**EXECUTION COPY****Exhibit 10.14****PACKAGED GAS BUSINESS****EQUITY PURCHASE****AGREEMENT****BY AND AMONG****LINDE GAS INC.,****LINDE AG****AND****AIRGAS, INC.** **DATED AS OF MARCH 29, 2007** 
 

 
**TABLE OF CONTENTS**     SECTION 1 DEFINITIONS  1      1.1 Definitions  1 1.2 Construction  28      SECTION 2 PURCHASE AND SALE OF PURCHASED EQUITY INTERESTS  29      2.1 Purchase and Sale of Purchased Equity Interests  29 2.2 Purchase Price  29 2.3 Post-Closing Payment  29 2.4 Allocation  31      SECTION 3 CLOSING  31      3.1 Closing  31 3.2 Certain Closing Deliveries by the Seller  32 3.3 Certain Closing Deliveries by the Purchaser  32      SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE SELLER  33      4.1 Corporate Organization of the Seller and the Guarantor  33 4.2 Organization of the Operating Company  33 4.3 Corporate Authority and Binding Obligation  34 4.4 Capitalization and Ownership  34 4.5 Ownership of Purchased Equity Interests  36 4.6 No Violation  36 4.7 Governmental Approvals  36 4.8 Financial Statements  36 4.9 No Undisclosed Liabilities  37 4.10 No Business Material Adverse Effect  37 4.11 Packaged Assets  38 4.12 Litigation and Proceedings  39 4.13 Accounts Receivable  40 4.14 Inventory  40 4.15 Intellectual Property  40 4.16 Real Property  41 4.17 Permits  43 4.18 Agreements  43 4.19 Customers  44 4.20 Employees  45 4.21 Compliance with Laws  47 4.22 Environmental  47 4.23 Taxes  48 4.24 Transactions with Affiliates and Related Parties  50 4.25 No Other Representations and Warranties  50 
i 

 
     SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER  50      5.1 Corporate Organization  51 5.2 Corporate Authority  51 5.3 No Violation  51 5.4 Governmental Approvals  51 5.5 Availability of Funds  52 5.6 Employee Benefits  52 5.7 Independent Investigation; Seller’s Representations  52      SECTION 6 FURTHER COVENANTS  53      6.1 Access to Information and Documents; Pre-Closing Cooperation  53 6.2 Assistance Relating to Warranty Rights  55 6.3 Confidentiality Agreements  55 6.4 Non-Competition  58 6.5 Non-Solicitation  61 6.6 Consents and Approvals, etc.  62 6.7 Rebates and Discounts; Containers  64 6.8 Conduct of the Packaged Gas Business Prior to the Closing Date  64 6.9 Exclusivity  66 6.10 Agreements  67 6.11 Intellectual Property Licenses  67 6.12 Financing  72 6.13 Access and Cooperation  72 6.14 Tax Matters  73 6.15 Litigation  74 6.16 Acquisition Agreements  74 6.17 Closing Conditions  74 6.18 Auditor’s Consents; Audit Expenses  74 6.19 PG Restructuring  75      SECTION 7 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER  77      7.1 Representations and Warranties  77 7.2 Covenants and Agreements  78 7.3 No Business Material Adverse Effect  78 7.4 Officer’s Certificate  78 7.5 Litigation  78 7.6 Regulatory Consents  78 7.7 PG Restructuring  79      SECTION 8 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER  79      8.1 Representations and Warranties  79 8.2 Covenants and Agreements  79 
ii 

 
     8.3 Officer’s Certificate  79 8.4 Regulatory Consents  79 8.5 PG Restructuring  80      SECTION 9 EMPLOYEES  80      9.1 Employees at Closing; Notice  80 9.2 Treatment of Annual Bonuses  80 9.3 Stay Bonus Arrangements  81 9.4 Other Employee Matters  81      SECTION 10 BROKERAGE  86      SECTION 11 EXPENSES  87      SECTION 12 TRANSFER TAXES AND RECORDING EXPENSES  87      12.1 Transfer and Recording Taxes  87 12.2 Real and Personal Property Taxes  87      SECTION 13 SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION  87      13.1 Survival of Representations and Warranties  87 13.2 Indemnification of the Purchaser  88 13.3 Duration of Indemnification of the Purchaser  88 13.4 Limitations on Indemnification of the Purchaser  89 13.5 Indemnification of the Seller  93 13.6 Duration of Indemnification of the Seller  94 13.7 Limitation on Indemnification of the Seller  95 13.8 Procedure for Indemnification  95 13.9 Payment Limitation  98 13.10 Tax Matters  98 13.11 Exceptions  101 13.12 Exclusive Remedy  102 13.13 Mitigation  102 13.14 Additional Limitations on Indemnification  102      SECTION 14 TERMINATION OF AGREEMENT  103      14.1 Events of Termination  103 14.2 Consequences of Termination  104 14.3 Special Termination Fee and Rights upon Termination  104      SECTION 15 CONSENT TO JURISDICTION; SERVICE OF PROCESS; DISPUTE RESOLUTION; WAIVER OF JURY TRIAL  105      15.1 General Disputes  105 
iii 

 
     SECTION 16 ENFORCEMENT OF CERTAIN PROVISIONS AND SPECIFIC PERFORMANCE  106      16.1 Enforcement of Certain Provisions  106 16.2 Specific Performance  106      SECTION 17 GUARANTY  107      17.1 Guaranty  107 17.2 No Impairment  107 17.3 Waiver  107      SECTION 18 BULK SALES LAW  107      SECTION 19 PUBLIC ANNOUNCEMENTS  107      SECTION 20 NOTICES  108      SECTION 21 EXTENSIONS AND WAIVERS  109      SECTION 22 ENTIRE AGREEMENT  109      SECTION 23 GOVERNING LAW; SERVICE OF PROCESS ON GUARANTOR  109      SECTION 24 TRANSFERABILITY; NO THIRD PARTY BENEFICIARIES  110      SECTION 25 SEVERABILITY  110      SECTION 26 COUNTERPARTS  110 
iv 

 
**LIST OF SCHEDULES**   **Schedule** **Description**DEF-A [Intentionally Omitted]DEF-B Divested Tangible PropertyDEF-C Excluded Assets — Intellectual PropertyDEF-D Excluded Assets — ContractsDEF-E Packaged CBAsDEF-F Knowledge of the SellerDEF-G Leased Real PropertyDEF-H Owned Real PropertyDEF-I Packaged Equipment — Leased Vehicles Used by Business EmployeesDEF-J [Intentionally Omitted]DEF-K Packaged Intellectual Property (Delivered Applications)DEF-L [Intentionally Omitted]DEF-M Retained Real PropertyDEF-N Container MethodologyDEF-O Excluded Assets — EquipmentDEF-P Retained Employees4.2(a) Qualification Exceptions4.4(a) Capitalization and Ownership — Membership Interests4.4(b) Capitalization and Ownership — No Other Rights4.5 Ownership of Purchased Equity Interests4.6(c) No Violation — Liens4.6(d) No Violation — Material Permits4.6(e) No Violation — Material Contracts4.7 Governmental Approvals — Seller4.9 No Undisclosed Liabilities4.10 No Business Material Adverse Effect4.11(a)(i) Good Title Exceptions4.11(a)(ii) Operating Condition Exceptions4.11(b) Vehicles and Equipment4.12 Litigation and Proceedings4.15(a) Primary Domestic Patents & Patent Applications4.15(b) Third-Party IP Licenses4.15(h) IP Exceptions
v 

 
   **Schedule** **Description**4.16(a) Excluded Property (Owned and Leased)4.16(b) Leased Real Property Exceptions4.16(d) No Options4.17 Material Permits4.18(a) Material Contracts4.18(a)(vi) Packaged IP Licenses4.18(b) Notices of Termination or Default4.19(a) Material Customers4.20(a) Employee Benefit & Compensation Plans4.20(b) Employee Benefit & Compensation Plan Compliance4.20(c) No Violation — Liens4.20(d) Employee Benefit & Compensation Plan — No Liabilities4.20(e) Collective Bargaining Agreements — Covered Claims4.20(f)-1 Business Employees Rendering Services for the Packaged Gas Business4.20(f)-2 Business Employees — Salary or Wage Rate Increases or Promotions4.21 Compliance with Laws4.22 Environmental4.23 Taxes4.24 Transactions with Affiliates and Other Related Parties5.4 Governmental Approvals — Purchaser6.1 Pre-Closing Cooperation and Access to Information and Documents6.5(c) Transferred Employees — Number of Fillers6.8 Conduct of PGB Prior to Closing Date6.8(i) CBAs — Individual Empowered to Make Decisions6.8(n) Capex Summary6.11(b)(i) Primary Linde AG-Owned Licensed U.S. Patents6.11(b)(ii) Specific Patent/Patent Application for Limited License6.11(d)(iii) Trademarks Included in 18 Month Transitional Trademark License6.11(d)(iv) Trademarks Included in Perpetual Trademark License6.11(e) Trademarks Included in 180 Day Transitional Trademark License6.11(h) Proprietary Software9.2 Transferred Employees — 2007 Bonuses13.2(c) Indemnification of Purchaser  — Conditions13.4(a) Large Production Sites
vi 

 
**LIST OF EXHIBITS**   Exhibit A Carve-Out PrinciplesExhibit B PG Restructuring TermsExhibit C Master Site License AgreementsExhibit D Transition Services AgreementExhibit E Working Capital Statement PrinciplesExhibit F Product Supply AgreementExhibit G Financial StatementsExhibit H Amended Purchaser Severance Plan
vii 

 
**EQUITY PURCHASE AGREEMENT**     EQUITY PURCHASE AGREEMENT, dated as of March 29, 2007 (this “Agreement”), by and amongLINDE GAS INC., a Delaware corporation (the “Seller”), LINDE AKTIENGESELLSCHAFT, a Germancorporation (the “Guarantor”), and AIRGAS, INC., a Delaware corporation (the“Purchaser”).     WHEREAS, the Seller and Linde Gas USA LLC, a Delaware limited liability company (the“Operating Company”) and wholly owned Subsidiary of the Seller, own, lease or otherwisehave rights in the Packaged Assets (as hereinafter defined);     WHEREAS, the Seller owns one hundred percent (100%) of the outstanding equity interests of theOperating Company (the “Purchased Equity Interests”) and, following the PG Restructuring(as hereinafter defined), the Operating Company will own all of the Packaged Assets and no othermaterial operating assets;     WHEREAS, the Seller is an indirect wholly owned Subsidiary of the Guarantor;     WHEREAS, prior to the closing of the transactions contemplated by this Agreement, theGuarantor and the Seller shall use their reasonable best efforts to cause the transactionscontemplated by the PG Restructuring to occur; and     WHEREAS, the Purchaser desires to purchase from the Seller, and the Seller desires to sell tothe Purchaser, all of the Purchased Equity Interests, upon the terms and subject to the conditionsset forth in this Agreement.     NOW, THEREFORE, in consideration of the premises and the respective agreements hereinafter setforth, and intending to be legally bound hereby, the parties hereto agree as follows:**SECTION 1****DEFINITIONS**     1.1 Definitions. The terms defined in this Section 1.1 shall have the followingmeanings for the purposes of this Agreement:     “2007 Bonus” has the meaning set forth in Section 9.2 hereof.     “Accounts Receivable” has the meaning set forth in the definition of “PackagedAssets” contained in this Section 1.1.     “Acquired Competitor” has the meaning set forth in Section 6.4(d) hereof.     “Acquiring Competitor” means a Third Party who, directly or indirectly, engages inCompetitive Activities.     “Acquisition Proposal” has the meaning set forth in Section 6.9(a) hereof.
1

 
     “Action” means any action, claim, suit, demand, complaint, investigation or otherproceeding (at law, in equity or admiralty or otherwise), including any action, suit or demand forpersonal injury or property damage.     “Affiliate” of a Person means a Person that directly or indirectly, through one ormore intermediaries, controls or is controlled by or is under common control with such Person. Forpurposes of this definition, the term “controls,” “is controlled by,” or “is under common controlwith” means the possession, directly or indirectly, of the power to direct or cause the directionof the management and policies of a Person, whether through the ownership of voting securities, bycontract or otherwise.     “Affiliate Arrangements” has the meaning set forth in Section 4.24 hereof.     “Agreement” has the meaning set forth in the preamble hereto.     “Amended Purchaser Severance Plan” has the meaning set forth in Section 9.4(e)(ii)hereof.     “Auditor’s Consent” has the meaning set forth in Section 6.18(b) hereof.     “Basket Amount” has the meaning set forth in Section 13.4(a)(i) hereof.     “Benefiting Party” has the meaning set forth in Section 6.19(d) hereof.     “BOC” means The BOC Group, Inc., a Delaware corporation.     “BOC/Linde Arrangement” means the cash offer by the Guarantor to acquire the entireissued and to be issued share capital of BOC Parent, which acquisition closed on September 5, 2006.     “BOC Business” means the businesses owned, operated, or conducted by BOC Parent or itssubsidiaries as of the closing of the BOC/Linde Arrangement.     “BOC Parent” means The BOC Group plc, a public limited company existing under and byvirtue of the laws of the United Kingdom.     “Books and Records” means all books, records and other documents (whether on paper,computer diskette, tape, electronic or other storage media) of the Seller, the Operating Companyand, if applicable, any of their respective Affiliates, to the extent relating to the Packaged GasBusiness or the Packaged Assets wherever located, including property records, production records,inventory information and records, purchase and sales records, credit data, labor relationsrecords, personnel records, accounting records, financial reports, tax returns, maintenance andproduction records, environmental records and reports, fixed asset lists, customer lists, customerdatabases, customer records and information, supplier and vendor lists, parts lists, manuals,technical and repair data, correspondence, files, blueprints, specifications, maps, surveys,building and machinery diagrams, sale promotion literature and advertisingmaterials, and any items that are similar to any of the foregoing; provided, that theSeller shall be entitled to redact from the Books and Records any information that does not relatein any manner
2

 
to the Packaged Gas Business or the organization, ownership and subsistence of theOperating Company; and providedfurther that the Books and Records need not includeany information (a) that relates to the Excluded Businesses (including financial information andtax returns) or the Operating Company’s operations (i) from which information relating to thePackaged Gas Business only is not separable (after good faith efforts to do so) and (ii) that isnot necessary for the conduct of the Packaged Gas Business substantially as conducted as of thedate hereof (it being understood that any determination as to whether the circumstances describedin clauses (i) or (ii) of this definition of “Books and Records” applies to certain informationshall be made by the Seller in good faith) or (b) that relates to the Industrial Gas SuppliersAlliance or any of the other members thereof.     “Bulk Business” means the businesses of the Seller and its Affiliates of producing,refining, distributing, marketing, selling and/or supplying, manufacturing, purchasing, preparing,purifying, transfilling, storing and packaging all gases and chemicals in vessels other thanContainers and other related applications or equipment. For the avoidance of doubt, “BulkBusiness” shall not mean the “Bulk Gas Business” (as defined in the Bulk Gas Agreement) acquired bythe Purchaser in accordance with the terms of the Bulk Gas Agreement.     “Bulk Closing” means the closing of the transactions contemplated by the Bulk GasAgreement, which occurred on March 9, 2007.     “Bulk Gas Agreement” means the Bulk Gas Business Equity Purchase Agreement, dated asof November 22, 2006, by and among the Purchaser, the Guarantor and the other parties thereto.     “Business Day” means any day other than Saturday, Sunday, or a day on which banks inthe State of New York are authorized or obligated by Law or executive Order to be closed.     “Business Employees” means all employees of the Seller, the Operating Company or anyof their respective Affiliates (i) who render services with respect to the Packaged Gas Businessand are set forth on Schedule 4.20(f)-1 (except those employees who are Retained Employees), whichSchedule 4.20(f)-1 shall be updated by the Seller, subject to the Purchaser’s approval (other thanemployees hired to fill an open position in the Ordinary Course of Business) of any additions, atleast ten (10) days prior to the Closing and periodically as the Purchaser may reasonably requestthrough the Closing to include deletion of any employee whose employment terminates prior to theClosing Date (or otherwise ceases to render services with respect to or perform functions for thePackaged Gas Business) for any reason and to add, as applicable, new hires, transferees and otherpersons designated as Business Employees in accordance with this Agreement or as otherwisereasonably agreed between the Seller and the Purchaser or (ii) who are determined to be BusinessEmployees in accordance with Section 9.4(b)(i).     “Business Material Adverse Effect” means any event, circumstance, fact, development,change or effect that is or would reasonably be expected to be materially adverse to the condition(financial or otherwise), properties, liabilities or results of operations of thePackaged Gas Business and the Operating Company, taken as a whole, or that would materiallyimpair or delay the Seller’s obligation under this Agreement or the other Transaction Documents
3

 
orthe consummation of the transactions contemplated by this Agreement or the PG Restructuring and theother Transaction Documents; provided, however, that none of the following shall betaken into account in determining whether there has been a Business Material Adverse Effect: (i) adecline in the market price of any of the products of the Packaged Gas Business, (ii) an increasein the price of raw materials used in the Packaged Gas Business, (iii) general economic conditions,(iv) conditions generally affecting the industries in which the Packaged Gas Business operates, andnot affecting the Packaged Gas Business in a disproportionate manner, (v) effects resulting from orrelated to the announcement, pendency or completion of the transactions contemplated by, or thecompliance of the Seller with the terms of this Agreement or the Bulk Gas Agreement, including anyrelated loss of customers or employees (except for (x) any loss of customers or employees resultingfrom the failure of the Seller or any of its Affiliates to use commercially reasonable efforts toprevent such loss of customers or employees and (y) any effects resulting from a breach of Sections4.3, 4.6 or 4.7 of this Agreement), or (vi) any natural disaster or acts of war, sabotage,terrorism, hostilities, military action or escalation or worsening thereof, except in the case ofthis sub-clause (vi), to the extent that the Packaged Gas Business or the Operating Company isdisproportionately affected thereby.     “Carbon Dioxide Dry Cleaning Business” means the Seller’s and its Affiliates’businesses of supplying carbon dioxide and other products to dry cleaning customers.     “Caribbean Business” means the Seller’s and its Affiliates’ businesses of supplyingindustrial, medical, and specialty gases in Containers and in bulk form, and welding supplieshardware and other equipment to customers located in the Dominican Republic, Mexico, Puerto Rico,St. Croix, and other areas in and around the Caribbean Sea.     “Carve-Out Principles” means the carve-out and allocation principles, procedures andmethodologies set forth on Exhibit A applied in connection with the preparation of theUnaudited Financial Statements.     “CERCLA” means the Comprehensive Environmental Response, Compensation and LiabilityAct (42 U.S.C. §§9601 et seq.), as amended, and any legally enforceable rules, regulationsand standards issued thereunder, in each case as of the Closing.     “Change of Control Transaction” means, with respect to the Guarantor, any of thefollowing transactions (a) the direct or indirect sale, lease, exchange or other transfer of all orsubstantially all of the assets of the Guarantor to any Person or group of Persons acting inconcert as a partnership or other group, (b) the merger or consolidation of the Guarantor with orinto another Person resulting in the then existing shareholders of the Guarantor (determinedimmediately prior to such merger or consolidation) holding fifty percent (50%) or less of thecombined voting power of the then outstanding securities ordinarily having the right to vote in theelection of directors or their equivalents of (i) the surviving Person of such merger or (ii) thePerson resulting from any such consolidation or its ultimate parent (such percentage beingdetermined, in the case of clauses (i) or (ii), immediately following such merger orconsolidation), (c) the replacement of a majority of the supervisory board of the Guarantor over atwo-year period, from the members who constituted the supervisory board at the beginning ofsuch period, and such replacement shall not have been approved by the supervisory board of the
4

 
Guarantor as constituted at the beginning of such period, or (d) a Person or group of Personsacting in concert as a partnership or other group shall, as a result of a tender or exchange offer,open market purchases, privately negotiated purchases or otherwise, have become the beneficialowner (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) ofsecurities of the Guarantor representing fifty percent (50%) or more of the combined voting powerof the then outstanding securities of the Guarantor ordinarily having the right to vote in theelection of members of the supervisory board.     “Claim Notice” means the notice defined in Section 13.8(a) hereof.     “Cleveland Headquarters” means the leased real property occupied by the Seller orcertain of its Affiliates and located at Beacon Place, 6055 Rockside Woods, Blvd., Independence,Ohio.     “Cleveland HQ Lease” means the lease agreement governing the lease of the ClevelandHeadquarters, dated as of February 26, 1996, by and between 6055 Properties Ltd., as the landlordthereunder, and AGA Gas, Inc., as the tenant thereunder, as amended by (1) the First Amendment ofLease, dated as of December 20, 1996; (2) the Second Lease Amendment, dated as of January 24, 2001;(3) the Third Lease Amendment, dated as of December 1, 2005; and (4) the Amended and Restated ThirdLease Amendment, dated as of December 30, 2005.     “Closing” means the closing defined in Section 3.1 hereof.     “Closing Date” means the date of closing as provided in Section 3.1 hereof.     “Closing Date Payment” means an amount equal to three hundred and ten million, dollars($310,000,000).     “Closing Financial Statements” has the meaning set forth in Section 6.18(a) hereof.     “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.     “Code” means the Internal Revenue Code of 1986, as amended (including any successorcode), and the rules and regulations promulgated thereunder.     “Collective Bargaining Agreement” means any collective bargaining agreement and anyand all other agreements, understandings, contracts, letters, side letters and contractualobligations of any kind, nature and description, oral or written, entered into between any “labororganization” (as defined in Section 2(5) of the National Labor Relations Act) and the OperatingCompany or its Affiliates, which cover any Business Employee.     “Competitive Activities” has the meaning set forth in Section 6.4(a) hereof.     “Competitive Revenues” has the meaning set forth in Section 6.4(d) hereof.
5

 
     “Condition” means a Release of a Hazardous Substance or a violation of anEnvironmental Law that results in an Environmental Liability.     “Confidentiality Agreement” means the Confidentiality Agreement, dated as of March 16,2006, between the Guarantor and the Purchaser.     “Consent” means any consent, approval, Order, ratification, authorization or actionof, or any filing, registration or declaration with, or any notice to any Person.     “Containers” means cylinders, dewars, lecture bottles, pallet tanks filled at cylinderfilling facilities, and bulk-acetylene trailers.     “Container Deposits and Rents” means (i) all deposits of rents made by customers underContainer leases to the extent such deposits relate to the Packaged Gas Business or the PackagedAssets and (ii) all prepayments of rents made by customers under Container leases to the extentsuch prepayments relate to the Package Gas Business or the Packaged Assets.     “Contest” has the meaning set forth in Section 13.10(a)(i) hereof.     “Contracts” has the meaning set forth in the definition of “PackagedAssets”contained in this Section 1.1.     “Copyrights” has the meaning set forth in the definition of “Intellectual Property”contained in this Section 1.1.     “Covered Claims” has the meaning set forth in Section 4.20(e)(iii) hereof.     “Covered Customer” has the meaning set forth in Section 6.4(b) hereof.     “Covered Loss” has the meaning set forth in Section 13.11(a) hereof.     “Covered Period” has the meaning set forth in Section 9.4(e)(i) hereof.     “Credit Agreement” has the meaning set forth in Section 5.5 hereof.     “Cryonite Business” means the Seller’s and its Affiliates’ businesses of producing,marketing, selling and supplying of industrial gases, equipment or know how in connection with pestcontrol or pest control applications.     “Current Fiscal Year” has the meaning set forth in Section 9.4(f) hereof.     “Diminution in Value Losses” has the meaning set forth in Section 13.11(b) hereof.     “Dispute” has the meaning set forth in Section 15.1(a) hereof.     “DOJ” has the meaning set forth in Section 4.7 hereof.
6

 
     “Dollar”, “dollar” and “$” shall be references to United Statesdollars.     “EBITDA” means, for any given period, the sum of (i) net income (or loss), (ii) allinterest expense, (iii) all charges against income for federal, state and local taxes, (iv) alldepreciation expense, (v) all amortization expense and (vi) cost sharing payments to AGA AB forreimbursement of product marketing and development, administrative support services and othernon-stewardship related expenses. “EBITDA,” to the extent relating to the Packaged GasBusiness, shall be determined and calculated in accordance with the Carve-Out Principles.     “ECOVAR Business” means the Seller’s and its Affiliates’ businesses of producing,refining, marketing, selling and supplying of air gases, hydrogen or other gases (up to a capacityof 200 tons per day) from production facilities and related distribution systems that utilizemembrane, adsorption, cryogenic, fuel cell, electrolytic, or other technologies. For the avoidanceof doubt, ECOVAR Business includes all liquid or gaseous products that the customer consumes at thesite whether directly related to the on-site production facility or not, but excludes the sale ofgaseous products to customers in Containers.     “Electronic Gases Business” means the Seller’s and its Affiliates’ businesses ofmanufacturing, purchasing, storing, purifying, preparing, transfilling, packaging, marketing,distributing, selling and/or supplying any products (including the sale of associated gasesotherwise included in the Packaged Gas Business and related equipment), in any physical state,where such products are sold for use to manufacturers, assemblers, or testers of silicon wafers,semiconductor devices, compound semiconductor wafers, compound semiconductor devices, photovoltaicdevices, photonic devices, SiGe devices, LCD’s and LED’s, optical fibers, fiber optics, or anysimilar materials or devices.     “Employee Benefit and Compensation Plans” means any plan, program, arrangement oragreement that is a pension, profit-sharing, savings, retirement, employment, consulting, severancepay, termination, executive compensation, incentive compensation, deferred compensation, bonus,stock purchase, stock option, phantom stock or other equity-based compensation, change-in-control,retention, salary continuation, vacation, sick leave, disability, death benefit, group insurance,hospitalization, medical, dental, life (including all individual life insurance policies as towhich the Operating Company or any of its ERISA Affiliates is the owner, fiduciary, beneficiary,administrator or any combination thereof), Code Section 125 “cafeteria” or “flexible” benefit,employee loan, educational assistance or fringe benefit plan, whether written or oral, including,any (i) “employee benefit plan” within the meaning of Section 3(3) of the Employee RetirementIncome Security Act of 1974, as amended (“ERISA”), or (ii) other employee benefit plan,agreement, program, policy, arrangement or payroll practice, whether or not subject to ERISA(including any funding mechanism therefor now in effect or required in the future as a result ofthe transaction contemplated by this Agreement or otherwise), in each such case maintained by orcontributed to by the Operating Company or any of its ERISA Affiliates for the benefit of anyBusiness Employee, whether any such Business Employee has any past, present or future right tobenefits, or otherwise in respect of which the Operating Company or any of its ERISA Affiliateshave any liability with respect to any Business Employee.     “Employment Claims” has the meaning set forth in Section 4.20(e)(iii) hereof.
7

 
     “Employment Requirements” has the meaning set forth in Section 9.4(l)(i) hereof.     “Environmental Basket Amount” has the meaning set forth in Section 13.4(a)(ii) hereof.     “Environmental Cap” has the meaning set forth in Section 13.4(a)(ii) hereof.     “Environmental Laws” means all applicable Laws in effect as of the Closing (exceptwith respect to Excluded Packaged Gas Environmental Liabilities and subsection (n) of thedefinition of Excluded Liabilities for which Environmental Laws shall mean all applicable Laws ineffect on or after the Closing) that address or are related to the pollution or protection of theenvironment, including animal and plant life and the protection of human health and safety as theymay be affected by exposure to Hazardous Substances, including the CERCLA; the Hazardous MaterialsTransportation Authorization Act of 1994 (49 U.S.C. §§5101 et seq.); the FederalInsecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§136 et seq.); the Solid WasteDisposal Act (42 U.S.C. §§6901 et seq.); the Toxic Substance Control Act (15 U.S.C. §§2601et seq.); the Clean Air Act (42 U.S.C. §§7401 et seq.); the Federal Water PollutionControl Act (33 U.S.C. §§1251 et seq.); and the Safe Drinking Water Act (42 U.S.C. §§300(f)et seq.).     “Environmental Liabilities” means all obligations or Losses (including obligations orLosses arising out of legal notices, Actions or other assertion of obligation or liability),resulting or arising from or under (a) any Environmental Law, (b) any Release of, or potentialRelease of, or exposure to, any Hazardous Substance, or (c) an enforceable Order issued or imposedunder or pursuant to an Environmental Law.     “Environmental Losses” has the meaning set forth in Section 13.4(a)(ii) hereof.     “Environmental Permit” means any Permit that is authorized or required pursuant to anEnvironmental Law.     “Equipment” means tangible personal property, including all Containers, bulk tanks,furniture, appliances, fixtures, computer hardware, terminals, servers, systems and related items,data and voice telecommunications equipment, furnishings, tools, pumps, compressors, vaporizers,machinery, spare parts and similar equipment and fork lifts and motor vehicles, trailers, and otherdelivery or distribution equipment (including trucks and tractors), but excluding items held asinventory.     “ERISA” has the meaning set forth in the definition of “Employee Benefit andCompensation Plans” contained in this Section 1.1.     “ERISA Affiliate” means as to any Person, any other Person, whether or notincorporated, which together with such Person would be deemed, at any time through the ClosingDate, a single employer within the meaning of Section 4001 of ERISA or Section 414(b), (c), (m) or(o) of the Code.     “ERISA Affiliate Liability” means any obligation, liability or expense of the Selleror the Operating Company which arises under or relates to any Employee Benefit and
8

 
Compensation Plan that is subject to Title IV of ERISA, Section 302 of ERISA, Section 412 ofthe Code, COBRA or any other statute or regulation that imposes liability on a so-called“controlled group” basis with or without reference to any provision of Section 414 of the Code orSection 4001 of ERISA, including by reason of the Seller’s affiliation with any of its ERISAAffiliates or the Purchaser being deemed a successor to any ERISA Affiliate of the Seller.     “Excepted Customers” has the meaning set forth in Section 6.4(b) hereof.     “Excepted Representations” has the meaning set forth in Section 13.3 hereof.     “Excluded Assets” means all tangible and intangible assets and property of theGuarantor or any of its Affiliates used with respect to the Excluded Businesses (except to theextent such assets or property constitute Packaged Assets) or that is not included in the PackagedAssets, including the following assets of the Guarantor and its Affiliates:     (a) cash on hand or in banks, other than petty and drawer cash on hand at the Owned RealProperty or Leased Real Property on the Closing Date;     (b) accounts receivable, other than the Accounts Receivable;     (c) copies of all Books and Records;     (d) all Equipment owned, leased, used or held for use by the Seller or its Affiliates thatdoes not constitute Packaged Equipment, including the Equipment listed on Schedule DEF-O;     (e) all inventory owned, leased, used or held for use or resale by the Seller or itsAffiliates in the Excluded Businesses and that does not otherwise constitute Packaged Inventory,including the Retained Inventory;     (f) all real property (including the Retained Real Property), including all of the buildings,structures, fixtures and other Improvements located thereon and together with all appurtenances,rights, easements, licenses and permits appurtenant to or for the benefit of such real property,other than the Real Property;     (g) all tangible personal property located upon the Retained Real Property, other than thetangible personal property listed on Schedule DEF-B;     (h) all Intellectual Property owned, licensed, used or held for use by the Seller or itsAffiliates that does not otherwise constitute Packaged Intellectual Property and does not relateexclusively to the Packaged Gas Business or the Packaged Assets, including the IntellectualProperty listed on Schedule DEF-C and any Intellectual Property that relates exclusively to or isused exclusively in the Retained Wholesale Acetylene Business, subject, as applicable, to thelicenses described in Section 6.11;     (i) all contractual rights under or relating to any Contract that is not a Packaged Contract,including those set forth on Schedule DEF-D;
9

 
     (j) any rights to Tax refunds, credits or similar benefits attributable to any Taxes withrespect to the Packaged Gas Business or the Packaged Assets for any Pre-Closing Tax Period;     (k) any originals or copies of Tax Returns of the Seller or any of its Affiliates (includingthe Operating Company); and     (l) all rights of the Seller under the Transaction Documents.     “Excluded Businesses” means any businesses or operations of the Seller or any of itsAffiliates, currently or formerly operated, other than the Packaged Gas Business, including the (i)Bulk Business, (ii) BOC Business, (iii) INO Therapeutics Business, (iv) ECOVAR Business, (v)Tonnage Air Gas Business, (vi) HYCO Business, (vii) Cryonite Business, (viii) Other MajorEngineering Projects and Businesses, (ix) TMG Business, (x) Spectra Gases Business, (xi) LAGMethanol Business, (xii) LifeGas Business, (xiii) Hydrogen Refueling and Alternate Fuel Business,(xiv) Carbon Dioxide Dry Cleaning Business, (xv) Electronic Gases Business, (xvi) Rare GasesBusiness, (xvii) Liquid Helium Business, (xviii) Wholesale Dry Ice Business, (xix) HospitalityBusiness, (xx) Wholesale Welding Business, (xxi) Wholesale Business, (xxii) Retained WholesaleAcetylene Business and (xxiii) any business performed with the Excluded Assets.     “Excluded Liabilities” means the following obligations, liabilities or expenses(regardless of when such obligations, liabilities or expenses accrue or become known) of theOperating Company and any of its pre-Closing Affiliates, except to the extent, in each case, anysuch liability, obligation or expense is included as a liability in the calculation of Net WorkingCapital:     ( ) any obligation, liability or expense arising from the PG Restructuring or any AffiliateArrangement;     (m) any obligation, liability or expense arising from (i) any of the Excluded Businesses, and(ii) any of the Excluded Assets (for the avoidance of doubt, the parties agree that the generalityof this sub-section (b) shall not be limited or affected by the fact that any of the othersub-sections of this definition of Excluded Liabilities is more specific or limited in any manner);     (n) any indebtedness of the Seller, the Operating Company or any of their respectiveAffiliates (including indebtedness for borrowed money (including accrued interest)) and Liensrelating thereto, in either case, incurred prior to the Closing, other than accounts payablearising from the operation of the Packaged Gas Business or the Packaged Assets and otherliabilities, in either case, to the extent such accounts payable are reflected in the calculationof Net Working Capital;     (o) any obligation, liability or expense (including any Actions) to the extent arising out of(i) the conduct of the Packaged Gas Business by the Seller, the Operating Company or any of theirrespective Affiliates, as applicable (or any of their predecessors) prior to the Closing Date(regardless of when such obligation, liability or expense accrues or becomes
10

 
known) or (ii) the ownership or operation of the Operating Company or the Packaged Assetsprior to the Closing Date (regardless of when such obligation, liability or expense accrues orbecomes known);     (p) any obligation, liability or expense to the extent arising out of (i) the manufacture,sale or lease by the Seller, the Operating Company or any of their respective Affiliates, asapplicable, of any defective product or equipment prior to the Closing Date, (ii) any failure bythe Seller, the Operating Company or any of their respective Affiliates to warn any Person withrespect to any of its products or equipment supplied prior to the Closing Date, or (iii) the breachby the Seller, the Operating Company or any of their respective Affiliates, as applicable, of anyexpress or implied warranty made in connection with the manufacture, sale or lease of any productsor equipment prior to the Closing Date;     (q) any obligation, liability or expense related to or arising out of (i) any Contract (orportion thereof) that does not constitute a Packaged Contract, (ii) any lease or sublease of realproperty other than the Real Property Leases or (iii) Packaged Contracts (including Real PropertyLeases) for pre-Closing time periods (regardless of when such obligation, liability or expenseaccrues or becomes known);     (r) any obligation, liability or expense relating to claims of any Third Parties, wheneverarising or asserted, alleging violation or infringement of any Intellectual Property rights priorto the Closing;     (s) except as otherwise provided under Section 9, any obligation, liability or expenserelating to or arising out of any (i) existing Employee Benefit and Compensation Plan (excluding,for the avoidance of doubt, in respect of any MultiEmployer Plan to the extent related toCollective Bargaining Agreements which are set forth on Schedule DEF-E), (ii) former EmployeeBenefit and Compensation Plan which has been terminated or frozen or (iii) ERISA AffiliateLiability;     (t) except as otherwise provided under Section 9, any obligation, liability or expense (i)relating to any Collective Bargaining Agreement not set forth on Schedule DEF-E or (ii) incurredprior to the Closing (regardless of when such obligation, liability or expense accrues or becomesknown) under any Collective Bargaining Agreement set forth on Schedule DEF-E;     (u) except as otherwise provided under Section 9, any obligation, liability or expenserelating to or arising out of (i) the employment or termination of employment of any current orformer Business Employee occurring prior to the Closing, (ii) the employment practices of theSeller, the Operating Company or any of their respective Affiliates occurring prior to the Closingor (iii) compliance with or violations of any Labor Laws prior to the Closing;     (v) any obligation, liability or expense relating to workers’ compensation claims andoccupational health claims against the Seller, the Operating Company or any of their respectiveAffiliates, as applicable, for accidents or injuries that occurred prior to the Closing;     (w) except as set forth in Section 12, any obligation, liability or expense of any kind ornature relating to Taxes of the Seller, the Operating Company or any of their respectiveAffiliates, as applicable, or, with respect to the Purchased Equity Interests or the Packaged Gas
11

 
Business, for any Pre-Closing Tax Period (including any obligation, liability or expensepursuant to any Tax Sharing Agreement (whether written or not) or by reason of being asuccessor-in-interest or transferee of another entity or any liability under Treasury Regulation§1.1502-6, Treasury Regulation §1.1502-78 or similar provision of state, local or foreign law) orin connection with the transactions contemplated hereby and by the PG Restructuring Terms;     (x) except as otherwise set forth in this Agreement, all obligations, liabilities or expenses(including for any accounting, legal, investment banking, brokerage or similar fees or expenses)incurred by the Seller, the Operating Company or any of their respective Affiliates, as applicable,in connection with the negotiation and preparation of this Agreement and the consummation of thetransactions contemplated hereby;     (y) any Environmental Liabilities and any other obligation, liability or expense under orrelating to any Environmental Law or Hazardous Substance or otherwise relating to the environmentto the extent arising out of or relating to the Excluded Businesses, or any other businesscurrently or formerly operated other than the Packaged Gas Business; or     (z) any Excluded Packaged Gas Environmental Liabilities.Notwithstanding the foregoing, (x) Excluded Liabilities shall not include any liabilities under theBulk Gas Agreement that the parties reasonably intended to be the responsibility of the Purchaserthereunder or that were assumed by operation of Law and (y) Environmental Liabilities and any otherobligation, liability or expense under or relating to any Environmental Law or Hazardous Substanceor otherwise relating to the environment to the extent arising out of or relating to the RealProperty or the Packaged Assets shall not be deemed included among the Excluded Liabilities. Forthe avoidance of doubt, to the extent that any Governmental Body or any other Person requires anyContract to be novated in connection with the transactions contemplated hereby, to the extent thatsuch novation conflicts with the terms of this Agreement, then the provisions of this Agreementshall control as between the parties hereto.     “Excluded Packaged Gas Environmental Liabilities” means any Environmental Liabilitiesand any other obligation, liability or expense under or relating to any Environmental Law orHazardous Substances or otherwise relating to the environment to the extent arising out of orrelating to (i) real property formerly, but not currently, owned, leased, occupied or operated inconnection with the Packaged Gas Business, (ii) real property, other than the Real Property orlocations contiguous to the Real Property (but only to the extent that such contiguous realproperty has become contaminated by a Release from the Real Property), where waste generated,disposed or handled in connection with the Packaged Gas Business has come to be located and (iii)any other aspect of the Packaged Gas Business not relating to the Owned Real Property or the LeasedReal Property or the Packaged Assets. Notwithstanding the foregoing, Excluded Packaged GasEnvironmental Liabilities shall not include any liabilities under the Bulk Gas Agreement that theparties reasonably intended to be the responsibility of the Purchaser thereunder or that wereassumed by operation of Law.     “Final Allocation Schedule” has the meaning set forth in Section 2.4(a) hereof.
12

 
     “Final Closing NWC Amount” means the Net Working Capital of the Packaged Gas Businessas of the Closing Date, as determined in accordance with the Working Capital Statement Principles.     “Financing” has the meaning set forth in Section 5.5 hereof.     “FIRPTA Affidavit” has the meaning set forth in Section 3.2(g) hereof.     “Former Operating Company” means Airgas Merchant Gases, LLC (f/k/a Linde Gas LLC), aDelaware limited liability company, and, to the extent applicable, either or both of the“Companies” (as such term is defined in the Bulk Gas Agreement).     “Framework Agreement” means the agreement, dated the 24th day of February2006, by and between Airgas, Inc. and the Guarantor, as amended by the supplement, dated the21st day of June 2006.     “FTC” has the meaning set forth in Section 4.7 hereof.     “FTC Preliminary Approval Date” means the date that the FTC places a proposed consentdecree on the public record for comment with respect to the transactions contemplated by thisAgreement; or if earlier, the date on which antitrust counsel for each party reasonably agree thateither no Governmental Body will have any objections, or the proposals the parties have made to theapplicable Governmental Body (after discussion with the applicable Governmental Body) arereasonably likely to resolve any objections, to the transactions contemplated by this Agreementunder applicable antitrust Laws.     “GAAP” means United States generally accepted accounting principles, as in effect fromtime to time.     “Governmental Body” means (a) any United States federal, state or local or foreigngovernment (or political subdivision thereof), (b) any agency or instrumentality of any suchgovernment (or political subdivision thereof), (c) any non-governmental regulatory oradministrative authority, body or other organization (to the extent that the rules, regulations,standards, requirements, procedures and Order of such authority, body or other organization havethe force of Law) and (d) any United States federal, state or local or foreign court or tribunal.     “Guarantor” has the meaning set forth in the preamble hereto.     “Guarantor Agent” has the meaning set forth in Section 23 hereof.     “Guaranty” has the meaning set forth in Section 17.1 hereof.     “Hazardous Substance” has the meaning defined in Section 101(14) of CERCLA, plus oiland petroleum (in any form or derivative), asbestos, PCBs, and any other substance defined orregulated as hazardous or other term of similar import under any Environmental Law.
13

 
     “Hospitality Business” means the businesses of filling, selling and/or supplying, anddistributing CO2 and other related gases and equipment to Persons doing business in the restaurantand beverage/food service industry.     “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,and the rules and regulations promulgated thereunder.     “HSR Filing” has the meaning set forth in Section 6.6(c) hereof.     “HYCO Business” means the Seller’s and its Affiliates’ businesses of producing,refining, packaging, marketing, selling and supplying of hydrogen, carbon monoxide, synthesis gas,methanol or any other chemical gases or liquids in any quantity from production facilities andrelated distribution systems that utilize hydrocarbon reforming, gasification or othertechnologies, including the businesses of producing, refining, packaging, marketing, selling andsupplying of acetylene to customers, which is delivered by a pipeline from such productionfacilities to the customers’ facilities.     “Hydrogen Refueling and Alternate Fuel Business” means the Seller’s and itsAffiliates’ businesses of engineering, selling, marketing, installing, and distributing hydrogenand other alternative fuel gases in any form for the transportation industry and for materialhandling.     “Imprinted Containers” has the meaning set forth in Section 6.11(d) hereof.     “Improvements” has the meaning set forth in Section 4.16(c) hereof.     “Indemnified Party” has the meaning set forth in Section 13.8(a) hereof.     “Indemnifying Party” has the meaning set forth in Section 13.8(a) hereof.     “Independent Accountant” means PricewaterhouseCoopers LLP or, if such firm is not ableto accept the assignment contemplated hereunder, another independent accounting firm, which in eachsuch case shall be jointly engaged by, and mutually agreeable to, the Purchaser and the Seller andshall not be affiliated with the either the Purchaser or the Seller or have conducted business witheither the Purchaser or the Seller during the previous two (2) years.     “INO Therapeutics Business” means the businesses of INO Therapeutics, a multi-nationalspecialty pharmaceutical company, with core competencies in development of late stage drugs andmarketing of pharmaceuticals and delivery devices.     “Intellectual Property” means all rights in any and all of the following:     (z) patents, patent applications and inventions, designs and improvements described andclaimed therein, patentable inventions and other patent rights (including any divisions,continuations, continuations-in-part, substitutions, or reissues thereof, whether or not patentsare issued on any such applications and whether or not any such applications are modified,withdrawn, or resubmitted) (“Patents”);
14

 
     (aa) trademarks, service marks, trade dress, trade names, brand names, designs, logos,corporate names, domain names and other source indicators, whether registered or unregistered, andall registrations and applications for registration thereof, including the goodwill of the businesssymbolized thereby or associated therewith (“Trademarks”);     (bb) copyrights and mask works, including all renewals and extensions thereof, copyrightregistrations and applications for registration thereof, and non-registered copyrights(“Copyrights”);     (cc) trade secrets, confidential business information, technical information and otherproprietary information, concepts, ideas, designs, processes, procedures, techniques, technicalinformation, specifications, operating and maintenance manuals, engineering drawings, methods,know-how, technical data, quality control data and databases, reports, discoveries, inventions,modifications, extensions, improvements, research materials and other proprietary rights (whetheror not patentable or subject to copyright, mask work, or trade secret protection) (“TradeSecrets”);     (dd) computer software programs, including all source code, object code and manuals anddocumentation related thereto (but, for the avoidance of doubt, excluding any informationtransmitted by or stored within any computer software programs or any reports generated by the useof the foregoing, any of which are covered in subsection (d)) (“Software”); and     (ee) all rights to sue at law or in equity for any infringement, misappropriation or otherimpairment of any of the foregoing and the right to collect damages and proceeds therefrom;provided, that such rights shall be excluded from the definition of Intellectual Propertyfor the purposes of the licenses described in Section 6.11.     “IP Licenses” means all licenses, sublicenses and other agreements or permissionsrelated to Intellectual Property.     “IRS” has the meaning set forth in Section 4.23(m).     “knowledge of the Seller” means the actual knowledge, after due inquiry consistentwith such individual’s area of responsibility, of the individuals set forth on Schedule DEF-F.     “Labor Laws” means any and all applicable foreign and U.S.-based federal, state andlocal Laws relating in any manner to employment, employees and/or individuals performing work asconsultants or contractors, including employment standards, employment of minors, employmentdiscrimination, health and safety, labor relations, unions, withholding, wages and hours, overtime,employee benefits and benefit plans of any kind, workplace safety and insurance and pay equity.     “LAG Methanol Business” means the businesses of LaPorte Methanol Company, L.P., anentity in which Guarantor has a fifteen percent (15%) indirect ownership interest, and
15

 
Lyondell Chemical Company has an eighty-five percent (85%) indirect ownership interest, andwhich operates a methanol plant in LaPorte, Texas.     “Large Production Sites” has the meaning set forth in Section 13.4(a)(ii) hereof.     “Law” means any applicable federal, state, local or foreign law, statute, ordinance,rule, regulation, binding standard, Order or code, enacted, promulgated, adopted, enforced orapplied by any Governmental Body, all as in effect from time to time.     “Leased Real Property” means the land, buildings, structures, fixtures and otherImprovements leased by the Seller or the Operating Company (or any of their respective Affiliates,as applicable) and identified on Schedule DEF-G.     “Licensed Business” has the meaning set forth in Section 6.11(a) hereof.     “Licensee” has the meaning set forth in Section 6.11(a) hereof.     “Liens” means any pledges, liens, conditional sales contracts, mortgages, deeds oftrust, charges, transfer restrictions (other than the requirements of applicable Laws), securityinterests, easements, rights-of-way, servitudes, encroachments, survey defects and encumbrancesrelating to such property or property interest.     “LifeGas Business” means the Seller’s and its Affiliates’ businesses in the UnitedStates of (a) selling bulk products to Medical Customers, (b) preparing, transfilling, packaging,marketing, distributing, selling and supplying industrial, medical and specialty gases inContainers or EcoCyls to Medical Customers (c) preparing, packaging, marketing, distributing,selling and supplying process chemicals (in either gas or liquid form) to Medical Customers and (d)distributing, marketing and supplying as a reseller, distributor or lessor equipment and suppliesto Medical Customers (including medical equipment and related supplies).     “Linde Severance Plan” means the severance plan maintained by the Operating Company asof the date hereof.     “Liquid Helium Business” means the Seller’s and its Affiliates’ businesses ofmanufacturing, purchasing, transfilling, packaging, storing, marketing, distributing, sellingand/or supplying liquid helium in any form to any customer. For the avoidance of doubt, the LiquidHelium Business includes the associated sale of liquid nitrogen and specialty or industrial gasesto (a) manufacturers of, (b) service providers to operators of, and (c) operators of, magneticresonance imaging or nuclear magnetic resonance equipment and related equipment.     “Losses” has the meaning set forth in Section 13.2 hereof.     “Low-End Specialty Gases” means: (1) Oxygen below grade 4.0; (2) Nitrogen below grade5.0; (3) Argon below grade 5.0; (4) Helium below grade 5.0; (5) Hydrogen below grade 5.0; and (6)“AA” grade Acetylene.     “Master Site License Agreements” means the two master site license agreements, each onthe terms attached hereto as Exhibit C, respectively.
16

 
     “Material Contracts” means the Real Property Leases and the Packaged Contractsidentified on Schedule 4.18(a).     “Material Customers” has the meaning set forth in Section 4.19(a) hereof.     “Material Permits” has the meaning set forth in Section 4.17 hereof.     “Maximum Amount” has the meaning set forth in Section 13.4(a)(i) hereof.     “Medical Customers” means hospitals, clinics, medical facilities, surgery centers,practitioners, group purchasing organizations or other Persons who use or resell products formedical or therapeutic applications or purposes.     “Minimum Claim Amount” has the meaning set forth in Section 13.4(a)(i) hereof.     “Minimum Financial Claim Amount” has the meaning set forth in Section 13.4(a)(i)hereof.     “MultiEmployer Plan” has the meaning set forth in Section 4.20(a) hereof.     “Net Working Capital” means, with respect to the Packaged Gas Business, an amountequal to (i) the sum of all Accounts Receivable, Packaged Inventory, Real Property Rent Prepaymentsand Prepaid Expenses and Prepaid Property Taxes, determined in accordance with the Working CapitalStatement Principles less (ii) all Trade Payables, Container Deposits and Rents andProperty Tax Accruals determined in accordance with the Working Capital Statement Principles; itbeing understood that the numerical value of the foregoing equation may be less than zero (0) ifthe numerical value of clause (i) is lessthan the numerical value of clause (ii)of this sentence.     “New Employment Contracts” has the meaning set forth in Section 6.8(i) hereof.     “Non-Competition Agreement” has the meaning set forth in Section 4.20(h) hereof.     “Non-Competition Period” has the meaning set forth in Section 6.4(a) hereof.     “Non-PGB Customer” has the meaning set forth in Section 6.4(c) hereof.     “Objection Notice” has the meaning set forth in Section 2.3(b) hereof.     “Off-the-Shelf Software” means off-the-shelf personal computer Software as such termis commonly understood, that is commercially available under non-discriminatory pricing terms on aretail basis for less than five hundred dollars ($500) per seat and ten thousand dollars ($10,000)in the aggregate, and used solely on personal computers.     “Operating Company” has the meaning set forth in the recitals hereto.
17

 
     “Order” means any legally enforceable orders, judgments, injunctions, awards,decisions, decrees or writs or any executive, administrative, legislative or judicial proclamation,in each case, of any Governmental Body.     “Ordinary Course of Business” means the ordinary course of business, consistent withpast practice, of the Packaged Gas Business, as conducted by the Seller, the Operating Company andeach of their respective Affiliates, as applicable.     “Original Termination Date” has the meaning set forth in Section 14.1(d) hereof.     “Other Major Engineering Projects and Business” means those projects carried out bythe Guarantor or its Affiliates in the United States with regard to the engineering, procurement,and construction of any facility within the Guarantor’s portfolio, including specific customerengineering projects for process equipment used in gas applications installations.     “Owned Real Property” means the real property owned by the Seller or the OperatingCompany (or any of their respective Affiliates, as applicable) identified on Schedule DEF-H,including all of the buildings, structures, fixtures and other Improvements owned by the Seller orthe Operating Company (or any of their respective Affiliates, as applicable) located thereon.     “Packaged Assets” means all of the rights, title and interests of the Seller, theOperating Company and, to the extent the Seller or the Operating Company have any rights therein,the Former Operating Company to all tangible and intangible assets, business and goodwill usedprimarily in or necessary for the operation of the Packaged Gas Business, including, but notlimited to and subject to, the following:     ( ) (x) the Owned Real Property and, subject to obtaining the necessary Consents, the RealProperty Leases, together with all appurtenances, rights, easements, licenses and permitsappurtenant to or for the benefit of such Owned Real Property and the Leased Real Property, and (y)the Real Property Rent Prepayments with respect to all periods from and after the Closing Date;     (ff) petty and drawer cash on hand at any Owned Real Property or Leased Real Property on theClosing Date;     (gg) the Packaged Equipment, as well as, to the extent transferable, all manufacturers’warranties associated with such Packaged Equipment and all rights of the Seller, or the OperatingCompany or the Former Operating Company against suppliers of such Packaged Equipment, except to theextent required by the Seller or any of its Affiliates to pursue any claim the Seller or any suchAffiliate may have under any such warranty relating to the period prior to the Closing or anyExcluded Asset;     (hh) the Packaged Inventory, as well as, to the extent transferable, all manufacturers’warranties associated with such Packaged Inventory and all rights of the Seller, the OperatingCompany or the Former Operating Company against suppliers of such Packaged Inventory, except to theextent required by the Seller or any of its Affiliates, following the
18

 
Closing, to pursue any claim the Seller or any such Affiliate may have under any such warrantyor right relating to the period prior to the Closing or any Excluded Asset;     (ii) the Packaged Intellectual Property;     (jj) deposits and prepaid expenses made as of and prior to the Closing, to the extent suchdeposits and prepaid expenses relate to the Packaged Gas Business or the Packaged Assets from andafter the Closing Date (the “Prepaid Expenses”);     (kk) all claims, causes of action and guarantee rights of the Seller, the Operating Company orthe Former Operating Company, with respect to the Packaged Assets, to the extent that they arisefrom and after the Closing Date;     (ll) the Collective Bargaining Agreements which are set forth on Schedule DEF-E (the“Packaged CBA’s”);     (mm) all agreements, arrangements, contracts, leases (including operating leases), conditionalsales contracts, licenses, franchises, understandings, commitments and other binding arrangementsincluding, but not limited to, dealer, distributor, supply, power and utility contracts)(collectively, “Contracts”) to which either the Seller, the Operating Company or the FormerOperating Company is a party or by or to which the Packaged Assets are bound or subject, and whichrelate primarily to, and to the extent they relate to, the Packaged Gas Business, including (i)those set forth on Schedule 4.18(a) and (ii) all Real Property Leases (collectively, together withthe Packaged CBA’s, the “Packaged Contracts”), but for the avoidance of doubt excluding anyEmployee Benefit and Compensation Plans, any IP Licenses other than Packaged IP Licenses andagreements and arrangements with the Industrial Gas Suppliers Alliance;     (nn) all Permits held by the Seller, the Operating Company or the Former Operating Companyused at or necessary for the operation of the Packaged Gas Business;     (oo) all Books and Records (except for Tax Books and Records) (provided that the Seller mayretain a copy of all Books and Records);     (pp) all accounts receivable (including any security or collateral for such accountsreceivable) arising from the operation of the Packaged Gas Business or the Packaged Assets (suchreceivables, the “Accounts Receivable”), but only to the extent such Accounts Receivableare reflected in the calculation of Net Working Capital pursuant to this Agreement;     (qq) the tangible personal property that is located upon the Retained Real Property and islisted on Schedule DEF-B;     (rr) the benefit of and the right to enforce covenants and warranties (including any covenantsnot to compete), if any, which the Seller, the Operating Company or the Former Operating Company isentitled to enforce with respect to the Packaged Assets or the Packaged Gas Business against anycurrent or former employee of the Packaged Gas Business; and
19

 
     (ss) all goodwill associated with the Packaged Gas Business or the Packaged Assets.     “Packaged CBA’s” has the meaning set forth in the definition of “PackagedAssets” contained in this Section 1.1.     “Packaged Contracts” has the meaning set forth in the definition of “PackagedAssets” contained in this Section 1.1.     “Packaged Equipment” means all Specified Equipment, all Spare Parts, and all othertypes of Equipment (including Containers as determined in accordance with the principles andmethodologies set forth on Schedule DEF-N) that are (a) owned, leased, used or held for use orordered by the Seller or the Operating Company (excluding cars owned or leased by the OperatingCompany and provided to Business Employees who are not Transferred Employees) and (b) primarilyused in or necessary for the operation of the Packaged Gas Business, including such Equipment(including applications equipment) that is located at the facilities of customers of the PackagedGas Business. For the avoidance of doubt, “Packaged Equipment” does not include any ExcludedAssets or any customer-owned assets.     “Packaged Gas Business” means the businesses of the Seller and its Affiliates (otherthan BOC and its controlled Affiliates, except assets and businesses transferred by the Seller orits Affiliates to BOC or its controlled Affiliates), in each case as conducted at, based out of,related to or serviced primarily by the facilities, business and operations located at the RealProperty and the Retained Real Property of (a) producing, preparing, transfilling, packaging,marketing, distributing, exporting, selling and supplying industrial, medical and specialty gasesin Containers, (b) preparing, transfilling, packaging, marketing, distributing, exporting, sellingand supplying process chemicals (in either gas or liquid form) in Containers and (c) distributing,marketing and supplying as a reseller, distributor or lessor, equipment, supplies and materials(including welding equipment, welding consumables, safety equipment and supplies and relatedproducts), that, in each case, are necessary for or related to the use of packaged gases, in eachcase, at the Real Property and the Retained Real Property as currently conducted by the Seller, theOperating Company or their respective Affiliates as of the date hereof; provided,that the “Packaged Gas Business” shall not include the Excluded Businesses or participationby the Seller and its Affiliates in the Industrial Gas Suppliers Alliance; provided,further, that any reference to “process chemicals” in the definition of any“Excluded Business” in this Agreement shall not diminish the rights of the Purchaser to thebusiness described in clause (b) of this definition of “Packaged Gas Business,” to the extent suchbusiness comprises part of the Packaged Gas Business (it being understood that process chemicalsare a product of both the Packaged Gas Business and the Excluded Businesses).     “Packaged Intellectual Property” means all Intellectual Property owned by the Seller,the Operating Company or the Former Operating Company that relates primarily to the Packaged GasBusiness or the Packaged Assets, including the Intellectual Property set forth on Schedule DEF-K(subject to the terms and conditions described therein) or any applicable Specified PackagedSoftware.
20

 
     “Packaged Inventory” means all inventory, work-in-process, components, finished goods,parts, supplies, raw materials and other similar items that are owned, leased, primarily used orheld for use or resale by the Seller, the Operating Company or the Former Operating Company andthat is primarily used in or necessary for the operation of the Packaged Gas Business, other thanRetained Inventory.     “Packaged IP Licenses” has the meaning set forth in Section 4.18(a)(vi) hereof.     “Patents” has the meaning set forth in the definition of “Intellectual Property”contained in this Section 1.1.     “PBGC” means the Pension Benefit Guaranty Corporation.     “Permits” means all licenses, permits, consents, waivers, authorizations, Orders,registrations and approvals of any Governmental Body currently held or being applied for by theSeller, the Operating Company or the Former Operating Company, as applicable, in connection withthe Packaged Gas Business or the Packaged Assets.     “Permitted Liens” means (a) unperfected mechanics’, carriers’, workers’, repairers’,purchase money security interests and other similar Liens arising or incurred in the OrdinaryCourse of Business (i) related to obligations as to which (A) there is no default on the part ofthe Seller or the Operating Company and (B) neither the Seller nor the Operating Company hasreceived written notice of the commencement of foreclosure actions with respect thereto, and (ii)that are not in the aggregate substantial in amount; (b) Liens for Taxes that are not in default ordelinquent or that are being contested in good faith by appropriate proceedings and that are not inthe aggregate substantial in amount; and (c) Permitted Real Property Exceptions.     “Permitted Real Property Exceptions” means such Liens that do not, individually or inthe aggregate, (i) interfere significantly with the use, occupancy or operation of the RealProperty as currently used, occupied and operated in connection with the Packaged Gas Business, or(ii) materially reduce the fair market value of the Real Property below the fair market value thatthe Real Property (as currently used, operated and occupied in connection with the Packaged GasBusiness) would have had but for such encumbrances or (iii) Liens on the estate of the owner orlessor of Leased Real Property which do not significantly affect the use or operation of the RealProperty as it is used or operated as of the date hereof.     “Person” means an individual, a partnership, a joint venture, a limited liabilitycompany, a corporation, a trust, a firm, an association, an unincorporated organization, aGovernmental Body and any other entity whatsoever.     “PG Restructuring” has the meaning set forth in Section 6.19(a) hereof.     “PG Restructuring Terms” means those transactions, and the terms therefor, set forthon Exhibit B.     “PGB Information” has the meaning set forth in Section 6.3 hereof.
21

 
     “PGB Sales Representatives” has the meaning set forth in Section 6.5(b) hereof.     “Post-Closing Payment Statement” has the meaning set forth in Section 2.3(a) hereof.     “Post-Signing Returns” has the meaning set forth in Section 6.14(a) hereof.     “Pre-Closing Covenants” has the meaning set forth in Section 13.3 hereof.     “Pre-Closing Tax Period” means (a) any Tax period ending on or prior to the ClosingDate and (b) with respect to a Tax period that commences before but ends after the Closing Date,the portion of such period up to and including the Closing Date.     “Prepaid Expenses” has the meaning set forth in the definition of “PackagedAssets” contained in this Section 1.1.     “Prepaid Property Taxes” means prepaid real and personal property taxes applicable tothe Packaged Assets or the Packaged Gas Business (including any payments made under an industrialdistrict agreement or similar agreement).     “Product Supply Agreement” has the meaning specified in Section 3.2(d) hereof.     “Property Tax Accruals” means accruals for real and personal property taxes applicableto the Packaged Assets or the Packaged Gas Business (including any payments made under anindustrial district agreement or similar agreement).     “Proprietary Software” has the meaning set forth in Section 6.11(h) hereof.     “Purchase Price” has the meaning set forth in Section 2.2(a) hereof.     “Purchased Equity Interests” has the meaning set forth in the recitals hereto.     “Purchaser” has the meaning set forth in the preamble hereto.     “Purchaser 401(k) Plan” has the meaning set forth in Section 9.4(h) hereof.     “Purchaser Indemnitees” has the meaning set forth in Section 13.2 hereof.     “Purchaser Information” has the meaning set forth in Section 6.3(b) hereof.     “Purchaser Non-Solicitation Period” has the meaning set forth in Section 6.4(b)hereof.     “Purchaser Parties” has the meaning set forth in Section 6.1(a) hereof.     “Purchaser Subsidiary” means any wholly-owned direct or indirect subsidiary of thePurchaser.
22

 
     “Purchaser Terminated Employee” has the meaning set forth in Section 9.3 hereof.     “Purchaser’s Allocation Schedule” has the meaning set forth in Section 2.4(a) hereof.     “Rare Gases Business” means the Seller’s and its Affiliates’ businesses ofmanufacturing, purchasing, refining, extracting, purifying, preparing, transfilling, blending,packaging, storing, distributing, selling and/or supplying, marketing, and recovering rare gases,including krypton, xenon, neon, and any mixtures containing some or all of the same.     “Real Property” means the Owned Real Property and the Leased Real Property.     “Real Property Leases” means the leases, subleases and other agreements pursuant towhich the Seller, the Operating Company or the Former Operating Company occupies the Leased RealProperty, including, for the avoidance of doubt, the Cleveland HQ Lease.     “Real Property Rent Prepayments” means the rights in respect of all prepayments ofrents made by the Seller, the Operating Company or the Former Operating Company under the RealProperty Leases.     “Release” means any releasing, spilling, leaking, pumping, pouring, emitting,emptying, discharging, injecting, escaping, leaching, dumping, discarding or disposing into theenvironment.     “Remediation” means any removal, remedial and/or response actions, as those activitiesare defined and used in CERCLA and other Environmental Laws and all investigations, samplings andassessments incident thereto.     “Restrictive Covenants” has the meaning set forth in Section 6.4(e) hereof.     “Retained Employees” means (i) all dedicated employees regularly assigned to theRetained Wholesale Acetylene Business; (ii) a manager/supervisor for each Retained Facility listedwith respect to the Retained Wholesale Acetylene Business, (iii) certain employees who performdriving, filling, loading and maintenance functions at each Retained Real Property; and (iv) up totwo specialty gas employees and two sales employees (in each case at Linde’s option) with respectto the Retained Wholesale Acetylene Business, with the names of the employees to be retainedpursuant to subdivisions (i), (ii) and (iii), and one of the specialty gas employees described insubdivision (iv), of this definitional paragraph set forth on Schedule DEF-P. The names of thehourly employees set forth in Schedule DEF-P are subject to change prior to Closing with any suchchanges, and the selection by Linde of each person to be retained pursuant to subdivision (iv)hereof who is not named on Schedule DEF-P, subject to the consent of the Purchaser which consentshall not be withheld unreasonably, and with the determining factors in the Seller in making anysuch changes with respect to hourly employees and its designations pursuant to subdivision (iv),and Purchaser in granting or withholding consent, shall be the
23

 
employees’ experience with acetylene, the retained customers and/or the specific gases to befilled.     “Retained Inventory” means all inventory, work-in-process, components, finished goods,parts, supplies, raw materials and other similar items that are owned, leased, primarily used orheld for use or resale by the Seller or the Operating Company and that is primarily used in ornecessary for the operation of the Excluded Businesses.     “Retained Real Property” means the real property owned by the Seller or the OperatingCompany (or any of their respective Affiliates, as applicable) identified on Schedule DEF-M,including all of the buildings, structures, fixtures and other Improvements owned by the Seller orthe Operating Company (or any of their respective Affiliates, as applicable) located thereon.     “Retained Spare Parts” means all spare parts located at the Real Property primarilyused in or necessary for the Excluded Businesses.     “Retained Wholesale Acetylene Business” means the Seller’s and its Affiliates’businesses in each case as conducted at, based out of, related to or serviced primarily by thefacilities, business and operations located at or on the Retained Real Property of manufacturing,generating, purchasing, filling or refilling, storing, preparing, purifying, packaging, marketing,selling, supplying, reselling, or distributing of acetylene gas and other industrial, medical andspecialty gases, process chemicals (in either gas or liquid form) and equipment and supplies(including welding equipment, welding consumables, safety equipment and supplies and relatedproducts) and materials necessary for or related to the use of such gases, in each case, toWholesale Acetylene Customers.     “Retaining Party” has the meaning set forth in Section 6.19(c) hereof.     “SEC” has the meaning set forth in Section 6.18(a) hereof.     “Section 13.11(b) Claim” has the meaning set forth in Section 13.11(b)(i) hereof.     “Seller” has the meaning set forth in the preamble hereto.     “Seller 401(k) Plan” has the meaning set forth in Section 9.4(h) hereof.     “Seller Entities” has the meaning set forth in Section 4.20(e)(iii) hereof.     “Seller Indemnitees” has the meaning set forth in Section 13.5 hereof.     “Seller Information” has the meaning set forth in Section 6.3(c) hereof.     “Seller Marks” has the meaning set forth in Section 6.11(d) hereof.     “Seller Obligations” has the meaning set forth in Section 17.1 hereof.     “Seller’s Notice” has the meaning set forth in Section 9.4(k) hereof
24

 
     “Seller’s Remediation” has the meaning set forth in Section 13.4(c)(i) hereof.     “Software” has the meaning set forth in the definition of “IntellectualProperty” contained in this Section 1.1.     “Spare Parts” means all spare parts located at the Real Property other than theRetained Spare Parts.     “Specified Equipment” means the motor vehicles, tractors, cars, fork lifts, cylindertrailers, bulk-acetylene trailers, tube trailers used in filling facilities, bulk-fuel tanks usedin filling facilities, bulk tanks used in filling facilities (including all related equipment andmachinery such as manifolds, pumps and vaporizers) and other items set forth on Schedule 4.11(b),including leased vehicles used by Business Employees as set forth on Schedule DEF-I (which Scheduleshall be updated as of the Closing Date to reflect only those leases for vehicles provided toTransferred Employees).     “Specified Packaged Software” means all (a) management information and enterprisesystems Software, (b) supply chain management Software, (c) dispatch, logistics and productionSoftware, (d) Off-the-Shelf-Software and (e) any other Software or proprietary information,including, in each case, all source code, object code and manuals and documentation relatedthereto, as well as any configurations, modifications and customizations made thereto, necessary(x) to allow the Operating Company to service the customers of the Packaged Gas Business followingthe Closing in the same manner as such customers are served by the Packaged Gas Business as of thedate hereof or (y) to effect the operation of the Packaged Gas Business at not less than the rateof operation (including, but not limited to, rate of production and sales) as of the Closing Date.     “Spectra Gases Business” means the businesses of Spectra Gases, Inc. and itsAffiliates, which includes the sales, marketing, purification, blending, filling, distribution ofspecialty gases and chemicals (including synthetic chemicals, isotropically labeled gases andchemicals, isotopes, calibration gases, EPA protocols, excimer laser gases, VOC mixes, rare gasesand rare gas mixes, high purity gases and chemicals, deuterium and deuterated compounds, andprocess chemicals), as well as engineering equipment solutions including regulators and relatedhardware.     “Stay Bonus Letter” has the meaning set forth in Section 9.3 hereof.     “Straddle Period” has the meaning set forth in Section 13.10(c) hereof.     “Stay Bonuses” has the meaning set forth in Section 9.3 hereof.     “Subsidiary” means, with respect to any Person, any other Person whether incorporatedor unincorporated, of which at least a majority of the securities or ownership interests having bytheir terms voting power to elect a majority of the board of directors or other persons performingsimilar functions is directly or indirectly owned or controlled by such Person or by one or more ofits respective Subsidiaries. For the purposes of the Transaction Documents, National WeldersSupply Company, Inc. shall be deemed a Subsidiary of the Purchaser.
25

 
     “Target Net Working Capital Amount” has the meaning set forth in Section 2.3(f).     “Tax” or “Taxes” means (i) any and all federal, state, provincial, local,foreign and other taxes, levies, fees, imposts, duties, and similar governmental charges (includingany interest, fines, assessments, penalties or additions to tax imposed in connection therewith orwith respect thereto) including (x) taxes imposed on, or measured by, income, franchise, profits orgross receipts, and (y) ad valorem, value added, capital gains, sales, goods and services, use,real or personal property, capital stock, license, branch, payroll, estimated, withholding,employment, social security (or similar), unemployment, compensation, utility, severance,production, excise, stamp, occupation, premium, windfall profits, transfer and gains taxes, andcustoms duties, and (ii) any transferee liability in respect of any items described in clause (i)above.     “Tax Actions” has the meaning set forth in Section 6.14(d) hereof.     “Tax Benefit” means a reduction after the Closing in the federal, state or local orforeign liability for Tax or any refund or credit of a prior liability for Tax attributable toadjustments to the income, deductions or credits resulting from any event that is the basis for anindemnification claim under Section 13.2 or 13.5 that is actually realized by the PurchaserIndemnitee or Seller Indemnitee, as the case may be.     “Tax Returns” means any and all reports, returns, declarations, claims for refund,disclosures, estimates, information reports or returns or statements required to be supplied to ataxing authority in connection with Taxes, including any schedule or attachment thereto oramendment thereof.     “Tax Sharing Agreements” has the meaning set forth in Section 4.23(j) hereof.     “Termination Fee” has the meaning set forth in Section 14.3(a) hereof.     “Third Party” means any Person other than (i) the parties to this Agreement and (ii)their Affiliates, successors and assigns.     “Third Party Distributor” means any Third Party that purchases bulk or packaged gasfrom any of the Guarantor or its Affiliates, or from others, for re-packaging or for resale.     “Third Party Partner” means any Third Party that sells bulk or packaged gas to anyPerson.     “TMG Business” means the businesses of TMG Co., LLC, an indirect wholly ownedSubsidiary of the Seller, which operates a business of reselling medical and industrial gasproducts, both in bulk and cylinder form, and process chemicals to customers with multiplelocations.     “Tonnage Air Gas Business” means the Seller’s and its Affiliates’ businesses ofproducing, refining, marketing, selling and supplying of air gases in quantities greater than twohundred (200) tons per day from production facilities and related distribution systems that utilizemembrane, adsorption, and/or cryogenic technologies. For the avoidance of doubt, Tonnage Air GasBusiness includes all liquid or gaseous products that the customer consumes at the site
26

 
whether directly related to the on-site production facility or not, but excludes the sale ofgaseous products to customers in Containers.     “Trade Payables” means trade payables accrued in the Ordinary Course of Business.     “Trade Secrets” has the meaning set forth in the definition of “IntellectualProperty” contained in this Section 1.1.     “Trademarks” has the meaning set forth in the definition of “IntellectualProperty” contained in this Section 1.1.     “Transaction Documents” means this Agreement, the Transition Services Agreement, theMaster Site License Agreements and the Product Supply Agreement.     “Transfer Taxes” has the meaning set forth in Section 12.1 hereof.     “Transferred Employees” has the meaning set forth in Section 9.4(d)(ii) hereof.     “Transition Services Agreement” means the transition services agreement on the termsattached hereto as Exhibit D.     “Treasury Regulations” means the Treasury regulations promulgated under the Code.     “Unaudited Acetylene Statements” has the meaning set forth in Section 4.8(a) hereof.     “Unaudited Financial Statements” has the meaning set forth in Section 4.8(a) hereof.     “Utilize” means to use, reproduce, prepare derivative works based upon, distribute,perform, display, make, have made, sell, offer to sell, export, import and otherwise exploit.     “Vacation Payment” has the meaning set forth in Section 9.4(f) hereof.     “WAB Sales Representatives” has the meaning set forth in Section 6.5(a) hereof.     “WARN” means, collectively, the Worker Adjustment and Retraining Notification Act of1988 (and the regulations promulgated thereunder) and any applicable or similar state or localequivalent.     “Wholesale Acetylene Customers” means a Wholesale Customer that purchases acetylenefilled at the Retained Real Property.     “Wholesale Business” means the Seller’s and its Affiliates’ businesses of selling anyproducts or services to Wholesale Customers.
27

 
     “Wholesale Customers” means a customer or distributor that purchases products forre-packaging, re-distribution or for resale.     “Wholesale Dry Ice Business” means the Seller’s and its Affiliates’ businesses ofmanufacturing, reforming, purchasing, distributing, selling or supplying carbon dioxide dry ice inany form, including pellets, blocks, slabs and snow, to Wholesale Customers.     “Wholesale Welding Business” means BOC’s businesses of manufacturing, purchasing,distributing, selling or supplying welding hardgoods products, gas equipment, safety equipment ormedical safety equipment (whether manufactured by BOC or manufactured by a third party on BOC’sbehalf), to Wholesale Customers.     “Working Capital Statement Principles” means the principles, procedures andmethodologies set forth on Exhibit E that shall be applied to any determination andcalculation of Net Working Capital under the terms and provisions, and for the purposes of, thisAgreement. To the extent the Working Capital Statement Principles are inconsistent with GAAP, GAAPshall control. The Working Capital Statement Principles shall be consistent with the Carve-OutPrinciples.     “Year-End Audited Financial Statements” has the meaning set forth in Section 6.18(a)hereof.     “Year-End Unaudited Financial Statements” has the meaning set forth in Section 4.8(a)hereof.     1.2 Construction. All references herein to a Section or Exhibit are to a Section orExhibit, respectively, of or to this Agreement, unless otherwise indicated. All references hereinto a Schedule are to a Schedule of the disclosure schedules attached to this Agreement, unlessotherwise indicated. Disclosure of any fact or item in any Schedule shall, should the existence ofsuch fact or item be relevant to any other Schedule, be deemed to be disclosed with respect to thatother Schedule so long as the relevance of such disclosure to such other Schedule is readilyapparent on its face. The headings of Sections in this Agreement are provided for convenience onlyand will not affect the construction or interpretation of this Agreement. All words used in thisAgreement will be construed to be of such gender or number as the circumstances require. Themeanings given to terms defined herein shall be equally applicable to both the singular and pluralforms of such terms. Unless otherwise expressly provided, the words “include,” “includes” and“including” shall be construed as if followed by the phrases “without limitation” or “without beinglimited to.” Words such as “herein,” “hereof,” “hereby,” “hereunder” and words of similar importrefer to this Agreement as a whole and not to any particular Section of this Agreement, unless thecontext clearly indicates otherwise. The terms “transactions contemplated hereby,” “transactionscontemplated by this Agreement” and similar phrases shall not include the PG Restructuring. Exceptas otherwise noted herein and unless the context otherwise requires, references to any Affiliate ofthe Seller or the Operating Company shall be deemed to include a reference to the Former OperatingCompany for such periods of time up to the time of the Bulk Closing. The parties hereto agree thatthey have been represented bycounsel during the negotiation and execution of this Agreement and, therefore, waive theapplication of any law, regulation, holding or rule of
28

 
construction providing that ambiguities inan agreement or other document will be construed against the party drafting such agreement ordocument.**SECTION 2****PURCHASE AND SALE OF PURCHASED****EQUITY INTERESTS**     2.1 Purchase and Sale of Purchased Equity Interests. At the Closing, and upon theterms and subject to the conditions set forth in this Agreement, the Seller shall sell, transfer,convey, assign and deliver to the Purchaser, and the Purchaser shall purchase and receive from theSeller, all of the Seller’s right, title and interest in and to the Purchased Equity Interests,free and clear of all Liens, other than such as may be created by or on behalf of the Purchaser.     2.2 Purchase Price.     (a) Closing Date Payment. The Purchaser agrees to pay to the Seller on the ClosingDate an amount equal to the Closing Date Payment as payment for the Purchased Equity Interests (theamount of the Closing Date Payment, as adjusted, if at all, pursuant to Section 2.3, being referredto herein as the “Purchase Price”). The Purchase Price shall not be subject to adjustmentfor any applicable sales, goods and services, value added, transfer and similar Taxes incurred withrespect to the transfer of the Purchased Equity Interests.     (b) The Closing Date Payment shall be made by the Purchaser to the Seller in immediatelyavailable funds by wire transfer to such account as the Seller shall designate in writing at leastthree (3) Business Days prior to the Closing Date.     2.3 Post-Closing Payment.     (a) Delivery of Post-Closing Payment Statement. The Seller shall prepare and, by thedate that is sixty (60) Business Days after the Closing Date, deliver to the Purchaser a statement(the “Post-Closing Payment Statement”) setting forth its determination of the amount of theFinal Closing NWC Amount, together with a reasonable description of the determination andcalculation of such amount. The Purchaser shall assist and cooperate with the Seller in thepreparation of the Post-Closing Payment Statement, including by providing the Seller and itsaccountants reasonable access to all relevant Books and Records, facilities and employees of theOperating Company and to any other information reasonably necessary to prepare the Post-ClosingPayment Statement. The Post-Closing Payment Statement shall be prepared in accordance with theWorking Capital Statement Principles.     (b) Objection to Post-Closing Payment Statement. The Purchaser may dispute theamounts set forth on the Post-Closing Payment Statement, but only on the basis that the Seller’sdetermination of the Final Closing NWC Amount was not determined in a manner consistent with thedetermination of the Target Net Working Capital Amount; provided, that the Purchaser shallhave notified the Seller in writing (the “Objection Notice”) within thirty (30) BusinessDays after receiving the Post-Closing Payment Statement from the Seller, specifying
29

 
the amountthereof in dispute and setting forth in reasonable detail the basis for the dispute, includingreasonable details of its calculations.     (c) Resolution of Disputes. The Seller shall give the Purchaser and the Purchaser’sindependent public accountants reasonable access during the entire thirty (30) Business Day periodspecified in Section 2.3(b) to the Seller’s work papers used in the preparation of the Post-ClosingPayment Statement to enable the Purchaser to exercise its rights under this Section 2.3. TheSeller and the Purchaser shall attempt in good faith to resolve all of the items in dispute set outin the Objection Notice within ten (10) Business Days of receipt by the Seller of the ObjectionNotice. Any items in dispute not resolved within such ten (10)-Business Day period shall bereferred as soon as possible thereafter by the Seller and the Purchaser to the IndependentAccountant. The parties shall require the Independent Accountant (i) to act as an expert and notas an arbitrator, (ii) to determine the items in dispute that have been referred to it as soon asreasonably practicable but in any event not later than twenty (20) Business Days after the date ofreferral of the dispute to it, and (iii) in making its determination, to consider only the issuesin dispute placed before it and to base its determination on the Working Capital StatementPrinciples. The Seller and the Purchaser shall provide or make available all documents andinformation as reasonably required by the Independent Accountant to make its determination. Thedetermination of the Independent Accountant as to all items in the Post-Closing Payment Statementand the resulting calculation of the Final Closing NWC Amount shall be final and binding on theparties.     (d) Independent Accountant Expenses. The fees and expenses of the IndependentAccountant in acting in accordance with this Section 2.3 shall be shared equally by the Purchaser,on the one hand and the Seller, on the other hand.     (e) Final Post-Closing Payment Statement. The Post-Closing Payment Statement and itscontents shall be deemed final and binding upon the parties upon the earliest of: (i) the failureof the Purchaser to furnish an Objection Notice to the Seller within thirty (30) Business Daysafter receiving the Post-Closing Payment Statement from the Purchaser pursuant to Section 2.3(a),(ii) the resolution of all disputes that are the subject of an Objection Notice by the partiespursuant to Section 2.3(c), or (iii) the final determination of the Independent Accountant pursuantto Section 2.3(c).     (f) Post-Closing Payment. On the second (2nd) Business Day after thePost-Closing Payment Statement has become final and binding in accordance with Section 2.3(e), (i)if the Final Closing NWC Amount is greater than $44,600,000 (the “Target Net Working CapitalAmount”), which was determined in accordance with the Working Capital Statement Principles,then the Purchaser shall pay to the Seller the amount of such difference or (ii) if the FinalClosing NWC Amount is less than the Target Net Working Capital Amount, then the Seller shall pay tothe Purchaser the amount of such difference, any such payment being deemed anadjustment to the amount of the Purchase Price. Any payment so required to be made by thePurchaser or the Seller shall be by transfer of immediately available funds to an account oraccounts specified in writing by the Purchaser or the Seller (as the case may be) and shall bearinterest from the Closing Date through the date of payment at the prime lending rate as announcedfrom time to time by JPMorgan Chase Bank, N.A.
30

 
     2.4 Allocation.     (a) Within one hundred and eighty (180) days after the Closing, the Purchaser shall deliver tothe Seller a statement (the “Purchaser’s Allocation Schedule”) setting forth its proposedcalculation of the aggregate amount of the Purchase Price, and the liabilities taken into accountin determining the amount realized for federal income tax purposes, of the Operating Company to beallocated among the assets of the Operating Company and the allocation of such aggregate amountamong the assets of the Operating Company, in accordance with the requirements of Section 1060 ofthe Code and the Treasury regulations thereunder. Within thirty (30) days after the Seller’sreceipt of the Purchaser’s Allocation Schedule, the Seller shall propose any changes to suchPurchaser’s Allocation Schedule or shall indicate its concurrence therewith, which concurrenceshall not be unreasonably withheld. If the Seller shall not have objected in writing to suchPurchaser’s Allocation Schedule within the thirty (30)-day period, then the Purchaser’s AllocationSchedule shall become the final Allocation Schedule (the “Final Allocation Schedule”). IfSeller shall propose any changes to Purchaser’s Allocation Schedule within the thirty (30)-dayperiod, Purchaser shall thereafter have thirty (30) days to review such changes and indicateconcurrence therewith, which concurrence will not be unreasonably withheld. Any issues withrespect to the allocation which have not been fully resolved within the applicable period shall benegotiated by Purchaser and Seller in good faith. If the Purchaser and the Seller are unable toreach an agreement within thirty (30) days after the Purchaser’s receipt of the Seller’s writtenobjection, the dispute shall be resolved and the Final Allocation Schedule shall be determined bythe Independent Accountant. The Independent Accountant shall resolve the dispute within thirty(30) days after the item has been referred to it. The Final Allocation Schedule, as agreed to bythe Purchaser and the Seller and/or as determined by the Independent Accountant according to theterms of this Section 2.4(a), shall be final and binding upon the parties. Each of the Purchaserand the Seller shall bear all fees and costs incurred by it in connection with the determination ofthe Final Allocation Schedule, except that the fees and expenses of the Independent Accountant inacting in accordance with this Section 2.4(a) shall be shared equally by the Purchaser and theSeller.     (b) For all Tax purposes, the Purchaser and the Seller will report the transactionscontemplated by this Agreement and the Transaction Documents in a manner consistent with the FinalAllocation Schedule, and neither of such parties will take or assume any position inconsistenttherewith in any Tax Return.     (c) The parties will promptly inform one another of any challenge by any taxing authority tothe Final Allocation Schedule and agree to consult and keep one another informed with respect tothe status of, and any discussion, proposal or submission with respect to, such challenge.**SECTION 3**