hereunder is in addition to any of the\nrights it may have hereunder.\n\n      11.2 Effects of Termination. Notwithstanding any other provision of this\nAgreement, no termination of this Agreement shall release any party of any\nliabilities or obligations arising hereunder for any pre-termination breaches\nhereof or misrepresentations made herein.\n\n\n                                       44\n\n                                  ARTICLE XII\n                            MISCELLANEOUS PROVISIONS\n\n      12.1 Notices. All notices or other communications required or permitted by\nthis Agreement shall be in writing and shall be deemed to have been duly\nreceived (a) if given by telecopier, when transmitted and the appropriate\ntelephonic confirmation received if transmitted on a business day and during\nnormal business hours of the recipient, and otherwise on the next Business Day\nfollowing transmission, (b) if given by certified or registered mail, return\nreceipt requested, postage prepaid, three Business Days after being deposited in\nthe U.S. mails and (c) if given by courier or other means, when received or\npersonally delivered, and, in any such case, addressed as follows:\n\n            (i)   if to Purchaser:\n\n                  Barr Laboratories, Inc.\n                  2 Quaker Road\n                  P.O. Box 2900\n                  Pomona, New York  10970-0519\n                  Attention:  General Counsel\n                  Telephone: (845) 362-1100\n                  Facsimile:  (845) 353-3476\n\n                  and\n\n                  Winston &amp; Strawn\n                  200 Park Avenue\n                  New York, New York 10166\n                  Attention: Robert Ericson\n                  Telephone: (212) 294-6730\n                  Facsimile:  (212) 294-4700\n\n            (ii)  if to Seller:\n\n                  c\/o FEI Enterprises, Ltd.\n                  300 International Drive\n                  Suite 100\n                  Williamsville, New York 14221\n                  Attention: President\n                  Telephone: (716) 626-3660\n                  Facsimile: (716) 626-3662\n\n\n                                       45\n\n                  with a copy to:\n\n                  Phillips, Lytle, Hitchcock, Blaine &amp; Huber LLP\n                  3400 HSBC Center\n                  Buffalo, New York 14203\n                  Attention: David C. Horan\n                  Telephone: (716) 847-8400\n                  Facsimile: (716) 852-6100\n\nor to such other addresses as may be specified by any such Persons to the other\nPersons, pursuant to notice given by such Person in accordance with the\nprovisions of this Section 12.1.\n\n      12.2 Assignment. No party may assign or transfer any or all of its rights\nor obligations under this Agreement without the prior written approval of the\nother party; provided, however, that Purchaser may assign or transfer all (but\nnot less than all) of its rights and obligations under this Agreement (a) to any\nPerson that is wholly-owned, directly or indirectly, by Purchaser or is an\nAffiliate of Purchaser or (b) after the Closing, to any Person to whom Purchaser\nsells all or substantially all the Purchased Assets, provided further, that at\nany time Purchaser may collaterally assign its rights hereunder to any Person or\nPersons providing financing to Purchaser in connection with the transactions\ncontemplated hereby.\n\n      12.3 Benefit of the Agreement. This Agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and\npermitted assigns. Except as set forth in Article X with respect to\nindemnification of indemnified parties hereunder, nothing in this Agreement\nshall confer any rights upon any Person other than the parties hereto and their\nrespective successors and assigns.\n\n      12.4 Exhibits and Schedules. The Exhibits and Schedules hereto shall be\nconstrued with and as an integral part of this Agreement to the same effect as\nif the contents thereof had been set forth verbatim herein. References in this\nAgreement and in the Schedules are made for convenient reference only, and all\nmatters disclosed in any Schedule shall be deemed to be disclosed in each\nSchedule.\n\n      12.5 Headings. The headings used in this Agreement are for convenience of\nreference only and shall not be deemed to limit, characterize or in any way\naffect the interpretation of any provision of this Agreement.\n\n      12.6 Entire Agreement. This Agreement contains the entire agreement and\nunderstanding of the parties with respect to the subject matter hereof, and no\nother representations, promises, agreements or understandings regarding the\nsubject matter hereof shall be of any force or effect unless in writing,\nexecuted by the party to be bound thereby and dated on or after the date hereof.\n\n      12.7 Modifications and Waivers. No change, modification or waiver of any\nprovision of this Agreement shall be valid or binding unless it is in writing,\ndated subsequent to the date hereof and signed by Purchaser and Seller. No\nwaiver of any breach, term or condition of this\n\n\n                                       46\n\nAgreement by any party shall constitute a subsequent waiver of the same or any\nother breach, term or condition.\n\n      12.8 Counterparts. This Agreement may be executed in counterparts\n(including by facsimile transmission), each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same\ninstrument.\n\n      12.9 Severability. In case any one or more of the provisions contained\nherein for any reason shall be held to be invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect\nany other provision of this Agreement, but this Agreement shall be construed as\nif such invalid, illegal or unenforceable provision or provisions had never been\ncontained herein.\n\n      12.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN\nACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (EXCLUSIVE OF THE\nCONFLICT OF LAW PROVISIONS THEREOF).\n\n      12.11 Expenses. Other than as specifically provided in this Agreement,\neach party hereto shall pay all of its own costs and expenses incurred or to be\nincurred in negotiating and preparing this Agreement and in closing and carrying\nout the transactions contemplated by this Agreement.\n\n      12.12 JURISDICTION; WAIVER OF JURY TRIAL; VENUE.\n\n            (a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND\nUNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE\nJURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES\nOF AMERICA SITTING IN NEW YORK COUNTY, NEW YORK, AND ANY APPELLATE COURT FROM\nANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE\nPARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN\nRESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH\nNEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.\nEACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR\nPROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY\nSUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS\nAGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY\nACTION OR PROCEEDING RELATING TO THIS AGREEMENT IN THE COURTS OF ANY OTHER\nJURISDICTION.\n\n            (b) EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL\nBY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,\nTORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.\n\n\n                                       47\n\n            (c) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY\nWAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY\nOBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,\nACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY NEW\nYORK STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY, NEW YORK. EACH OF THE\nPARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY\nLAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR\nPROCEEDING IN ANY SUCH COURT.\n\n      12.13 Seller Acknowledgement. Seller acknowledges that the representations\nand warranties contained in this Agreement and in any document or instrument\ndelivered to Purchaser pursuant hereto or in connection herewith shall not be\ndeemed waived or otherwise affected by any investigation by Purchaser, its\nofficers, directors, employees, counsel, accountants, advisors, representatives\nand agents.\n\n                            [SIGNATURE PAGE FOLLOWS]\n\n\n                                       48\n\n      IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase\nAgreement the date first written above.\n\n                              ENHANCE PHARMACEUTICALS, INC.\n\n\n                              By: -----------------------------------\n\n                              Title: --------------------------------\n\n\n\n                              BARR LABORATORIES, INC.\n\n\n                              By: -----------------------------------\n\n                              Title: --------------------------------\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6859],"corporate_contracts_industries":[9407],"corporate_contracts_types":[9623,9622],"class_list":["post-43293","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-barr-laboratories-inc","corporate_contracts_industries-drugs__pharma","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43293","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43293"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43293"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43293"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43293"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}