exh10delapa.htm


    
      EXHIBIT
10.1

       

    

    
      

      

    

    


    Asset
Purchase Agreement

    
 

    Between

    
 

    Del
Pharmaceuticals, Inc.,

    
 

    As
Seller,

    
 

    And

    
 

    Church
& Dwight Co., Inc.,

    
 

    As
Purchaser

    
 

    
 

    Dated
As Of March 28, 2008

     

     

    
      

      

    

    


    
      
        
           


        

        
           


          
          

        

        
           


        

        

      

    

    


    TABLE OF
CONTENTS

     

    
      	
              Article
      I

            	
              SALE
      AND PURCHASE OF ASSETS

            	
              1

            
	 
      	
              Section
      1.1

            	
              Purchase
      and Sale

            	 
      	
              1

            
	 
      	
              Section
      1.2

            	
              Transfer
      of Assets

            	 
      	
              1

            
	 
      	
              Section
      1.3

            	
              Assumed
      Liabilities

            	 
      	
              4

            
	 
      	
              Section
      1.4

            	
              Closing

            	 
      	
              5

            
	 
      	
              Section
      1.5

            	
              Transfer
      of Inventory

            	 
      	
              6

            
	 
      	
              Section
      1.6

            	
              Working
      Capital Adjustment

            	 
      	
              6

            
	 
      	
              Section
      1.7

            	
              Assignment
      of Acquired Assets; Consents of Third Parties

            	 
      	
              8

            
	 
      	 
      	 
      
	
              Article
      II

            	
              REPRESENTATIONS
      AND WARRANTIES OF SELLER

            	
              9

            
	 
      	
              Section
      2.1

            	
              Organization

            	 
      	
              9

            
	 
      	
              Section
      2.2

            	
              Authority;
      Execution and Delivery; Enforceability

            	 
      	
              9

            
	 
      	
              Section
      2.3

            	
              Consents
      and Approvals; No Violations

            	 
      	
              10

            
	 
      	
              Section
      2.4

            	
              Financial
      Statements

            	 
      	
              10

            
	 
      	
              Section
      2.5

            	
              Absence
      of Certain Changes

            	 
      	
              11

            
	 
      	
              Section
      2.6

            	
              Title
      of Assets

            	 
      	
              11

            
	 
      	
              Section
      2.7

            	
              Intellectual
      Property

            	 
      	
              11

            
	 
      	
              Section
      2.8

            	
              Contracts

            	 
      	
              12

            
	 
      	
              Section
      2.9

            	
              Compliance
      with Law; Permits

            	 
      	
              12

            
	 
      	
              Section
      2.10

            	
              Litigation

            	 
      	
              12

            
	 
      	
              Section
      2.11

            	
              Brokers
      and Finders

            	 
      	
              13

            
	 
      	
              Section
      2.12

            	
              Inventories

            	 
      	
              13

            
	 
      	
              Section
      2.13

            	
              Sufficiency
      of Assets

            	 
      	
              13

            
	 
      	
              Section
      2.14

            	
              Customers;
      Suppliers

            	 
      	
              13

            
	 
      	
              Section
      2.15

            	
              Taxes

            	 
      	
              13

            
	 
      	 
      	 
      	 
      	 
      
	
              Article
      III

            	
              REPRESENTATIONS
      AND WARRANTIES OF PURCHASER

            	
              14

            
	 
      	
              Section
      3.1

            	
              Organization

            	 
      	
              14

            
	 
      	
              Section
      3.2

            	
              Authority;
      Execution and Delivery; Enforceability

            	 
      	
              14

            
	 
      	
              Section
      3.3

            	
              Consents
      and Approvals; No Violations

            	 
      	
              14

            
	 
      	
              Section
      3.4

            	
              Brokers
      and Finders

            	 
      	
              15

            
	 
      	
              Section
      3.5

            	
              No
      Proceedings

            	 
      	
              15

            
	 
      	
              Section
      3.6

            	
              Availability
      of Funds

            	 
      	
              15

            


    

     

    
      
        
           


        

        
          i

           

            

          

        

        
           


        

      

    

     

    
      	
              Article
      IV

            	
              COVENANTS

            	
              15

            
	 
      	
              Section
      4.1

            	
              Retained
      Acquired Assets; Retained Information

            	 
      	
              15

            
	 
      	
              Section
      4.2

            	
              Confidentiality

            	 
      	
              16

            
	 
      	
              Section
      4.3

            	
              Regulatory
      Approvals

            	 
      	
              17

            
	 
      	
              Section
      4.4

            	
              Transfer
      Taxes

            	 
      	
              17

            
	 
      	
              Section
      4.5

            	
              Purchase
      Price Allocation

            	 
      	
              18

            
	 
      	
              Section
      4.6

            	
              Publicity

            	 
      	
              18

            
	 
      	
              Section
      4.7

            	
              Further
      Assurances

            	 
      	
              18

            
	 
      	
              Section
      4.8

            	
              Use
      of Names

            	 
      	
              18

            
	 
      	
              Section
      4.9

            	
              Bulk
      Transfer Laws

            	 
      	
              19

            
	 
      	
              Section
      4.10

            	
              Conduct
      of the Business

            	 
      	
              19

            
	 
      	
              Section
      4.11

            	
              Access
      and Cooperation

            	 
      	
              20

            
	 
      	
              Section
      4.12

            	
              Refunds
      and Remittances

            	 
      	
              21

            
	 
      	
              Section
      4.13

            	
              Returns

            	 
      	
              21

            
	 
      	
              Section
      4.14

            	
              Consents

            	 
      	
              22

            
	 
      	
              Section
      4.15

            	
              Coupons

            	 
      	
              22

            
	 
      	
              Section
      4.16

            	
              No
      Shop

            	 
      	
              22

            
	 
      	
              Section
      4.17

            	
              Employees

            	 
      	
              23

            
	 
      	
              Section
      4.18

            	
              Non-Competition
      and Non-Solicitation Agreements

            	 
      	
              23

            
	 
      	
              Section
      4.19

            	
              Certain
      Financial Information

            	 
      	
              25

            
	 
      	
              Section
      4.20

            	
              Trademarks

            	 
      	
              25

            
	 
      	
              Section
      4.21

            	
              Promotion
      Liabilities

            	 
      	
              25

            
	 
      	
              Section
      4.22

            	
              Inventory

            	 
      	
              26

            
	 
      	
              Section
      4.23

            	
              Ancillary
      Agreements

            	 
      	
              26

            
	 
      	 
      	 
      	 
      	 
      
	
              Article
      V

            	
              CLOSING
      CONDITIONS

            	
              26

            
	 
      	
              Section
      5.1

            	
              Conditions
      to Obligations of the Parties

            	 
      	
              26

            
	 
      	
              Section
      5.2

            	
              Conditions
      to the Obligations of Purchaser

            	 
      	
              26

            
	 
      	
              Section
      5.3

            	
              Conditions
      to the Obligations of the Seller

            	 
      	
              27

            
	 
      	 
      	 
      	 
      	 
      


    

     

    
      
        
           


        

        
          ii

          
          

        

        
           


            
  

        

      

    

     

    
      	
              Article
      VI

            	
              SURVIVAL;
      INDEMNIFICATION

            	
              27

            
	 
      	
              Section
      6.1

            	
              Survival

            	 
      	
              27

            
	 
      	
              Section
      6.2

            	
              Indemnification
      by the Seller

            	 
      	
              27

            
	 
      	
              Section
      6.3

            	
              Indemnification
      by Purchaser

            	 
      	
              29

            
	 
      	
              Section
      6.4

            	
              Calculation
      of Losses

            	 
      	
              29

            
	 
      	
              Section
      6.5

            	
              Termination
      of Indemnification

            	 
      	
              30

            
	 
      	
              Section
      6.6

            	
              Procedures

            	 
      	
              30

            
	 
      	
              Section
      6.7

            	
              Sole
      Remedy; No Additional Representations

            	 
      	
              31

            
	 
      	
              Section
      6.8

            	
              Limitations
      on Liability

            	 
      	
              32

            
	 
      	
              Section
      6.9

            	
              Guarantee

            	 
      	
              33

            
	 
      	 
      	 
      	 
      	 
      
	
              Article
      VII

            	
              TERMINATION

            	
              33

            
	 
      	
              Section
      7.1

            	
              Termination

            	 
      	
              33

            
	 
      	
              Section
      7.2

            	
              Procedure
      and Effect of Termination

            	 
      	
              34

            
	 
      	 
      	 
      	 
      	 
      
	
              Article
      VIII

            	
              MISCELLANEOUS

            	
              34

            
	 
      	
              Section
      8.1

            	
              Notices

            	 
      	
              34

            
	 
      	
              Section
      8.2

            	
              Definitions;
      Interpretation

            	 
      	
              35

            
	 
      	
              Section
      8.3

            	
              Descriptive
      Headings

            	 
      	
              39

            
	 
      	
              Section
      8.4

            	
              Counterparts

            	 
      	
              39

            
	 
      	
              Section
      8.5

            	
              Entire
      Agreement

            	 
      	
              39

            
	 
      	
              Section
      8.6

            	
              Affiliates

            	 
      	
              39

            
	 
      	
              Section
      8.7

            	
              Fees
      and Expenses

            	 
      	
              39

            
	 
      	
              Section
      8.8

            	
              Governing
      Law

            	 
      	
              40

            
	 
      	
              Section
      8.9

            	
              Assignment

            	 
      	
              40

            
	 
      	
              Section
      8.10

            	
              Successors
      and Assigns

            	 
      	
              40

            
	 
      	
              Section
      8.11

            	
              Severability

            	 
      	
              40

            
	 
      	
              Section
      8.12

            	
              Amendments
      and Waivers

            	 
      	
              40

            
	 
      	
              Section
      8.13

            	
              Specific
      Performance; Jurisdiction

            	 
      	
              40

            
	 
      	
              Section
      8.14

            	
              Waiver
      of Jury Trial

            	 
      	
              41

            
	 
      	
              Section
      8.15

            	
              Representations

            	 
      	
              41

            


    

    
EXHIBITS

    
 

    Exhibit
A                      Assumption
Agreement

    Exhibit
B                      Assignment
of Trademarks

    Exhibit
C                      Assignment
of Patent

    Exhibit
D                      Bill
of Sale and Assignment Agreement

    Exhibit
E                      Manufacturing
Agreement Term Sheet

    Exhibit
F                      Transitional
Services Agreement

    


    
      
        
           


        

        
          iii

          
          

        

        
           


            
  

        

      

    

     

    
      	 
      	
              Index of Defined
      Terms

            	 
      
	 
      	
              1060
      Forms

            	
              19

            	 
      	
              Inventory
      Value

            	
              7

            	 
      
	 
      	
              Accounts
      Payable

            	
              5

            	 
      	
              Knowledge
      of the Sellers

            	
              39

            	 
      
	 
      	
              Accounts
      Receivable

            	
              3

            	 
      	
              Lien

            	
              39

            	 
      
	 
      	
              Acquired
      Assets

            	
              1

            	 
      	
              Losses

            	
              29

            	 
      
	 
      	
              Acquisition

            	
              1

            	 
      	
              Manufacturing
      Agreement

            	
              39

            	 
      
	 
      	
              Affiliate

            	
              37

            	 
      	
              Material
      Adverse Effect

            	
              39

            	 
      
	 
      	
              Affiliate
      Sellers

            	
              1

            	 
      	
              Maximum

            	
              30

            	 
      
	 
      	
              Affiliated
      Group

            	
              37

            	 
      	
              Names

            	
              20

            	 
      
	 
      	
              Apportioned
      Obligations

            	
              18

            	 
      	
              Net
      Accounts Receivable

            	
              7

            	 
      
	 
      	
              Assignment
      of Patent

            	
              37

            	 
      	
              Non-Compete
      Period

            	
              24

            	 
      
	 
      	
              Assignment
      of Trademarks

            	
              37

            	 
      	
              Other
      Intellectual Property

            	
              39

            	 
      
	 
      	
              Assumed
      Contracts

            	
              2

            	 
      	
              Patent

            	
              39

            	 
      
	 
      	
              Assumed
      Liabilities

            	
              4

            	 
      	
              Permits

            	
              13

            	 
      
	 
      	
              Assumption
      Agreement

            	
              38

            	 
      	
              Permitted
      Liens

            	
              39

            	 
      
	 
      	
              Basket

            	
              29

            	 
      	
              Person

            	
              40

            	 
      
	 
      	
              Bill
      of Sale and Assignment Agreement

            	
              38

            	 
      	
              Post-Closing
      Tax Period

            	
              18

            	 
      
	 
      	
              Brand
      Products

            	
              1

            	 
      	
              Pre-Closing
      Tax Period

            	
              14

            	 
      
	 
      	
              Business

            	
              38

            	 
      	
              Private
      Label Products

            	
              1

            	 
      
	 
      	
              Canadian
      Transfer Documents

            	
              38

            	 
      	
              Proceeding

            	
              13

            	 
      
	 
      	
              Closing

            	
              6

            	 
      	
              Products

            	
              1

            	 
      
	 
      	
              Closing
      Date

            	
              38

            	 
      	
              Promotion
      Liabilities

            	
              4

            	 
      
	 
      	
              Closing
      Working Capital

            	
              7

            	 
      	
              Purchase
      Price

            	
              1

            	 
      
	 
      	
              Code

            	
              38

            	 
      	
              Purchaser

            	
              1

            	 
      
	 
      	
              Competing
      Business

            	
              24

            	 
      	
              Purchaser
      Indemnitees

            	
              29

            	 
      
	 
      	
              Confidentiality
      Agreement

            	
              17

            	 
      	
              Related
      Instruments

            	
              40

            	 
      
	 
      	
              Coupon
      Liabilities

            	
              4

            	 
      	
              Related
      Transfer Instruments

            	
              40

            	 
      
	 
      	
              Del
      Accounting Consistently Applied

            	
              7

            	 
      	
              Restricted
      Affiliates

            	
              24

            	 
      
	 
      	
              Dispute
      Procedures

            	
              23

            	 
      	
              Retained
      Information

            	
              40

            	 
      
	 
      	
              Estimated
      Closing Working Capital

            	
              7

            	 
      	
              Return
      Liabilities

            	
              4

            	 
      
	 
      	
              Estimated
      Working Capital Adjustment

            	
              7

            	 
      	
              Seller

            	
              1

            	 
      
	 
      	
              Excluded
      Assets

            	
              3

            	 
      	
              Seller
      Indemnitees

            	
              30

            	 
      
	 
      	
              Excluded
      Liability

            	
              5

            	 
      	
              Sellers

            	
              1

            	 
      
	 
      	
              FDA

            	
              2

            	 
      	
              Selling
      Margin

            	
              11

            	 
      
	 
      	
              Financial
      Information

            	
              11

            	 
      	
              Target

            	
              7

            	 
      
	 
      	
              Formulae

            	
              38

            	 
      	
              Tax

            	
              40

            	 
      
	 
      	
              GAAP

            	
              38

            	 
      	
              Tax
      Return

            	
              40

            	 
      
	 
      	
              Governmental
      Entity

            	
              38

            	 
      	
              Taxes

            	
              40

            	 
      
	 
      	
              HSR
      Act

            	
              18

            	 
      	
              Third
      Party Claim

            	
              31

            	 
      
	 
      	
              indemnified
      party

            	
              31

            	 
      	
              Trademarks

            	
              40

            	 
      
	 
      	
              indemnifying
      party

            	
              31

            	 
      	
              Transfer
      Taxes

            	
              18

            	 
      
	 
      	
              Intellectual
      Property

            	
              38

            	 
      	
              Transitional
      Services Agreement

            	
              40

            	 
      
	 
      	
              Inventory

            	
              38

            	 
      	
              United
      States

            	
              40

            	 
      


    

    
 

    


    
      
        
           


        

        
          iv

          
          

        

        
           


            
  

        

      

    

    


    
      ASSET
PURCHASE AGREEMENT dated as of March 28, 2008, between Del Pharmaceuticals,
Inc., a Delaware corporation (the “Seller”), and Church
& Dwight Co., Inc., a Delaware corporation (“Purchaser”).

       

      INTRODUCTION

    

     

    The
Seller, directly or indirectly through its Affiliates engaged in the Business,
each of which is listed on Schedule 1-A (the
“Affiliate
Sellers”, and together with the Seller, the “Sellers”),
manufactures, distributes, markets and sells over-the-counter pharmaceutical
products under the brand names listed on Schedule 1-B (the
“Brand
Products”) and manufactures and distributes the private label
over-the-counter pharmaceutical products set forth on Schedule 1-C (the
“Private Label
Products”, and together with the Brand Products, the “Products”).

     

    The
Sellers desire to sell to Purchaser, and Purchaser desires to purchase from the
Sellers, the Acquired Assets upon the terms and subject to the conditions set
forth in this Agreement.  In addition, Purchaser has agreed to assume
from the Sellers the Assumed Liabilities upon the terms and subject to the
conditions set forth in this Agreement.

     

    Certain
capitalized terms used in this Agreement are defined in Section
8.2(a).  The Index of Defined Terms identifies the pages of this
Agreement on which capitalized terms used in this Agreement are
defined.

     

    Accordingly,
the parties agree as follows:

     

    ARTICLE
I

     

    SALE AND
PURCHASE OF ASSETS

     

    Section
1.1 Purchase and
Sale.  On the terms and subject to the conditions of this
Agreement, at the Closing, the Seller shall, and shall cause the Affiliate
Sellers to, sell, assign, transfer, convey and deliver to Purchaser, and
Purchaser shall purchase from the Sellers, all the right, title and interest of
the Sellers in, to and under the Acquired Assets, for (a) U.S. $380 million,
payable in cash as set forth in Section 1.4 and subject to adjustment as set
forth in Section 1.6 (the “Purchase Price”), and
(b) the assumption by Purchaser of the Assumed Liabilities.  The
purchase and sale of the Acquired Assets and the assumption of the Assumed
Liabilities are referred to in this Agreement collectively as the “Acquisition.”

     

    Section
1.2 Transfer of
Assets.  (a)  The term “Acquired Assets”
means the right, title and interest of the Sellers in, to and under the assets,
wherever located, whether now owned or acquired on or after the date hereof,
that are set forth below as the same shall exist on the Closing
Date:

     

    (i) the
Intellectual Property, including the goodwill related
thereto;

     

    (ii) any and
all regulatory files (including correspondence with regulatory authorities and
memoranda or other documents prepared by the Seller for internal use by the
Seller) and Permits relating exclusively to the Business or the


     

    
      
        
        

      

      
        
        

        
        

      

      
        
          
 

      

    

            

            Acquired Assets from
the United States Food and Drug Administration (the “FDA”) and any other
applicable regulatory authority, including the regulatory files 

            and Permits set forth
on Schedule
1.2(a)(ii);

     

    (iii) all
marketing materials, research data, customer and sales information, product
literature, labeling, cartons, inserts, advertising and other promotional
materials and data, advertising and display materials and all training materials
in whatever medium (e.g., audio, visual or print) exclusively related to the
Business or the Acquired Assets;

     

    (iv) all
books, records, other documents and relevant reports (whether in draft or final
form) and information (including consumer, customer, manufacturer, supplier or
vendor lists and files; trademark and copyright files; distribution lists;
mailing lists; price lists; sales materials; operating, production and other
manuals; plans; files; specifications; process drawings; computer files, data
and information; marketing/research reports; consumer studies; new product
concept testing data; clinical data; safety testing data and analyses; customer
service call logs and files; manufacturing and quality control records and
procedures; research and development files (including original lab notebooks)),
in each case exclusively used in, related to or prepared for use in or with
respect to the Business or the Acquired Assets;

     

    (v) the
contracts, agreements, licenses, commitments and orders for the purchase and
sale of goods and equipment (including Inventory) and services (including
advertising, distribution, promotion and other incidental services) and other
legally binding arrangements that are set forth on Schedule 1.2(a)(v),
including any amendment thereof executed after the date hereof but before the
Closing Date in compliance with the terms of this Agreement (collectively, the
“Assumed
Contracts”);

     

    (vi) the
manufacturing and packaging equipment set forth on Schedule 1.2(a)(vi)
and any warranty rights and claims applicable to such
equipment;

     

    (vii) all
Inventories; provided,
that Purchaser may request that the Seller retain any raw materials, packaging
materials or finished goods constituting Inventory purchased or manufactured
before January 1, 2007;

     

    (viii) all
accounts receivable due and owing by any third party to the Sellers on the
Closing Date arising or held in connection with the manufacture, distribution,
marketing and sale of any Products (including for the avoidance of doubt,
accounts receivable generated in Puerto Rico) (“Accounts
Receivable”);

     

    (ix) all UPC
manufacturer ID codes and EAN codes and other manufacturer codes used in the
Business;

     

    (x) toll-free
phone numbers (including without limitation customer service phone numbers),
websites and website URLs used exclusively in the Business (other than any URL
that includes a Name);

     

    
      
        
        

      

      
        2

        
        

      

      
        
          
 

      

    

     

    (xi) all
existing or under-development product formulations and product specifications
relating to the manufacture of the Products and similar products and all
Intellectual Property therein or related thereto;

     

    (xii) all
goodwill relating to the Products and the Business;

     

    (xiii) all
prepayments, trade credits, prepaid expenses and third-party cash deposits
relating to the Business;

     

    (xiv) any open
sales orders from customers of the Business in the ordinary course;
and

     

    (xv) all
present and future rights, claims, credits, causes of action, rights of recovery
and rights of setoff against third parties to the extent relating to the
Acquired Assets but not to the extent relating to any Excluded
Liability.

     

    (b) Notwithstanding
anything to the contrary in Section
1.2(a), Purchaser
acknowledges and agrees that it is not acquiring any right, title or interest
in, to or under any of the following assets (the “Excluded
Assets”):

     

    (i) any real
estate owned or leased by the Sellers;

     

    (ii) any cash
and cash equivalents of the Sellers;

     

    (iii) the
Names, except as expressly provided in Section
4.8;

     

    (iv) any
assets, properties or rights of the Sellers other than the Acquired
Assets;

     

    (v) except as
set forth on Schedule
1.2(a)(vi), any manufacturing and packaging equipment assets used in the
manufacture and packaging of the Products and any other products of the Sellers,
or any warranty rights applicable to such equipment;

     

    (vi) any
refund or credit of Taxes payable to the Sellers or any of their Affiliates (to
the extent that the Taxes being refunded were not paid by
Purchaser);

     

    (vii) any
rights, claims, credits, causes of action, rights of recovery and rights of
setoff against third parties of the Sellers to the extent relating to any
Excluded Asset or any Excluded Liability;

     

    (viii) any
rights of the Sellers under this Agreement or the Related Instruments;
and

     

    (ix) the
minute books and corporate records of the Sellers.

     

    
      
        
        

      

      
        3

        
        

      

      
        
          
 

      

    

     

    (c) Purchaser
shall acquire the Acquired Assets free and clear of all liabilities, obligations
and commitments of the Sellers other than the Assumed Liabilities, and free and
clear of all Liens, other than Permitted Liens.

     

    Section
1.3 Assumed
Liabilities.  (a)  Upon the terms and subject to the
conditions of this Agreement, Purchaser shall assume, effective as of the
Closing Date, and from and after the Closing Date Purchaser shall pay, perform
and discharge when due, the following liabilities, obligations and commitments
of the Sellers (the “Assumed
Liabilities”):

     

    (i) all
liabilities arising out of or relating to any product liability, breach of
warranty or similar claim for injury or other harm to person or property, which
resulted from the use or misuse of Products or otherwise related to the Products
(including all Proceedings relating to any such liabilities) to the extent such
Products were manufactured by or for Purchaser on or after the Closing Date
(except to the extent the Seller or its Affiliates is responsible for such
liabilities under the terms of the Manufacturing Agreement);

     

    (ii) all
liabilities, obligations and commitments arising out of or relating to the
return of or warranty claims relating to any Products returned for refund,
replacement or credit (the “Return
Liabilities”);

     

    (iii) all
liabilities, obligations and commitments arising out of or relating to any
coupons or rebates related to any Products (the “Coupon
Liabilities”);

     

    (iv) all
promotional and coop advertising liabilities, obligations and commitments
arising out of or relating to, directly or indirectly, the marketing,
distribution or sale of the Products (the “Promotion
Liabilities”);

     

    (v) any
liabilities, obligations or commitments arising out of or relating to any
Assumed Contract, except to the extent such liabilities, obligations or
commitments arise from the Sellers’ breach or default (including for this
purpose any event which, with notice or lapse of time or both, would constitute
such a breach or default) of any provision of any Assumed Contract prior to the
Closing;

     

    (vi) any
liabilities, obligations or commitments arising out of or relating to any
Proceeding relating to the Acquired Assets or the Products not otherwise subject
to indemnification in favor of any Purchaser Indemnitee pursuant to Section
6.2(a)(i) hereof;

     

    (vii) all trade
accounts payable due and owing by the Sellers on the Closing Date to any
unrelated third party with respect to the manufacture, distribution, marketing
and sale of any Products (“Accounts
Payable”);

     

    (viii) any open
purchase orders relating exclusively to the Acquired Assets and not related to
the manufacture of the Products;

     

    
      
        
        

      

      
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    (ix) any
liabilities, obligations and commitments for the Orajel monograph study relating
exclusively to the Business to the extent of the accruals or reserves for such
items in Closing Working Capital; and

     

    (x) all other
liabilities, obligations and commitments of whatever kind and nature, primary or
secondary, direct or indirect, absolute or contingent, known or unknown, whether
or not accrued, arising out of or relating to, directly or indirectly, the
Acquired Assets or the Products or the ownership, sale or lease of any of the
Acquired Assets but only to the extent such liabilities, obligations or
commitments are attributable to any action, omission, performance,
non-performance, event, condition or circumstance on or after the Closing Date
and are not otherwise subject to indemnification under Section
6.2(a)(i)(A) in favor of any
Purchaser Indemnitee pursuant to Article VI hereof.

     

    (b) Notwithstanding
any other provision of this Agreement or any other writing to the contrary, at
the Closing, Purchaser shall assume and shall pay, perform and discharge when
due only the Assumed Liabilities and shall not assume, nor have any obligation
to pay, perform or discharge any Excluded Liability.  All Excluded
Liabilities shall be retained by and remain liabilities, obligations and
commitments of the Sellers.  The term “Excluded Liability”
shall mean all liabilities, obligations and commitments of the Sellers, whether
or not accrued, that are not Assumed Liabilities, including without
limitation:

     

    (i) any
liability or obligation of any Seller, or any member of any Affiliated Group of
which any Seller is a member, for Taxes; provided, that Transfer Taxes
incurred in connection with the transactions contemplated by this Agreement and
Apportioned Obligations shall be paid in the manner set forth in Section
4.4;

     

    (ii) any
liability, obligation or commitment of the Sellers arising out of or relating to
any Excluded Asset;

     

    (iii) any
liability, obligation or commitment arising out of or relating to employment,
compensation or benefits (including severance) for the present or past employees
of the Sellers for all employment by the Sellers relating to the
Business;

     

    (iv) any
liability, obligation or commitment of the Sellers under this Agreement or any
Related Instrument; and

     

    (v) except to
the extent specifically provided in Section
1.3(a), all other liabilities, obligations and commitments of
Sellers, regardless of when they are asserted, billed or imposed or when they
become due or payable, of whatever kind and nature, primary or secondary, direct
or indirect, absolute or contingent, known or unknown, whether or not accrued,
arising out of or relating to, directly or indirectly, the Business or the
Acquired Assets.

     

    Section
1.4 Closing.  The
closing (the “Closing”) of the
Acquisition shall take place at the offices of Covington & Burling LLP, 620
Eighth Avenue, New York, NY, on the later of July 1, 2008 and the fifth business
day following the satisfaction or waiver of the conditions set forth in Article
V (except those
conditions that by their terms are not capable
of   

     

    
      
        
        

      

      
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    satisfaction
prior to the Closing Date), or at such other time or place as the Seller and
Purchaser may agree.  At the Closing:

    (a) The
Sellers shall deliver to Purchaser the following:  (i) a duly executed
Assumption Agreement; (ii) a duly executed Assignment of Trademarks; (iii) a
duly executed Assignment of Patent; (iv) a duly executed Bill of Sale and
Assignment Agreement; (v) a duly executed Manufacturing Agreement; (vi) a duly
executed Transitional Services Agreement; (vii) duly executed Canadian Transfer
Documents; (viii) third party consents as required by Schedule 1.4(a); (ix)
(A) duly executed certificates prepared in accordance with Treasury Regulations
Section 1.1445-2 and dated as of the Closing Date certifying that each such
Seller that is incorporated in the United States is not a “foreign person”
within the meaning of Section 1445 of the Code and (B) duly executed
certificates prepared in accordance with Treasury Regulations Section 1.1445-2
and dated as of the Closing Date certifying that each such Seller that is not
incorporated in the United States is not transferring a “U.S. real property
interest” as defined in Section 897(c) of the Code; and (x) all other documents,
instruments or certificates required to be delivered by the Sellers at the
Closing pursuant to this Agreement.

     

    (b) Purchaser
shall deliver to the Sellers the following: (i) cash in the aggregate amount of
$380 million, plus or minus the amount of the Estimated Working Capital
Adjustment, by electronic funds transfer of immediately available funds in the
amounts and to the account as is designated by the Seller no later than five
business days before the Closing Date; (ii) a duly executed Assumption
Agreement; (iii) a duly executed Assignment of Trademarks; (iv) a duly executed
Assignment of Patent; (v) a duly executed Bill of Sale and Assignment Agreement;
(vi) a duly executed Manufacturing Agreement; (vii) a duly executed Transitional
Services Agreement; (vii) duly executed Canadian Transfer Documents; and (ix)
all other documents, instruments or certificates required to be delivered by
Purchaser at the Closing pursuant to this Agreement.

     

    Section
1.5 Transfer of
Inventory.  Until the Closing Date, any loss of or damage to
the Inventory from fire, casualty or any other occurrence shall be the sole
responsibility of the Sellers.  On the Closing Date, title to the
Inventory shall be transferred to Purchaser and Purchaser shall thereafter bear
all risk of loss associated with the Inventory and be solely responsible for
procuring adequate insurance to protect the Inventory against any such
loss.  During the 60 day period following the Closing Date, the
Sellers shall ship the Inventory constituting finished goods ready for final
sale to Purchaser in such quantities and on such dates as so requested by
Purchaser, at Purchaser’s sole cost, expense and risk, to such location or
locations as so requested by Purchaser.

     

    Section
1.6 Working Capital
Adjustment.  (a)  No later than five business days
prior to the Closing Date, the Seller shall deliver to Purchaser its good faith
estimate of Closing Working Capital as of the opening of business on the Closing
Date (“Estimated
Closing Working Capital”) together with a statement of the calculation of
the Estimated Closing Working Capital.  If Purchaser disagrees with
the Seller’s calculation of the Estimated Closing Working Capital, Purchaser
shall deliver to the Seller its own good faith estimate of Closing Working
Capital as of the opening of business on the Closing Date, together with a
statement of the calculation of the Estimated Closing Working
Capital.  If Purchaser delivers its calculation of the Estimated
Closing Working Capital to the Seller, Purchaser and the Seller shall negotiate
in good faith to 

     

    
      
        
        

      

      
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    agree upon the calculation of the Estimated Closing
Working Capital.  If Purchaser and the Seller cannot agree on such
calculation, the Closing shall nonetheless take place without delay using the
Target as the Estimated Closing Working Capital.  If the Estimated
Closing Working Capital exceeds $12.312 million ( the “Target”), which
amount has been calculated as set forth in Schedule 1.6, then
the Purchase Price shall be increased by the amount of such
excess.  If the Estimated Closing Working Capital is less than the
Target, then the Purchase Price shall be decreased by the amount of such
deficit.  The amount by which the Purchase Price is increased or
decreased, as applicable, pursuant to the provisions of this Section
1.6(a) is referred to as the “Estimated Working Capital
Adjustment”.  

     

    (b) As
promptly as practicable and in no event later than 90 days after the Closing,
Purchaser shall prepare and deliver to the Seller a statement of Closing Working
Capital prepared in accordance with Del Accounting Consistently
Applied.  “Closing Working
Capital” means, as of the opening of business on the Closing Date, the
excess of (A) Net Accounts Receivable plus Inventory Value plus prepaid expenses
and trade credits, each to the extent constituting Acquired Assets and
calculated in accordance with Del Accounting Consistently Applied, over (B)
Accounts Payable plus the accruals for Promotion Liabilities, Coupon Liabilities
and the Orajel monograph study, each calculated in accordance with Del
Accounting Consistently Applied; provided, that Closing
Working Capital shall not include any Tax asset or liability.  “Inventory Value”
shall equal the sum of (i) the product of the amount of Inventory constituting
final goods ready for sale times the full cost (including labor, materials and
overhead as specified in Del standard costs, plus the cost of freight-in of
materials and variances) of such Products plus (ii) the product of the amount of
each other form of Inventory times the full cost (including labor, materials and
overhead as specified in Del standard costs, plus the cost of freight-in of
materials and variances) of such Inventory, less Inventory
reserve.  “Net Accounts Receivable”
shall equal the excess of (i) Accounts Receivable (it being understood that any
accounts receivable generated in Puerto Rico are not included for purposes of
calculating the Target or Closing Working Capital) over (ii) the sum of the
accruals and reserves for Return Liabilities, markdowns, chargebacks,
coop/promotions, discounts and allowances and doubtful
accounts.  “Del Accounting Consistently
Applied” means Del Laboratories, Inc. accounting principles, policies,
standards and procedures, which are in accordance with GAAP, consistently
applied; provided,
however, that to the extent Del Accounting Consistently Applied is not in
accordance with GAAP, the independent accounting firm engaged hereunder shall
use GAAP (it being understood that if the use of GAAP instead of Del Accounting
Consistently Applied results in a change to any amount included in the
calculation of Closing Working Capital, a conforming change shall also be made
to such amount to the extent included in the calculation of the Target); provided, further, however,
that in no event shall any respective reserves or accruals for the Business be
reduced from the amounts included in the Target except to reflect (i) cash
payments made by the Sellers subsequent to such date, (ii) changes in
circumstances or events occurring between such date and the Closing Date and
(iii) bona fide commercial transactions; provided, further, further,
however, the amount of trade credits included in Closing Working Capital
shall not exceed the net book value of Inventory bartered in exchange therefore
and included in the Target.

     

    (c) The
Seller shall have 30 days to object to the calculation of Closing Working
Capital set forth in the statement.  The notice of disagreement must
specify in reasonable detail the items contained in the statement that the
Seller disputes, the amount of each 

     

    
      
        
        

      

      
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    item in
dispute, the Seller’s calculation of the amount of each item disputed and the
basis for any such disputes (it being understood that the only basis for such a
dispute is that the item was not calculated in accordance with this Agreement or
such calculation was mathematically inaccurate).  The Seller shall be
deemed to have agreed to any items in the calculation of Closing Working Capital
set forth in Purchaser’s statement to which it has not objected.  If
the Seller shall not object to any items in Purchaser’s calculation of the
Closing Working Capital, the calculation of Closing Working Capital set forth in
Purchaser’s statement shall be final.  If the Seller shall so object,
Purchaser and the Seller shall use their reasonable efforts to reach agreement
as to the disputed items.  If within 15 days following the Seller
advising Purchaser of its objections, Purchaser and the Seller shall not have
resolved all such disputed items, they shall promptly engage an independent
accounting firm to be mutually selected by them (or Ernst & Young if such
parties cannot agree on an independent accounting firm) to resolve any remaining
disputed items as soon as practicable.  The scope of the disputes to
be resolved by the accounting firm will be limited to whether the items in
dispute that were included in the notice of disagreement delivered in accordance
with this Section 1.6(c) were prepared in accordance with this Agreement, and
the accounting firm shall determine, on such basis, whether and to what extent
Purchaser’s and Seller’s respective calculations of Closing Working Capital
require adjustment.  The accounting firm’s decision will be based
solely on submissions by the Seller and Purchaser and their respective
representatives and not by independent review.  In making its
determination of Closing Working Capital, the accounting firm shall be
instructed to determine only those disputed items that were included in the
notice of disagreement delivered in accordance with this Section 1.6(c) and
which remain unresolved and may not assign a value greater than the greatest
value for such item claimed by either party or smaller than the smallest value
for such item claimed by either party.  The fees, costs and expenses
incurred in connection therewith shall be shared in equal amounts by Purchaser
and the Seller.  The determination of the accounting firm shall be
final and binding upon each of the parties.

     

    (d) Following
a final determination of Closing Working Capital, such final amount shall be
compared to the Estimated Closing Working Capital determined pursuant to Section
1.6(a) above.  In the event that the final Closing Working
Capital exceeds the Estimated Closing Working Capital, Purchaser shall promptly
remit to the Seller an amount equal to such difference.  In the event
that the Estimated Closing Working Capital exceeds the final Closing Working
Capital, the Seller shall promptly remit to Purchaser an amount equal to such
difference.

     

    (e) Each of
the Sellers and Purchaser shall cooperate with and make available to the other
parties and their respective representatives all information, records, data and
working papers, and shall permit reasonable access to its facilities and
personnel, as may be reasonably requested in connection with the preparation and
review of the Closing Working Capital statement and the resolution of any
disputes thereunder.  Such cooperation shall include permitting
Purchaser after the Closing Date to promptly take a physical inventory of all
Inventory held by the Sellers.  Such physical inventory inspection
shall be conducted at Purchaser’s sole cost and expense, during normal business
hours and in a manner that shall not interfere with the Sellers’ conduct of
their business.

     

    Section
1.7 Assignment of Acquired
Assets; Consents of Third Parties.  Notwithstanding anything in
this Agreement to the contrary, (i) this Agreement shall not


     

    
      
        
        

      

      
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      item in
dispute, the Seller’s calculation of the amount of each item disputed and the
basis for any such disputes (it being understood that the only basis for such a
dispute is that the item was not calculated in accordance with this Agreement or
such calculation was mathematically inaccurate).  The Seller shall be
deemed to have agreed to any items in the calculation of Closing Working Capital
set forth in Purchaser’s statement to which it has not objected.  If
the Seller shall not object to any items in Purchaser’s calculation of the
Closing Working Capital, the calculation of Closing Working Capital set forth in
Purchaser’s statement shall be final.  If the Seller shall so object,
Purchaser and the Seller shall use their reasonable efforts to reach agreement
as to the disputed items.  If within 15 days following the Seller
advising Purchaser of its objections, Purchaser and the Seller shall not have
resolved all such disputed items, they shall promptly engage an independent
accounting firm to be mutually selected by them (or Ernst & Young if such
parties cannot agree on an independent accounting firm) to resolve any remaining
disputed items as soon as practicable.  The scope of the disputes to
be resolved by the accounting firm will be limited to whether the items in
dispute that were included in the notice of disagreement delivered in accordance
with this Section 1.6(c) were prepared in accordance with this Agreement, and
the accounting firm shall determine, on such basis, whether and to what extent
Purchaser’s and Seller’s respective calculations of Closing Working Capital
require adjustment.  The accounting firm’s decision will be based
solely on submissions by the Seller and Purchaser and their respective
representatives and not by independent review.  In making its
determination of Closing Working Capital, the accounting firm shall be
instructed to determine only those disputed items that were included in the
notice of disagreement delivered in accordance with this Section 1.6(c) and
which remain unresolved and may not assign a value greater than the greatest
value for such item claimed by either party or smaller than the smallest value
for such item claimed by either party.  The fees, costs and expenses
incurred in connection therewith shall be shared in equal amounts by Purchaser
and the Seller.  The determination of the accounting firm shall be
final and binding upon each of the parties.

       

    

    ARTICLE
II 

     

    REPRESENTATIONS
AND WARRANTIES OF SELLER

     

    The
Seller hereby represents and warrants to Purchaser as follows:

     

    Section
2.1 Organization.  Each
of the Sellers is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization.  Each
of the Sellers has all requisite corporate power and authority to own, lease and
operate the Acquired Assets and to carry on the Business in all material
respects as it is presently conducted.

     

    Section
2.2 Authority; Execution and
Delivery; Enforceability.  The Seller has the requisite
corporate power and authority to execute and deliver this Agreement and to
perform all of its obligations hereunder, and each of the Sellers has the
requisite corporate power and authority to execute and deliver each Related
Instrument to which it is a party and to perform all of its obligations
thereunder.  The execution and delivery of this Agreement and the
Related Instruments and the performance by the Sellers of their respective
obligations hereunder and thereunder have been (or will be before the Closing in
the case of the Related Instruments) authorized by all requisite corporate
action on their respective parts.  This Agreement has been validly
executed and delivered by the Seller and, assuming that this Agreement has been
duly authorized, executed and delivered by Purchaser, constitutes, and each
Related Instrument that is to be executed and delivered by the Sellers will
constitute when executed and delivered by the Sellers (assuming that such
Related Instrument has been duly authorized, executed and delivered by Purchaser
or an Affiliate of Purchaser, to the extent a party thereto), a valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, subject to 

     

    
      
        
        

      

      
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      bankruptcy,
insolvency or similar laws of general application relating to creditors rights
and equitable principles of general applicability (whether considered at law or
equity).

       

    

    Section
2.3 Consents and Approvals; No
Violations.  (a)  Neither the execution and delivery
of this Agreement nor any Related Instrument by the Sellers, nor the performance
by the Sellers of their obligations hereunder or thereunder nor the consummation
of the transactions contemplated hereby or thereby will (i) violate the
certificate of incorporation, by-laws or other organizational document of the
Sellers, (ii) except as set forth on Schedule 2.3(a),
conflict with or result in a violation or breach of any term, condition or
provision of, result in or give rise to any right of payment, rescission,
renegotiation, termination, cancellation or acceleration with respect to, or
constitute a default under, any contract, agreement or instrument to which any
of the Sellers is a party or by which any of the Sellers or the Acquired Assets
are bound, or result in the creation or imposition of any Lien upon any Acquired
Assets or (iii) violate or conflict with any law, rule, regulation, judgment,
order or decree of any Governmental Entity applicable to the Sellers, the
Business or the Acquired Assets, except in the case of clause (ii) or (iii) for
violations, breaches, rights or defaults that, individually or in the aggregate,
would not have a Material Adverse Effect or a material adverse effect on the
Sellers’ ability to consummate the transactions contemplated hereby or
materially delay the consummation of the transactions contemplated
hereby.

     

    (b) Except as
set forth on Schedule
2.3(b), no filing with, and no authorization, consent or approval of, any
Governmental Entity is necessary for the consummation by the Sellers of the
transactions contemplated by this Agreement except for those filings,
authorizations, consents and approvals the failure of which to be made or
obtained, individually or in the aggregate, would not have a Material Adverse
Effect or a material adverse effect on the Sellers’ ability to consummate the
transactions contemplated hereby or materially delay the consummation of the
transactions contemplated hereby.

     

    Section
2.4 Financial
Statements.  

     

    (a) Schedule 2.4(a) sets
forth the unaudited statement of the Selling Margin for the Products and the
unaudited statement of net assets of the Business as of and for the year ended
December 31, 2007 (collectively, the “Financial
Information”).  The Financial Information has been derived from
the Sellers’ books and records in accordance with the Sellers’ accounting
policies applied on a consistent basis, the principles of which are in
accordance with GAAP consistently applied.  It is understood that the
Financial Information is internally prepared, does not contain footnotes, and
may not necessarily reflect what the allocated cost of overhead, freight,
distribution center and products liability insurance expenses included in sales
margins for the Products of the Business would have been had the Business been a
standalone entity during the period indicated.  “Selling Margin” shall
mean gross sales less (i) returns, promotion allowances, coupons and other
discounts and allowances, (ii) costs of goods sold, (iii) commissions, freight
and net royalty expenses, (iv) displays and coop and national advertising
expenses, (v) cost of promotional material, product and package design, samples,
market research, product liability insurance and distribution expenses, and (vi)
cost of marketing group and division expenses.

     

    
      
        
        

      

      
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    (b) As of the
date hereof, the Business has approximately $600,000 in trade
credits.  There are no liabilities or obligations, contingent or
otherwise, associated with any of the trade credits constituting Acquired
Assets.

     

    Section
2.5 Absence of Certain
Changes.  Except as set forth on Schedule 2.5, Since
January 1, 2008 and through the date hereof, there has not been any event,
occurrence or development which has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.  Since
January 1, 2008 and through the date hereof, the Sellers (i) have caused the
Business to be conducted in the ordinary course of business consistent with past
practices and (ii) have not taken (or refrained from taking, as applicable) any
actions that if taken after the date hereof would violate Section
4.10 of this Agreement.  

     

    Section
2.6 Title of
Assets.  The Sellers have and will convey to Purchaser good and
valid title to all the Acquired Assets, except those sold or otherwise disposed
of in the ordinary course of business consistent with past practices and not in
violation of this Agreement, in each case free and clear of all Liens, other
than Permitted Liens.  The equipment comprising the Acquired Assets is
free from material defects, has been maintained in accordance with past
practice, is in materially good operating condition and repair (subject to
normal wear and tear) and is suitable for the purposes for which it presently is
used.  This Section 2.6 does not relate to Intellectual Property,
which is the subject of Section 2.7.

     

    Section
2.7 Intellectual
Property.  (a)  Schedule 2.7(a) sets
forth a list of all:  (i) patents and patent applications, (ii)
trademark registrations and applications, (iii) copyright registrations and
applications, and (iv) domain name registrations, in each case owned or
registered and included in the Acquired Assets.  Schedule 2.7(a) also
sets forth a list of all licenses or other agreements by which the Sellers have
granted to any third party the right to use any Intellectual Property, except
for licenses contained in agreements entered into by the Sellers with
advertisers, distributors and suppliers in the ordinary course of
business.

     

    (b) The
Sellers own and possess all right, title and interest in and to the Intellectual
Property free and clear of any Liens other than Permitted Liens and licenses
granted to suppliers, advertisers, and distributors in the ordinary course of
business.

     

    (c) There are
no claims pending or, to the Knowledge of the Sellers, threatened in writing, as
of the date of this Agreement, against the Sellers by any person with respect to
the ownership, validity, enforceability or use of the Intellectual Property,
including without limitation any cancellation, opposition, reissuance,
reexamination or similar proceeding involving the Patent or
Trademarks.

     

    (d) The
Sellers have no pending, written notices of any infringement, dilution or
misappropriation by any third party of the Intellectual Property and to the
Knowledge of the Sellers, no third party is or has infringed, misappropriated or
diluted any of the Intellectual Property.

     

    (e) To the
Knowledge of the Sellers, the conduct of the Business, including the
manufacture, marketing, distribution and sale of the Products does not infringe,
dilute or misappropriate any intellectual property of any third
party.

     

    
      
        
        

      

      
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    (f) (i) The
Patent lists all of the inventors of the Patent, and (ii) each inventor of the
Patent has assigned his/her entire right, title and interest in and to the
Patent to the applicable Seller.

     

    Section
2.8 Contracts.  (a)  Except
for the Assumed Contracts, none of the Sellers are a party to or bound by any
oral or written contract, lease, license, indenture, agreement, commitment or
any other legally binding arrangement (including broker, agency, supply and
distribution agreements), that is used or held for use primarily for the
operation or conduct of the Business.  Except for the Assumed
Contracts, there are no material oral or written contracts, leases, licenses,
indentures, agreements, commitments or any other legally binding arrangements
(including broker, agency, supply and distribution agreements) relating
primarily to the Business or the Acquired Assets other than purchase orders for
the sale of Products or purchases of raw materials, packaging materials and
other supplies, in each case in the ordinary course of
business.

     

    (b) All
Assumed Contracts are valid, binding and in full force and
effect.  Each of the Assumed Contracts is enforceable by the Sellers
in accordance with its terms, subject to bankruptcy, insolvency or similar laws
of general application relating to creditors rights and equitable principles of
general applicability (whether considered at law or equity).  The
Sellers have performed all obligations required to be performed by them to date
under the Assumed Contracts, and they are not (with or without the lapse of time
or the giving of notice, or both) in breach or default in any material respect
thereunder and, to the Knowledge of the Sellers, no other party to any Assumed
Contract is (with or without the lapse of time or the giving of notice, or both)
in material breach or default in any respect thereunder.

     

    Section
2.9 Compliance with Law;
Permits.  (a)  Schedule 1.2(a)(ii)
sets forth each governmental license, registration, concession, franchise,
permit, certificate, approval or other similar authorization (“Permits”), held by
the Sellers and necessary or useful for the conduct of the Business, except for
Permits solely related to the manufacture of the Products.

     

    (b) Except to
the extent that it would not reasonably be expected to result in a Material
Adverse Effect, (i) the Business has been conducted during the three-year period
ending on the date hereof in compliance with all applicable Permits and
applicable statutes, laws, ordinances, rules, orders and regulations of any
Governmental Entity, including the United States Food, Drug and Cosmetics Act of
1938, as amended from time to time; (ii) except as set forth on Schedule 1.2(a)(ii),
all Permits are in full force and effect; (iii) none of the Sellers have
received written notice from any Governmental Entity that there are any
circumstances currently existing which would lead to any loss or refusal to
renew any Permit on terms less advantageous to the Sellers than the terms of
those Permits currently in force; and (iv) during the three-year period ending
on the date hereof, none of the Sellers have received written notice from any
Governmental Entity that the Business is not in compliance with all applicable
statutes, laws, ordinances, rules, orders and regulations.

     

    Section
2.10 Litigation.  (a)  Except
as set forth on Schedule 2.10(a),
there is no suit, action or other proceeding (collectively, a “Proceeding”) pending
or, to the Knowledge of the Sellers, threatened against the Sellers or to the
Knowledge of the Sellers, any investigation pending or threatened against the
Sellers and relating to or arising out of the Sellers’ operation of


     

    
      
        
        

      

      
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      the
Business or affecting the Business or the Acquired Assets or which challenges
the validity of this Agreement or any of the transactions contemplated
hereby.  To the Sellers Knowledge, there is no Proceeding pending or
threatened against a supplier of benzocaine that would materially impact the
supply of benzocaine to the Business.

       

    

     

    (b) Except as
set forth on Schedule
2.10(b), there are no outstanding injunctions, restraining orders,
decrees or judgments of any Governmental Entity applicable to the Business or
the Acquired Assets (or that will apply to Purchaser after the Closing Date)
that restrict the ownership, disposition or use of the Acquired Assets, in each
case, in any material respect.

     

    (c) There is
no product liability claim pending, or to the Knowledge of the Sellers,
threatened, relating to any Product that involves a claim against the Sellers of
more than $25,000, and no such claim has been settled, adjudicated or otherwise
disposed of during the three-year period ending on the date
hereof.

     

    Section
2.11 Brokers and
Finders.  The Sellers have not retained any agent, broker,
investment banker, financial advisor or other firm or Person that is or will be
entitled to any brokers’ or finder’s fee or any other commission or similar fee
in connection with this Agreement or any of the Related Instruments or any of
the transactions contemplated hereby or thereby, other than J.P. Morgan
Securities, Inc., whose fees and expenses are payable solely by the Sellers or
their Affiliates.

     

    Section
2.12 Inventories.  The
Inventories are owned free and clear of all Liens (other than Permitted Liens)
and are of a good and merchantable quality, usable or saleable in the ordinary
course of business consistent with past practices of the Business, subject to
Inventory reserve.  The Sellers have provided for reserves in
accordance with Del Accounting Consistently Applied with respect to slow moving
and obsolete Inventory.

     

    Section
2.13 Sufficiency of
Assets.  Except as set forth on Schedule 2.13 and for
the Excluded Assets (other than those described in Section 1.2(b)(iv)) and the
rights under the Manufacturing Agreement and Transitional Services Agreement
(assuming any services declined by Purchaser thereunder are provided), the
Acquired Assets constitute all of the material rights, properties and assets
(real, personal or mixed, tangible or intangible) necessary for the conduct of
the Business as presently conducted.  

     

    Section
2.14 Customers;
Suppliers.  Since January 1, 2007 and prior to the date hereof,
the Sellers have not received any written notice or, to the Knowledge of the
Sellers, any oral notice from a top ten customer of Orajel Products (by dollar
volume of gross sales for the calendar year ended December 31, 2007) that such
customer (a) has ceased or will cease to purchase the Products or (b) has
materially reduced or will materially reduce its purchase of the
Products.  Since January 1, 2007 and prior to the date hereof, the
Sellers have not received any written notice or, to the Knowledge of the
Sellers, any oral notice from a top ten supplier of products, equipment, goods
or services relating to Orajel Products that such supplier (x) has ceased or
will cease to supply the products, equipment, goods or services of such supplier
to the Business or (y) has materially reduced or will materially reduce the
supply of the products, equipment, goods or services of such supplier to the
Business.

     

    
      
        
        

      

      
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    Section
2.15 Taxes.  (a)  The
Sellers have timely paid all Taxes which were required to be paid on or prior to
the date hereof, the non-payment of which would result in a Lien on any Acquired
Assets.  Except as set forth on Schedule 2.15(a), (i)
there are no proposed assessments of Tax against the Sellers with respect to the
Business or any Liens with respect to Taxes on any of the Acquired Assets, (ii)
the Sellers have not waived any statute of limitations with respect to Taxes of
the Business or agreed to any extension of time with respect to such a Tax
assessment or deficiency and (iii) no Governmental Entity with which the Sellers
do not file Tax Returns has asserted that the Sellers are or may be subject to
Taxes with respect to the Business.  None of the Acquired Assets is an
interest in an entity that is treated as a corporation or partnership for Tax
purposes.

     

    (b) The
Sellers have established, in accordance with GAAP, adequate reserves for the
payment of, and will timely pay, all Taxes which arise from or with respect to
the Acquired Assets or the operation of the Business and are incurred in or
attributable to a taxable period (or portion thereof) that ends on the Closing
Date (a “Pre-Closing
Tax Period”), the non-payment of which would result in a Lien on any
Acquired Asset.

     

    ARTICLE
III

     

    REPRESENTATIONS
AND WARRANTIES OF PURCHASER

     

    Purchaser
represents and warrants to the Sellers as follows:

     

    Section
3.1 Organization.  Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.  Purchaser has all requisite corporate
power and authority to own, lease and operate its properties and to conduct its
business as now being conducted in all material respects.

     

    Section
3.2 Authority; Execution and
Delivery; Enforceability.  Purchaser has the requisite
corporate power and authority to execute and deliver this Agreement and the
Related Instruments and to perform its obligations hereunder and
thereunder.  The execution and delivery of this Agreement and the
Related Instruments and the performance by Purchaser of its obligations
hereunder and thereunder have been (or will be before the Closing in the case of
the Related Instruments) authorized by all requisite corporate action on the
part of Purchaser.  This Agreement has been validly executed and
delivered by Purchaser and, assuming that this Agreement has been duly
authorized, executed and delivered by the Seller, constitutes, and each Related
Instrument that is to be executed and delivered by Purchaser will constitute
when executed and delivered by Purchaser (assuming that such Related Instrument
has been duly authorized, executed and delivered by each of the Sellers, to the
extent a party thereto), a valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, subject to
bankruptcy, insolvency or similar laws of general application relating to
creditors rights and equitable principles of general applicability (whether
considered at law or equity).

     

    Section
3.3 Consents and Approvals; No
Violations.  (a)  Neither the execution and delivery
of this Agreement nor any Related Instrument by Purchaser nor the performance by
Purchaser of its obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby will (i) violate the certificate of
incorporation, by-laws or other

     

    
      
        
        

      

      
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      organizational
document of Purchaser, (ii) conflict with or result in a violation or breach of
any term, condition or provision of, result in or give rise to any right of
payment, rescission, renegotiation, termination, cancellation or acceleration
with respect to, or constitute a default under, any contract, agreement or
instrument to which Purchaser is a party or by which any of its properties or
assets are bound or (iii) violate or conflict with any law, rule, regulation,
judgment, order, injunction or decree of any Governmental Entity applicable to
Purchaser, except in the case of clauses (ii) or (iii) for violations, breaches
or defaults which would not have a material adverse effect on Purchaser’s
ability to consummate the transaction contemplated hereby or materially delay
the consummation of the transactions contemplated by this
Agreement.

       

    

    (b) Except as
set forth on Schedule
2.3(b), no filing with, and no authorization, consent or approval of, any
Governmental Entity is necessary for the consummation by Purchaser of the
transactions contemplated by this Agreement, except for those filings,
authorizations, consents or approvals the failure of which to be made or
obtained would not materially impair Purchaser’s ability to consummate the
transaction contemplated hereby or materially delay the consummation of the
transactions contemplated hereby.

     

    Section
3.4 Brokers and
Finders.  Purchaser has not retained any agent, broker,
investment banker, financial advisor or other firm or Person that is or will be
entitled to any brokers’ or finder’s fee or any other commission or similar fee
in connection with any of the transactions contemplated by this Agreement, other
than Lazard Frères & Co., whose fees and expenses are payable solely by the
Purchaser.  

     

    Section
3.5 No
Proceedings.  There is no Proceeding pending or, to the
knowledge of Purchaser, threatened against Purchaser which would affect or delay
Purchaser’s ability to consummate the transactions contemplated by this
Agreement and each Related Instrument.

     

    Section
3.6 Availability of
Funds.  Purchaser has sufficient available funds either on hand
or under committed credit facilities to pay the Purchase Price.


     

    ARTICLE
IV

     

    COVENANTS

     

    Section
4.1 Retained Acquired Assets;
Retained Information.  (a)  If any Acquired Assets
are, in the reasonable judgment of the parties hereto, required by the Sellers
for the due and timely performance of the Sellers’ obligations under the
Transitional Services Agreement or the Manufacturing Agreement, the Sellers
shall not deliver such Acquired Assets to Purchaser (and title shall not pass)
until the expiration or termination of the Transitional Services Agreement or
the Manufacturing Agreement, as applicable (it being understood that the parties
agree that the assets set forth on Schedule 4.1 shall be
retained Acquired Assets subject to this sentence); provided, that the Sellers
shall use commercially reasonable efforts to maintain such assets in accordance
with industry practices and deliver copies, if applicable, of such retained
Acquired Assets to Purchaser and in any event shall provide Purchaser with
access to such retained Acquired Assets upon reasonable request of
Purchaser.  The Sellers shall not (i) sell, lease, license or
otherwise dispose of, 

     

    
      
        
        

      

      
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      any
interest in the retained Acquired Assets or (ii) use the retained Acquired
Assets for any purpose other than the due and timely performance of the Sellers’
obligations under the Transitional Services Agreement or the Manufacturing
Agreement.  The Sellers hereby grant to Purchaser an irrevocable,
non-exclusive, worldwide, fully paid-up and royalty-free license until the
expiration or termination of the Manufacturing Agreement to use the retained
Acquired Assets in the manufacture, packaging, distribution and sale of
Products, including, without limitation, in connection with the preparation of
any response to an inquiry, charge or investigation of a Governmental Entity
related to the manufacture, packaging, distribution and sale of the
Products.

       

    

    (b) Seller
shall also provide copies of any Retained Information to
Purchaser.  If copies of the Retained Information is insufficient for
evidentiary or regulatory purposes, the Sellers shall promptly provide to
Purchaser reasonable access to the original documents.  The Sellers
hereby grant to Purchaser a perpetual, irrevocable, non-exclusive, worldwide,
fully paid-up and royalty-free license to use the Retained Information in the
manufacture, packaging, distribution and sale of Products, including, without
limitation, in connection with the preparation of any response to an inquiry,
charge or investigation of a Governmental Entity related to the manufacture,
packaging, distribution and sale of the Products.

     

    Section
4.2 Confidentiality.  (a)  Purchaser
acknowledges that the information being provided to it in connection with the
Acquisition and the consummation of the other transactions contemplated hereby
is subject to the terms of a confidentiality agreement between Purchaser and the
Seller dated December 18, 2007, as supplemented on January 11, 2008 (the “Confidentiality
Agreement”), the terms of which are incorporated herein by
reference.  Effective upon the Closing Date, the Confidentiality
Agreement shall terminate with respect to information solely to the extent that
such information relates to the Acquired Assets or the Assumed Liabilities;
provided, that
Purchaser acknowledges that any and all other information provided to it by the
Sellers or their respective representatives concerning the Sellers and their
Affiliates (other than such information related to the Acquired Assets or the
Assumed Liabilities) shall remain subject to the terms and conditions of the
Confidentiality Agreement for its duration.  

     

    (b) Except as
otherwise agreed between the Seller and Purchaser or in any mutually agreed upon
press release announcing the Acquisition disclosed in compliance with Section
4.6, each of Purchaser and the Seller agree that the terms of this
Agreement and the Related Instruments shall not be disclosed or otherwise made
available to the public and that copies of this Agreement and the Related
Instruments shall not be publicly filed or otherwise made available to the
public, except where such disclosure, availability or filing is required by
applicable law, order, rule or regulation or listing agreement and only to the
extent required by such law, order, rule or regulation or listing
agreement.

     

    (c) The
Sellers shall keep confidential, and cause their Affiliates to keep
confidential, all information relating to the Business, Acquired Assets and
Assumed Liabilities, except as required by law, order, rule or regulation or
listing agreement and except for information that is available to the public on
the Closing Date, or thereafter becomes available to the public other than as a
result of a breach of this Section 4.2(c).  The covenant set forth in
this 

     

    
      
        
        

      

      
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      Section
4.2(c) shall terminate upon the third anniversary of the date of termination of
the Manufacturing Agreement or the Transitional Services Agreement, whichever is
later.

    

     

    Section
4.3 Regulatory
Approvals.  (a)  Each of the Sellers and Purchaser
shall use their commercially reasonable efforts to procure all applicable
regulatory approvals necessary to consummate the transactions contemplated
hereby, including with respect to the transfer from the Sellers to Purchaser of
any Permits set forth on Schedule 1.2(a)(ii),
as soon as reasonably practicable after the date hereof.

     

    (b) In
furtherance of the foregoing, each of Purchaser and the Seller shall (i) make an
appropriate filing of a Notification and Report Form pursuant to the
Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the “HSR Act”) with
respect to the Acquisition as promptly as commercially practicable after the
date hereof, (ii) supply as promptly as practicable any additional information
and documentary material that may be requested pursuant thereto and (iii) take
all other commercially reasonable actions to cause the expiration or termination
of any applicable waiting period thereunder.

     

    Section
4.4 Transfer
Taxes.  (a)  Except as otherwise provided herein, any
excise, sales, use, value-added, transfer or similar taxes (“Transfer Taxes”)
required to be made to any Governmental Entity in connection with the transfer
of the Acquired Assets pursuant to the terms of this Agreement, and any refund
thereof, shall be borne 50% by Purchaser and 50% by the Sellers; provided, that all Transfer
Taxes which are refundable or otherwise recoverable by Purchaser shall be paid
solely by Purchaser to the extent that such Transfer Taxes are refundable or
otherwise recoverable.  The Sellers and Purchaser shall cooperate in
the timely making and filing of all filings, Tax Returns, reports and forms as
may be required with respect to any Transfer Taxes payable in connection with
the transfer of the Acquired Assets.  The parties agree to cooperate
to the extent lawfully permitted in order to minimize the amount of any such
Transfer Taxes.

     

    (b) All
personal property and similar ad valorem obligations levied with respect to the
Acquired Assets for a taxable period which includes (but does not end on) the
Closing Date (collectively, the “Apportioned
Obligations”) shall be apportioned between the Sellers and Purchaser
based on the number of days of such taxable period included in the Pre-Closing
Tax Period and the number of days of such taxable period after the Closing Date
(any such portion of such taxable period, the “Post-Closing Tax
Period”).  The Sellers shall be liable for the proportionate
amount of such Apportioned Obligations that is attributable to the Pre-Closing
Tax Period, and Purchaser shall be liable for the proportionate amount of such
Apportioned Obligations that is attributable to the Post-Closing Tax
Period.

     

    (c) Transfer
Taxes and Apportioned Obligations shall be timely paid, and all applicable Tax
Returns shall be timely filed, by the party required to do so under applicable
law.  The paying party shall be entitled to reimbursement from the
non-paying party in accordance with Section 4.4(a) or Section
4.4(b), as the case
may be.  Upon payment of any such Apportioned Obligation or Transfer
Tax, the paying party shall present a statement to the non-paying party setting
forth the amount of reimbursement to which the paying party is entitled under
Section 4.4(a) or Section 4.4(b), as the case may be, together with such supporting
evidence as is reasonably necessary to calculate the amount to be
reimbursed.  The non-paying 

     

    
      
        
        

      

      
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      party
shall make such reimbursement promptly but in no event later than 10 days after
the presentation of such statement.

       

    

    Section
4.5 Purchase Price
Allocation.  The Purchase Price and the Assumed Liabilities
shall be allocated among the Acquired Assets set forth on Schedule 4.5 in a
manner that is consistent with the principles of Section 1060 of the
Code.  No later than 180 days following the Closing Date, Purchaser
shall deliver to the Seller a final allocation prepared in accordance with such
principles and Schedule
4.5.  The Sellers and Purchaser agree to act in accordance with
such allocations in any relevant Tax Return or filings, including any forms or
reports required to be filed pursuant to Section 1060 of the Code, the Treasury
Regulations promulgated thereunder or any provisions of state or local law
(“1060 Forms”),
and to cooperate in the preparation of any 1060 Forms and to file such 1060
Forms in the manner required by applicable law, rules and
regulations.

     

    Section
4.6 Publicity.  The
parties agree to consult with each other before issuing any press release or
making any public announcement with respect to this Agreement or any Related
Instrument.  The content of the initial press release and any trade
announcements or correspondence announcing the execution of this Agreement shall
be mutually agreed by Purchaser and the Sellers.  The parties agree
that neither party shall disclose the amount of the Purchase Price to any third
person without the prior consent of the other party, except to the extent
required by applicable law, order, rule, regulation or listing
agreement.  The parties further agree that nothing herein will prevent
the Sellers, Purchaser or their respective Affiliates, upon reasonable notice,
from making public announcements to comply with the requirements of law, order,
rule or regulation or any listing agreement with, and rules and regulations of,
any securities exchange or to inform their respective employees of the
transactions contemplated by this Agreement or any Related
Instrument.

     

    Section
4.7 Further
Assurances.  Subject to the terms and conditions hereof, the
parties shall use their reasonable best efforts to take all actions and to do
all things necessary or desirable under applicable law, rules and regulations to
consummate the Acquisition.  Each party shall, and shall cause their
respective Affiliates to, from time to time after the date hereof, without
additional consideration, execute and deliver such further instruments and take
such other action as may be reasonably requested by the other party to make
effective the transactions contemplated by this Agreement and each Related
Instrument, including without limitation, assignments, transfers, consents,
assignment and assumption agreements and other similar agreements that may be
necessary to effectuate any delivery of assets or transfer of rights necessary
to carry out the provisions of this Agreement.  

     

    Section
4.8 Use of
Names.  (a)  Purchaser shall ensure that (i) no
Product literature or packaging produced after the 270 day anniversary of the
Closing Date shall include any reference to the Names or any references to the
Sellers’ or their Affiliates’ customer service address, (ii) there shall be no
usage of the Names or the Sellers’ or their Affiliates’ customer service address
by Purchaser in the distribution, marketing or sale of any Products (other than
Orajel Products), including on any literature or packaging of any Product (other
than an Orajel Product), after the 18 month anniversary of the Closing and (iii)
there shall be no usage of the Names or the Sellers’ or their Affiliates’
customer service address by Purchaser in the 

     

    
      
        
        

      

      
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      distribution,
marketing or sale of any Orajel Products, including on any literature or
packaging of any Orajel Product, after the 15 month anniversary of the
Closing.

       

    

    (b) The
Sellers hereby grant to Purchaser, and Purchaser accepts, a limited,
non-transferable, non-sublicenseable (except to Affiliates), personal,
non-exclusive right and license for the 18 month period following the Closing
Date to use the Names in the United States and Canada solely to the extent
necessary to allow Purchaser and their Affiliates to market, distribute and sell
the Products in the United States and Canada utilizing the labels and packaging
in use as of the Closing Date that bear one or more of the
Names.  Purchaser shall (i) cause all Products marketed, distributed
or sold using a Name to be of no less than equivalent quality than the Products
marketed, distributed or sold by the Sellers prior to the Closing Date, (ii)
cause all usage of the Names to comply with applicable law to the extent in
compliance on the Closing Date, and (iii) be responsible for all acts and
omissions of its Affiliates and its designees with respect to the use of the
Names.  The Sellers shall have the right to inspect any materials
bearing a Name, and Purchaser shall reasonably cooperate with the Sellers in
connection with the exercise of such rights and in the protection of the
Names.  All goodwill arising from the use of the Names shall inure to
the exclusive benefit of the Sellers.

     

    (c) In no
event shall Purchaser use any Names after the Closing Date in any manner or for
any purpose different from the use of such Names by the Sellers prior to the
Closing Date.

     

    (d) “Names” means “Coty”,
“Del”, “Del Laboratories” and “Del Pharmaceuticals”, variations and derivatives
thereof and any other logos or trademarks, trade names or service marks of the
Sellers or their Affiliates not included on Schedule
2.7(a).

     

    Section
4.9 Bulk Transfer
Laws.  Purchaser hereby waives compliance by the Sellers with
the provisions of any so-called “bulk transfer law” of any jurisdiction in
connection with the Acquisition.

     

    Section
4.10 Conduct of the
Business.  From the date hereof until the Closing Date, the
Sellers shall conduct the Business in the ordinary course of business consistent
with past practice and shall use their commercially reasonably efforts to
preserve intact the Business’ relationships and goodwill with third parties with
whom it has business relations, including but not limited to its employees,
licensors, customers and suppliers.  Without limiting the generality
of the foregoing, from the date hereof until the Closing Date, except as
disclosed on Schedule
4.10, or as approved by prior written consent of Purchaser (such approval
not to be unreasonably withheld or delayed), the Sellers
will:  

     

    (a) not sell,
lease, license or otherwise dispose of any interest in the Acquired Assets
(other than obsolete Inventory (it being understood, however, that obsolete
Inventory shall in no event be exchanged for trade credits)), except sales of
Inventory and disposal of certain of the assets set forth in Section 1.2(a)(iv)
in the ordinary course of business consistent with past
practice;

     

    (b) not amend
or modify in any material respect, renew (other than automatically) or terminate
any of the Assumed Contracts;

     

    
      
        
        

      

      
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    (c) not
encumber, abandon, permit to lapse or be cancelled or relinquish any license or
sublicense that is an Assumed Contract (other than an expiration in accordance
with its terms), or otherwise convey rights under or with respect to the
Intellectual Property other than in licenses contained in agreements with
advertisers, distributors or suppliers in the ordinary course of business
consistent with past practice;

     

    (d) not
mortgage, pledge or grant any security interest in any of the Acquired Assets in
connection with the borrowing of money or for the deferred purchase of any
property, or otherwise voluntarily permit the imposition of a Lien (other than a
Permitted Lien) on any of the Acquired Assets;

     

    (e) not make
any change in their accounting methods or practices with respect to the Business
(including without limitation any method of accounting for Inventory or Accounts
Receivable);

     

    (f) continue
to meet the material contractual obligations of, and pay material obligations
relating to, the Business as they mature in the ordinary course of business
consistent with past practice;

     

    (g) not
initiate a Product promotion, except in the ordinary course of business
consistent with past practice;

     

    (h) not
obtain or acquire any trade credits with respect to the Business, whether in
exchange for obsolete Inventory or otherwise;

     

    (i) not
change in any material respect the policies or practices with regard to the
collection of accounts receivable or the payment of accounts payable, except in
the ordinary course of business consistent with past
practice;

     

    (j) not
increase sale or shipment of the Products to business customers in excess of
customary shipments for the same period during the preceding year, except to the
extent such shipments are made in connection with the launch of a newly
repackaged Product, new merchandising activities or increased consumption
trends; and

     

    (k) not agree
in writing or otherwise to do any of the foregoing.

     

    Section
4.11 Access and
Cooperation.  (a)  After the date hereof and before
the Closing, upon reasonable written notice, the Sellers shall furnish or cause
to be furnished to Purchaser and its employees, counsel, auditors and other
representatives access to, during normal business hours, such properties, books,
records, information and assistance relating to the Business or the Acquired
Assets, including access to officers and employees, customers, suppliers,
advisors and agents of the Sellers, as is reasonably requested (it being
understood that the parties shall cooperate in transferring certain essential
books, records and information before the Closing in order to facilitate
Purchaser’s ability to immediately operate the Business upon the Closing); provided, that any such
access shall not unreasonably interfere with the conduct of the business of the
Sellers.

     

    
      
        
        

      

      
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    (b) After the
Closing Date, upon reasonable written notice, Purchaser and the Sellers shall
furnish or cause to be furnished to each other, as promptly as practicable, such
information and assistance (to the extent within the control of such party or
their Affiliates) relating to the Business or the Acquired Assets (including
access to books and records) as is reasonably requested for the filing of all
Tax Returns, and making of any election related to Taxes, the preparation for
any audit by any taxing authority, and the prosecution or defense of any claim,
suit or proceeding related to any Tax Return.  The Sellers and
Purchaser shall cooperate with each other in the conduct of any audit or other
proceeding relating to Taxes related to the Acquired
Assets.  Purchaser shall retain the books and records relating to
Taxes of the Sellers included in the Acquired Assets for a period of seven years
after the Closing Date.  After the end of such seven-year period,
before disposing of such books or records, Purchaser shall give notice to such
effect to the Seller and shall give the Seller, at the Seller’s cost and
expense, an opportunity to remove and retain all or any part of such books or
records as the Seller may select.

     

    (c) Each
party shall reimburse the other for reasonable out-of-pocket costs and expenses
incurred in assisting the other pursuant to this Section 4.11.  Neither party shall be required by this
Section 4.11 to take any action that would unreasonably interfere with the
conduct of its business or unreasonably disrupt its normal
operations.

     

    Section
4.12 Refunds and
Remittances.  Promptly following the Closing, the Sellers shall
irrevocably authorize, instruct and direct that the customers of the Business
shall make and deliver all payments on or after the Closing to such location,
bank and account as Purchaser shall specify.  After the Closing, if
the Sellers or any of their Affiliates receive any amount which is
an Acquired Asset or is otherwise properly due and owing to Purchaser in
accordance with the terms of this Agreement, the Sellers promptly shall remit or
shall cause to be remitted, such amount to Purchaser at the address set forth in Section 8.1.  After the Closing, if Purchaser or any of its
Affiliates receive any refund or other amount which is an Excluded Asset or is
otherwise properly due and owing to the Sellers in accordance with the terms of
this Agreement, Purchaser promptly shall remit or shall cause to be remitted,
such amount to the Seller at the address set forth in Section
8.1.  After the Closing,
if Purchaser or any of its Affiliates receive any refund or other amount which
is related to claims (including workers' compensation), litigation, insurance or
other matters for which the Sellers are responsible hereunder, and which amount
is not an Acquired Asset, or is otherwise properly due and owing to the Sellers
in accordance with the terms of this Agreement, Purchaser promptly shall remit,
or cause to be remitted, such amount to the Seller at the address set forth in
Section 8.1.  After the Closing, if the Sellers or any of
their Affiliates receive any refund or other amount which is related to claims
(including workers' compensation), litigation, insurance or other matters for
which Purchaser is responsible hereunder, and which amount is not an Excluded
Asset, or is otherwise properly due and owing to Purchaser in accordance with
the terms of this Agreement, the Sellers promptly shall remit, or cause to be
remitted, such amount to Purchaser at the address set forth in Section
8.1.

     

    Section
4.13 Returns.  

     

    (a) The
Sellers will reimburse Purchaser for all Return Liabilities incurred prior to
the 180th
calendar day following the Closing Date that are in excess of the reserve for


     

    
      
        
        

      

      
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      Return
Liabilities in Closing Working Capital (as finally determined pursuant to Section
1.6).  Promptly following request by Purchaser after the
180th
calendar day following the Closing Date (but in any event within 10 business
days of such request), which request shall include reasonable documentation as
to the amount of such Return Liabilities, the Seller shall reimburse Purchaser
for any such amounts in cash by wire transfer of immediately available funds,
subject to completion of the Dispute Procedures (if initiated by the
Seller).

       

    

    (b) Purchaser
agrees that until the 180 th
calendar day following the Closing Date, and except for general commercial
practices reasonably consistent with the conduct of the Business by the Sellers
prior to the Closing Date, Purchaser shall not intentionally (i) encourage any
customer (including any distributor, wholesaler or retailer) to return any
Products, (ii) make any material change (or announce any prospective material
change) in prices, sales discounts or allowances or any other sales incentives
in connection with the sales of any Products or (iii) engage in any
marketing practices or activities or make any material change (or announce any
prospective material change) in any marketing practices or activities that in
each of (ii) and (iii) would reasonably be expected to result in material
Product returns.

     

    Section
4.14 Consents.  The
Sellers shall use their commercially reasonable efforts to obtain the consent of
any third party to any Assumed Contract, which is required for the assignment of
any such Assumed Contract from the Sellers to Purchaser, including the payment
of any required transfer fees payable to the licensors; provided, that the Sellers
shall be responsible for the first $100,000 of such transfer fees, Purchaser
shall be responsible for the next $100,000 of such transfer fees and the Sellers
shall be responsible for all remaining transfer fees.

     

    Section
4.15 Coupons.  The
Sellers will reimburse Purchaser for all Coupon Liabilities incurred prior to
the 180th
calendar day following the Closing Date relating to coupons or rebates issued or
distributed before the Closing Date that are in excess of the accrual for Coupon
Liabilities in Closing Working Capital (as finally determined pursuant to Section
1.6).  Promptly following request by Purchaser after the
180th
calendar day following the Closing Date (but in any event within 10 business
days of such request), which request shall include reasonable documentation as
to the amount of such Coupon Liabilities, the Seller shall reimburse Purchaser
for any such amounts in cash by wire transfer of immediately available
funds.  Within 10 days following receipt of such reimbursement
request, the Seller shall provide Purchaser with written notice of any dispute
with respect to the amount of the proposed reimbursement.  The Seller
and Purchaser shall attempt to resolve any such dispute in good faith, provided
that if such dispute cannot be resolved within 15 days after Purchaser’s receipt
of the Seller’s dispute notice, such dispute shall be submitted to an
independent accounting firm for final resolution (or Ernst & Young if such
parties cannot agree on an independent accounting firm).  The fees,
costs and expenses incurred in connection therewith shall be shared in equal
amounts by Purchaser and the Seller.  The determination of the
accounting firm shall be final and binding upon each of the
parties.  The four foregoing sentences are referred to herein as the
“Dispute
Procedures.”  

     

    Section
4.16 No
Shop.  Effective as of the date hereof and continuing through
the Closing Date, the Sellers shall not, directly or indirectly, through any
officer, director, agent or otherwise, solicit, initiate or encourage the
initiation of inquiries or proposals from, provide any confidential information
to, or participate in any discussions or negotiations with, any Person


     

    
      
        
        

      

      
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      or group
of Persons (other than Purchaser and its Affiliates and their respective
officers, employees, representatives and agents) involving a sale by the Sellers
of the Business or all or substantially all of the Acquired Assets (other than
the sales of Inventory in the ordinary course of business consistent with past
practice), or any similar transaction involving the Sellers, regardless of the
economic or other terms of any such sale or transaction.  The Sellers
will immediately cease and cause to be terminated any existing activities or
negotiations with any parties conducted heretofore with respect to any such
inquiry or proposal relating to the sale of the Business or all or substantially
all of the Acquired Assets.

       

    

    Section
4.17 Employees.  Between
the date of this Agreement and the Closing Date, upon reasonable notice and at
reasonable times, the Seller will provide Purchaser access to the employees of
the Sellers primarily engaged in the Business as Purchaser shall reasonably
request to enable Purchaser to make offers of employment to such
employees.  The employees of the Business set forth on Schedule 4.17 are
entitled to receive stay bonuses from the Sellers in the amounts set forth
opposite their names on Schedule
4.17.  The Sellers shall be solely responsible for the payment
of all such stay bonuses.  The Sellers shall not interfere with any
negotiations between Purchaser and such employees with respect to such offers of
employment, and Purchaser shall be entitled (but not obligated) to employ each
such employee subject to consummation of the Acquisition; provided, that the Sellers
may provide additional stay bonuses at their sole discretion to any employee
that has not been offered employment by Purchaser within two months of the date
hereof, or who has declined any such offer of employment.  No offer of
employment made pursuant to this Section may take effect prior to the expiration
or termination of the Transitional Services Agreement without the Seller’s
consent (not to be unreasonably withheld or delayed).  Purchaser shall
not between the date of this Agreement and the termination of the Transitional
Services Agreement or Manufacturing Agreement (whichever is later) solicit for
employment any other employee of the Sellers except as part of a general
solicitation not directed at any such employees.  

     

    Section
4.18 Non-Competition and
Non-Solicitation Agreements.

     

    (a) During
the period beginning on the Closing Date and ending on the third anniversary of
the Closing Date (the “Non-Compete Period”),
the Seller covenants and agrees not to, and shall cause Coty Inc. and its
subsidiaries (together with the Seller, the “Restricted
Affiliates”) not to, directly or indirectly, anywhere in the United
States, the United Kingdom or Canada, conduct, manage, operate or have an
ownership interest in any business or enterprise that distributes, markets or
sells products that compete with Products of the Business that are (i) oral
analgesics for toothache pain, teething pain and mouth sores, used for dry mouth
and tooth desensitization, and oral rinses for pain relief, (ii) oral hygiene
and sore throat products for babies or toddlers or (iii) over the counter
therapeutic products for babies and toddlers for the treatment of eczema, cradle
cap, ear ache and stomach discomfort (each, a “Competing Business”);
provided, however, that
the foregoing shall not restrict the Restricted Affiliates from (x) acquiring or
owning as an investment, directly or indirectly, securities or any indebtedness
of any person engaged in a Competing Business if the Restricted Affiliates do
not, directly or indirectly, beneficially own in the aggregate more than 20% of
the outstanding shares or equity of such person or (y) acquiring and continuing
to hold, manage or operate any business or person engaged in a Competing
Business if such Competing Business accounts for less than 20% of such business’
or person’s consolidated annual revenues, or less than $25 million in
annual

     

    
      
        
        

      

      
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      revenues,
in each case during the year prior to such acquisition being made (or, if
earlier, the entry into the definitive agreement providing for the making of
such acquisition).  In the event the Restricted Affiliates acquire any
business or person, the acquisition of which would otherwise violate this
Section 4.18(a), the Restricted Affiliates shall not be in violation of this
Section 4.18(a) if the Competing Business of such business or person accounts
for more than 15% of such business’ or person’s consolidated annual revenues
during the year prior to such acquisition being made (or, if earlier, the entry
into the definitive agreement providing for the making of such acquisition) and,
as soon as practicable, but in any event within 120 days after the closing of
such acquisition, the Restricted Affiliates commence efforts to divest the
portion of such acquired person or business required in order to otherwise
comply with this Section 4.18(a) and, within one year after the closing of such
acquisition, the Restricted Affiliates consummate the divestiture of the portion
of such acquired person or business required in order to otherwise comply with
this Section 4.18.

       

    

    (b) Nothing
contained in Section 4.18(a) shall prevent the Restricted Affiliates from
continuing to engage in or have any ownership interest in any business or
activity in which they are currently engaged or in which they currently have an
ownership interest (other than the Business).

     

    (c) During
the period beginning on the Closing Date and ending on the first anniversary of
the Closing Date, the Seller shall not, and shall cause the Affiliate Sellers
and Coty Inc. and its subsidiaries not to, directly or indirectly, solicit, or
induce, or attempt to solicit or induce, any former employee, staff member or
independent contractor of the Business, who was employed or retained by the
Business in the one-year period prior to the Closing Date, and who was hired by
Purchaser or its Affiliates on or prior to the Closing Date in accordance with
Section
4.17 of this Agreement, to leave the
employ or service of Purchaser or its Affiliates for any reason whatsoever, nor
shall they offer or provide employment, either on a full-time basis or part-time
or consulting basis, to any such employee, staff member or independent
contractor; provided, however, that (i) the
Sellers and Coty Inc. and its subsidiaries may solicit or hire any employee who
has received notice terminating their employment with Purchaser or any of its
Affiliates and (ii) the Sellers and Coty Inc. and its subsidiaries shall be free
to conduct a general advertising or solicitation program that is not
specifically targeted at any such former employees, staff members or independent
contractors.

     

    (d) The
Seller acknowledges and agrees that the provisions of this Section
4.18 are reasonable and necessary to protect the legitimate business
interests of Purchaser and its investment in the Business.  Neither
the Seller nor any of its Affiliates shall contest that Purchaser’s remedies at
law for any breach or threat of breach by any such person of the provisions of
this Section 4.18 will be inadequate, and that Purchaser shall be entitled to
seek an injunction or injunctions to prevent breaches of the provisions of this
Section 4.18 and to enforce specifically such terms and provisions, in addition
to any other remedy to which Purchaser may be entitled at law or
equity.  The restrictive covenants contained in this Section
4.18 are covenants
independent of any other provision of this Agreement or any other agreement
between the parties hereunder and the existence of any claim which the Seller or
any Affiliate may allege against Purchaser under any other provision of this
Agreement or any other agreement will not prevent the enforcement of these
covenants.  If any of the provisions contained in this Section 4.18
shall for any reason be held to be excessively broad as to duration, scope,
activity or 

     

    
      
        
        

      

      
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      subject,
then such provision shall be construed by limiting and reducing it, so as to be
valid and enforceable to the extent compatible with the applicable law or the
determination by a court of competent jurisdiction.

       

    

    Section
4.19 Certain Financial
Information.  From the date of this Agreement until the Closing
Date, the Sellers will deliver to Purchaser, (i) no later than 20 calendar days
after the end of each calendar month, a statement of the Business’ unaudited
statement of Selling Margin for the Products for the immediately preceding
calendar month, which shall fairly present in all material respects the Selling
Margin for the Products for the period presented in accordance with Del
Accounting Consistently Applied.  

     

    Section
4.20 Trademarks.   Purchaser
shall bear the costs of preparation and execution (including notarization,
legalization or such other legal formalities as may be required by the relevant
trademark office in connection with a party’s execution of the document as a
prerequisite to the recording of such document) of all Trademark assignments to
be executed pursuant to this Agreement or any of the Related Transfer
Instruments in any country other than the United States.  Purchaser
shall make all such filings following the Closing at such times as it deems
necessary or appropriate, and the Sellers shall provide all assistance, at
Purchaser’s expense, as may be reasonably requested by Purchaser relating
thereto, including execution of all applicable Trademark assignments prepared by
Purchaser.  Purchaser shall bear all fees, costs, taxes and expenses
in connection with recording the assignments of the Intellectual Property
identified in the Assignment of Trademarks and the Assignment of Patent, which
assignments shall be filed with the U.S. Patent and Trademark Office (or the
appropriate foreign counterpart office) on or promptly following the Closing
Date.  Notwithstanding the foregoing, the Seller shall, promptly
following the date hereof, (i) make, execute and file such assignments and
conveyances as may be necessary to effect and confirm that the Seller is the
owner of record of the Trademarks identified on Schedule 2.7 as pending or
registered outside the United States, and (ii) provide Purchaser with copies or
other evidence confirming such filings. The Seller shall bear all fees, costs,
taxes and expenses in connection with the preparation, execution and recording
of such assignments and conveyances as may be necessary to confirm and record in
the Seller's name the non-U.S. Trademarks  to the extent they are
currently in the name of a third party.

     

    Section
4.21 Promotion
Liabilities.  The Sellers will reimburse Purchaser for all
Promotion Liabilities incurred prior to the 270th
calendar day following the Closing Date relating to the marketing, distribution
or sale of Products prior to the Closing Date that are in excess of the sum of
(a) the accrual for Promotion Liabilities in Closing Working Capital (as finally
determined pursuant to Section
1.6), (b) the excess, if any, of the accrual for Coupon Liabilities
in Closing Working Capital (as finally determined pursuant to Section
1.6) over Coupon Liabilities incurred prior to the 180th
calendar day following the Closing Date relating to coupons or rebates issued or
distributed before the Closing Date and (c) the excess, if any, of the reserve
for Return Liabilities in Closing Working Capital (as finally determined
pursuant to Section
1.6) over Return Liabilities incurred prior to the 180th
calendar day ollowing the Closing Date.  Promptly following request by
Purchaser after the 270th
calendar day following the Closing Date (but in any event within 10 business
days of such request), which request shall include reasonable documentation as
to the amount of such Promotion Liabilities, the Seller
shall

     

    
      
        
        

      

      
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      reimburse
Purchaser for any such amounts in cash by wire transfer of immediately available
funds, subject to the completion of the Dispute Procedures (if initiated by the
Seller).

    

     

    Section
4.22 Inventory.  At
Purchaser’s request on or after the Closing, the Sellers shall properly dispose
of all raw materials, packaging materials and finished goods constituting
Inventory purchased or manufactured before January 1, 2007 for the Business and
provide a certificate of disposal to Purchaser.  The cost of such
disposal shall be borne 50% by Purchaser and 50% by the
Sellers.

     

    Section
4.23 Ancillary
Agreements.  Purchaser and the Seller shall use good faith
efforts to finalize the terms and conditions of each of the Transitional
Services Agreement (including the annexes thereto) and the Manufacturing
Agreement within 10 days of the date hereof.

     

    ARTICLE
V

     

    CLOSING
CONDITIONS

     

    Section
5.1 Conditions to Obligations of
the Parties.  The obligations of the Seller and Purchaser to
consummate the Acquisition shall be subject to the fulfillment on or prior to
the Closing Date of the following conditions:

     

    (a) The
waiting period under the HSR Act shall have expired or been terminated without
any agreement with the Federal Trade Commission or the Department of Justice by
either the Seller or Purchaser not to consummate the Acquisition before a
specific date.

     

    (b) There
shall not be in effect any injunction, restraining order, decree or judgment of
any Governmental Entity prohibiting the consummation of the
Acquisition.

     

    Section
5.2 Conditions to the
Obligations of Purchaser.  The obligations of Purchaser to
consummate the Acquisition shall be subject to the fulfillment on or prior to
the Closing Date of the following additional conditions:

     

    (a) The
representations and warranties of the Seller contained in this Agreement shall
be true and correct in all respects at and as of the Closing Date (except to the
extent expressly made as of an earlier date, in which case as of such date) with
the same effect as though made at and as of such time (without regard to any
Material Adverse Effect, materiality qualifications or similar qualifiers
included in such representations and warranties), except to the extent that the
effect of such failure to be true or correct, when taken together on a
cumulative basis with the effect of all other representations and warranties to
not be true or correct in all respects (without regard to any Material Adverse
Effect, materiality qualifiers or similar qualifiers contained therein) by
adding together the effects of all such breaches of such representations and
warranties, would not have or reasonably be expected to have a Material Adverse
Effect.

     

    
      
        
        

      

      
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    (b) The
Sellers shall have duly performed and complied in all material respects with all
covenants and agreements contained herein required to be performed or complied
with by them at or before Closing.

     

    (c) Since the
date hereof, there shall not have been any event, occurrence or development
that, individually or in the aggregate, has had, or would reasonably be expected
to have, a Material Adverse Effect.

     

    (d) Purchaser
shall have received a certificate signed by a duly authorized officer of the
Seller certifying as to compliance with Section 5.2(a) and Section
5.2(b) hereof.

     

    Section
5.3 Conditions to the
Obligations of the Seller.  The obligations of the Seller to
consummate the Acquisition shall be subject to the fulfillment on or prior to
the Closing Date of the following additional conditions:

     

    (a) The
representations and warranties of Purchaser contained in this Agreement shall be
true and correct in all material respects at and as of the Closing Date with the
same effect as though made at and as of such time (except such representations
and warranties qualified by materiality or similar qualifiers which shall be
true and correct in all respects).

     

    (b) Purchaser
shall have duly performed and complied in all material respects with all
covenants and agreements contained herein required to be performed or complied
with by it at or before the Closing.

     

    (c) The
Seller shall have received a certificate signed by a duly authorized officer of
Purchaser certifying as to compliance with Section
5.3(a) and
Section 5.3(b) hereof.

     

    ARTICLE
VI

     

    SURVIVAL;
INDEMNIFICATION

     

    Section
6.1 Survival.  The
representations and warranties contained in this Agreement (including the
Schedules) and in any Related Instrument and all covenants and agreements
contained in this Agreement that contemplate performance thereof prior to the
Closing Date shall survive the Closing Date solely for purposes of this Article
VI and shall
terminate at the close of business on the 18 month anniversary of the Closing
Date; provided, that
any representation or warranty relating to Taxes shall survive the Closing Date
until the 30th day after the expiration of the applicable statute of limitations
(giving effect to any waiver or extension thereof); provided, further that the
representations and warranties of the Seller contained in (a) Section
2.2 (Authority; Execution and Delivery; Enforceability) shall survive
the Closing Date indefinitely and (b) Section 2.6 (Title to Assets) shall
survive until the third anniversary of the Closing Date.  The
covenants and agreements contained in this Agreement that contemplate
performance thereof following the Closing shall survive the
Closing.  For the avoidance of doubt, the Excluded Liabilities shall
survive the Closing indefinitely.

     

    Section
6.2 Indemnification by the
Seller.  (a)  From and after the Closing, the Sellers
shall, jointly and severally, indemnify Purchaser and its Affiliates and each of
their respective officers, directors, employees, stockholders, agents and
representatives (collectively, 

     

    
      
        
        

      

      
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      the
“Purchaser
Indemnitees”) against, and hold them harmless from, any loss, cost
(including reasonable fees and expenses of outside accountants, consultants and
experts), damage, expense (including reasonable legal fees and expenses) and
amounts paid in settlement, court costs and other expenses of litigation,
including in respect of enforcement of its indemnity rights hereunder
(collectively, “Losses”), as incurred
(payable promptly upon written request), to the extent arising
from:

       

    

    (i) (A) any
breach of any representation or warranty of the Seller that is contained in this
Agreement (including the Schedules) or in any Related Transfer Instrument and
(B) any liabilities, obligations or commitments arising out of or relating to
(I) the class action Williams
v. Del Pharmaceuticals, Inc. with respect to Pronto brand Products and
(II) any Proceeding relating to the Acquired Assets or the Products commenced
before the Closing Date;

     

    (ii) any
breach of any covenant of the Sellers contained in this Agreement or in any
Related Transfer Instrument; and

     

    (iii) any
Excluded Liability.

     

    (b) The
Sellers shall not be required to indemnify any Purchaser Indemnitee, and shall
not have any liability:

     

    (i) under clause (i)(A) of Section
6.2(a) unless
the aggregate of all Losses for which the Sellers would, but for this clause
(i), be liable exceeds on a cumulative basis an amount equal to $2,500,000 (the
“Basket”),
and then only to the extent of any such excess; provided,
that any Losses attributable to a breach of the representations and
warranties of the Seller contained in Section 2.2 (Authority; Execution and
Delivery; Enforceability), Section 2.11 (Brokers) and Section 2.15
(Taxes) shall not be subject to any of the limitations of this clause
(i);

     

    (ii) under
clause (i)(A) of Section 6.2(a) for any individual items (or series of related
individual items) where the Loss relating thereto is less than $10,000, in which
case such items shall not be aggregated for purposes of clause (i) of this
Section 6.2(b); provided, that
any Losses attributable to a breach of the representations and warranties of the
Seller contained in Section
2.2 (Authority; Execution and
Delivery; Enforceability), Section 2.11 (Brokers)
and Section 2.15 (Taxes) shall not be subject to any of the limitations of this
clause (ii); and

     

    (iii) under
clause (i)(A) of Section 6.2(a) in excess of an amount equal
to 15% of the Purchase Price (the “Maximum”);
provided,
that that any Losses attributable to a breach of the representations and
warranties of the Seller contained in Section 2.2 (Authority; Execution
and Delivery; Enforceability) and Section 2.15 (Taxes) shall not be subject to
any of the limitations of this clause (iii).

     

    Notwithstanding
the foregoing, the limitations on the indemnification obligations of the Sellers
set forth herein shall not apply to claims based upon fraud or intentional
misrepresentation.

     

    
      
        
        

      

      
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    Section
6.3 Indemnification by
Purchaser.  (a)  From and after the Closing,
Purchaser shall indemnify the Sellers, their Affiliates and each of their
respective officers, directors, employees, stockholders, agents and
representatives (collectively, the “Seller Indemnitees”)
against, and agrees to hold them harmless from, any Loss, as incurred (payable
promptly upon written request), to the extent arising from:

     

    (i) any
breach of any representation or warranty of Purchaser contained in this
Agreement or in any Related Transfer Instrument;

     

    (ii) any
breach of any covenant of Purchaser contained in this Agreement or in any
Related Transfer Instrument; and

     

    (iii) any
Assumed Liability.

     

    (b) Purchaser
shall not be required to indemnify any Seller Indemnitee, and shall not have any
liability:

     

    (i) under
clause (i) of Section 6.3(a) unless the aggregate of all
Losses for which Purchaser would, but for this clause (i), be liable exceeds on
a cumulative basis an amount equal to $2,500,000, and then only to the extent of
any such excess; provided,
that any Losses attributable to a breach of the representations and warranties
of Purchaser contained in Section 3.2 (Authority; Execution and
Delivery; Enforceability) and Section 3.4 (Brokers)
shall not be subject to any of the limitations of this clause
(i);

     

    (ii) under
clause (i) Section 6.3(a) for any individual items (or series of related
individual items) where the Loss relating thereto is less than $10,000, in which
case such items shall not be aggregated for purposes of clause (i) of this
Section 6.3(b); provided, that any Losses
attributable to a breach of the representations and warranties of Purchaser
contained in Section 3.2 (Authority; Execution and
Delivery; Enforceability) and Section 3.4 (Brokers) shall not be subject to any of the
limitations of this clause (ii); and

     

    (iii) under
clause (i) of Section 6.3(a) in excess of the Maximum;
provided,
that that any Losses attributable to a breach of the representations and
warranties of the Purchaser contained in Section 3.2 (Authority; Execution and Delivery;
Enforceability) shall not be subject to any of the limitations of this clause
(iii).

     

    Section
6.4 Calculation of
Losses.  The amount of any Loss for which indemnification is
provided under Section 6.2(a) or Section
6.3(a) shall
be net of any amounts recovered by the indemnified party under insurance
policies with respect to such Loss (net of any increase in insurance premiums,
retroactive premiums, premium adjustments or costs of collection) and shall be
reduced by any net Tax benefit actually realized by the indemnified
party.  For purposes of this Agreement, an indemnified party shall be
deemed to have “actually realized” a net Tax benefit to the extent that, and at
such time as, the amount of Taxes paid in cash by such indemnified party is
reduced below the amount of Taxes that such indemnified party would have been
required to pay but for the receipt or accrual of the indemnity payment or


     

    
      
        
        

      

      
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      the
incurrence or payment of such Losses for which indemnification is provided under
this Article
VI.  Any
indemnity payment under Section 6.2(a) or Section
6.3(a) shall be treated as an
adjustment to the Purchase Price for Tax purposes, unless otherwise required by
Tax law.

    

     

    Section
6.5 Termination of
Indemnification.  The obligations to indemnify and hold
harmless any party under Section 6.2(a)(i) and Section
6.3(a)(i) shall terminate on the 18
month anniversary of the Closing Date; provided,
that the obligations to indemnify and hold harmless any party under Section
6.2(a)(i) relating to Taxes shall
terminate the 30th day after the expiration of the applicable statute of
limitations (giving effect to any waiver or extension thereof); provided,
further that the representations and warranties of the Seller contained
in (a) Section 2.2 (Authority; Execution and
Delivery; Enforceability) shall survive the Closing Date indefinitely and (b)
Section 2.6 (Title to Assets) shall survive until the third anniversary of the
Closing Date; provided,
further, however,
that such obligations to indemnify and hold harmless shall not terminate with
respect to any item as to which the indemnified party shall have, before the
expiration of the applicable survival period, previously made a claim by
delivering a notice of such claim (stating in reasonable detail the basis of
such claim to the extent then known) pursuant to Section
6.6 to the
indemnifying party.  All other obligations to indemnify and hold
harmless any party pursuant to this Article VI shall not
terminate.

     

    Section
6.6 Procedures.  (a)  In
order for a party (the “indemnified party”)
to be entitled to any indemnification provided for under this Agreement in
respect of, arising out of or involving a claim made by any Person against the
indemnified party (a “Third Party Claim”),
such indemnified party must promptly notify the indemnifying party (the “indemnifying party”)
in writing (and in reasonable detail) of the Third Party Claim after receipt by
such indemnified party of notice of the Third Party Claim; provided, that failure to
give such notification shall not affect the indemnification provided hereunder
except to the extent the indemnifying party shall have been actually prejudiced
in the defense of such claim as a result of such failure.  Thereafter,
the indemnified party shall deliver to the indemnifying party, within five
business days’ time after the indemnified party’s receipt thereof, copies of all
notices and documents (including court papers) received by the indemnified party
relating to the Third Party Claim.

     

    (b) If a
Third Party Claim is made against an indemnified party, the indemnifying party
shall be entitled to participate in the defense thereof and, if it so chooses,
to assume the defense thereof (exercisable by written notice to Purchaser or the
Seller, as applicable, within 60 days of receipt of notice of the Third Party
Claim from Purchaser or the Seller, as applicable) with counsel selected by the
indemnifying party and reasonably acceptable to the indemnified
party.  The indemnifying party’s right to assume the defense of a
Third Party Claim (other than a Third Party Claim relating to an Excluded
Liability in the case of the Seller or an Assumed Liability in the case of
Purchaser) shall be subject to the following conditions:  (i) the
claim involves (and continues to involve) solely monetary damages; (ii) the
claim is not, in the reasonable judgment of the indemnified party, likely to
result in an aggregate liability that will exceed the then remaining amount of
the Maximum; (iii) the indemnifying party expressly agrees in writing with the
indemnified party that, as between the two, the indemnifying party is solely
obligated to satisfy and discharge the claim, subject to the Basket and the
Maximum, to the extent applicable, and (iv) the claim does not relate to or
arise in connection with any criminal or quasi-criminal allegation, proceeding,
action, indictment or investigation.  If the indemnifying party does
not assume control of the defense of such claim within the period of


     

    
      
        
        

      

      
        30

        
        

      

      
        
          
 

      

    

    
       

      time
required or, after assuming such control, the indemnifying party fails to
diligently defend against such claim in good faith (it being understood that
settlement of such claim does not constitute such a failure to defend), the
indemnified party shall have the right to defend and settle such
claim.  Should the indemnifying party so elect to assume the defense
of and continue to be entitled to defend such Third Party Claim, the
indemnifying party shall not be liable to the indemnified party for any legal
expenses subsequently incurred by the indemnified party in connection with the
defense thereof.  If the indemnifying party assumes such defense and
continue to be entitled to defend such Third Party Claim, the indemnified party
shall have the right to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by the
indemnifying party, it being understood that the indemnifying party shall
control such defense.  The indemnifying party shall be liable for the
fees and expenses of counsel employed by the indemnified party for any period
during which the indemnifying party has not assumed the defense thereof or lost
the right to continue such defense hereunder (other than during any period in
which the indemnified party shall have failed to give notice of the Third Party
Claim as provided above).  Each party shall cooperate in the defense
of a Third Party Claim.  Such cooperation shall include the retention
and (upon the indemnifying party’s request) the provision to the indemnifying
party of records and information that are reasonably relevant to such Third
Party Claim, and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder.  Whether or not the indemnifying party assumes the defense
of a Third Party Claim, the indemnified party shall not admit any liability with
respect to, or settle, compromise or discharge, such Third Party Claim without
the indemnifying party’s prior written consent (which consent shall not be
unreasonably withheld or delayed).  If the indemnifying party assumes
the defense of a Third Party Claim, the indemnified party shall agree to any
settlement, compromise or discharge of a Third Party Claim that the indemnifying
party may recommend and that by its terms obligates the indemnifying party to
pay the full amount of the liability in connection with such Third Party Claim,
which releases the indemnified party completely in connection with such Third
Party Claim and that would not otherwise materially adversely affect the
indemnified party.

       

    

    (c) Other
Claims.  In the event any indemnified party should have a claim
against any indemnifying party under Section 6.2 or Section
6.3 that does
not involve a Third Party Claim being asserted against or sought to be collected
from such indemnified party, the indemnified party shall deliver written notice
of such claim with reasonable promptness to the indemnifying
party.  The failure by any indemnified party to so notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to such indemnified party under Section
6.2 or
Section 6.3, except to the extent that the indemnifying party
has been actually prejudiced in the defense of such claim by such
failure.  If the indemnifying party disputes its liability with
respect to such claim, the indemnifying party and the indemnified party shall
proceed in good faith to negotiate a resolution of such dispute.  Such
negotiations will commence as soon as practicable after the indemnified party
shall have given notice of such claim to the indemnifying party.  If
the dispute is not resolved through negotiations within 30 days, such dispute
may be resolved by litigation in an appropriate court of competent jurisdiction
pursuant to the terms of this Agreement.

     

    Section
6.7 Sole Remedy; No Additional
Representations.  (a)  Except as otherwise
specifically provided in any Related Transfer Instrument, each of the parties
hereto 

     

    
      
        
        

      

      
        31

        
        

      

      
        
          
 

      

    

    
       

      acknowledges
and agrees that its sole and exclusive remedy after the Closing Date with
respect to any
and all claims and causes of action relating to this Agreement (including the
Schedules) and the Related Transfer Instruments, the Acquisition and the other
transactions contemplated hereby and thereby, the Business, the Acquired Assets
and the Assumed Liabilities (other than claims of, or causes of action arising
from, fraud or intentional misrepresentation) shall be pursuant to the
indemnification provisions set forth in this Article VI.  In furtherance of the
foregoing, Purchaser hereby waives, from and after the Closing, to the fullest
extent permitted under applicable law, any and all rights, claims and causes of
action relating to this Agreement (including the Schedules) and the Related
Transfer Instruments, the Acquisition and the other transactions contemplated
hereby and thereby, the Business, the Acquired Assets and the Assumed
Liabilities (other than claims of, or causes of action arising from, fraud or
intentional misrepresentation) it may have against the Sellers arising under or
based upon any applicable law or arising under or based upon common law or any
contract (except pursuant to the indemnification provisions set forth in
Section 6.2 or Section
6.3, as
applicable).  Notwithstanding the foregoing, nothing in the foregoing
sentence shall limit the rights of the parties to seek specific performance as
provided in Sections 4.18(d) and 8.13(a).

    

     

    (b) Purchaser
acknowledges that none of the Sellers, their Affiliates or any other Person has
made any representation or warranty, expressed or implied, as to the accuracy or
completeness of any information regarding the Business furnished or made
available to Purchaser and its representatives, except as expressly set forth in
this Agreement (including the Schedules) or the Related Instruments, and none of
the Sellers, their Affiliates or any other Person shall have or be subject to
any liability to Purchaser or any other Person resulting from the distribution
to Purchaser, or Purchaser’s use of, any such information, documents or material
made available to Purchaser in any “data rooms”, management presentations or in
any other form in expectation of the transactions contemplated hereby except to
the extent such information, documents or materials is included in the
representations and warranties of the Sellers set forth in this Agreement
(including the Schedules) or in any Related Instrument.

     

    (c) Purchaser
also acknowledges that, except as expressly set forth in the representations and
warranties set forth in this Agreement (including the Schedules) or in any
Related Instrument, there are no representations or warranties of the Sellers of
any kind, express or implied, with respect to the Business, and that Purchaser
is purchasing the Acquired Assets “as is”, “where is” and “with all
faults”.  Without limiting the generality of the foregoing, except as
expressly set forth in the representations and warranties set forth in this
Agreement (including the Schedules) or in any Related Instrument, THERE ARE NO
EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.

     

    Section
6.8 Limitations on
Liability.  (a)  Notwithstanding any provision
herein, neither the Sellers nor the Purchaser shall in any event be liable to
the other party or its Affiliates, officers, directors, employees, stockholders,
agents, or representatives on account of any indemnity obligation set forth in
Section 6.2(a)(i) and Section
6.2(a)(ii) or
Section 6.3(a)(i) and Section
6.3(a)(ii) for any indirect,
consequential or punitive damages except to the extent payable to third
parties.  

     

    (b) The
Sellers and Purchaser shall cooperate with each other in resolving any claim or
liability with respect to which one party is obligated to indemnify the other
under this 

     

    
      
        
        

      

      
        32

        
        

      

      
        
          
 

      

    

    
       

      Agreement,
including, without limitation, by making commercially reasonable efforts to
mitigate or resolve any such claim or liability to the extent required by
applicable law.

       

    

    (c) For
purposes of determining the existence of any breach of representation and
warranty or calculating the amount of Losses incurred arising out of or relating
to any breach of a representation or warranty (other than those in Sections 2.5,
2.13 and 2.14) in this Agreement (including the Schedules) or in any Related
Transfer Instrument, the references to “Material Adverse Effect” or “material”
or other materiality qualifications (or correlative terms), except when
expressed in accounting concepts such as GAAP, shall be
disregarded.

     

    Section
6.9 Guarantee.  Coty
Inc. hereby unconditionally and irrevocably guarantees, as a primary obligor and
not merely as surety, the due and punctual payment of any amounts owing by the
Sellers pursuant to the indemnification provisions of Section
6.2(a).  Upon any failure
of the Sellers to pay punctually any such amount, Coty Inc. agrees to forthwith
on demand pay the amount not so paid as provided in this
Agreement.  Purchaser may enforce Coty Inc.’s obligations without
first (a) suing the Sellers, (b) joining the Sellers in any suit against Coty
Inc., (c) enforcing any rights and remedies against the Sellers or (d) otherwise
pursuing or asserting any claims or rights against the Sellers or any of their
respective property, in the event of a breach of any of the Sellers’ obligations
under this Article VI.  Coty Inc.’s responsibility shall not be
discharged, released, diminished, or impaired in whole or in part by (i) any
setoff, counterclaim, defense, act or occurrence which Coty Inc. may have
against Purchaser as a result or arising out of any transaction other than the
Acquisition, (ii) the amendment, modification, waiver or alteration of this
Agreement, with or without the knowledge or consent of Coty Inc., or (iii) the
inaccuracy of any of the representations and warranties of the Purchaser under
this Agreement, other than in the case of fraud or intentional
misrepresentation.  Each of the defenses, limitations, conditions and
qualifications on and with respect to the obligations of the Sellers hereunder
shall apply with equal force and effect to the obligations of Coty Inc. in
respect of this Guarantee.

     

    ARTICLE
VII  

     

    TERMINATION

     

    Section
7.1 Termination.  This
Agreement may be terminated and the Acquisition may be abandoned at any time
prior to the Closing:

     

    (a) by mutual
consent of the Seller and Purchaser;

     

    (b) by
Purchaser, if there has been a material breach by the Sellers of any covenant,
representation or warranty contained in this Agreement which will prevent the
satisfaction of any condition to the obligations of Purchaser at the Closing and
such breach has not been
waived by Purchaser or cured by the Sellers within 20 business days after
receipt of written notice thereof from Purchaser;

     

    (c) by the
Seller, if there has been a material breach by Purchaser of any covenant,
representation or warranty contained in this Agreement which will prevent the
satisfaction of any condition to the obligations of the Seller at the Closing
and such breach has 

     

    
      
        
        

      

      
        33

        
        

      

      
        
          
 

      

    

    
       

      not been
waived by the Seller, or cured by Purchaser within 20 business days after
receipt of written notice thereof from the Seller;

       

    

    (d) by either
the Seller or Purchaser if the Closing shall not have occurred by August 15,
2008; provided, that no
party may rely upon this Section 7.1(d) to terminate this Agreement if such party's
material breach of this Agreement has prevented the consummation of the
transactions contemplated hereby; or

     

    (e) by either
the Seller or Purchaser if a Governmental Entity shall have issued an
injunction, restraining order, decree or judgment, or taken any other action, in
each case permanently prohibiting the Acquisition, and such injunction,
restraining order, decree or judgment shall have become final and nonappealable;
provided, that no party
may rely upon this Section
7.1(e) to terminate
this Agreement if such party shall have failed to use its commercially
reasonable efforts to prevent the entry of such injunction, restraining order,
decree or judgment.

     

    Section
7.2 Procedure and Effect of
Termination.  

     

    (a) In the
event of termination and abandonment of the Acquisition pursuant to Section 7.1, written notice
thereof shall forthwith be given to the other party hereto and this Agreement
shall terminate and the Acquisition shall be abandoned, without further action
by any of the parties.

     

    (b) In
the event of termination pursuant to Section 7.1, such termination shall be without liability of
either party (or any stockholder, director, officer, employee, agent, consultant
or representative of such party) to the other party hereto; provided, that
if such termination shall result from the willful (i) failure of either party to
fulfill a condition to the obligations of the other party, (ii) failure to
perform a covenant of this Agreement, or (iii) breach by either party hereto of
any representation or warranty or agreement contained herein, such party shall
be fully liable for any and all damages incurred and suffered by the other party
as a result of such failure or breach.

     

    (c) The
provisions of this Section 7.2 and Sections 4.2
(Confidentiality), 4.6 (Publicity), 8.1 (Notices), 8.7 (Fees and
Expenses), 8.8 (Governing Law), 8.13 (Consent to Jurisdiction) and 8.14 (Waiver
of Jury Trial) shall survive any termination hereof pursuant to Section
7.1.

     

    ARTICLE
VIII

     

    MISCELLANEOUS

     

    Section
8.1 Notices.  All
notices and other communications hereunder shall be in writing and shall be
deemed given upon receipt if delivered personally, or on the third business day
if mailed by registered or certified mail (return receipt requested) or the next
business day, if sent by reputable overnight express courier (charges prepaid)
or upon transmission, if transmitted by facsimile (with confirmation of
transmittal) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):

     

    
      
        	
                (a)  if
      to the Seller, to:

              	 


      

       

      
        
          
          

        

        
          34

          
          

        

        
          
            
 

        

      

       

      
        	 
      	
                Del
      Pharmaceuticals, Inc.

              
	 
      	
                c/o
      Coty Inc.

              
	 
      	
                Two
      Park Avenue

              
	 
      	
                New
      York, New York  10016

              
	 
      	
                Telephone:

              	
                (212)
      479-4338

              
	 
      	
                Facsimile:

              	
                (212)
      479-4328

              
	 
      	
                Attention:

              	
                Jules
      Kaufman, Esq.

              
	 
      	 
      	
                General
      Counsel

              
	 
      	 
      	 
      
	
                with
      a copy to:

              	
                Covington
      & Burling LLP

              
	 
      	
                The
      New York Times Building

              
	 
      	
                620
      Eighth Avenue

              
	 
      	
                New
      York, New York  10018

              
	 
      	
                Telephone:

              	
                (212)
      841-1056

              
	 
      	
                Facsimile:

              	
                (212)
      841-1010

              
	 
      	
                Attention:

              	
                Scott
      Smith, Esq.

              


      

      


      
        	
                (b)  if
      to Purchaser to:

              	 
      
	 
      	
                Church
      & Dwight Co., Inc.

              
	 
      	
                469
      North Harrison Street

              
	 
      	
                Princeton,
      New Jersey 08543-5297

              
	 
      	
                Telephone:

              	
                (609)
      279-7558

              
	 
      	
                Facsimile:

              	
                (609)
      497-7177

              
	 
      	
                Attention:

              	
                President

              
	 
      	 
      	 
      
	
                with
      a copy to:

              	
                Susan
      E. Goldy, Esq.

              
	 
      	
                Church
      & Dwight Co., Inc.

              
	 
      	
                469
      North Harrison Street

              
	 
      	
                Princeton,
      New Jersey 08543-5297

              
	 
      	
                Telephone:

              	
                (609)
      279-7558

              
	 
      	
                Facsimile:

              	
                (609)
      497-7177

              
	 
      	 
      	 
      
	 
      	
                And

              	 
      
	 
      	
                John
      D. LaRocca, Esq.

              
	 
      	
                Dechert
      LLP

              
	 
      	
                Cira
      Centre

              
	 
      	
                2929
      Arch Street

              
	 
      	
                Philadelphia,
      Pennsylvania  19104-2808

              
	 
      	
                Telephone:

              	
                (215)
      994-2778

              
	 
      	
                Facsimile:

              	
                (215)
      655-2778

              


      

    

     

     

    Section
8.2 Definitions;
Interpretation.  (a)  For purposes of this
Agreement:

     

    
      
        
        

      

      
        35

        
        

      

      
        
          
 

      

    

     

    “Affiliate” shall
mean, with respect to any Person, any Person which, directly or indirectly,
controls, is controlled by, or is under common control with, the specified
Person.  For purposes of this definition, the term “control” as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management of that Person, whether
through ownership of voting securities or otherwise.

     

    “Affiliated Group”
shall mean any affiliated group within the meaning of Section 1504(a) of the
Code or any similar group defined under a similar provision of state, local or
foreign law.

     

    “Assignment of Patent”
shall mean the assignment of patent agreement between the Seller and Del
Laboratories, Inc. and Purchaser substantially in the Form of Exhibit
C.

     

    “Assignment of
Trademarks” shall mean the assignment of trademarks agreement between the
Seller and Purchaser substantially in the Form of Exhibit
B.

     

    “Assumption Agreement”
shall mean the assumption agreement between the Sellers and Purchaser
substantially in the form of Exhibit
A.

     

    “Bill of Sale and Assignment
Agreement” shall mean the bill of sale and assignment agreement executed
by the Sellers substantially in the Form of Exhibit
D.

     

    “Business” shall mean
the business of manufacturing, marketing, distributing and selling the Brand
Products and manufacturing and distributing the Private Label Products in each
case as conducted by the Sellers.

     

    “Closing Date” shall
mean the date on which the Closing occurs.

     

    “Canadian Transfer
Documents” shall mean a such bill of sale and Assignment Agreement and/or
an assumption agreement (or similar agreements) as shall be required to sell,
assign, transfer, convey and deliver to Purchaser all right, title and interest
in and to the Acquired Assets (other than Trademarks) located in Canada or owned
by an Affiliate Seller organized under the laws of Canada or a province thereof
to Purchaser, in each case based upon the applicable Exhibit with any such
changes as are required by Canadian law and otherwise in form and substance
reasonably acceptable to the Seller and Purchaser.

     

    “Code” shall mean the
Internal Revenue Code of 1986, as amended.

     

    “Formulae” shall mean
the specifications, formulations, manufacturing processes, chemical
manufacturing control data, quality control and quality assurance data,
production packaging and engineering information and procedures used by the
Sellers exclusively in the manufacture, packaging and distribution of the
Products.

     

    “GAAP” shall mean
United States generally accepted accounting principles as in effect on the date
hereof.

     

    “Governmental Entity”
shall mean any federal, state, local or non-U.S. government or any court of
competent jurisdiction, legislature, governmental agency, 

     

    
      
        
        

      

      
        36

        
        

      

      
        
          
 

      

    

     

    
      administrative
agency or commission or other governmental authority or instrumentality, U.S. or
non-U.S.

       

    

    “Intellectual
Property” shall mean, collectively, Trademarks, Patent and any Other
Intellectual Property.

     

    “Inventory” shall
mean, with respect to the Products, all inventories of finished goods ready for
final sale, componentry, work-in-progress and raw materials (other than
chemicals) owned by the Sellers (including goods in transit or in the possession
of third parties).

     

    “Knowledge of the
Sellers” shall mean the actual knowledge of Randy Sloan (EVP, General
Manager, Del Pharmaceuticals), Bruce MacKay (VP, Scientific Affairs), Cary
Newman (EVP, Global Operations), Scott Pestyner (VP, Finance), Bob Callaghan
(VP, Production Planning), Steve Brainard (VP, Manufacturing), Rick Smith (VP,
Distribution/Warehousing), Paul Buchbauer (VP, Procurement) and Brian Bradley
(SVP Sales, Del Pharmaceuticals).

     

    “Lien” shall mean any
lien (statutory or otherwise), charge, security interest, pledge, mortgage or
similar encumbrance of any kind or nature.

     

    “Manufacturing
Agreement” shall mean the manufacturing agreement between the Sellers and
Purchaser in a form reasonably acceptable to Purchaser and the Seller but in any
event to be drafted in accordance with the term sheet attached hereto as Exhibit
E.

     

    “Material Adverse
Effect” means any event, change, occurrence or development that has or
would reasonably be expected to have a material and adverse effect upon the
business, assets, financial condition or operating results of the Business,
taken as a whole, except any such effect resulting from or arising in connection
with (i) the announcement of the Acquisition or the other transactions
contemplated hereby and by the Related Instruments or any actions taken by the
Sellers as required by this Agreement or at the written request or consent of
Purchaser; (ii) changes or conditions affecting the over-the-counter
pharmaceutical industry generally (so long as such change or condition does not
have a disproportionate effect upon the Business and so long as such change or
condition does not adversely impact the sale, manufacture or distribution of
benzocaine or benzocaine based-products), (iii) changes in applicable law, rules
or regulations or GAAP (so long as such change does not adversely impact the
sale, manufacture or distribution of benzocaine or benzocaine based-products),
or (iv) changes in general economic, regulatory, banking, capital markets, or
political conditions (whether as a result of acts of war, armed hostility,
terrorism or otherwise).

     

    “Other Intellectual
Property” shall mean all the Formulae, technology, inventions,
discoveries (whether patentable or not), processes, specifications, know-how,
trade secrets, goodwill, trade dress, copyrights and research information and
data concerning research and development efforts, in each case, which are owned
by the Sellers and used exclusively in the conduct of the Business.

     

    “Patent” shall mean
U.S. Patent No. 6,524,604, Method, composition and kit to remove lice ova from
the hair, issued on 2/25/03.

     

    
      
        
        

      

      
        37

        
        

      

      
        
          
 

      

    

     

    “Permitted Liens”
shall mean, collectively (a) Liens for taxes or assessments which are not
delinquent or are being contested in good faith by appropriate proceedings for
which collection or enforcement against the property is stayed, (b) mechanics’,
warehousemens’, workmens’, repairmens’ and carriers’ and other similar Liens
arising in the ordinary course for obligations which are not delinquent and (c)
Liens which do not materially impair the value of or the continued use of the
assets subject to such Liens.

     

    “Person” shall mean
any individual, group, corporation, partnership or other organization or entity
(including any Governmental Entity).

     

    “Related Instruments”
shall mean the Assignment and Assumption Agreement, the Assignment of
Trademarks, the Assignment of Patent, the Bill of Sale, the Manufacturing
Agreement, the Transitional Services Agreement and the Canadian Transfer
Documents and any certificate, agreement, instrument or other statement
delivered under this Agreement.

     

    “Related Transfer
Instruments” shall mean each Related Instrument other than the
Manufacturing Agreement and the Transitional Services Agreement.

     

    “Retained Information”
shall mean, with respect to the Business, any and all (i) books and records
prepared and maintained by the Sellers, (ii) regulatory files and (iii)
other materials, data, information, and literature, in each case that are
required to be retained by the Sellers pursuant to applicable law, rules or
regulations or otherwise in order to respond to inspections by the FDA or any
other Governmental Entity, as well as any rights, property and assets (real,
personal or mixed, tangible or intangible) used, but not exclusively used, in
the Business (other than those listed on Schedule 2.13) and is
necessary for the conduct of the Business by Purchaser.

     

    “Taxes”, or “Tax” in the singular
form, shall mean any and all taxes, levies or other like assessments, including,
but not limited to, income, transfer, gains, gross receipts, excise, inventory,
property (real, personal or intangible), custom duty, sales, use, value-added,
license, withholding, payroll, employment, capital stock and franchise taxes,
imposed by the United States, or any state, local or foreign government or
subdivision or agency thereof.  Such terms shall include any interest,
penalties or additions payable in connection with such taxes, levies or like
assessments.

     

    “Tax Return” shall
mean any report, return or other information filed with any taxing authority
with respect to Taxes imposed under a Tax law, regulation or administrative rule
(including any schedule or attachment thereto or any amendment
thereof).

     

    “Trademarks” shall
mean all trademarks, service marks, service names, trade names and domain names
set forth on Schedule
2.7(a) and all registrations, applications and renewals for any of the
foregoing, together with the goodwill associated therewith.

     

    “Transitional Services
Agreement” shall mean the Transitional Services Agreement among the
Sellers and the Purchaser substantially in the form of Exhibit F.

     

    “United States” shall
mean the fifty states of the United States of America, the District of Columbia
and any other possession or territory of the United States of
America.

     

    
      
        
        

      

      
        38

        
        

      

      
        
          
 

      

    

     

    (b) In the
event of an ambiguity or a 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 provisions of this
Agreement.

     

    (c) The
definitions of the terms herein shall apply equally to the singular and plural
forms of the terms defined.  Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter
forms.  The words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”.  The word
“will” shall be construed to have the same meaning and effect as the word
“shall”.  Unless the context requires otherwise (A) any definition of
or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (except any such
amendments, supplements or modifications that are not permitted hereby), (B) any
reference herein to any Person shall be construed to include the Person’s
successors and assigns, (C) the words “herein”, “hereof” and “hereunder”, and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, and (D) all references
herein to Articles, Sections, Exhibits or Schedules shall be construed to refer
to Articles, Sections, Exhibits and Schedules of this
Agreement.

     

    Section
8.3 Descriptive
Headings.  The descriptive headings herein are inserted for
convenience only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.

     

    Section
8.4 Counterparts.  This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when two or
more such counterparts have been signed by each of the parties and delivered to
the other party.

     

    Section
8.5 Entire
Agreement.  This Agreement, the Related Instruments and the
Confidentiality Agreement, along with the Schedules and Exhibits hereto and
thereto, contain the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings, whether written or oral, relating to such subject
matter.  

     

    Section
8.6 Affiliates.  To
the extent any covenant or agreement herein requires action by any Affiliate of
the Seller or Purchaser (it being understood that each of the Affiliate Sellers
is and shall be considered an Affiliate of the Seller for all purposes of this
Agreement), the Seller and the Purchaser shall cause its applicable Affiliate to
comply with such covenant or agreement. 

     

    Section
8.7 Fees and
Expenses.  Except as otherwise provided herein, regardless of
whether or not the transactions contemplated by this Agreement are consummated,
each party shall bear its own fees and expenses incurred in connection with the
transactions contemplated by this
Agreement.    

     

    
      
        
        

      

      
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    Section
8.8 Governing
Law.  This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.

     

    Section
8.9 Assignment.  This
Agreement may not be assigned by any party hereto without the prior written
consent of the other party.  Any attempted assignment in violation of
this Section 8.9 shall be void.  

     

    Section
8.10 Successors and
Assigns.  This Agreement shall be binding upon and inure solely
to the benefit of the parties hereto, their successors and permitted assigns,
and nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person or persons any rights, benefits or remedies of any
nature whatsoever under or by reason of this
Agreement.  Notwithstanding the foregoing, each of the Purchaser
Indemnitees and each of the Seller Indemnitees shall be considered a third party
beneficiary of the indemnification provisions of this
Agreement.  

     

    Section
8.11 Severability.  In
the event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the parties shall negotiate in good
faith with a view to the substitution therefor of a suitable and equitable
solution in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid provision; provided, that the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by
law.

     

    Section
8.12 Amendments and
Waivers.  This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties
hereto.  By an instrument in writing Purchaser, on one hand, or the
Seller, on the other hand, may waive compliance by the other party with any term
or provision of this Agreement that such other party was or is obligated to
comply with or perform.

     

    Section
8.13 Specific Performance;
Jurisdiction.

     

    (a) Notwithstanding
anything to the contrary set forth herein or elsewhere, the parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached.  It is accordingly agreed that the parties shall
be entitled to seek an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any federal court of the United States of America sitting in New York City,
this being in addition to any other remedy to which they are entitled at law or
in equity.

     

    (b) Each of
the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the exclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any 

     

    
      
        
        

      

      
        40

        
        

      

      
        
          
 

      

    

     

    
      thereof,
in any action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby or for recognition or enforcement of any
judgment relating thereto (except to the extent such matter is required to be
decided by an independent accountant as contemplated by this Agreement), and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the extent permitted by law, in
such federal court.  Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.

       

    

    (c) Each of
the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby in
any New York State or federal court.  Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.

     

    (d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section
8.1.  Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by
applicable law.

     

    Section
8.14 Waiver of Jury
Trial.

     

    (a) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.

     

    (b) EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF THE
FOREGOING WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 8.14(b).

     

    Section
8.15 Representations.  The
representations and warranties hereunder shall not be affected or diminished by,
and no right of indemnification for breach of such representations or warranties
shall be limited or waived by reason of, any investigation or knowledge of such
breach prior to the Closing by the party or parties for whom benefit such
representations and warranties are made.  

     

    *           *           *           *           *

     

    
      
        
        

      

      
        41

        
        

      

      
        
          
 

      

    

    
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.

     

    
      	 
      	
              DEL
      PHARMACEUTICALS, INC.

            
	 
      	
              By:   

            	
              /s/
      Michael Fishoff

            
	 
      	 
      	
              Name:

            	
              Michael
      Fishoff

            
	 
      	 
      	
              Title:

            	
              CFO

            


    

    

 

    
      	 
      	
              CHURCH
      & DWIGHT CO., INC.

            
	 
      	
              By:   

            	
              /s/
      Matthew T. Farrell

            
	 
      	 
      	
              Name:

            	
              Matthew
      T. Farrell

            
	 
      	 
      	
              Title:

            	
              CFO

            


    

    
 

    Solely with respect to Section
6.9:

    
 

    
      	
              COTY
      INC.

            
	
              By:   

            	
              /s/
      Michael Fishoff

            
	 
      	
              Name:

            	
              Michael
      Fishoff

            
	 
      	
              Title:

            	
              CFO