{"id":43510,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/purchase-agreement-e-i-du-pont-de-nemours-amp-amp-co-dupont.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"purchase-agreement-e-i-du-pont-de-nemours-amp-amp-co-dupont","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/purchase-agreement-e-i-du-pont-de-nemours-amp-amp-co-dupont.html","title":{"rendered":"Purchase Agreement &#8211; E I du Pont de Nemours &#038; Co., DuPont Pharma Inc., DuPont Pharmaceuticals Co., DuPont Electrical Materials Inc., DuPont Diagnostics Inc. and Bristol-Myers Squibb Co."},"content":{"rendered":"<pre>                                                                  EXECUTION COPY\n\n\n\n               --------------------------------------------------\n\n\n\n                               PURCHASE AGREEMENT\n\n\n                                  by and among\n\n\n                      E.I. DU PONT DE NEMOURS AND COMPANY,\n\n                              DUPONT PHARMA, INC.,\n\n                         DUPONT PHARMACEUTICALS COMPANY,\n\n                       DUPONT ELECTRONIC MATERIALS, INC.,\n\n                             DUPONT DIAGNOSTICS INC.\n\n                                       and\n\n                          BRISTOL-MYERS SQUIBB COMPANY\n\n\n\n                            Dated as of June 7, 2001\n\n             ------------------------------------------------------\n\n\n                                      32\n\n \n                                TABLE OF CONTENTS\n                                -----------------\n\n                                                                            Page\n                                                                            ----\n\n\nARTICLE I -- DEFINITIONS\n\n         1.1      Definitions.................................................2\n\nARTICLE II -- THE PURCHASE AND SALE\n\n         2.1      Purchase and Sale..........................................25\n         2.2      Purchase Price.............................................27\n         2.3      The Closing................................................27\n         2.4      Purchase Price Adjustment..................................29\n         2.5      Allocation of Purchase Price...............................33\n\nARTICLE III -- REPRESENTATIONS AND WARRANTIES OF DUPONT\n\n         3.1      Organization, Etc..........................................34\n         3.2      Authority Relative to this Agreement, Etc..................34\n         3.3      Capitalization.............................................35\n         3.4      Consents and Approvals; No Violations......................36\n         3.5      Financial Statements.......................................36\n         3.6      Absence of Certain Changes.................................37\n         3.7      Compliance with Law, Permits...............................40\n         3.8      No Undisclosed Liabilities.................................42\n         3.9      Litigation.................................................42\n         3.10     Taxes......................................................43\n         3.11     Employee Benefit Plans; ERISA..............................45\n         3.12     Environmental Matters......................................51\n         3.13     Real Property..............................................52\n         3.14     Intellectual Property......................................53\n         3.15     Assets.....................................................55\n         3.16     Brokers and Finders........................................56\n         3.17     Inventories................................................56\n         3.18     Contracts..................................................56\n         3.19     Shared Services............................................59\n         3.20     Agreements Restricting Affiliates..........................59\n\n                                        i\n\n \nARTICLE IV -- REPRESENTATIONS AND WARRANTIES OF BUYER AND BUYER SUB\n\n         4.1      Corporate Organization; Etc................................60\n         4.2      Authority Relative to this Agreement, Etc..................60\n         4.3      Consents and Approvals; No Violations......................60\n         4.4      Brokers and Finders........................................61\n         4.5      Financing..................................................61\n         4.6      Securities Act.............................................61\n\nARTICLE V -- COVENANTS\n\n         5.1      Conduct of Business........................................62\n         5.2      Access to Information......................................65\n         5.3      Consents and Approvals.....................................66\n         5.4      Further Assurances.........................................69\n         5.5      Intercompany Accounts and Arrangements.....................69\n         5.6      Provision of Corporate Records.............................70\n         5.7      Names......................................................71\n         5.8      Intellectual Property......................................72\n         5.9      Post-Closing Cooperation...................................76\n         5.10     Pending Litigation.........................................77\n         5.11     Employee Matters...........................................78\n         5.12     Post-Closing Access to Information.........................89\n         5.13     Production of Witnesses and Individuals....................89\n         5.14     Retention of Records.......................................90\n         5.15     Confidentiality............................................90\n         5.16     Privileged Matters.........................................92\n         5.17     Mail and Other Communications; Accounts....................94\n         5.18     Compliance with WARN Act and Similar Statutes..............95\n         5.19     Shared Contracts...........................................95\n         5.20     Certain Matters Relating to Intellectual Property and\n                     Agreements with Merck &amp; Co. Inc.........................96\n         5.21     Section 754 Election.......................................97\n         5.22     Responsibility for Subsidiaries............................97\n         5.23     Maintenance of Partnership Existence.......................98\n         5.24     Delivery of Financial Statements...........................98\n         5.25     Certain Real Estate Matters................................99\n\n                                       ii\n\n \nARTICLE VI -- TAX MATTERS\n\n         6.1      Tax Indemnification........................................99\n         6.2      Closing of Current Taxable Year, Etc......................101\n         6.3      Tax Returns...............................................101\n         6.4      Contest Provisions........................................102\n         6.5      Transfer Taxes............................................104\n         6.6      Certain Post-Closing Settlement Payments and Post-Closing\n                     Actions................................................105\n         6.7      Mutual Cooperation........................................106\n         6.8      Maintenance of Books and Records..........................107\n         6.9      Miscellaneous.............................................108\n\nARTICLE VII -- CONDITIONS TO THE SALE\n\n         7.1      Conditions to the Obligations of the Sellers to Effect\n                     the Sale...............................................108\n         7.2      Conditions to the Obligations of Buyer to Effect\n                     the Sale...............................................109\n\nARTICLE VIII -- TERMINATION AND ABANDONMENT; INDEMNIFICATION\n\n         8.1      Termination...............................................111\n         8.2      Procedure and Effect of Termination.......................111\n         8.3      Survival of Representations, Warranties and Covenants.....112\n         8.4      Indemnification...........................................112\n         8.5      Environmental Matters.....................................117\n\nARTICLE IX -- MISCELLANEOUS\n\n         9.1      Amendment and Modifications...............................121\n         9.2      Extension; Waiver.........................................121\n         9.3      Representations and Warranties; Etc.......................121\n         9.4      Entire Agreement; Assignment..............................122\n         9.5      Validity..................................................122\n         9.6      Notices...................................................122\n         9.7      Governing Law.............................................123\n         9.8      Specific Performance......................................123\n         9.9      Publicity.................................................123\n         9.10     Jurisdiction; Forum, Etc..................................123\n         9.11     Descriptive Headings......................................125\n         9.12     Counterparts..............................................125\n\n                                       iii\n\n \n         9.13     Expenses..................................................125\n         9.14     Parties in Interest.......................................125\n         9.15     Interpretation............................................125\n         9.16     Schedules.................................................126\n\n                                       iv\n\n \n                               PURCHASE AGREEMENT\n\n\n                  PURCHASE AGREEMENT (this \"Agreement\"), dated as of June 7,\n                                            ---------\n2001, by and among E.I. du Pont de Nemours and Company, a Delaware corporation\n(\"DuPont\"), DuPont Pharma, Inc., a Delaware corporation (\"DPI\"), DuPont\n  ------                                                  ---\nPharmaceuticals Company, a general partnership formed under the laws of the\nState of Delaware (\"DPC\"), DuPont Electronic Materials, Inc., a Delaware\n                    ---\ncorporation (\"DEMI\"), DuPont Diagnostics Inc., a Delaware corporation (\"DDI\"),\n              ----                                                      ---\nand Bristol-Myers Squibb Company, a Delaware corporation (\"Buyer\").\n                                                           -----\n                  WHEREAS, in addition to its other businesses, DuPont is\nengaged through DPC, DuPont Pharma, Ltd., a corporation organized under the laws\nof Bermuda (\"DPL\"), DuPont Pharmaceutical Research Labs, Inc., a Delaware\n             ---\ncorporation (\"DPRL\"), and DuPont Contrast Imaging, Inc., a Delaware corporation\n              ----\n(\"DCI\"), and their Subsidiaries (as defined herein) in the research,\n  ---\ndevelopment, manufacturing, distribution, marketing and sale of human\npharmaceutical and radiopharmaceutical products and similar product lines; and\n\n                  WHEREAS, DPC is the direct or indirect record and beneficial\nowner of all of the issued and outstanding capital stock of DuPont Pharma SA, a\ncorporation formed under the laws of Belgium (\"Pharma Belgium\"), Du Pont\n                                               --------------\nPharmaceuticals Limited, a corporation formed under the laws of the United\nKingdom (\"Pharma UK\"), DuPont Pharma Inc., a corporation formed under the laws\n          ---------\nof Canada (\"Pharma Canada\"), DuPont Pharma S.A., a corporation formed under the\n            -------------\nlaws of France (\"Pharma France\"), DuPont Pharma Italia s.r.l., a corporation\n                 -------------\nformed under the laws of Italy (\"Pharma Italy\"), DuPont Pharma GmbH, a\n                                 ------------\ncorporation formed under the laws of Germany (\"Pharma Germany\"), Du Pont Sankyo\n                                               --------------\nPharmaceuticals Co., Ltd, a corporation formed under the laws of Japan \n(\"Pharma Japan\"), Du Pont Farmaceutica, Ltda., a corporation formed under the\n  ------------\nlaws of Brazil (\"Pharma Brazil\"), and DuPont Pharma S.A., a corporation formed\n                 -------------\nunder the laws of Spain (\"Pharma Spain\")(the \"Controlled Foreign Subsidiary\n                          ------------        -----------------------------\nShares\"), other than directors' qualifying shares; and\n------\n\n                  WHEREAS, DuPont and DPI are the record and beneficial owners\nof all of the outstanding general partnership interests in DPC (the \n\"DPC Interests\"); and\n -------------\n\n                  WHEREAS, DuPont is the record and beneficial owner of all of\nthe issued and outstanding shares of capital stock of DCI (the \"DCI Shares\");\n                                                                ----------\nand\n\n                  WHEREAS, DPI is the record and beneficial owner of all of the\nissued and outstanding shares of capital stock of DPRL (the \"DPRL Shares\"); and\n                                                             -----------\n\n                                        1\n\n \n                  WHEREAS, DEMI and DDI are the record and beneficial owners of\nall of the issued and outstanding shares of capital stock of DPL (the \n\"DPL Shares\"); and\n ----------\n\n                  WHEREAS, DuPont is the record and beneficial owner of the all\nof the Transferred Equipment (as defined herein); and\n\n                  WHEREAS, the parties hereto desire that (i) immediately prior\nto any transactions described in clauses (ii) through (v) below, DPC sell,\nconvey, assign, transfer and deliver to one or more Subsidiaries of Buyer\n(collectively, the \"Foreign Buyer Subs\"), all of the Controlled Foreign\n                    ------------------\nSubsidiary Shares owned by DPC, and that DPC immediately distribute the proceeds\nof such sales to DuPont and DPI, (ii) DuPont sell, convey, assign, transfer and\ndeliver to a Subsidiary of Buyer (\"Buyer Sub 1\") the DPC Interests held by\n                                   -----------\nDuPont, the DCI Shares and the Transferred Equipment, (iii) DPI sell, convey,\nassign, transfer and deliver to another Subsidiary of Buyer (\"Buyer Sub 2\") the\n                                                              -----------\nDPC Interests held by DPI, (iv) DPI sell, convey, assign, transfer and deliver\nto Buyer Sub 1 the DPRL Shares, and (v) DEMI and DDI sell, convey, assign,\ntransfer and deliver to Buyer Sub 1 the DPL Shares; and\n\n                  WHEREAS, at or prior to the Closing (as defined herein),\nDuPont, DPC, DPL and Buyer or its Affiliates will enter into the Related\nAgreements (as defined herein); and\n\n                  WHEREAS, the respective Boards of Directors of DuPont, DPI,\nDEMI, DDI and Buyer, and of DuPont and DPI in their capacities as general\npartners of DPC, have approved and declared advisable this Agreement, the\nRelated Agreements and the consummation of the transactions contemplated hereby\nand thereby.\n\n                  NOW, THEREFORE, in consideration of the foregoing and the\nmutual representations, warranties, covenants and agreements herein contained,\nthe parties hereto hereby agree as follows:\n\n\n                                    ARTICLE I\n                                    ---------\n\n                                   DEFINITIONS\n                                   -----------\n\n                  1.1 Definitions. The terms defined in this Article I, whenever\n                      -----------\nused herein, shall have the following meanings for all purposes of this\nAgreement:\n\n                                        2\n\n \n                  \"Action\" shall mean any action, claim, suit, arbitration,\nsubpoena, discovery request, proceeding or investigation by or before any court\nor grand jury, any Governmental Authority or arbitration tribunal.\n\n                  \"Additional Transferred Assets\" shall mean the Transferred\nAssets described in clauses (ii)-(v) of the definition of \"Transferred Assets\".\n\n                  \"Affiliate\" shall mean, with respect to any specified Person,\na Person that, directly or indirectly, through one or more intermediaries,\ncontrols, or is controlled by, or is under common control with, such specified\nPerson. For purposes of this definition, \"control\", when used with respect to\nany specified Person, means the power to direct the management and policies of\nsuch Person, directly or indirectly, whether through ownership of voting\nsecurities, by Contract or otherwise; and the terms \"controlling\" and\n\"controlled\" have meanings correlative to the foregoing.\n\n                  \"Agent\" shall have the meaning set forth in Section 9.10(b).\n\n                  \"Agreement\" shall have the meaning set forth in the recitals.\n\n                  \"Antitrust Laws\" shall mean and include (i) the Sherman Act,\nas amended, the Clayton Act, as amended, the HSR Act, the Federal Trade\nCommission Act, as amended, and the EC Merger Regulations and (ii) all other\nFederal, state or foreign statutes, rules, regulations, orders, decrees,\nadministrative and judicial doctrines and other laws that are designed or\nintended to regulate competition or investment or to prohibit, restrict or\nregulate actions having the purpose or effect of monopolization or restraint of\ntrade.\n\n                  \"Applicable Buyer Plan\" shall have the meaning set forth in\nSection 5.11(b).\n\n                  \"Asset\" shall mean, with respect to any Person, any and all of\nsuch Person's title and ownership interest in and to all of the properties,\nassets, claims, Contracts and businesses of every kind, character and\ndescription, whether real, personal or mixed, whether tangible or intangible,\nwhether accrued, contingent or otherwise, and wherever located, including,\nwithout limitation, the following: (i) all Cash, notes and accounts receivable\n(whether current or non-current); (ii) all real properties, including plants,\nbuildings and other structures and improvements (including construction in\nprogress) located thereon, fixtures contained therein and appurtenances thereto\n(including, in the case of the Transferred Business Companies, the Real\nProperty); (iii) all leases and subleases and all machinery, Equipment\n(including all transportation and office equipment), fixtures, trade fixtures\nand furniture; (iv) all office supplies, production supplies, spare parts, other\nmiscellaneous\n\n                                        3\n\n \nsupplies and other tangible property of any kind; (v) all capital stock,\npartnership interests and other equity or ownership interests or rights,\ndirectly or indirectly, in any Subsidiary or other entity; (vi) all raw\nmaterials, work-in-process, finished goods, consigned goods and other\ninventories; (vii) all Intellectual Property; (viii) all rights existing under\nall Contracts; (ix) all rights (including ownership rights or rights arising\nunder Contracts) relating to all computer hardware, software, computer programs,\nsystems and documentation relating thereto; all databases and reference and\nresource materials; (x) all prepayments, deposits, performance bonds or prepaid\nexpenses and, to the extent they constitute an asset and not a liability of such\nparty, deferred tax accounts; (xi) all claims, causes of action, choses in\naction, rights of recovery and rights of set-off of any kind; (xii) all customer\nlists and records pertaining to customers and accounts, personnel records, all\nlists and records pertaining to suppliers and agents, and all books, ledgers,\nfiles and business records of every kind; (xiii) all advertising materials and\nall other printed or written materials, including purchase orders, forms,\nlabels, shipping materials, catalogues, sales brochures, operating manuals, and\ninstructional documents; (xiv) all permits, licenses, approvals and\nauthorizations, to the extent transferable, of Governmental Authorities or third\nparties relating to the ownership, possession or operation of the Assets; (xv)\nall goodwill as a going concern and all other intangible properties; (xvi) all\nemployee contracts, including, without limitation, the right thereunder to\nrestrict an employee from competing in certain respects; and (xvii) all trucks,\nautomobiles and other vehicles.\n\n                  \"Assumed Liabilities\" shall mean, except in each case as\notherwise expressly provided in Article VI, any and all Liabilities, arising\nafter the Closing Date, of DuPont, the Transferred Business Companies or any of\ntheir Affiliates, Subsidiaries or divisions, solely to the extent relating to,\nresulting from or arising out of the ownership or use of the Additional\nTransferred Assets, other than in any case any Retained Liabilities.\n\n                  \"Audited Financial Statements\" shall have the meaning set\nforth in Section 5.24(a).\n\n                  \"Audited 1999 Financial Statements\" shall have the meaning set\nforth in Section 5.24.\n\n                  \"Audited 2000 Financial Statements\" shall have the meaning set\nforth in Section 5.24.\n\n                  \"Balance Sheet\" shall have the meaning set forth in Section\n3.5.\n\n                  \"Basket\" shall have the meaning set forth in Section 8.4(h).\n\n                                        4\n\n \n                  \"Belgian Pension Plan\" shall have the meaning set forth in\nSection 3.11(r)(vi).\n\n                  \"Business Day\" shall mean any day other than a Saturday, a\nSunday or a day on which United States banks are closed generally.\n\n                  \"Buyer\" shall have the meaning set forth in the recitals.\n\n                  \"Buyer Business Material Adverse Effect\" shall mean any actual\nor prospective change, event or effect that, individually or in the aggregate\nwith all other such adverse actual or prospective changes, events or effects, is\nmaterially adverse to the business, prospects, Assets, results of operations or\ncondition (financial or otherwise) of Buyer and its Subsidiaries, taken as a\nwhole.\n\n                  \"Buyer Caribe DC Plan\" shall have the meaning set forth in\nSection 5.11(h).\n\n                  \"Buyer Environmental Liabilities\" shall have the meaning set\nforth in Section 8.5(d).\n\n                  \"Buyer Indemnified Parties\" shall have the meaning set forth\nin Section 8.4(a).\n\n                  \"Buyer Material Adverse Effect\" shall mean any actual change,\nevent or effect that, individually or in the aggregate with all other actual\nchanges, events and effects, impairs, hinders or adversely affects in any\nmaterial respect the ability of Buyer and its Subsidiaries to consummate the\nSale or the other material transactions contemplated hereby.\n\n                  \"Buyer Shared Know-how\" means all trade secrets and\nconfidential business information, including confidential ideas, research and\ndevelopment, know-how, discoveries, improvements, formulas, manufacturing and\nproduction processes and techniques, technical data, designs, drawings, and\nspecifications owned by the Transferred Business Companies at the Closing and\nused by DuPont or the Retained Subsidiaries in the conduct of the Retained\nBusiness as of the Closing; provided that, for the avoidance of doubt, Buyer\n                            --------\nShared Know-how shall not include any (x) Patents or (y) applied for or\nregistered Trademarks or Copyrights.\n\n                  \"Buyer Sub 1\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Buyer Sub 2\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Buyer Tax Act\" shall have the meaning set forth in Section\n6.1(a).\n\n                                        5\n\n \n                  \"Cap\" shall have the meaning set forth in Section 8.4(i).\n\n                  \"Caribe DC Plan\" shall mean the DuPont Pharma (Puerto Rico)\nSavings Plan.\n\n                  \"Cash\" shall mean all (i) cash and cash equivalents\n(including, without limitation, certificates of deposit and bankers acceptances)\nand (ii) marketable debt instruments that mature within three months or less.\n\n                  \"Closing\" shall have the meaning set forth in Section 2.3(a).\n\n                  \"Closing Date\" shall have the meaning set forth in Section\n2.3(a).\n\n                  \"Closing Purchase Price\" shall have the meaning set forth in\nSection 2.2.\n\n                  \"Code\" shall mean the Internal Revenue Code of 1986, as\namended.\n\n                  \"Confidentiality Agreement\" shall have the meaning set forth\nin Section 5.2.\n\n                  \"Contract\" shall mean any contract, agreement, Lease, license,\nsales order, purchase order, instrument or other commitment or arrangement (oral\nor written) that is binding on any Person or entity or any part of its property\nunder applicable Law.\n\n                  \"Controlled Foreign Subsidiaries\" shall mean the Subsidiaries\nof DPC set forth on Schedule 1.1(a).\n\n                  \"Controlled Foreign Subsidiary Shares\" shall have the meaning\nset forth in the recitals.\n\n                  \"Copyrights\" means all copyrights, and all applications,\nregistrations, and renewals in connection therewith.\n\n                  \"Cox-2 Patents\" shall mean the Patents set forth in Schedule\n1.1(b).\n\n                  \"Current Assets\" shall mean all current assets of the\nTransferred Business Companies (and all Additional Transferred Assets to the\nextent current assets), determined in accordance with GAAP applied on a\nconsistent basis with the Audited Financial Statements, other than (i) Cash,\n(ii) accounts receivable of a Transferred Business Company, owed to it by DuPont\nor any of its Subsidiaries (other than Subsidiaries which are Transferred\nBusiness Companies), (iii) any Excluded\n\n                                        6\n\n \nAssets, (iv) the Endo Note, (v) any Assets relating to Taxes and (vi) any Assets\nto be provided under the Related Agreements.\n\n                  \"DCI\" shall have the meaning set forth in the recitals.\n\n                  \"DCI Shares\" shall have the meaning set forth in the recitals.\n\n                  \"DEMI\" shall have the meaning set forth in the recitals.\n\n                  \"Distributee\" shall mean a Transferred Employee who elects to\nreceive a distribution from the DuPont 401(k) Plan, as contemplated by Section\n5.11(g).\n\n                  \"DOJ\" shall have the meaning set forth in Section 3.4.\n\n                  \"DPC\" shall have the meaning set forth in the recitals.\n\n                  \"DPC Action\" shall have the meaning set forth in Section 5.10.\n\n                  \"DPC Books and Records\" shall mean the books and records of\nthe Transferred Business, including all computerized books and records of the\nTransferred Business, to the extent they primarily relate to the Transferred\nBusiness or the Transferred Assets, including, but not limited to, all such\nbooks and records primarily relating to Transferred Employees, the purchase of\nmaterials, Taxes (insofar as such books and records are reasonably necessary for\nthe determination of Tax Items for any Post-Closing Tax Period), supplies and\nservices, the development, marketing, manufacture and sale of products by the\nTransferred Business or dealings with suppliers and customers of the Transferred\nBusiness and all files primarily relating to any Action included in the Assumed\nLiabilities.\n\n                  \"DPC Financial Statements\" shall have the meaning set forth in\nSection 3.5(a).\n\n                  \"DPC Interests\" shall have the meaning set forth in the\nrecitals.\n\n                  \"DPI\" shall have the meaning set forth in the recitals.\n\n                  \"DPL\" shall have the meaning set forth in the recitals.\n\n                  \"DPL Shares\" shall have the meaning set forth in the recitals.\n\n                  \"DPRL\" shall have the meaning set forth in the recitals.\n\n                  \"DPRL Shares\" shall have the meaning set forth in the\nrecitals.\n\n                                        7\n\n \n                  \"Due Date\" shall have the meaning set forth in Section 6.3(c).\n\n                  \"DuPont\" shall have the meaning set forth in the recitals.\n\n                  \"DuPont Action\" shall have the meaning set forth in Section\n5.10.\n\n                  \"DuPont Books and Records\" shall mean the books and records,\nincluding all computerized books and records, of or owned by DuPont and its\nSubsidiaries (including the Transferred Business Companies), other than the DPC\nBooks and Records.\n\n                  \"DuPont 401(k) Plan\" shall mean the Savings &amp; Investment Plan\nof E.I. du Pont de Nemours and Company.\n\n                  \"DuPont Indemnified Parties\" shall have the meaning set forth\nin Section 8.4(b).\n\n                  \"DuPont Marks\" shall have the meaning set forth in Section\n5.7.\n\n                  \"DuPont Merck Agreement\" shall have the meaning set forth in\nSection 5.20.\n\n                  \"DuPont Shared Know-how\" means all trade secrets and\nconfidential business information, including confidential ideas, research and\ndevelopment, know-how, discoveries, improvements, formulas, manufacturing and\nproduction processes and techniques, technical data, designs, drawings, and\nspecifications owned by DuPont or the Retained Subsidiaries at the Closing and\nused by the Transferred Business Companies in the conduct of the Transferred\nBusiness as of the Closing; provided that, for the avoidance of doubt, DuPont\nShared Know-how shall not include any (x) Patents or (y) applied for or\nregistered Trademarks or Copyrights.\n\n                  \"DuPont UK Plan\" shall mean the DuPont Pharmaceutical (U.K.)\nLimited Pensions Fund.\n\n                  \"EC Merger Regulations\" shall mean Counsel regulation (EEC)\nNo. 4064\/89 of December 21, 1989 on the Control of Concentrations Between\nUndertakings, OJ (1989) L 395\/1 and the regulations and decisions of the\nCouncilor Commission of the European Community or other organs of the European\nUnion or European Community implementing such regulations.\n\n                  \"Encumbrance\" shall mean any lien, encumbrance, security\ninterest, charge, mortgage, deed of trust, deed to secure debt, option, pledge\nor restriction on\n\n                                        8\n\n \ntransfer of title or voting of any nature whatsoever, other than in the case of\nsecurities, the restrictions imposed by federal, state and foreign securities\nlaws.\n\n                  \"Endo Note\" shall mean the Amended and Restated Promissory\nNote, dated as of August 26, 1997, between Endo Pharmaceuticals, Inc. and DPC,\nand all other notes due to DPC of Endo Pharmaceuticals, Inc.\n\n                  \"Environment\" shall mean any surface water, groundwater,\ndrinking water supply, land surface or subsurface strata, or ambient air.\n\n                  \"Environmental Claim\" means any claim, action, cause of\naction, investigation, demand, order, directive or written notice by or on\nbehalf of, any Governmental Authority or Person, including any Transferred\nEmployee or former employee, alleging potential liability (including, without\nlimitation, potential liability for investigatory costs, cleanup costs,\ngovernmental response costs, natural resources damages, property damages,\npersonal injuries, medical monitoring or penalties) arising out of, based on or\nresulting from: (i) the presence, Release or threatened Release of any Hazardous\nSubstance at any location; (ii) exposure to any Hazardous Substance; or (iii)\nrequirements or violation of any Environmental Laws or Environmental Permit.\n\n                  \"Environmental Laws\" shall mean all Laws relating to pollution\nor protection of human health or the Environment, including, without limitation,\nthe Comprehensive Environmental Response, Compensation, and Liability Act, the\nResource Conservation and Recovery Act, the Clean Air Act, the Clean Water Act,\nthe Occupational Safety and Health Act, the Toxic Substances Control Act, any\namendments thereto and any rules and regulations promulgated pursuant to or\nimplementing the foregoing, similar state Laws and other Laws relating to any of\n(i) Releases, threatened Releases or the presence of Hazardous Substances or the\nmanufacture, processing, distribution, use, treatment, storage, transport or\nhandling of Hazardous Substances, including the disposal of radioactive\nmaterials, (ii) noise or odors, (iii) pollution or protection of the air,\nsurface water, groundwater, drinking water, land surface or subsurface strata,\nor (iv) exposure to Hazardous Substances and employee health and safety.\n\n                  \"Environmental Permit\" shall mean any permit, license,\napproval or other authorization under any applicable Law or of any Governmental\nAuthority relating to Environmental Laws.\n\n                  \"Equipment\" shall mean all equipment, fixtures, physical\nfacilities, machinery, inventory, spare parts, supplies, tools and other\ntangible personal property.\n\n                                        9\n\n \n                  \"ERISA\" shall have the meaning set forth in Section 3.11(a).\n\n                  \"ERISA Affiliate\" shall have the meaning set forth in Section\n3.11(a).\n\n                  \"Estimated Closing Adjustment\" shall have the meaning set\nforth in Section 2.4(a).\n\n                  \"Estimated Closing Balance Sheet\" shall have the meaning set\nforth in Section 2.4(a).\n\n                  \"Estimated Net Assets\" shall have the meaning set forth in\nSection 2.4(a).\n\n                  \"Exchange Act\" shall mean the Securities Exchange Act of 1934,\nas amended.\n\n                  \"Excluded Assets\" shall mean (i) all Cash and notes receivable\n(whether current or non-current), including, without limitation, amounts\noutstanding under the Master Note Agreements, but excluding the Endo Note, (ii)\nthe Cozaar\/Hyzaar\/Fortzaar patent estate set forth on Schedule 1.1(c) hereto as\namended pursuant to Section 5.20(a), and all associated royalty, profit sharing\nand review and approval and other rights, (iii) the Cox-2 Patents and all\nassociated royalty, profit sharing and review and approval and other rights,\n(iv) all rights (other than rights in related Intellectual Property owned by, or\nto the extent licensed to, pursuant to a written license agreement, a\nTransferred Business Company) to the compounds and information in DuPont's\nChemical and Biological Clearinghouse other than those compounds, and\ninformation in the possession of a Transferred Business Company relating to\nthose compounds, set forth on Schedule 1.1(d) hereto, (v) all equity financial\ninstruments held by DPC set forth on Schedule 1.1(e) hereto, (vi) all rights of\nthe Sellers under this Agreement and any documents delivered or received in\nconnection herewith, (vii) all rights under the agreements set forth on Schedule\n5.20(a)(i)(A) and the Patents and Trademarks set forth on Schedule\n5.20(a)(i)(B), (viii) any rights to be licensed to DuPont pursuant to Section\n5.8 (subject to the terms of the license agreements to be entered into in\nconnection therewith), (ix) the DuPont Marks and (x) the Real Property on\nSchedule 1.1(f).\n\n                  \"FAS\" shall mean the referenced Financial Accounting Standard\npublished by the Financial Accounting Standards Board.\n\n                  \"FDA\" shall mean the United States Food and Drug\nAdministration.\n\n                  \"Final Closing Adjustment\" shall have the meaning set forth in\nSection 2.4(e).\n\n                                       10\n\n \n                  \"Final Closing Balance Sheet\" shall mean (i) the Preliminary\nClosing Balance Sheet if deemed final pursuant to Section 2.4(c), (ii) any\nbalance sheet deemed by mutual agreement of Buyer and DuPont to be the Final\nClosing Balance Sheet or (iii) the balance sheet determined by the Independent\nAccounting Firm to be the Final Closing Balance Sheet in accordance with Section\n2.4(d).\n\n                  \"Final Net Assets\" shall mean (i) the Preliminary Net Assets\nif deemed final pursuant to Section 2.4(c), (ii) the Net Assets deemed by mutual\nagreement of Buyer and DuPont to be the Final Net Assets or (iii) the Net Assets\ndetermined by the Independent Accounting Firm to be the Final Net Assets in\naccordance with Section 2.4(d).\n\n                  \"Final Determination\" means the final resolution of any Tax\n(or other Tax matter) for a taxable period that, under applicable law, is not\nsubject to further appeal, review or modification through proceedings or\notherwise, including (i) by the expiration of a statute of limitations or a\nperiod for the filing of claims for refunds, amending Tax Returns, appealing\nfrom adverse determinations, or recovering any refund (including by offset),\n(ii) by a decision, judgment, decree, or other order by a court of competent\njurisdiction, which has become final and unappealable, (iii) by a closing\nagreement or an accepted offer in compromise under Section 7121 or 7122 of the\nCode, or comparable agreements under laws of other jurisdictions, (iv) by\nexecution of an Internal Revenue Service Form 870 or 870AD, or by a comparable\nform under the laws of other jurisdictions (excluding, however, with respect to\na particular Tax Item for a particular taxable period any such form that\nreserves (whether by its terms or by operation of law) the right of the taxpayer\nto file a claim for refund and\/or the right of the Tax Authority to assert a\nfurther deficiency with respect to such Tax Item for such period), or (v) by any\nallowance of a refund or credit, but only after the expiration of all periods\nduring which such refund or credit may be recovered (including by way of\noffset).\n\n                  \"Foreign Buyer Subs\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Foreign Tax Threshold Amount\" shall have the meaning set\nforth in Section 6.1(a).\n\n                  \"Former DPC Assets\" means all Assets formerly owned by any of\nthe Transferred Business Companies or formerly used in the operation or conduct\nof the Transferred Business, other than the Transferred Assets and the Assets\ncurrently used in the Retained Business.\n\n                  \"FTC\" shall have the meaning set forth in Section 3.4.\n\n                                       11\n\n \n                  \"GAAP\" shall mean United States generally accepted accounting\nprinciples as in effect on the date or for the period with respect to which such\nprinciples are applied (it being understood that all concepts of materiality\nshall be measured by reference to the Transferred Business Companies and not to\nDuPont and its Affiliates).\n\n                  \"Good Manufacturing Practices\" shall mean current good\nmanufacturing practices, as set forth in 21 C.F.R. Parts 210 and 211.\n\n                  \"Governmental Antitrust Entity\" shall mean any Governmental\nAuthority with regulatory jurisdiction over enforcement of any applicable\nAntitrust Laws.\n\n                  \"Governmental Authority\" shall mean any nation or government,\nany state, municipality or other political subdivision thereof and any entity,\nbody, agency, commission or court, whether domestic, foreign or multinational,\nexercising executive, legislative, judicial, regulatory or administrative\nfunctions of or pertaining to government and any executive official thereof.\n\n                  \"Governmental Filings\" shall have the meaning set forth in\nSection 3.4.\n\n                  \"Hazardous Substance\" shall mean any substance, whether solid,\nliquid or gaseous, which is listed, defined or regulated as a \"hazardous\nsubstance\", \"hazardous waste\", \"oil\", \"pollutant\", \"toxic substance\", \"hazardous\nmaterial waste\", or \"contaminant\" or is otherwise classified as hazardous or\ntoxic, in or pursuant to any Environmental Laws; or which is or contains any\nasbestos, polychlorinated biphenyls, urea formaldehyde foam insulation,\nexplosive, nuclear, or radioactive material, or motor fuel or other petroleum\nhydrocarbons, or pesticides, insecticides, fungicides, or rodenticides, or\nbiohazardous materials or waste.\n\n                  \"HSR Act\" shall mean the Hart-Scott-Rodino Antitrust\nImprovements Act of 1976, as amended.\n\n                  \"Indebtedness\" of any Person shall mean, (a) all obligations\nof such Person for borrowed money, including with respect to deposits or\nadvances of any kind, (b) all obligations of such Person evidenced by bonds,\ndebentures, notes or similar instruments, (c) all obligations of such Person\nupon which interest charges are customarily paid, (d) all obligations of such\nPerson under conditional sale or other title retention agreements relating to\nproperty or Assets purchased by such Person, (e) all obligations of such Person\nissued or assumed as the deferred purchase price of property or services, (f)\nobligations of such Person under letters of credit, (g) all\n\n                                       12\n\n \nIndebtedness of others secured by (or for which the holder of such Indebtedness\nhas an existing right, contingent or otherwise, to be secured by) any mortgage,\nlien, pledge, or other Encumbrance on property owned or acquired by such Person,\nwhether or not the obligations secured thereby have been assumed, (h) all\nguarantees by such Person of Indebtedness of others, (i) all capital lease\nobligations of such Person, and (j) all securities or other similar instruments\nconvertible or exchangeable into any of the foregoing.\n\n                  \"Indemnified Party\" shall have the meaning set forth in\nSection 8.4(e).\n\n                  \"Indemnifying Party\" shall have the meaning set forth in\nSection 8.4(e).\n\n                  \"Indemnitee\" shall mean any party who is entitled to receive\npayment from an Indemnifying Party pursuant to Section 8.4 or Section 8.5.\n\n                  \"Independent Accounting Firm\" shall be an accounting firm\nselected in the manner set forth in Section 2.4(d).\n\n                  \"Information\" shall have the meaning set forth in Section\n5.12.\n\n                  \"Intellectual Property\" means (i) all Patents, (ii) all\nTrademarks, (iii) all Copyrights, (iv) all trade secrets and confidential\nbusiness information, whether patentable or unpatentable, including confidential\nideas, research and development, know-how, discoveries, improvements, formulas,\nmanufacturing and production processes and techniques, technical data, designs,\ndrawings, and specifications and all customer and supplier lists and (v) all\nSoftware.\n\n                  \"IP Disclosure\" shall have the meaning set forth in Section\n3.14(b).\n\n                  \"IRS\" shall mean the United States Internal Revenue Service or\nany successor agency.\n\n                  \"ISRA\" shall have the meaning set forth in Section 5.3.\n\n                  \"Knowledge\" shall mean, with respect to DuPont, the actual\nknowledge, after reasonable inquiry, of any officer of DuPont or any of its\nSubsidiaries (including the Transferred Business Companies) who has managerial\nresponsibility for any significant department or function of the Transferred\nBusiness or any of the persons listed on Schedule 1.1(g) hereto.\n\n                  \"Law\" shall mean any law, statute, ordinance, rule,\nregulation, order, writ, judgment, Code, injunction or decree of any\nGovernmental Authority.\n\n                                       13\n\n \n                  \"Leased Real Property\" means the real property leased or\nsubleased by one of the Transferred Business Companies pursuant to a Lease,\ntogether with, to the extent also leased or owned by one of the Transferred\nBusiness Companies, all buildings and other structures, facilities or\nimprovements currently or hereafter located thereon, all fixtures of one of the\nTransferred Business Companies attached or appurtenant thereto and all\neasements, licenses, rights and appurtenances relating to the foregoing.\n\n                  \"Leases\" shall mean all leases, subleases, licenses,\nconcession agreements, use and occupancy agreements or similar arrangements,\npursuant to which any Transferred Business Company has a leasehold or similar\ninterest in Assets.\n\n                  \"Lemelson Agreement\" shall have the meaning set forth in\nSection 5.8(f).\n\n                  \"Liabilities\" shall mean any and all Indebtedness, liabilities\nand obligations, whether accrued, fixed or contingent, mature or inchoate, known\nor unknown, reflected on a balance sheet or otherwise, including, but not\nlimited to, those arising under any Law or any judgment of any court of any kind\nor any award of any arbitrator of any kind, and those arising under any\nContract, commitment or undertaking.\n\n                  \"Listed Agreements\" shall have the meaning set forth in\nSection 5.11(e).\n\n                  \"LNA\" shall have the meaning set forth in Section 5.3(a).\n\n                  \"Losartan Manufacturing Agreements\" shall have the meaning set\nforth in Section 5.23.\n\n                  \"Losses\" shall mean any and all damages, losses, deficiencies,\nLiabilities, obligations, penalties, judgments, settlements, claims, payments,\nfines, interest, costs and expenses (including, without limitation, the costs\nand expenses of any and all Actions and demands, assessments, judgments,\nsettlements and compromises relating thereto and the costs and expenses of\nattorneys', accountants', consultants' and other professionals' fees and\nexpenses incurred in the investigation or defense thereof or the enforcement of\nrights hereunder), but excluding consequential damages, loss of profits and\npunitive damages (other than such damages awarded to any third party against an\nIndemnified Party). Notwithstanding the foregoing, (i) Losses shall expressly\ninclude any diminution in the fair value of any Asset (other than goodwill) and\n(ii) for purposes of Section 3.17, Losses in\n\n                                       14\n\n \nrespect of any breach thereof shall be limited to the cost of any excess\ninventory to the extent such inventory constitutes a breach of such\nrepresentation.\n\n                  \"MAA\" shall have the meaning set forth in Section 3.7(c)(ii).\n\n                  \"Master Note Agreements\" shall mean (i) the Master Note\nAgreement, dated as of August 14, 1998, between DuPont and DPC and (ii) the\nMaster Note Agreement, dated as of September 17, 1999, between DuPont and DCI.\n\n                  \"Material Adverse Effect\" shall mean any actual or prospective\nchange, event or effect that, individually or in the aggregate with all other\nsuch adverse actual or prospective changes, events and effects, (i) is\nmaterially adverse to the business, prospects, Assets, results of operations or\ncondition (financial or otherwise) of the Transferred Business Companies\n(including the Additional Transferred Assets), taken as a whole (after taking\ninto account insurance recoveries in respect thereof which remain with the\nTransferred Business Companies after the Closing), or (ii) impairs, hinders or\nadversely affects in any material respect the ability of DuPont and its\nSubsidiaries to consummate the Sale or the other material transactions\ncontemplated hereby; provided, however, that the foregoing definition shall, for\n                     --------  -------\npurposes of Section 8.4(a)(iii), but not Section 7.2(a), exclude actual or\nprospective changes, events or effects to the extent they result from the\ndevelopment of products and compounds, or additional or new therapeutic\napplications and uses of existing products and compounds, in each case by third\nparties; provided, further, that the foregoing proviso shall not apply to the\n         --------  -------\nextent that any change, event or effect is reflected in (1) the results of\noperations or financial condition of the Transferred Business Companies prior to\nthe Closing or (2) to the extent related to currently marketed products, the\nbusiness or assets of the Transferred Business Companies prior to the Closing;\nprovided, further, that any actual or prospective effects, events, or changes to\n--------  -------\nthe extent relating to or resulting from (a) any change or changes in general\neconomic conditions (including, without limitation, changes in financial or\nmarket conditions) or any change or changes applying generally to the\npharmaceuticals industry in the geographical areas in which the Transferred\nBusiness Companies operate (and not specifically to the Transferred Business\nCompanies), (b) the announcement or consummation of the transactions\ncontemplated by this Agreement (provided that the exception in this clause (b)\n                                --------\nshall not apply to the use of the term \"Material Adverse Effect\" in Section\n3.4), or (c) any change in accounting requirements or principles or the\ninterpretation thereof, shall be deemed not to constitute a \"Material Adverse\nEffect\"; provided, further, that the term \"Material Adverse Effect\" shall not\n         --------  -------  \ninclude or take into account (x) any change, effect or event relating to any of\nthe Transferred Business Companies' compounds which are not yet nominated for\ndevelopment or (y) any of the matters referred to in the IP Disclosure. For\npurposes of this definition of Material Adverse Effect, each Assumed Liability\n\n                                       15\n\n \nshall be deemed to be a Liability of, and each Additional Transferred Asset\nshall be deemed to be an Asset of, the Transferred Business Companies.\n\n                  \"Minimum Buyer Adjustment Amount\" shall mean $20 million.\n\n                  \"Minimum DuPont Adjustment Amount\" shall mean $50 million.\n\n                  \"NDA\" shall mean a New Drug Application or Product License\nApplication for any product of the Transferred Business, as appropriate,\nrequesting permission to place a drug on the market in accordance with 21 C.F.R.\nPart 314, and all supplements filed pursuant to the requirements of the FDA,\nincluding all documents, data and other information concerning such product\nwhich are necessary for FDA approval to market such product in the United\nStates.\n\n                  \"Net Assets\" shall mean the Current Assets minus the Total\nLiabilities, as of the close of business (New York time) on the Closing Date.\n\n                  \"Outside Date\" shall have the meaning set forth in Section\n8.1(b).\n\n                  \"Owned Real Property\" means the real property owned by any of\nthe Transferred Business Companies, together with all buildings and other\nstructures, facilities or improvements currently or hereafter located thereon\n(except to the extent set forth on Schedule 1.1(h)) and all fixtures attached or\nappurtenant thereto and all easements, licenses, rights and appurtenances\nrelating to the foregoing.\n\n                  \"Patents\" means all inventions (whether patentable or\nunpatentable and whether or not reduced to practice), and all U.S. and foreign\npatents, patent applications, and patent disclosures (and all rights related\nthereto, including all reissues, divisions, continuations,\ncontinuations-in-part, substitutions, extensions, or renewals of any of the\nforegoing).\n\n                  \"Payor\" shall have the meaning set forth in Section 6.3(c).\n\n                  \"PBGC\" shall have the meaning set forth in Section 3.11(c).\n\n                  \"Pending Transferred Employees\" shall have the meaning set\nforth in Section 5.1(b)(4).\n\n                  \"Permits\" shall have the meaning set forth in Section 3.7(a).\n\n                  \"Permitted Encumbrances\" shall mean:\n\n                                       16\n\n \n                  (a) Encumbrances identified on Schedule 1.1(i) or specifically\n         identified on the DPC Financial Statements (including in the notes\n         thereto);\n\n                  (b) all Encumbrances approved in writing by Buyer;\n\n                  (c) easements, rights-of-way, servitudes, permits, licenses,\n         surface leases and other rights; conditions, covenants or other\n         restrictions; and easements for streets, alleys, highways, telephone\n         lines, power lines and railways, and all matters of record (other than\n         liens securing indebtedness for borrowed money), over or in respect of\n         any Real Property, which in the case of each of the foregoing does not\n         and will not interfere in any material respect with the operation or\n         use of any of the affected Real Property as the Transferred Business is\n         currently conducted;\n\n                  (d) Encumbrances for Taxes, assessments, or other governmental\n         charges not yet due or payable or that may be subsequently paid without\n         penalty or that are being contested in good faith by appropriate\n         proceedings;\n\n                  (e) any materialman's, mechanics', repairman's, employees',\n         contractors', operators', landlord's or other similar liens arising in\n         the ordinary course of business;\n\n                  (f) all Encumbrances, Contracts, agreements, instruments,\n         obligations, defects and irregularities affecting or encumbering the\n         Assets that individually or in the aggregate are not such as to\n         materially and adversely (i) impair the marketability or market value\n         of any material Asset not constituting Real Property in the Transferred\n         Business as currently conducted or (ii) interfere with the operation or\n         use of any material Asset in the Transferred Business as currently\n         conducted; and\n\n                  (g) liens that have been placed by any developer, landlord or\n         other third party on property over which any Transferred Business\n         Company has easement rights or on any Leased Real Property and\n         subordination or similar agreements relating thereto.\n\n                  \"Person\" shall mean any individual, corporation, limited\nliability company, partnership, trust or other entity.\n\n                  \"Pharma Belgium\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Pharma Brazil\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Pharma Canada\" shall have the meaning set forth in the\nrecitals.\n\n                                       17\n\n \n                  \"Pharma France\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Pharma Germany\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Pharma Japan\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Pharma Spain\" shall have the meaning set forth in the\nrecitals.\n\n                  \"Pharma UK\" shall have the meaning set forth in the recitals.\n\n                  \"Pharmaceutical Field of Use\" shall mean all commercial\napplications, including associated discovery, research, development, and\ncommercialization activities, of new drug products or diagnostic products or\nover-the-counter drug products (including any biological products) intended for\nuse in the cure, mitigation, treatment or prevention or in vivo diagnosis of\ndisease or injury in humans, or intended to affect the structure or any function\nof the body of humans or components thereof, which if commercialized would have\nto be approved for marketing by appropriate regulatory agencies. Notwithstanding\nthe foregoing, such Pharmaceutical Field of Use shall not include products\nintended for use as functional foods, nutraceuticals, supplements (including\nvitamin or mineral supplements), animal drugs, biomaterials (whether or not\nintended for use in medical devices), or any product produced in a plant.\n\n                  \"Post-Closing Tax Period\" shall have the meaning set forth in\nSection 6.1(b).\n\n                  \"Post-Retirement Period\" shall have the meaning set forth in\nSection 5.11(n).\n\n                  \"Pre-Adjusted Closing Purchase Price\" shall have the meaning\nset forth in Section 2.2.\n\n                  \"Pre-Closing Tax Period\" shall have the meaning set forth in\nSection 6.1(a).\n\n                  \"PR Tax Grant\" shall mean the Grant of Industrial Tax\nExemption granted by the Puerto Rico Department of State-Office of Industrial\nTax Exemption to DuPont Pharma Ltd., Case No. 99-135-I-33, granted as of\nDecember 30, 1999 as amended effective December 30, 1999.\n\n                  \"Preliminary Closing Balance Sheet\" shall have the meaning set\nforth in Section 2.4(b).\n\n                                       18\n\n \n                  \"Preliminary Net Assets\" shall have the meaning set forth in\nSection 2.4(b).\n\n                  \"Preparer\" shall have the meaning set forth in Section 6.3(c).\n\n                  \"Privilege\" shall have the meaning set forth in Section\n5.16(a).\n\n                  \"Privileged Information\" shall have the meaning set forth in\nSection 5.16(a).\n\n                  \"PTO\" shall have the meaning set forth in Section 5.11(f).\n\n                  \"Purchase Price\" shall have the meaning set forth in Section\n2.2.\n\n                  \"Purchase Price Allocation Schedule\" shall have the meaning\nset forth in Section 2.5.\n\n                  \"Real Property\" means, collectively, the Leased Real Property\nand the Owned Real Property.\n\n                  \"Recipient\" shall have the meaning set forth in Section\n6.4(a).\n\n                  \"Reference Net Assets\" shall mean a net asset of $195 million.\n\n                  \"Related Agreements\" shall mean the (i) Administrative\nServices Agreement in the form to be agreed upon prior to the Closing by the\nparties in good faith with terms consistent with those attached as Exhibit A\nhereto, (ii) License and Supply Agreement in the form attached as Exhibit B\nhereto, (iii) Agency Agreement in the form attached as Exhibit C hereto, (iv)\nDrum Storage Agreement in the form attached as Exhibit D hereto, (v) Lease\nAgreements for the Leased Real Property set forth in Schedule 1.1(j) in the form\nattached as Exhibit E hereto and (vi) Site Services Agreements for the Real\nProperty set forth in Schedule 1.1(k) in the form to be agreed upon prior to the\nClosing by the parties in good faith with terms consistent with those attached\nas Exhibit F hereto.\n\n                  \"Release\" means any release, spill, emission, discharge,\nleaking, pumping, injection, deposit, disposal, dispersal, leaching or migration\ninto the indoor or outdoor Environment or into or out of any property, including\nthe movement of Hazardous Substances through or in the air, soil, surface water\nor groundwater.\n\n                  \"Representative\" shall mean, with respect to any Person, each\nof such Person's directors, officers, employees, representatives, attorneys,\naccountants, advisors and agents.\n\n                                       19\n\n \n                  \"Required Antitrust Approvals\" shall mean any required\nfilings, consents and approvals pursuant to (i) the HSR Act, (ii) the EC Merger\nRegulations and (iii) all other antitrust approvals required in order to\nconsummate the Sale.\n\n                  \"Required Filings\" shall mean any required filings pursuant to\n(i) the HSR Act, (ii) the EC Merger Regulations and (iii) all other foreign or\ndomestic filings required in order to consummate the Sale.\n\n                  \"Retained Business\" shall mean the businesses in which, and\nthe activities in which, DuPont and its Subsidiaries have been formerly or are\ncurrently engaged, but excluding the Transferred Business.\n\n                  \"Retained Employees\" shall mean all current and former\nofficers, directors and employees of DuPont and its Affiliates, other than the\nTransferred Employees.\n\n                  \"Retained Environmental Assets\" shall have the meaning set\nforth in Section 8.5(a)(ii).\n\n                  \"Retained Liabilities\" shall mean, except in each case as\notherwise expressly provided in Article VI, (a) any and all Liabilities, whether\narising before or after the Closing Date, of DuPont, its Subsidiaries (including\nwithout limitation the Transferred Business Companies) or any of their\npredecessor companies or businesses, or any of their Affiliates, Subsidiaries or\ndivisions, to the extent the same relates to, results from or arises out of the\npresent, past or future operations or conduct of the Retained Business or the\nuse or ownership of the Excluded Assets and (b) any Liabilities for Losses\nallocated to DuPont or a Retained Subsidiary, determined pursuant to Section\n5.19 or 8.5 hereof.\n\n                  \"Retained Subsidiary\" shall mean any Subsidiary of DuPont,\nother than the Transferred Business Companies.\n\n                  \"Retention Plan Liabilities\" shall mean any Liabilities\narising under (i) the Strategic Performance Incentive Plan, (ii) the 25% bonus\nincrement to the 2001 Variable Compensation Plan and (iii) the increment to the\nSales Incentive Compensation Plan announced to DPC employees on February 7,\n2001.\n\n                  \"Sale\" shall have the meaning set forth in Section 2.2 hereof.\n\n                  \"Sale Process\" shall mean all matters relating to DuPont's\nsale of the Transferred Business and all activities by or for DuPont in\nconnection therewith, including the process undertaken by DuPont with respect to\nsoliciting proposals from\n\n                                       20\n\n \nthird parties and the consideration of, and actions taken in connection with,\npossible alternatives to the transactions contemplated by this Agreement.\n\n                  \"SEC\" shall mean the Securities and Exchange Commission.\n\n                  \"Securities Act\" shall mean the Securities Act of 1933, as\namended.\n\n                  \"Seller Environmental Liabilities\" shall have the meaning set\nforth in Section 8.5(b).\n\n                  \"Sellers\" shall mean DuPont, DPI, DEMI and DDI.\n\n                  \"Shared Contracts\" shall mean the Contracts listed on Schedule\n1.1(l).\n\n                  \"Shared Contractual Liabilities\" shall mean Liabilities in\nrespect of Shared Contracts.\n\n                  \"Software\" shall mean all computer software, including all\nsoftware implementation of algorithms, models and methodologies, whether in\nobject code or source code, databases and compilations, and documentation and\nuser manuals relating to the foregoing, to the extent owned by or licensed to a\nTransferred Business Company.\n\n                  \"Straddle Period\" shall have the meaning set forth in Section\n6.2(b).\n\n                  \"Subsidiary\" of a Person shall mean a corporation,\npartnership, joint venture, association, limited liability company or other\nentity of which such Person owns, directly or indirectly, 50% or more of the\noutstanding voting stock or other ownership interests.\n\n                  \"Substituted Assumptions\" shall have the meaning set forth in\nSection 5.11(j).\n\n                  \"Tax Asset\" shall mean any Tax Item that could reduce a Tax,\nincluding a net operating loss, net capital loss, investment tax credit, foreign\ntax credit, or any other Tax credit or deduction.\n\n                  \"Tax Audit\" shall have the meaning set forth in Section 6.4(a)\nhereof.\n\n                  \"Tax Authority\" shall mean a Governmental Authority or any\nsubdivision, agency, commission or authority thereof, or any quasi-governmental\nor private body having jurisdiction over the assessment, determination,\ncollection or imposition of any Tax (including, without limitation, the IRS).\n\n                                       21\n\n \n                  \"Taxes\" shall mean (x) any charges, fees, levies, imposts,\nduties, or other assessments of a similar nature, including income, alternative\nor add-on minimum, gross receipts, profits, lease, service, service use, wage,\nwage withholding, employment, workers compensation, business occupation,\noccupation, premiums, environmental, estimated, excise, employment, sales, use,\ntransfer, license, payroll, franchise, severance, stamp, occupation, windfall\nprofits, withholding, social security, unemployment, disability, ad valorem,\nestimated, highway use, commercial rent, capital stock, paid up capital,\nrecording, registration, property, real property gains, real estate, value\nadded, business license, custom duties, or other tax or governmental fee of any\nkind whatsoever, imposed or required to be withheld by any Tax Authority\nincluding any interest, additions to tax, or penalties applicable or related\nthereto, (y) Liability for the payment of any amounts of the type described in\nclause (x) as a result of being a member of an affiliated, consolidated,\ncombined, unitary or aggregate group and (z) Liability for the payment of any\namounts as a result of being party to any Tax Sharing Agreement or as a result\nof any express or implied obligation to indemnify any other Person with respect\nto the payment of any amounts of the type described in clause (x) or (y).\n\n                  \"Tax Item\" shall mean any item of income, gain, loss,\ndeduction or credit, or other attribute that may have the effect of increasing\nor decreasing any Tax.\n\n                  \"Tax Return\" shall mean any return, report, certificate, form\nor similar statement or document (including any related or supporting\ninformation or schedule attached thereto and any information return, amended tax\nreturn, claim for refund or declaration of estimated tax) required or permitted\nto be supplied to, or filed with, a Tax Authority in connection with the\ndetermination, assessment or collection of any Tax or the administration of any\nLaws relating to any Tax.\n\n                  \"Tax Sharing Agreement\" means any existing agreement or\narrangement (whether or not written) binding any of the Transferred Business\nCompanies that provide for the allocation, apportionment, sharing or assignment\nof any Tax liability or benefit, or the transfer or assignment of income,\nrevenues, receipts, or gains for the principal purpose of determining any\nPerson's Tax liability (including any advance pricing agreement, closing\nagreement or other agreement relating to Taxes with any Taxing Authority).\n\n                  \"Third Party Claim\" shall mean any Action brought, asserted or\ncommenced by any Person, other than by a DuPont Indemnified Party or a Buyer\nIndemnified Party, against any DuPont Indemnified Party or Buyer Indemnified\nParty.\n\n                                       22\n\n \n                  \"Total Liabilities\" shall mean all Liabilities of the\nTransferred Business Companies (and all Assumed Liabilities), determined in\naccordance with GAAP applied on a basis consistent with the Audited Financial\nStatements, other than (i) accounts payable of a Transferred Business Company,\nowed by it to DuPont or any of its Subsidiaries (other than Subsidiaries which\nare Transferred Business Companies), (ii) any Retained Liabilities, (iii) any\nreserve related to the litigation described in Schedule 1.1(m), (iv) any\nLiabilities relating to Taxes, (v) any non-current employee related Liabilities,\nany Retention Plan Liabilities and any Liabilities under the Listed Agreements\nand (vi) any accruals for Liabilities under the Related Agreements.\n\n                  \"Trademarks\" means all registered and unregistered service\nmarks, trademarks, trade names, brand names, certification marks, corporate\nnames, trade dress, Internet domain names, identifying symbols, logos, emblems,\nsigns or insignia, including all goodwill associated therewith, and all\napplications, registrations, and renewals in connection therewith.\n\n                  \"Transfer Taxes\" shall have the meaning set forth in Section\n6.5.\n\n                  \"Transferred Assets\" shall mean (i) any and all Assets of the\nTransferred Business Companies, but excluding the Excluded Assets and the Assets\nthat the Related Agreements expressly contemplate being retained by DuPont and\nthe Retained Subsidiaries, (ii) the Transferred Equipment, (iii) all of DuPont's\nrights under the Agreements set forth on Schedule 5.20(a)(ii)(A), (iv) all of\nDuPont's rights related to the Intellectual Property set forth on Schedule\n5.20(a)(ii)(B), and (v) any rights to be licensed to Buyer pursuant to Section\n5.8 (subject to the terms of the license agreements to be entered into in\nconnection therewith).\n\n                  \"Transferred Business\" shall mean the business of researching,\ndeveloping, manufacturing, distributing, marketing and selling human\npharmaceutical and radiopharmaceutical products and related product lines as\npresently conducted by DuPont and its Subsidiaries (including the Transferred\nBusiness Companies), but excluding, in any event, (i) the business and\nactivities currently or formerly conducted by DuPont and its Subsidiaries to the\nextent related to the Excluded Assets and (ii) the business, currently or\nformerly conducted by DuPont and its Subsidiaries, of researching, developing,\ndistributing, marketing and selling human pharmaceutical and radiopharmaceutical\nproducts that incorporate one or more of the Patents described in clause (ii),\n(iii) or (vii) of the definition of Excluded Assets and any related products.\n\n                  \"Transferred Business Companies\" shall mean DPC, DPL, DCI,\nDPRL and their respective Subsidiaries.\n\n                                       23\n\n \n                  \"Transferred Business Plans\" shall have the meaning set forth\nin Section 3.11(a).\n\n                  \"Transferred Business Title IV Plan\" shall have the same\nmeaning as set forth in Section 3.11(d).\n\n                  \"Transferred Contracts\" shall have the meaning set forth in\nSection 3.18(b).\n\n                  \"Transferred Employees\" means (x) those persons who are\nemployed as officers or employees of the Transferred Business Companies\nimmediately prior to or effective as of the Closing and (y) all former officers\nand employees of the Transferred Business Companies; provided that, in the event\n                                                     --------\nany person shall have been employed by any of the Transferred Business\nCompanies, as well as in the Retained Business, such person shall be considered\na Transferred Employee if (i) as of the Closing Date such person's primary\nemployment shall be with a Transferred Business Company or (ii) such person's\nemployment with the Transferred Business Company terminated later than such\nperson's employment with the Retained Business.\n\n                  \"Transferred Environmental Assets\" shall have the meaning set\nforth in Section 8.5(a)(i).\n\n                  \"Transferred Equipment\" shall mean the Equipment set forth on\nSchedule 1.1(n).\n\n                  \"Transferred Pension Plans\" shall have the meaning set forth\nin Section 3.11(s).\n\n                  \"Treasury Regulations\" shall mean the final, temporary and\nproposed regulations promulgated by the United States Treasury Department under\nthe Code.\n\n                  \"Unaudited Interim Financial Statements\" shall have the\nmeaning set forth in Section 5.24(b).\n\n                  \"Underfunding\" shall have the meaning set forth in Section\n5.11(j).\n\n                  \"WARN Act\" shall have the meaning set forth in Section 5.18.\n\n                  \"Wholly-Owned Subsidiary\" shall mean, with respect to any\nPerson, any Subsidiary of such Person if all of the common stock or other\nsimilar equity ownership interests (but not including non-participating\npreferred stock) in such Subsidiary (other than any director's qualifying shares\nor investments by foreign\n\n                                       24\n\n \nnationals mandated by applicable Law) is owned directly or indirectly by such\nPerson.\n\n\n                                   ARTICLE II\n                                   ----------\n\n                              THE PURCHASE AND SALE\n                              ---------------------\n\n                  2.1      Purchase and Sale.\n                  --------------------------\n\n                           (a) Upon the terms and subject to the conditions of\nthis Agreement, on the Closing Date:\n\n                               (i)    immediately prior to any of the\n         transactions described in clauses (ii) through (vi) of this Section\n         2.1(a), (A) DPC shall sell, convey, assign, transfer and deliver to a\n         Foreign Buyer Sub, and Buyer shall cause such Foreign Buyer Sub to,\n         purchase, acquire and accept from DPC, all of the shares of capital\n         stock of Pharma Belgium and DPC shall immediately distribute the\n         proceeds of such sale to DuPont and DPI, (B) DPC shall sell, convey,\n         assign, transfer and deliver to a Foreign Buyer Sub, and Buyer shall\n         cause such Foreign Buyer Sub to, purchase, acquire and accept from DPC,\n         all of the shares of capital stock of Pharma UK and DPC shall\n         immediately distribute the proceeds of such sale to DuPont and DPI, (C)\n         DPC (or DuPont if DPC has distributed Pharma Canada to DuPont prior to\n         the Closing) shall sell, convey, assign, transfer and deliver to a\n         Foreign Buyer Sub, and Buyer shall cause such Foreign Buyer Sub to,\n         purchase, acquire and accept from DPC (or DuPont if DPC has distributed\n         Pharma Canada to DuPont prior to the Closing), all of the shares of\n         capital stock of Pharma Canada and DPC shall immediately distribute the\n         proceeds of such sale to DuPont and DPI, (D) DPC shall sell, convey,\n         assign, transfer and deliver to a Foreign Buyer Sub, and Buyer shall\n         cause such Foreign Buyer Sub to, purchase, acquire and accept from DPC,\n         all of the shares of capital stock of Pharma France and DPC shall\n         immediately distribute the proceeds of such sale to DuPont and DPI, (E)\n         DPC shall sell, convey, assign, transfer and deliver to a Foreign Buyer\n         Sub, and Buyer shall cause such Foreign Buyer Sub to, purchase, acquire\n         and accept from DPC, all of the shares of capital stock of Pharma Italy\n         and DPC shall immediately distribute the proceeds of such sale to\n         DuPont and DPI, (F) DPC shall sell, convey, assign, transfer and\n         deliver to a Foreign Buyer Sub, and Buyer\n\n                                       25\n\n \n         shall cause such Foreign Buyer Sub to, purchase, acquire and accept\n         from DPC, all of the shares of capital stock of Pharma Germany and DPC\n         shall immediately distribute the proceeds of such sale to DuPont and\n         DPI, (G) DPC shall sell, convey, assign, transfer and deliver to a\n         Foreign Buyer Sub, and Buyer shall cause such Foreign Buyer Sub to,\n         purchase, acquire and accept from DPC, all of the shares of capital\n         stock of Pharma Japan and DPC shall immediately distribute the proceeds\n         of such sale to DuPont and DPI, (H) DPC shall sell, convey, assign,\n         transfer and deliver to a Foreign Buyer Sub, and Buyer shall cause such\n         Foreign Buyer Sub to, purchase, acquire and accept from DPC, all of the\n         shares of capital stock of Pharma Brazil and DPC shall immediately\n         distribute the proceeds of such sale to DuPont and DPI, and (I) DPC\n         shall sell, convey, assign, transfer and deliver to a Foreign Buyer\n         Sub, and Buyer shall cause such Foreign Buyer Sub to, purchase, acquire\n         and accept from DPC, all of the shares of capital stock of Pharma Spain\n         and DPC shall immediately distribute the proceeds of such sale to\n         DuPont and DPI (excluding, in the case of each of the foregoing clauses\n         (A) through (I), any director's qualifying shares or investments by\n         foreign nationals mandated by applicable Law);\n\n                               (ii)   DuPont shall sell, convey, assign,\n         transfer and deliver to Buyer Sub 1, and Buyer shall cause Buyer Sub 1\n         to, purchase, acquire and accept from DuPont, all of (A) the DPC\n         Interests held by DuPont, (B) the DCI Shares and (C) DuPont's right,\n         title and interest in and to the Transferred Equipment;\n\n                               (iii)  DPI shall sell, convey, assign, transfer\n         and deliver to Buyer Sub 2, and Buyer shall cause Buyer Sub 2 to,\n         purchase, acquire and accept from DPI, immediately following the\n         transfer referred to in clause (ii)(A) above, all of the DPC Interests\n         held by DPI;\n\n                               (iv)   DPI shall sell, convey, assign, transfer\n         and deliver to Buyer Sub 1, and Buyer shall cause Buyer Sub 1 to,\n         purchase, acquire and accept from DPI, all of the DPRL Shares;\n\n                               (v)    DEMI and DDI shall sell, convey, assign,\n         transfer and deliver to Buyer Sub 1, and Buyer shall purchase, acquire\n         and accept from DEMI and DDI, all of the DPL Shares, in each case free\n         and clear of all Encumbrances (other than, in the case of the\n         Transferred Equipment, Permitted Encumbrances); and\n\n                                      26\n\n \n                               (vi)   Buyer Sub 1 shall assume the Assumed\n         Liabilities (other than Assumed Liabilities which are solely\n         Liabilities of a Transferred Business Company).\n\n                           (b) Prior to the Closing, DuPont shall, and shall\ncause its Subsidiaries to, remove all Excluded Assets from the Transferred\nBusiness Companies, other than at DuPont's election, and subject to the\nprovisions of Section 2.4(f), all or a portion of the Cash of the Transferred\nBusiness Companies (in which case any Cash remaining in the Transferred Business\nCompanies at the Closing shall not be treated as an Excluded Asset for purposes\nof this Agreement). The Excluded Assets shall be excluded from the Transferred\nBusiness Companies and shall not be included in deriving the Estimated Closing\nBalance Sheet, the Preliminary Closing Balance Sheet or the Final Closing\nBalance Sheet and shall not be sold, conveyed or delivered to Buyer or its\nSubsidiaries.\n\n                  2.2 Purchase Price. The aggregate cash purchase price to be\n                      --------------\npaid by Buyer, Buyer Sub 1, Buyer Sub 2 and the Foreign Buyer Subs for the sale\nof the Controlled Foreign Subsidiary Shares, the DPC Interests, the DCI Shares,\nthe DPRL Shares, the DPL Shares and the Additional Transferred Assets (the\n\"Sale\") shall consist of $7,800,000,000 in cash (the \"Pre-Adjusted Closing\n ----                                                 --------------------\nPurchase Price\"), subject to adjustment pursuant to Section 2.4(a) (as so\n--------------\nadjusted pursuant to Section 2.4(a), the \"Closing Purchase Price\"), subject to\n                                          ----------------------\nfurther adjustment pursuant to Sections 2.4(e) and (f) (as so further adjusted\npursuant to Sections 2.4(e) and (f), the \"Purchase Price\").\n                                          --------------\n\n                  2.3      The Closing.\n                  --------------------\n\n                           (a) The closing of the Sale (the \"Closing\") shall,\n                                                             -------\nsubject to the satisfaction or waiver of the conditions set forth in Article\nVII, be held at the offices of Cravath, Swaine &amp; Moore in New York, New York (or\nsuch other place or places as the parties may mutually agree, including, without\nlimitation, with respect to sales of the Controlled Foreign Subsidiary Shares,\nsuch places outside of the United States as the parties may mutually agree), as\nsoon as practicable after the date of this Agreement upon (A) the second\nBusiness Day after all the conditions precedent set forth in Article VII are\nsatisfied or waived or (B) such other time as the parties may mutually agree;\nprovided that the Closing Date shall not be extended beyond the date on which\n--------\nthis Agreement terminates pursuant to Section 8.1(b) hereof. The date on which\nthe Closing actually occurs is hereinafter referred to as the \"Closing Date.\"\n                                                               ------------\n\n                                      27\n\n \n                           (b) On the Closing Date, DuPont shall deliver or\ncause to be delivered to Buyer the following:\n\n                                    (A) Certificates representing the DCI\n                  Shares, the DPRL Shares and the DPL Shares, each duly endorsed\n                  and in form for transfer to Buyer Sub 1.\n\n                                    (B) Certificates representing the Controlled\n                  Foreign Subsidiary Shares, each duly endorsed and in form for\n                  transfer to the applicable Foreign Buyer Sub.\n\n                                    (C) A duly executed instrument of transfer\n                  of the DPC Interests being assigned and transferred to Buyer\n                  Sub 1 and Buyer Sub 2 in a form to be reasonably agreed upon\n                  by the parties.\n\n                                    (D) A duly executed bill of sale and\n                  assignment and such other instruments or documents as may be\n                  reasonably requested by Buyer to evidence its purchase of the\n                  Transferred Equipment hereunder or otherwise necessary to\n                  provide for the transactions contemplated hereby.\n\n                                    (E) The stock books, stock ledgers, minute\n                  books and corporate seals of the Transferred Business\n                  Companies and the Controlled Foreign Subsidiaries as of the\n                  Closing Date; provided that any of the foregoing items shall\n                                --------\n                  be deemed to have been delivered pursuant to this Section\n                  2.3(b)(E) if such item has been delivered to or is otherwise\n                  certified to Buyer to be located at any of the Transferred\n                  Business Companies as of the Closing Date or any of their\n                  respective offices.\n\n                                    (F) The Related Agreements, duly executed by\n                  DuPont or its Subsidiaries (to the extent that each is a party\n                  thereto), to the extent not executed and delivered to Buyer\n                  prior to the Closing; a duly executed instrument of assumption\n                  of all Retained Liabilities, to the extent such Retained\n                  Liabilities are Liabilities of any Transferred Business\n                  Company on the Closing Date, being assumed by DuPont in a form\n                  to be reasonably agreed upon by the parties; and all other\n                  documents required to be delivered by DuPont or its\n                  Subsidiaries on or prior to the Closing Date pursuant to this\n                  Agreement or otherwise reasonably required by Buyer in\n                  connection herewith.\n\n                                      28\n\n \n                           (c) On the Closing Date, Buyer, Buyer Sub 1, Buyer\nSub 2 and the Foreign Buyer Subs shall deliver or cause to be delivered to\nDuPont or its designee the following:\n\n                                    (A) the Closing Purchase Price in\n                  immediately available funds by wire transfer to an account or\n                  accounts at such bank or banks specified by DuPont at least\n                  two Business Days prior to the Closing Date (such amount to be\n                  exclusive of any amounts required to be paid at the Closing\n                  pursuant to the Related Agreements).\n\n                                    (B) A duly executed instrument acknowledging\n                  acceptance of the DPC Interests being transferred to Buyer Sub\n                  1 and Buyer Sub 2 and the admission of Buyer Sub 1 and Buyer\n                  Sub 2 to DPC as partners in a form to be reasonably agreed\n                  upon by the parties.\n\n                                    (C) A duly executed instrument of assumption\n                  of the Assumed Liabilities being assumed by Buyer Sub 1 in a\n                  form to be reasonably agreed upon by the parties.\n\n                                    (D) The Related Agreements, duly executed by\n                  Buyer (to the extent that it is a party thereto), to the\n                  extent not executed and delivered to DuPont prior to the\n                  Closing; and all other documents required to be delivered by\n                  Buyer on or prior to the Closing Date pursuant to this\n                  Agreement or otherwise reasonably required by DuPont in\n                  connection herewith.\n\n                  2.4      Purchase Price Adjustment.\n                  ----------------------------------\n\n                           (a) No later than three (3) Business Days prior to\nthe Closing Date, DuPont shall deliver to Buyer an unaudited combined balance\nsheet of the Transferred Business Companies, prepared by DuPont in accordance\nwith GAAP applied on a basis consistent with the Audited Financial Statements as\nof the close of business (New York time) on the day specified in Schedule 3.5(a)\n(which is based on the date on which the Closing occurs) (the \"Estimated Closing\n                                                               -----------------\nBalance Sheet\"), which shall be accompanied by (i) a calculation by DuPont of\n-------------\nNet Assets based on the Estimated Closing Balance Sheet and in accordance with\nGAAP applied on a basis consistent with the Audited Financial Statements (the\n\"Estimated Net Assets\") and (ii) a certificate of the Chief Financial Officer of\n --------------------\nDuPont stating that the Estimated Closing Balance Sheet and Estimated Net Assets\nhave been prepared in accordance with this Section 2.4(a). The Pre-Adjusted\nClosing Purchase Price shall\n\n                                      29\n\n \nbe (i) increased, if the Estimated Net Assets exceed the Reference Net Assets,\nby an amount equal to the amount of such excess, or (ii) decreased, if the\nReference Net Assets exceed the Estimated Net Assets, by an amount equal to the\namount of such excess (the \"Estimated Closing Adjustment\"); provided, however,\n                            ----------------------------    --------  -------\nthat if the Reference Net Assets exceed the Estimated Net Assets by an amount\nthat is greater than zero ($0) and less than the Minimum Buyer Adjustment\nAmount, then the amount of the Estimated Closing Adjustment shall be zero ($0)\nand the Estimated Net Assets shall be deemed to be equal to the Reference Net\nAssets; provided, further that if the Estimated Net Assets exceed the Reference\n        --------\nNet Assets by an amount that is greater than zero ($0) and less than the Minimum\nDuPont Adjustment Amount, then the amount of the Estimated Closing Adjustment\nshall be zero ($0) and the Estimated Net Assets shall be deemed to be equal to\nthe Reference Net Assets. The Pre-Adjusted Closing Price, as so increased or\ndecreased, as the case may be, is hereinafter referred to as the Closing\nPurchase Price.\n\n                           (b) As promptly as practicable following the Closing\nDate but in no event later than seventy-five days (75) thereafter, Buyer shall\ndeliver to DuPont an unaudited combined balance sheet of the Transferred\nBusiness Companies, prepared by Buyer in accordance with GAAP applied on a basis\nconsistent with the Audited Financial Statements, as of the close of business\n(New York time) on the Closing Date (the \"Preliminary Closing Balance Sheet\"),\n                                          ---------------------------------\nwhich shall be accompanied by (i) a calculation by Buyer of Net Assets based on\nthe Preliminary Closing Balance Sheet (the \"Preliminary Net Assets\") and (ii) a\n                                            ----------------------\ncertificate of the Chief Financial Officer of Buyer stating that, in his view,\nthe Preliminary Closing Balance Sheet and Preliminary Net Assets have been\nprepared in accordance with this Section 2.4(b).\n\n                           (c) DuPont shall have thirty (30) days following\ndelivery to DuPont of the Preliminary Closing Balance Sheet and the calculation\nof Preliminary Net Assets during which to review the Preliminary Closing Balance\nSheet and such calculations, and to notify Buyer if it believes that (i) the\nPreliminary Closing Balance Sheet was not prepared in accordance with Section\n2.4(b) or contains mathematical error or (ii) that the calculation of\nPreliminary Net Assets was not in accordance with the definition of Net Assets\ncontained herein, not calculated in accordance with Section 2.4(b) or contains\nmathematical error, and, in each case, specifying the reasons therefor in\nreasonable detail (in which case such notification shall be accompanied by a\ncertificate of the Chief Financial Officer of DuPont stating that he concurs\nwith DuPont's position set forth in such notice). In connection with such\nreview, Buyer shall provide (or, in the case of access to PricewaterhouseCoopers\nLLP and its work papers, schedules, memoranda and other documents, shall use its\nreasonable best efforts to provide) DuPont and its Representatives reasonable\naccess, during normal business hours and upon reasonable notice, to all work\npapers,\n\n                                      30\n\n \nschedules, memoranda and other documents prepared by Buyer or its\nRepresentatives in connection with its preparation of the Preliminary Closing\nBalance Sheet and\/or its calculation of Preliminary Net Assets (and shall be\nentitled to copies thereof) and to finance personnel of Buyer and its\nSubsidiaries and any other information which DuPont reasonably requests, and\nBuyer shall, and shall cause its Subsidiaries to cooperate reasonably with\nDuPont and its Representatives in connection therewith. If (A) DuPont fails to\nnotify Buyer of any such dispute within such 30-day period, or (B) the aggregate\namount of the items disputed by DuPont is such that, were DuPont's position\nadopted, it would not result in an amount payable pursuant to Section 2.4(e)\nthat is at least $5 million greater or less than would be the case if the\nPreliminary Closing Balance Sheet were deemed final, the Preliminary Closing\nBalance Sheet and the calculation of Preliminary Net Assets shall be deemed\nfinal. In the event that DuPont shall so notify Buyer of any dispute, DuPont and\nBuyer shall cooperate in good faith to resolve such dispute as promptly as\npossible, and upon such resolution, if any, any adjustments to the Preliminary\nClosing Balance Sheet and Preliminary Net Assets shall be made in accordance\nwith the agreement of Buyer and DuPont.\n\n                           (d) If Buyer and DuPont are unable to resolve any\nsuch dispute within thirty (30) days (or such longer period as Buyer and DuPont\nshall mutually agree in writing) of DuPont's delivery of such notice, such\ndispute shall be resolved by the Independent Accounting Firm, and such\ndetermination shall be final and binding on the parties; provided, however, that\n                                                         --------  -------\n(i) the calculation of Final Net Assets shall be based on the Final Closing\nBalance Sheet and the definitions contained herein and (ii) unless the\nIndependent Accounting Firm determines that the Preliminary Closing Balance\nSheet was not prepared in accordance with Section 2.4(b) or contains\nmathematical error, the Preliminary Closing Balance Sheet shall be the Final\nClosing Balance Sheet. DuPont and Buyer shall mutually select the Independent\nAccounting Firm, but if DuPont and Buyer cannot mutually agree on the identity\nof the Independent Accounting Firm, then DuPont and Buyer shall each submit to\nthe other party's independent auditor the name of a national accounting firm\nother than PricewaterhouseCoopers LLP, and the Independent Accounting Firm shall\nbe selected by lot from these two firms by the independent auditors of the two\nparties. (If no national accounting firm shall be willing to serve as the\nIndependent Accounting Firm, then a nationally recognized (in the United States)\nexpert in public accounting shall be selected to serve as such, such selection\nto be according to the above procedures.) Any expenses relating to the\nengagement of the Independent Accounting Firm in respect of its services\npursuant to this Section 2.4(d)) shall be shared equally by DuPont and Buyer.\nThe Independent Accounting Firm shall be instructed to use every reasonable\neffort to perform its services within 30 days of submission of the Preliminary\nClosing Balance Sheet to it and, in any case, as promptly as practicable after\nsuch submission. The calculation of Final Net Assets shall then be prepared by\nBuyer in accordance with the written determination of the\n\n                                      31\n\n \nIndependent Accounting Firm, and delivered to DuPont. DuPont and Buyer agree\nthat judgment may be entered upon the written determination of the Independent\nAccounting Firm in any court having jurisdiction over the party against which\nsuch determination is to be enforced.\n\n                           (e) The Purchase Price shall, subject to any increase\npursuant to Section 2.4(f), be equal to the Closing Purchase Price, (i) plus, if\nthe Final Net Assets exceed the Estimated Net Assets, then the amount of such\nexcess, or (ii) minus, if the Estimated Net Assets exceed the Final Net Assets,\nthen the amount of such excess (either such excess amount, the \"Final Closing\n                                                                -------------\nAdjustment\"). Buyer or DuPont, as the case may be, shall, within ten (10)\n----------\nBusiness Days after the final determination of the Final Closing Balance Sheet\npursuant to Sections 2.4(c) and (d) hereof, make payment to the other by wire\ntransfer in immediately available funds of the amount of the Final Closing\nAdjustment as determined pursuant to the preceding sentence, together with\ninterest thereon from the Closing Date to the date of payment at a floating rate\nequal to the U.S. dollar prime rate per annum, as quoted by J.P. Morgan Chase &amp; Co., from time to time during such period. Such interest shall be calculated\nbased on a year of 365 days and the number of days elapsed since the Closing\nDate.\n\n                           (f) The parties acknowledge that DuPont intends to\ncause all Cash held by the Transferred Business Companies prior to the Closing\nto be transferred to DuPont or one or more of the Retained Subsidiaries and that\nDuPont shall use reasonable best efforts to effect such transfers, provided,\n                                                                   --------\nhowever, that DuPont shall have no obligation to transfer Cash held by Pharma\n-------\nCanada, but may transfer such Cash at its sole discretion. To the extent that\nDuPont does not transfer some or all of the Cash of Pharma Canada prior to the\nClosing, Buyer and DuPont agree that (i) Buyer will use reasonable best efforts\nto effect the transfer of Cash from Pharma Canada to Buyer or any Affiliate of\nBuyer at the lowest possible withholding tax cost to Buyer, and (ii) DuPont\nshall reimburse Buyer or any Affiliate of Buyer for 50% of any Canada\nwithholding Taxes actually incurred by Buyer (calculated at the actual\napplicable withholding tax rate, but not to exceed 5% for purposes of this\ncalculation) upon such transfer from Pharma Canada. In addition, to the extent\nthere is a legal impediment that prevents Cash held by Pharma Canada at the time\nof the Closing from being distributed by Pharma Canada to Buyer or any Affiliate\nof Buyer within 30 days of the Closing, DuPont shall reimburse Buyer for 50% of\nthe costs to Buyer of the delay in distributing such Cash (including without\nlimitation reasonable time value of money and cost of currency hedges to the\nextent applicable), calculated up to the earlier of the date on which the\nimpediment to distribution no longer exists or December 31, 2002, and Buyer\nshall use reasonable best efforts to minimize the costs resulting from the delay\nin distributing such Cash. Any payments by DuPont under the preceding two\nsentences of this Section 2.4(f) shall be made within 10 days\n\n                                      32\n\n \nof the receipt by DuPont of documentation from Buyer providing reasonable\nevidence of the withholding taxes and or costs incurred by Buyer.\nNotwithstanding any other provision of this Agreement, to the extent that any\nCash held by the Transferred Business Companies is not transferred to DuPont or\na Retained Subsidiary prior to the Closing, there shall be an upward adjustment\nto the Closing Purchase Price in an amount equal to the amount of such\nundistributed Cash. The amount of such adjustment shall be determined in\naccordance with the Preliminary Closing Balance Sheet and, if disputed, the\nFinal Closing Balance Sheet, on the same time frame and in a manner analogous to\nthat applicable to the calculation of Preliminary Net Assets and Final Net\nAssets, except that there shall be no minimum amount of such undistributed Cash\nrequired as a precondition to making any such adjustment.\n\n                  2.5 Allocation of Purchase Price. The Closing Purchase Price\n                      ----------------------------\nshall be allocated among the DPC Interests, DCI Shares, DPRL Shares, the DPL\nShares, the Controlled Foreign Subsidiary Shares and the Transferred Equipment\nand the Transferred Assets to the extent required by reason of Section 754,\nSection 338(g) and\/or Section 338(h)(10) elections having been made as agreed by\nDuPont and Buyer (the \"Purchase Price Allocation Schedule\"), in accordance with\n                       ----------------------------------\nSection 1060 of the Internal Revenue Code and the Treasury Regulations\npromulgated thereunder and in accordance with local law. The Purchase Price\nAllocation Schedule shall be amended, as appropriate, as agreed by DuPont and\nBuyer from time to time to take into account purchase price adjustments pursuant\nto Section 2.4 hereof, Section 8.4(d) hereof and otherwise. DuPont and Buyer\nhereby agree that prior to Closing, they will agree to purchase price\nallocations to each of the Controlled Foreign Subsidiaries, after taking into\naccount additional due diligence, Cash balances, estimated net income from April\n30, 2001 through the Closing, and other relevant factors, provided that such\nallocations shall be within the ranges indicated on Schedule 2.5 hereto (unless\nDuPont and Buyer shall mutually agree otherwise) and that such agreed upon\nallocations shall be included in the Purchase Price Allocation Schedule. The\nparties shall (i) timely file all Tax Returns (including Internal Revenue\nService Form 8594 and any supplemental filings to reflect any revisions to the\nPurchase Price Allocation Schedule) required to be filed in connection with the\nPurchase Price Allocation Schedule, as amended, (ii) be bound by the Purchase\nPrice Allocation Schedule and take no position inconsistent with the Purchase\nPrice Allocation Schedule, as amended, for all Tax purposes (including, without\nlimitation, in any audit or judicial or administrative proceeding or otherwise),\nand (iii) prepare and file all Tax Returns and determine all Taxes in a manner\nconsistent with the Purchase Price Allocation Schedule, as amended. Each of the\nparties shall notify the other if it receives notice that any Tax Authority\nproposes any allocation different from that set forth on the Purchase Price\nAllocation Schedule, as amended.\n\n                                      33\n\n \n                                  ARTICLE III\n                                  -----------\n\n                   REPRESENTATIONS AND WARRANTIES OF DUPONT\n                   ----------------------------------------\n\n                  DuPont hereby represents and warrants to Buyer that, except as\nset forth in the Schedules to this Agreement delivered by DuPont with reference\nto the specific Section of this Agreement so qualified:\n\n                  3.1 Organization, Etc. Each of the Sellers and the Transferred\n                      ------------------\nBusiness Companies is a corporation (or, in the case of DPC, a general\npartnership) duly organized, validly existing and in good standing under the\nlaws of the jurisdiction of its organization (in the case of good standing to\nthe extent such concept is recognized in such jurisdiction). Each of the\nTransferred Business Companies has all requisite power and authority to conduct\nits business as it is now being conducted and to own, lease and operate its\nproperty and assets. Each of the Transferred Business Companies is qualified or\nlicensed to do business in each jurisdiction in which ownership of property or\nthe conduct of its business requires such qualification or license, except where\nthe failure to be so qualified or licensed would not reasonably be expected to\nhave a Material Adverse Effect. True and complete copies of (a) the certificate\nof incorporation and by-laws of each of the Sellers and the Transferred Business\nCompanies (other than DPC) and (b) the partnership agreement of DPC, each as\npresently in effect, have been made available to Buyer.\n\n                  3.2 Authority Relative to this Agreement, Etc. Each of the\n                      ------------------------------------------\nSellers and DPC has all requisite corporate or partnership power and authority\nto execute and deliver this Agreement and any other Related Agreements to which\nit is a party and to consummate the transactions contemplated hereby and\nthereby. The execution and delivery of this Agreement and the Related Agreements\nand the consummation of the transactions contemplated hereby and thereby have\nbeen duly authorized by the Board of Directors of each of the Sellers and DPC to\nthe extent party thereto. No other corporate or partnership proceedings on the\npart of DuPont (and no action on the part of stockholders of DuPont) or any of\nits Subsidiaries are necessary to authorize the execution, delivery and\nperformance in accordance with their respective terms of this Agreement, the\nRelated Agreements and the consummation of the transactions contemplated hereby\nand thereby. This Agreement and the Related Agreements, and the consummation of\nthe transactions contemplated hereby and thereby, has been (or in the case of\nthe Related Agreements will be) duly and validly executed and delivered by each\nof the Sellers and DPC to the extent party thereto and, assuming this Agreement\nand such other agreements have been duly authorized, executed and delivered by\nBuyer, Buyer Sub 1, Buyer Sub 2 or a Foreign Buyer Sub, as applicable, each of\nthis Agreement and such other agreements constitutes (or in the case of the\nRelated Agreements will constitute) a legal, valid and binding agreement\n\n                                      34\n\n \nof the Sellers and DPC to the extent party thereto, enforceable against each\nsuch company in accordance with its terms.\n\n                  3.3 Capitalization. (a) All of the authorized partnership\n                      --------------\ninterests of DPC are owned 50% by DuPont and 50% by DPI. All of the DPC\nInterests are duly authorized and validly issued. The authorized capital stock\nof DCI consists of 2,000 shares of common stock, of which 1,000 shares of common\nstock are issued and outstanding. The authorized capital stock of DPRL consists\nof 40,000,000 shares of common stock, of which 13,489,604 shares of common stock\nare issued and outstanding. The authorized capital stock of DPL consists of\n12,000 shares of common stock, of which 12,000 shares of common stock are issued\nand outstanding. Except as described in the prior four sentences, no partnership\ninterests, shares of capital stock or shares of preferred stock or other\nsecurities of DPC, DCI, DPRL or DPL are issued and outstanding. All the issued\nand outstanding DPC Interests, DCI Shares, DPRL Shares and DPL Shares are duly\nauthorized, validly issued, fully paid and non-assessable and free of any\nEncumbrances in respect thereto. Schedule 3.3 sets forth the name of each\nTransferred Business Company, its jurisdiction of organization, the amount of\nits authorized capital stock (or partnership interests), the amount of its\noutstanding capital stock (or partnership interests) and the record owners of\nsuch outstanding stock (or partnership interests). There are no outstanding (i)\nsecurities convertible into or exchangeable for the capital stock of, or equity\nor partnership interests in, any of the Transferred Business Companies, (ii)\noptions, warrants or other rights to purchase or subscribe for capital stock of,\nor equity or partnership interests in, any of the Transferred Business\nCompanies, (iii) bonds, debentures, notes or other indebtedness having the right\nto vote on matters involving the Transferred Business Companies, or (iv)\nContracts or understandings of any kind, other than this Agreement, (A) relating\nto the sale, issuance, transfer, repurchase, redemption, reacquisition or voting\nof any capital stock of, or equity or partnership interests in, any of the\nTransferred Business Companies, or of any such convertible or exchangeable\nsecurities or any such options, warrants or rights, or (B) which provides the\neconomic equivalent of an equity ownership interest in a Transferred Business\nCompany pursuant to which, in any of the foregoing cases, any of the Transferred\nBusiness Companies is subject or bound.\n\n                           (b) Upon consummation of the Sale, Buyer Sub 1, Buyer\nSub 2 and the Foreign Buyer Subs, as the case may be, will own all of the issued\nand outstanding DPC Interests, DCI Shares, DPRL Shares, DPL Shares and Foreign\nControlled Subsidiary Shares, free of any Encumbrances, other than Encumbrances\ncreated by Buyer, Buyer Sub 1, Buyer Sub 2 or any of the Foreign Buyer Subs.\n\n                           (c) Except for (i) their Subsidiaries set forth on\nSchedule 3.3(c) and (ii) the Excluded Assets, the Transferred Business Companies\ndo not\n\n                                      35\n\n \ndirectly or indirectly own any capital stock of or other equity interests in any\ncorporation, partnership or other Person and none of the Transferred Business\nCompanies is a member of or participant in any partnership, joint venture or\nsimilar Person. The Transferred Business Companies have good and valid title to\nthe capital stock of or other equity interests in the entities listed on\nSchedule 3.3(c), in the amounts set forth on such Schedule, free and clear of\nany Encumbrances.\n\n                  3.4 Consents and Approvals; No Violations. Neither the\n                      -------------------------------------\nexecution, delivery and performance of this Agreement by the Sellers and DPC nor\nthe execution, delivery and performance of the Related Agreements by the Sellers\nand DPC party thereto, nor the consummation of the transactions contemplated\nhereby and thereby by the Sellers and DPC, will (a) violate any provision of the\ncertificate of incorporation, by-laws or partnership agreement (or other\ncomparable governing documents) of the Sellers or any Transferred Business\nCompany, (b) require any consent, waiver, approval, license, authorization or\npermit of, or filing with or notification to (collectively, the \"Governmental\n                                                                 ------------\nFilings\"), any Governmental Authority except for (i) filings with the Federal\n-------\nTrade Commission (the \"FTC\") and with the Antitrust Division of the United\n                       ---\nStates Department of Justice (the \"DOJ\") pursuant to the HSR Act, and the rules\n                                   ---\nand regulations promulgated thereunder, (ii) requirements of the EC Merger\nRegulations or any other foreign Antitrust Laws and Laws regulating exchange or\ncurrency controls and (iii) Governmental Filings that are not material, (c)\nconflict with or give rise to any Encumbrance or material preferential purchase\nrights, material rights of first refusal or similar material rights of any third\nparty or result in a violation or breach of, or constitute (with or without\nnotice or lapse of time or both) a default (or give rise to any right of\ntermination, cancellation or acceleration or any obligation of any of the\nSellers or any Transferred Business Company) or a loss of any material benefit\nto which any of the Sellers or any Transferred Business Company is entitled\nunder, any of the terms, conditions or provisions of any Indebtedness,\ngovernment registration, Contract, Plan, permit or other instrument or\nobligation, in each case which is material, to which any of the Sellers or any\nTransferred Business Company is a party or by which any of the Sellers or any\nTransferred Business Company or any of its respective material properties or\nmaterial Assets may be bound, or (d) assuming the making or obtaining of the\nGovernmental Filings referred to in clause (b)(i) and (b)(ii) above, conflict\nwith, give rise to a loss of benefit under or violate any Law applicable to any\nof the Sellers or any Transferred Business Company or by which any of their\nrespective properties or Assets may be bound, except for such conflicts or\nviolations which would not reasonably be expected to have a Material Adverse\nEffect.\n\n                  3.5      Financial Statements. (a) The DPC selected pro forma\n                           --------------------\nbalance sheet items at December 31, 2000 (the \"Balance Sheet\") and at March 31,\n                                               -------------\n2001, the DPC pro forma income statements and the DPC selected pro forma cash\n\n                                      36\n\n \nflow items for the fiscal years ended December 31, 1999 and 2000 and for the\nthree month periods ended March 31, 2000 and 2001, all as set forth in Schedule\n3.5 (collectively, the \"DPC Financial Statements\"), have been prepared from the\n                        ------------------------\nbooks and records of the Transferred Business Companies (including the\nAdditional Transferred Assets and Assumed Liabilities). The DPC selected pro\nforma balance sheet items included in the DPC Financial Statements fairly\npresent in all material respects the combined financial position of the\nTransferred Business Companies (including the Additional Transferred Assets and\nAssumed Liabilities) as of their respective dates, and the other related\nstatements included in the DPC Financial Statements fairly present in all\nmaterial respects the combined results of operations (in the case of the pro\nforma statements of income) and cash flows (in the case of the pro forma\nselected cash flow items) of the Transferred Business Companies (including the\nAdditional Transferred Assets and Assumed Liabilities) for the respective\nperiods presented therein, all in conformity with the basis of presentation\nstated in the DPC Financial Statements, applied on a consistent basis during the\nperiods involved. The adjustments as shown under the caption \"Reconciliations\"\nin Schedule 3.5 fairly present in all material respects the items described\ntherein.\n\n                           (b) The Audited Financial Statements and Unaudited\nInterim Financial Statements, when delivered to Buyer pursuant to Section 5.24\nof this Agreement, will fairly present in all material respects the financial\nposition, results of operations and cash flows of the Transferred Business\nCompanies (including the Additional Transferred Assets and the Assumed\nLiabilities) as of the dates and for the periods presented therein, all in\nconformity with GAAP, applied on a consistent basis during the periods involved,\nexcept for such exceptions with respect to the Unaudited Interim Financial\nStatements as are permitted under the requirements of Regulation S-X under the\nExchange Act, and shall conform to the requirements of Regulation S-X under the\nExchange Act.\n\n                           (c) The financial position, results of operations and\ncash flows of the Transferred Business as presented in the Audited Financial\nStatements, including the notes thereto, as of December 31, 2000 and for the\nfiscal years ended December 31, 1999 and 2000 and in the Unaudited Interim\nFinancial Statements, including the notes thereto, as of March 31, 2001 and for\nthe three month period ended March 31, 2001, in each case, shall not reflect an\nadverse change, in any material respect, from the financial position, results of\noperations and cash flows presented in the DPC Financial Statements as of such\nrespective dates for such respective periods.\n\n                  3.6      Absence of Certain Changes. Since December 31, 2000,\n                           --------------------------\nthe Transferred Business (including the Transferred Business Companies) has not\n(a) suffered any actual or prospective change, event or effect to its prospects,\nAssets,\n\n                                      37\n\n \nbusiness, operations or position (financial or otherwise) which, individually or\nin the aggregate when taken together with all other actual and prospective\nadverse changes, events and effects, since such date, has had or would\nreasonably be expected to have a Material Adverse Effect (in the case of the\nTransferred Business' financial position and results of operations and cash\nflows, as compared to its financial position and results of operations as\npresented in the DPC Financial Statements), (b) as of the date of this\nAgreement, except to the extent expressly contemplated by this Agreement or\nconsented to in writing by Buyer, conducted its business in any material respect\nother than in the ordinary and usual course consistent with past practice, or\n(c):\n\n                               (i)    incurred any long-term Indebtedness or\n         issued any debt securities or assumed, guaranteed or endorsed the\n         obligations of any other Person, except in the ordinary course of\n         business consistent with past practice and except for obligations of\n         another Transferred Business Company;\n\n                               (ii)   created or otherwise incurred any\n         Encumbrance on any material Asset, other than Permitted Encumbrances;\n\n                               (iii)  made any material loan or advance to or\n         any capital contributions to or investment in any Person other than\n         loans, advances or capital contributions to or investments in any of\n         its Wholly-Owned Subsidiaries;\n\n                               (iv)   suffered any damage, destruction or other\n         casualty loss (after taking into account any insurance recoveries to\n         the extent such recoveries remain with the Transferred Business\n         Companies) affecting its business or Assets which is material to the\n         Transferred Business Companies and the Transferred Equipment taken as a\n         whole;\n\n                               (v)    except (A) to the extent expressly\n         contemplated by this Agreement or consented to in writing by Buyer or\n         (B) in the ordinary course of business consistent with past practice,\n         or entered into any transaction or commitment, or any Contract relating\n         to its respective Assets or business (including the acquisition or\n         disposition of any Assets) or relinquished any Contract or other right,\n         in either case, material to the Transferred Business Companies, taken\n         as a whole, other than this Agreement and the Related Agreements;\n\n                                      38\n\n \n                               (vi)   changed any method of accounting, or\n         accounting practice of any Transferred Business Company, except for any\n         such change required (A) by reason of a concurrent change in Law, SEC\n         guidelines or GAAP or (B) by reason of a change in DuPont's method of\n         accounting or accounting practices that, due to Law, SEC guidelines or\n         requirements or GAAP, requires a change in the accounting practices of\n         a Transferred Business Company;\n\n                               (vii)  (A) granted any severance or termination\n         pay to (1) any of its respective employees, other than ordinary course\n         grants in amounts consistent with past practice or (2) any of its\n         respective directors or officers, (B) increased benefits payable under\n         any existing severance or termination pay policies or employment\n         agreements, (C) entered into any material employment, consulting,\n         deferred compensation or other similar agreement (or adopted any\n         amendment to any such existing agreement) with any of its respective\n         directors or officers, (D) established, adopted or amended (except as\n         required by applicable Law) any collective bargaining, bonus, profit\n         sharing, thrift, pension, retirement, change-in-control, deferred\n         compensation, compensation, stock option, restricted stock or other\n         benefit plan or arrangement covering any of its respective directors,\n         officers or employees, (E) materially increased compensation, bonus or\n         other benefits payable to any of its respective directors or officers\n         or (F) except in the ordinary course consistent with past practice,\n         increased the compensation, bonus or other benefits payable to any of\n         its respective employees (other than directors or officers), where such\n         increases could, in the aggregate, be material;\n\n                               (viii) failed to pay any creditor of the\n         Transferred Business any material amount when due or defaulted on any\n         material obligation relating to the conduct or operation of the\n         Transferred Business;\n\n                               (ix)   taken, or omitted to take, any action that\n         if taken or omitted to be taken on or after the date of this Agreement\n         would violate Sections 5.1(b) (1), (2), (7), (8), (10), (12), (13) or\n         (14); or\n\n                               (x)    committed to do any of the foregoing.\n\n                                      39\n\n \n                  3.7      Compliance with Law, Permits.\n                  -------------------------------------\n\n                           (a) The Transferred Business is not being conducted\nin violation of any applicable Law, except such violations which individually or\nin the aggregate would not reasonably be expected to have a Material Adverse\nEffect. The Transferred Business Companies have all governmental permits,\nlicenses, certificates, qualifications, registrations, approvals for their\nproducts, other approvals and other similar authorizations necessary for the\nconduct of their businesses as presently conducted and the ownership or current\nuse of the Transferred Assets (the \"Permits\") and are in compliance with the\n                                    -------\nterms of the Permits, except where the failure to have such a Permit or for any\nnon-compliance which would not reasonably be expected to have a Material Adverse\nEffect.\n\n                           (b) The Transferred Business Companies hold all\nPermits necessary as such activities are currently conducted to develop,\nmanufacture, distribute and sell the product known as Sustiva(TM) and are in\ncompliance in all material respects with the terms of such Permits. The NDA\nrelating to such product has been approved by, and none of DuPont or any of its\nSubsidiaries has received any notice in writing which has, or reasonably should\nhave, led DuPont or any such Subsidiary to believe that the NDA relating to such\nproduct is not currently in good standing in all material respects with the FDA.\nTo DuPont's Knowledge, no condition or state of facts exists that could\nreasonably be expected to give rise to a violation of, or a material liability\nor default under, any of the foregoing.\n\n                           (c) (i) The Transferred Business, as conducted in the\nUnited States, is conducted in compliance in all material respects with all\napplicable Laws in connection with the preparation and submission to the FDA of\neach of the NDAs relating to the material products of the Transferred Business,\nand each of the NDAs relating to the material products of the Transferred\nBusiness has been approved by, and none of DuPont or any of its Subsidiaries has\nreceived any notice in writing which has, or reasonably should have, led DuPont\nor any such Subsidiary to believe that any of the NDAs relating to the material\nproducts of the Transferred Business are not currently in good standing with the\nFDA. The Transferred Business Companies (or their designated agents) have filed,\nor caused to be filed, with the FDA all required notices, supplemental\napplications and annual or other reports, including adverse experience reports,\nwith respect to each NDA relating to each material product of the Transferred\nBusiness required to be filed by the NDA holder except when the failure to file\nsuch notices, applications and reports would not have a material adverse effect\nwith respect to the continued good standing of any such product with the FDA.\nWith respect to the material products of the Transferred Business for which an\nNDA has been approved by the FDA, the applicant and all Persons performing\noperations covered by the application acted in material\n\n                                      40\n\n \ncompliance with 21 U.S.C. Sub. 355 or 357, 21 C.F.R. Parts 314 or 430 et seq.,\nrespectively, and all terms and conditions of such application.\n\n                               (ii)   The Transferred Business, as conducted\noutside the United States, is conducted in compliance in all material respects\nwith all applicable Laws in connection with the preparation and submission to\neach applicable Governmental Authority of each marketing authorization\napplication or its equivalent (\"MAA\"), amendment or variation or supplement to\n                                ---\nan MAA, re-registration, safety report or necessary response relating to each\nmaterial product of the Transferred Business currently manufactured, marketed,\npromoted or sold outside the United States, and, except for such failures as\nwould not have a material adverse effect on the continued good standing with the\napplicable Governmental Authority of any such product, (A) each of the MAAs\nrelating to each such product of the Transferred Business has been approved by,\nand (B) none of DuPont or any of its Subsidiaries has received any notice in\nwriting which has, or reasonably should have, led DuPont or any such Subsidiary\nto believe that any of the MAAs relating to such product of the Transferred\nBusiness are not currently in good standing with, each applicable Governmental\nAuthority. The Transferred Business Companies (or their designated agents) have\nfiled with each applicable Governmental Authority all required notices,\nsupplemental applications and annual or other reports, including adverse\nexperience reports, with respect to each MAA required to be filed by the holder\nof the MAA, relating to each such product of the Transferred Business except\nwhen the failure to file such notices, applications and reports would not have a\nmaterial adverse effect on the continued good standing of such product with the\nregulatory jurisdiction which issued the MAA. With respect to such material\nproducts of the Transferred Business for which an MAA has been approved by the\napplicable Governmental Authority, the applicant and all Persons performing\noperations covered by the application acted in material compliance with\napplicable Law and all terms and conditions of such application.\n\n                               (iii)  None of DuPont or any of its Affiliates\nhave received any notice since January 1, 1999, that any Governmental Authority\n(including the FDA) has commenced, or, to their Knowledge, threatened to\ninitiate any action to withdraw any approval for a material product or to limit\nthe ability of the Transferred Business to manufacture (or to have manufactured\nfor it by a third party) any material product or to request the recall of any\nmaterial product of the Transferred Business, or commenced or, to their\nKnowledge, threatened to initiate any action to enjoin production of such\nproducts at any facility.\n\n                               (iv)   Except as would not reasonably be expected\nto have a Material Adverse Effect, all manufacturing operations conducted by the\nTransferred Business Companies (or by third parties on behalf of the Transferred\n\n                                       41\n\n \nBusiness Companies) relating to the manufacturing of the products of the\nTransferred Business are being conducted in compliance with Good Manufacturing\nPractices, with appropriate industry standards in the country in which such\nmanufacturing is being conducted and with appropriate industry standards in each\ncountry in which the Transferred Business Companies intend to market, promote or\nsell such products.\n\n                               (v)    DuPont has made available to Buyer copies\nof (A) all reports of inspection observations, (B) all establishment inspection\nreports and (C) all warning letters as well as any other documents received by\nDuPont or any of its Subsidiaries since January 1, 1999 from the FDA or any\nother Governmental Authority relating to the products of the Transferred\nBusiness and\/or arising out of the conduct of the Transferred Business that in\nthe case of clauses (A), (B) and (C) (1) are in the possession of DuPont or any\nof its Subsidiaries (including any of the Transferred Business Companies) and\n(2) assert a material violation or material non-compliance with any applicable\nlaws or regulatory requirements (including those of the FDA).\n\n                  3.8   No Undisclosed Liabilities. Except as and to the extent\n                        --------------------------\nreflected in the Balance Sheet, none of the Transferred Business Companies had\nat December 31, 2000 any Liabilities of a type required by GAAP to be reflected\non a combined balance sheet of the Transferred Business Companies or in the\nnotes thereto (it being deemed for the purpose of this Section 3.8 that each\nAssumed Liability is a Liability of (and incurred by) a Transferred Business\nCompany). Since December 31, 2000, none of the Transferred Business Companies\nhas incurred any Liabilities required by GAAP to be reflected on a combined\nbalance sheet of the Transferred Business Companies or in the notes thereto\nexcept for such Liabilities which were incurred by a Transferred Business\nCompany since December 31, 2000, in the ordinary course of business consistent\nwith past practice or as expressly permitted by this Agreement. The Assumed\nLiabilities do not include any Liabilities that would, individually or in the\naggregate, reasonably be expected to have a Material Adverse Effect.\n\n                  3.9   Litigation. There is no action, suit or proceeding\n                        ----------\npending, or, to the Knowledge of DuPont, action, suit or proceeding threatened,\nagainst a Transferred Business Company (or which would reasonably be expected to\nresult in a Liability that would be an Assumed Liability), before any\nGovernmental Authority or arbitration tribunal which individually or in the\naggregate would reasonably be expected to have a Material Adverse Effect.\nSchedule 3.9 lists as of the date of this Agreement all actions, suits or\nproceedings pending, or to the Knowledge of DuPont, threatened, which involve a\nclaim for damages or other monetary relief against a Transferred Business\nCompany (or which specifically relate to, or involve, a Transferred Business\nCompany or Transferred Asset other than actions, suits or\n\n                                       42\n\n \nproceedings pending against Buyer or its Affiliates) or which would reasonably\nbe expected to result in a Liability that would be an Assumed Liability in any\ninstance in excess of $5 million (or if no damages or other monetary relief are\nspecified, would reasonably be expected to result in damages or other monetary\nrelief of in excess of such amount), which seek material injunctive relief or\nwhich would reasonably be expected to (x) give rise to any legal restraint on or\nprohibition against the Sale or the other material transactions contemplated by\nthis Agreement or (y) limit in any material respect the ability of Buyer to\nexercise full rights of ownership and control of the Transferred Business\nCompanies or any of the Additional Transferred Assets after the Closing. As of\nthe date of this Agreement, none of DuPont or any of its Subsidiaries is subject\nto any material outstanding injunction, writ, judgment, order or decree of any\nGovernmental Authority or arbitration tribunal to the extent related to the\nTransferred Business. As of the date of this Agreement, none of DuPont or its\nSubsidiaries has received any written notice from any Governmental Authority\nthat the Transferred Business is subject to any material investigation, is in\ndefault under any material Law or is in breach of any material Permit.\n\n                  3.10     Taxes.\n                  --------------\n\n                           (a) Each of the Transferred Business Companies has\n(i) timely filed (or had timely filed on its behalf) with the appropriate Tax\nAuthorities all material Tax Returns required to be filed by or on behalf of it,\nand each such Tax Return was complete and accurate in all material respects, and\n(ii) timely paid (or had paid on its behalf) all material Taxes due and owing,\nregardless of whether required to be shown or reported on a Tax Return,\nincluding Taxes required to be withheld by it;\n\n                           (b) there is no Tax Audit pending against or with\nrespect to any of the Transferred Business Companies or with respect to any\nTransferred Equipment in respect of any material Tax and no written or, to\nDuPont's Knowledge, unwritten notice of such a Tax Audit with respect to any\nmaterial Tax has been received by DuPont, any Affiliate of DuPont or any\nTransferred Business Company;\n\n                           (c) no deficiency for a material Tax has been\nasserted in writing or otherwise, to DuPont's Knowledge, against any of the\nTransferred Business Companies or with respect to any Transferred Equipment,\nexcept for asserted deficiencies that either (i) have been resolved and paid in\nfull or (ii) are being contested in good faith;\n\n                           (d) there are no material liens for Taxes upon the\nAssets or property of any of the Transferred Business Companies or the\nTransferred Equipment, except for Permitted Encumbrances;\n\n                                       43\n\n \n                           (e) DPC has been taxed as a partnership under the\nprovisions of Subchapter K of the Code and the Treasury Regulations promulgated\nthereunder for all taxable periods beginning on or after the date of its\nformation and ending on or prior to the date of this Agreement;\n\n                           (f) no material issues relating to Taxes relating to\na Transferred Business Company or the Transferred Equipment have been raised in\nwriting or otherwise, to DuPont's Knowledge, by the relevant Taxing Authority\nduring any completed or presently pending Tax Audit that can reasonably be\nexpected to recur in a later taxable period;\n\n                           (g) none of the Transferred Business Companies is\nparty to or bound by, and the Transferred Equipment is not subject to, any Tax\nSharing Agreement;\n\n                           (h) there is no agreement or other document\nextending, or having the effect of extending, the period of assessment or\ncollection of any material Taxes, and no power of attorney with respect to any\nmaterial Taxes has been executed or filed with any Taxing Authority, by or on\nbehalf of any Transferred Business Company or in respect of the Transferred\nEquipment;\n\n                           (i) none of the Transferred Business Companies shall\nbe required to include in a taxable period ending after the Closing Date taxable\nincome attributable to income that economically accrued in a prior taxable\nperiod but was not recognized in any prior taxable period as a result of the\ninstallment method of accounting, the long-term contract method of accounting,\nthe cash method of accounting of Section 481 of the Code or comparable\nprovisions of state, local or foreign Tax law;\n\n                           (j) the Transferred Business Companies have complied\nin all material respects with all applicable laws, rules and regulations\nrelating to the payment and withholding of Taxes (including, without limitation,\nwithholding of Taxes pursuant to Sections 1441, 1442, 3121 and 3402 of the Code\nor similar provisions under any state, local or foreign laws) and have, within\nthe time and manner prescribed by law, withheld from and paid over to the proper\ngovernmental authorities all amounts required to be so withheld and paid over\nunder applicable laws;\n\n                           (k) neither DCI nor DPRL is a real property holding\ncompany within the meaning of Section 897 of the Code. DuPont is not a \"foreign\nperson\" within the meaning of Section 1445 of the Code; and\n\n                                       44\n\n \n                           (l) DCI and DPRL are members of a consolidated group,\nas defined in Section 1504(a) of the Code, of which DuPont is the common parent.\n\n                  3.11     Employee Benefit Plans; ERISA.\n                  --------------------------------------\n\n                           (a) Schedule 3.11(a) contains a true and complete\nlist of each deferred compensation plan and each incentive compensation, equity\ncompensation plan, bonus, severance, material \"welfare\" plan, fund or program\n(within the meaning of section 3(1) of the Employee Retirement Income Security\nAct of 1974, as amended (\"ERISA\")); \"pension\" plan, fund or program (within the\n                          -----\nmeaning of section 3(2) of ERISA); each material employment, change-in-control,\ntermination or severance agreement; and each other material employee benefit\nplan, fund, program, agreement or arrangement, in each case, that is sponsored,\nmaintained or contributed to or required to be contributed to by any of the\nTransferred Business Companies or by any trade or business, whether or not\nincorporated, that together with any Transferred Business Company would be\ndeemed a \"single employer\" within the meaning of section 4001(b) of ERISA (an\n\"ERISA Affiliate\"), or to which any of the Transferred Business Companies or an\n ---------------\nERISA Affiliate is party, whether written or oral, for the benefit of any United\nStates and foreign employee or former employee of any Transferred Business\nCompany (the \"Transferred Business Plans\").\n              --------------------------\n\n                           (b) With respect to each Transferred Business Plan,\nDuPont or DPC has made available to Buyer true and complete copies of each such\nTransferred Business Plan and any amendments thereto (or if such Transferred\nBusiness Plan is not written, a description thereof), any related trust, deed or\nrule or other funding vehicle, any reports or summaries required under ERISA,\nthe Code or applicable Law and the most recent determination letter received\nfrom the IRS with respect to each Transferred Business Plan intended to qualify\nunder Section 401 of the Code, Form 5500 and, if applicable, attached Schedule B\n(including related actuarial valuation report) with respect to the last three\n(3) years and any other report reflecting the current funding status of each\nsuch Transferred Business Plan.\n\n                           (c) No liability under Title IV or Section 302 of\nERISA, or any comparable provision and\/or applicable Law, has been incurred by\nany of the Transferred Business Companies or any ERISA Affiliate that has not\nbeen satisfied in full, and no condition exists that could present a material\nrisk to any of the Transferred Business Companies or any ERISA Affiliate of\nincurring any such liability, other than liability for premiums due the Pension\nBenefit Guaranty Corporation (the \"PBGC\") (which premiums have been paid when\n                                   ----\ndue).\n\n                           (d) No Transferred Business Plan which is subject to\nTitle IV of ERISA (\"Transferred Business Title IV Plan\") is, or within the five\n                    ----------------------------------\n(5) year period\n\n                                       45\n\n \npreceding the date of their Agreement was, a \"multiemployer pension plan,\" as\ndefined in Section 3(37) of ERISA, nor is any Transferred Business Title IV Plan\na plan described in Section 4063(a) of ERISA.\n\n                           (e) Each Transferred Business Plan has been operated\nand administered in all material respects in accordance with its terms and\napplicable law, including but not limited to ERISA and the Code, and with\nrespect to each Transferred Business Plan, all contributions, premiums and\nreserves required as of the Closing Date have been paid by, or in the case of\nreserves, have been properly reflected on the books of, the appropriate\nTransferred Business Company.\n\n                           (f) Each Transferred Business Plan intended to be\n\"qualified\" within the meaning of Section 401(a) of the Code, or to have\ntax-favored status under applicable Law, is so qualified, or tax-favored, and\nthe trusts maintained thereunder are exempt from taxation under Section 501(a)\nof the Code or applicable Law.\n\n                           (g) With respect to each Transferred Business Plan\nthat is subject to Title IV of ERISA or to the minimum funding requirements of\nSection 412 of the Code or Part 3 of Title I of ERISA, each of the following is\ntrue: (i) there is no event or condition existing (other than the transactions\ncontemplated by this Agreement) that could be deemed to be a \"reportable event\"\nwithin the meaning of Section 4043 of ERISA with respect to which the notice\nrequirement has not been waived, and no condition exists that could subject any\nof the Transferred Business Companies to a fine under Section 4071 of ERISA;\n(ii) no amendment has occurred that has required or could require any of the\nTransferred Business Companies to provide security to such Transferred Business\nPlan under Section 401(a)(29) of the Code or Section 307 of ERISA; (iii) no\ndocumentation or other information has been or is currently required to be\nprovided to the PBGC pursuant to Section 4011 of ERISA; (iv) no transaction has\noccurred and no condition exists with respect to such Transferred Business Plan\nthat has subjected or shall likely subject any of the Transferred Business\nCompanies to liability under Section 4069 of ERISA; (v) no event has occurred\nand no condition exists that could subject any of the Transferred Business\nCompanies or any ERISA Affiliate to any material Tax under Chapter 43 of the\nCode or to a material fine under Section 502(c) of ERISA; and (vi) none of the\nTransferred Business Companies or any ERISA Affiliate has engaged in a\nnon-exempt prohibited transaction, as such term is defined in Section 4975 of\nthe Code or Section 406 of ERISA.\n\n                           (h) No Transferred Business Plan provides medical,\nsurgical, hospitalization, death or similar benefits (whether or not insured)\nfor employees or former employees of any Transferred Business Company for\nperiods extending beyond their retirement or other termination of service, other\nthan (i) coverage\n\n                                       46\n\n \nmandated by applicable Law, (ii) death benefits under any \"pension plan,\" or\n(iii) benefits the full cost of which is borne by the current or former employee\n(or his beneficiary). Schedule 3.11(h) discloses, as of December 31, 2000, the\namount of unfunded liabilities for retiree medical, dental and life insurance\nbenefits (and any other post-retirement benefits other than pensions) arising\nunder such plan, broken down with respect to current employees and former\nemployees of the Transferred Business Companies, as of December 31, 2000, in\naccordance with FAS 106, and no amendment to such plan since such date has\nincreased such liabilities. The valuation in Schedule 3.11(h) discloses whether\nit takes into account contributions of the current employees and former\nemployees of the Transferred Business Companies and all assumptions used in\ncalculating such valuation. In addition, Schedule 3.11(h) discloses the number\nof Transferred Employees who are currently eligible or may become eligible to\nreceive such post-retirement benefits within three (3) years of the date of this\nAgreement.\n\n                           (i) The consummation of the transactions contemplated\nby this Agreement shall not, either alone or in combination with another event,\n(i) entitle any current or former employee or officer of any of the Transferred\nBusiness Companies or any ERISA Affiliate to severance pay, unemployment\ncompensation or any other payment, except as expressly provided in this\nAgreement, or (ii) accelerate the time of payment or vesting, or increase the\namount, of compensation due any such employee or officer.\n\n                           (j) As of the date of this Agreement, to the\nKnowledge of DuPont, there are (i) no pending or threatened claims, or facts\nthat could reasonably be expected to give rise to such claims, by or on behalf\nof any Transferred Business Plan, by any employee or beneficiary covered under\nany such Transferred Business Plan, or otherwise involving any such Transferred\nBusiness Plan (other than routine claims for benefits) or (ii) no matters\npending (other than routine qualification determination filings) with respect to\nany of the Transferred Business Plans before any Governmental Authority, which\nclaims or pending matters could give rise to Losses that in the aggregate would\nexceed $2,000,000.\n\n                           (k) As of the date of this Agreement, there has been\nno amendment to, written interpretation or announcement (whether or not written)\nby DPC or any of its Affiliates relating to, or change in employee participation\nor coverage under, any Transferred Business Plan which would increase materially\nthe expense of maintaining such Transferred Business Plan above the level of the\nexpense incurred in respect thereof for the 12 months ended as of the date of\nthe DPC Financial Statements.\n\n                                       47\n\n \n                           (l) To the Knowledge of DuPont, there is no leased\nemployee, as such term is defined in Section 414(n) of the Code, who must be\ntaken into account for the requirements of Section 414(n)(3) of the Code who has\nnot been so taken into account. To the Knowledge of DuPont, each person\nproviding services to any of the Transferred Business Companies as an\nindependent contractor has been properly classified as such.\n\n                           (m) There is no voluntary employees' beneficiary\nassociation, within the meaning of Sections 501(c)(9) and 505, or rabbi trust,\nwithin the meaning of IRS Rev. Proc. 92-64 (1992), maintained with respect to\nany Transferred Business Plan.\n\n                           (n) No Transferred Business Plan is a multiple\nemployer welfare arrangement within the meaning of Section 3(40) of ERISA.\n\n                           (o) Each of the Transferred Business Companies is in\ncompliance with all applicable Law respecting employment and employment\npractices, terms and conditions of employment and wages and hours and\noccupational safety and health, and is not engaged in any unfair labor practice\nwithin the meaning of Section 8 of the National Labor Relations Act, or\napplicable Law, and there is no action, suit or legal, administrative,\narbitration, grievance or other proceeding pending or, to the Knowledge of\nDuPont, threatened, or, to the Knowledge of DuPont, any investigation pending or\nthreatened against any of the Transferred Business Companies relating to any\nthereof, and, to the Knowledge of DuPont, no basis exists for any such action,\nsuit or legal, administrative, arbitration, grievance or other proceeding or\ngovernmental investigation.\n\n                           (p) None of the Transferred Business Companies is\nparty to any collective bargaining, union or labor agreement. There is no labor\nstrike, dispute, slowdown or stoppage actually pending or, to the Knowledge of\nDuPont, threatened against any of the Transferred Business Companies, and no\nTransferred Employee is a member of or represented by any labor union and, to\nthe Knowledge of DuPont, there are no attempts of whatever kind and nature being\nmade to organize any such Transferred Employees. No certification or\ndecertification is pending or was filed within twelve (12) months preceding the\ndate of this Agreement respecting any Transferred Employee and, to the Knowledge\nof DuPont, no certification or decertification petition is being or was\ncirculated among the Transferred Employees within the twelve (12) months\npreceding the date of this Agreement. No agreement, arbitration or court\ndecision, decree or order or governmental order that is binding on any of the\nTransferred Business Companies in any way limits or restricts any of the\nTransferred Business Companies from relocating or closing any of its operations.\n\n                                       48\n\n \n                           (q) None of the Transferred Business Companies has\nexperienced any organized work stoppage in the five (5) years preceding the date\nof this Agreement. There are no charges, administrative proceedings or formal\ncomplaints of discrimination (including but no limited to discrimination based\nupon sex, age, marital status, race, national origin, sexual preference,\nhandicap or veteran status) pending or, to the Knowledge of DuPont, threatened,\nor to the Knowledge of DuPont, any investigation pending or threatened before\nthe Equal Employment Opportunity Commission or any Governmental Authority. There\nhave been no audits of the equal employment opportunity practices of any of the\nTransferred Business Companies and, to the Knowledge of DuPont, no basis for any\nsuch claim exists. With respect to the items set forth on Schedule 3.11(q), each\nof the following is true: (i) as of the date of this Agreement, none of the\nTransferred Business Companies is a defendant in any action filed, or to the\nKnowledge of DuPont threatened to be filed, by a class under the Federal Rules\nof Civil Procedure 23, or comparable state law, under any Federal, state or\nlocal statute governing employment, and (ii) the aggregate amount of damages of\nall the items set forth on Schedule 3.11(q) will not exceed $1,000,000\n(excluding the matter identified on such schedule with an asterisk).\n\n                           (r) (i)    Other than the DuPont UK Plan, there are\nno defined benefit pension plans, or such other plans required to be funded\nunder applicable Law, providing any benefit to any Transferred Employee in the\nUnited Kingdom, Northern Ireland or the Republic of Ireland and pursuant to\nwhich any of the Transferred Business Companies would have any liability. The\nDuPont UK Plan is an exempt approved scheme and a contracted-out scheme, and\nDuPont is named in a contracting-out certificate in relation to the DuPont UK\nPlan.\n\n                               (ii)   Other than the DuPont Pharmaceuticals\n         Company Pension and Retirement Plan (Puerto Rico), there are no defined\n         benefit pension plans, or such other plans required to be funded under\n         applicable Law, providing any benefit to any Transferred Employee in\n         Puerto Rico and pursuant to which any of the Transferred Business\n         Companies could have any liability.\n\n                               (iii)  Other than the DuPont Pharma, Inc.\n         Non-Contributory Pension Plan, there are no defined benefit pension\n         plans, or such other plans required to be funded under applicable Law,\n         providing any benefit to any Transferred Employee in Canada and\n         pursuant to which any of the Transferred Business Companies could have\n         any liability. As of December 31, 2000, the projected benefit\n         obligation of the DuPont Pharma, Inc. Non-Contributory Pension Plan on\n         a FAS 87 basis did not exceed the fair market value of such Plan's\n         assets by an amount equal to $1,500,000 or more.\n\n                                       49\n\n \n                               (iv)   Other than the DuPont Pharmaceuticals\n         Company Pension and Retirement Plan, there are no defined benefit\n         pension plans, or such other plans required to be funded under ERISA\n         and the Code, providing any benefit to any Transferred Employee in the\n         United States and pursuant to which any of the Transferred Business\n         Companies could have any liability.\n\n                               (v)    Other than the Company Agreement G-14\/88,\n         there are no defined benefit pension plans, or such other plans\n         required to be funded or a reserve to be established on the books of\n         the plan sponsor under applicable Law, providing any benefit to any\n         Transferred Employee in Germany and pursuant to which any of the\n         Transferred Business Companies could have any liability.\n\n                               (vi)   Other than the Pension Plan\/Life Insurance\n         (Fortis AG) (the \"Belgian Pension Plan\"), there are no defined benefit\n                           --------------------\n         pension plans, or such other plans required to be funded or for which a\n         reserve must be established on the books of the plan sponsor under\n         applicable Law, providing any benefit to any Transferred Employee in\n         Belgium and pursuant to which any of the Transferred Business Companies\n         could have any liability. Liabilities under the Belgian Pension Plan,\n         calculated on a projected benefit obligation basis, do not exceed the\n         fair market value of the assets of such plan by an amount equal to\n         $200,000 or more.\n\n                               (vii)  There is no defined benefit pension plan,\n         or such other plan required to be funded or for which a reserve must be\n         established on the books of the plan sponsor under applicable Law,\n         providing any benefit to any Transferred Employee in Brazil, Italy,\n         France, Spain, the Republic of Ireland or Japan and pursuant to which\n         any of the Transferred Business Companies could have any liability.\n\n                           (s) With respect to the DuPont Pharmaceuticals\nCompany Pension and Retirement Plan and the DuPont Pharmaceuticals Company\nPension and Retirement Plan (Puerto Rico) (collectively, the \"Transferred\n                                                              -----------\nPension Plans\"), Schedule 3.11(s) discloses the amount of unfunded liabilities\n-------------\npursuant to FAS 87, and the assumptions required thereunder, as of December 31,\n2000. With respect to any other Transferred Business Plan that is required to be\nfunded under applicable Law, or for which a reserve must be established on the\nbooks of the plan sponsor of such plan under applicable Law, Schedule 3.11(s)\ndiscloses the amount of unfunded liabilities pursuant to the greater of FAS 87,\nand the assumptions required thereunder, or applicable Law, as of December 31,\n2000. With respect to each of the plans listed\n\n                                       50\n\n \nin Section 5.11(i), Schedule 3.11(s) also separately discloses the amount of\nunfunded liabilities pursuant to FAS 87, and the assumptions used thereunder, as\nof December 31, 2000.\n\n                           (t) The transactions contemplated by this Agreement\nshall not result in the acquisition of assets from DuPont that have a total fair\nmarket value equal to or more than one-third of the total fair market value of\nall assets of DuPont, as a \"corporation\" (within the meaning of Section 1504 of\nthe Code) immediately prior to such \"acquisition\" (within the meaning of Section\n280G of the Code and the regulations thereunder).\n\n                  3.12 Environmental Matters. To the Knowledge of DuPont, (a)\n                       ---------------------\nthe Transferred Business Companies are in compliance with all applicable\nEnvironmental Laws (which compliance includes, but is not limited to, the\npossession by the Transferred Business Companies of all Environmental Permits,\nand compliance with the terms and conditions thereof), except where failure to\nbe in compliance would not reasonably be expected to have a Material Adverse\nEffect; (b) there is as of the date of this Agreement and, except as set forth\nin Schedule 3.12, there will be as of the Closing, no Environmental Claim\npending or, to the Knowledge of DuPont, threatened against or affecting any\nTransferred Business Company which would reasonably be expected to have a\nMaterial Adverse Effect; (c) there have been no Releases of Hazardous Substances\non, at, in or underneath any of the Assets of the Transferred Business Companies\nor, to the Knowledge of the Transferred Business Companies, on, at, in or\nunderneath any property formerly owned or operated by any Transferred Business\nCompany that would reasonably be expected to have a Material Adverse Effect; (d)\nas of the date of this Agreement, there is no cleanup or remediation of\nHazardous Substances being conducted or planned at any of the Assets of the\nTransferred Business Companies; and (e) the Transferred Business Companies have\ndelivered or otherwise made available for inspection to Buyer true, complete and\ncorrect copies and results of any Phase I or Phase II Environmental Assessments\nprepared within the past three years, and any other material reports, studies,\nanalyses, tests or monitoring possessed or initiated by the Transferred Business\nCompanies pertaining to Hazardous Substances in, on, beneath or adjacent to any\nof the Assets of the Transferred Business Companies, or regarding the\nTransferred Business Companies' compliance with applicable Environmental Laws.\nNotwithstanding anything to the contrary herein, the parties hereby agree that\nthere is excluded from all other representations and warranties in this Article\nIII all matters with respect to compliance with, or Liabilities arising under,\nEnvironmental Laws. The representations and warranties contained in this Section\n3.12 shall be the exclusive representations and warranties with respect to such\nmatters.\n\n                                       51\n\n \n                  3.13     Real Property.\n                  ----------------------\n\n                           (a) Schedule 3.13(a) contains a complete and correct\nlist of all Owned Real Property. DPC or one of the other Transferred Business\nCompanies has (and upon the Closing will have) good and valid title in fee\nsimple to the Owned Real Property, free and clear of all Encumbrances other than\nPermitted Encumbrances; provided, however, that the use of the Real Property\n                        --------  -------\nwill be limited to industrial use because of soil and groundwater contamination.\nTo the Knowledge of DuPont, no Person (other than the Transferred Business\nCompanies) has any right to use, occupy or lease the Owned Real Property.\n\n                           (b) Schedule 3.13(b) contains a complete and correct\nlist of all Leased Real Property. True, correct and complete copies of all\nLeases relating to the Leased Real Property have heretofore been delivered by\nDuPont to Buyer. All such Leases are valid, binding and in full force and effect\nand are enforceable by the lessee thereunder and grant such lessee the exclusive\nright to use and occupy the premises. DPC or one of the other Transferred\nBusiness Companies has quiet possession of the leasehold estate or other\ninterest created under such Leases, and no lessee under any material Lease\nrelating to Leased Real Property is in material default under any such Lease.\n\n                           (c) The use and operation of the Real Property in the\nconduct of the Transferred Business complies in all material respects with all\nmaterial instruments of record or material agreements affecting the Real\nProperty.\n\n                           (d) To the Knowledge of DuPont, (i) no certificate,\npermit or license from any Governmental Authority having jurisdiction over any\nof the Real Property or any agreement, easement or other right which is\nnecessary to permit the lawful use and operation of the buildings and\nimprovements on any of the Real Property or which is necessary to permit the\nlawful use and operation of all driveways, roads and other means of egress and\ningress to and from any of the Real Property has not been obtained or is not in\nfull force and effect, and there is no pending threat of modification or\ncancellation of any of the same, which would reasonably be expected to have a\nMaterial Adverse Effect, and (ii) there is no written notice issued by any\nGovernmental Authority of any violation of any federal, state or municipal law,\nordinance, order, regulation or requirement that would reasonably be expected to\nhave a Material Adverse Effect. The Real Property shall be transferred to Buyer\n(by virtue of its acquisition of the Transferred Business Companies) in its \"AS\nIS\" condition on the Closing Date, subject to all latent and patent defects\n(whether physical, financial or legal, but including only the title defects, if\nany, set forth on Schedule 1.1(i) hereto), based solely on Buyer's own\ninspection, analysis and evaluation of the Real Property and not in reliance on\nany records or other\n\n                                       52\n\n \ninformation obtained from DuPont or on DuPont's behalf, other than the title\nreports referenced on Schedule 1.1(i) hereto. Each of Buyer, Buyer Sub 1 and\nBuyer Sub 2 acknowledges that it is not relying on any statement or\nrepresentation that has been made or that in the future may be made by DuPont or\nany of DuPont's employees, agents, attorneys or representatives concerning the\ncondition of the Real Property (whether relating to physical conditions,\noperation, performance, legal matters or title matters (other than title matters\nrelating to any Real Property for which a title report has not been obtained as\nset forth on Schedule 1.1(i) hereto)).\n\n                           (e) None of the Sellers or any of the Transferred\nBusiness Companies has received any written notice that (i) any condemnation\nproceeding is pending or threatened with respect to any Real Property or (ii)\nany material zoning, building or similar law, code, ordinance, order or\nregulation is or will be violated by the continued maintenance, operation or use\nof any buildings or other improvements on any Real Property or by the continued\nmaintenance, operation or use of the parking areas.\n\n                  3.14 Intellectual Property. (a) Set forth in Schedule 3.14(a),\n                       ---------------------\nfor all Intellectual Property that is owned (or in the case of clauses (v) and\n(vi) licensed) by the Transferred Business Companies (other than the Excluded\nAssets), is a complete and correct list (except for updates in dockets occurring\nin the ordinary course of business or as corrected pursuant to Section 3.14(f))\nof all United States and foreign: (i) issued and pending Patents; (ii) Trademark\nregistrations, and Trademark applications with their respective registration and\napplication numbers; (iii) tradenames; (iv) Copyright registrations and\nCopyright applications with their respective registration and application\nnumbers; (v) material software used by the Transferred Business Companies (other\nthan commercially available software subject to \"shrink-wrap,\" \"click-through\"\nor other standard form license agreements); and (vi) material license agreements\nrelating to commercial products and compounds nominated for development pursuant\nto which the Transferred Business Companies have rights to use Intellectual\nProperty of third parties (including DuPont and its other Subsidiaries) in the\nTransferred Business.\n\n                           (b) The Transferred Business Companies own or license\nfrom third parties (including DuPont and its other Subsidiaries) or otherwise\nhave the right to use, as currently used, free and clear of all Encumbrances,\nall the Intellectual Property currently used or necessary for the conduct of the\nTransferred Business; and the consummation of the transactions contemplated\nhereby will not impair any such rights in any material respect; provided that\n                                                                --------\nthe foregoing representations insofar as they relate to claims by or conflicts\nwith any third party (other than DuPont or any Subsidiary of DuPont) with\nrespect to such Intellectual Property are made to the Knowledge of DuPont\n(except that, with respect to Sustiva, Coumadin, Sinemet,\n\n                                       53\n\n \nCardiolite, DPC 906, DPC A52350, DPC 368, DPC A69841\/A53607\/A69448, DPC 974, DPC\nA37818, and DPC A37215 are also made to the knowledge, after reasonable inquiry,\nof DPC's inside patent attorneys and the product manager for such compounds);\nand provided, further, that the foregoing representations do not apply to\n    --------  -------\npotential claims or conflicts by any third party (other than DuPont or any\nSubsidiary of DuPont) previously disclosed in writing to Buyer's inside or\noutside patent counsel by DuPont or any of its Subsidiaries (including the\nTransferred Business Companies) (the \"IP Disclosure\") and do not apply to\n                                      -------------\ncompounds not yet nominated for development or to any research tools used in\nconnection with such compounds not yet nominated for development.\n\n                           (c) There are no material claims pending or, to the\nKnowledge of DuPont, threatened, against DuPont or any of its Subsidiaries\n(including the Transferred Business Companies) by any third party with respect\nto the ownership, validity, enforceability or use (including claims of actual or\npotential infringement, dilution or misappropriation) of any of the material\nIntellectual Property used in or necessary to the conduct of the Transferred\nBusiness related to (i) Sustiva, (ii) any such other Intellectual Property as of\nthe date of this Agreement, or (iii) any such other Intellectual Property as of\nthe Closing Date that, individually or in the aggregate with all other such\nclaims, would reasonably be expected to have a Material Adverse Effect.\n\n                           (d) As of the date of this Agreement, there are no\nclaims pending or, to the Knowledge of DuPont, threatened, against any third\nparty by DuPont or any of its Subsidiaries (including the Transferred Business\nCompanies) regarding any actual or potential infringement, dilution, or\nmisappropriation of any Intellectual Property owned or used in the Transferred\nBusiness related to (i) Sustiva, (ii) any such other Intellectual Property as of\nthe date of this Agreement, or (iii) any such other Intellectual Property as of\nthe Closing Date that, individually or in the aggregate with all other such\nclaims, would reasonably be expected to have a Material Adverse Effect.\n\n                           (e) To the Knowledge of DuPont, the Transferred\nBusiness Companies or their designated agents own or have the right to use all\nmaterial regulatory documents, including all material marketing applications,\nclinical trials applications and other correspondence and reports made to\nGovernmental Authorities, necessary to market and sell the material products of\nthe Transferred Business Companies as currently marketed and sold, and the\nconsummation of the transactions contemplated hereby will not impair any such\nrights in any material respect.\n\n                           (f) (i) At Buyer's request and at Buyer's expense,\nDuPont will take all reasonable steps to assist Buyer in the assignment and\nrecordation process\n\n                                       54\n\n \nfollowing the Closing to record ownership or to record a license for any pending\nor issued Patents or applied for or registered Trademarks owned by a Transferred\nBusiness Company to ensure that Buyer will have record ownership (or recording\nof license agreements) of such Intellectual Property, and (ii) at DuPont's\nexpense, DuPont will take all reasonable steps prior to the Closing and shall\ncontinue following the Closing with those efforts commenced prior to the Closing\nto correct any title discrepancies with respect to the properties listed on\nSchedule 3.14(a) and to record ownership or to record a license for any pending\nor issued Patents or applied for or registered Trademarks owned by a Transferred\nBusiness Company to ensure that the Transferred Business Companies will have\nrecord ownership (or recording of license agreements) of such Intellectual\nProperty; provided that in any event Buyer must make any request under this\n          --------\nSection 3.14(f) within one year, and DuPont shall have no further obligations\nunder this Section 3.14(f) three (3) years, after the Closing.\n\n                  3.15 Assets. DPC or one of the other Transferred Business\n                       ------\nCompanies owns, leases or has the legal right (including pursuant to the Related\nAgreements) to use all material Assets (other than (i) Real Property, which is\nthe subject of Section 3.13, (ii) Intellectual Property, which is the subject of\n3.14 and (iii) the Transferred Equipment) reflected on the Balance Sheet or,\nexcept for Excluded Assets, thereafter acquired by the Transferred Business\nexcept for those sold or otherwise disposed of since the date of the Balance\nSheet in the ordinary course of business consistent with past practice and not\nin violation of this Agreement. DuPont owns, leases or has the legal right to\nuse all of the Transferred Equipment. DPC or one of the other Transferred\nBusiness Companies has good and valid title to (or in the case of leased Assets,\nvalid leasehold interests in) all Transferred Assets free and clear of all\nEncumbrances except Permitted Encumbrances (other than (i) Real Property, (ii)\nIntellectual Property, or (iii) the Transferred Equipment). DuPont has good and\nvalid title to (or in the case of leased Assets, valid leasehold interests in)\nthe Transferred Equipment free and clear of all Encumbrances except Permitted\nEncumbrances. Upon consummation of the Sale, Buyer will have acquired good and\nvalid title to the Transferred Equipment, free and clear of all Encumbrances,\nother than Permitted Encumbrances. Except for the Excluded Assets, (i) the\nTransferred Assets comprise all the Assets (other than Intellectual Property)\nprimarily employed or primarily used in or by DuPont and its Subsidiaries in the\nconduct and operation of the Transferred Business and (ii) there are no Assets\n(other than Intellectual Property, Assets being leased pursuant to a Lease or\nservices being provided under a Site Services Agreement, in each case that is a\nRelated Agreement) which are material to the conduct of the Transferred Business\nas currently conducted other than the Transferred Assets.\n\n                                       55\n\n \n                  3.16 Brokers and Finders. None of the Sellers or any\n                       -------------------\nTransferred Business Company or any of their respective officers, directors or\nemployees has employed any broker or finder or incurred any Liability for any\ninvestment banking fees, brokerage fees, commissions or finders' fees in\nconnection with the transactions contemplated by this Agreement, for which\nBuyer, Buyer Sub 1 or Buyer Sub 2 has or could have any Liability.\n\n                  3.17 Inventories. The inventory of finished goods held in the\n                       -----------\ntrade by the wholesale and warehousing customers of the Transferred Business\nCompanies does not constitute an amount of inventory exceeding in any material\nrespect in the case of each of (i) Sustiva(TM) 1.5 months, (ii) Coumadin(R) 3\nmonths, (iii) Cardiolite(R) 1.5 months and (iv) Sinemet(R) brand 10 months. The\naggregate amount of finished goods held in the trade by such wholesale and\nwarehousing customers shall be determined as of any date by reference to the\nmost recent IMS report provided by IMS on or prior to such date. As of the date\nof this Agreement, the inventory of finished goods owned by the Transferred\nBusiness Companies is not greater in any material respect than as set forth in\nthe March 31, 2001 DPC selected pro forma balance sheet items. Except for\ninventory with a cost of less than $750,000 in the aggregate (for which a\nreserve has been established), none of the finished goods inventory held by the\nTransferred Business Companies has an expiration date within 12 months.\n\n                  3.18     Contracts.\n                  ------------------\n\n                           (a) Except as set forth on Schedule 3.18, as of the\ndate of this Agreement, there is no Contract that constitutes a Transferred\nAsset or under which an Assumed Liability arises, to which a Transferred Asset\nor Assumed Liability is subject or to which a Transferred Business Company is a\nparty or by which its Assets are bound, that is:\n\n                               (i)    an employment agreement;\n\n                               (ii)   a collective bargaining agreement or other\n         agreement or arrangement with a labor union, labor organization,\n         workers council or similar body;\n\n                               (iii)  an agreement (A) which by its terms\n         contains a covenant that following the Closing would geographically\n         limit in any respect the ability or right of the Transferred Business\n         Companies or their Affiliates to compete or operate in any business or\n         (B) which otherwise prohibits the development, manufacture, marketing\n         or distribution or sale of the products and services of the\n\n                                       56\n\n \n         Transferred Business Companies or their Affiliates to any Person other\n         than the other party to any such agreement; provided that (x) any\n                                                     --------\n         development agreement with respect to a specified or a specified group\n         of compounds that contain restrictions with respect to the research,\n         development, manufacture, marketing, promotion or sale of the compounds\n         that are the primary subject of such agreement and (y) agreements of a\n         type described in clause (xiii) below (without regard to the dollar\n         limitation thereon) are excluded from the clause solely to the extent\n         any such agreement contains geographical exclusions with respect to the\n         exclusive territory or therapeutic categories that is the subject of\n         such agreement;\n\n                               (iv)   an agreement granting an Encumbrance\n         (other than a Permitted Encumbrance) on any material Transferred Asset\n         or, taken in the aggregate, a material portion of Transferred Assets\n         (other than, in the case of Contracts, any provision prohibiting,\n         limiting or requiring consent for the assignment thereof);\n\n                               (v)    a Contract with the Sellers or their\n         Affiliates (other than another Transferred Business Company) other than\n         Contracts that will be terminated at or prior to the Closing;\n\n                               (vi)   a Contract obligating any of the\n         Transferred Business Companies to make a future purchase of materials,\n         supplies or equipment that (A) has (I) annual payments by the\n         Transferred Business Companies in excess of $10,000,000 or an aggregate\n         future Liability pursuant to the terms of such Contract to any Person\n         in excess of $10,000,000 and (II) a term extending for more than one\n         year from the date of this Agreement or (B) is otherwise material with\n         respect to Sustiva;\n\n                               (vii)  a Contract providing for indemnification\n         by a Transferred Business Company (or which would be an Assumed\n         Liability) of any Person with respect to material Liabilities relating\n         to any current or former business of the Transferred Business;\n\n                               (viii) a license, sublicense, option or other\n         Contract affecting in whole or in part any of the Transferred Business\n         Companies' rights to any material Intellectual Property currently used\n         in the conduct of the Transferred Business (excluding any DuPont Shared\n         Know-how);\n\n                                       57\n\n \n                               (ix)   a Contract pursuant to which any of the\n         Transferred Business Companies guarantees indebtedness, liabilities or\n         obligations of any Person, other than an inter-company arrangement that\n         will terminate at or prior to the Closing;\n\n                               (x)    a Contract under which any advance, loan\n         or extension of credit or any capital contribution to, or other\n         investment in, has been or is to be made in any Person in each case\n         other than in the ordinary course of business consistent with past\n         practice;\n\n                               (xi)   a Contract (including a sales order)\n         obligating any of the Transferred Business Companies to deliver\n         products or services which has (I) annual payments in excess of\n         $10,000,000 or an aggregate future Liability pursuant to the terms of\n         such Contract to any Person in excess of $10,000,000 and (II) a term\n         extending for more than one year from the date of this Agreement;\n\n                               (xii)  a Contract for the sale of any material\n         Transferred Asset or material portion of Transferred Assets (other than\n         inventory sales in the ordinary course of business) that has not been\n         performed in all material respects as of the date of this Agreement or\n         the grant of any preferential rights to purchase any material\n         Transferred Asset;\n\n                               (xiii) a Contract providing for the services of\n         any dealer, distributor, sales representative or similar representative\n         involving annual payments or receipts or annual sales volume in excess\n         of $10,000,000; or\n\n                               (xiv)  any other Contract that is material to the\n         Transferred Business taken as a whole and not entered into in the\n         ordinary course of the Transferred Business.\n\n                           (b) Each Contract set forth or required to be set\nforth on Schedule 3.18 or Schedule 3.20 (the \"Transferred Contracts\") is legal,\n                                              ---------------------        \nvalid, binding and in full force and effect and is enforceable by the\nTransferred Business Companies in accordance with its terms except to the extent\nsuch enforceability may be limited by the bankruptcy, insolvency, or the Chapter\n11 or similar reorganization of the other party thereto. DuPont and its\nAffiliates have performed in all material respects all obligations required to\nbe performed by them under the Transferred Contracts and no event has occurred\nthat would render them (with or without the lapse of time or the \n\n                                       58\n\n\ngiving of notice, or both) in breach in any material respect or default\nthereunder and, to DuPont's Knowledge, no event has occurred that would render\nany other party to any such Transferred Contract (with or without the lapse of\ntime or the giving of notice, or both) in breach in any material respect or\ndefault thereunder as of the date of this Agreement or in a breach or default\nthat would reasonably be expected to have a Material Adverse Effect. None of\nDuPont nor any of its Affiliates has received any written, or to DuPont's\nKnowledge, oral notice of the intention of any party to terminate any such\nTransferred Contract or that any party considers that DuPont or its Affiliates\nare in breach in any material respect or default thereunder as of the date of\nthis Agreement or in a breach or default that would reasonably be expected to\nhave a Material Adverse Effect. Complete and correct copies of all of such\nTransferred Contracts, together with all modifications and amendments thereto,\nhave been made available to Buyer.\n\n                           (c) Except for the Transferred Business Plans, there\nis no Contract to which a Transferred Business Company is a party or by which a\nTransferred Asset is bound or an Assumed Liability arises that prior to Closing\nrequires any action or omission by DuPont or an Affiliate of DuPont that is not\nin the ordinary and usual course of the Transferred Business consistent with\npast practice or that would adversely impact in any material respect the ability\nof DuPont or an Affiliate of DuPont prior to Closing to preserve intact its\nbusiness organizations and relationships with third parties and to keep\navailable the services of their present officers and employees to the extent\nrelated to the Transferred Business.\n\n                  3.19 Shared Services. Except as set forth in Schedule 3.19 and\n                       ---------------\nexcept for the services to be provided under the Related Agreements and the\nDuPont Marks (the use of which shall be phased out by the Transferred Business\nCompanies pursuant to Section 5.7), (a) DuPont and its Affiliates (other than\nthe Transferred Business Companies) do not provide any material support services\nto the Transferred Business Companies and (b) DuPont and its Affiliates (other\nthan the Transferred Business Companies), on the one hand, and the Transferred\nBusiness Companies, on the other hand, do not share any material Assets which\nare used in, held for use in, or necessary for, the Transferred Business (other\nthan (i) Buyer Shared Know-how and DuPont Shared Know-how and (ii) Real Estate\nand certain related services as expressly contemplated by the Leases and Site\nServices Agreements).\n\n                  3.20 Agreements Restricting Affiliates. Except as set forth on\n                       ---------------------------------\nSchedule 3.20, there is no Contract that constitutes a Transferred Asset or\nunder which an Assumed Liability arises, or to which a Transferred Asset or\nAssumed Liability is subject or bound, that would limit or restrict in any\nmanner whatsoever the conduct or operation of the business of Buyer and its\nAffiliates (other than the\n\n                                       59\n\n \nTransferred Business Companies) after the Closing (other than confidentiality\nand non-disclosure agreements entered into in the ordinary course of business).\n\n\n                                   ARTICLE IV\n                                   ----------\n\n              REPRESENTATIONS AND WARRANTIES OF BUYER AND BUYER SUB\n              -----------------------------------------------------\n\n                  Buyer represents and warrants to the Sellers that, except as\nset forth in the Schedules to this Agreement delivered by Buyer with reference\nto the specific Section of this Agreement so qualified:\n\n                  4.1      Corporate Organization; Etc. Buyer is a corporation\n                           ---------------------------\nduly organized, validly existing and in good standing under the laws of the\njurisdiction of its incorporation.\n\n                  4.2      Authority Relative to this Agreement, Etc. Buyer has\n                           -----------------------------------------\nall requisite corporate authority and power to execute and deliver this\nAgreement and the Related Agreements to which it is a party and to consummate\nthe transactions contemplated hereby and thereby. The execution and delivery of\nthis Agreement and the Related Agreements to which Buyer is a party and the\nconsummation of the transactions contemplated hereby and thereby have been duly\nand validly authorized by the Board of Directors of Buyer. No other corporate\nproceedings on the part of Buyer (and no action on part of any stockholders of\nBuyer) or any Subsidiary thereof are necessary to authorize the execution,\ndelivery and performance of this Agreement and the Related Agreements to which\nit is a party or the consummation of the transactions contemplated hereby and\nthereby. This Agreement and the Related Agreements to which Buyer is a party\nhave been (or in the case of the Related Agreements, will be) duly and validly\nexecuted and delivered by Buyer and, assuming this Agreement and such other\nagreements have been duly authorized, executed and delivered by all of the other\nparties hereto, each of this Agreement and such other agreements constitutes (or\nin the case of the Related Agreements will constitute) a legal, valid and\nbinding agreement of Buyer, enforceable against Buyer in accordance with its\nterms.\n\n                  4.3      Consents and Approvals; No Violations. None of the\n                           -------------------------------------\nexecution, delivery or performance of this Agreement or the Related Agreements\nto which Buyer, Buyer Sub 1, Buyer Sub 2 or any of the Foreign Buyer Subs is a\nparty nor the consummation of the transactions contemplated hereby and thereby\nby Buyer, Buyer Sub 1, Buyer Sub 2 and the Foreign Buyer Subs will (a) violate\nany provision of the certificate of incorporation or bylaws of Buyer, Buyer Sub\n1, Buyer Sub 2 or any of\n\n                                       60\n\n \nthe Foreign Buyer Subs, (b) require any consent, waiver, approval, authorization\nor permit of, or filing with or notification to, any Governmental Authority,\nexcept for (i) filings with the FTC and the DOJ pursuant to the HSR Act, and the\nrules and regulations promulgated thereunder, (ii) requirements of the EC Merger\nRegulations or any other foreign Antitrust Laws and Laws regulating exchange or\ncurrency controls and (iii) such consents, waivers, approvals, authorizations,\npermits, filings or notifications which, if not obtained or made, would not, in\nthe aggregate, reasonably be expected to have a Buyer Material Adverse Effect,\n(c) give rise to any material preferential purchase rights, material rights of\nfirst refusal or similar material rights of any third party or result in a\nviolation or breach of, or constitute (with or without notice or lapse of time\nor both) a default (or give rise to any right of termination, cancellation or\nacceleration or any obligation to repay) or a loss of any benefit to which\nBuyer, Buyer Sub 1, Buyer Sub 2 or any of the Foreign Buyer Subs is entitled\nunder, any of the terms, conditions or provisions of any Indebtedness, mortgage,\nnote, bond, Encumbrance, license, government registration, Contract, Lease,\nfranchise, permit, agreement or other instrument or obligation to which Buyer is\na party or by which Buyer or any of its properties or Assets may be bound,\nexcept such violations, breaches and defaults which would not reasonably be\nexpected to have a Buyer Material Adverse Effect or (d) violate any Law\napplicable to Buyer, Buyer Sub 1, Buyer Sub 2 or any of the Foreign Buyer Subs\nor by which any of its properties or Assets may be bound, except such violations\nwhich would not reasonably be expected to have a Buyer Material Adverse Effect.\n\n                  4.4 Brokers and Finders. None of Buyer, Buyer Sub 1, Buyer Sub\n                      -------------------\n2 or any of the Foreign Buyer Subs or any of their officers, directors or\nemployees has employed any investment banker, broker or finder or incurred any\nLiability for any investment banking fees, brokerage fees, commissions or\nfinders' fees in connection with the transactions contemplated by this Agreement\nfor which DuPont or any Retained Subsidiary or, in the event the Closing does\nnot occur, any Transferred Business Company, has or could have any Liability.\n\n                  4.5 Financing. As of the date of this Agreement, Buyer, Buyer\n                      ---------\nSub 1, Buyer Sub 2 and the Foreign Buyer Subs have access to, and as of the\nClosing Buyer will have, sufficient funds necessary to (a) pay the Purchase\nPrice, and (b) pay all of their fees and expenses incurred in connection with\nthe transactions contemplated by this Agreement.\n\n                  4.6 Securities Act. Buyer, Buyer Sub 1, Buyer Sub 2 and the\n                      --------------\nForeign Buyer Subs are acquiring the DPC Interests, the DCI Shares, the DPRL\nShares, the DPL Shares and the Controlled Foreign Subsidiary Shares solely for\nthe purpose of investment and not with a view to, or for sale in connection\nwith, any distribution thereof in violation of the Securities Act or any\napplicable foreign\n\n                                       61\n\n \nsecurities laws. Buyer acknowledges that the DPC Interests, the DCI Shares, the\nDPRL Shares, the DPL Shares and the Controlled Foreign Subsidiary Shares being\nacquired by it and its Subsidiaries are not registered under the Securities Act,\nany applicable state securities law or any applicable foreign securities laws,\nand that such DPC Interests, DCI Shares, DPRL Shares, DPL Shares and the\nControlled Foreign Subsidiary Shares may not be transferred or sold except\npursuant to the registration provisions of the Securities Act or such applicable\nsecurities laws or pursuant to an applicable exemption therefrom and pursuant to\nstate securities laws and regulations, as applicable.\n\n\n                                    ARTICLE V\n                                    ---------\n\n                                    COVENANTS\n                                    ---------\n\n                  5.1      Conduct of Business.\n                  ----------------------------\n\n                           (a) During the period from the date of this Agreement\nto the Closing Date, except (i) as expressly permitted by this Agreement, (ii)\nas required by applicable Law or any Contract to which a Transferred Business\nCompany is a party or by which a Transferred Asset is bound or any Transferred\nBusiness Plan, (iii) with the consent of Buyer or (iv) as set forth on Schedule\n5.1, DuPont shall, and shall cause each Transferred Business Company and each of\nits other Subsidiaries, to conduct its business (other than activities which are\nnot part of the Transferred Business) in all material respects in the ordinary\nand usual course consistent with past practice and to use its commercially\nreasonable efforts to preserve intact its business organizations and\nrelationships with third parties and to keep available the services of their\npresent officers and employees.\n\n                           (b) Without limiting the generality of the foregoing\n(but subject to clauses (i), (iii) and (iv) above), during the period from the\ndate of this Agreement to the Closing Date, DuPont shall cause each of the\nTransferred Business Companies not to (and, solely to the extent such action\nrelates to the Additional Transferred Assets or gives rise to or increases an\nAssumed Liability, DuPont shall not and shall cause each of its Subsidiaries not\nto):\n\n                                    (1)  adopt or propose any change in its\n         respective certificates of incorporation, bylaws or other\n         constitutional documents, except for changes which would not have an\n         adverse impact on such company or on Buyer;\n\n                                       62\n\n \n                                    (2)  acquire, sell, transfer, lease or\n         otherwise dispose of any Assets of the Transferred Business outside of\n         the ordinary course of business consistent with past practice;\n\n                                    (3)  make any change in any method of\n         accounting, or accounting practice of any Transferred Business Company,\n         except for any such change required (A) by reason of a concurrent\n         change in Law, SEC guideline or GAAP or (B) by reason of a change in\n         DuPont's method of accounting practices that due to Law, SEC guidelines\n         or requirements or GAAP requires a change in the accounting practices\n         of a Transferred Business Company;\n\n                                    (4)  transfer any person providing services\n         as an employee, director, officer, independent contractor or consultant\n         (i) from DuPont to any of the Transferred Business Companies, or (ii)\n         from any of the Transferred Business Companies to DuPont, without the\n         prior written consent of Buyer, unless such transfer occurs pursuant to\n         a transfer that was pending as of date prior to the date hereof (the\n         \"Pending Transferred Employees\"). Schedule 5.1(b)(4) discloses the name\n          -----------------------------\n         of each Pending Transferred Employee.\n\n                                    (5)  other than in the ordinary course of\n         business consistent with past practice or as required by Law or\n         contractual obligations existing on the date of this Agreement, (i)\n         grant any severance or termination pay to (a) any of its employees,\n         other than ordinary course grants in amounts consistent with past\n         practice or (b) any of its directors or officers, (ii) increase\n         benefits payable under any existing severance or termination pay\n         policies or employment agreements, (iii) enter into any material\n         employment, consulting, deferred compensation or other similar\n         agreement (or adopt any amendment to any such existing agreement) with\n         any of its directors or officers, (iv) establish, adopt or amend\n         (except as required by applicable Law) any collective bargaining,\n         bonus, profit sharing, thrift, pension, retirement, change-in-control,\n         deferred compensation, compensation, stock option, restricted stock or\n         other benefit plan or arrangement covering any of its directors,\n         officers or employees, or (v) materially increase compensation, bonus\n         or other benefits payable to any of its directors or officers;\n\n                                    (6)  incur, except in the ordinary course of\n         business consistent with past practices, any Indebtedness or\n\n                                       63\n\n \n         Encumbrance on any Transferred Assets, except for Permitted\n         Encumbrances;\n\n                                    (7)  make any capital expenditure except as\n         reflected in the capital expenditure plan of the Transferred Business\n         Companies (a copy of which has been furnished to Buyer) and except for\n         expenditures not in excess of $10 million in the aggregate;\n\n                                    (8)  settle or agree to settle any DPC\n         Action (excluding any Action related to Taxes) which settlements, in\n         the aggregate, would be in excess of $10 million or which would impose\n         any injunctive, equitable or other non-monetary relief or remedy which\n         in any case impacts in any material respect the Transferred Business or\n         in any respect the business of Buyer and its Affiliates, other than the\n         Transferred Business Companies;\n\n                                    (9)  issue or sell any new debt securities,\n         incur any long-term Indebtedness or enter into any new credit facility;\n\n                                    (10) merge or consolidate with any other\n         Person or acquire any other Person or a business, division or product\n         line of any other Person (except as provided for in this Agreement);\n\n                                    (11) enter into, extend, renew or terminate\n         (i) any Contract of the type described in Section 3.18(a)(iii), (ii)\n         any Contract of the type described in Section 3.18(a)(vi)(B) (other\n         than in the ordinary course of business consistent with past practice),\n         (iii) any Contract of the type set forth in Schedule 5.20(a)(i)(A) or\n         5.20(a)(ii)(A) or a DuPont Merck Agreement (except for the termination\n         of the License and Services Agreement, dated January 1, 1991, referred\n         to in Schedule 5.20(b)), except to the extent that any such extension,\n         renewal or termination does not result in any additional liability to\n         Buyer or any of the Transferred Business Companies or (iv) any other\n         Contract other than in the ordinary course of business consistent with\n         past practice;\n\n                                    (12) except as set forth in Section 5.1(c)\n         and except for Excluded Assets, declare, set aside or pay any dividend\n         or make any other distribution to its stockholders or other equity\n         holders, redeem or otherwise acquire any shares of its capital stock or\n         other equity interests or issue, sell or otherwise dispose of any\n         capital stock or other equity interests or any option, warrant or other\n         similar\n\n                                       64\n\n \n         right or any securities convertible into or exchangeable for any such\n         securities above;\n\n                                    (13) except as set forth in Section 5.1(c)\n         and except for any Excluded Assets, pay, loan or advance any amount to,\n         or sell, transfer or lease any of its assets to, or enter into any\n         Contract with, or make any payments to or on behalf of DuPont or any of\n         its Affiliates (other than the Transferred Business Companies);\n\n                                    (14) settle or compromise any material Tax\n         liability or make or change any material Tax election; or\n\n                                    (15) agree or commit to do any of the\n         foregoing.\n\n                           (c) Notwithstanding any provision herein to the\ncontrary, prior to the Closing, each of the Transferred Business Companies will\nbe permitted to (A) declare and pay dividends and distributions of, or otherwise\ntransfer, to DuPont or any Subsidiary thereof (i) Cash, (ii) any Excluded\nAssets, and (iii) any DuPont Books and Records.\n\n                           (d) Between the date of this Agreement and the date\nof the Closing, DuPont shall cause each of the Transferred Business Companies\nnot to sell, distribute or promote sales of its products in a manner that would\nreasonably be expected to result in \"trade loading\" or otherwise in a material\nincrease in the inventory levels, taken in the aggregate, of products of the\nTransferred Business held by distributors of such products. Any such conduct by\na Transferred Business Company shall be deemed to not be in all material\nrespects in the ordinary and usual course of business of the Transferred\nBusiness or the Transferred Business Companies. DuPont and its Affiliates shall\nuse their reasonable best efforts after execution of this Agreement and prior to\nthe Closing to comply with the plan to reduce the amount of inventory of\nfinished goods of the Transferred Business Companies consistent with the\ninventory levels set forth in Schedule 5.1(d).\n\n                  5.2 Access to Information. From the date of this Agreement\n                      ---------------------\nuntil the Closing, DuPont will, and will cause its Subsidiaries to, give Buyer\nand its Representatives reasonable access to the DPC Books and Records and to\nsuch personnel, offices and other facilities and properties and Assets of the\nTransferred Business Companies and to furnish such other information in respect\nof the operation of the Transferred Business as Buyer may reasonably request;\nprovided, that all requests for access pursuant to this Section 5.2 shall be\n--------\nmade in writing and shall be directed to and coordinated with the Chief\nFinancial Officer of DPC or such person or\n\n                                       65\n\n \npersons as he shall designate; provided, further, that any such access shall be\n                               --------  -------\nconducted at a reasonable time, upon reasonable advance notice to DuPont, and in\nsuch a manner as not to interfere unreasonably with the operation of any\nbusiness conducted by any Transferred Business Companies. In addition, during\nsuch period, DuPont and its Affiliates shall use their reasonable best efforts\nto allow Buyer and its Representatives to communicate with, and to review all\nwork papers, schedules, memoranda and other documents prepared by,\nPricewaterhouseCoopers LLP during the course of its audit or review of the DPC\nFinancial Statements, and such access shall be provided promptly after request\nby Buyer and\/or its Representatives; provided, that the foregoing shall be\n                                     --------\nsubject to professional liability standards and PricewaterhouseCoopers LLP\npolicy, which may include, without limitation, the requirement that Buyer and\nits Representatives sign an \"indemnification letter\" in the form generally used\nby PricewaterhouseCoopers LLP prior to receiving access to any materials\nprepared by PricewaterhouseCoopers LLP. All such information and access shall be\nsubject to the terms and conditions of the confidentiality agreement dated\nJanuary 30, 2001 between Buyer and DuPont (the \"Confidentiality Agreement\").\n                                                -------------------------\nNotwithstanding anything to the contrary in this Agreement, neither DuPont nor\nits Subsidiaries (including the Transferred Business Companies) shall be\nrequired to disclose any information to Buyer or its Representatives if doing so\npresents a significant risk of violating any Contract or Law to which DuPont or\nany of its Subsidiaries is a party or to which it is subject or which it\nbelieves in good faith presents a significant risk, based on an opinion of\ncounsel (which can be given by inside counsel), of resulting in a loss of the\nability to successfully assert a claim of Privilege; provided that the parties\n                                                     --------\nhereto shall cooperate in seeking to find a way to allow disclosure of such\ninformation without resulting in a loss of the ability to successfully assert a\nclaim of Privilege. Notwithstanding the foregoing, Sellers shall not be required\nto provide any such information as and to the extent it relates to the Retained\nBusiness, the Excluded Assets or the Retained Liabilities.\n\n                  5.3      Consents and Approvals.\n                  -------------------------------\n\n                           (a) DuPont and Buyer will cooperate, and will cause\ntheir respective Affiliates to cooperate, with respect to the notices and\nfilings to be made in connection with the consents, approvals, waivers and\nauthorizations under Law required prior to or after the Closing in connection\nwith the transactions contemplated hereby. Any such notice prepared by any of\nthe Transferred Business Companies for the benefit of any employee shall be\nreasonably satisfactory to Buyer. Subject to the provisions of Section 5.3(b),\neach of the parties hereto shall use its reasonable best efforts to (i) cause\nthe Closing to occur on or prior to September 30, 2001 or as soon as possible\nthereafter and obtain as promptly as practicable all material consents,\nauthorizations, approvals and waivers required in connection with the\nconsummation of the transactions contemplated by this Agreement under any Law,\nincluding all state\n\n                                       66\n\n \nproperty transfer laws and Environmental Laws, or any Contract, (ii) lift or\nrescind any injunction or restraining order or other order adversely affecting\nthe ability of the parties hereto to consummate the transactions contemplated\nhereby, (iii) effect all necessary notifications, or registrations and filings\nincluding, but not limited to, the Required Filings and submissions of\ninformation required by any Governmental Authority (including any such\nnotifications, registrations or filings required post-Closing), (iv) obtain as\npromptly as practicable all material consents, authorizations, approvals and\nwaivers required in connection with all state property transfer laws, including\nthe receipt of a Letter of Non-Applicability (\"LNA\"), or its equivalent,\n                                               ---\npursuant to the State of New Jersey's Industrial Site Recovery Act (\"ISRA\")\n                                                                     ----\nrespecting all Transferred Assets at the Chambers Works facility in Deepwater,\nNJ, and (v) effect the transfer of all Environmental Permits, without material\nchanges to the operating conditions or discharge limitations contained therein,\nrequired for the operations of the Transferred Business and all the Transferred\nEnvironmental Assets. Sellers will timely notify Buyer and give Buyer the\nopportunity to participate in all negotiations with the relevant Governmental\nAuthorities with respect to the terms and conditions of any Environmental\nPermits to be transferred. Alternatively, and where not prohibited by Law or the\nterms of any Environmental Permit, the parties may execute an agreement\nproviding that some or all of the operations of the Transferred Business and the\nTransferred Environmental Assets will be conducted after Closing, subject to the\nsame material operating conditions and discharge limitations, pursuant to\nexisting Permits held by DuPont, DPC or DPI, as applicable. Subject to the\nprovisions of Section 5.3(b), the parties hereto further covenant and agree,\nwith respect to any threatened or pending preliminary or permanent injunction or\nother order, decree, ruling, statute, rule, regulation or executive order that\nwould adversely affect the ability of the parties hereto to consummate the\ntransactions contemplated hereby, to respectively use their reasonable best\nefforts to prevent the entry, enactment or promulgation thereof, as the case may\nbe.\n\n                           (b) With respect to filings required under applicable\nAntitrust Laws, each of the parties shall prepare and make, or cause to be made,\nthe Required Filings under the HSR Act within five (5) Business Days following\nthe execution of this Agreement and all other Required Filings under applicable\nAntitrust Laws within twenty (20) Business Days following the execution of this\nAgreement and thereafter use reasonable best efforts to certify as soon as\npracticable its substantial compliance with any requests for additional\ninformation or documentary materials in connection therewith. Buyer shall use\nits reasonable best efforts to resolve such objections, if any, as may be\nasserted with respect to the transactions contemplated hereby under any\nAntitrust Laws by any Governmental Authorities with regulatory jurisdiction over\nenforcement of any applicable Antitrust Laws (each, a \"Governmental Antitrust\n                                                       ---------------------- \nEntity\") and shall take such action as may be required to (i) avoid the entry\n------\nof, or to effect the dissolution, modification or suspension of, any injunction,\ntemporary\n\n                                       67\n\n \nrestraining order or other order that has the effect of preventing or delaying\nthe consummation of any of such transactions by any domestic or foreign court or\nsimilar tribunal in any suit brought by a Governmental Antitrust Authority or by\na private party challenging the transactions contemplated hereby as violative of\nany Antitrust Laws, or (ii) to resolve any objections of any Government\nAntitrust Entity in a manner and at a time that would allow the Closing to occur\nprior to the Outside Date. Except as qualified by the following sentence,\nneither the taking of any action that Buyer is required to take pursuant to this\nSection 5.3(b) nor the entry by a court, in any suit brought by a private party\nor Governmental Antitrust Entity challenging the transactions contemplated\nhereby as violative of any Antitrust Laws, of an order or decree permitting the\ntransactions contemplated hereby but requiring that any assets or businesses be\ndivested or held separate by Buyer, or that would otherwise limit Buyer's\nfreedom of action with respect to, or its ability to retain, any assets or\nbusinesses shall be deemed a failure to satisfy the conditions specified in\nSection 7.2, and, notwithstanding such order or decree, Buyer shall still be\nobligated to deliver the full amount of the Closing Purchase Price at the\nClosing and the Final Closing Adjustment, if any, pursuant to Section 2.4.\nNotwithstanding the foregoing provisions of this Section 5.3, under no\ncircumstances will Buyer be required to divest, hold separate or otherwise limit\nBuyer's freedom of action with respect to, or its ability to retain, any of the\nassets or businesses listed on Schedule 5.3(b) and any requirement to do so\nwould constitute a failure to satisfy the condition specified in Section 7.2(e).\nIn the event of any inconsistency or conflict between the provisions of this\nSection 5.3(b) and any other provision of this Agreement, the provisions of this\nSection 5.3(b) shall govern. No action taken pursuant to this Section 5.3(b),\nwhether or not Buyer is required to take such action, shall be a basis for\nindemnification pursuant to Article VIII.\n\n                           (c) Each party hereto shall promptly inform the other\nof any written or substantive oral communication from any Governmental Antitrust\nEntity regarding any of the transactions contemplated hereby. If any party\nhereto or any Affiliate thereof receives a request for information or\ndocumentary material from any such Governmental Antitrust Entity with respect to\nthe transactions contemplated hereby, then such party shall endeavor in good\nfaith to make, or cause to be made, as soon as reasonably practicable and after\nconsultation with the other party, an appropriate response in compliance with\nsuch request and to provide the other party (and its counsel), upon request,\nadvance drafts of all presentations and filings in connection therewith. All\nsubstantive telephone calls and meetings with a Governmental Antitrust Entity in\nconnection with the transactions contemplated hereby shall include\nRepresentatives of each of Buyer and DuPont (except to the extent that the\napplicable Governmental Antitrust Entity does not permit such inclusion).\n\n                                       68\n\n \n                  5.4 Further Assurances. Subject to Section 5.3, each of the\n                      ------------------\nparties hereto agrees to use its reasonable best efforts before and after the\nClosing Date to take or cause to be taken all action, to do or cause to be done,\nand to assist and cooperate with the other party hereto in doing, all things\nnecessary, proper or advisable under applicable Laws to consummate and make\neffective, in the most expeditious manner practicable, the transactions\ncontemplated by this Agreement, including, but not limited to, (i) the\nsatisfaction of the conditions precedent to the obligations of any of the\nparties hereto; (ii) to the extent consistent with the obligations of the\nparties set forth in Section 5.3, the defending of any lawsuits or other legal\nproceedings, whether judicial or administrative, challenging this Agreement or\nthe performance of the obligations hereunder; and (iii) the execution and\ndelivery of such instruments, and the taking of such other actions, as the other\nparty hereto may reasonably require in order to carry out the intent of this\nAgreement.\n\n                  5.5 Intercompany Accounts and Arrangements. (a) Except as\n                      -------------------------------------- \nexpressly modified by a Related Agreement and except for the agreements set\nforth on Schedule 5.5 hereto, all intercompany arrangements and agreements,\nwhether written or oral, providing goods, services or joint activities between\nDuPont or any of the Retained Subsidiaries, on the one hand, and any of the\nTransferred Business Companies, on the other hand, shall be terminated and of no\nfurther force and effect after the Closing. Effective upon the Closing, all\noutstanding intercompany accounts, whether payables or receivables, between\nDuPont or any of the Retained Subsidiaries, on the one hand, and any of the\nTransferred Business Companies, on the other hand, shall be cancelled and of no\nfurther force and effect (it being understood that such cancellation shall not\nin any way affect the Related Agreements or any amounts which may be payable\npursuant to the Related Agreements).\n\n                           (b) Except to the extent provided to the contrary in\nSection 5.5(a), effective as of the Closing: (i) Buyer, on behalf of the\nTransferred Business Companies, hereby releases DuPont and each of the Retained\nSubsidiaries (and their respective officers, directors and employees, acting in\ntheir capacity as such) from any Liability, obligation or responsibility to any\nof them for any and all past actions or failures to take action prior to\nClosing, including any actions which may be deemed to have been negligent or\ngrossly negligent, relating to or arising out of Contracts with DuPont or a\nSubsidiary thereof or the operation or conduct of any businesses, Assets\n(including activities performed thereat) or operations managed or operated by,\nor operationally related to, directly or indirectly, to the Transferred Business\nor the Retained Business, except for any Liability, obligation or responsibility\nfor any action or failure to take action in accordance with the provisions of\nthis Agreement or for any fraudulent act or willful or intentional misconduct in\nthe operation or conduct of Transferred Business prior to the Closing Date; and\n(ii) DuPont, for itself and on behalf of its Subsidiaries other than the\n\n                                       69\n\n \nTransferred Business Companies, hereby releases the Transferred Business\nCompanies (and their respective officers, directors and employees, acting in\ntheir capacity as such) from any Liability, obligation or responsibility to any\nof them for any and all past actions or failures to take action prior to\nClosing, including any actions which may be deemed to have been negligent or\ngrossly negligent, relating to or arising out of Contracts with DuPont or a\nSubsidiary thereof or the operation or conduct of any businesses, Assets\n(including activities performed thereat) or operations managed or operated by,\nor operationally related to, directly or indirectly, the Transferred Business or\nthe Retained Business, except for any Liability, obligation or responsibility\nfor any fraudulent act or willful or intentional misconduct in the operation or\nconduct of the Transferred Business or the Retained Business prior to the\nClosing Date.\n\n                           (c) Nothing set forth in this Section 5.5 shall limit\nor otherwise affect any party's rights or obligations pursuant to, or\ncontemplated by, this Agreement and the Related Agreements, including any\nobligations relating to indemnification and the assumption of Liabilities.\n\n                  5.6 Provision of Corporate Records. As soon as practicable\n                      ------------------------------\nafter the Closing Date, DuPont shall use its commercially reasonable efforts to\ndeliver or cause to be delivered to Buyer all DPC Books and Records then in the\npossession of DuPont or any Retained Subsidiary, and Buyer shall use its\ncommercially reasonable efforts to deliver or cause to be delivered to DuPont\nall DuPont Books and Records then in the possession of any Transferred Business\nCompany. The foregoing shall be limited by the following specific provisions:\n\n                               (i)    To the extent any document (including\n         computer tape) can be subdivided without unreasonable effort into two\n         portions, one of which constitutes a DPC Book and Record and the other\n         of which constitutes a DuPont Book and Record, such document (including\n         computer tape) shall be so sub-divided, and the original of the portion\n         such document (including computer tape) which constitutes a DPC Book\n         and Record shall be provided to Buyer (with a copy thereof provided to\n         DuPont) and the original of the portion such document (including\n         computer tape) which constitutes a DuPont Book and Record shall be\n         provided to DuPont (with a copy thereof provided to Buyer).\n\n                               (ii)   Neither party shall be required to conduct\n         any company-wide search or investigation of files.\n\n                                       70\n\n \n                               (iii)  \"Commercially reasonable efforts\" shall\n         require, without limitation, deliveries of any such specific and\n         discrete books and records requested in writing by either party.\n\n                               (iv)   Each party may retain copies of books and\n         records delivered to the other, subject to holding in confidence in\n         accordance with Section 5.15 hereof information contained in such books\n         and records.\n\n                               (v)    Each party may refuse to furnish any\n         Information if it believes in good faith that doing so presents, based\n         on an opinion of counsel (which can be inside counsel), a significant\n         risk of loss of the ability to successfully assert a claim of\n         Privilege; provided that the parties hereto shall cooperate in seeking\n                    --------\n         to find a way to allow disclosure of such information without resulting\n         in a loss of the ability to successfully assert a claim of privilege.\n\n                               (vi)   Neither party shall be required to deliver\n         to the other books and records or portions thereof which are subject to\n         confidentiality agreements which would by their terms prohibit such\n         delivery; provided, however, if requested by the other party, such\n                   --------  -------\n         party shall use its commercially reasonable efforts to seek a waiver of\n         such confidentiality restriction.\n\n                               (vii)  DuPont may redact any Information covered\n         by this Section 5.6 as and to the extent such Information relates to\n         the Retained Business, the Excluded Assets or the Retained Liabilities.\n\n                               (viii) Buyer may redact any Information covered\n         by this Section 5.6 as and to the extent such Information relates to\n         Buyer's business, assets or liabilities other than the Transferred\n         Business Companies, the Transferred Assets and the Assumed Liabilities.\n\n                  5.7 Names. Buyer agrees that it shall, and shall cause the\n                      -----\nTransferred Business Companies to, as soon as reasonably practicable after the\nClosing Date and in any event within (x) 180 days (in the case of clause (a)(i)\nbelow) and (y) one business day (in the case of clause (a)(ii) and (b) below)\nfollowing the Closing Date, (a) cease to (i) make any use of the name \"DuPont,\"\nand any Trademarks related thereto or containing or comprising the foregoing,\nincluding any name or mark confusingly similar thereto or dilutive thereof (the\n\"DuPont Marks\"), and (ii)\n ------------\n                                       71\n\n \nhold itself out as having any affiliation with DuPont or any of its\nSubsidiaries, and (b) in the case of any Transferred Business Company whose name\nincludes any DuPont Mark to change its corporate name to a name that does not\ninclude any DuPont Mark and to make any necessary legal filings with the\nappropriate Governmental Authority to effectuate such change. In furtherance\nthereof, as promptly as reasonably practicable but in no event later than 180\ndays following the Closing Date, Buyer shall, and shall cause its Subsidiaries\nto, remove, strike over or otherwise obliterate all DuPont Marks from (or\notherwise not use) all materials owned by any of the Transferred Business\nCompanies, including, without limitation, any vehicles, business cards,\nschedules, stationery, packaging materials, displays, signs, promotional\nmaterials, manuals, forms, computer software and other materials or media\nincluding any Internet usage or domain names that include the DuPont Marks;\nprovided that Buyer and the Transferred Business Companies may during such\n--------\n180-day period continue to use any material containing a DuPont Mark to the\nextent that it is not reasonably practicable to remove or cover up such DuPont\nMark. Notwithstanding the above, Buyer and the Transferred Business Companies\nshall have a right to sell off existing inventory of products manufactured or\npackaged by or for any of the Transferred Business Companies, which products\nbear any DuPont Marks, for a period of one year; provided, however, that Buyer\n                                                 --------  -------\nand the Transferred Business Companies may use the DuPont Marks solely in\npackage inserts that have been packaged with products as of the Closing Date and\nonly until the applicable expiration date of each such respective product. Any\nuse of the DuPont Marks by Buyer pursuant to this Section 5.7 shall be in\nreasonable conformity with the practices of DuPont as of the Closing Date and\nshall be in a manner that is not intended to or is not reasonably likely to harm\nor disparage DuPont or the reputation or goodwill of the DuPont Marks.\nNotwithstanding the foregoing, nothing in this Section 5.7 shall be construed to\nrequire, or to permit, Buyer to take, or fail to take, any action which is in\nviolation of the rules and regulations of the Food and Drug Administration.\n\n                  5.8      Intellectual Property.\n                  ------------------------------\n\n                           (a) Upon the Closing, DuPont and the Retained\nSubsidiaries shall receive from Buyer a grant of a world-wide, irrevocable\nimmunity from suit by Buyer and the Transferred Business Companies for the\ncontinued use after the Closing Date of the Buyer Shared Know-how outside of the\nPharmaceutical Field of Use; provided, however, that such immunity shall be\n                             --------  -------\nlimited to use by DuPont or any of the Retained Subsidiaries of any such Buyer\nShared Know-how for internal research and development outside the Pharmaceutical\nField of Use; and provided, further, that such immunity shall extend only to\n                  --------  -------\nBuyer Shared Know-how in such use by DuPont or any of the Retained Subsidiaries\nas of the Closing Date; and provided, further, that neither DuPont nor the\n                            --------  -------\nRetained Subsidiaries shall have the right to transfer or grant such immunity to\na third party other than a third party purchaser of\n\n                                       72\n\n \nsubstantially all the business and Assets to which such immunities pertain. In\nthe event that a third party acquires (by operation of law or otherwise) all or\nsubstantially all of the businesses or assets of Buyer to which such immunities\npertain, or acquires (by operation of law or otherwise) a 50% or greater voting\nequity interest in Buyer, Buyer shall require such acquiring party to maintain\nthe immunities set forth in this Section 5.8(a).\n\n                           (b) Upon the Closing, Buyer shall receive from DuPont\na grant of a world-wide, irrevocable immunity from suit by DuPont and the\nRetained Subsidiaries for the continued use after the Closing Date of the DuPont\nShared Know-how inside of the Pharmaceutical Field of Use; provided, however,\n                                                           --------  -------\nthat such immunity shall be limited to use by Buyer or any of its Subsidiaries\nof any such DuPont Shared Know-how for internal research and development inside\nof the Pharmaceutical Field of Use; and provided, further, that such immunity\n                                        --------  -------\nshall extend only to such DuPont Shared Know-how in such use by the Transferred\nBusiness Companies as of the Closing Date; and provided, further, that Buyer\n                                               --------  -------\nshall not have the right to transfer or grant such immunity to a third party\nother than a third party purchaser of substantially all the business and Assets\nto which such immunities pertain. In the event that a third party acquires (by\noperation of law or otherwise) all or substantially all of the businesses or\nassets of DuPont to which such immunities pertain, or acquires (by operation of\nlaw or otherwise) a 50% or greater voting equity interest in DuPont, DuPont\nshall require such acquiring party to maintain the immunities set forth in this\nSection 5.8(b).\n\n                           (c) Upon the Closing, Buyer shall receive from\nDuPont, in a separate patent license agreement to be agreed upon by DuPont and\nBuyer, a grant of a world-wide, royalty-free, exclusive, fully paid-up, freely\nsublicenseable, perpetual license inside of the Pharmaceutical Field of Use\n(except that such license shall be non-exclusive with respect to \"biological\nproducts\" as set forth and conditioned within the definition of Pharmaceutical\nField of Use) to the rights related to:\n\n                               (i)    the Bile Acid Sequesterant Technology\n         Patents, as set forth on Schedule 5.8(c)(i) hereto, subject to any\n         license previously granted by DuPont or the Transferred Business\n         Companies, provided that any such license granted after the date of\n         this Agreement shall not be beyond the scope permitted under this\n         paragraph (c); and\n\n                               (ii)   the rights related to the Roxifiban\n         Process Patents, as set forth on Schedule 5.8(c)(ii) hereto.\n\n                           (d) Upon the Closing, Buyer shall receive from\nDuPont, in a separate patent license agreement to be agreed upon by DuPont and\nBuyer, a grant of\n\n                                       73\n\n \na world-wide, royalty-free, non-exclusive, fully paid-up, non-sublicenseable\n(except to Affiliates, collaborators, or any other Person assisting Buyer in\nresearch and development efforts or contract manufacturing), perpetual license\ninside of the Pharmaceutical Field of Use to:\n\n                               (i)    the rights related to the Catalysts for\n         Asymmetric Addition Patents, as set forth on Schedule 5.8(d)(i) hereto.\n\n                               (ii)   the rights related to the Lux Patents, as\n         set forth on Schedule 5.8(d)(ii) hereto;\n\n                               (iii)  the rights related to the OncoMouse\n         Patents, as set forth on Schedule 5.8(d)(iii) hereto; and\n\n                               (iv)   the rights related to the Info Evolve and\n         Pattern Discovery Patents as set forth on Schedule 5.8(d)(iv) hereto.\n\n                           (e) Upon the Closing, Buyer shall receive from\nDuPont, in a separate patent license agreement to be agreed upon by DuPont and\nBuyer, a grant of a world-wide, royalty-free, exclusive, fully paid-up, freely\nsublicenseable, perpetual license inside of the Pharmaceutical Field of Use\n(except that such license shall be non-exclusive with respect to \"biological\nproducts\" as set forth and conditioned within the definition of Pharmaceutical\nField of Use) to the rights related to the Cre-Lox Patents, subject to the\nlicenses previously granted by either DuPont or the Transferred Business\nCompanies. Notwithstanding the preceding sentence, all rights and obligations of\nthe Transferred Business Companies under the Cre-Lox agreements listed on\nSchedule 5.8(e) hereto in force as of the Closing Date shall inure to Buyer.\n\n                           (f) Upon the Closing, Buyer shall receive from\nDuPont, in a separate patent license agreement to be agreed upon by DuPont and\nBuyer, a grant of a world-wide, royalty-free, non-exclusive, fully paid-up,\nnon-sublicensable, perpetual license inside of the Pharmaceutical Field of Use\nto DuPont's rights under the PDG Participant License Agreement, dated January 1,\n1999, between the Lemelson Medical, Education and Research Foundation, Limited\nPartnership, and DuPont (the \"Lemelson Agreement\"), to the extent that such\n                              ------------------\ngrant by DuPont is permitted under the Lemelson Agreement.\n\n                           (g) Upon the Closing, DuPont shall receive from\nBuyer, in a separate know-how license agreement to be agreed upon by DuPont and\nBuyer, a grant of a world-wide, royalty-free, exclusive, fully paid-up, freely\nsublicenseable,\n\n                                       74\n\n \nperpetual license outside of the Pharmaceutical Field of Use (and a\nnon-exclusive license, otherwise on the same terms with respect to \"biological\nproducts\") to the rights related to the Deletion Mutants in E Coli technology,\nincluding, but not limited to, access to the samples of the Deletion Mutants\nexisting as of the Closing.\n\n                           (h) Upon the Closing, DuPont shall receive from\nBuyer, in a separate patent license agreement to be agreed upon by DuPont and\nBuyer, a grant of a world-wide, royalty-free, non-exclusive, fully paid-up,\nnon-sublicenseable (except to Affiliates, collaborators or any other Person\nassisting DuPont in research and development efforts or contract manufacturing),\nperpetual license outside of the Pharmaceutical Field of Use (and a\nnon-exclusive license, otherwise on the same terms with respect to \"biological\nproducts\") to:\n\n                               (i)    the rights related to the Combichem\n         Patents, as set forth on Schedule 5.8(h)(i) hereto; and\n\n                               (ii)   the rights related to the Combichem\n         Discovery Engine, as set forth on Schedule 5.8(h)(ii) hereto subject to\n         any license agreement existing as of Closing that would prevent such\n         rights from being granted, or would cause Buyer to incur an additional\n         financial obligation, except in the latter case if DuPont agrees to\n         accept such obligation).\n\n                           (i) At the request of DuPont made within three (3)\nyears from Closing, DuPont shall receive from Buyer in a separate patent license\nagreement to be agreed upon by Buyer and DuPont following such request, a grant\nof a world-wide, royalty-free, non-exclusive, fully paid-up, freely\nsublicenseable, perpetual license outside the Pharmaceutical Field of Use, to\nthe rights related to any Patents pending or issued as of Closing and owned (and\navailable for such license at the time of such request) by the Transferred\nBusiness Companies for a compound in DuPont's Chemical and Biological Clearing\nHouse as of the date of this Agreement other than those set forth on Schedule\n1.1(d) hereto or the use of such a compound outside the Pharmaceutical Field of\nUse; provided that such licenses shall not apply to any commercialized products\n     -------- \nor nominated compounds of the Transferred Business Companies as of the Closing\nDate.\n\n                           (j) At the request of Buyer made within three (3)\nyears from Closing, Buyer shall receive from DuPont in a separate patent license\nagreement to be agreed upon by DuPont and Buyer following such request, a grant\nof a world-wide, royalty-free, non-exclusive, fully paid-up, freely\nsublicensable, perpetual license inside the Pharmaceutical Field of Use, to the\nrights related to any Patents pending or issued as of the Closing and owned (and\navailable for such license at the time of such\n\n                                       75\n\n \nrequest) by DuPont or the Retained Subsidiaries for a compound set forth on\nSchedule 1.1(d) hereto and the compounds within the Transferred Business\nCompanies' Pharma DB Library as of the date of this Agreement or the use of such\na compound inside the Pharmaceutical Field of Use; provided that such licenses\n                                                   --------\nshall not apply to any commercialized products or compounds nominated for\nagricultural venture qualification or other comparable stages of development in\nother fields of DuPont or the Retained Subsidiaries as of the Closing Date.\n\n                           (k) For a period of three (3) years from the Closing\nDate, Buyer shall have (i) full rights to access the compounds set forth on\nSchedule 1.1(d) from DuPont's Chemical and Biological Clearing House and (ii)\nthe right to access any compounds in DuPont's Chemical and Biological Clearing\nHouse, other than those listed on Schedule 1.1(d), which compounds are within\nthe literal scope of pending or issued Patents owned by or licensed to the\nTransferred Business Companies which Patents cover the nominated compounds\nspecifically identified on page 49 of the DuPont Pharmaceuticals Company\nConfidential Offering Memorandum, dated February, 2001, previously distributed\nto Buyer, to the extent such compounds remain available for such access. In each\ncase, such access shall be provided pursuant to a separate site services access\nagreement to be entered into by Buyer and DuPont on the Closing Date, which\nshall provide that DuPont shall provide services related to the storage and\nretrieval of samples accessible pursuant to the foregoing sentence at Buyer's\nexpense at a price equal to DuPont's fully-allocated cost. In addition, prior to\nthree (3) years from the Closing Date, DuPont shall as promptly as reasonably\npracticable deliver to Buyer, at Buyer's request and expense at a price equal to\nDuPont's fully-allocated cost, all of the compounds remaining in DuPont's\npossession set forth on Schedule 1.1(d) from DuPont's Chemical and Biological\nClearing House.\n\n                  5.9 Post-Closing Cooperation. DuPont and Buyer shall cooperate\n                      ------------------------\nwith each other, and shall cause their respective Subsidiaries and\nRepresentatives to cooperate with each other, for a period of 180 days after the\nClosing, to ensure the orderly transition of each Transferred Business Company\nand all Transferred Assets and Assumed Liabilities from DuPont to Buyer\n(including the transition of any information technology systems) and to minimize\nany disruption to their respective businesses that might result from the\ntransactions contemplated hereby. Notwithstanding the forgoing, at any time\nafter the Closing, upon reasonable written notice, DuPont and Buyer shall\nfurnish or cause to be furnished to the other party and its employees, counsel,\nauditors and Representatives reasonable access, during normal business hours, to\nsuch Information and assistance relating to the Transferred Business Companies,\nTransferred Assets and Assumed Liabilities as is reasonably necessary for\nfinancial reporting and accounting matters, the preparation and filing of any\nTax Returns or the defense of any Tax Audit or any other requirement under any\n\n                                       76\n\n \napplicable Law or regulation; provided that the provisions of Article VI shall\n                              --------\ngovern with respect to all Tax-related matters to the extent any provision in\nArticle VI is in conflict with this Section 5.9; provided, further, that\n                                                 --------  -------\nnotwithstanding anything to the contrary in this Agreement, neither DuPont nor\nthe Retained Subsidiaries, on the one hand, and neither Buyer nor its\nSubsidiaries, on the other hand, shall be required to disclose any information\nto the other or its Representatives if doing so presents a significant risk of\nviolating any Law or Contract to which DuPont or any of the Retained\nSubsidiaries, on the one hand, or Buyer or any its Subsidiaries, on the other\nhand, is a party or to which it is subject or which it believes in good faith\npresents a significant risk of, based on an opinion of counsel (which can be\ninside counsel), resulting in a loss of the ability to successfully assert a\nclaim of Privilege; provided that the parties hereto shall cooperate in seeking\n                    --------\nto find a way to allow disclosure of such information without resulting in a\nloss of the ability to successfully assert a claim of Privilege. DuPont shall\nnot be required to provide any such information as and to the extent it relates\nto the Retained Business, the Excluded Assets or the Retained Liabilities.\nNeither party shall be required by this Section 5.9 to take any action that\nwould unreasonably interfere with the conduct of its business or unreasonably\ndisrupt its normal operations (or, in the case of Buyer, the business or\noperations of any Transferred Business Company).\n\n                  5.10 Pending Litigation. Following the Closing Date, (a) Buyer\n                       ------------------\nshall have exclusive authority and control over the investigation, prosecution,\ndefense and appeal of all then pending Actions relating to or arising in\nconnection with the Transferred Business Companies, the Transferred Assets or\nthe Assumed Liabilities, including Actions with respect to the matters set forth\non Schedule 5.10(a) (each, a \"DPC Action\"), and may settle or compromise, or\n                              ----------\nconsent to the entry of any judgment with respect to any such Action, without\nthe consent of DuPont except to the extent such settlement or compromise\ninvolves an order, injunction or other equitable relief adversely affecting\nDuPont or its Subsidiaries, and (b) DuPont shall have exclusive authority and\ncontrol over the investigation, prosecution, defense and appeal of all then\npending Actions relating to or arising in connection with the Retained Business,\nthe Excluded Assets or the Retained Liabilities, including Actions with respect\nto the matters set forth on Schedule 5.10(b) (each, a \"DuPont Action\"), and may\n                                                       -------------\nsettle or compromise, or consent to the entry of any judgment with respect to,\nany such Action without the consent of Buyer except to the extent such\nsettlement or compromise involves an order, injunction or other equitable relief\nadversely affecting Buyer or its Subsidiaries; provided, that if (i) both DuPont\n                                               -------- \n(or a Retained Subsidiary) and a Transferred Business Company are named as\nparties to any DPC Action or DuPont Action, or (ii) such Action involves a claim\nfor which indemnification would be provided pursuant to Article VIII, DuPont,\nany of the Retained Subsidiaries, Buyer, the Transferred Business Companies and\nany of their Subsidiaries must comply with the provisions of Section 8.4 hereof\ninstead of this\n\n                                       77\n\n \nSection 5.10. Buyer shall, and shall cause each of its Subsidiaries to, use its\nreasonable best efforts to have DuPont and any DuPont Indemnified Parties\nremoved as parties to any DPC Action in which they are named parties as soon as\nis reasonably practicable, and DuPont shall, and shall cause the Retained\nSubsidiaries to, use its reasonable best efforts to have DPC and any Buyer\nIndemnified Parties removed as parties to any DuPont Action in which they are\nnamed parties as soon as is reasonably practicable.\n\n                  5.11     Employee Matters.\n                  -------------------------\n\n                           (a) Continuation of Employment. Effective as of the\n                               --------------------------\nClosing Date, Buyer shall cause each Transferred Business Company to continue\nthe employment with such Transferred Business Company of all employees of the\napplicable Transferred Business Company. Notwithstanding the foregoing, except\nas may be required by applicable Law or employment agreement, if Buyer\nterminates, or causes the applicable Transferred Business Company to terminate,\nthe employment of any Transferred Employee at any time on or after the Closing\nDate, Buyer shall be responsible for the costs and consequences of any such\ntermination and shall indemnify and hold harmless the DuPont Indemnified Parties\nagainst any Losses arising in connection therewith.\n\n                           (b) Compensation and Benefits. For a period of at\n                               -------------------------\nleast three (3) years following the Closing Date, Buyer shall or shall cause, as\napplicable, a Transferred Business Company or a Subsidiary of Buyer to offer\ncompensation (including base salary or wage rate, variable compensation and\nlong-term compensation) and benefits (including severance benefits) to the\nTransferred Employees substantially similar, in the aggregate, to those provided\nto such Transferred Employees in the year prior to the Closing Date; provided\n                                                                     -------- \nthat any employee benefits provided to such Transferred Employees may be\nprovided under existing or newly established employee benefit plans which may,\nin either case, be employee benefit plans of Buyer, a Subsidiary of Buyer, or a\nTransferred Business Company (any such employee benefit plan in which\nTransferred Employees participate, the \"Applicable Buyer Plan\") and which may be\n                                        --------------------- \nmodified at any time.\n\n                           (c) Certain Liabilities. As of the Closing Date, with\n                               -------------------\nrespect to all employee Liabilities or obligations not otherwise provided for in\nthis Agreement, including, without limitation, any such Liability or obligation\nrelating to or arising under any employee benefit or compensation plan,\nagreement, arrangement, or program (excluding any stock option or other stock\nbased incentive plan, but including any stock based incentive awards which, by\ntheir terms, are payable only in cash), as well as accrued wages and workers'\ncompensation, holiday, vacation and sick day benefits, (i) DuPont or an\nappropriate Subsidiary of DuPont shall assume and\n\n                                       78\n\n \nbe solely responsible for all Liabilities and obligations whatsoever with\nrespect to Retained Employees and (ii) Buyer or an appropriate Transferred\nBusiness Company shall assume and be solely responsible for all Liabilities and\nobligations whatsoever with respect to Transferred Employees.\n\n                           (d) Participation and Service Credit.\n                           ------------------------------------\n\n                               (i)    On and after the Closing Date, Buyer and\nthe Transferred Business Companies shall give Transferred Employees service\ncredit for purposes of eligibility, vesting, determination of the level of\nbenefits and benefit accrual under any Applicable Buyer Plan, except to the\nextent that such recognition would result in a duplication of benefits, for\nservice prior to the Closing Date, to the extent such service was recognized\nunder the corresponding employee benefit plans of the Transferred Business\nCompany immediately prior to the Closing Date.\n\n                               (ii)   Buyer shall cause any pre-existing\nconditions, restrictions or waiting periods under Applicable Buyer Plans to be\nwaived to the extent necessary to provide immediate coverage to each Transferred\nEmployee who was an eligible participant in the comparable Transferred Business\nPlan as of the Closing Date. Any Applicable Buyer Plan which is a medical plan\nshall apply any amounts paid under the medical plan of the applicable\nTransferred Business Company by a Transferred Employee as deductibles and\nco-payments during the year in which the Closing Date falls toward deductible\nand out-of-pocket limits of the Applicable Buyer Plan which is a medical plan\nfor the plan year in which the Closing Date occurs.\n\n                           (e) Certain Plans and Agreements. Buyer agrees to\n                               ----------------------------   \nhonor, and to cause the Transferred Business Companies to honor, the severance\nagreements and plans set forth on Schedule 5.11(e) hereto (the \"Listed\n                                                                ------ \nAgreements\"). DuPont has previously provided to Buyer accurate annual base\n---------- \nsalaries and annual target incentives, as of the date of this Agreement, of each\nindividual who is a party to a Listed Agreement. Buyer acknowledges that the\nClosing constitutes a \"Change in Control\" for all purposes pursuant to the\nListed Agreements. The Listed Agreements shall not include any \"supplemental\nagreement\" listed on Schedule 3.11(i).\n\n                           (f) Paid Time Off. As of the Closing Date, Buyer\n                               -------------\nshall (i) cause the Transferred Business Companies to continue to provide the\npaid time off entitlements set forth on Schedule 5.11(f) (\"PTO\") to the\n                                                           ---\nTransferred Employees that are substantially equivalent to the PTO entitlements\nof the Transferred Employees under the PTO policy of the applicable Transferred\nBusiness Company immediately prior to the Closing Date and (ii) assume all\nobligations to Transferred Employees with respect to accrued PTO.\n\n                                       79\n\n \n                           (g) DuPont's 401(k) Plan. As soon as practicable\n                               -------------------- \nfollowing the Closing Date, each Transferred Employee who is a participant in\nthe DuPont 401(k) Plan shall have the right to elect to receive a distribution\nof all or a portion of such employee's account balance in the DuPont 401(k) Plan\n(subject to, and in accordance with, the provisions of the DuPont 401(k) Plan\nand applicable Law). Buyer shall take any and all necessary action to cause the\ntrustee of a defined contribution plan of Buyer or one of its Subsidiaries, if\nrequested to do so by a Distributee, to accept the direct \"roll over\" of all or\na portion of any such distribution (including notes associated with the\noutstanding balance of any loans of a Distributee under the DuPont 401(k) Plan)\nfrom the DuPont 401(k) Plan.\n\n                           (h) Caribe DC Plan. Unless otherwise agreed to by\n                               --------------\nBuyer and DuPont, effective as of the Closing Date, Buyer shall establish or\ndesignate a defined contribution plan and trust intended to qualify under\napplicable law (together, the \"Buyer Caribe DC Plan\") to accept a transfer from\n                               --------------------\nthe trustee of the Caribe DC Plan in respect of account balances of Transferred\nEmployees under the Caribe DC Plan. DuPont shall, upon receipt of satisfactory\nwritten evidence of the adoption of the Buyer Caribe Plan and its compliance\nwith all applicable laws, direct the trustee of the Caribe DC Plan to transfer,\nto the trustee of the Buyer Caribe DC Plan, as of the Closing Date, in cash\nand\/or notes associated with the outstanding balance of any loans to Transferred\nEmployees, the cash value of the account balances under the Caribe DC Plan in\nrespect of Transferred Employees. Upon such transfer, the Buyer Caribe DC Plan\nshall assume all liabilities for accrued benefits under the Caribe DC Plan in\nrespect of Transferred Employees and the Caribe DC Plan shall be relieved of all\nsuch liabilities. The parties shall cooperate in the filing of the documents\nrequired by the transfer of assets and liabilities described herein.\n\n                           (i) Non-qualified Plans. Following the Closing Date,\n                               -------------------\nBuyer shall cause DPC to continue to maintain its Pension Restoration Plan,\nRetirement Restoration Plan and Supplemental Retirement Income Plan with respect\nto Transferred Employees. Buyer and DPC shall assume and be solely responsible\nfor the liabilities and obligations relating to the Transferred Employees who\nparticipate in the DuPont 401(k) Restoration Plan.\n\n                           (j) Transferred Pension Plans. With respect to each\n                               -------------------------  \nof the Transferred Pension Plans, as of the Closing Date, DuPont shall have, or\nshall have caused its Subsidiaries to have, conducted: (i) a fair market\nvaluation of the assets of each Transferred Pension Plan, and (ii) a valuation\nof the aggregate liabilities of each Transferred Pension Plan in accordance with\nFAS 87 but using an 8.5% interest rate assumption and a 5.5% salary increase\nassumption (collectively, the \"Substituted Assumptions\"). To the extent that the\n                               -----------------------\naggregate liabilities of both Transferred Pension Plans on a projected benefit\nobligation basis in accordance with FAS 87 and\n\n                                       80\n\n \nthe Substituted Assumptions exceed the aggregate fair market value of the assets\nset aside in trust with respect to both Transferred Pension Plans (the\n\"Underfunding\"), then as soon as practicable after the Closing Date, DuPont\n ------------\nshall make contributions to the respective Transferred Pension Plans equal to\nthe amount of such Underfunding in excess of $50 million.\n\n                           (k) Foreign Pension Plans. (i) With respect to any\n                               ---------------------\npension plan maintained or sponsored by DuPont or any Subsidiary of DuPont for\nthe benefit of foreign employees in which only Transferred Employees\nparticipate, Buyer or an appropriate Transferred Business Company shall assume\nor retain sole Liability for each such pension plan and no additional assets\nshall be transferred by DuPont or any Subsidiary of DuPont to Buyer, DPC or such\npension plan with respect to any such pension plan.\n\n                               (ii) (1) Definitions. For the purposes of this\n                                        -----------\n         Section 5.11(k), the following definitions shall apply:\n\n                  \"Actuarial Assumptions\" means the actuarial method and\n                   ---------------------\nassumptions set out in the letter from DuPont's Actuary to Buyer's Actuary a\ncopy of which is attached to Schedule 5.11(k) hereto (the \"Actuary's Letter\").\n                                                           ----------------\n\n                  \"Buyer's Actuary\" means an actuary determined by Buyer for the\n                   ---------------  \npurposes of this Section 5.11(k).\n\n                  \"Consenting Member\" means a Member:\n                   -----------------\n\n                               (i)    who begins to accrue retirement benefits\n         under the New Plan as of the Closing Date; and\n\n                               (ii)   from whom the DuPont UK Plan receives a\n         signed request for a transfer payment in respect of his past service\n         rights to be made to the New Plan no later than 30 days after the\n         Closing Date or such later date as may be agreed by DuPont and Buyer\n         (such agreement not to be unreasonably withheld or delayed) and who\n         does not, before the transfer payment is made, withdraws his request or\n         die or become entitled to the payment of immediate benefits under the\n         DuPont UK Plan.\n\n                  \"Due Payment Date\" means the day 10 Business Days after (i)\n                   ----------------\nthe agreement between DuPont's Actuary and Buyer's Actuary as to the UK Transfer\nAmount or (ii), if a reference is made to an independent actuary under Section\n5.11(k)(ii)(6), the date of his determination of the UK Transfer Amount.\n\n                                       81\n\n \n                  \"DuPont's Actuary\" means an actuary determined by DuPont for\n                   ----------------\nthe purposes of this Section 5.11(k).\n\n                  \"Member\" means a person who is a Transferred Employee and an\n                   ------\nactive member of the DuPont UK Plan immediately prior to the Closing Date.\n\n                  \"New Plan\" means the pension scheme or schemes described in\n                   --------\nSection 5.11(K)(ii)(2) and, where the context permits, including its trustees.\n\n                  \"UK Transfer Amount\" has the meaning set out in Sections\n                   ------------------ \n5.11(k)(ii)(4)(C) and (D).\n\n                                    (2) New Plan. As soon as practicable after\n                                        --------\n         the Closing Date, Buyer shall provide to DuPont particulars of an\n         occupational pension scheme that is established and administered in the\n         United Kingdom and is an exempt approved scheme within the meaning of\n         Section 592 of the Income and Corporation Taxes Act of 1988 (or\n         designed so as to be capable of such approval) and of the benefits to\n         be provided to Consenting Members under Section 5.11(k)(ii)(3)(A).\n\n                                    (3) Provision of benefits.\n                                        ---------------------\n\n                                             (A) Buyer shall offer each Member\n                  membership of the New Plan with effect from the Closing Date\n                  and, subject to the conditions set out in Section\n                  5.11(k)(ii)(3)(B), in respect of his pensionable service in\n                  the DuPont UK Plan, benefits which are overall at least equal\n                  in value to those applying for and in respect of him under the\n                  DuPont UK Plan immediately before the Closing Date, valuing\n                  benefits under the New Plan and under the DuPont UK Plan for\n                  this purpose on the basis of the Actuarial Assumptions.\n\n                                             (B) The conditions referred to in\n                  Section 5.11(k)(ii)(3)(A) are that the Member has become a\n                  Consenting Member and that the New Plan has received the UK\n                  Transfer Amount.\n\n                                    (4) Calculation of UK Transfer Amount.\n                                        ---------------------------------\n\n                                             (A) Buyer shall provide to DuPont\n                  all such documents and information in its possession or\n                  control that are reasonably required for the calculation of\n                  the UK Transfer Amount and undertakes to DuPont that all such\n                  documents and information shall be true complete and accurate\n                  in all material respects.\n\n                                       82\n\n \n                                             (B) DuPont shall provide to Buyer\n                  all such documents and information in its possession and\/or\n                  control that are reasonably required for the calculation of\n                  the UK Transfer Amount and covenants that all such documents\n                  and information shall be true complete and accurate in all\n                  material respects.\n\n                                             (C) The UK Transfer Amount shall be\n                  calculated by DuPont's Actuary as being the value of the\n                  benefits prospectively payable under the DuPont UK Plan as at\n                  the Closing Date to and in respect of the Consenting Members\n                  and calculated on the basis of the Actuarial Assumptions, and\n                  adjusted in accordance with the Actuary's Letter.\n\n                                             (D) DuPont shall cause DuPont's\n                  Actuary to calculate the unadjusted UK Transfer Amount as soon\n                  as practicable after the Closing Date, but no later than 60\n                  days after the Closing Date, and DuPont shall notify Buyer of\n                  the result of that calculation and provide such particulars of\n                  the calculation and the data on which it is based as Buyer's\n                  Actuary reasonably requires to enable Buyer's Actuary to check\n                  that the calculation is correct. DuPont's Actuary must provide\n                  such further particulars or data that Buyer's Actuary\n                  reasonably requests within 30 days of receipt of the result of\n                  the calculation from DuPont's Actuary. Buyer's Actuary has 60\n                  days from the date on which those particulars and data have\n                  been supplied to him to raise any objection to the\n                  calculation. The calculation shall be final and binding on\n                  DuPont and Buyer on the later of the agreement between\n                  DuPont's Actuary and Buyer's Actuary as to the UK Transfer\n                  Amount or, if a reference is made to an independent actuary\n                  under Section 5.11(k)(ii)(6), the date of his determination of\n                  the UK Transfer Amount.\n\n                                   (5) Transfer of UK Transfer Amount of AVCs.\n                                       --------------------------------------\n\n                                             (A) DuPont shall, or cause its\n                  Subsidiary to, use reasonable efforts to cause the DuPont UK\n                  Plan to transfer, on the Due Payment Date, to the New Plan the\n                  UK Transfer Amount and the assets representing, as at the date\n                  of transfer, the additional voluntary contributions paid by\n                  the Consenting Members.\n\n                                             (B) DuPont and Buyer shall, or\n                  shall cause their respective Subsidiaries to, use reasonable\n                  best efforts to\n\n                                       83\n\n \n                  secure agreement between the DuPont UK Plan and the New Plan\n                  respectively as to the particular assets to be transferred\n                  representing the UK Transfer Amount. If Agreement is not\n                  reached by the Due Payment Date, the transfer shall be in\n                  cash. Any listed securities to be transferred shall be valued\n                  at the mid-market price at the close of business on the\n                  relevant stock exchange on the day before the date of\n                  transfer.\n\n                                             (C) DuPont and Buyer shall\n                  respectively seek promptly from the Board of Inland Revenue\n                  approval to the transfer of assets from the DuPont UK Plan to\n                  the New Plan in respect of the Consenting Members.\n\n                                             (D) If the total amount that has\n                  been actually transferred (if any) by the DuPont UK Plan to\n                  the New Plan on or before the Due Payment Date in respect of\n                  the Consenting Members is less than the UK Transfer Amount,\n                  DuPont shall, within 5 business days after the Due Payment\n                  Date, pay to Buyer or as it may direct, the amount of the\n                  underpayment (the \"Shortfall\"), together with interest at 2%\n                  above the base rate from time to time of National Westminster\n                  Bank plc calculated on the basis of a year of 360 days for the\n                  actual number of days elapsed accrued from the Due Payment\n                  Date up to and including the date of payment.\n\n                                             (E) Immediately following any\n                  payment pursuant to Section 5.11(k)(ii)(5)(D), Buyer shall\n                  procure that an amount equal to the payment is contributed to\n                  the New Plan.\n\n                                    (6) Disputes. Any dispute between DuPont and\n                                        --------\n         Buyer or between DuPont's Actuary and Buyer's Actuary concerning any\n         calculation or valuation of benefits under this Section 5.11(k) shall,\n         in the absence of agreement between them within one month of the party\n         concerned having notified the other in writing of the dispute, be\n         referred to an independent actuary chosen by agreement between DuPont\n         and Buyer or, failing agreement, appointed by the President for the\n         time being of the Institute of Actuaries at the instance of either\n         DuPont or Buyer. The independent actuary shall be instructed by DuPont\n         and Buyer not to make a compromise determination but to adopt the\n         submission of either DuPont (or DuPont's Actuary) or of Buyer (or\n         Buyer's Actuary). The independent actuary shall determine the disputed\n         matter as an expert and not as an arbitrator, and his decision shall be\n         final and binding.\n\n                                       84\n\n \n         The fees and expenses of the independent actuary and of such President\n         shall be borne equally between the parties, except that the independent\n         actuary shall have the power to determine, at the request of any party,\n         that the fees and expenses shall be borne exclusively by the other\n         parties or in such proportions as the actuary may determine and any\n         such determination shall be final and binding.\n\n                                    (7) Indemnities. Dupont covenants with Buyer\n                                        -----------\n         to pay to Buyer on an after-Tax basis, so far as possible by way of\n         reduction in the consideration payable under this Agreement:\n\n                                             (A) an amount equal to any payment\n                  that any Transferred Business Company is or becomes liable to\n                  make to the DuPont UK Plan whether pursuant to section 75 of\n                  the UK Pensions Act 1995, or otherwise, and any Liability or\n                  Loss that any Transferred Business Company incurs in relation\n                  to that payment;\n\n                                             (B) an amount equal to any\n                  Liability or Loss that any Transferred Business Company incurs\n                  in relation to a claim made against that Transferred Business\n                  Company in relation to the exclusion prior to the Closing Date\n                  of an employee or former employee from an occupational pension\n                  scheme.\n\n                           (l) Employment Related Liabilities. DPC shall assume\n                               ------------------------------\nLiability with respect to any and all Losses incurred or suffered as a result of\nany claim by any Transferred Employee which arises under Law (including, without\nlimitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of\n1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the\nAmericans with Disabilities Act of 1990, ERISA and all other statutes regulating\nthe terms and conditions of employment), under the common law or in equity\n(including any claims for wrongful discharge or otherwise), or under any policy,\nagreement, understanding or promise, written or oral, formal or informal,\nbetween DuPont (but only with respect to the Listed Agreements) or DPC (or any\nSubsidiary of DuPont (but only with respect to the Listed Agreements) or DPC)\nand the Transferred Employee, whether arising out of actions, events or\nomissions that occurred (or, in the case of omissions, failed to occur) prior\nto, or after, the Closing Date. DuPont shall assume Liability with respect to\nany Losses incurred or suffered as a result of any claim by any Retained\nEmployee which arises under Law (including, without limitation, Title VII of the\nCivil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination\nin Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities\nAct of 1990, ERISA and all other statutes regulating the terms and conditions of\nemployment), under the common law or in equity (including any claims\n\n                                       85\n\n \nfor wrongful discharge or otherwise), or under any policy, agreement,\nunderstanding or promise, written or oral, formal or informal, between DuPont or\nany of its Subsidiaries and the Retained Employee, whether arising out of\nactions, events or omissions that occurred (or, in the case of omissions, failed\nto occur) prior to, or after, the Closing Date.\n\n                           (m) Indemnification. All Liabilities retained,\n                               ---------------\nassumed or indemnified by Buyer pursuant to this Section 5.11 shall in each case\nbe deemed to be Assumed Liabilities, and all liabilities retained, assumed or\nindemnified by DuPont pursuant to this Section 5.11 shall in each case be deemed\nto be Retained Liabilities, and, in each case, shall be subject to the\nindemnification provisions set forth in Section 8.4 of this Agreement.\n\n                          (n) Post-Retirement Coverage.\n                               ------------------------\n\n                               (i)    Post-Retirement Health Coverage. For a\n                                      -------------------------------\n         three (3) year period commencing on the Closing Date (the\n         \"Post-Retirement Period\"), Buyer shall, or shall cause a Subsidiary of\n          ---------------------- \n         Buyer to, provide post-retirement health coverage (excluding any\n         post-retirement dental coverage) to each Transferred Employee (and\n         eligible dependents) upon the termination of such Transferred\n         Employee's employment; provided that such Transferred Employee\n                                --------\n         otherwise satisfies the applicable age and\/or service requirements.\n         Such post-retirement health coverage shall be at least substantially\n         equivalent (in terms of the eligibility requirements, scope of the\n         post-retirement health coverage provided and the cost of such coverage\n         to the Transferred Employees) to either (A) that provided under the\n         applicable post-retirement health program in effect immediately prior\n         to the Closing Date, recognizing additional age and service credit\n         accrued with Buyer and\/or a Subsidiary of Buyer after the Closing, or\n         (B) that provided to similarly situated employees of Buyer; provided,\n                                                                     --------\n         however, that if Buyer or a Subsidiary of Buyer shall elect to provide\n         -------  \n         post-retirement health coverage through an Applicable Buyer Plan\n         pursuant to this Section 5.11(n)(i)(B), Buyer or such Subsidiary of\n         Buyer shall, for the duration of the Post-Retirement Period, waive any\n         otherwise applicable company cost-sharing and life-time maximum\n         limitations with respect to such post-retirement health coverage.\n\n                               (ii)   Post-Retirement Life Insurance Coverage.\n                                      ---------------------------------------\n         For the Post-Retirement Period, Buyer shall, or shall cause a\n         Subsidiary of Buyer to, provide post-retirement life insurance coverage\n         to each Transferred Employee upon the termination of such\n\n                                       86\n\n \n         Transferred Employee's employment; provided that such Transferred\n                                            --------\n         Employee otherwise satisfies the applicable age and\/or service\n         requirements. Such post-retirement life insurance coverage shall be at\n         least substantially equivalent (in terms of the eligibility\n         requirements, amount of life insurance coverage provided and the cost\n         of such coverage to the Transferred Employees) to either (A) that\n         provided under the applicable post-retirement life insurance program in\n         effect immediately prior to the Closing Date, or (B) that provided to\n         similarly situated employees of Buyer; provided, however, that if Buyer\n                                                --------  ------- \n         or a Subsidiary of Buyer shall elect to provide post-retirement life\n         insurance coverage under an Applicable Buyer Plan pursuant to this\n         Section 5.11(n)(ii)(B) and if such plan requires evidence of\n         insurability in connection with the purchase of supplemental life\n         insurance coverage, then Buyer or such Subsidiary of Buyer shall, for\n         the duration of the Post-Retirement Period, cause such Applicable Buyer\n         Plan to provide post-retirement life insurance coverage with terms and\n         conditions that are substantially equivalent to the post-retirement\n         life insurance coverage provided under the applicable post-retirement\n         life insurance program in effect immediately prior to the Closing Date\n         with the exception of such requirement to provide evidence of\n         insurability.\n\n                           (o) DuPont Assumed Liabilities. Notwithstanding\n                               --------------------------\nanything to the contrary herein, as of the Closing Date, DuPont shall assume all\nLiabilities with respect to (i) providing long-term disability benefits to those\nTransferred Employees who were in receipt of, or were eligible to receive,\nlong-term disability benefits from a Transferred Business Company immediately\nprior to the Closing Date, excluding however any disability benefits paid or\npayable to a Transferred Employee under a Transferred Pension Plan, (ii)\nproviding post-retirement welfare benefits (if any) to Transferred Employees\n(and eligible dependents) whose employment had terminated prior to the Closing\nDate and (iii) claims incurred during a period of a Transferred Employee's\nemployment with DuPont or any of its Affiliates (other than the Transferred\nBusiness Companies) arising solely from such employment relationship (except to\nthe extent such claims relate to Liabilities under any funded Transferred\nBusiness Plan).\n\n                           (p) No later than forty-five (45) days after the date\nof this Agreement, DuPont shall deliver to Buyer (i) a schedule setting forth\nthe name, current annual compensation rate (including bonus and commissions),\ntitle, classification as executive officer, officer, director or senior manager,\ndepartment and current base salary rate of each Transferred Employee who is\nemployed by a Transferred Business Company as such date; (ii) a list of each\nagreement between a Transferred Business Company and an independent contractor\nwhich may not be\n\n                                       87\n\n \nterminated without material penalty on less than six months notice; (iii) a list\nof each material agreement between a Transferred Business Company and a\nTransferred Employee (other than standard non-disclosure agreements entered into\nin the ordinary course of business consistent with past practice) or independent\ncontractor relating to proprietary processes, formulae or information; and (iv)\na detailed schedule of the PTO entitlements of Transferred Employees as of the\ndate of this Agreement, or as of such other time agreed to by DuPont and Buyer.\n\n                           (q) FUTA; FICA. Buyer and DuPont shall, to the extent\n                               ----------\npossible, (i) treat Buyer or a Subsidiary of Buyer as a \"successor employer\" and\nthe applicable Transferred Business Company as a \"predecessor,\" within the\nmeaning of Sections 3121(a)(1) and 3306(b)(1) of the Code, with respect to\nTransferred Employees to be employed by Buyer or a Subsidiary of Buyer for\npurposes of Taxes imposed under the United States Federal Unemployment Tax Act\nor the United States Federal Insurance Contributions Act, and (ii) cooperate\nwith each other to avoid the filing of more than one IRS Form W-2 with respect\nto each such Transferred Employee for the calendar year in which the Closing\nDate occurs.\n\n                           (r) Actions by DuPont. Any action required to be\n                               -----------------  \ntaken under this Section 5.11 by DuPont may be taken by a Subsidiary of DuPont.\n\n                           (s) Mutual Cooperation. DuPont and Buyer shall (or\n                               ------------------\nshall cause their respective Subsidiaries, third-party plan administrators and\nplan trustees to) cooperate with each other prior to and following the Closing\nin effectuating any communications, elections, access to populations,\nenrollments, payroll transitions and such other actions as may be necessary or\nreasonable with respect to participants in any Transferred Business Plan and\/or\nemployment, consulting or such other agreement in connection with the actions\ncontemplated under Section 5.11 of this Agreement.\n\n                           (t) Agreement to Provide Transitional Services. As\n                               ------------------------------------------\nsoon as practicable following the date of this Agreement, Buyer and DuPont shall\nenter into a benefit transitional services agreement pursuant to which DuPont\nshall provide to Buyer or a Subsidiary of Buyer, in exchange for payment (not to\nexceed the actual cost of such services) from Buyer or a Subsidiary of Buyer,\nservices relating to the administration of certain Transferred Business Plans\n(for a period not exceeding nine months, or such shorter period as requested by\nBuyer or a Subsidiary of Buyer, during which period DuPont also provides payroll\nservices), payroll services (for a period not exceeding nine months, or such\nshorter period as requested by Buyer or a Subsidiary of Buyer) and such other\nservices reasonably requested by Buyer or a Subsidiary of Buyer.\n\n                                       88\n\n \n                  5.12 Post-Closing Access to Information. From and after the\n                       ----------------------------------\nClosing Date, except as prohibited by applicable Law, DuPont and Buyer shall,\nsubject to compliance by the other and its Subsidiaries with the provisions of\nSection 5.15, afford to each other and to each other's Representatives\nreasonable access and duplicating rights (with copying costs to be borne by the\nrequesting party) during normal business hours to all books and records,\ndocuments and other information (collectively, \"Information\") within the\n                                                -----------\nknowledge, possession or control of the other party or any DuPont Indemnified\nParty or Buyer Indemnified Party solely to the extent relating to (a) in the\ncase of Buyer, the Transferred Business, Transferred Business Companies,\nTransferred Assets, Assumed Liabilities or Transferred Employees and (b) in the\ncase of DuPont, the Retained Business, the Excluded Assets or the Retained\nLiabilities, insofar in each case as such access is reasonably required by\nDuPont or Buyer or any of their Subsidiaries or Affiliates and does not violate\nany applicable Law or any confidentiality obligations applicable to DuPont or\nBuyer or any of their Subsidiaries or Affiliates, as the case may be (and shall\nuse reasonable efforts to cause persons or firms possessing relevant Information\nto give similar access), provided, however, that no party shall be required to\n                         --------  -------\ndisclose any Information if it believes in good faith that doing so presents a\nsignificant risk, based on an opinion of counsel (which can be inside counsel)\nof resulting in a loss of the ability to successfully assert a claim of\nPrivilege; provided that the parties hereto shall cooperate in seeking to find a\n           --------\nway to allow disclosure of such information without resulting in a loss of the\nability to successfully assert a claim of Privilege. Without limiting the\ngenerality of the foregoing, Information may be requested under this Section\n5.12 for audit and accounting purposes and in connection with Actions, as well\nas for purposes of fulfilling disclosure and reporting obligations.\nNotwithstanding the foregoing, the provisions of this Section 5.12 shall not\napply to Actions brought by one party (or its Affiliates) to this Agreement\nagainst another party (or its Affiliates) to this Agreement.\n\n                  5.13 Production of Witnesses and Individuals. From and after\n                       ---------------------------------------\nthe Closing Date, DuPont and Buyer shall use and shall cause their respective\nSubsidiaries to use reasonable efforts to make available to each other, upon\nwritten request, its officers, directors, employees and agents for fact finding,\nconsultation and interviews and as witnesses to the extent that any such person\nmay reasonably be required in connection with any Actions in which the\nrequesting party may from time to time be involved relating to the conduct of\nthe Transferred Business or the Retained Business. DuPont and Buyer agree to\nreimburse each other for reasonable out-of-pocket expenses (other than officers'\nor employees' salaries) incurred by the other in connection with providing\nindividuals and witnesses pursuant to this Section 5.13. Notwithstanding the\nforegoing, the provisions of this Section 5.13 shall not apply to Actions\nbrought by one party (or its Affiliates) to this Agreement against another party\n(or its Affiliates) to this Agreement.\n\n                                       89\n\n \n                  5.14 Retention of Records. Except when a longer retention\n                       --------------------\nperiod is otherwise required by Law or agreed to in writing, including as set\nforth in Section 6.8, DuPont and the Transferred Business Companies and their\nSubsidiaries shall retain, in accordance with their respective records control\nschedule policy existing from time to time, all Information relating to the\nTransferred Business and the Retained Business, respectively. The parties hereto\nagree that upon written request from the other that certain Information relating\nto the Transferred Business or the transactions contemplated hereby be retained\nin connection with an Action, the parties shall use reasonable efforts to\npreserve and not to destroy or dispose of such Information without the consent\nof the requesting party.\n\n                  5.15     Confidentiality.\n                  ------------------------\n\n                           (a) For a period of ten years from the Closing Date,\nDuPont and Buyer shall hold and shall respectively cause their respective\nAffiliates (including the Transferred Business Companies) to hold, and shall\neach cause their respective Representatives to hold, in strict confidence and\nnot to disclose or release without the prior written consent of the other party,\nany and all Confidential Information (as defined herein); provided, that the\n                                                          --------\nparties may disclose, or may permit disclosure of, Confidential Information (i)\nto their respective Representatives who have a need to know such information and\nare informed of their obligation to hold such information confidential to the\nsame extent as is applicable to the parties hereto and in respect of whose\nfailure to comply with such obligations, DuPont or Buyer, as the case may be,\nwill be responsible or (ii) if the parties hereto, their Affiliates or their\nRepresentatives are compelled to disclose any such Confidential Information by\njudicial or administrative process or, in the opinion of independent legal\ncounsel, by other requirements of Law. Notwithstanding the foregoing, in the\nevent that any demand or request for disclosure of Confidential Information is\nmade pursuant to clause (ii) above, DuPont or Buyer, as the case may be, shall\npromptly notify the other of the existence of such request or demand and shall\nprovide the other a reasonable opportunity to seek an appropriate protective\norder or other remedy, which both parties will cooperate in obtaining (each at\ntheir own expense). In the event that such appropriate protective order or other\nremedy is not obtained, the party who is required to disclose such Confidential\nInformation shall furnish, or cause to be furnished, only that portion of the\nConfidential Information that is legally required to be disclosed. As used in\nthis Section 5.15, \"Confidential Information\" shall mean all proprietary\n                    ------------------------\ntechnical, economic, environmental, operational, financial and\/or other business\nInformation or material of one party which, prior to or following the Closing\nDate, has been disclosed by DuPont or its Affiliates, on the one hand, or Buyer\nor its Affiliates (including the Transferred Business Companies), on the other\nhand, in written, oral (including by recording), electronic, or visual form to,\nor otherwise has come into the possession of, the other, in each case including\npursuant to the access\n\n                                       90\n\n \nprovisions of Section 5.9 or Section 5.12 hereof or any other provision of this\nAgreement or any Related Agreement or, (A) in the case of DuPont and its\nAffiliates and Representatives, as a result of DuPont's direct or indirect\nownership of the Transferred Assets and Transferred Business Companies prior to\nthe Closing or (B) in the case of Buyer and the Transferred Business Companies,\nas a result of DuPont's direct or indirect ownership of the Transferred Business\nCompanies or as a result of relationships, agreements and course of conduct of\nthe Transferred Business Companies with DuPont and its other Subsidiaries prior\nto Closing, including, but not limited to, (a) ideas and concepts for existing\nproducts, processes and services; (b) specifications for products, Equipment and\nprocesses; (c) manufacturing and performance specifications and procedures; (d)\nengineering drawings and graphs; (e) technical, research and engineering data;\n(f) formulations and material specifications; (g) laboratory studies and\nbenchmark tests; (h) service and operation manuals; (i) quality assurance\npolicies, procedures and specifications; (j) evaluation and\/or validation\nstudies; (k) pending patent applications; (l) all other know-how, methodology,\nprocedures, techniques and trade secrets related to research, engineering,\ndevelopment and manufacturing; and (m) business information, including marketing\nand development plans, forecasts, research and development agreements, and\ncustomer and vendor information (except to the extent that such Information can\nbe shown to have been (1) in the public domain through no fault of such party or\nits Affiliates (including, in the case of DuPont, any of the Retained\nSubsidiaries or, in the case of Buyer, any of its Subsidiaries (including the\nTransferred Business Companies)) or (2) lawfully acquired from other sources by\nthe party (or its Affiliates (including the Transferred Business Companies)) to\nwhich it was furnished; provided, however, in the case of (2) that such sources\n                        --------  -------\ndid not provide such Information in breach of any confidentiality or other legal\nobligations). Notwithstanding the first sentence of this Section 5.15(a), with\nrespect to any Confidential Information first disclosed after the Closing Date\nto DuPont or its Affiliates or Representatives, on the one hand, or Buyer or its\nAffiliates or Representatives (including the Transferred Business Companies), on\nthe other hand, by the other party or its Affiliates or Representatives, the\nobligations of this subsection shall terminate ten years after the date of the\nfirst such disclosure of such Information.\n\n                           (b) Notwithstanding anything to the contrary set\nforth herein, (i) DuPont and its Affiliates, on the one hand, and Buyer and its\nAffiliates (including the Transferred Business Companies), on the other hand,\nshall be deemed to have satisfied their obligations hereunder with respect to\nConfidential Information if they exercise the same degree of care (but no less\nthan a reasonable degree of care) as they take to preserve confidentiality for\ntheir own similar Information and (ii) confidentiality obligations provided for\nin any agreement between DuPont or any of its Affiliates, or Buyer or any of its\nAffiliates (including the Transferred Business\n\n                                       91\n\n \nCompanies), on the one hand, and any employee of DuPont or any of its Affiliates\n(or, prior to the Closing Date, any Transferred Business Company), or Buyer or\nany of its Affiliates (including after the Closing Date the Transferred Business\nCompanies), on the other hand shall remain in full force and effect.\nConfidential Information of DuPont and its Affiliates, on the one hand, or the\nTransferred Business Companies, on the other hand, in the possession of and used\nby the other as of the Closing Date may continue to be used by DuPont or its\nAffiliates, or Buyer or its Affiliates (including the Transferred Business\nCompanies), as the case may be, in the operation of their businesses, so long as\nthe Confidential Information is maintained in confidence and not disclosed in\nviolation of this Agreement. Such continued right to use may not be transferred\nto any third party (other than an Affiliate of a party hereto) unless the third\nparty purchases all or substantially all of the business and Assets in one\ntransaction or in a series of related transactions for which or in which the\nrelevant Confidential Information is used or employed.\n\n                           (c) Immediately prior to the Closing, DuPont will\nrequest that all confidential material provided to prospective purchasers of the\nTransferred Business in connection with Sale Process (other than Buyer and its\nSubsidiaries) be returned to DuPont or a Transferred Business Company or be\ndestroyed.\n\n                  5.16     Privileged Matters.\n                           ------------------\n\n                           (a) DuPont and Buyer agree that their respective\nrights and obligations to maintain, preserve, assert or waive any or all\nprivileges belonging to either corporation with respect to the Transferred\nBusiness and the Retained Business, including but not limited to the\nattorney-client and work product privileges (collectively, \"Privileges\"), shall\n                                                            ----------\nbe governed by the provisions of this Section 5.16. With respect to matters\nrelating to the Retained Business or to the Sale Process, DuPont shall have sole\nauthority in perpetuity to determine whether to assert or waive any or all\nPrivileges, and Buyer and its Affiliates (including the Transferred Business\nCompanies) shall, to their knowledge, take no action without the prior written\nconsent of DuPont that could result in any waiver of any Privilege that could be\nasserted by DuPont under applicable Law and this Agreement. With respect to\nmatters relating to the Transferred Business (except as provided in the\npreceding sentence), after the Closing, Buyer shall have sole authority in\nperpetuity to determine whether to assert or waive any or all Privileges, and\nDuPont and its Affiliates shall, to their knowledge, take no action after the\nClosing without the prior written consent of Buyer that could result in any\nwaiver of any Privilege that could be asserted by Buyer under applicable Law and\nthis Agreement. The rights and obligations created by this Section 5.16 shall\napply to all Information as to which DuPont, Buyer, or the Transferred Business\nCompanies would be entitled to assert or has asserted a Privilege as provided\nabove (\"Privileged Information\"). Privileged Information of DuPont includes but\n        ----------------------\nis not\n\n                                       92\n\n \nlimited to (i) all Information regarding the Retained Business and all\nInformation of DuPont relating to the Sale Process, but which after the Closing\nis in the possession of Buyer or any of its Subsidiaries (including the\nTransferred Business Companies); (ii) all communications subject to a Privilege\noccurring prior to the Closing between counsel for DuPont or any of the Retained\nSubsidiaries (including in-house counsel and former in-house counsel who are\nTransferred Employees) and any person who, at the time of the communication, was\nan employee of DuPont or any of the Retained Subsidiaries, regardless of whether\nsuch employee is or becomes an employee of Buyer or any of its Subsidiaries\n(including the Transferred Business Companies); and (iii) all Information\ngenerated, received or arising after the Closing Date that refers or relates to\nPrivileged Information generated, received or arising prior to the Closing Date.\nPrivileged Information of Buyer includes but is not limited to (i) any and all\nInformation generated prior to the Closing regarding the Transferred Business\nbut which after the Closing is in the possession of DuPont or any of the\nRetained Subsidiaries (excluding Information of DuPont or its Subsidiaries\nrelating to the Sale Process); (ii) all communications subject to a Privilege\noccurring prior to the Closing (excluding communications relating to the Sale\nProcess generated by DuPont or its Representatives) between counsel for the\nTransferred Business Companies (including in-house counsel and former in-house\ncounsel who were employees of DuPont or the Retained Subsidiaries) and any\nperson who, at the time of the communication, was an employee of any of the\nTransferred Business Companies, regardless of whether such employee is or\nbecomes an employee of DuPont or any of the Retained Subsidiaries; and (iii) all\nInformation generated, received or arising after the Closing Date that refers or\nrelates to Privileged Information generated, received or arising prior to the\nClosing Date.\n\n                           (b) Upon receipt by DuPont or its Subsidiaries or\nBuyer or its Subsidiaries (including the Transferred Business Companies), as the\ncase may be, of any subpoena, discovery or other request from any third party\nthat actually or arguably calls for the production or disclosure of Privileged\nInformation of the other or if DuPont or its Subsidiaries or Buyer or its\nSubsidiaries (including the Transferred Business Companies), as the case may be,\nobtains knowledge that any current or former employee of either DuPont or its\nSubsidiaries or Buyer or its Subsidiaries (including the other Transferred\nBusiness Companies), has received any subpoena, discovery or other request from\nany third party that actually or arguably calls for the production or disclosure\nof Privileged Information of the other, DuPont or Buyer, as the case may be,\nshall promptly notify the other of the existence of the request and shall\nprovide the other a reasonable opportunity to review the Information and to\nassert any rights it may have under this Section 5.16 or otherwise to prevent\nthe production or disclosure of Privileged Information. DuPont or its\nSubsidiaries or Buyer or its Subsidiaries (including DPC and the other\nTransferred Business Companies), as the case may be, will not produce or\ndisclose to any third party any of the\n\n                                       93\n\n \nother's Information covered by a Privilege under this Section 5.16 unless (i)\nthe other has provided its express written consent to such production or\ndisclosure, or (ii) a court of competent jurisdiction has entered an order not\nsubject to interlocutory appeal or review finding that the Information is not\nentitled to protection from disclosure under any applicable privilege, doctrine\nor rule.\n\n                           (c) DuPont's transfer of DPC Books and Records and\nother Information to Buyer, DuPont's agreement to permit Buyer to obtain\nInformation existing prior to the Closing, Buyer's and DPC's transfer of DuPont\nBooks and Records and other Information and Buyer's agreement to permit DuPont\nto obtain Information existing prior to the Closing are made in reliance on\nDuPont's, Buyer's and DPC's respective agreements, as set forth in Section 5.15\nand this Section 5.16, to maintain the confidentiality of such Information and\nto take the steps provided herein for the preservation of all Privileges that\nmay belong to or be asserted by DuPont or Buyer, as the case may be. The access\nto Information being granted pursuant to Section 5.9 and Section 5.12 hereof,\nthe agreement to provide witnesses and individuals pursuant to Section 5.13\nhereof and the disclosure to Buyer and DuPont of Privileged Information relating\nto the Transferred Business or Retained Business pursuant to this Agreement\nshall not be asserted by DuPont or Buyer to constitute, or otherwise deemed, a\nwaiver of any Privilege that has been or may be asserted under this Section 5.16\nor otherwise. Nothing in this Agreement shall operate to reduce, minimize or\ncondition the rights granted to DuPont and Buyer in, or the obligations imposed\nupon DuPont and Buyer by, this Section 5.16.\n\n                  5.17     Mail and Other Communications; Accounts.\n                           ---------------------------------------\n\n                           (a) After the Closing Date, each of DuPont and its\nSubsidiaries and Buyer and its Subsidiaries may receive mail, telegrams,\npackages and other communications properly belonging to the other (or the\nother's Subsidiaries). Accordingly, at all times after the Closing Date, each of\nDuPont and Buyer authorizes the other and their respective Subsidiaries to\nreceive and open all mail, telegrams, packages and other communications received\nby it and not unambiguously intended for the other party (or its Subsidiaries)\nor any of the other party's (or its Subsidiaries') officers or directors, and to\nretain the same to the extent that they relate to the business of the receiving\nparty or, to the extent that they do not relate to the business of the receiving\nparty, the receiving party shall promptly deliver such mail, telegrams, packages\nor other communications (or, in case the same relate to both businesses, copies\nthereof) to the other party. The provisions of this Section 5.17 are not\nintended to, and shall not be deemed to, constitute an authorization by either\nDuPont or Buyer to permit the other to accept service of process on its behalf\nand neither party is or shall be deemed to be the agent of the other for service\nof process purposes.\n\n                                       94\n\n \n                           (b) All payments and reimbursements received by\nDuPont or its Subsidiaries in connection with or arising out of the Transferred\nBusiness, the Transferred Assets or the Assumed Liabilities after the Closing\nshall be held by such Person in trust for the benefit of Buyer and, immediately\nupon receipt by such Person of any such payment or reimbursement, such Person\nshall pay over to Buyer the amount of such payment or reimbursement, without\nright of set off.\n\n                           (c) All payments and reimbursements received by Buyer\nor its Subsidiaries in connection with or arising out of the Excluded Assets,\nRetained Liabilities or Retained Business, after the Closing shall be held by\nsuch Person in trust for the benefit of DuPont and, immediately upon receipt by\nsuch Person of any such payment or reimbursement such person shall pay over to\nDuPont the amount of such payment or reimbursement without right of set off.\n\n                  5.18 Compliance with WARN Act and Similar Statutes. Buyer\n                       ---------------------------------------------\nagrees that it shall, and shall cause its Subsidiaries to, comply with the\nWorker Adjustment and Retraining Notification Act of 1988 (the \"WARN Act\") and\n                                                                --------\nany applicable state, local and foreign plant closing and layoff law as it\nrelates to any site of employment of the Transferred Business Companies. Buyer\nagrees to, and shall cause its Subsidiaries to, indemnify, defend and hold\nharmless DuPont and the Retained Subsidiaries from and against any and all\nLosses which DuPont and the Retained Subsidiaries may incur in connection with\nany Action or claim of violation brought against DuPont and any of the Retained\nSubsidiaries under the WARN Act or any state, local and foreign plant closing\nand layoff law, which relate, in whole or in part, to actions taken by Buyer or\nany of its Subsidiaries following the Closing Date with regard to any site of\nemployment of the Transferred Business Companies or any of their respective\noperating units within any site of employment of the Transferred Business.\n\n                  5.19     Shared Contracts. Subject to Section 5.20 below: (a)\n                           ----------------\nWith respect to Shared Contractual Liabilities pursuant to, under or relating to\na given Shared Contract, such Shared Contractual Liabilities shall be allocated\nbetween DuPont and Buyer as follows:\n\n                               (i)    If a Liability is incurred exclusively in\n         respect of a benefit received by DuPont or by DPC (or in the case of\n         DuPont, the Retained Subsidiaries, or in the case of DPC, the\n         Transferred Business Companies), the party receiving such benefit shall\n         be responsible for such Liability.\n\n                               (ii)   If a Liability cannot be so allocated\n         under clause (i), such Liability shall be allocated to DuPont or Buyer,\n         as the\n\n                                       95\n\n \n         case may be, based on the relative proportions of total benefit\n         received (over the term of the Shared Contract, measured as of the date\n         of the allocation) by such party or such party's Subsidiary under the\n         relevant Shared Contract. Notwithstanding the foregoing, each of DuPont\n         and Buyer shall be responsible for any or all Liabilities arising from\n         its (or its Subsidiary's) breach of the relevant Shared Contract to\n         which this Section 5.19 otherwise pertains.\n\n                           (b) If DuPont or any Retained Subsidiary, on the one\nhand, or Buyer or any of its Subsidiaries (including DPC), on the other hand,\nreceives any benefit or payment which under any Shared Contract was intended for\nthe other, DuPont and Buyer will use their respective reasonable best efforts\nto, and to cause their respective Subsidiaries to, deliver such benefit or\npayment to the other party.\n\n                  5.20     Certain Matters Relating to Intellectual Property and\n                           -----------------------------------------------------\nAgreements with Merck &amp; Co. Inc.\n-------------------------------\n\n                           (a) Prior to the Closing, (i) DPC shall assign to\nDuPont all of its rights and obligations under the agreements listed in Schedule\n5.20(a)(i)(A) and all of its rights in and to the Patents and Trademarks listed\nin Schedule 5.20(a)(i)(B) and (ii) DuPont shall assign to DPC all of its rights\nand obligations under the agreements listed in Schedule 5.20(a)(ii)(A) and all\nof its rights in and to the Patents and Trademarks listed in Schedule\n5.20(a)(ii)(B). In the event Schedules 1.1(c) and 5.20(a)(i)(B) for the\nCozaar\/Hyzaar\/Fortzaar patent estate are not complete or correct as of the date\nof this Agreement, (x) DuPont may amend such schedules prior to the Closing and\nsuch schedules shall be deemed amended for all purposes under this Agreement,\nand (y) Buyer shall make any assignments necessary to effectuate DuPont's or the\nRetained Subsidiaries' ownership of such Patents, it being understood that (i)\nwith respect to all Patents corresponding to the last four Patents listed in\nSchedule 1.1(c), such Patents shall be added to the Schedules 1.1(c) and\n5.20(a)(i)(B), (ii) with respect to Patents that relate solely to AII Blockers,\nDuPont shall exercise its reasonable good faith judgment in making such\ncorrections, and (iii) with respect to Patents that relate to AII Blockers but\nnot solely, DuPont shall first obtain the consent of Buyer, not to be\nunreasonably withheld or delayed; provided, however, that no such Patents under\n                                  --------  -------\nthe foregoing (i), (ii), and (iii) shall include any of those listed on Schedule\n3.14(a)(i).\n\n                           (b) From and after the Closing, (i) Buyer shall cause\neach of the Transferred Business Companies not to amend, extend or modify any\nagreement, commitment or arrangement with Merck &amp; Co., Inc. or any of its\nAffiliates listed on Schedule 5.20(b) (each a \"DuPont Merck Agreement\") which\n                                               ----------------------\namendment, extension or modification would have an adverse effect on DuPont or\nany of the Retained\n\n                                       96\n\n \nSubsidiaries pursuant to the terms of any DuPont Merck Agreement or would result\nin the termination of any such agreement or which would be the subject of a\nguarantee or similar obligation of DuPont or any of the Retained Subsidiaries or\notherwise is binding on DuPont or any of the Retained Subsidiaries or any of\ntheir respective properties or assets and (ii) Buyer shall cause each of the\nTransferred Business Companies to comply with any and all obligations of such\nTransferred Business Company under any of the DuPont Merck Agreements (including\nDPC's acting as DuPont's agent pursuant to any such DuPont Merck Agreements)\nwhere the failure of a Transferred Business Company to comply with any such\nobligations is reasonably likely to give rise to a Liability of DuPont or any\nRetained Subsidiary.\n\n                           (c) From and after the Closing, (i) DuPont shall not,\nand shall cause the Retained Subsidiaries not to, amend, extend or modify any\nDuPont Merck Agreement, which amendment, extension or modification would have an\nadverse effect on any of the Transferred Business Companies pursuant to the\nterms of any DuPont Merck Agreement or would result in the termination of such\nagreement or would be the subject of a guarantee or similar obligation of any\nTransferred Business Company or any of the Transferred Business Companies\nrespective properties or assets and (ii) DuPont shall, and shall cause the\nRetained Subsidiaries to, comply with any and all obligations of DuPont and such\nRetained Subsidiaries under the DuPont Merck Agreements where the failure of\nDuPont or such Retained Subsidiaries to comply with any such obligations is\nreasonably likely to give rise to a Liability of a Transferred Business Company.\n\n                           (d) DuPont shall not unreasonably withhold or delay\nits consent to (i) the assignment by DPC of the Agency Agreement (including all\nits rights and obligations thereunder) to a reputable third-party manufacturer\ncapable of performing DPC's obligations thereunder or (ii) to any other\nreasonable arrangement with Merck &amp; Co. Inc. in lieu thereof for the supply to\nMerck &amp; Co. Inc. of Losartan finished products; provided that, in either case,\n                                                --------\nMerck &amp; Co. Inc. consents in writing to such assignment or alternative\narrangement.\n\n                  5.21 Section 754 Election. Buyer, Buyer Sub 1, Buyer Sub 2 and\n                       --------------------\nDuPont shall cooperate and take any and all actions reasonably required to\nensure that a valid election under Section 754 of the Code is in effect with\nrespect to DPC for the taxable year that includes the Closing Date.\n\n                  5.22 Responsibility for Subsidiaries. (a) All obligations owed\n                       -------------------------------\nto Buyer Sub 1 or Buyer Sub 2, and all deliveries and notices required to be\nprovided to Buyer Sub 1 and Buyer Sub 2, pursuant to this Agreement shall be\ndeemed to have been satisfied and complied with if performed with respect to\nBuyer, which shall be deemed to be authorized to take actions and receive\ndeliveries and notices on their\n\n                                       97\n\n \nbehalf. Buyer agrees, for the benefit of DuPont and its Affiliates, to cause\nBuyer Sub 1 and Buyer Sub 2 to perform all of their respective obligations and\nagreements pursuant to this Agreement and hereby fully guarantees to DuPont and\nits Affiliates their performance hereunder.\n\n                           (b) All obligations owed to any Subsidiaries of\nDuPont, and all deliveries and notices required to be provided to any such\nSubsidiaries, pursuant to this Agreement shall be deemed to have been satisfied\nand complied with if performed with respect to DuPont, which shall be deemed to\nbe authorized to take actions and receive deliveries and notices on their\nbehalf. DuPont agrees, for the benefit of Buyer and its Affiliates, to cause its\nSubsidiaries (including the Transferred Business Companies prior to the Closing)\nto perform all of their respective obligations and agreements pursuant to this\nAgreement and hereby fully guarantees to Buyer and its Affiliates their\nperformance hereunder.\n\n                  5.23 Maintenance of Partnership Existence. Buyer agrees that\n                       ------------------------------------\nfrom and after the Closing, Buyer shall not, and shall not permit any of its\nSubsidiaries to, terminate or shorten the term of the Partnership Agreement\ngoverning DPC or dissolve, cause or permit the dissolution of DPC, unless in\neach case such action would not result in a modification or termination of DPC's\nagency pursuant to (i) the Bulk Losartan Supply Agreement, dated as of March 31,\n1993, between DuPont and Merck and Co. Inc. or (ii) the Losartan Finished\nProduct Supply Agreement, dated March 31, 1993, between DuPont and Merck &amp; Co.,\nInc. (the \"Losartan Manufacturing Agreements\"). In the event that Buyer or any\n           ---------------------------------\nof its Affiliates sell any or all of the DPC Interests after the Closing, Buyer\nshall cause the purchaser of such DPC Interests to agree to be bound by the\nprovisions of this Section 5.23. The foregoing covenant shall terminate\nimmediately following any termination of the Losartan Manufacturing Agreements.\n\n                  5.24     Delivery of Financial Statements.\n                  -----------------------------------------\n\n                           (a) DuPont shall cause to be delivered to Buyer not\nlater than the earlier to occur of thirty (30) Business Days before the Closing\nDate and September 1, 2001 (i) an audited combined balance sheet of the\nTransferred Business Companies (including the Additional Transferred Assets and\nthe Assumed Liabilities) at December 31, 2000 and audited combined statements of\nincome and cash flows of the Transferred Business Companies for the year ended\nDecember 31, 2000 (the \"Audited 2000 Financial Statements\") and (ii) an audited\n                        ---------------------------------\ncombined balance sheet of the Transferred Business Companies (including the\nAdditional Transferred Assets and the Assumed Liabilities) at December 31, 1999\nand audited combined statements of income and cash flows of the Transferred\nBusiness Companies for the year ended December 31, 1999 (the \"Audited 1999\n                                                              ------------\nFinancial Statements\" and, taken together\n--------------------\n\n                                       98\n\n \nwith the Audited 2000 Financial Statements, the \"Audited Financial Statements\"),\n                                                 ----------------------------\nin each case together with a report without qualification or exception of\nPricewaterhouseCoopers LLP, DuPont's independent accountants, with respect\nthereto. DuPont shall use its reasonable best efforts to cause\nPricewaterhouseCoopers LLP to provide to Buyer any consent necessary for Buyer\nto include such report in any filing made by Buyer under applicable securities\nlaws.\n\n                           (b) For each fiscal quarter ending after December 31,\n1999 and before the Closing, DuPont shall deliver to Buyer, in each case of each\nfiscal quarter ending on or prior to June 30, 2001, not later than August 15,\n2001, and for each fiscal quarter thereafter, within 45 days after the last day\nof such fiscal quarter promptly after they are available, unaudited combined\nbalance sheets and unaudited combined statements of income of the Transferred\nBusiness Companies as of the end of such fiscal quarter and for the period then\nended (each, an \"Unaudited Interim Financial Statement\").\n                 -------------------------------------\n\n                           (c) The Audited Financial Statements and the\nUnaudited Interim Financial Statements shall be prepared in accordance with GAAP\nand the requirements of Regulation S-X of the Exchange Act.\n\n                  5.25 Certain Real Estate Matters. Upon the request of Buyer,\n                       ---------------------------\nDuPont and Buyer shall use their good faith efforts for a period commencing on\nthe date of this Agreement and expiring on the first (1st) anniversary of the\ndate of this Agreement, to negotiate a commercially reasonable purchase\nagreement with respect to the purchase by Buyer of not less than fifteen (15)\nand no more than forty (40) acres owned by DuPont or a Subsidiary of DuPont\nlocated adjacent to the facility owned by DDI and located in Manati, Puerto\nRico; provided, however, nothing contained herein shall be deemed to require\n      --------  -------\nDuPont or such Subsidiary to consummate such purchase and sale or to incur any\ncost or expense in connection therewith and the failure to so consummate such\npurchase and sale shall not affect the rights and the obligations of the parties\nhereunder.\n\n\n                                   ARTICLE VI\n                                   ----------\n\n                                   TAX MATTERS\n                                   -----------\n\n                  6.1      Tax Indemnification.\n                  ----------------------------\n\n                           (a) DuPont's Indemnification of Buyer. DuPont shall\n                               ---------------------------------\nindemnify Buyer and its Affiliates and hold them harmless from, against and in\nrespect of, without duplication, (i) any Taxes of the Transferred Business\nCompanies\n\n                                       99\n\n \nor in respect of the Transferred Equipment, for or relating to any taxable\nperiod ending on or before the Closing Date and the portion of any Straddle\nPeriod (as defined herein) ending on the Closing Date (computed in accordance\nwith Section 6.2 hereof) (each, a \"Pre-Closing Tax Period\") (including any Taxes\n                                   ----------------------\narising as a result of the removal of the Excluded Assets from the Transferred\nBusiness Companies) (ii) any Taxes with respect to the Transferred Equipment\nattributable to any Pre-Closing Tax Period; and (iii) any Taxes (as a result of\nTreasury Regulation 1.1502-6 or otherwise) of any entity (other than a\nTransferred Business Company) with whom any Transferred Business Company has\never been affiliated or with whom any Transferred Business Company joins or has\never joined (or has ever been required to join) in filing prior to the Closing\nDate, any consolidated combined or unitary Tax Return; provided that, for\n                                                       --------\npurposes of this Section 6.1(a) DuPont shall be credited for any estimated or\nother similar Tax payments made or accrued by DuPont, any of the Transferred\nBusiness Companies, or any of their Subsidiaries on or before the Closing Date;\nand provided further that, except as otherwise provided by Section 6.4(b)(i),\n    -------- -------\nDuPont shall be liable for Taxes of a Controlled Foreign Subsidiary or DPL for a\nPre-Closing Tax Period only to the extent that the aggregate amount of such\nTaxes exceeds $300,000 (the \"Foreign Tax Threshold Amount\"); (iv) any U.S.\n                             ----------------------------\nfederal, state and local Taxes resulting from the Section 338(g) and Section\n338(h)(10) elections (or any comparable elections under state or local Tax law)\ncontemplated by Section 6.6(d) of this Agreement; (v) all liability for\nreasonable legal fees and expenses for any item attributable to an item\ndescribed in this Section 6.1(a); (vi) any income, franchise or other similar\nTaxes resulting from the allocation of income, gain, loss, deduction and credit\nof DPC to its partners for any Pre-Closing Tax Period; and (vii) any Transfer\nTaxes for which DuPont is responsible under Section 6.5 hereof. Notwithstanding\nthe foregoing, DuPont shall not indemnify and hold harmless Buyer and its\nAffiliates from any liability for Taxes directly related to any action taken on\nor after the Closing Date by Buyer or any of its Affiliates (other than any such\naction expressly required or permitted by this Agreement or required by\napplicable law) (a \"Buyer Tax Act\").\n                    -------------\n\n                           (b) Buyer's Indemnification of DuPont. Buyer shall,\n                               ---------------------------------\nand shall cause the Transferred Business Companies to, indemnify DuPont and its\nAffiliates and hold them harmless from, against and in respect of, without\nduplication, (i) any Taxes of the Transferred Business Companies for any taxable\nperiod beginning after the Closing Date and the portion of any Straddle Period\nbeginning after the Closing Date (computed in accordance with Section 6.2\nhereof) (each, a \"Post-Closing Tax Period\"); (ii) any income, franchise or other\n                  -----------------------\nsimilar Taxes resulting from the allocation of income, gain, loss, deduction and\ncredit of DPC to its partners for any Post-Closing Tax Period; (iii) all\nliability for Taxes directly related to a Buyer Tax Act; (iv) all liability for\nreasonable legal fees and expenses for any item attributable to an item\ndescribed in this Section 6.1(b); (v) any Taxes of Controlled\n\n                                       100\n\n \nForeign Subsidiaries for which DuPont is not liable pursuant to Section 6.1(a);\n(vi) any Taxes with respect to the Transferred Equipment attributable to any\nPost-Closing Tax Period; and (vii) any Transfer Taxes for which Buyer is\nresponsible under Section 6.5 hereof.\n\n                  6.2      Closing of Current Taxable Year, Etc.\n                  ---------------------------------------------\n\n                           (a) Closing of Taxable Year. To the extent required\n                               -----------------------\nor permitted by Law (including, without limitation, pursuant to Treasury\nRegulations promulgated under Section 1502 of the Code), the parties shall elect\nto close any taxable year of the Transferred Business Companies as of the close\nof business on the Closing Date.\n\n                           (b) Straddle Periods. In the case of any taxable\n                               ----------------\nperiod that includes (but does not end on) the Closing Date (a \"Straddle\n                                                                --------\nPeriod\"), the Taxes of the Transferred Business Companies for the Pre-Closing\n------\nTax Period and Post-Closing Tax Period shall be determined based on an interim\nclosing of the books as of the close of business on the Closing Date,\nnotwithstanding the foregoing, (i) exemptions, allowances, credits, deductions\nor other Tax Items (such as real, personal and other property or similar Taxes)\nthat must under applicable Law be calculated on an annual basis (including,\nwithout limitation, the annual limitation applicable to any Transferred Business\nCompany pursuant to Section 382 of the Code and the Treasury Regulations\npromulgated thereunder) and (ii) all real, personal and other property or\nsimilar Taxes relating to the Transferred Equipment shall be determined by\nreference to the relative number of days in the pre-Closing and post-Closing\nportions of such Straddle Period.\n\n                           (c) Closing of the Partnership Taxable Year.\n                               ---------------------------------------\nConsistent with Section 6.2(a) hereof, DuPont and Buyer acknowledge and agree\nthat the partnership taxable year of DPC shall terminate as of the close of\nbusiness on the Closing Date, in accordance with Treasury Regulation Sections\n1.708-1(b)(3) and 1.706-1(c), utilizing a \"closing of the books\" methodology.\n\n                  6.3      Tax Returns.\n                  --------------------\n\n                           (a) Except as provided in Section 6.5 hereof, DuPont\nshall prepare, or cause to be prepared in accordance with applicable Law, and\nfile or cause to be filed, when due, all Tax Returns (other than Straddle Period\nTax Returns) with respect to Taxes for which DuPont is responsible as described\nin Section 6.1(a) hereof, including, without limitation, income, franchise, or\nother similar Tax Returns for any Transferred Business Company for any\nPre-Closing Tax Period. Buyer shall and shall cause the Transferred Business\nCompanies to cooperate with, and take any\n\n                                       101\n\n \naction reasonably requested by, DuPont with respect to the preparation and\nfiling of such Tax Returns. The immediately preceding sentence shall, in no way,\nbe construed as limiting or otherwise modifying the rights and obligations of\nthe parties under Section 6.7 hereof.\n\n                           (b) Except as provided in Section 6.5 hereof, Buyer\nshall prepare, or cause to be prepared in accordance with applicable Law (in the\ncase of any Straddle Period Tax Return, consistent with past practice for such\nTax Return) and file or cause to be filed, when due, all Tax Returns with\nrespect to the Transferred Business Companies and the Transferred Equipment\nrequired to be filed other than those described in Section 6.3(a) hereof.\n\n                           (c) If either DuPont or Buyer is obligated under this\nAgreement to bear the economic burden for any portion of the Tax payable in\nconnection with any Tax Return to be prepared and filed by the other (or an\nAffiliate of the other), the party responsible for filing such return (the\n\"Preparer\") shall prepare and deliver to the other party (the \"Payor\") a copy of\n --------                                                      -----\nsuch return and any schedules, work papers and other documentation that are\nrelevant to the preparation of the portion of such return for which the Payor is\nor may be liable hereunder not later than thirty (30) days prior to the due date\nfor such Tax Return (including applicable extensions) (the \"Due Date\"). The\n                                                            --------\nPreparer shall not file such Tax Return until the earlier of (i) the receipt of\nwritten notice from the Payor indicating the Payor's consent thereto, or (ii)\none (1) day prior to the Due Date.\n\n                           The Payor shall have the option of providing to the\nPreparer, at any time at least ten (10) days prior to the Due Date, written\ninstructions as to how the Payor wants any, or all, of the Tax Items for which\nit may be liable reflected on such Tax Return. The Preparer shall, in preparing\nsuch Tax Return, cause the items for which the Payor is liable hereunder to be\nreflected in accordance with the Payor's instructions on such Tax Return. In the\nabsence of having received instructions from Payor, such items shall be reported\nin any manner determined by the Preparer.\n\n                  6.4      Contest Provisions.\n                  ---------------------------\n\n                           (a) Notification of Contests. DuPont and its\n                               ------------------------\nAffiliates, on the one hand, and Buyer and its Affiliates, on the other hand\n(the \"Recipient\"), shall notify the other party in writing within ten (10)\n      ---------   \nBusiness Days of receipt by the Recipient of written notice of any pending or\nthreatened audits, adjustments, assessments, examinations or proceedings\n(whether judicial or administrative) (a \"Tax Audit\") which may affect the\n                                        -----------\nliability for Taxes of such other party or may give rise to an indemnification\npayment under Section 6.1 by such other party. For purposes of the preceding\nsentence, Buyer shall notify DuPont of any notice received\n\n                                       102\n\n \nby Buyer relating to a Tax Audit of a Controlled Foreign Subsidiary or DPL for\nany Pre-Closing Tax Period. If the Recipient fails to give such notice to the\nother party, or if such notice is not in sufficient detail to notify the other\nparty of the nature of the Tax Audit, the Recipient shall not be entitled to\nindemnification for any Taxes arising in connection with such Tax Audit to the\nextent such failure to give notice materially adversely affects the other\nparty's right to participate in and contest the Tax Audit.\n\n                  (b)      Which Party Controls.\n                           --------------------\n\n                               (i)    DuPont's Items. If such Tax Audit relates\n                                      --------------   \n         to any Taxes for which DuPont is liable hereunder, DuPont shall at its\n         expense control the defense and settlement of such Tax Audit\n         (including, without limitation, selection of counsel, determining\n         whether to pursue or forego any and all administrative appeals,\n         proceedings (whether judicial or administrative), hearings and\n         conferences with any Tax Authority with respect thereto, and may, in\n         its sole discretion, either pay the Tax claimed and sue for a refund\n         where applicable Law permits such refund suits or contest such Tax\n         Audit in any permissible manner). In no case shall Buyer, the\n         Transferred Business Companies or any of their Affiliates settle or\n         otherwise compromise any Tax Audit referred to in the preceding\n         sentence without DuPont's prior written consent. In addition, if a Tax\n         Audit relates to a Tax of a Controlled Foreign Subsidiary for a\n         Pre-Closing Tax Period and the Foreign Tax Threshold Amount has not\n         been exceeded, DuPont shall have the right (but not the obligation) to\n         control the defense and settlement of such Tax Audit, provided that\n         DuPont agrees to be responsible for the Taxes assessed in such Tax\n         Audit and any such Taxes shall not be applied to the Foreign Tax\n         Threshold Amount.\n\n                               (ii)   Buyer's Items. If such Tax Audit relates\n                                      -------------\n         to any Taxes for which Buyer is liable in full hereunder, Buyer shall\n         at its expense control the defense and settlement of such Tax Audit\n         (including, without limitation, selection of counsel, determining\n         whether to pursue or forego any and all administrative appeals,\n         proceedings (whether judicial or administrative), hearings and\n         conferences with any Tax Authority with respect thereto, and may, in\n         its sole discretion, either pay the Tax claimed and sue for a refund\n         where applicable Law permits such refund suits or contest such Tax\n         Audit in any permissible manner).\n\n                                       103\n\n \n                               (iii)  Combined and Mixed Items. If such Tax\n                                      ------------------------\n         Audit relates to Taxes for which both DuPont and Buyer are liable\n         hereunder, to the extent possible such Tax Items will be distinguished\n         and each party will control the defense and settlement of those Taxes\n         for which it is so liable.\n\n                               If such Tax Audit relates to any Straddle Period\n         and any Tax Item cannot be identified as being a liability of only one\n         party or cannot be separated from a Tax Item for which the other party\n         is liable, the party which has the greater potential liability for\n         those Tax Items that cannot be so attributed or separated (or both)\n         shall control the defense and settlement of the Tax Audit, provided\n                                                                    --------\n         that, such party defends the items as reported on the relevant Tax\n         Return.\n\n                               (iv)   Participation Rights. Any party who is\n                                      --------------------\n         entitled to participate but does not control a Tax Audit under this\n         Section 6.4(b) shall participate at its own expense in the defense of\n         such Tax Audit and employ counsel of its choice at its expense and the\n         party controlling such Tax Audit under this Section 6.4(b) shall in\n         good faith keep such party informed with respect to such Tax Audit and,\n         upon the reasonable request of such party, shall consult with such\n         party from time to time regarding the conduct of such Tax Audit.\n\n                  6.5 Transfer Taxes. Notwithstanding any other provision of\n                      --------------  \nthis Agreement, one-half of all excise, sales, use, value added, transfer\n(including real property transfer), stamp, documentary, filing, recordation and\nother similar taxes arising directly or indirectly from the Closing (\"Transfer\n                                                                      -------- \nTaxes\"), shall be paid to the appropriate Tax Authority by DuPont and one-half\n-----\nof such Transfer Taxes shall be paid by Buyer. Notwithstanding Section 6.3\nhereof, which shall not apply to Tax Returns relating to Transfer Taxes, any Tax\nReturns that must be filed in connection with Transfer Taxes shall be prepared\nand filed when due by the party primarily responsible for filing such Tax\nReturns under the applicable Law imposing such Transfer Taxes; provided that\n                                                               --------\nsuch Tax Returns shall be prepared and filed jointly by DuPont and Buyer if\neither (i) no party to this Agreement is or (ii) both DuPont, on the one hand,\nand Buyer, DPC or the Transferred Business Companies, on the other hand, are\nprimarily responsible for filing such Tax Returns under the applicable Law\nimposing such Transfer Taxes.\n\n                                       104\n\n \n                  6.6      Certain Post-Closing Settlement Payments and\n                  ----------------------------------------------------- \nPost-Closing Actions.\n--------------------\n\n                           (a) Buyer's Claiming, Receiving or Using of Refunds\n                               -----------------------------------------------\nand Overpayments. If Buyer or any of its Affiliates (A) receives any refund of\n----------------\nTax, or (B) utilizes the benefit of any overpayment of Taxes which, in each case\n(A) and (B), (x) relates to Taxes paid or accrued by DuPont or any of its\nSubsidiaries with respect to a Pre-Closing Tax Period, or portion thereof,\nending on or before the Closing Date, or (y) is the subject of indemnification\nby DuPont pursuant to this Agreement, Buyer shall transfer, or cause to be\ntransferred, to DuPont, within ten (10) days of receipt, the entire amount of\nthe refund or overpayment (including interest), net of any Tax payable by Buyer\nor any of its Affiliates with respect thereto (including with respect to any\ninterest on such refund or overpayment), received or utilized by Buyer or any of\nits Affiliates. Buyer agrees to notify DuPont within ten (10) days after the\ndiscovery of a right to claim any such refund or overpayment and the receipt of\nany such refund or utilization of any such overpayment. Buyer agrees to claim\nany such refund or to utilize any such overpayment as soon as possible and to\nfurnish to DuPont all information, records and assistance necessary to verify\nthe amount of the refund or overpayment. The amount of economic benefit of any\nrefunds, credits or offsets of Taxes of the Transferred Business Companies for\nany Straddle Period shall be equitably apportioned between DuPont and Buyer on a\n\"closing of the books\" basis, except with respect to items calculated on an\nannual or per diem basis, in which case apportionment shall be on a pro rata\nbasis.\n\n                           (b) DuPont's Claiming, Receiving or Using of Refunds\n                               ------------------------------------------------\nand Overpayments. If DuPont or any of its Affiliates (A) receives any refund of\n----------------\nTax, or (B) utilizes the benefit of any overpayment of Taxes which, in each case\n(A) and (B), (x) relates to Taxes paid by Buyer or any of its Subsidiaries with\nrespect to a taxable period, or portion thereof, beginning after the Closing\nDate (including any refund of Tax in a Pre-Closing Tax Period by reason of a\ncarryback from a Post-Closing Tax Period) or (y) is the subject of\nindemnification by Buyer pursuant to this Agreement, DuPont shall transfer, or\ncause to be transferred, to Buyer, within ten (10) days of receipt, the entire\namount of the refund or overpayment (including interest), net of any Tax payable\nby DuPont or any of its Affiliates with respect thereto (including with respect\nto any interest on such refund or overpayment), received or utilized by DuPont\nor any of its Affiliates. DuPont agrees to notify Buyer within ten (10) days\nafter the discovery of a right to claim any such refund or overpayment and the\nreceipt of any such refund or utilization of any such overpayment. DuPont agrees\nto claim any such refund or to utilize any such overpayment as soon as possible\nand to furnish to Buyer all information, records and assistance necessary to\nverify the amount of the refund or overpayment.\n\n                                       105\n\n \n                           (c) Pre-Closing Tax Returns. None of Buyer, the\n                               -----------------------\nTransferred Business Companies or any of their Affiliates shall amend any Tax\nReturn prepared and filed by DuPont pursuant to Section 6.3(a) hereof. DuPont\nagrees to reasonably cooperate with Buyer to claim any refund arising from\ncarrybacks from a Post-Closing Tax Period to a Pre-Closing Tax Period as soon as\npossible.\n\n                           (d) Section 338(g) and (h)(10) Elections. DuPont and\n                               ------------------------------------\nBuyer agree to make Section 338(g) elections with respect to the Controlled\nForeign Subsidiaries and that no Section 338(g) election shall be made with\nrespect to DPL. DuPont and Buyer agree to make Section 338(h)(10) elections with\nrespect to DPRL and DCI.\n\n                           (e) PR Tax Grant. DuPont and Buyer acknowledge that\n                               ------------\nBuyer may seek an amendment to Buyer's existing grant with respect to Puerto\nRico Taxes and intends for the PR Tax Grant to terminate as to DuPont as of the\nClosing Date, provided, however, that DuPont and Buyer shall cooperate in good\n              --------  ------- \nfaith and use their reasonable best efforts to obtain a letter agreement,\namendment to the PR Tax Grant, or similar agreement as expeditiously as possible\n(and to the extent reasonably possible prior to August 15, 2001) from the\nnecessary Governmental Authorities (including, without limitation, the Puerto\nRico Department of State-Office of Industrial Tax Exemption, The Puerto Rico\nDepartment of Treasury and the Puerto Rico Industrial Development Company),\npermitting a termination as to DuPont or amendment of the PR Tax Grant as of the\nClosing Date which provides in substance that, after the Closing, none of\nDuPont, DPL or any DuPont Affiliate shall have any further obligations under the\nPR Tax Grant and that there will be no loss of Tax benefits (including Tax\nAssets) and no additional Taxes to DuPont or its Affiliates (including DPL) for\nany Pre-Closing Tax Period by reason of the termination (the \"PR Tax\nAmendment\"). Buyer and DuPont agree that to the extent that obtaining the PR Tax\nAmendment results in incremental costs to Buyer that Buyer would not have\nincurred except by reason of the PR Tax Amendment, DuPont shall indemnify Buyer\nfor 50% of such costs up to $15,000,000 and that DuPont shall bear all direct\ncosts of obtaining the PR Tax Amendment in excess of $15,000,000. For purposes\nof the preceding sentence, costs taken into account are intended to include\ncosts of complying with the requirements imposed by the relevant Governmental\nAuthorities, but not incidental or similar costs including costs of negotiating\nthe PR Tax Amendment.\n\n                  6.7 Mutual Cooperation. DuPont and Buyer will cooperate with\n                      ------------------\neach other in paying any Taxes, filing any Tax Return and conducting any Tax\nAudit (including, without limitation, any judicial or administrative proceeding)\ncontemplated by this Agreement and, except as set forth to the contrary in this\nAgreement, take such action as the other party may reasonably request including,\nwithout\n\n                                       106\n\n \nlimitation, the following: (a) provide data for the preparation of any Tax\nReturn, including schedules, and make any elections that reasonably may be\nrequired by the other party; (b) provide required documents and data and\ncooperate in any Tax Audit or investigation of any Tax Return and execute\nappropriate powers of attorney in favor of the other party and\/or its agents;\n(c) file protests or otherwise contest any proposed or asserted Tax\ndeficiencies, including filing petitions for redetermination or prosecuting\nactions for refund in any court, and pursuing the appeal of any such actions;\n(d) execute Tax Returns or other documents reasonably required by the other\nparty; (e) take any of the actions of the type described in Treasury Regulation\nSection 1.1502-77(a), which describes the scope of the agency of the common\nparent of a group of affiliated corporations; (f) provide complete access to,\nand comply with reasonable requests for copies of, all Tax Returns, books and\nrecords, data, documents, work papers, materials and other information relating\nto the Taxes of the Transferred Business Companies for any taxable period; (g)\nmake reasonably available to each other, its officers, directors, employees and\nagents for any fact finding, consultation and discussions related to the\npreparation and filing of any Tax Return, the conduct of any Tax Audit\n(including, without limitation, any judicial or administrative proceeding), and\nany other matter with respect to Taxes; (h) execute such powers of attorney as\nare reasonably requested and required by DuPont or any of DuPont's Affiliates or\nBuyer or any of Buyer's Affiliates on behalf of, as the case may be, Buyer or\nany of Buyer's Affiliates or DuPont or any of DuPont's Affiliates to enable the\nrequesting party to represent the other party in a Tax Audit involving a Tax for\nwhich the requesting party is liable under applicable Law; and (i) provide data\nrequested related to the earnings and profits of DPL and information\nspecifically required under Section 1248 of the Code and Treasury Regulation\n1.1248-7. DuPont and Buyer hereby agree to reimburse each other for reasonable\nout-of-pocket expenses (excluding officers' or employees' salaries and general\ncorporate overhead and other similar expenses) incurred by the other in\nconnection with satisfying its obligations under this Section 6.8.\n\n                  6.8 Maintenance of Books and Records. Until the applicable\n                      --------------------------------\nstatute of limitation (including periods of waiver) has expired for any Tax\nReturn filed or required to be filed covering the periods up to and including\nthe Closing Date (including any Straddle Periods), Buyer and its Affiliates\nshall retain all Tax work papers and related materials in its possession and\nunder its control that were used in the preparation of any such Tax Return.\nBuyer will notify DuPont sixty (60) days prior to disposing of any Tax records\nrelating to taxable periods and will deliver to DuPont any such records\nrequested by DuPont.\n\n                                       107\n\n \n                  6.9      Miscellaneous.\n                  ----------------------\n\n                           (a) Termination of Existing Tax Sharing Agreements.\n                               ----------------------------------------------\nDuPont hereby agrees and covenants that any Tax Sharing Agreement to which any\nof the Transferred Business Companies is a party will cease to apply to the\nTransferred Business Companies as of the Closing Date.\n\n                           (b) Section 41 Notification. Pursuant to Code Section\n                               ----------------------- \n41(f)(3)(B), DuPont shall provide Buyer with the \"qualified research\nexpenditures\" (as DuPont has interpreted Code Section 41(b)) and the \"gross\nreceipts\" (as DuPont has interpreted Code Section 41(c)(6)) used by DuPont to\ncalculate the \"fixed base percentage\" as defined in Code Section 41(c)(3) of the\nBusiness being acquired by Buyer.\n\n                           (c) Interpretation. To the extent that there is a\n                               -------------- \nconflict between any provision of this Article VI and any other provision of\nthis Agreement that otherwise would be applicable with respect to any Taxes, Tax\nReturns, Tax Audits, Tax indemnification claims or any other matter related to\nTaxes, the provisions of this Article VI shall govern.\n\n\n                                   ARTICLE VII\n                                   -----------\n\n                             CONDITIONS TO THE SALE\n                             ----------------------\n\n                  7.1 Conditions to the Obligations of the Sellers to Effect the\n                      ----------------------------------------------------------\nSale. The obligations of the Sellers to effect the Sale and the other\n----\ntransactions contemplated hereby shall be subject to the fulfillment, or written\nwaiver by the Sellers, at or prior to the Closing of each of the following\nconditions:\n\n                           (a) Representations and Warranties. The\n                               ------------------------------ \nrepresentations and warranties of Buyer contained in Sections 4.1 and 4.2 shall\nbe true and correct in all material respects as of the date of this Agreement\nand the Closing Date. The representations and warranties of Buyer contained in\nArticle IV hereof (other than Sections 4.1 and 4.2) that are qualified by\nmateriality or by Buyer Material Adverse Effect shall be true and correct in all\nrespects as of the date of this Agreement and the Closing Date, and the\nrepresentations and warranties contained in Article IV hereof (other than\nSections 4.1 and 4.2) that are not qualified by materiality or by Buyer Material\nAdverse Effect shall be true and correct in all material respects as of the date\nof this Agreement and the Closing Date, except (i) to the extent such\nrepresentations and warranties speak as of an earlier date, in which case they\nshall be so true and correct as of such date or (ii) in the case of the\nrepresentations and warranties of\n\n                                       108\n\n \nBuyer contained in Article IV hereof that are not qualified by Buyer Material\nAdverse Effect (other than those in Sections 4.1 and 4.2) for any such failures\nto be true and correct in all respects as would not, taken individually or in\nthe aggregate with any inaccuracies of the other representations and warranties\nof Buyer contained in Article IV, have or reasonably be expected to have a Buyer\nMaterial Adverse Effect.\n\n                           (b) Performance by Buyer. Buyer shall have performed\n                               --------------------\nand complied in all material respects with all agreements, obligations,\ncovenants and conditions required by this Agreement to be performed or complied\nwith by Buyer on or prior to the Closing.\n\n                           (c) Certificates. Buyer shall have furnished DuPont\n                               ------------\nwith a certificate signed by its Chief Financial Officer to the effect that the\nconditions set forth in Sections 7.1(a) and 7.1(b) hereof have been satisfied.\n\n                           (d) No Injunction or Proceeding. No statute, rule,\n                               ---------------------------\nregulation, executive order, decree, preliminary or permanent injunction or\nrestraining order shall have been enacted, entered, promulgated or enforced by\nany Governmental Authority which prohibits or restricts the consummation of the\nSale.\n\n                           (e) Required Antitrust Approvals. All required\n                               ----------------------------\nwaiting periods and approvals applicable to this Agreement and the transactions\ncontemplated hereby with respect to the Required Antitrust Approvals shall have\nexpired or been received or terminated, and all filings, approvals, waiting\nperiods and orders of Governmental Authorities under Antitrust Laws, the failure\nto obtain which would expose DuPont or any of its Subsidiaries (or any officer,\ndirector or employee of any of the foregoing) to criminal charges, shall have\nexpired or been received or terminated.\n\n                  7.2 Conditions to the Obligations of Buyer to Effect the Sale.\n                      ---------------------------------------------------------\nThe obligation of Buyer to effect the Sale and the other transactions\ncontemplated hereby shall be subject to the fulfillment, or written waiver by\nBuyer, at or prior to the Closing of each of the following conditions:\n\n                           (a) Representations and Warranties of DuPont. The\n                               ----------------------------------------\nrepresentations and warranties of DuPont contained in Sections 3.1, 3.2 and 3.3\nshall be true and correct in all material respects as of the date of this\nAgreement and as of the Closing Date. The representations and warranties of\nDuPont contained in Article III hereof (other than Sections 3.1, 3.2 and 3.3)\nthat are qualified by materiality or by Material Adverse Effect shall be true\nand correct in all respects as of the date of this Agreement and the Closing\nDate, and the representations and warranties contained in Article III hereof\n(other than Sections 3.1, 3.2 and 3.3) that are not qualified by\n\n                                       109\n\n \nmateriality or by Material Adverse Effect shall be true and correct in all\nmaterial respects as of the date of this Agreement and the Closing Date, except\n(i) to the extent such representations and warranties speak as of an earlier\ndate, in which case they shall be so true and correct as of such date and (ii)\nin the case of the representations and warranties of DuPont contained in Article\nIII hereof that are not qualified by Material Adverse Effect (other than\nSections 3.1, 3.2 and 3.3), for any such failures to be true and correct in all\nmaterial respects as would not, taken individually or in the aggregate with any\ninaccuracies of the other representations and warranties of DuPont contained in\nArticle III, have or reasonably be expected to have a Material Adverse Effect.\n\n                           (b) Performance by the Sellers. The Sellers shall\n                               --------------------------\nhave performed and complied in all material respects with all agreements,\nobligations, covenants and conditions required by this Agreement to be performed\nor complied with by them on or prior to the Closing (other than those contained\nin Section 5.25).\n\n                           (c) Certificates. DuPont shall have furnished Buyer\n                               ------------\nwith such certificate signed by its Chief Financial Officer to the effect that\nthe conditions set forth in Sections 7.2(a) and 7.2(b) hereof have been\nsatisfied.\n\n                           (d) No Injunction or Proceeding. No statute, rule,\n                               ---------------------------\nregulation, executive order, decree, preliminary or permanent injunction or\nrestraining order shall have been enacted, entered, promulgated or enforced by\nany Governmental Authority which prohibits or restricts the consummation of the\nSale or which otherwise would reasonably be expected to have a Material Adverse\nEffect or Buyer Business Material Adverse Effect, nor shall any proceeding by\nany Governmental Authority seeking any of the foregoing be pending or\nthreatened.\n\n                           (e) Required Antitrust Approvals. All required\n                               ---------------------------- \nwaiting periods and approvals applicable to this Agreement and the transactions\ncontemplated hereby with respect to the Required Antitrust Approvals shall have\nexpired or been received or terminated and all filings, approvals, waiting\nperiods and orders of Governmental Authorities under Antitrust Laws, the failure\nto obtain which would expose Buyer, the Transferred Business Companies or any of\ntheir respective Subsidiaries (or any officer, director or employee of any of\nthe foregoing) to criminal charges or the failure of which to comply with would,\nindividually or in the aggregate, reasonably be expected to have a Material\nAdverse Effect or a Buyer Material Adverse Effect, shall have expired or been\nreceived or terminated.\n\nThe conditions set forth in Sections 7.2(d) and 7.2(e) above shall be deemed\nsatisfied if the failure to satisfy such conditions results from Buyer's failure\nto perform or comply with its obligations under Section 5.3(b). No action, suit\nor proceeding\n\n                                       110\n\n \nseeking to prohibit the Sale shall be taken into account in determining whether\nthe condition set forth in Section 7.2(a) has been satisfied.\n\n\n                                  ARTICLE VIII\n                                  ------------\n\n                  TERMINATION AND ABANDONMENT; INDEMNIFICATION\n                  --------------------------------------------\n\n                  8.1      Termination.  This Agreement may be terminated at any\n                           -----------\ntime prior to the Closing:\n\n                           (a) by mutual consent of DuPont and Buyer;\n\n                           (b) by DuPont or Buyer if the Closing shall not have\noccurred on or before December 31, 2001 (the \"Outside Date\"), provided, however,\n                                              ------------    --------  ------- \n\nthat the terminating party shall have fulfilled its obligations contained in\nSection 5.3 prior to exercising its right to termination hereunder;\n\n                           (c) by DuPont or Buyer if any Governmental Authority\nshall have issued an order, decree or ruling or taken any other action\nrestraining, enjoining or otherwise prohibiting any material portion of the\ntransactions contemplated hereunder and such order, decree, ruling or other\naction shall have become final and nonappealable; provided, however, that the\n                                                  --------  -------\nterminating party shall have fulfilled its obligations contained in Section 5.3\nprior to exercising its right to termination hereunder;\n\n                           (d) by Buyer upon written notice to DuPont if any of\nthe conditions to the Closing set forth in Section 7.2 shall have become\nincapable of fulfillment by the Outside Date and shall not have been waived in\nwriting by Buyer; or\n\n                           (e) by DuPont upon written notice to Buyer if any of\nthe conditions to the Closing set forth in Section 7.1 shall have become\nincapable of fulfillment by the Outside Date and shall not have been waived in\nwriting by DuPont.\n\n                  8.2 Procedure and Effect of Termination. In the event of\n                      -----------------------------------\ntermination of this Agreement pursuant to Section 8.1 hereof, written notice\nthereof shall forthwith be given to the other party, and, except as set forth\nbelow, this Agreement shall terminate and be void and have no effect and the\ntransactions contemplated hereby shall be abandoned; provided that if such\n                                                     --------\ntermination shall result from the failure of a party to perform a covenant,\nobligation or agreement in this Agreement or from the breach by Buyer or DuPont\nof any representation or warranty contained herein, such party shall be fully\nliable for any and all damages incurred or suffered by\n\n                                       111\n\n \nthe other party as a result of such failure or breach. If this Agreement is\nterminated as provided herein:\n\n                           (a) each party hereto will redeliver, and will cause\nits agents (including, without limitation, attorneys and accountants) to\nredeliver, all documents, work papers and other material of each party hereto\nrelating to the transactions contemplated hereby, whether obtained before or\nafter the execution hereof;\n\n                           (b) all Information received by Buyer with respect to\nthe business, operations, Assets or financial condition of DuPont or its\nSubsidiaries shall remain subject to the Confidentiality Agreement;\n\n                           (c) DuPont agrees that all confidential information\nreceived by DuPont or its Affiliates or their Representatives with respect to\nBuyer or this Agreement or the transactions contemplated hereby shall be kept\nconfidential (subject to the proviso in Section 5.15(a)) notwithstanding the\ntermination of this Agreement; and\n\n                           (d) notwithstanding the termination hereof, the\nfollowing Sections of this Agreement shall remain in full force and effect: (i)\nSections 3.16 and 4.4 relating to brokers, (ii) the penultimate sentence of\nSection 5.2 relating to confidentiality matters, (iii) Section 9.13 relating to\ncertain expenses and (iv) Sections 8.1 and 8.2.\n\n                  8.3 Survival of Representations, Warranties and Covenants. The\n                      -----------------------------------------------------\nrepresentations and warranties contained herein shall survive the Closing and\nshall thereupon terminate 18 months from the Closing, except that (i) the\nrepresentations contained in Sections 3.1, 3.2, 3.3, 4.1 and 4.2 shall survive\nindefinitely, (ii) the representations contained in Section 3.10 shall survive\nuntil the expiration of the applicable statute of limitations with respect to\nthe matter at issue, and (iii) the representations contained in Section 3.12\nshall survive until the third anniversary of the Closing. All covenants and\nagreements contained herein which by their terms contemplate actions following\nthe Closing shall survive the Closing and remain in full force and effect in\naccordance with their terms. All other covenants and agreements contained herein\nshall not survive the Closing and shall thereupon terminate, except that claims\nfor indemnification in respect of any breach thereof shall survive until the\nsecond anniversary of the Closing.\n\n                  8.4 Indemnification. (a) DuPont shall indemnify and hold\n                      ---------------\nharmless Buyer and its Subsidiaries and each of their Affiliates and each of\nBuyer's, its Subsidiaries', and its Affiliates' respective officers, directors,\nemployees, and agents (collectively, the \"Buyer Indemnified Parties\") from and\n                                          -------------------------\nagainst any Losses\n\n                                       112\n\n \n(other than indemnification related to Taxes which shall be covered exclusively\nby Article VI) arising from or in connection with (i) the failure of the Sellers\nto duly perform or observe any term, provision, covenant or agreement to be\nperformed or observed by the Sellers pursuant to this Agreement the remedy for\nwhich survives the Closing, (ii) any of the Retained Liabilities and any\nLiabilities arising out of the Retained Business whether arising prior to or\nafter the Closing, and (iii) any breach, or failure to be true, as of the date\nof this Agreement or as of the Closing, of any representation of DuPont set\nforth in Article III of this Agreement (other than Section 3.10); provided,\n                                                                  --------\nhowever, that no indemnification shall be available with respect to any breach\n-------\nor failure to be true of Section 3.12 for any matter as to which Buyer is\nrequired to indemnify the DuPont Indemnified Parties under Section 8.5 and (iv)\nany claim, action, proceeding, suit or litigation commenced by Merck &amp; Co. Inc.\nor any of its Affiliates with respect to the execution, delivery or performance\nof this Agreement and\/or the execution, delivery or performance of a Related\nAgreement in accordance with its respective terms.\n\n                           (b) Buyer shall indemnify and hold harmless DuPont\nand its Subsidiaries and each of their Affiliates and each of DuPont's, its\nSubsidiaries' and its Affiliates' respective officers, directors, employees, and\nagents (collectively, the \"DuPont Indemnified Parties\") from and against any\n                           --------------------------\nLosses arising from or in connection with (i) the failure of Buyer to duly\nperform or observe any term, provision, covenant or agreement to be performed or\nobserved by Buyer pursuant to this Agreement the remedy for which survives the\nClosing, (ii) except to the extent that Buyer would be entitled to be\nindemnified in respect thereof pursuant to subsection (a)(iii) above (without\ngiving effect to Section 8.3, Section 8.4(h) and Section 8.4(i)), any of the\nAssumed Liabilities and any Liabilities of the Transferred Business Companies\narising out of the Transferred Business or the Transferred Assets (other than\nRetained Liabilities) whether arising prior to or after the Closing, (iii)\nexcept to the extent that Buyer would be entitled to be indemnified in respect\nthereof pursuant to subsection (a)(iii) above (without giving effect to Section\n8.3, Section 8.4(h) and Section 8.4(i)) or that such Liabilities arise from or\nare related to willful misconduct by a DuPont Indemnified Party, any Liabilities\nof DuPont or DPI arising from or related to its status as a holder of\npartnership interests of DPC, and (iv) any breach, or failure to be true, as of\nthe date of this Agreement or as of the Closing Date, of any representation of\nBuyer set forth in Article IV of this Agreement.\n\n                           (c) Notwithstanding anything herein to the contrary,\nany indemnification claims relating to any Seller Environmental Liabilities\nshall be made exclusively under Sections 8.4(a)(i), 8.4(a)(iii) (but only\ninsofar as Section 3.12 is concerned) or Section 8.5.\n\n                                       113\n\n \n                           (d) Any calculation of Losses for purposes of this\nSection 8.4 (including for purposes of determining the amount of Losses for\npurposes of sub-sections (h) and (i) below) or any indemnity payments made under\nArticle VI hereof shall be (i) net of any insurance recovery made by the\nIndemnified Party (whether paid directly to such Indemnified Party or assigned\nby the Indemnifying Party to such Indemnified Party) and (ii) (x) increased to\ntake into account any net Tax cost incurred by the Indemnified Party arising\nfrom the receipt or accrual of indemnity payments hereunder (grossed-up for such\nincrease) and (y) reduced to take account of any net Tax benefit realized by the\nIndemnified Party arising from the deductibility of any such Losses or Taxes.\nAny indemnification payment hereunder shall initially be made without regard to\nthis paragraph and shall be increased or reduced to reflect any such net Tax\ncost (including gross-up) or net Tax benefit only after the Indemnified Party\nhas actually realized such cost or benefit. For purposes of this Agreement, an\nIndemnified Party shall be deemed to have \"actually realized\" a net Tax cost or\na net Tax benefit to the extent that, and at such time as, the amount of Taxes\npayable by such Indemnified Party is increased above or reduced below, as the\ncase may be, the amount of Taxes that such Indemnified Party would have been\nrequired to pay but for the receipt or accrual of the indemnity payment or the\ndeductibility of such Losses or Taxes, as the case may be. The amount of any\nincrease or reduction hereunder shall be adjusted to reflect any Final\nDetermination with respect to the Indemnified Party's liability for Taxes and,\nif necessary, DuPont or Buyer, as the case may be, shall make payments to the\nother to reflect such adjustment. Any indemnity payment under this Agreement\nshall be treated as an adjustment to the Purchase Price, for Tax purposes,\nunless a Final Determination with respect to the Indemnified Party or any of its\nAffiliates causes any such payment not to be treated as an adjustment to the\nPurchase Price for Tax purposes. Each of the parties shall notify the other\nparties if it receives notice that any Tax Authority proposes to treat any\nindemnity payment under this Agreement as other than an adjustment to the\nPurchase Price for Tax purposes. A party (and its Affiliates) shall not be\ndeemed to have suffered a \"Loss\" with respect to an item to the extent such\nparty was actually compensated therefor by reason of an increase in the amount\notherwise paid to it or a reduction in the amount otherwise paid by it pursuant\nto Section 2.4 hereof.\n\n                           (e) No Action, claim or setoff for Losses subject to\nindemnification under this Section 8.4 shall be brought or made with respect to\nclaims for Losses resulting from a breach of any covenant contained in this\nAgreement, or in any representation, after the date on which such covenant or\nrepresentation shall terminate pursuant to Section 8.3 hereof; and provided,\n                                                                   --------\nhowever, that any claim made after the Closing with reasonable specificity by\n-------\nthe party seeking indemnification (the \"Indemnified Party\") to the party from\n                                        -----------------\nwhich indemnification is sought (the \"Indemnifying Party\") within the time\n                                      ------------------\nperiods set forth in Section 8.3 shall survive (and be subject to\nindemnification) until it is finally and fully resolved.\n\n                                       114\n\n \n                           (f) (i)    Upon receipt by the Indemnified Party of\nnotice from a third party of any action, suit, proceeding, claim, demand or\nassessment against such Indemnified Party which might give rise to a claim for\nLosses under Section 8.4, the Indemnified Party (or DuPont or Buyer on behalf of\nan Indemnified Party) shall promptly give written notice thereof to the\nIndemnifying Party indicating the nature of such claim and the basis therefor;\nprovided, however, that failure to give such notice shall not affect the\n--------  -------\nindemnification provided hereunder except to the extent the Indemnifying Party\nshall have been actually prejudiced as a result of such failure. A claim to\nindemnity hereunder may, at the option of the Indemnified Party, be asserted as\nsoon as Losses have been threatened by a third party orally or in writing,\nregardless of whether actual harm has been suffered or out-of-pocket expenses\nincurred; provided, however, the Indemnified Party shall first have reasonably\n          --------  -------\ndetermined that it may be liable or otherwise incur such Losses. However,\npayments for Losses for Third Party Claims which are otherwise covered by the\nindemnification obligations herein shall not be required except to the extent\nthat the Indemnified Party has expended out-of-pocket sums. The Indemnifying\nParty shall have the right, at its option, to assume the defense of, at its own\nexpense and by its own counsel, any such matter involving the asserted liability\nof the Indemnified Party as to which the Indemnifying Party shall have\nacknowledged its obligation to fully indemnify the Indemnified Party. If any\nIndemnifying Party shall, in accordance with the preceding sentence, undertake\nto compromise or defend any such asserted liability, it shall promptly notify\nthe Indemnified Party of its intention to do so, and the Indemnified Party shall\nagree to cooperate fully with the Indemnifying Party and its counsel in the\ncompromise of, or defense against, any such asserted liability; provided,\n                                                                --------\nhowever, that the Indemnifying Party shall not settle any such asserted\n-------\nliability without the written consent of the Indemnified Party; provided,\n                                                                --------\nfurther, however, that the immediately preceding proviso shall not apply in the\n-------  -------\ncase of any settlement which releases the Indemnified Party completely in\nconnection with such matter and which provides relief consisting solely of money\ndamages borne by the Indemnifying Party. Notwithstanding an election to assume\nthe defense of such action or proceeding, such Indemnified Party shall have the\nright to employ separate counsel and to participate in the defense of such\naction or proceeding. The Indemnifying Party shall bear the reasonable fees,\ncosts and expenses of one such separate counsel in each jurisdiction (and shall\npay such fees, costs and expenses at least quarterly), if, but only if, (i) the\ndefendants in, or targets of, any such action or proceeding include both an\nIndemnified Party and the Indemnifying Party, and such Indemnified Party shall\nhave reasonably concluded that there may be legal defenses available to it or to\nother Indemnified Parties which are different from or additional to those\navailable to the Indemnifying Party (in which case the Indemnifying Party shall\nnot have the right to direct the defense of such action or proceeding on behalf\nof the Indemnified Party); (ii) the Indemnifying Party shall not have employed\ncounsel reasonably satisfactory to such Indemnified Party to represent such\nIndemnified Party within a reasonable\n\n                                       115\n\n \ntime after notice of the institution of such action or proceeding; or (iii) the\nIndemnifying Party shall authorize such Indemnified Party to employ separate\ncounsel at the Indemnifying Party's expense. In addition, the Indemnifying Party\nshall be liable for the fees and expenses of counsel employed by the Indemnified\nParty for any period during which the Indemnifying Party has not assumed the\ndefense thereof. In any event, the Indemnified Party and its counsel shall\ncooperate with the Indemnifying Party and its counsel and shall not assert any\nposition in any proceeding inconsistent with that asserted by the Indemnifying\nParty; provided, however, that the foregoing shall not prevent the Indemnified\n       --------  -------\nParty from taking the position that it is entitled to indemnification hereunder.\nAll out-of-pocket costs and expenses incurred in connection with an Indemnified\nParty's cooperation shall be borne by the Indemnifying Party. In any event, the\nIndemnified Party shall have the right at its own expense to participate in the\ndefense of such asserted liability.\n\n                               (ii)   In the event any Indemnified Party should\nhave an indemnification claim against any Indemnifying Party under this\nAgreement that does not involve a claim by a third party, the Indemnified Party\nshall promptly deliver notice of such claim to the Indemnifying Party in writing\nand in reasonable detail. The failure by any Indemnified Party to so notify the\nIndemnifying Party shall not relieve the Indemnifying Party from any liability\nthat it may have to such Indemnified Party, except to the extent that the\nIndemnifying Party has been actually prejudiced by such failure. If the\nIndemnifying Party does not notify the Indemnified Party within 20 Business Days\nfollowing its receipt of such notice that the Indemnifying Party disputes such\nclaim, such claim specified by the Indemnified Party in such notice shall be\nconclusively deemed a liability of the Indemnifying Party under this Article\nVIII and the Indemnifying Party shall pay amount of such liability to the\nIndemnified Party on demand, or in the case of any notice in which the amount of\nthe claim is estimated, on such later date when the amount of such claim is\nfinally determined. If the Indemnifying Party disputes its liability with\nrespect to such claim in a timely manner, the Indemnifying Party and the\nIndemnified Party shall proceed in good faith to negotiate a resolution of such\ndispute and, if not resolved through negotiations, such dispute shall be\nresolved by litigation in the appropriate court of competent jurisdiction.\n\n                           (g) The indemnification provisions of this Article\nVIII (i) shall, in the case of the representations and warranties, be the\nexclusive remedy following the Closing with respect to breaches thereof, (ii)\nshall apply without regard to, and shall not be subject to, any limitation by\nreason of set-off, limitation or otherwise and (iii) are intended to be\ncomprehensive and not to be limited by any requirements of Law concerning\nprominence of language or waiver of any legal right\n\n                                       116\n\n \nunder any Law (including, without limitation, rights under any workers\ncompensation statute or similar statute conferring immunity from suit). The\nobligations of the parties set forth in this Section 8.4 and in Section 8.5\nshall be conditioned upon the Closing having occurred.\n\n                           (h) Notwithstanding anything to the contrary set\nforth herein, except with respect to breaches of Sections 3.1, 3.2, 3.3, 4.1 and\n4.2 (as to which none of the provisions of this Section 8.4(h) shall apply),\nneither DuPont nor Buyer shall be required to provide indemnification under\nSections 8.4(a)(iii) and 8.4(b)(iv) to the Buyer Indemnified Parties or DuPont\nIndemnified Parties, respectively, unless the aggregate amount of Losses\nincurred by the Buyer Indemnified Parties or DuPont Indemnified Parties, as\napplicable, with respect to such breaches (in the aggregate), exceeds $100\nmillion (the \"Basket\"), in which case the obligation to provide indemnification\n              ------\nunder Sections 8.4(a)(iii) and 8.4(b)(iv) to the Buyer Indemnified Parties or\nSeller Indemnified Parties, as the case may be, shall only apply with respect to\nsuch amounts that are in excess of the Basket; provided, however, that Losses\n                                               --------  -------\ncovered by the indemnification provisions of Article VI or Section 8.5 hereof\nshall not be applied, or be subject, to the Basket.\n\n                           (i) Notwithstanding anything to the contrary set\nforth herein, except with respect to breaches of Sections 3.1, 3.2, 3.3, 3.15,\n4.1 and 4.2 (as to which none of the provisions of this Section 8.4(i) shall\napply), neither DuPont nor Buyer shall be required to provide indemnification to\nBuyer Indemnified Parties or the Seller Indemnified Parties, respectively, under\nSections 8.4(a)(iii) and 8.4(b)(iv) when the amount of Losses paid by DuPont or\nBuyer, as applicable, with respect thereto exceeds 30% of the Purchase Price\n(the \"Cap\"); provided, however, that Losses covered by the indemnification\n      ---    --------  -------\nprovisions of Article VI or Section 8.5 hereof shall not be applied, or be\nsubject, to the Cap.\n\n                  8.5      Environmental Matters.\n                  ------------------------------\n\n                           (a) Certain Definitions. For purposes of this Section\n                               -------------------\n8.5, (i) \"Transferred Environmental Assets\" shall mean (A) the Transferred\n          --------------------------------\nAssets, (B) all other Assets of any of the Transferred Business Companies\nacquired from and after the Closing or used in the operation or conduct of the\nTransferred Business from and after the Closing, and (C) all Assets and\nbusinesses listed on Schedule 8.5(a)(i); and (ii) \"Retained Environmental\n                                                   ----------------------\nAssets\" shall mean (A) the Assets of DuPont and the Retained Subsidiaries\n------\nfollowing the consummation of the transactions contemplated by this Agreement,\n(B) the Former DPC Assets, and (C) all Assets of DuPont and the Retained\nSubsidiaries acquired from and after the Closing and used in the operation or\nconduct of the Retained Business from and after the Closing, but, in each case\nof this clause (ii), excluding all Transferred Environmental Assets.\n\n                                       117\n\n \n                           (b) On the terms and subject to the conditions set\nforth in this Agreement, DuPont agrees to indemnify, defend and hold harmless\nthe Buyer Indemnified Parties from and against and shall reimburse such\nIndemnitees with respect to all Losses, other than those relating to matters set\nforth in Schedule 3.12, arising out of or related to, directly or indirectly,\nthose Losses with respect to all Environmental Claims and requirements of\nEnvironmental Laws (whether or not under applicable Law DuPont or any Retained\nSubsidiary would have a right of contribution against any Transferred Business\nCompany therefor) set forth below (the \"Seller Environmental Liabilities\"):\n                                        --------------------------------\n\n                               (i)    Losses with respect to the Transferred\n         Environmental Assets arising from or in connection with the generation,\n         manufacturing, transporting, storage, handling, treatment, storage,\n         spill, discharge, or disposal of any Hazardous Substances prior to the\n         Closing, including but not limited to Losses arising from the presence\n         of Hazardous Substances at, on or under any of Transferred\n         Environmental Assets prior to the Closing or at, on or under any\n         property or facility not located on any of the Transferred\n         Environmental Assets into which Hazardous Substances from any of the\n         Transferred Environmental Assets were disposed prior to the Closing;\n\n                               (ii)   Losses arising from the failure of the\n         Transferred Environmental Assets to be in compliance prior to the\n         Closing with any Environmental Laws or Environmental Permits in effect\n         as of and enforceable as of the Closing whether or not such failure is\n         the subject of notification from a Governmental Authority either before\n         or after the Closing;\n\n                               (iii)  Losses relating to any Environmental Claim\n         to the extent arising from actual or alleged pre-Closing exposure to or\n         Release of Hazardous Substances at or from the operations of the\n         Transferred Environmental Assets; and\n\n                               (iv)   Losses with respect to the Transferred\n         Environmental Assets arising after the Closing and emanating from, or\n         in any way related to, the operation of any of the Retained\n         Environmental Assets.\n\n                           (c) The indemnity in Section 8.5(b) shall be subject\nto the following limitations: (i) if the costs of cleanup or correcting\nnon-compliance with Environmental Laws or Environmental Permits subject to\nindemnity by Buyer and its\n\n                                       118\n\n \nSubsidiaries are increased after the Closing Date due to an act or omission by a\nPerson other than DuPont and its Subsidiaries, their agents, contractors and\nsubcontractors, acting on their own or under the supervision or direction of any\nGovernmental Authority, to the extent not resulting from a change in\nEnvironmental Laws after the Closing, DuPont and its Subsidiaries shall not be\nresponsible for any such increase in costs incurred; (ii) if DuPont or any of\nits Subsidiaries are performing their obligations pursuant to Section 8.5(b),\nDuPont and its Subsidiaries shall not be responsible for the costs associated\nwith Buyer's oversight of DuPont and its Subsidiaries' performance, including\nthe cost of Buyer's oversight of DuPont and its Subsidiaries' legal counsel,\nconsultants, or employees; and (iii) in performing the obligations under this\nSection 8.5(b), DuPont and its Subsidiaries shall not be responsible for any\ncosts that are incurred by Buyer and its Subsidiaries due to any change related\nto the Transferred Environmental Assets resulting or arising from (a) the\nclosure or sale of a facility or business, (b) the construction of new\nstructures or equipment, or the modification to existing structures or\nequipment, (c) a change in use of any facility to a use substantially unrelated\nto that at Closing, or (d) capital improvements or repairs and modifications to\ncapital improvements, provided that DuPont shall be responsible for any such\n                      -------- ----\ncapital improvements, repairs and modifications to or associated with the\nTransferred Environmental Assets to the extent required to allow the facility to\nmeet pre-Closing requirements of Environmental Laws or Environmental Permits at\nlevels of production substantially equivalent to those at Closing or\nnecessitated by any condition existing on or related to the Transferred\nEnvironmental Assets prior to Closing.\n\n                           (d) On the terms and subject to the conditions set\nforth in this Agreement, Buyer agrees to indemnify, defend and hold harmless the\nSeller Indemnified Parties from and against and shall reimburse such Indemnitees\nwith respect to all Losses arising out of or related to, directly or indirectly,\nthose Liabilities with respect to all Environmental Claims and requirements of\nEnvironmental Laws (whether or not under applicable Law DuPont would have a\nright of contribution against Buyer or any of its Subsidiaries) set forth below\n(the \"Buyer Environmental Liabilities\"):\n      -------------------------------\n\n                               (i)    Liabilities arising from or in connection\n         with the generation, manufacturing, transporting, storage, handling,\n         treatment, storage, spill or discharge of any Hazardous Substances at\n         the Transferred Environmental Assets or otherwise arising from the\n         operation of the Transferred Environmental Assets after the Closing;\n\n                               (ii)   Liabilities arising from the failure of\n         the Transferred Environmental Assets after the Closing to be in\n         compliance with any Environmental Laws; and\n\n                                       119\n\n \n                               (iii)  Liabilities arising from the matters set\n         forth in Schedule 3.12 hereto.\n\n                           (e) As between the parties to this Agreement, (i)\nBuyer will have full authority to control, direct, manage and implement\nremediation and to determine its scope, and conduct all negotiations, meetings\nand settlements with Governmental Authorities with respect to Buyer\nEnvironmental Liabilities; provided, however, that Buyer may contract with\n                           --------  -------\nDuPont on mutually agreeable terms for DuPont to perform any such activities\nwith respect to Buyer Environmental Liabilities on Buyer's behalf, for such\nreasonable period of time until an orderly transfer of such activities to Buyer\ncan be arranged, and (ii) DuPont will have authority to control, direct, manage\nand implement remediation and to determine its scope, and conduct all\nnegotiations, meetings and settlements with Governmental Authorities with\nrespect to Seller Environmental Liabilities; provided, however, that DuPont may\n                                             --------  -------\ncontract with Buyer on mutually agreeable terms for Buyer to perform any such\nactivities with respect to Seller Environmental Liabilities on DuPont's behalf,\nfor such reasonable period of time until an orderly transfer of such activities\nto DuPont can be arranged, and provided, further, that Buyer, either directly or\n                               --------  -------\nthrough its designee, will have the right to participate in all discussions,\nnegotiations and settlements with any Governmental Authority concerning any\nremediation or other activity relating to the Transferred Environmental Assets,\nincluding receiving in a timely fashion copies of all communications,\ncorrespondence and data relating to such remediation and activity, and the right\nto comment directly and independently to the pertinent Governmental Authority on\nany matter that could affect ongoing operations at any of the Transferred\nEnvironmental Assets; and provided, further, that if Buyer or any of its\n                          --------  -------\nSubsidiaries are performing their obligations pursuant to Section 8.5(d), they\nshall not be responsible for any costs associated with DuPont's oversight of\nBuyer, including costs attributable to oversight of Buyer's and its\nSubsidiaries' legal counsel, consultants or employees.\n\n                           (f) Any claim for Indemnity by a Buyer Indemnified\nParty seeking indemnification under Section 8.5(b) must be received by DuPont\nwithin five years of the Closing, except that there shall be no time limit for\nclaims brought under 8.5(b)(iii) relating to toxic tort claims. If a claim is\nnot received within the applicable time period, it shall no longer constitute a\nSeller Environmental Liability and shall become a Liability of Buyer and Buyer\nshall indemnify DuPont and its Subsidiaries against any Liability arising from\nsuch a claim.\n\n                           (g) Notwithstanding any provisions of Environmental\nLaws or the provisions or principles of any other statutory or common law\nincluding, without limitation, the Comprehensive Environmental Response,\nCompensation and Liability Act, as amended, and state law analogues, the\nprovisions of this Section 8.5\n\n                                       120\n\n \nand, to the extent relating to environmental matters, Section 8.4, shall\nconstitute the parties' exclusive remedy with respect to each other for all\nEnvironmental Claims and Liabilities under Environmental Laws arising from the\nownership of, or conduct of business with respect to, the Transferred\nEnvironmental Assets or the Retained Environmental Assets. The obligations of\nthe parties set forth in this Section 8.5 shall be conditioned upon the Closing\nhaving occurred.\n\n                           (h) Except as otherwise provided in this Section 8.5\nor as would be inconsistent herewith, the provisions of Sections 8.4(d), (f) and\n(g) shall apply to this Section 8.5 and claims for indemnification hereunder.\n\n\n                                   ARTICLE IX\n                                   ----------\n\n                                  MISCELLANEOUS\n                                  -------------\n\n                  9.1 Amendment and Modifications. This Agreement may be\n                      ---------------------------\namended, modified or supplemented at any time by the parties hereto, but only by\nan instrument in writing signed on behalf of the parties.\n\n                  9.2 Extension; Waiver. At any time prior to the Closing, the\n                      -----------------\nparties hereto entitled to the benefits of the respective term or provision may\n(a) extend the time for the performance of any of the obligations or other acts\nof the parties hereto, (b) waive any inaccuracies in the representations and\nwarranties contained herein or in any document, certificate or writing delivered\npursuant hereto or (c) waive compliance with any obligation, covenant, agreement\nor condition contained herein. Any agreement on the part of a party to any such\nextension or waiver shall be valid only if set forth in an instrument in writing\nsigned on behalf of the party not entitled to the benefits of such extension or\nwaiver. No failure or delay on the part of any party hereto in the exercise of\nany right hereunder shall impair such right or be construed to be a waiver of,\nor acquiescence in, any breach of any representation, warranty or agreement\nherein, nor shall any single or partial exercise of such right preclude other or\nfurther exercise thereof or any other right.\n\n                  9.3 Representations and Warranties; Etc. (a) Buyer hereby\n                      ------------------------------------\nacknowledges and agrees that neither DuPont nor any Subsidiary thereof nor any\nof their Representatives is making any representation or warranty whatsoever,\nexpress or implied, except those representations and warranties explicitly set\nforth in this Agreement and the Related Agreements.\n\n                           (b) DuPont hereby acknowledges and agrees that\nneither Buyer nor any Subsidiary thereof nor any of their Representatives is\nmaking any\n\n                                       121\n\n \nrepresentation or warranty whatsoever, express or implied, except those\nrepresentations and warranties explicitly set forth in this Agreement and the\nRelated Agreements.\n\n                  9.4 Entire Agreement; Assignment. This Agreement, together\n                      ----------------------------\nwith the Related Agreements, (a) constitutes the entire agreement among the\nparties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and oral, among the parties with\nrespect to the subject matter hereof (other than the Confidentiality Agreement)\nand (b) shall not be assigned by operation of law or otherwise; provided,\n                                                                --------\nhowever, that Buyer may assign its rights and obligations to any wholly owned\n-------\nSubsidiary of Buyer (unless to do so would restrict or delay the consummation of\nthe transactions contemplated by this Agreement), but no such assignment shall\nrelieve Buyer of its obligations hereunder.\n\n                  9.5 Validity. The invalidity or unenforceability of any\n                      --------\nprovision of this Agreement shall not affect the validity or enforceability of\nany other provisions of this Agreement, each of which shall remain in full force\nand effect.\n\n                  9.6 Notices. All notices, requests, claims, demands and other\n                      -------\ncommunications hereunder shall be in writing and shall be deemed to have been\nduly given if delivered personally, telecopied (which is confirmed) or sent by\nregistered or certified mail (postage prepaid, return receipt requested) to the\nparties at the following addresses:\n\n                  If to Buyer, to:\n\n                          Bristol-Myers Squibb Company\n                          345 Park Avenue\n                          New York, New York 10154\n                          Attn: General Counsel\n\n                  With a copy to:\n\n                          Cravath, Swaine &amp; Moore\n                          Worldwide Plaza\n                          825 Eighth Avenue\n                          New York, New York 10019\n                          Attn: Susan Webster, Esq.\n\n                                       122\n\n \n                  If to the Sellers or DPC, to:\n\n                           E.I. du Pont de Nemours and Company\n                           1007 Market Street\n                           Wilmington, DE 19898\n                           Attn:  John W. Ward, Esq.\n                                  Corporate Counsel - Mergers &amp; Acquisitions\n\n                  With a copy to:\n\n                           Skadden, Arps, Slate, Meagher &amp; Flom LLP\n                           Four Times Square\n                           New York, NY  10036\n                           Attn:  Lou R. Kling, Esq.\n\nor to such other address as the Person to whom notice is given may have\npreviously furnished to the others in writing in the manner set forth above\n(provided that notice of any change of address shall be effective only upon\n --------\nreceipt thereof).\n\n                  9.7  Governing Law. This Agreement shall be governed by and\n                       -------------\nconstrued in accordance with the laws of the State of Delaware, regardless of\nthe laws that might otherwise govern under applicable principles of conflicts of\nlaws thereof.\n\n                  9.8  Specific Performance. The parties hereto agree that if\n                       --------------------\nany of the provisions of this Agreement were not performed in accordance with\ntheir specific terms or were otherwise breached, irreparable damage would occur,\nno adequate remedy at law would exist and damages would be difficult to\ndetermine, and that the parties shall be entitled to specific performance of the\nterms hereof, in addition to any other remedy at law or equity.\n\n                  9.9  Publicity. Each of the parties to this Agreement hereby\n                       ---------\nagrees with the other party hereto that, except as may be required to comply\nwith the requirements of any applicable Laws, and the rules and regulations of\neach stock exchange upon which the securities of one of the parties is listed\n(in which case the party so required to make such release shall use its\nreasonable best efforts to allow the other party reasonable time to comment\nthereon in advance of such issuance), no press release or similar public\nannouncement or communication shall, if prior to the Closing, be made or be\ncaused to be made concerning the execution or performance of this Agreement\nunless the parties shall have agreed in advance with respect thereto.\n\n                  9.10 Jurisdiction; Forum, Etc. (a) The parties hereto\n                       -------------------------  \nagree that the appropriate, exclusive, and convenient forum for any disputes\nbetween any of the parties hereto arising out of this Agreement or the\ntransactions contemplated hereby\n\n                                       123\n\n \nshall be in any state or federal court in the State of Delaware. The parties\nhereto further agree that the parties will not bring suit with respect to any\ndisputes arising out of this Agreement or the transactions contemplated hereby\nin any court or jurisdiction other than the above specified courts; provided,\n                                                                    --------\nhowever, that the foregoing shall not limit the rights of the parties to obtain\n-------\nexecution of judgment in any other jurisdiction; provided, further, however,\n                                                 --------  -------  -------\nthat the foregoing shall not limit (i) DuPont's or any of its Subsidiaries'\nability or right to join, implead or otherwise bring any third-party claim\nagainst Buyer or any of its Subsidiaries in an action brought against DuPont or\nany of its Subsidiaries by a third party in a jurisdiction outside of the State\nof Delaware and Buyer agrees that, pursuant to Sections 9.10(b) and 9.10(c), it\n(and its Subsidiaries, as applicable) will submit to such jurisdiction or (ii)\nBuyer's or any of its Subsidiaries' ability or right to join, implead or\notherwise bring any third-party claim against DuPont or any of its Subsidiaries\nin an action brought against Buyer or any of its Subsidiaries by a third party\nin a jurisdiction outside of the State of Delaware and DuPont agrees that,\npursuant to Sections 9.10(b) and 9.10(c), it (and its Subsidiaries, as\napplicable) will submit to such jurisdiction. The parties hereto further agree,\nto the extent permitted by law, that final and unappealable judgment against a\nparty in any action or proceeding contemplated above shall be conclusive and may\nbe enforced in any other jurisdiction within or outside the United States by\nsuit on the judgment, a certified or exemplified copy of which shall be\nconclusive evidence of the fact and amount of such judgment.\n\n                           (b) (i)  By the execution and delivery of this\nAgreement, Buyer (A) irrevocably designates and appoints CT Corporation (the\n\"Agent\") as its authorized agent upon which process may be served in any suit or\n -----\nproceeding arising out of or relating to this Agreement, and (B) agrees that\nservice of process upon the Agent shall be deemed in every respect effective\nservice of process upon Buyer in any such suit or proceeding. Buyer further\nagrees, at its own expense, to take any and all action, including the execution\nand filing of any and all such documents and instruments, as may be necessary to\ncontinue such designation and appointment of the Agent in full force and effect\nso long as this Agreement shall be in effect. The foregoing shall not limit the\nrights of any party to serve process in any other manner permitted by law.\n\n                           (c) To the extent that any party hereto has or\nhereafter may acquire any immunity from jurisdiction of any court or from any\nlegal process (whether through service or notice, attachment prior to judgment,\nattachment in aid of execution, execution or otherwise) with respect to itself\nor its property, each such party hereby irrevocably (i) waives such immunity in\nrespect of its obligations with respect to this Agreement, and (ii) submits to\nthe personal jurisdiction of any court described in Section 9.10(a).\n\n                                       124\n\n \n                           (d) THE PARTIES HERETO AGREE THAT THEY HEREBY\nIRREVOCABLY WAIVE AND AGREE TO CAUSE THEIR RESPECTIVE SUBSIDIARIES TO WAIVE, THE\nRIGHT TO TRIAL BY JURY IN ANY ACTION TO ENFORCE OR INTERPRET THE PROVISIONS OF\nTHIS AGREEMENT.\n\n                  9.11  Descriptive Headings. The descriptive headings herein\n                        --------------------\nare inserted for convenience of reference only and are not intended to be part\nof or to affect the meaning or interpretation of this Agreement.\n\n                  9.12  Counterparts. This Agreement may be executed in two or\n                        ------------\nmore counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same agreement.\n\n                  9.13  Expenses. Whether or not the transactions contemplated\n                        --------\nby this Agreement are consummated, and except as otherwise expressly set forth\nherein, all legal and other costs and expenses incurred in connection with the\ntransactions contemplated by this Agreement shall be paid by the party incurring\nsuch expenses.\n\n                  9.14  Parties in Interest. This Agreement shall inure to the\n                        -------------------\nbenefit of and be binding upon the parties hereto and their respective\nsuccessors and permitted assigns. Nothing in this Agreement, express or implied,\nis intended to confer upon any Person other than DuPont, Buyer (and their\nrespective Subsidiaries) and their successors or permitted assigns, any rights\nor remedies under or by reason of this Agreement, it being understood that the\nforegoing shall not limit the right of DuPont Indemnified Party or a Buyer\nIndemnified Party to bring claims for indemnification under Section 8.4 or\nSection 8.5 in respect of Losses.\n\n                  9.15  Interpretation. An item arising with respect to a\n                        --------------\nspecific representation or warranty shall be deemed to be \"reflected on,\" \"set\nforth in\" or \"given effect in numbers on\" a balance sheet, to the extent any\nsuch phrase appears in such representation or warranty, to the extent that (a)\nthere is a reserve, accrual or other similar item underlying a number on the\nface of such balance sheet that relates to the subject matter of such\nrepresentation or (b) such item is otherwise specifically set forth on the face\nof such balance sheet or in the notes thereto.\n\n                  When a reference is made in this Agreement to Sections, such\nreference shall be to a Section of this Agreement unless otherwise indicated.\nThe headings contained in this Agreement are for reference only and shall not\naffect in any way the meaning or interpretation of this Agreement. Wherever the\nwords \"include,\" \"includes\" or \"including\" are used in this Agreement, they\nshall be deemed to be followed by the words \"without limitation.\"\n\n                                       125\n\n \n                  9.16  Schedules. The disclosure of any matter in any Schedule\n                        ---------\nto this Agreement shall expressly not be deemed to constitute an admission by\nDuPont or Buyer, or to otherwise imply, that any such matter is material for the\npurpose of this Agreement.\n\n                                       126\n\n \n                  IN WITNESS WHEREOF, the parties hereto have executed this\nAgreement as of the date first above written.\n\n                                     E.I. DU PONT DE NEMOURS AND COMPANY\n\n\n                                     By: \/s\/ GARY M. PFEIFFER\n                                         ---------------------------------------\n                                         Name:  Gary M. Pfeiffer\n                                         Title: Senior Vice President and\n                                                 Chief Financial Officer\n\n                                     DUPONT PHARMA, INC.\n\n\n                                     By: \/s\/ ROBERT M. REARDON\n                                         ---------------------------------------\n                                         Name:  Robert M. Reardon\n                                         Title: Signed Under Power of Attorney\n\n                                     DUPONT PHARMACEUTICALS COMPANY\n\n\n                                     By: \/s\/ ROBERT M. REARDON\n                                         ---------------------------------------\n                                         Name:  Robert M. Reardon\n                                         Title: Signed Under Power of Attorney\n\n                                     DUPONT ELECTRONIC MATERIALS, INC.\n\n\n                                     By: \/s\/ ROBERT M. REARDON\n                                         ---------------------------------------\n                                         Name:  Robert M. Reardon\n                                         Title: Signed Under Power of Attorney\n\n                                     DUPONT DIAGNOSTICS INC.\n\n\n                                     By: \/s\/ ROBERT M. REARDON\n                                         ---------------------------------------\n                                         Name:  Robert M. Reardon\n                                         Title: Signed Under Power of Attorney\n\n                                       127\n\n \n                                     BRISTOL-MYERS SQUIBB COMPANY\n\n\n                                     By: \/s\/ GEORGE P. KOOLURIS\n                                         ---------------------------------------\n                                         Name:  George P. Kooluris\n                                         Title: Senior Vice President,\n                                                  Corporate Development\n\n                                       128\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6948],"corporate_contracts_industries":[9407],"corporate_contracts_types":[9622,9627],"class_list":["post-43510","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bristol-myers-squibb-co","corporate_contracts_industries-drugs__pharma","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43510","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=43510"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43510"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43510"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43510"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}