Exhibit
10.30


 


ASSET PURCHASE AGREEMENT


 


THIS ASSET
PURCHASE AGREEMENT (this “Agreement”) is entered this
22nd day of February, 2006, between BOEHRINGER INGELHEIM VETMEDICA, INC.
a corporation incorporated under the laws of Delaware (the “Seller”) and KMG BERNUTH, INC., a corporation
incorporated under the laws of Delaware (the “Buyer”). The Buyer and the Seller
are referred to collectively herein as the “Parties.”


 


RECITALS:


 


WHEREAS,
this Agreement contemplates a transaction in which the Buyer will purchase
substantially all of the assets of the Seller’s Business and assume certain of
the Liabilities of the Seller in return for the consideration described below;


 


WHEREAS,
the Seller desires to sell, transfer and assign to Buyer, and Buyer desires to
purchase and acquire from Seller, such assets, upon the terms hereinafter set
forth;


 


WHEREAS,
the Parties hereto desire to set forth certain agreements made as an inducement
to the execution and delivery of this Agreement;


 


NOW
THEREFORE, in consideration of these premises and the
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the Parties,
intending to be legally bound, agree as follows:


 


1—DEFINITIONS.  Unless context otherwise requires,
capitalized terms shall have the meanings ascribed to them in EXHIBIT 1.


 


2—BASIC
TRANSACTION.


 


2.1          PURCHASE
AND SALE OF ASSETS.  On and
subject to the terms of this Agreement, the Buyer agrees to purchase from the
Seller, and the Seller agrees to sell, transfer, convey, and deliver to the
Buyer, all of the Acquired Assets at the Closing for the consideration
specified below in this §2. 
Notwithstanding anything else contained herein, the Acquired Assets
shall not include any of the assets or rights listed and described on EXHIBIT 2.1 (the “Excluded
Assets”).


 


2.2          ASSUMPTION
OF LIABILITIES.  On and subject
to the terms of this Agreement, the Buyer agrees to assume and become
responsible for all of the Assumed Liabilities at the Closing.  The Buyer will not assume or have any
responsibility, however, with respect to any other Liability of the Seller not
included within the definition of Assumed Liabilities, including (1) any
Tax Liabilities of Seller (exclusive of Property Taxes); (2) any Liability
of Seller to Employees including Liabilities related to accrued salaries,
bonuses, commissions, vacation or sick day benefits and related payroll taxes
(both employer and employee portions); (3) any Liability of the Seller
related to the operation of the Seller’s Business, or the conditions on the
Elwood Property, in each


 


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instance prior to the Closing
Date; (4) any Liability of Seller to pay any Employee severance or other
payments with respect to any Employee terminated by Seller on or prior to the
Closing Date; and (5) any debt or Liability of Seller to any Persons.


 


2.3          PURCHASE
PRICE.  The Buyer agrees to pay
to the Seller at Closing, subject to post-closing adjustment as provided below
at §2.4.3, an amount equal to the sum of (a) Five Million Eight Hundred
Fifty Thousand and No/100 Dollars ($5,850,000.00); and (b) the Estimated
Net Acquired Inventory (as calculated pursuant to §2.4.2 below).  The purchase consideration so paid on the
Closing Date shall be referred to as the “Closing Adjusted Purchase Price” and
the purchase consideration as adjusted pursuant to §2.4.3 after the Closing
Date shall be referred to as the “Post-Closing Adjusted Purchase Price”.  The Closing Adjusted Purchase Price shall be
paid in full by wire transfer of immediately available funds at the
Closing.  The Seller shall have provided
the Buyer with wiring instructions for the above payments no later than two
days prior to the Closing.


 


2.4          PURCHASE
PRICE ADJUSTMENT.


 


2.4.1       NET
ACQUIRED INVENTORY.  The term “Net
Acquired Inventory” shall mean only the book value of the inventory included
within the Acquired Assets, less Accrued Property Taxes.  The Parties acknowledge and agree that the
calculations of the Estimated Net Acquired Inventory and Closing Net Acquired
Inventory shall be based upon the methods and values described on EXHIBIT 2.4 hereto.  As used herein, the term “Property Taxes”
means all personal and real estate taxes, general and special, and all special
assessments against the Acquired Assets (including the Elwood Property) for any
period after June 30, 2005.  The
term “Accrued Property Taxes” means the Property Taxes accrued for the period
between June 30, 2005 and the Closing Date, based upon the per diem
amounts agreed to by the Parties under the terms of EXHIBIT 2.4 (with the Seller to pay for the Closing
Date).  If Closing shall occur before the
tax rate is fixed for the then current tax year, the apportionment of taxes
shall be upon the basis of the tax rate for the preceding year applied to the
latest assessed valuation of the relevant Acquired Assets.  Buyer shall be responsible for payment of
Property Taxes after the Closing, regardless of whether the Seller is billed for
such Property Taxes.


 


2.4.2       CALCULATION
OF CLOSING ADJUSTED PURCHASE PRICE. 
The Seller and the Buyer have mutually agreed that the attached Exhibit 2.4 (a) sets forth the
Seller’s raw materials, work-in-process, and finished goods inventory directly
and solely related to the Seller’s Business (the “Inventory”) that is not
out-of-date or obsolete; (b) establishes the values of each Inventory item
for purposes of this Section 2.4; and (c) includes a written estimate
of the value of the Net Acquired Inventory as of the date of such estimate (the
“Estimated Net Acquired Inventory”).


 


2.4.3       POST-CLOSING
ADJUSTMENT.  As soon as is
practicable, but in any event not later than sixty (60) days following the
Closing Date, Buyer shall prepare (with the Seller’s assistance) and cause to
be delivered to the Seller a statement, including all applicable supporting
documentation or other materials reasonably necessary for the Seller to verify
the Buyer’s calculation (the “Closing Statement”) reflecting the Buyer’s


 


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proposed calculation of value
of the Net Acquired Inventory as of the Closing Date (the value of the Net
Acquired Inventory as of the Closing Date is herein referred to as the “Closing
Net Acquired Inventory”). The Closing Statement shall be identical to the
written statement of the Estimated Net Acquired Inventory, except that the
Closing Statement shall reflect, (a) with respect to Inventory, Inventory
sold, manufactured, or acquired in the Ordinary Course of Business or damaged
between the date of the Estimated Net Acquired Inventory and the Closing Date;
and, (b) with respect to Accrued Property Taxes, the increase in Accrued
Property Taxes between the date of the Estimated Net Acquired Inventory and the
Closing Date (based upon the per diem amounts included within EXHIBIT 2.4).


 


2.4.4       ADJUSTMENT
DISPUTES.  The Seller shall have
thirty (30) days following receipt of the Closing Statement to review the Buyer’s
proposed calculation of the Closing Net Acquired Inventory and make any
objections in writing to Buyer. If no objection is received from the Seller
within such thirty (30) day time period, the Seller shall be deemed to have
accepted Buyer’s calculation of the Closing Net Acquired Inventory, and such
calculations shall be deemed final. Buyer and the Seller shall use reasonable
efforts to reach agreement on any disputed items or amounts. If Buyer and the
Seller are unable to reach such agreement within twenty (20) days of the Seller’s
delivery of a written objection, they shall promptly thereafter cause a
nationally recognized firm of independent certified public accountants (having
no current or contemplated business relationship to any of the Parties or their
respective Affiliates) chosen by and mutually acceptable to Buyer and the
Seller (the “Accounting Referee”) to review this Agreement and the disputed
items or amounts for the purpose of calculating the final Closing Net Acquired
Inventory. The Accounting Referee shall be authorized only to review and settle
the disputed items identified by the Seller and shall not review, de novo, any
items not disputed by the Seller. The Accounting Referee shall deliver to Buyer
and the Seller, as promptly as practicable, but in no event later than thirty
(30) days after retention of the Accounting Referee, a report setting forth the
Accounting Referee’s calculation of the final Closing Net Acquired Inventory.
Such report shall be final and binding upon the Parties and shall constitute an
arbitral award upon which a judgment may be entered in any court having jurisdiction
thereof. The cost of such review and report shall be borne by the Party whose
calculation of the Closing Net Acquired Inventory was mathematically farthest
from the Accounting Referee’s calculation of the Closing Net Acquired
Inventory.


 


2.4.5       PAYMENT
OF ADJUSTMENT.  Within three (3) business
days following the final determination of the Closing Net Acquired Inventory, a
dollar for dollar adjustment as provided herein shall be made to the Closing
Adjusted Purchase Price to reflect any difference between the value of the
Estimated Net Acquired Inventory and the Closing Net Acquired Inventory (the
amount of such adjustment shall be referred to as the “Post-Closing Adjustment”):
(i) the absolute value of the difference between the Closing Net Acquired
Inventory figure and the Estimated Net Acquired Inventory figure, plus (ii) simple
interest thereon from the Closing Date through the date of payment at the
Applicable Rate. If the Closing Net Acquired Inventory figure is in excess of
the Estimated Net Acquired Inventory figure, then an amount equal to the
Post-Closing Adjustment shall be payable by the Buyer to the Seller. If the
Closing Net Acquired


 


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Inventory figure is less than
the Estimated Net Acquired Inventory figure, then an amount equal to the
Post-Closing Adjustment shall be payable directly by the Seller to the Buyer.
The Post-Closing Adjustment shall be payable to the Party so entitled by wire
transfer of immediately available funds within five (5) days of the final
determination of the Closing Net Acquired Inventory. If there is a Post-Closing
Adjustment pursuant to this §2.4, the allocation of the Purchase Price under §2.7
shall also be adjusted accordingly


 


2.5          THE
CLOSING.  The closing of the
transactions contemplated by this Agreement (the “Closing”) shall take place at
the offices of the Seller located at 2621 North Belt Highway, St. Joseph,
Missouri, commencing at 9:00 a.m. local time on the date of this Agreement
(the “Closing Date”).


 


2.6          DELIVERIES
AT THE CLOSING.  At the Closing, (a) the
Seller will execute, have acknowledged by a notary public (if appropriate), and
deliver (or cause to be delivered) to the Buyer (1) an assignment and
assumption agreement in the form attached hereto as EXHIBIT 2.6(A)(1); (2) a deed in the form of EXHIBIT 2.6(A)(2); (3) an
assignment of intellectual property in the form of EXHIBIT 2.6(A)(3); (4) a transition services
agreement in the form of EXHIBIT 2.6(A)(4); (5) a warehouse lease agreement in
the form of EXHIBIT 2.6(A)(5);
(6) a distribution agreement in the form of EXHIBIT 2.6(A)(6); (7) a termination and release
agreement in the form of EXHIBIT 2.6(A)(7);
(8) a bill of sale in the form of EXHIBIT 2.6(A)(8);
(9) registration transfer agreements for the approval and recordation by
the appropriate Governmental Agency of the transfer of the Registrations that
are part of the Acquired Assets, in a form agreed by the Parties; and (10) all
Technical Records; (b) the Buyer will execute, have acknowledged by a
notary public (if appropriate), and deliver to the Seller counterparts of the
documents referenced above (to the extent that execution by the Buyer is
required); and (c) the Buyer will deliver to the Seller the Closing
Adjusted Purchase Price, as contemplated above.


 


2.7          ALLOCATION.  The Parties have prepared and delivered to
one another an allocation schedule (the “Allocation Schedule”) and agree
that the Parties shall allocate the Purchase Price (and all other capitalizable
costs) among the Acquired Assets for income tax purposes in accordance with the
Allocation Schedule.  The Seller and the
Buyer shall cooperate with each other in the preparation, execution and filing
of (a) all information returns and supplements thereto required to be
filed with the Internal Revenue Service by the parties under Section 1060
of the Code, as amended, and the Treasury Regulations promulgated thereunder
relating to the allocation of the Purchase Price and (b) all similar
filings required to be filed with respect to the transactions contemplated by
this Agreement with the Internal Revenue Service and other appropriate taxing
authorities.  As used herein, the term “Purchase
Price” shall mean the Post-Closing Adjusted Purchase Price, as increased by the
amount of Adverse Consequences actually recovered by the Seller pursuant to §6
and decreased by the amount of Adverse Consequences actually recovered by the
Buyer pursuant to §6.


 


3—REPRESENTATIONS
AND WARRANTIES OF THE SELLER .  The Seller represents and warrants to the
Buyer that the statements contained in this §3 are correct and complete as of
the date of this Agreement except as set forth in the disclosure schedule accompanying
this Agreement (the “Disclosure Schedule”). The Disclosure


 


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Schedule will be arranged
in paragraphs corresponding to the lettered and numbered paragraphs contained
in this §3.


 


3.1          AUTHORIZATION.  The Seller has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder.  This Agreement constitutes the valid and
legally binding obligation of the Seller, enforceable in accordance with its
terms.  Without limiting the generality
of the foregoing, the Seller’s board of directors have duly authorized the
execution, delivery, and performance of this Agreement by the Seller.


 


3.2          ORGANIZATION
OF THE SELLER.  The Seller is a
corporation duly organized, validly existing, and in good standing under the
Laws of the jurisdiction of its incorporation.


 


3.3          BROKERS’
FEES.  The Seller has no
Liability, agreement, commitment, or obligation, oral or written, to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Buyer could become
liable or obligated.


 


3.4          TAX
MATTERS.  The Seller has filed
all Tax Returns that it was required to file and paid all Taxes required to be
paid when due and payable. All such Tax Returns were correct and complete in all
material respects.  The Seller has
withheld and paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any Employee.


 


3.5          TITLE
TO ASSETS.  Except as set forth
in §3.5 of the Disclosure Schedule with respect to Elwood Property, the
Seller has good, indefeasible, and marketable title to all of the Acquired
Assets, and as of the Closing Date, the Acquired Assets will be free and clear
of any Security Interest or restriction on transfer.


 


3.6          NONCONTRAVENTION.


 


3.6.1       NONCONTRAVENTION.  Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in §2.6 above), will (a) violate
any Law or Order to which the Seller is subject or any provision of the charter
or bylaws of the Seller; or (b) result in the creation of any Security
Interest that could attach to any of the Acquired Assets.


 


3.6.2       NOTICES
AND CONSENTS.  Except as set
forth in §3.6.2 of the Disclosure Schedule, the Seller does not need to give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any Person or Governmental Authority
in order for the Parties to consummate the transactions contemplated by this
Agreement (including the assignments and assumptions referred to in §2.6
above).


 


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3.7          EMPLOYEE
BENEFITS.


 


3.7.1       DETAILS
OF PLANS.  To the extent related
to the Seller’s Business, §3.7.1 of the Disclosure Schedule lists each
Employee Benefit Plan that the Seller maintains or to which the Seller
contributes or has any obligation to contribute.


 


(a)           Each
such Employee Benefit Plan (and each related trust, insurance contract, or
fund) complies in form and in operation in all respects with the applicable
requirements of ERISA, the Code, and other applicable Laws and the terms of the
Employee Benefit Plan.


 


(b)           Each
such Employee Benefit Plan which is an Employee Pension Benefit Plan meets the
requirements of a “qualified plan” under Code §401(a), has received a favorable
determination letter from the Internal Revenue Service that it is a “qualified
plan” with respect to GUST (as defined in Section 2 of Rev. Proc. 2002-6),
and the Seller has no Knowledge of any facts or circumstances that could result
in the revocation of such determination letter.


 


(c)           The
Seller has delivered to the Buyer correct and complete copies of the summary
plan descriptions for each such Employee Benefit Plan.


 


3.7.2       NATURE
OF PLANS.  With respect to each
Employee Benefit Plan that the Seller maintains with respect to the Seller’s
Business:


 


(a)           No
Employee Benefit Plan is an Employee Benefit Plan subject to Title IV of
ERISA or Code §412 nor a Multiemployer Plan.


 


(b)           No
Fiduciary or any officer, director of the Seller has any Liability for breach
of fiduciary duty under ERISA or any other failure to act or comply in
connection with the administration or investment of the assets of any such
Employee Benefit Plan.  No Fiduciary or
any officer, director of the Seller has engaged in a Prohibited Transaction
involving any Employee Benefit Plan.


 


(c)           No
Proceeding with respect to the administration or the investment of the assets
of any such Employee Benefit Plan (other than routine claims for benefits) is
pending or, to the Knowledge of the Seller, threatened.


 


(d)           No
Employee Benefit Plan is an Employee Welfare Benefit Plan providing medical,
health, or life insurance or other welfare-type benefits for current or future
retired or terminated employees, their spouses, or their dependents (other than
in accordance with Code §4980B).  No
Employee Benefit Plan is or has been a “Multiple Employer Welfare Plan” as
defined in ERISA § 3(40)(A).


 


(e)           There
are no pending or threatened claims by or on behalf of any Employee Benefit
Plan, by any Person covered thereby (other than ordinary claims for benefits
submitted by participants or beneficiaries) or any Governmental Authority, and
neither the Seller nor any ERISA Affiliate, has any obligation under any Employee


 


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Benefit Plan with respect to
which the Buyer would have any Liability or that could result in a Security
Interest attaching to the Acquired Assets.


 


3.8          ENVIRONMENTAL,
HEALTH, AND SAFETY MATTERS.


 


3.8.1       COMPLIANCE.  With respect to the Elwood Property, the
Seller has complied and is in compliance with all, and has no Liability
relating to any, Environmental, Health, and Safety Requirements.  No condition exists with respect to any such
real property, the Business or any of the Acquired Assets which would subject
the Seller or the Acquired Assets to any remedial obligations or other
Liability under any Environmental, Health, and Safety Requirements.


 


3.8.2       ENVIRONMENTAL
PERMITS. Except as shown on §3.8.3 of the Disclosure Schedule, with
respect to the Elwood Property, the Seller has obtained, timely applied for
renewal of, and complied with, and is in compliance with, all permits, licenses
and other authorizations that are required pursuant to Environmental, Health,
and Safety Requirements for the occupation of its facilities and the operation
of its business on such property.  A list
of all such permits, licenses and other authorizations is set forth on §3.8.2
of the Disclosure Schedule.


 


3.8.3       NOTICE
OF VIOLATION OR LIABILITY. 
Except as shown in §3.8.3 of the Disclosure Schedule, the Seller has not
received any written notice regarding any violation of, or any Liability under,
any Environmental, Health, and Safety Requirements with respect to the Elwood Property,
nor any Liability, including any investigatory, remedial or corrective
obligations, relating to the Elwood Property and Environmental, Health, and
Safety Requirements.


 


3.8.4       PROPERTIES.  Except as shown in §3.8.4 of the Disclosure
Schedule, none of the following exists at the Elwood Property: (1) underground
storage tanks, (2) asbestos-containing material in any form or condition, (3) materials
or equipment containing polychlorinated biphenyls, or (4) landfills,
surface impoundments, pits, sumps, or disposal areas.


 


3.8.5       WASTE.
With respect to the Elwood Property, Seller has not treated, stored, disposed
of, or released any hazardous substance, in a manner that has given or would
give rise to Liability, including any Liability for response costs, corrective
action costs, personal injury, property damage, natural resources damages or
attorney fees, pursuant to any Environmental, Health, and Safety Requirements.


 


3.9          FINANCIAL
STATEMENTS.  The Seller has
provided the Buyer with the following financial statements (collectively the “Financial
Statements”): (i) statements of sales and gross margin for the last two
fiscal years ended as of December 31, 2005 for the Seller with respect to
the Seller’s Business only; and (ii) sales and gross margin as of and for
the one (1) month ended January 31, 2006 (the “Most Recent Fiscal
Month End”) for the Seller with respect to the Seller’s Business only.  The Financial Statements for the Most Recent
Fiscal Month End are attached hereto as EXHIBIT 3.9.  The Financial Statements have been prepared
in accordance with the Seller’s accounting practices,


 


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applied on a consistent basis
throughout the periods covered thereby, and present fairly in all material
respects (with respect to the Seller’s Business only) the results of operations
of the Seller for such periods; provided, however, that the Financial
Statements are subject to normal year-end and audit adjustments, are incomplete
by virtue of the fact that they only relate to the Seller’s Business and sales
and gross margin figures, and lack footnotes and other presentation items.


 


3.10        UNDISCLOSED
LIABILITIES.  In connection with
the Seller’s Business, the Seller does not have any Liabilities, except for (i) Assumed
Liabilities and (ii) Liabilities which have arisen in the Ordinary Course
of Business (none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort,
infringement, or violation of Law).


 


3.11        EVENTS
SUBSEQUENT TO MOST RECENT FISCAL MONTH END.  Since the Most Recent Fiscal Month End with
respect to the Seller’s Business only, there has not been any material adverse
change in the business, financial condition, operations, or results of
operations of the Seller’s Business.


 


3.12        LEGAL
COMPLIANCE.  To Seller’s
Knowledge with respect to its Business, (i) the Seller has complied with
all applicable Laws and (ii) no Proceeding or notice has been filed or
commenced against Seller alleging any failure so to comply.


 


3.13        LITIGATION.  With respect to the Seller’s Business, Seller
is not (i) subject to any outstanding Order or (ii) a party or
threatened to be made a party to any Proceeding.


 


3.14        INVENTORY.  All of the finished goods Inventory included
within the Acquired Assets conforms to the specifications and description set
forth on the labels thereof.  The
finished goods Inventory will be adequately contained, packaged, marked, and
labeled.


 


3.15        PERMITS AND REGISTRATIONS.  All
Permits and Registrations that are held by the Seller in connection with its
Business are listed in §3.15 of the Disclosure Schedule and are in full
force and effect.  §3.15 of the
Disclosure Schedule indicates whether each such Permit and Registration is
transferable to the Buyer and indicates the country in which each
Registration is maintained.  The Permits and Registrations listed in §3.15
of the Disclosure Schedule collectively constitute all of the material
permits necessary for the Seller to lawfully conduct and operate the Business
in the manner in which it currently conducts and operates the Business and to
own, maintain and use the Acquired Assets in the manner in which it currently
owns, maintains and uses such Acquired Assets. 
Except as shown on §3.8.3 of the Disclosure Schedule, to Seller’s Knowledge, (i) there are no
violations of any such Permit or Registration; and (ii) no Proceeding is
pending or threatened to revoke or limit any such Permit or Registration.


 


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3.16        INTELLECTUAL
PROPERTY.


 


3.16.1     LIST
OF PROPERTY.  §3.16.1 of the
Disclosure Schedule describes all Intellectual Property owned and used by
the Seller solely and directly in the conduct of its Business.


 


3.16.2     NO
INTERFERENCE.  In operating its
Business, the Seller has not received written notice that Seller has interfered
with, infringed upon, or misappropriated any Intellectual Property rights of
third parties.  To Seller’s Knowledge, no
third party has interfered with, infringed upon, or misappropriated any
Intellectual Property rights of the Seller related to its Business.  The Seller has taken all actions reasonably
required to maintain the registrations of the Intellectual Property shown on §3.16.4
of the Disclosure Schedule, including the appropriate labeling of products and
writings that embody the registered Intellectual Property and reasonable
pursuit of enforcement actions against infringement or threatened infringement
of such Intellectual Property.


 


3.16.3     OWNERSHIP.  The Seller owns all of the Intellectual
Property shown on §3.16.1 of the Disclosure Schedule.  Each item of Intellectual Property so owned
by the Seller will be owned by the Buyer immediately subsequent to the Closing
hereunder.


 


3.16.4     DETAILS.  §3.16.4 of the Disclosure Schedule identifies
each registration which has been issued to Seller with respect to any of its
Intellectual Property used by the Seller solely and directly in connection with
its Business, identifies each pending application for registration which the
Seller has made with respect to any of such Intellectual Property, and
identifies each license, agreement, or other permission which Seller has
granted to any third party with respect to any of such Intellectual Property.
The Seller will deliver at Closing to the Buyer correct and complete copies of
all such registrations, applications, licenses, agreements, and permissions (as
amended to date) and will make available to the Buyer correct and complete
copies of all other written documentation evidencing ownership and prosecution
(if applicable) of each such item. §3.16.4 of the Disclosure Schedule also
identifies each trade name or unregistered trademark used by Seller directly
and solely in connection with its Business. 
With respect to each item of Intellectual Property identified in §3.16.1
of the Disclosure Schedule: (a) the Seller possesses all right, title, and
interest in and to the item, free and clear of any Security Interest, license,
or other restriction; (b) the item is not subject to any outstanding
Order; (c) no Proceeding is pending or to the Knowledge of Seller is
threatened which challenges the legality, validity, enforceability, use, or
ownership of the item; and (d) Seller has not agreed to indemnify any
Person for or against any interference, infringement, misappropriation, or
other conflict with respect to the item.


 


3.17        TANGIBLE
ASSETS.  Each of the tangible
Acquired Assets is free from substantial defects, has been maintained in
accordance with the Seller’s normal practice, and is in good operating
condition (subject to normal wear and tear). 
The Seller will provide at Closing to the Buyer a full and complete copy
of all maintenance records in its possession for each Acquired Asset.  At Closing, Seller will deliver a list of the
furniture, fixtures, and equipment included within the Acquired Assets.


 


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3.18        REAL
PROPERTY.


 


3.18.1     OWNED
REAL PROPERTY.  Except for the
Excluded Assets and the Elwood Property, there is no real property that the
Seller owns and uses directly and solely in connection with its Business. With
respect to the Elwood Property: (a) the Seller has good and marketable
title to the parcel of real property, free and clear of any Security Interest; (b) there
are no pending or, to the Seller’s Knowledge, threatened condemnation
Proceedings relating to the property or other matters affecting adversely the
current use, occupancy, or value thereof; (c) the legal description for
the parcel contained in the deed thereof describes such parcel fully and
adequately, the buildings and improvements are located within the boundary
lines of the described parcels of land, are not in violation of applicable
setback requirements, zoning Laws, and ordinances (and none of the properties
or buildings or improvements thereon are subject to “permitted non-conforming
use” or “permitted non-conforming structure” classifications), and do not
encroach on any easement which may burden the land, the land does not serve any
adjoining property for any purpose inconsistent with the use of the land; (d) there
are no leases, subleases, licenses, concessions, or other agreements granting
to any party or parties the right of use or occupancy of any portion of the
parcel of real property; (e) there are no outstanding options or rights of
first refusal to purchase the parcel of real property, or any portion thereof
or interest therein; (f) there are no parties (other than the Seller) in
possession of the parcel of real property; (g) all facilities located on
the parcel of real property are supplied with utilities and other services
necessary for the operation of such facilities, including gas, electricity,
water, telephone, sanitary sewer, and storm sewer; and (h) each parcel of
real property abuts on and has direct vehicular access to a public road, or has
access to a public road via a permanent, irrevocable, appurtenant easement
benefiting the parcel of real property, and access to the property is provided
by paved public right-of-way with adequate curb cuts available.


 


3.18.2     LEASED
PROPERTY.  Since the date of the
Brown Lease and except for the property subject to the Brown Lease, the Seller
has not leased any real property that is used in connection with its Business.


 


3.19        CONTRACTS.


 


3.19.1     TYPES
OF CONTRACTS.  §3.19.1 of the
Disclosure Schedule lists the following types of contracts to which the
Seller is a party and are solely and directly related to its Business: (a) any
agreement (or group of related agreements) for the lease of personal property
to or from any Person providing for lease payments in excess of $5,000 per
annum; (b) any agreement (or group of related agreements) for the purchase
or sale of raw materials, commodities, supplies, products, or other personal
property, or for the furnishing or receipt of services, the performance of
which will extend over a period of more than 6 months or involve consideration
in excess of $5,000; (c) any agreement concerning confidentiality or
noncompetition; (d) any collective bargaining agreement; (e) any
agreement for the employment of any individual on a full-time, part-time,
consulting, or other basis, or providing severance benefits; (f) any
agreement under which it has advanced or loaned any amount to any of its
employees outside the Ordinary Course of Business; (g) any agreement with
any competitor of the Seller’s Business or


 


10

















 


that conducts a business
substantially similar to the Business; (h) any agreement with any third
party or Governmental Authority regarding data that is related to the
Registrations; and (i) any agreement with respect to the Elwood Property
that covers maintenance, security, utilities, telecommunications, HVAC or other
facility-related matters.  §3.19.1 of the
Disclosure Schedule identifies, with respect to each contract, whether
consent of a third party for the assignment contemplated under this Agreement,
and whether a guaranty is required to be issued for the obligations of the
Buyer following assignment of such contract to the Buyer.


 


3.19.2     STATUS
OF CONTRACTS.  The Seller has
delivered to the Buyer a correct and complete copy of the agreement between
Seller and Fort Dodge Australia Pty Limited listed in §3.19.1(b) of the
Disclosure Schedule.  With respect to
each such agreement: (a) the agreement is legal, valid, binding,
enforceable, and in full force and effect; (b) if the agreement is an
Assumed Contract, then the agreement will continue to be legal, valid, binding,
enforceable, and in full force and effect on identical terms following the
consummation of the transactions contemplated hereby (including the assignments
and assumptions referred to in §2.6 above); (c) Seller is not in breach or
default; and (d) no party has repudiated in writing any provision of the
agreement.


 


3.20        PRODUCT
WARRANTY.  Each product
manufactured or sold by the Seller in connection with its Business has been in
conformity with all applicable contractual warranties, and the Seller has no
Liability (and there is no Basis for any present or future Proceeding against
Seller giving rise to any Liability) for replacement or repair thereof or other
damages in connection therewith.  §3.20
of the Disclosure Schedule includes the applicable warranty provisions of
the Seller’s standard terms and conditions of sale for its Business.


 


3.21        PRODUCT
LIABILITY.  In connection with
its Business, the Seller has no Liability (and there is no Basis for any
present or future Proceeding against Seller giving rise to any Liability)
arising out of any injury to individuals or property as a result of the
ownership, possession, or use of any product manufactured or sold by the
Seller.


 


3.22        EMPLOYEES.  A list of Seller’s salaried and non-salaried
employees that work primarily in connection with its Business (the “Employees”)
has been provided to the Buyer.  Included
within such list was a list of each such Employee’s (a) current rate of
pay; (b) gross compensation paid to such Employee during the last full
calendar year; (c) tenure with the Seller; and (d) job title or
description.  Except for those Employees
that are subject to contracts described in §3.19.1 of the Disclosure Schedule,
all of the Employees are terminable at will. 
To the Knowledge of the Seller, no executive, key employee, or group of
employees has any plans to terminate employment with the Seller prior to the
Closing.  In connection with its Business
and except as shown on §3.19.1 of the Disclosure Schedule, the Seller is not a
party to nor bound by any collective bargaining agreement, nor has the Seller
experienced any strikes, grievances, claims of unfair labor practices, or other
collective bargaining disputes.  The
Seller has not committed any unfair labor practice. To the Seller’s Knowledge,
there is no organizational effort presently being made or threatened by or on
behalf of any labor union with respect to employees of the Seller.


 


11

















 


3.23        IMMIGRATION
MATTERS.  Seller has no Employees
for whom it currently has petitions or applications for immigration benefits
pending with the INS or DOL.  The Seller
has maintained appropriate immigration forms (i.e., forms I-9) on all Employees
to which such requirements apply, and has no reason to believe that any of the
information set forth thereon is inaccurate.


 


3.24        NO
OTHER REPRESENTATIONS.  Except as
expressly set forth in this §3, the Seller makes no representation or warranty,
express or implied, at law or in equity, in respect of any of its assets
(including, without limitation, the Acquired Assets), Liabilities or operations,
including, without limitation, with respect to merchantability or fitness for
any particular purpose, and any such other representations or warranties are
hereby expressly disclaimed.  Buyer
hereby acknowledges and agrees that, except to the extent specifically set
forth in this §3, the Buyer is purchasing the Acquired Assets on an “as-is,
where-is” basis.


 


4—REPRESENTATIONS
AND WARRANTIES OF BUYER.  Buyer represents and warrants to the Seller
that the statements contained in this §4 are correct and complete as of the
date of this Agreement.


 


4.1          ORGANIZATION
OF THE BUYER.  The Buyer is a
corporation duly organized, validly existing, and in good standing under the
Laws of the jurisdiction of its incorporation.


 


4.2          AUTHORIZATION
OF TRANSACTION.  The Buyer has
full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder.  This Agreement constitutes
the valid and legally binding obligation of the Buyer, enforceable in
accordance with its terms.


 


4.3          NONCONTRAVENTION.  To the Knowledge of the Buyer, neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will violate any Law or Order to which the
Buyer is subject or any provision of the charter or bylaws of the Buyer.


 


4.4          BROKERS’
FEES.  The Buyer has no
Liability, agreement, commitment, or obligation, oral or written, to pay any
fees or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Seller could become liable or
obligated.


 


5—COVENANTS.  The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.


 


5.1          NOTICE
OF ASSUMED CONTRACTS.  §5.1 of
the Disclosure Schedule sets forth a list of agreements listed on §3.19.1
of the Disclosure Schedule that the Buyer intends to assume (the “Assumed
Contracts”).


 


5.2          SALES
TAXES.  Buyer and Seller each
agree to deliver to the other Party (or to such Governmental Authority as the
other Party reasonable directs) any form of


 


12

















 


document that may be required
or reasonably requested in order to obtain an exemption with respect to any
federal, state, local or other, sales, use or other transfer taxes that may
otherwise be required to be paid on the transfer of the Acquired Assets or that
may otherwise be due with respect to such transfer, promptly upon the earlier
of (i) reasonable demand by the other Party or (ii) learning that
such form or document is required.  The
Seller has determined that there are no real estate transfer taxes that apply
to the transactions contemplated by this Agreement.  Except for real estate transfer taxes, the
Buyer shall be responsible for all fees and Taxes payable in order to transfer
title to any vehicles, trailers, or other Acquired Assets the ownership of
which is evidenced by a certificate of title. 
The Buyer and the Seller shall each be severally responsible for other
taxes that are properly assessable against them in connection with the
transactions contemplated by this Agreement.


 


5.3          BULK
SALES.  Buyer hereby agrees to
waive compliance by Seller with the provisions of any applicable bulk sales
Law; provided, however, that Seller agrees to pay and discharge when due or to
contest or litigate all claims of creditors which are asserted against Buyer or
the Acquired Assets by reason of such noncompliance (other than with respect to
the Assumed Liabilities), to indemnify, defend and hold harmless Buyer from and
against any and all such claims in the manner provided in §6.2.2 hereof, and to
take promptly all necessary action to remove any Security Interest which is
placed on the Acquired Assets by reason of such noncompliance.


 


5.4          OBLIGATIONS
CONCERNING EMPLOYEES.


 


5.4.1       NOTICE
TO EMPLOYEES.  Seller has
notified all of its salaried and non-salaried Employees of the transactions
contemplated hereby.  Buyer has provided
the Employees with notice with respect to Buyer’s hiring procedures.


 


5.4.2       INTERVIEWS.  Before the Closing Date, Buyer has had the
right upon reasonable notice to Seller during normal business hours and without
undue disruption of the operation of the Seller’s business, to interview the
Employees and otherwise conduct hiring procedures with regard to its possible
hiring of the Employees.  On or before
the Closing Date, Buyer represents that it has extended written offers of
employment to all of the Employees, at base rates of pay and on terms of
employment substantially similar to those pursuant to which the Employees are
employed by the Seller.  The Buyer has
provided the Seller with a written list of the Employees and represents that
the Employees shown on such list have accepted such offers of employment from
the Buyer (such Employees, the “Transferred Employees”).  Seller shall comply with all provisions of
federal and state Law (including COBRA) relating to the continuation of health
insurance benefits for terminated Employees.


 


5.4.3       NON-SOLICITATION
OF EMPLOYEES.  Whether for the
Seller’s own account or the account of any other person (a) at any time
during the sixty months following the Closing Date, solicit for a position as
an employee, independent contractor, or otherwise, Sharlene M. Parry, at any
time when she is then an employee of the Buyer (or any of its Affiliates) or in
any manner induce or attempt to induce her to terminate her employment with the
Buyer (or any of its Affiliates); or (b) at any time during the twelve


 


13

















 


months following the Closing
Date, solicit for a position as an employee, independent contractor, or
otherwise, any Transferred Employee, at any time when such a Transferred
Employee is then an employee of the Buyer (or any of its Affiliates) or in any
manner induce or attempt to induce such Transferred Employee to terminate his
or her employment with the Buyer (or any of its Affiliates).


 


5.4.4       COMPLIANCE
WITH LAW.  In connection with the
foregoing and the transactions contemplated hereby, the Seller agrees to
provide any required notice under the Worker Adjustment and Retraining Act of
1988, as amended, or any similar federal or state Law, and to otherwise comply
with any such statute with respect to any “plant closing” or “mass layoff” (as
defined in such act or similar applicable legal requirements) or similar event
affecting the Employees.


 


5.5          GENERAL.  In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, the Parties will take such further action (including the execution
and delivery of such further instruments and documents) as any other Party may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under §6 below),
provided, however, that no Party shall charge the other Party for internal
expenses (such as copies, faxes, telephone calls, employee time, and in-house
counsel charges).


 


5.6          CONFIDENTIALITY.  The Seller will treat and hold as such all of
the Confidential Information, refrain from using any of the Confidential
Information except in connection with this Agreement, and deliver promptly to
the Buyer or destroy, at the request and option of the Buyer, all Confidential
Information in possession or control of Seller. 
If the Seller is requested or required (by oral question or request for
information or documents in any legal Proceeding) to disclose any Confidential
Information, the Seller shall be permitted to so disclose the Confidential
Information, but shall notify the Buyer of the request or requirement so that
the Buyer may seek an appropriate protective Order or waive compliance with the
provisions of this §5.6.  This obligation
shall survive the Closing for a period of twenty-four months.


 


5.7          RESTRICTIVE
COVENANTS.


 


5.7.1       NON-COMPETE.  For the period between the Closing Date and
the fifth (5th) anniversary thereof (such anniversary, the “Termination
Date”), neither the Seller nor any of its Affiliates shall, directly or
indirectly own, engage in, manage, operate, control, finance or participate in
the ownership, management, operation, control or financing of, or permit its or
its Affiliates’ names to be used by or in connection with the Business within
the United States of America, and each other country in which the Seller
maintains Registrations, as shown on §3.15 of the Disclosure Schedule (collectively,
the “Restricted Area”).


 


(a)           The
ownership by the Seller or its Affiliates of less than 5% of the outstanding
stock of any publicly traded corporation shall be deemed not to violate the
terms of this §5.7.1.


 


14

















 


(b)           Notwithstanding
anything else contained herein, if by virtue of an acquisition, merger,
consolidation, amalgamation, or equity purchase (an “Acquisition”), the Seller
would be conducting business in violation of this §5.7.1, the Seller may
unilaterally elect to terminate its obligations under this §5.7.1 with respect
to such business outside of the United States, but within the Restricted Area,
by delivering a written notice to the Buyer identifying such business (the “Termination
Notice”), along with a payment to Buyer, in cash, in an amount equal to the
Termination Payment. Following the Buyer’s receipt of such notice and the
Termination Payment, the Seller and its Affiliates shall be permitted to
continue the business identified in the Termination Notice within the
Restricted Area, excluding the United States, notwithstanding the provisions of
this §5.7.1. As used herein, the term “Termination Payment” means an amount
equal to Five Hundred Thousand and No/100 Dollars ($500,000.00) as of the
Closing Date, with such amount to be reduced by One Hundred Thousand and No/100
Dollars ($100,000.00) on each anniversary of the Closing Date.


 


(c)           Upon
providing fifteen (15) days prior written notice to the Buyer specifying the
date upon which either the Seller or its Affiliates will as a result of an
Acquisition engage in the Business, the Seller shall be permitted to engage in
the Business anywhere within the Restricted Area, without payment to the Buyer
and without violation of this §5.7.1, for a period of one hundred eighty (180)
days from the date specified in such notice.


 


5.7.2       PROCEDURES.  If the final judgment of a court of competent
jurisdiction declares that any term or provision of this §5.7 is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed. The period of time applicable
to any covenant in this §5.7 will be extended by the duration of any violation
of such covenant.


 


5.8          SATISFACTION
OF LIABILITIES.  The Buyer shall
have no responsibility and the Seller shall be solely responsible for the
satisfaction of all Liabilities of the Seller (other than the Assumed
Liabilities); provided, however, that such satisfaction may occur in the
Ordinary Course of Business; and, provided, further, that the Seller shall have
no obligation, as a result of this Agreement, to satisfy any Liability that the
Seller is disputing in good faith.  The
Seller shall have no responsibility and the Buyer shall be solely responsible
for the satisfaction of all Assumed Liabilities and Liabilities of the Business
arising after the Closing Date; provided, however, that such satisfaction may
occur in the Ordinary Course of Business; and, provided, further, that the
Buyer shall have no obligation, as a result of this Agreement, to satisfy any
Liability that the Buyer is disputing in good faith.


 


5.9          INSPECTION
OF RECORDS.  Each Party shall
retain and make its books and records available for inspection by the any other
Party, or by its duly authorized


 


15

















 


representatives, for reasonable
business purposes at reasonable times during normal business hours, for a two (2) year
period after the Closing Date, with respect to all transactions relating to the
Closing and the Acquired Assets; provided, however, that the execution of a
confidentiality agreement may be a pre-condition to the examination of any such
records.


 


5.10        PAYMENTS
RECEIVED.  The Buyer is not
acquiring any receivables of the Seller, whether related to its Business or
otherwise.  The Buyer agrees that after
the Closing the Buyer will hold and will promptly, but in any event within 10
days, transfer and deliver to the Seller, from time to time as and when
received by Buyer, any cash, checks with appropriate endorsements (using the
Buyer’s best efforts not to convert such checks into cash), or other property
that Buyer may receive on or after the Closing which properly belongs to the
Seller, including any account payments which belong to Seller, and will account
to the Seller for all such receipts.


 


5.11        EMPLOYEE
REPORTING.  Each Party shall be
responsible for filing Forms W-2 with respect to wages paid by it during the 2006
taxable year to Transferred Employees in accordance with the “Standard Procedures”
in IRS Revenue Procedure 96-60, 1996-2 C.B. 399.


 


5.12        INVENTORY
LICENSE.


 


5.12.1     .DEFINITIONS.  The following terms shall have the meanings
ascribed to them in this Section 5.12.1:


 


(a)           Buyer
Product.  Means products of the type
described by the relevant Label Stock (exclusive of Finished Goods), to which
Label Stock will be affixed after the Closing.


 


(b)           Finished
Goods.  Means all of the Inventory that
required no additional processing, packaging, or labeling at the time they were
sold to the Buyer under this Agreement.


 


(c)           Label
Stock.  Means any of the labeling
included within the Inventory, to the extent that such labels (a) have not
been permanently affixed to Finished Goods; and (b) bear Seller’s
Trademarks.


 


(d)           Seller’s
Trademarks.  Means the Seller’s
trademarks, tradenames, and logos shown or listed on Section 5.12.1(d) of
the Disclosure Schedule.


 


(e)           Term.  Means the period between the Closing Date and
the earlier of (1) December 31, 2006, or (2) the exhaustion of
the Label Stock.


 


5.12.2     BUYER
PRODUCT.  Buyer warrants that the
Buyer Products shall conform to the specifications and description on the Label
Stock affixed thereto.  The Buyer
Products will be adequately contained, packaged, marked, and labeled.  The Label Stock affixed to any Buyer Product
shall be permanently affixed and thereafter, the Buyer shall neither alter,
deface, or tamper with, nor permit the deterioration of, the Buyer


 


16

















 


Products or their respective
labels or appearances.  Buyer shall store
Buyer Products in accordance with the requirements on the labels thereto.  Buyer shall not sell the Buyer Products after
their respective expiration dates.  Buyer
shall not add any additional markings, designations, or labels to the Buyer
Products, except as required by applicable Law.


 


5.12.3     FINISHED
GOODS.  Buyer shall store
Finished Goods in accordance with the requirements on the labels thereto.   Buyer shall neither alter, deface, or tamper
with, nor permit the deterioration of, the Finished Goods or their respective
labels or appearances.  Buyer shall not
sell the Finished Goods after their respective expiration dates.  Buyer shall not add any additional markings,
designations, or labels to the Finished Goods, except as required by applicable
Law.


 


5.12.4     SELLER’S
TRADEMARKS.  The Buyer shall use
the Seller’s Trademarks only in strict accord with the terms of this Section 5.12.4.  During the Term and within the Restricted
Area, Seller hereby grants to Buyer, subject to and in compliance with all
other terms and conditions of this Section 5.12, a royalty-free,
irrevocable, non-exclusive license to use Seller’s Trademarks, solely in
connection with the sale and exhaustion of Finished Goods and the exhaustion of
the Label Stock as applied to Buyer Products and only in accordance with the
quality standards set by, and under the control of, Seller.  Buyer acknowledges the ownership of the
Seller’s Trademarks by Seller and agrees that it will do nothing inconsistent
with such ownership, and that all use of the Seller’s Trademarks and all
goodwill developed therefrom shall inure to the benefit of and be on behalf of
Seller.  Buyer agrees that nothing in
this Section 5.12 shall give the Buyer any right, title, or interest in
the Seller’s Trademarks other than the right to use such Trademarks in
accordance with this Section 5.12. 
Buyer agrees that it will not attack the title of the Seller to the
Seller’s Trademarks or attack the validity of this clause.  Buyer is prohibited from entering into any
sublicenses with respect to the Seller’s Trademarks.  Buyer shall be permitted to produce
additional Label Stock with the Seller’s Trademarks upon Seller’s prior written
consent, not to be unreasonably withheld.


 


6—REMEDIES
FOR BREACHES OF THIS AGREEMENT.


 


6.1          SURVIVAL
OF REPRESENTATIONS AND WARRANTIES. 
The representations and warranties of the Seller contained in §§3.1
through 3.5 of this Agreement shall survive the Closing and continue in full
force and effect until the expiration of the applicable statute of
limitations.  The representations and
warranties of the Buyer contained in this Agreement shall survive the Closing
and continue in full force and effect until the expiration of the applicable
statute of limitations.  All of the
representations and warranties of the Seller contained in §3.8 this Agreement
shall survive the Closing and continue in full force and effect for a period
thereafter of seven (7) years.  All
of the representations and warranties of the Seller not specifically described
above shall survive the Closing and continue in full force and effect for a
period thereafter of twenty four (24) months.


 


17

















 


6.2          INDEMNIFICATION
PROVISIONS FOR BENEFIT OF THE BUYER.


 


6.2.1       BREACH
OF AGREEMENT.  If Seller breaches
any of its representations, warranties, and covenants contained in this
Agreement, and, if there is an applicable survival period pursuant §6.1 above,
provided that the Buyer makes a written claim for indemnification against the
Seller pursuant to §7.6 below within such survival period, then the Seller
agrees to indemnify and hold the Buyer harmless from and against any Adverse
Consequences the Buyer shall suffer through and after the date of the claim for
indemnification caused proximately by the breach.


 


6.2.2       LIABILITIES.  Seller agrees to indemnify the Buyer from and
against any Adverse Consequences the Buyer shall suffer caused proximately by
any Liability of the Seller (including any Liability of the Seller that becomes
a Liability of the Buyer under any bulk transfer Law of any jurisdiction, under
any common law doctrine of de facto merger or successor liability, under
Environmental, Health, and Safety Requirements, or otherwise by operation of
Law), to the extent such Liability is not an Assumed Liability.


 


6.3          INDEMNIFICATION
PROVISIONS FOR BENEFIT OF THE SELLER.


 


6.3.1       BREACH
OF AGREEMENT.  If Buyer breaches
any of its representations, warranties, and covenants contained in this
Agreement, and, if there is an applicable survival period pursuant §6.1 above,
provided that the Seller makes a written claim for indemnification against the
Buyer pursuant to §7.6 below within such survival period, then the Buyer agrees
to indemnify and hold the Seller harmless from and against any Adverse
Consequences the Seller shall suffer through and after the date of the claim
for indemnification caused proximately by the breach.


 


6.3.2       ASSUMED
LIABILITIES.  Buyer agrees to
indemnify the Seller from and against any Adverse Consequences the Seller shall
suffer caused proximately by any Assumed Liability or any Liability of the
Buyer related to the operation of the Business after the Closing Date.


 


6.4          LIMITATIONS.  The following limitations apply to any claims
made under this §6:


 


(a)           No
Indemnifying Party shall have any responsibility under §§6.2.1 or 6.3.1, until
the Indemnified Party shall have suffered Adverse Consequences for which
recovery is possible under §§6.2.1 or 6.3.1 in excess of $100,000.00, as an
aggregate deductible (after which point the Indemnifying Party will be
obligated only to indemnify the Indemnified Party from and against further such
Damages).


 


(b)           No
Indemnifying Party shall have any responsibility under §§6.2.1 or 6.3.1 in an
aggregate amount in excess of Two Million Nine Hundred Twenty-Five Thousand and
No/100 ($2,925,000.00), as an aggregate ceiling (after which point the
Indemnifying Party shall have no further obligation under §§6.2.1 or 6.3.1).


 


18

















 


(c)           Subject
to §6.5.2, no Indemnifying Party shall be responsible for indirect, special,
incidental, consequential (including lost profits), or punitive damages.


 


(d)           In
calculating Adverse Consequences under this §6, the Parties shall make
appropriate adjustments for tax benefits and insurance coverage and take into
account the time cost of money (using the Applicable Rate as the discount
rate).  No Indemnifying Party shall have
responsibility for Adverse Consequences that could have reasonably been
mitigated by the Indemnified Party.


 


6.5          MATTERS
INVOLVING THIRD PARTIES.


 


6.5.1       THIRD
PARTY CLAIMS.  If any third party
shall notify any Party (the “Indemnified Party”) with respect to any matter (a “Third
Party Claim”) which may give rise to a claim for indemnification against any
other Party (the “Indemnifying Party”) under this §6, then the Indemnified
Party shall promptly (and in any event within ten business days after receiving
notice of the Third Party Claim) notify the Indemnifying Party thereof in
writing; provided, however, that any failure to timely deliver such notice
shall not limit the Indemnified Party’s right under this §6, unless, and then
only to the extent, that the Indemnifying Party is prejudiced thereby.


 


6.5.2       INDEMNIFYING
PARTY.  The Indemnifying Party
will have the right at any time to assume and thereafter conduct the defense of
the Third Party Claim with counsel of its choice; provided, however, that the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be withheld unreasonably) unless the
judgment or proposed settlement involves only the payment of money damages and
does not impose an injunction or other equitable relief upon the Indemnified
Party.  With respect to any Third Party
Claim, the Indemnifying Party shall be responsible for any indirect, special,
incidental, consequential (including lost profits), or punitive damages paid or
payable (by reason of settlement or final court order) to the Person holding
such Third Party Claim, notwithstanding the provisions of §6.4(c).  For so long as the Indemnifying Party assumes
the defense of a Third Party Claim in accordance with this §6.5.2, the
Indemnified Party will not consent to the entry of any judgment or enter into
any settlement with respect to such Third Party Claim without the prior written
consent of the Indemnifying Party (not to be unreasonably withheld).


 


6.5.3       INDEMNIFIED
PARTY.  Unless and until an
Indemnifying Party assumes the defense of the Third Party Claim as provided
above, however, the Indemnified Party may defend against, compromise, or settle
the Third Party Claim in any manner the Indemnified Party reasonably may deem
appropriate.


 


6.5.4       COOPERATION.  The Parties will reasonably cooperate in
defense and keep each other fully informed as to the status of Third Party
Claims and Proceedings.


 


19

















 


6.6          EXCLUSIVE
REMEDY.  The Parties acknowledge
and agree that the foregoing indemnification provisions in this §6 shall be the
exclusive remedy of the Parties with respect to the Acquired Assets, Assumed
Liabilities, the sale of the Business, and the transactions contemplated by
this Agreement (exclusive of remedies provided in connection with the purchase
price adjustment under §2.4 and in connection with those agreements described
in Exhibits 2.6(a)(4), 2.6(a)(5), and 2.6(a)(6) and the Confidentiality
Agreement described in §7.2, which shall be governed by their respective
terms).  Without limiting the generality
of the foregoing, the Buyer understands and agrees that its right to
indemnification under §6.2.1 for breach of the representations and warranties
contained in §3.8 shall constitute its sole and exclusive remedy against the
Seller with respect to any environmental, health, or safety matter relating to
the past, current or future facilities, properties or operations of its Business
and all of its predecessors or Affiliates, including without limitation any
such matter arising under any Environmental, Health, and Safety Requirements.
Aside from such right to indemnification, the Buyer hereby waives any right,
whether arising at law or in equity, to seek contribution, cost recovery,
damages, or any other recourse or remedy from the Seller, and hereby releases
the Seller from any claim, demand or liability, with respect to any such
environmental, health, or safety matter (including without limitation any
arising under any Environmental, Health, and Safety Requirements).


 


7—MISCELLANEOUS.


 


7.1          NO
THIRD-PARTY BENEFICIARIES.  This
Agreement shall not confer any rights or remedies upon any Person other than
the Parties and their respective successors and permitted assigns.  Without limiting the generality of the
foregoing, this Agreement shall not confer upon any Employee or Transferred
Employee the right to employment with any Party.


 


7.2          ENTIRE
AGREEMENT.  This Agreement
(including the documents referred to herein) constitutes the entire agreement
between the Parties and supersedes any prior understandings, agreements, or
representations by or between the Parties, written or oral, to the extent they
related in any way to the subject matter hereof.  That certain Confidentiality Agreement, dated
January 5, 2006, between the Buyer and the Seller shall remain in full
force and effect; provided, however, that Buyer shall have no further
obligation thereunder with respect to any Acquired Assets.


 


7.3          SUCCESSION
AND ASSIGNMENT.  This Agreement
shall be binding upon and inure to the benefit of the Parties named herein and
their respective successors and permitted assigns. No Party may assign either
this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other Party; provided, however, that
the Buyer may (i) assign any or all of its rights and interests hereunder
to one or more of its Affiliates and (ii) designate one or more of its
Affiliates to perform its obligations hereunder (in any or all of which cases
the Buyer nonetheless shall remain responsible for the performance of all of
its obligations hereunder).  In
furtherance of the foregoing, the Seller will, at the Buyer’s request, execute
such other documents as may be necessary to transfer all or a portion of the
Acquired Assets to the Buyer’s Affiliate at Closing.


 


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7.4          COUNTERPARTS.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.  Delivery of an executed counterpart signature
page by fax shall be considered delivery of an original counterpart.


 


7.5          HEADINGS.
 The section headings contained in
this Agreement are inserted for convenience only and shall not affect in any
way the meaning or interpretation of this Agreement.


 


7.6          NOTICES.  All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:


 


21

















 


	
  IF TO
  BUYER:

  	
   

  	
  IF TO
  SELLER:

  
	
   

  	
   

  	
   

  	
  BOEHRINGER
  INGELHEIM

  
	
   

  	
  KMG
  BERNUTH, INC.

  	
   

  	
   

  	
  VETMEDICA,
  INC.

  
	
   

  	
  10611
  HARWIN, SUITE 402

  HOUSTON, TEXAS 77036

  ATTENTION: CFO

  FACSIMILE: (713) 988-9298

  	
   

  	
   

  	
  2621 NORTH BELT HIGHWAY

  ST. JOSEPH, MO 64506-2002

  ATTN: JIM KROMAN

  FAX: (816) 233-3487

  
	
   

  	
   

  	
   

  
	
  COPY
  TO:

  	
   

  	
  COPY
  TO:

  
	
   

  	
  ROGER
  C. JACKSON, ESQ.

  GENERAL COUNSEL

  KMG CHEMICALS, INC.

  10611 HARWIN, SUITE 402

  HOUSTON, TEXAS 77036

  FACSIMILE: (713) 988-9298

  	
   

  	
   

  	
  ARMSTRONG
  TEASDALE LLP

  ONE METROPOLITAN SQUARE

  SUITE 2600

  ST. LOUIS, MISSOURI 63102-2740

  ATTN: MARK L. STONEMAN

  FAX: 314-612-2353

  



 


Any Party may
send any notice, request, demand, claim, or other communication hereunder to
the intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
telex, ordinary mail, or electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly given unless
and until it actually is received by the intended recipient. Any Party may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice
in the manner herein set forth.


 


7.7          GOVERNING
LAW.  This Agreement shall be
governed by and construed in accordance with the domestic Laws of the State of
Missouri without giving effect to any choice or conflict of Law provision or rule that
would cause the application of the Laws of any jurisdiction other than the
State of Missouri, except with respect to the transfer of any real property, in
which case the laws of the State of Kansas shall apply.


 


7.8          AMENDMENTS
AND WAIVERS.  No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing
and signed by the Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.


 


7.9          SEVERABILITY.  Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.


 


22

















 


7.10        EXPENSES.  Each of the Parties will bear its own costs
and expenses (including legal fees and expenses) incurred in connection with
this Agreement and the transactions contemplated hereby.  Notwithstanding the foregoing, the Seller
will pay all amounts payable to the Title Insurer in respect of the title
commitments, copies of exceptions referenced on such commitment and search fees,
which may be satisfied by updating the title commitment issued to the Seller in
2005.  Buyer shall pay all premiums for
title insurance (including any premiums due for endorsements).


 


7.11        CONSTRUCTION.  The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of
any of the provisions of this Agreement. Any reference to any federal, state,
local, or foreign statute or Law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word “including” shall mean including without limitation.


 


7.12        INCORPORATION
OF EXHIBITS AND SCHEDULES.  The
Exhibits and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.


 


7.13        TIME
OF THE ESSENCE.  Time is of the
essence of this Agreement.  If any date
herein set forth for the performance of any obligations by any Party for the
delivery of any instrument or notice as herein provided should be on a
Saturday, Sunday or legal holiday, the compliance with such obligations or
delivery shall be deemed acceptable on the next business day following such
Saturday, Sunday or legal holiday.  As
used herein, the term “legal holiday” means any state or federal holiday for
which financial institutions or post offices are generally closed in the State
of Missouri for observance thereof.


 


7.14        SUBMISSION
TO JURISDICTION.  Each of the
Parties submits to the jurisdiction of any state court sitting in Buchanan
County, Missouri, or any federal court with jurisdiction over the matter in the
Western District of Missouri in any Proceeding arising out of or relating to
this Agreement and agrees that all claims in respect of any such Proceeding may
be heard and determined in any such court. 
Each Party also agrees not to bring any Proceeding arising out of or
relating to this Agreement in any other court. 
Each of the Parties waives any defense of inconvenient forum to the
maintenance of any Proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto. Either
Party may make service on the other Party by sending or delivering a copy of
the process to the Party to be served at the address and in the manner provided
for the giving of notices in §7.6 above. Nothing in this §7.14, however, shall
affect the right of either Party to serve legal process in any other manner
permitted by Law or in equity. Each Party agrees that a final judgment in any
Proceeding so brought shall be conclusive and may be enforced by suit on the
judgment or in any other manner provided by Law or in equity.


 


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[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY
BEEN LEFT BLANK.  SIGNATURE

PAGE FOLLOWS.]


 


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In Witness
Whereof, the undersigned have entered into this
Agreement as of the date and year first written above.


 


THIS CONTRACT CONTAINS A BINDING ARBITRATION
PROVISION

WHICH MAY BE ENFORCED BY THE PARTIES.


 


 


	
  BUYER

  
	
  KMG BERNUTH, INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ J. Neal Butler

  	
   

  
	
  Printed Name: J. Neal Butler

  
	
  Title: President & Chief Operating Officer

  
	
   

  
	
   

  
	
  SELLER

  
	
  Boehringer Ingelheim Vetmedica, Inc.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ David J. Roberts

  	
   

  
	
  Printed Name: David J. Roberts

  
	
  Title: Vice President Finance, Treasurer, and Asst. Secretary

  



 


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