Exhibit 10.15


 


EXECUTION VERSION


 


 


PURCHASE AGREEMENT


 


by and between


 


WYETH


 


and


 


NBTY, INC.


 


dated as of June 6, 2005


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE
  1

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
  THE ACQUISITION

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  Purchase and Sale

  	
   

  
	
  2.2.

  	
  Assumption of Liabilities

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
  CLOSING; PURCHASE PRICE ADJUSTMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  The Closing

  	
   

  
	
  3.2.

  	
  Deliveries by Buyer

  	
   

  
	
  3.3.

  	
  Deliveries by Seller

  	
   

  
	
  3.4.

  	
  Further Assurances

  	
   

  
	
  3.5.

  	
  Closing Statement

  	
   

  
	
  3.6.

  	
  Adjustment of Purchase Price

  	
   

  
	
  3.7.

  	
  Retention of Certain Rights by Seller and
  Asset Transferor Entities and Affiliates

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
  REPRESENTATIONS AND WARRANTIES OF SELLER

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Organization; Good Standing; Power; Etc

  	
   

  
	
  4.2.

  	
  Capitalization of Suplementos Solgar

  	
   

  
	
  4.3.

  	
  Effect of Agreement

  	
   

  
	
  4.4.

  	
  Financial Statements

  	
   

  
	
  4.5.

  	
  Absence of Certain Changes and Events

  	
   

  
	
  4.6.

  	
  Taxes

  	
   

  
	
  4.7.

  	
  Good Title to and Condition of Assets

  	
   

  
	
  4.8.

  	
  Contracts

  	
   

  
	
  4.9.

  	
  Intellectual Property Rights

  	
   

  
	
  4.10.

  	
  Litigation and Claims

  	
   

  
	
  4.11.

  	
  Compliance with Law; Applicable Permits

  	
   

  
	
  4.12.

  	
  Environmental Matters

  	
   

  
	
  4.13.

  	
  Regulatory Matters

  	
   

  
	
  4.14.

  	
  Accounts Receivable

  	
   

  
	
  4.15.

  	
  Labor Matters

  	
   

  
	
  4.16.

  	
  Insurance

  	
   

  



 


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  4.17.

  	
  Broker’s Fees

  	
   

  
	
  4.18.

  	
  No Other Representations or Warranties;
  Disclosure

  	
   

  
	
  4.19.

  	
  Affiliate Transactions

  	
   

  
	
  4.20.

  	
  Real Property Leases

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
  REPRESENTATIONS AND WARRANTIES OF BUYER

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  Organization; Good Standing; Power; Etc

  	
   

  
	
  5.2.

  	
  Broker’s Fees

  	
   

  
	
  5.3.

  	
  Consents and Approvals; No Violations

  	
   

  
	
  5.4.

  	
  Financial Capability;
  Solvency

  	
   

  
	
  5.5.

  	
  Securities Act

  	
   

  
	
  5.6.

  	
  No Other Representations or
  Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  CONDUCT OF BUSINESS PENDING THE CLOSING

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  Conduct of Business Pending the
  Closing

  	
   

  
	
  6.2.

  	
  Permitted Actions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  ADDITIONAL AGREEMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  Expenses

  	
   

  
	
  7.2.

  	
  Additional Agreements

  	
   

  
	
  7.3.

  	
  Access to Information

  	
   

  
	
  7.4.

  	
  Filings and Authorizations

  	
   

  
	
  7.5.

  	
  Tax Matters

  	
   

  
	
  7.6.

  	
  Use of Certain Names

  	
   

  
	
  7.7.

  	
  Removal of Assets

  	
   

  
	
  7.8.

  	
  Access to Records After Closing

  	
   

  
	
  7.9.

  	
  Disclosure Supplement

  	
   

  
	
  7.10.

  	
  Applicable
  Permits and Environmental Permits

  	
   

  
	
  7.11.

  	
  ISRA Requirements

  	
   

  
	
  7.12.

  	
  Cost-Sharing
  for Unknown Pre-Closing Environmental Liabilities

  	
   

  
	
  7.13.

  	
  Release Under Leases

  	
   

  
	
  7.14.

  	
  No Negotiation

  	
   

  
	
  7.15.

  	
  Covenant Not to Compete

  	
   

  



 


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  7.16.

  	
  Adverse Experience
  Reporting Requirements

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  CONDITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1.

  	
  Conditions to Obligations of
  Each Party

  	
   

  
	
  8.2.

  	
  Conditions to Obligations of
  Seller

  	
   

  
	
  8.3.

  	
  Conditions to
  Obligations of Buyer

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  AGREEMENTS WITH RESPECT TO EMPLOYEES
  AND EMPLOYEE BENEFITS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  U.S. Employee Plans

  	
   

  
	
  9.2.

  	
  International Plans

  	
   

  
	
  9.3.

  	
  Employees

  	
   

  
	
  9.4.

  	
  Treatment of Seller’s
  and Buyer’s U.S. Employee Plans and U.S. Benefit Arrangements

  	
   

  
	
  9.5.

  	
  International
  Employees of the European Union

  	
   

  
	
  9.6.

  	
  Treatment of
  Seller’s International Plans

  	
   

  
	
  9.7.

  	
  Stock Options

  	
   

  
	
  9.8.

  	
  No Third Party Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1.

  	
  Termination

  	
   

  
	
  10.2.

  	
  Effect of
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  11.1.

  	
  Indemnification

  	
   

  
	
  11.2.

  	
  Procedures

  	
   

  
	
  11.3.

  	
  Limitations

  	
   

  
	
  11.4.

  	
  Additional Procedures
  Relating to Environmental Matters

  	
   

  
	
  11.5.

  	
  Indemnification as Sole Remedy

  	
   

  
	
  11.6.

  	
  Net of Insurance; Etc

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  12.1.

  	
  Public Statements

  	
   

  
	
  12.2.

  	
  Notices

  	
   

  
	
  12.3.

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  12.4.

  	
  Amendment

  	
   

  



 


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  12.5.

  	
  Waiver

  	
   

  
	
  12.6.

  	
  Parties in Interest

  	
   

  
	
  12.7.

  	
  Seller’s
  Knowledge

  	
   

  
	
  12.8.

  	
  Entire Agreement

  	
   

  
	
  12.9.

  	
  Governing Law; Jurisdiction

  	
   

  
	
  12.10.

  	
  Counterparts

  	
   

  
	
  12.11.

  	
  Validity

  	
   

  
	
  12.12.

  	
  Disclosure Schedule

  	
   

  
	
  12.13.

  	
  Headings

  	
   

  
	
  12.14.

  	
  Bulk Sales Act

  	
   

  



 


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PURCHASE AGREEMENT


 


This PURCHASE AGREEMENT
dated as of June 6, 2005 (this “Agreement”) by and among WYETH, a
Delaware corporation (“Seller”), and NBTY, Inc., a Delaware corporation
(“Buyer”).


 


W  I  T 
N  E  S  S  E 
T  H:


 


WHEREAS, Seller desires to
sell to Buyer, and Buyer desires to acquire from Seller, substantially all of
the assets relating to Seller’s vitamin and nutritional supplements products
business commonly referred to as “Solgar Vitamin and Herb,” which the parties
agree will be achieved pursuant to the purchase and sale of the Assets (as
defined herein) and the Shares (as defined herein), all on the terms and
subject to the conditions set forth herein;


 


WHEREAS, the Assets to be
included in the purchase and sale are owned by Seller and the Asset Transferor
Entities (as defined herein), and Seller desires to sell to Buyer, and Buyer
desires to purchase from Seller and the Asset Transferor Entities, the Assets;


 


WHEREAS, the Shares included
in the purchase and sale are owned by the Share Transferor Entity (as defined
herein), and Seller desires that such Share Transferor Entity sell to Buyer,
and Buyer desires to purchase from such Share Transferor Entity, the Shares;
and


 


WHEREAS, in connection with
such purchase and sale, Buyer is willing to assume certain liabilities of
Seller and its Affiliates (as defined herein) and to assume certain obligations
regarding the employment of those employees of Seller and such Affiliates
exclusively engaged in the conduct of the Business (as defined herein), all on
the terms and conditions herein set forth;


 


NOW, THEREFORE, in
consideration of the foregoing premises and the representations, warranties,
covenants and agreements herein contained, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:


 


ARTICLE 1



DEFINITIONS


 


Whenever used in this
Agreement, the terms defined below shall have the indicated meanings:


 


1.1.          “Accountant” shall have the meaning
set forth in Section 3.5(c).


 


1.2.          “Accounts Receivable” shall mean all
trade and other accounts receivable and notes, bonds and other evidences of
indebtedness and rights to receive payments arising out of sales of products or
the furnishing of services by the Business, including any rights of Seller and
its Affiliates with respect to any third party collection procedures or other
proceedings commenced in connection therewith.


 





















 


1.3.          “Affiliate” shall mean, with respect
to any Person, any Person which directly or indirectly through stock ownership
or otherwise either controls, or is controlled by or is under common control
with, such Person; provided, however, for purposes of this
Agreement the term “Affiliate” shall not include subsidiaries or other
entities in which a Person owns a majority of the ordinary voting power to
elect the majority of the board of directors or other governing board but is
restricted from electing such majority by contract or otherwise, until such
time as such restrictions are no longer in effect.


 


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


 


1.5.          “Aggrieved Party” shall have the
meaning set forth in Schedule 11.2(a).


 


1.6.          “Agreement” shall mean this Agreement and
any supplements, exhibits, amendments and schedules hereto, and the
certificates and documents delivered pursuant hereto.


 


1.7.          “Applicable Law” shall mean, except
for Environmental Laws, all laws, statutes, directives, regulations and
ordinances of any Governmental Authority having jurisdiction over the Business,
the Assets, the Shares, the assets of Suplementos Solgar or any Relevant Party,
as may be in effect (i) with respect to any representation or warranty by any
party hereunder, at the applicable time on or prior to the Closing and (ii)
with respect to any covenant obligations hereunder, at the applicable time
prior to, on or following the Closing, as the case may be.


 


1.8.          “Applicable Permits” shall mean any
waiver, exemption, variance, permit, registration, authorization, license or
similar approval issued or granted by any Governmental Authority and required
to be obtained or maintained under Applicable Law or the Assumed Contracts in
connection with Suplementos Solgar, the Assets, the Shares, the assets of
Suplementos Solgar or the Business, but shall not include Environmental
Permits.


 


1.9.          “Asset Transferor Entities” shall mean
the Affiliates of Seller transferring Assets pursuant to this Agreement, as
listed on Schedule 1.9.


 


1.10.        “Assets” shall mean, collectively, all
assets and properties of any kind, nature and description owned or held by
Seller or any Asset Transferor Entity and used primarily in the Business,
including without limitation (i) the Assumed Contracts, (ii) the Transferred Intellectual
Property, (iii) the Books and Records, (iv) the Inventory, (v) the Accounts
Receivable, (vi) the Fixtures and Equipment, (vii) all rights of Seller to
deposits and prepaid expenses (in each case only to the extent included in the
Final Net Asset Value), (viii) the motor vehicles identified on Schedule
1.10, (ix) all Applicable Permits and Environmental Permits used primarily
in the Business, in each case to the extent their transfer to Buyer is
permitted under Applicable Law and (x) the assets set forth on Schedule 1.10;
provided, however, that the Assets shall not include the Shares
(which shall be transferred to Buyer pursuant to Section 2.1 hereof),
the Excluded Assets or the assets of Suplementos Solgar (which the parties
acknowledge transfer by operation of law with the Shares).


 


1.11.        “Assumed Contracts” shall mean (i) the
Material Contracts, (ii) the Distribution Arrangements and (iii) any Contract
that (A) relates primarily to or is held for use


 


2





















 


primarily in the Business and (B) is not
required to be disclosed on Schedule 4.8(a), including without
limitation the Contracts set forth on Schedule 1.11.


 


1.12.        “Assumed Liabilities” shall mean the
following liabilities of Seller, its Affiliates and the Asset Transferor
Entities:  (i) any and all liabilities of
Seller or its Affiliates under the Assumed Contracts (excluding any liabilities
to the extent arising out of (A) any breach by Seller or its Affiliates under
such Assumed Contracts on or prior to Closing (including any transfer by Seller
of any such Assumed Contract at Closing in breach of such Assumed Contract) or
(B) any termination of such Assumed Contract by operation of law as a result of
the consummation of the transactions contemplated herein; for the avoidance of
doubt, Assumed Liabilities shall include any liabilities (including, without
limitation, liabilities under Applicable Law relating to exclusive distribution
arrangements) arising out of the breach or termination of, or any conduct under
or with respect to, any Assumed Contract by Buyer or any of its Affiliates
following Closing, in each case, however, to the extent such breach,
termination or conduct is not related to a breach by Seller or its Affiliates
under any such Assumed Contract on or prior to Closing); (ii) liabilities to
the Employees to the extent specifically assumed by Buyer pursuant to Article
9; (iii) obligations and liabilities, including, without limitation, product
liabilities, relating to occurrences of injuries after the Closing caused by
products of the Business; and (iv) all other liabilities and obligations to the
extent reflected in the final calculation of Final Net Asset Value.  For the avoidance of doubt, it is understood
that the term “Assumed Liabilities” shall (i) relate only to the purchase and
sale of the Assets and that, by operation of law, the liabilities of
Suplementos Solgar (including, without limitation, intercompany and
environmental liabilities) shall remain with Suplementos Solgar, subject to (x)
allocation of Taxes set forth in Section 7.5, (y) employee and employee
benefit matters set forth in Article 9, and (z) the indemnity provisions
set forth in Article 11 and (ii) exclude Retained Environmental
Liabilities.


 


1.13.        “Assumption Condition” shall have the
meaning set forth in Schedule 11.2(a).


 


1.14.        “Base Net Asset Value” shall have the
meaning set forth in Section 3.6(a).


 


1.15.        “Books and Records” shall mean the
books and records, files, documents, ledgers, journals, minute books, stock
certificates and books, stock transfer ledgers, customer lists, computer files
and programs and operating plans of (i) Seller and the Asset Transferor
Entities, to the extent related primarily or held for use primarily to the
Business or the Assets, and (ii) Suplementos Solgar, in each case, to the
extent in the possession of such Person or reasonably available thereto; but
excluding, in each case, all Know-How and other Intellectual Property (other
than the Transferred Intellectual Property) contained in such books and records
and any portions of such books and records which are redacted because they do
not relate to the Business or the Assets or because disclosure thereof to Buyer
would conflict with an obligation of confidentiality to a third party (as to
which redacted information, to the extent to which the same is material to the
Business and has been redacted because of an obligation of confidentiality to a
third party, Buyer and Seller agree to cooperate in using commercially
reasonable efforts (but in no event including any payment(s) or assumption of
any further obligation(s) by Seller) to obtain consent from such third party
for the disclosure thereof by Seller to Buyer).


 


3





















 


1.16.        “Business” shall mean the business
conducted worldwide by Seller, the Asset Transferor Entities, Suplementos
Solgar and their Affiliates as presently conducted to the extent relating
primarily to the discovery, research, development, manufacture, formulation,
licensing, marketing and selling of vitamins and nutritional supplement
products under the “Solgar” brand, which business is commonly referred to as “Solgar
Vitamin and Herb.”


 


1.17.        “Buyer Environmental Liabilities”
shall mean (i) the Known Environmental Liabilities; (ii) any Environmental
Liabilities where the facts, events or circumstances underlying such
liabilities first existed or first occurred as a result of the operation of the
Leased Real Property, the Assets, or the Business, or the assets of Suplementos
Solgar by Buyer or its Affiliates, or any Person acting on its or their behalf,
at any time after the Closing; and (iii) any aggravation or exacerbation of
Environmental Liabilities known to Buyer arising from soil, groundwater, air or
other contamination known to Buyer at any of the Leased Real Properties to the
extent that such aggravation or exacerbation results from the actions taken by,
or the inactions of, Buyer or its Affiliates or any other Person acting on its
or their behalf after the Closing Date, which actions or inactions, in each
case, are willful and negligent, it being understood that failure to warn
non-Governmental Authority third parties shall not be deemed by itself to be
negligent.  For purposes of clause (iii)
in the preceding sentence, “known to Buyer” means actual knowledge, without any
requirement of investigation, of any employee of Buyer responsible for
environmental matters.  The fact that an
Environmental Liability is in part a Buyer Environmental Liability under clause
(iii) of this Section 1.17 shall not release Seller from any obligation
hereunder with respect to the portion of such Environmental Liability that is
not a Buyer Environmental Liability and for which Seller is obligated to
provide indemnification or share costs hereunder.


 


1.18.        “Buyer’s International Welfare Plans”
shall have the meaning set forth in Section 9.6(d).


 


1.19.        “Buyer Material Adverse Effect” shall
mean any event, change, circumstance or effect that is materially adverse to
the ability of Buyer to consummate the transactions contemplated hereby.


 


1.20.        “Buyer-Triggered ISRA” shall have the
meaning set forth in Section 11.1(f).


 


1.21.        “Buyer’s U.S. Savings Plans” shall
have the meaning set forth in Section 9.4(b).


 


1.22.        “Buyer’s U.S. Welfare Plans” shall have
the meaning set forth in Section 9.4(e).


 


1.23.        “Cap” shall have the meaning set forth
in Section 11.3.


 


1.24.        “cGMP Construction” shall have the
meaning set forth in Section 11.1(f).


 


1.25.        “Claim” shall have the meaning set
forth in Schedule 11.2(a).


 


1.26.        “Closing” shall have the meaning set
forth in Section 3.1.


 


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1.27.        “Closing Date” shall have the meaning
set forth in Section 3.1.


 


1.28.        “Closing Net Asset Value” shall have
the meaning set forth in Section 3.5(a).


 


1.29.        “Closing Statement” shall have the
meaning set forth in Section 3.5(a).


 


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


 


1.31.        “Collateral Source” shall have the
meaning set forth in Section 11.6.


 


1.32.        “Competition Laws” shall mean all
Applicable Laws that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization or restraint of trade.


 


1.33.        “Constituent Documents” shall mean,
with respect to any entity, such entity’s articles of incorporation and
by-laws, or other similar documents prescribed by the applicable law of such
entity’s jurisdiction of organization.


 


1.34.        “Contracts” shall mean all leases,
subleases, rental agreements, insurance policies, sales orders, licenses,
agreements, purchase orders, instruments of indebtedness, guarantees and any
and all other oral or written contracts or arrangements; but excluding, in each
case, the Distribution Arrangements.


 


1.35.        “Disclosure Schedule” or “Schedule”
shall mean that certain schedule identified as such and delivered by Seller to
Buyer pursuant to this Agreement, as the same may be supplemented and updated
from time to time pursuant to this Agreement.


 


1.36.        “Distribution Arrangements” shall mean
those arrangements, whether or not such arrangements are binding, and whether
written or oral, to which Seller, any of the Asset Transferor Entities or any
other Affiliate of Seller is a party relating to the distribution of the
products of the Business, including those identified, by distributor and
territory, on Schedule 1.36.


 


1.37.        “Effective Time” shall have the
meaning set forth in Section 3.1.


 


1.38.        “Employees” shall mean the U.S.
Employees and the Ex-U.S. Employees.


 


1.39.        “Encumbrances” shall mean all security
interests, liens, pledges, charges, escrows, options, mortgages,
hypothecations, prior assignments, title retention agreements, indentures,
security agreements or any other encumbrances of any kind.


 


1.40.        “Environmental Laws” shall mean all
laws, treaties, statutes, ordinances, judgments, decrees, rules, injunctions,
writs, regulations, binding arbitration rulings, orders, judicial (including
common law) or administrative interpretations of, any Governmental Authority
having jurisdiction over the Assets or the assets or properties of Suplementos
Solgar, each as amended or in effect on, prior to or after the Closing Date,
relating to the protection or pollution of the environment or natural
resources, and human and occupational health and safety


 


5





















 


(each to the extent related to the exposure
to Hazardous Substances), including without limitation any of the foregoing
concerning Hazardous Substances.


 


1.41.        “Environmental Liabilities” shall mean
any and all Losses arising under Environmental Laws (including without
limitation the costs of Remedial Action) (whether known or unknown, foreseen or
unforeseen, contingent or otherwise, fixed or absolute or present or arising in
the future), asserted against or incurred by an Indemnified Party, including
without limitation Losses arising from any of the following conditions or
events, regardless of when occurring or arising:  (a) adverse environmental conditions resulting
from the presence, Release or Management of Hazardous Substances at, on, in,
from or around the Leased Real Property (including, but not limited to, any
adverse environmental conditions either on-site or off-site, but only to the
extent off-site conditions emanated from the Release or Management of Hazardous
Substances at the Leased Real Property) or the other Assets, assets or
properties of Suplementos Solgar or Excluded Assets; (b) the off-site
transportation, storage, treatment, recycling, disposal or arrangement for
disposal of Hazardous Substances Managed or Released at or from the Leased Real
Property or the other Assets, assets or properties of Suplementos Solgar or
Excluded Assets; or (c) any violation of any Environmental Law by the Business
or in connection with the Leased Real Property, the other Assets, assets or
properties of Suplementos Solgar or Excluded Assets.  Notwithstanding the foregoing, unless
specifically provided to the contrary elsewhere in this Agreement, the term “Environmental
Liabilities” shall not include any Losses or other costs or expenses for
Remedial Action either:  (x) with respect
to asbestos containing materials at the Leased Real Property that are present
as of the Closing Date to the extent Remedial Action is not required for such
materials pursuant to Environmental Laws as of the Closing Date, or (y) with
respect to mold or lead paint at the Leased Real Property that are present as
of the Closing Date, but only to the extent Remedial Action is not required
pursuant to Environmental Laws for such mold or lead paint as of the Closing
Date, or (z) for retrofitting or modifying of any fixtures, machinery or
equipment to the extent necessary to comply with changes in Environmental Laws
(whether imposed by statutes, regulations or otherwise) which first occur or
come into effect after the Closing Date.


 


1.42.        “Environmental Permits” shall mean the
permits, licenses, franchises, certificates, approvals and other similar
authorizations of Governmental Authorities relating to or required by
Environmental Laws.


 


1.43.        “ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended.


 


1.44.        “ERISA Affiliate” of any entity shall
mean any other entity that, together with such entity, would be treated as a
single employer under Section 414 of the Code.


 


1.45.        “EU” shall mean the European Union.


 


1.46.        “European Employees” shall have the
meaning set forth in Section 9.5(a).


 


1.47.        “Excess Loss” shall have the meaning
set forth in Schedule 11.2(e).


 


1.48.        “Excess Settlement Amount” shall have
the meaning set forth in Schedule 11.2(e).


 


6





















 


1.49.        “Excluded Assets” shall mean the
following assets of Seller and its Affiliates (all of which are expressly
excluded from the purchase and sale contemplated hereby):  (i) cash, cash equivalents and marketable
securities; (ii) amounts included as goodwill for financial statement purposes;
(iii) Tax Assets; (iv) intercompany assets described on Schedule 1.49;
(v) assets retained pursuant to the provisions of Article 9; (vi) title
to or leasehold or other rights or interests in ownership or use of real
property, to the extent not included in the Leased Real Property; (vii)
personal property located at sites other than the Leased Real Property,
including computer equipment, software and software licenses, except to the
extent set forth on Schedule 1.10; (viii) all agreements other than the
Assumed Contracts; (ix) the Shares (which shall be transferred to Buyer
pursuant to Section 2.1) and any and all equity interests in the Asset
Transferor Entities and any other Affiliate of Seller; (x) subject to Buyer’s
rights under the License Agreement, all Intellectual Property of Seller and its
Affiliates, other than Transferred Intellectual Property; (xi) the assets
identified on Schedule 1.49; and (xii) all insurance policies set forth
on Schedule 4.16 and all rights with respect thereto.  For the avoidance of doubt, it is understood
that the term “Excluded Assets” shall relate only to the purchase and sale of
the Assets and that, by the operation of law, the assets of Suplementos Solgar
shall remain with Suplementos Solgar, subject to (x) allocation of Taxes set
forth in Section 7.5, (y) employee and employee benefit matters set
forth in Article 9, and the indemnity provisions set forth in Article
11.


 


1.50.        “Excluded Liabilities” shall mean,
subject to the following sentence, all liabilities or obligations of Seller,
the Asset Transferor Entities, the Share Transferor Entity and their Affiliates
(all of which are expressly excluded from the purchase and sale contemplated
hereby) except for the Assumed Liabilities and the other liabilities and
obligations for which and to the extent Buyer agrees to provide indemnification
or reimbursement to or cost-sharing with Seller and its Affiliates under this
Agreement and the Operative Agreements; for the avoidance of doubt, the term “Excluded
Liabilities” shall include, without limitation, (x) liabilities to the extent
arising out of any breach by Seller or its Affiliates under the Assumed
Contracts on or prior to Closing (including any transfer by Seller of any such
Assumed Contract at Closing in breach of such Assumed Contract) and liabilities
to the extent arising out of any termination of such Assumed Contracts by
operation of law as a result of the consummation of the transactions
contemplated herein and (y) liabilities to the extent arising out of the
matters expressly set forth in paragraphs (1) and (2) in Schedule 4.13(b)
(other than, for the avoidance of doubt any liabilities arising out of any
mislabeling or misbranding caused by Buyer or any of its Affiliates after the
Closing).  Notwithstanding the foregoing,
and for the avoidance of doubt, it is understood and agreed that the term “Excluded
Liabilities” shall relate only to the purchase and sale of the Assets and that,
by operation of law, the liabilities of Suplementos Solgar shall remain with
Suplementos Solgar, subject to (x) allocation of Taxes set forth in Section
7.5, (y) employee and employee benefit matters set forth in Article 9, and
(z) the indemnity provisions set forth in Article 11.


 


1.51.        “Ex-U.S. Employees” shall mean all (i)
individuals who, on the Closing Date, are employed outside of the United States
by Seller and its Affiliates and whose employment and responsibilities relate
exclusively to the Business and those individuals who are considered employees
of the Business under Applicable Law; and (ii) individuals outside of the
United States who are on short-term disability leave, authorized leave of
absence or military service or lay-off with recall rights from Seller or their
Affiliates as of the Closing Date, and who


 


7





















 


were employed exclusively in the Business
immediately prior to the date the leave, military service or layoff commences.


 


1.52.        “FDA” shall mean the United States
Food and Drug Administration.


 


1.53.        “FFDC Act” shall have the meaning set
forth in Section 4.13(b).


 


1.54.        “Final Net Asset Value” shall have the
meaning set forth in Section 3.5(c).


 


1.55.        “Financial Statements” shall have the
meaning set forth in Section 4.4(a).


 


1.56.        “Fixtures and Equipment” shall mean
all furniture, fixtures, furnishings, machinery, equipment, supplies, computer
hardware, and other tangible personal property (other than Inventory and
vehicles) used or held for use primarily in the operation of the Business at
the Leased Real Property locations or at customers’ or suppliers’ premises on
consignment or otherwise used primarily in operation of the Business.


 


1.57.        “Food and Drug Legal Requirement”
shall have the meaning set forth in Section 4.13(a).


 


1.58.        “GAAP” shall have the meaning set
forth in Section 3.5(a).


 


1.59.        “Governmental Authority” shall mean
any governmental department, commission, board, bureau, agency, court or other
instrumentality of the United States or any other country, jurisdiction,
municipality or other political subdivision thereof or any supranational
organization of sovereign states.


 


1.60.        “Hazardous Substance” shall mean
hazardous or toxic substances, materials or wastes, or pollutants or
contaminants, in each case as said terms are defined by Environmental Laws or
with respect to which liability or standards of conduct are imposed under any
Environmental Law, including without limitation, petroleum or petroleum
constituents, asbestos or asbestos-containing material, and polychlorinated
biphenyls.


 


1.61.        “HSR Act” shall have the meaning set
forth in Section 7.4.


 


1.62.        “Indemnifying Party” shall have the
meaning set forth in Schedule 11.2(a).


 


1.63.        “Intellectual Property” shall mean all
(i) Patents, (ii) Know-How, (iii) Trademarks, (iv) copyrights, copyright
registrations and applications for registration and (v) inventions and all
other intellectual property rights whether registered or not.


 


1.64.        “International Plans” shall have the
meaning set forth in Section 9.2(a).


 


1.65.        “Inventory” shall mean all inventory
held for resale, work in process, finished products, shipments in transit, raw
materials, spare parts, wrapping, labels, supply and packaging items to the
extent related to the Business, together with all rights of Seller and its
Affiliates against suppliers of such inventories.


 


8





















 


1.66.        “ISRA” shall mean the New Jersey
Industrial Site Recovery Act as in effect, at the applicable time, on or prior
to the Closing.


 


1.67.        “ISRA Requirements” shall have the
meaning set forth in Section 7.11.


 


1.68.        “Joint Control Notice” shall have the
meaning set forth in Schedule 11.2(a).


 


1.69.        “Joint Defense Proceeding” shall have
the meaning set forth in Schedule 11.2(a).


 


1.70.        “Know-How” shall mean all product
specifications, formulae, ingredients, recipes, processes, product designs,
plans, ideas, concepts, manufacturing, engineering and other manuals and
drawings, technical information, trade secrets, data, research records,
promotional literature, customer and supplier lists and similar data and
information, and all other confidential or proprietary technical and business
information.


 


1.71.        “Known Environmental Liabilities”
shall mean all Environmental Liabilities arising from or relating to the
environmental matters specifically disclosed on Schedule 1.71.


 


1.72.        “Leased Real Property” shall mean the
real property, including any buildings, structures, fixtures and improvements
thereon or appurtenances thereto identified on Schedule 1.72.


 


1.73.        “Leasing Agreement” shall mean the
Leasing Agreement to be entered into between Seller and Buyer, substantially in
the form of Exhibit A attached hereto, wherein Seller leases the
services of certain executives of Seller to Buyer.


 


1.74.        “License Agreement” shall mean the
Know-How License Agreement to be entered into between Seller and Buyer,
substantially in the form of Exhibit B attached hereto, wherein Seller
non-exclusively licenses to Buyer Know-How used in the Business but not
exclusively so.


 


1.75.        “Losses” shall have the meanings set
forth in Section 11.1(a).


 


1.76.        “Management” and “Managed,”
respectively, shall mean the use, processing, distribution, handling, packaging,
manufacturing, labeling, generation, treatment, storage, recycling, disposal or
arranging for disposal of a Hazardous Substance.


 


1.77.        “Material Adverse Effect” shall mean
any event, change, circumstance or effect that is materially adverse to the business,
assets, operations, results of operations or financial condition of the
Business, taken as a whole, or the ability of Seller and its Affiliates to
consummate the transactions contemplated hereby, other than any event, change,
circumstance or effect to the extent relating to (w) fluctuations in the
economy in general, (x) developments in general in the industries in which the
Business operates (provided that such event, change, circumstance or effect
does not affect the Business disproportionately relative to other entities
operating in such industry), (y) any outbreak of hostilities or act of
terrorism involving the


 


9





















 


United States or the United Kingdom, or any
declaration of war by the United States Congress, or (z) the announcement of
the transactions contemplated by this Agreement or to the identity of Buyer.


 


1.78.        “Material Contract” shall have the
meaning set forth in Section 4.8(a).


 


1.79.        “Minimum Loss” shall have the meaning
set forth in Section 11.3.


 


1.80.        “Multiemployer Plan” shall mean each
U.S. Employee Plan that is a multiemployer plan, as defined in Section 3(37) of
ERISA.


 


1.81.        “Names” shall have the meaning set
forth in Section 7.6.


 


1.82.        “Net Assets” shall mean the sum of (a)
the book value of the Assets and (b) the book value of the total assets of
Suplementos Solgar minus the sum of (a) the book value of the Assumed
Liabilities and (b) the book value of the total liabilities of Suplementos
Solgar.


 


1.83.        “NFA” shall have the meaning set forth
in Section 7.11(b).


 


1.84.        “NJDEP” shall have the meaning set
forth in Section 7.11(b).


 


1.85.        “Non-Settling Party” shall have the
meaning set forth in Schedule 11.2(e).


 


1.86.        “Notice of Disagreement” shall have
the meaning set forth in Section 3.5(b).


 


1.87.        “Operating Profit” shall mean the
amount calculated from the line items set forth on the Statement of Operating
Profit of the Business included in the Financial Statements as follows:  Net Sales less the sum of the following:  Cost of Goods Sold (including royalty
payments); Marketing; Selling; Storage, Packaging & Shipping;
Administrative; Research & Development; and General Expense.


 


1.88.        “Operative Agreements” shall mean the
License Agreement, the Supply Agreement, the Transition Services Agreement and
the Leasing Agreement.


 


1.89.        “Patents” shall mean all patents and
patent applications (including, without limitation, all reissues, divisions,
continuations, continuations-in-part, renewals and extensions of the
foregoing).


 


1.90.        “Pension Plan” or “Pension Plans”
shall mean an employee pension benefit plan (as such term is defined in Section
3(2) of ERISA) that is intended to qualify under Section 401(a) of the Code, is
subject to the funding requirements of Section 412 of the Code and is
maintained by Seller or an ERISA Affiliate.


 


1.91.        “Permitted Encumbrances” shall mean
(i) any Encumbrances specifically disclosed in the Financial Statements; (ii)
liens for Taxes, assessments and other governmental charges not yet due and
payable or which are being contested in good faith by appropriate proceedings
for which adequate reserves have been established in accordance with GAAP;


 


10





















 


 (iii) immaterial
mechanics’, workmen’s, repairmen’s, warehousemen’s, carriers’ or other like
Encumbrances arising or incurred in the ordinary course of business and that
are not yet due or delinquent and are immaterial in the aggregate; (iv) liens
represented by equipment leases with third parties entered into in the ordinary
course of business; and (v) other Encumbrances which, individually or in the
aggregate, are not material, do not materially and adversely affect the value,
use or enjoyment of the Assets or the assets of Suplementos Solgar and would
not be required under GAAP to be reflected on a combined balance sheet of the
Business or disclosed in the notes thereto.


 


1.92.        “Person” shall mean an individual,
corporation, limited liability company, partnership, association, trust, joint
venture or other entity or organization, including a Governmental Authority.


 


1.93.        “Primary Affiliate Jurisdictions”
shall have the meaning set forth in Section 4.13(a).


 


1.94.        “Primary Control Rights” shall have
the meaning set forth in Section 11.1(d).


 


1.95.        “Purchase Price” shall have the
meaning set forth in Section 2.1.


 


1.96.        “Release” (and with a correlative
meaning, “Released”) shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal or leaching of
Hazardous Substances into the environment.


 


1.97.        “Relevant Parties” shall mean Seller,
Suplementos Solgar, the Asset Transferor Entities and the Share Transferor
Entity.


 


1.98.        “Remedial Action” shall mean all
actions required to (a) investigate, clean up, remove or treat Hazardous
Substances that are present or have been Released; (b) restore or reclaim the
environment or natural resources with respect to such presence or Release(s) of
Hazardous Substances; (c) perform remedial investigations, feasibility studies,
corrective actions, closures and post-remedial or post-closure studies,
investigations, operations and maintenance and monitoring with respect to such
presence or a Release, including any monitoring, certifications or filings
associated with any Classification Exception Areas (as defined in N.J.A.C.
7:9-6) or other institutional controls, as such are required under ISRA; and
(d) prepare and submit any reports or other submissions or other responses
required to be provided to or filed with any Governmental Authority in
connection with any such activities (including as required under ISRA) and, to
the extent necessary or appropriate, respond to any comments from any
Governmental Authority in connection therewith; in each case to the extent any
of the foregoing are necessary to achieve the Remediation Standard.


 


1.99.        “Remediation Standard” shall have the
meaning set forth in Section 11.4(b).


 


1.100.      “Retained Environmental Liabilities”
shall mean any Environmental Liabilities, whenever arising or occurring and
regardless of whether known to Buyer or set forth


 


11





















 


on any Disclosure Schedule to this Agreement,
arising from or relating to (i) the Excluded Assets (other than the Shares) or
(ii) the Seller ISRA Requirements.


 


1.101.      “Securities Act” shall mean the
Securities Act of 1933, as amended.


 


1.102.      “Seller ISRA Requirements” shall have
the meaning set forth in Section 7.11(a).


 


1.103.      “Seller’s Spending Account Plans”
shall have the meaning set forth in Section 9.4(f).


 


1.104.      “Seller’s U.S. Pension Plan” shall
have the meaning set forth in Section 9.4(c).


 


1.105.      “Seller’s U.S. Savings Plan” shall
have the meaning set forth in Section 9.1(d).


 


1.106.      “Settling Party” shall have the
meaning set forth in Schedule 11.2(e).


 


1.107.      “Shares” shall mean all of the
outstanding equity interests in Suplementos Solgar.


 


1.108.      “Share Transferor Entity” shall mean
Wyeth Farma S.A., a Spanish corporation.


 


1.109.      “Spanish Tax Group” shall have the
meaning set forth in Section 4.6(b).


 


1.110.      “Specified Inventory” shall have the
meaning set forth in Section 3.5(a).


 


1.111.      “Straddle Period” shall mean any
taxable year or period beginning on or before and ending after the Closing
Date.


 


1.112.      “Suplementos Solgar” shall mean
Suplementos Solgar, S.L., a Spanish corporation.


 


1.113.      “Supply Agreement” shall mean the
Supply Agreement to be entered into between Seller, acting by and through its
Fort Dodge Animal Health Division, and Buyer, substantially in the form of Exhibit
C attached hereto, wherein Buyer supplies certain products of the Business to
Seller’s Fort Dodge Animal Health Division following the Closing.


 


1.114.      “Tax Affiliate” of a Person shall mean
any Affiliate of said Person which was included, or includable, in a Tax Return
in which such Person was included.


 


1.115.      “Tax Assets” shall mean all assets
comprising receivables, deferred assets or prepayments for Taxes for taxable
periods or portions thereof ending on or before the Closing Date; excluding in
each case any such asset included within the Final Net Asset Value.


 


1.116.      “Tax Proceedings” shall have the
meaning set forth in Section 7.5(c).


 


12





















 


1.117.      “Tax Returns” shall mean all reports,
returns, schedules and any other documents filed or required to be filed with
respect to Taxes, including all claims for refunds of Taxes.


 


1.118.      “Tax Sharing Arrangement” shall mean
any written agreement or arrangement for the allocation or payment of Taxes or
payment for Tax benefits with respect to a consolidated, combined or unitary
Tax Return which Tax Return includes Suplementos Solgar.


 


1.119.      “Taxes” (and with correlative
meanings, “Tax” and “Taxable”) shall mean all taxes of any kind
imposed by a federal, state, local or foreign Governmental Authority, including
but not limited to those on, or measured by or referred to as income, gross
receipts, financial operation, sales, use, ad valorem, value added, franchise,
profits, license, withholding, payroll (including all contributions or premiums
pursuant to industry or governmental social security laws or pursuant to other
laws and regulations), employment, excise, severance, stamp, occupation,
premium, property, transfer or windfall profits taxes, customs, duties or
similar fees, assessments or charges of any kind whatsoever, together with any
interest, surcharges and penalties, additions to tax or additional amounts
imposed by such Governmental Authority with respect to such amounts.


 


1.120.      “Trademarks” shall mean (i)
trademarks, service marks, trade names, trade dress, domain names, labels,
logos and all other names and slogans, whether or not registered, and any
applications or registrations therefor, and (ii) any associated goodwill
incident thereto.


 


1.121.      “Transfer Provisions” shall have the
meaning set forth in Section 9.5(c).


 


1.122.      “Transferred Intellectual Property”
shall mean (a) all (i) Patents set forth on Schedule 1.122, (ii)
Trademarks set forth on Schedule 1.122 and (iii) registered copyrights,
copyright registrations and applications for registration set forth on Schedule
1.122 and all unregistered copyrights used primarily in the operation of
the Business and (b) all Know-How used exclusively in the Business; in each
case (with respect to clauses (a) and (b) above) which are owned by Seller or
any Asset Transferor Entity.


 


1.123.      “Transition Services Agreement” shall
mean the transition services agreement to be entered into between Seller and/or
its Affiliates and Buyer substantially in the form of Exhibit D attached
hereto; provided, however, that the parties acknowledge and agree
that (x) the services and the pricing terms set forth in such Exhibit D
(including in the schedules thereto) have not been fully negotiated as of the
date hereof but shall be negotiated in good faith prior to Closing based upon
the services and pricing terms, and shall be substantially consistent with the
principles for determination thereof, as set forth in such Exhibit D (including
in the schedules thereto) and (y) the execution and delivery of the Transition
Services Agreement, with fully negotiated services and pricing terms included
therein, shall be a condition to Closing.


 


1.124.      “Unknown Pre-Closing Environmental
Liabilities” shall mean any Environmental Liabilities to the extent they arise
from facts, events or circumstances that existed or occurred on or prior to
Closing with respect to the Business, the Leased Real Property or the other
Assets or the assets or properties of Suplementos Solgar, other than (i) the
Retained


 


13





















 


Environmental Liabilities, (ii) the Known
Environmental Liabilities and (iii) the matters specifically set forth on Schedule
4.12.


 


1.125.      “U.S. Benefit Arrangements” shall have
the meaning set forth in Section 9.1(b).


 


1.126.      “U.S. Employee Plans” shall have the
meaning set forth in Section 9.1(a).


 


1.127.      “U.S. Employees” shall mean (i) all
individuals who, on the Closing Date, are actively employed in the United
States by Seller or their Affiliates and whose employment and responsibilities
relate exclusively to the Business; and (ii) all individuals who would have
been included in subsection (i) above, if they were actively employed on the
Closing Date, but who are on short-term disability leave, authorized leave of absence
or military service with recall rights from Seller or their Affiliates as of
the Closing Date.


 


ARTICLE 2



THE ACQUISITION


 


2.1.          Purchase and Sale.  Upon
the terms and subject to the conditions of this Agreement, at the Closing, (x)
Seller shall (and shall cause the Asset Transferor Entities and the Share
Transferor Entity to) sell, assign, transfer and deliver to Buyer, and (y)
Buyer shall purchase and accept from Seller and such Asset Transferor Entities
and Share Transferor Entity, all of Seller’s, each such Asset Transferor Entity’s
and Share Transferor Entity’s and their Affiliates’ right, title and interest
in, to and under the Assets and the Shares, subject to the Assumed Liabilities,
for an aggregate purchase price of One Hundred Fifteen Million Dollars
($115,000,000), payable at Closing, subject to adjustment as provided in Section
3.6 (the price as so adjusted is herein called the “Purchase Price”).


 


2.2.          Assumption of Liabilities.  With
respect to the purchase and sale, assignment, transfer and delivery of the
Assets, in addition to payment of the Purchase Price and pursuant to assumption
agreements to be executed and delivered in accordance with Section
3.2(h) upon the terms and subject to the conditions of this Agreement, Buyer
will assume at the Closing and be responsible for all of the Assumed
Liabilities (and not, for the avoidance of doubt, any of the Excluded
Liabilities, which Seller shall retain and for which Seller shall be
responsible).


 


ARTICLE 3



CLOSING; PURCHASE PRICE ADJUSTMENT


 


3.1.          The Closing.  Unless this Agreement shall
have been terminated, on the terms and subject to the conditions of this
Agreement, the closing of the sale and purchase of the Assets and the Shares
and the consummation of the other transactions contemplated hereby (the “Closing”)
shall take place at the offices of Wyeth, Five Giralda Farms, Madison, New
Jersey 07940 on the fifth (5th) succeeding business day following
the date on which the last to be fulfilled or waived of the conditions set
forth in Article 8 (other than those to be satisfied at Closing) shall
be fulfilled or waived in accordance with this Agreement (and, with respect to


 


14





















 


such waivers, in accordance with this Section
3.1), or at such other time, date or place as the parties may mutually agree
upon in writing (the “Closing Date”). 
The parties agree that any waiver of a condition set forth in Section
8.2(a) or 8.3(a) shall be in writing and signed by both parties hereto and any
matter set forth as an exception to a condition to Closing in any certificate
to be delivered pursuant to Section 8.2(c) or 8.3(c), as the case may
be, shall be deemed an acknowledgement that such condition has not been met; provided,
however, that the party whose condition to Closing is not satisfied by
the matter disclosed may unilaterally waive such condition if such waiving
party shall certify in writing that it shall not be entitled to indemnification
with respect to such matter.  For the
avoidance of doubt, the parties acknowledge and agree that nothing in this Section
3.1 shall be deemed to limit the rights of the parties under Article 8
hereof, including, without limitation, the rights of the parties to refuse to
waive any condition set forth in Article 8 (including, without
limitation, with respect to any matter or condition disclosed in such
certificates to be delivered pursuant to Sections 8.2(c) and
8.3(c)).  At the Closing, the parties to
this Agreement will exchange funds, certificates and other documents as
specified in this Agreement.  For
purposes of this Agreement, the Closing will be treated as if it occurred at
11:59 p.m. (the “Effective Time”) on the Closing Date.


 


3.2.          Deliveries by Buyer.  At
the Closing, Buyer shall deliver, or cause to be delivered, to Seller the
following:


 


(a)           the amount of the Purchase Price specified in
Section 2.1 to be paid at Closing, payable by wire transfer of
immediately available funds to an account specified in writing by Seller, with
such notice to be delivered no less than two (2) business days prior to the
Closing Date;


 


(b)           the certificate by an officer of Buyer
required to be delivered pursuant to Section 8.2(c);


 


(c)           a certificate, signed by an authorized
officer of Buyer, certifying (i) the due organization and good standing of
Buyer, (ii) the corporate resolutions of Buyer authorizing the transactions
contemplated by this Agreement and (iii) the incumbency of the officers of
Buyer executing this Agreement, the Operative Agreements and the other
agreements, instruments or certificates delivered upon the Closing;


 


(d)           the License Agreement, duly executed by
Buyer;


 


(e)           the Transition Services Agreement, duly
executed by Buyer;


 


(f)            the Supply Agreement, duly executed by Buyer;


 


(g)           the Leasing Agreement, duly executed by
Buyer;


 


(h)           the bill of sale, assignment and assumption
agreement in the form of Exhibit E, which agreement effects Buyer’s
assumption under Applicable Law of the Assumed Liabilities; and


 


(i)            such other instruments and documents, in form
and substance reasonably acceptable to Seller and Buyer, as may be reasonably
necessary to effect the Closing.


 


15





















 


3.3.          Deliveries by Seller.  At
the Closing, Seller shall deliver, or cause to be delivered, to Buyer the
following:


 


(a)           evidence of the transfer of the Shares to
Buyer in accordance with Applicable Laws in form and substance reasonably
acceptable to Buyer;


 


(b)           the certificate by an officer of Seller
required to be delivered pursuant to Section 8.3(c);


 


(c)           a certificate, signed by an authorized
officer of Seller, certifying (i) the due organization and good standing of
Seller, (ii) the authorization of the transactions contemplated by this
Agreement and (iii) the incumbency of the officers of Seller executing this
Agreement, the Operative Agreements and the other agreements, instruments or
certificates delivered upon the Closing;


 


(d)           the stock books, stock ledgers, minute books
and corporate seals of Suplementos Solgar;


 


(e)           the License Agreement, duly executed by
Seller;


 


(f)            the Transition Services Agreement, duly
executed by Seller;


 


(g)           the Supply Agreement, duly executed by Wyeth,
acting through its Fort Dodge Animal Health Division;


 


(h)           the Leasing Agreement, duly executed by
Seller;


 


(i)            the bill of sale, assignment and assumption
agreement in the form of Exhibit E, transferring under Applicable Laws
the tangible personal property included in the Assets to Buyer;


 


(j)            bills of sale, assignments and any other
appropriate instruments of sale and conveyance, in the forms of Exhibit
F-1, F-2 and F-3, transferring under Applicable Law all Transferred
Intellectual Property to Buyer (it being understood and agreed, after Closing,
that Buyer, at its own expense, shall prepare any and all individual assignment
documents required in the respective countries and record them in the national
patent and trademark and other government offices, as applicable, and it
further being understood that Seller, as reasonably requested by Buyer, shall
execute any documents relating to Transferred Intellectual Property reasonably
required for recordation by the national patent and trademark and other
government offices in the respective countries);


 


(k)           such instruments of cancellation and other
appropriate documents, in form and substance reasonably acceptable to Buyer and
Seller, canceling all loans or other obligations for borrowed money owed by
Suplementos Solgar to Seller or any of its Affiliates (other than Suplementos
Solgar), duly executed by Seller or such Affiliate, as the case may be;


 


(l)            letters of resignation executed by the
directors of Suplementos Solgar and revocation of all powers of attorney;


 


16





















 


(m)          such other instruments and documents, in form
and substance reasonably acceptable to Buyer and Seller, as may be reasonably
necessary to effect the Closing; and


 


(n)           documentation demonstrating, to Buyer’s
reasonable satisfaction,  that Seller has
complied with all the obligations for ISRA which, under ISRA, must be completed
prior to the Closing Date.


 


3.4.          Further Assurances.


 


(a)           From time to time, at Buyer’s or Seller’s
request, whether at or after the Closing, Buyer or Seller, as the case may be,
shall, and shall cause their respective Affiliates to, execute and deliver such
further instruments of conveyance, transfer and assignment, cooperate and
assist in providing information for making and completing regulatory filings,
and take such other actions as Buyer or Seller, as the case may be, may
reasonably require of the other party to more effectively assign, convey and
transfer the Assets and the Shares to Buyer and cause Buyer to assume the
Assumed Liabilities, and otherwise to carry out the intent of this Agreement
and the transactions contemplated by this Agreement.


 


(b)           Notwithstanding any other provision of this
Agreement, to the extent that the assignment of any Assumed Contract to Buyer
hereunder shall require the consent of the other party thereto that has not
been obtained on or prior to Closing, this Agreement shall not constitute an
agreement to assign the same if an attempted assignment would constitute a
breach thereof.  Seller will use its
commercially reasonable efforts to obtain, and Buyer will cooperate with such
efforts to obtain, as promptly as practicable the consent of the other parties
to such Assumed Contracts for the assignment thereof to Buyer, provided,
however, that neither Seller nor Buyer shall be obligated to make any
payment or take any other action detrimental to Seller or Buyer, respectively,
or their respective Affiliates to obtain any such consent.  If any such consent is not obtained, Seller
shall, and shall cause its Affiliates to, cooperate with Buyer in any
arrangement reasonably requested by Buyer to provide for Buyer the benefits
under any such Assumed Contract for the duration of its remaining term (without
exercise of any extension thereof), including the enforcement at the cost of
and for the benefit of Buyer of any and all rights thereunder of Seller or
their respective Affiliates against the other party thereto.  To the extent Buyer is provided the benefits
of any such Assumed Contract, Buyer shall perform for the benefit of the other
Persons that are parties thereto the obligations of Seller or any Affiliate of
Seller thereunder and any related liabilities (other than Excluded
Liabilities).  Nothing in this Section
3.4(b) is intended to limit Buyer’s rights under Section 8.1(c) or 8.3.


 


3.5.          Closing Statement.


 


(a)           As promptly as practicable, but no later than
one hundred twenty (120) days after the Closing Date, Seller will cause to be
prepared and delivered to Buyer a draft combined adjusted statement, together
with notes thereto, of the Net Assets (which shall include any cash, cash
equivalents and marketable securities of Suplementos Solgar, unless any such
asset shall have been transferred pursuant to clause (i) of Section 6.2)
as of the Effective Time on the Closing Date (the “Closing Statement”)
including a schedule based on such Closing Statement setting forth Seller’s calculation
of the Net Assets as of the Closing Date (the “Closing


 


17





















 


Net Asset Value”). 
The Closing Statement shall be prepared in accordance with generally
accepted accounting principles in the United States (“GAAP”) (as in
effect on March 31, 2005), except as set forth in the notes to the Financial
Statements or on Schedule 4.4(b) hereto and as such methodology was used
by Seller to prepare the statement of Net Assets as of March 31, 2005 included
in the Financial Statements, and shall include line items and notes
substantially consistent with such statement of Net Assets; provided, however,
that (i) the Inventory identified on Schedule 3.5(a) (to the extent
still held in inventory at the Closing, the “Specified Inventory”) shall
be valued at zero cost for purposes of calculating Closing Net Asset Value and
the calculation of Closing Net Asset Value shall include no reserve or accrual
with respect to such Specified Inventory and, notwithstanding anything to the
contrary in this Agreement, other than pursuant to Section 4.13(b),
Seller makes no representation or warranty whatsoever with respect to such
Specified Inventory and (ii) Closing Net Asset Value shall not include any
reserve or accrual with respect to any Excluded Liability or any liability or
obligation for which Seller has agreed to provide indemnification to Buyer
under this Agreement.  Buyer shall cause
Suplementos Solgar and Buyer’s Affiliates and their respective employees to
assist Seller (without reimbursement or compensation from Seller for such
assistance) in the preparation of the Closing Statement and shall provide
Seller and its independent auditors access, upon reasonable advance notice and at
all reasonable times, to the
personnel, properties and Books and Records relating to the Business for such
purpose, all in a manner that does not unreasonably interfere with the
operations of the business of Buyer and its Affiliates.  Buyer and Seller agree not to attempt to
influence Employees as to the information provided with respect to the
preparation of the Closing Statement.


 


(b)           If Buyer disagrees with Seller’s calculation
of Closing Net Asset Value contained in the Closing Statement, Buyer may,
within sixty (60) days after delivery of the Closing Statement, deliver a
notice to Seller disagreeing with such calculation and setting forth Buyer’s
alternative calculation of such amount (“Notice of Disagreement”).  Such Notice of Disagreement, if any, shall
specify those items or amounts as to which Buyer disagrees, and Buyer shall be
deemed to have agreed with all other items and amounts contained in the Closing
Statement.  If Buyer does not duly
deliver a Notice of Disagreement within said sixty (60) days, then the Closing
Statement shall be final and binding on the parties.


 


(c)           If a Notice of Disagreement shall be duly and
timely delivered pursuant to Section 3.5(b), the parties shall, during
the thirty (30) days following such delivery, use their diligent efforts in
good faith to reach agreement on the disputed items or amounts in order to
determine, as may be required, the amount of Closing Net Asset Value.  If, during such period, the parties are
unable to reach agreement on some or all of the disputed items or amounts, they
shall promptly thereafter cause a mutually acceptable firm of nationally
recognized independent public accountants (the “Accountant”) promptly to
review this Agreement, the appropriate Books and Records and the items or
amounts remaining in dispute for the purpose of calculating the Closing Net
Asset Value.  In making such
determination, the Accountant shall consider only those items or amounts in the
Closing Statement or Seller’s calculation of Closing Net Asset Value as to
which Buyer disagreed in the Notice of Disagreement and that have not been
resolved by the parties during the above referenced thirty (30) day
period.  The Accountant shall deliver to
Seller and Buyer, as promptly as practicable, a report setting forth such
determination; provided that the Closing Net Asset Value set forth in such
determination shall not in any event be more than the Closing Net Asset Value
calculated by Seller set forth in the


 


18





















 


Closing Statement or less than the Closing
Net Asset Value calculated by Buyer set forth in the Notice of
Disagreement.  Such report shall be final
and binding upon the parties hereto.  The
cost of such review and report shall be borne by the parties in direct
proportion to the difference between the amount of Closing Net Asset Value
asserted by such party and the Final Net Asset Value.  “Final Net Asset Value” shall mean (A)
Closing Net Asset Value as shown in Seller’s calculation delivered pursuant to Section
3.5(a) if no Notice of Disagreement with respect thereto is duly and timely
delivered, (B) the Closing Net Asset Value agreed upon by the parties pursuant
to this Section 3.5(c) or (C) in the absence of such agreement, the
Closing Net Asset Value as shown in the Accountant’s report delivered pursuant
to this Section 3.5(c).


 


3.6.          Adjustment of Purchase Price.


 


(a)           If the amount of Sixty-Four Million Two
Hundred Twenty-Seven Thousand Dollars ($64,227,000) (the “Base Net Asset
Value”) exceeds the Final Net Asset Value, Seller shall pay to Buyer, as an
adjustment to the Purchase Price, in the manner and with interest as provided
in Section 3.6(b), the amount of such excess over the Final Net Asset
Value.  If the Final Net Asset Value
exceeds Base Net Asset Value, Buyer shall pay to Seller, as an adjustment to
the Purchase Price, in the manner and with interest as provided in Section
3.6(b), the amount of such excess over the Base Net Asset Value.  Any such payment pursuant to this Section
3.6(a) shall be due and payable within ten (10) business days following
determination of the Final Net Asset Value in accordance with Section
3.5.


 


(b)           Any payment made pursuant to this Section
3.6 shall be made by wire transfer or by delivery to the payee of the required
amount in immediately available funds. 
The payee shall designate its preferred method of payment (and wire
instructions, if appropriate) for such purpose at least two (2) days prior to
the date of the required payment.  If the
payee fails to so designate its preferred method of payment, payment shall be
made by certified or official bank check payable in immediately available funds
to the order of the payee.  The amount to
be paid under this Section 3.6 shall bear interest from and including
the Closing Date to and including the date one (1) day prior to payment at a rate
per annum equal to the rate publicly announced by JP Morgan Chase Bank in New
York, New York as its thirty (30) day LIBOR rate in effect on the Closing Date
plus 25 basis points.  Interest shall be
calculated daily on the basis of a year of three hundred sixty five (365) days
and the actual number of days for which interest is due.


 


3.7.          Retention of Certain Rights by Seller and
Asset Transferor Entities and Affiliates.  Notwithstanding anything to
the contrary contained or suggested in this Agreement, and for the avoidance of
doubt, Seller and the Asset Transferor Entities and their Affiliates shall and
do hereby retain ownership of and all rights in and to all Intellectual
Property (other than the Transferred Intellectual Property) without restriction
or limitation, except subject to Buyer’s rights under the License
Agreement.  Seller’s and its Affiliates’
retained rights shall include, without limitation, the right to manufacture,
distribute, promote, advertise, use, offer for sale and sell products utilizing
the Know-How (other than that included in the Transferred Intellectual
Property), and the right to use, sell, offer for sale, license, transfer and
otherwise dispose of such Know-How (other than that included in the Transferred
Intellectual Property), except in each case as restricted or limited by the
provisions in the License Agreement or this Agreement.


 


19





















 


ARTICLE 4



REPRESENTATIONS AND WARRANTIES OF SELLER


 


Seller hereby represents and
warrants to Buyer as follows:


 


4.1.          Organization; Good Standing; Power; Etc.


 


(a)           Each of Seller, the Asset Transferor Entities
and the Share Transferor Entity is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated.  Seller has the requisite
corporate power and authority to execute, deliver and perform this Agreement
and the Operative Agreements, and Seller, each of the Asset Transferor Entities
and the Share Transferor Entity have all requisite corporate power and
authority to consummate the transactions contemplated hereby and thereby, to
conduct the Business as now conducted in all material respects and to own, use
or lease the Assets, as the case may be. 
This Agreement has been duly executed and delivered by Seller and
constitutes, and the Operative Agreements when executed and delivered by Seller
and/or such Asset Transferor Entities or Share Transferor Entity which are
parties thereto, as the case may be, will constitute, legal, valid and binding
obligations of Seller and such Asset Transferor Entities or Share Transferor
Entity, as the case may be, enforceable against them in accordance with their
respective terms, except as the same may be limited by bankruptcy, insolvency,
moratorium, reorganization and except as such enforceability may be limited by
other laws of general applicability relating to or affecting the enforcement of
creditors’ rights and general principles of equity.  The execution and delivery by Seller, the
Asset Transferor Entities and the Share Transferor Entity of the Operative
Agreements to which they are party, and the consummation by such Persons of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of such Persons and no other or further
corporate or stockholder proceedings will be necessary for the execution and
delivery of such agreements by such Persons, the performance by such Persons of
their obligations hereunder and thereunder and the consummation by such Persons
of the transactions contemplated hereby and thereby.


 


(b)           Suplementos Solgar is a corporation duly
organized, validly existing and in good standing under the laws of Spain.  Suplementos Solgar has the requisite
corporate power and authority to own, operate or lease the assets and
properties that it purports to own, operate or lease and to carry on its
business as it is now being conducted, in each case in all material respects.


 


4.2.          Capitalization of Suplementos Solgar.


 


(a)           As of the date of this Agreement, the
authorized and issued capital stock of Suplementos Solgar is as set forth on Schedule
4.2(a) and all shares of such capital stock are validly issued,
outstanding, fully paid and non-assessable. 
Except as set forth on Schedule 4.2(a), Suplementos Solgar does
not own any interest in any corporation, partnership, joint venture or similar
Person, including Affiliates of Seller. 
Except as set forth on Schedule 4.2(a), there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character obligating Suplementos Solgar, Seller or any of Seller’s Affiliates
to issue or sell any


 


20





















 


shares of capital stock of or other equity
interests in Suplementos Solgar, or any securities or obligations convertible
into or exchangeable for any shares of capital stock of Suplementos Solgar or
other equity interests in Suplementos Solgar or obligating Suplementos Solgar
to grant, extend, or enter into any such right, agreement, arrangement or
commitment.


 


(b)           Except as set forth on Schedule 4.2(b),
there are no outstanding contractual obligations of Suplementos Solgar to
repurchase, redeem or otherwise acquire any outstanding shares of capital stock
of, or other ownership interests in, Suplementos Solgar, or to make any
investment (in the form of a loan, capital contribution or otherwise) in any
other entity.


 


(c)           Except as set forth on Schedule 4.2(c),
the Share Transferor Entity is the holder of record of and has good title to
the Shares, free and clear of any Encumbrances. 
Except as set forth on Schedule 4.2(c), there are no restrictions
with respect to the transferability of the Shares.


 


4.3.          Effect of Agreement.  The
execution, delivery and performance by Seller of this Agreement, the execution,
delivery and performance by Seller and its Affiliates of the Operative
Agreements to which they are party and the consummation by Seller and its
Affiliates of the transactions contemplated hereby and thereby, will not require
any material notice to, filing with, or consent, approval or authorization of,
any Person or Governmental Authority, except as contemplated in Section
7.4 hereof or as set forth on Schedule 4.3.  Except as contemplated in Section 7.4
hereof or as set forth on Schedule 4.3, and without giving effect to the
first sentence of Section 3.4(b) hereof, neither the execution, delivery
and performance of this Agreement by Seller or of the Operative Agreements by
Seller and its Affiliates, nor the consummation of the transactions
contemplated hereby or thereby will (i) in any material respect, conflict with,
violate or result in a breach of or result in the creation of any Encumbrance
under or the acceleration or termination of or the creation in any third party of
the right to accelerate, terminate, modify or cancel, any Material Contract or
any material indenture, Contract, Distribution Arrangement, lease, sublease,
loan agreement or note or other material obligation or liability to which
Suplementos Solgar is a party or is bound or to which any of the assets of
Suplementos Solgar or the Assets are subject, (ii) conflict with, violate or
result in a breach of any provision of the Constituent Documents of Seller, the
Asset Transferor Entities, the Share Transferor Entity or Suplementos Solgar or
(iii) conflict with or violate in any material respect any Applicable Law or
Environmental Law or any order, writ, judgment, injunction, decree,
determination or award of any Governmental Authority.


 


4.4.          Financial Statements.


 


(a)           Seller has delivered to Buyer or its
representatives the following (the “Financial Statements”):  an unaudited combined statement of Operating
Profit for the Business for the year ended December 31, 2004, an unaudited
combined statement of Operating Profit for the Business for the three months
ended March 31, 2005 and an unaudited combined adjusted statement of Net Assets
for the Business as of March 31, 2005 (including notes thereto).


 


(b)           The Financial Statements (and any quarterly
financial statements delivered to Buyer pursuant to Section 7.3(b)) (i)
have been prepared from the Books and Records of Seller, Suplementos Solgar and
the Asset Transferor Entities, (ii) have been prepared


 


21





















 


in accordance with GAAP (as in effect on
December 31, 2004, March 31, 2005 or the date of such quarterly financial
statements, as the case may be), except in each case as set forth in the notes
therein (other than notes in such quarterly financial statements to be delivered
after the date hereof) or on Schedule 4.4(b) and except for the
treatment of Specified Inventory (to be treated as described in Section
3.5(a)), and (iii) fairly present, in all material respects, the operating
profit and net assets of the Business, as applicable, as at the respective
dates thereof and for the periods covered thereby, subject, in the case of the
Financial Statements as of and for the three month period ended March 31, 2005
and such other quarterly financial statements, to normal year-end recurring
adjustments and the absence of notes thereto. 
The Books and Records used in the preparation of the Financial
Statements are accurate and complete in all material respects.


 


(c)           There exist no liabilities or obligations
that are individually or in the aggregate material to the Business, whether
accrued, absolute, contingent or threatened, which are required under GAAP to
be reflected on or reserved for in a balance sheet of the Business or disclosed
in the notes thereto (taking into account and subject to, however, the
accounting principles and items set forth on Schedule 4.4(b) or
reflected in the notes to the Financial Statements), other than (i) as set
forth on Schedule 4.4(c) hereto, (ii) liabilities or obligations which
are adequately reflected, reserved for or disclosed in the Financial Statements
or (iii) liabilities or obligations incurred or arising in the ordinary course
of business consistent with past practice from and after March 31, 2005.


 


4.5.          Absence of Certain Changes and Events. 
Except (x) to the extent expressly permitted or contemplated by the
terms of this Agreement (including with respect to the Excluded Assets), (y)
for Contracts and Distribution Arrangements entered into since March 31, 2005,
that are included in the Contracts and Distribution Arrangements listed on Schedule
4.8(a), and (z) for matters listed on Schedule 4.5, since March 31,
2005, (i) the Business has been operated in the ordinary course of business
consistent with past practice and (ii) no Material Adverse Effect has occurred
and is continuing.  Without limiting the
generality of the foregoing, except as set forth on Schedule 4.5, since
March 31, 2005, Seller and its Affiliates have not, in relation to the
Business:


 


(a)           suffered any damage, destruction or casualty
loss with respect to the Assets or the assets of Suplementos Solgar in excess
of $150,000, whether or not covered by insurance or self-insurance;


 


(b)           sold, leased, assigned, transferred or
otherwise disposed of (including, without limitation, transfers to
stockholders, holders of ownership interests or any affiliates) any assets of
the Business individually or in the aggregate in excess of $150,000, except for
the sale of inventory in the ordinary course of business consistent with past
practice;


 


(c)           (i) entered into, amended or terminated any
Material Contract or lease of any real property or (ii) entered into any other
material Distribution Arrangement or amended or terminated in any material
respects any other written Distribution Agreement; in each case other than in
the ordinary course of business consistent with past practice;


 


22





















 


(d)           implemented any employee layoffs that would
require notification under the Worker Adjustment and Retraining Notification
Act of 1988, as amended, or any similar applicable foreign, state or local law,
regulation or ordinance;


 


(e)           (i) other than in the ordinary course of
business consistent with past practice, made or granted any bonus or any wage,
salary or compensation increase to any employee of the Business, (ii) made or
granted any material increase in any employee benefit plan or arrangement, or
materially amended or terminated any existing employee benefit plan or
arrangement or adopted any new employee benefit plan or arrangement, or (iii)
entered into any collective bargaining agreement;


 


(f)            except as required by changes in GAAP
following March 31, 2005, made any material change in (i) the method of
accounting, keeping of books of account or accounting practices of the Business
or (ii) any inventory or credit practice or policy of the Business or any
method of calculating any bad debt, contingency or other reserve of the
Business for accounting, financial reporting or Tax purposes; or


 


(g)           made any capital expenditures or commitments
for capital expenditures related to the Business that aggregate in excess of
$100,000 over the current capital expenditure budget, except to the extent
required to maintain or replace any damaged or defective items.


 


4.6.          Taxes.


 


(a)           Except as disclosed on Schedule 4.6(a),
(i) all material Tax Returns relating to the Assets with respect to sales, use
and property Taxes required to be filed on or before the date hereof for tax
years or periods ending on or before the Closing Date have been timely filed,
and all such material sales, use and property Tax Returns are complete and
accurate and disclose all material sales, use and property Taxes required to be
paid for the periods covered thereby, (ii) all material sales, use and property
Taxes shown to be due on such Tax Returns have been timely paid or are being
contested in good faith and (iii) no written claim has ever been made by a
Governmental Authority to Seller or any of its Subsidiaries in a jurisdiction
where Seller or any of its Subsidiaries does not pay sales, use or property
Taxes with respect to the Assets that Seller or any of its Subsidiaries is or
may be subject to such a sales, use or property Tax with respect to the Assets.


 


(b)           Except as disclosed on Schedule 4.6(b),
(i) the Share Transferor Entity and Suplementos Solgar have filed all material
Tax Returns relating to the Business required to be filed on or before the date
hereof for tax years or periods ending on or before the Closing Date and all
such Tax Returns are complete and accurate and disclose all material Taxes
relating to the Business required to be paid by the Share Transferor Entity and
Suplementos Solgar for the periods covered thereby; (ii) all Taxes shown to be
due on such Tax Returns have been timely paid or are being contested in good
faith; (iii) the Share Transferor Entity and Suplementos Solgar have not waived
any statute of limitations in respect of Taxes relating to the Business or
agreed to any extension of time with respect to a Tax assessment or deficiency
relating to the Business; (iv) there is no action, suit, dispute,
investigation, audit, claim or assessment pending or, to Seller’s knowledge,
proposed with respect to Taxes relating to the


 


23





















 


Business of the Share Transferor Entity or
Suplementos Solgar; (v) all Tax Sharing Arrangements will terminate on or prior
to the Closing Date and Suplementos Solgar will have no liability thereunder on
or after the Closing Date; and (vi) Suplementos Solgar (A) has never been a
member of an Affiliated Group filing a consolidated federal tax return (other
than (x) a group the common parent of which was Seller or (y) for Spanish tax
purposes, a group comprised solely of the Share Transferor Entity, Suplementos
Solgar, Fort Dodge Veterinaria, S.A. and Fort Dodge Iberica, S.L. (the “Spanish
Tax Group”)) and (B) has no liability for Taxes of any Person under Reg. §
1.1502-6 (or any similar provision of state, local or foreign law), as a
transferee or successor, by contract, or otherwise or under Chapter VII Title
VII of Spanish RDL 4/2004 of 5 March 2004; and (vii) Suplementos Solgar has not
distributed stock of another Person, or has had its stock distributed by
another Person, in a transaction that was purported or intended to be governed
in whole or in part by Code § 355 or Code § 361.


 


(c)           Schedule 4.6(c) sets forth the following information with
respect to Suplementos Solgar as of the date specified thereon:  (A) the basis of Suplementos Solgar in its
assets; (B) the amount of any losses carry forward, unused investment,
deductions or other credits or unused Spanish or foreign tax credits allocable
to Suplementos Solgar; and (C) any material documents relating to any elections
related to Taxes of Suplementos Solgar or income Tax filings of Suplementos
Solgar with any Governmental Authority.


 


(d)           There are no liens for Taxes upon any of the
assets of Suplementos Solgar or the Assets except liens relating to current
Taxes not yet due and payable or for which adequate reserves are reflected in
the books and records of the business in accordance with GAAP.


 


(e)           Seller and all of its Subsidiaries that are
selling real property within the U.S. are not “foreign persons” within the
meaning of Section 1445 of the Code.


 


4.7.          Good Title to and Condition of Assets.


 


(a)           Suplementos Solgar has good title to, or a
valid and binding leasehold interest in, the assets of Suplementos Solgar, and
Seller and the Asset Transferor Entities, collectively, have good and valid
title to, or a valid and binding leasehold interest in, the Assets (other than
Intellectual Property which is addressed in Section 4.9), in each case
free and clear of all Encumbrances, except (i) as set forth on Schedule
4.7(a) and (ii) Permitted Encumbrances. 
Except as set forth on Schedule 4.7, the Assets, the assets of
Suplementos Solgar and the rights granted to Buyer pursuant to this Agreement
and the Operative Agreements, and the closing deliveries hereunder and
thereunder, constitute, and on the Closing Date will constitute, substantially
all of the assets, properties and rights used in or necessary to the conduct of
the Business as currently conducted. 
Except as set forth on Schedule 4.7, there are no facilities or
services which are used in connection with the Assets or the assets of
Suplementos Solgar and material to the Business and which are shared with or
used in any business or other operations of the Relevant Parties or their
Affiliates.  Except as set forth on Schedule
4.7 and for the provision of shared facilities and services described on Schedule
4.7, the Business is not conducted by any Affiliate of Seller other than
the Relevant Parties.


 


24





















 


(b)           Except as reflected in the Financial
Statements or as set forth on Schedule 4.7(b), the tangible assets
included in the Assets (including, without limitation, the Fixtures and
Equipment and the vehicles included among the Assets, but excluding the
Inventory) and the tangible assets of Suplementos Solgar, taken as a whole, are
in good and serviceable condition (subject to normal wear and tear and
immaterial impairments of value and damage) and are generally suitable for the
uses for which they are intended.


 


4.8.          Contracts.


 


(a)           Schedule 4.8(a) sets forth a list of the following Contracts
and Distribution Arrangements to which Seller, Suplementos Solgar or any Asset
Transferor Entity is a party and that relate primarily to the Business (each
such contract whether or not so listed, a “Material Contract”):


 


(i)            all Contracts (excluding Benefit Plans)
providing for a commitment of employment for a specified term (or, if written,
for an unspecified term) of any employee, including the name and position of
each such employee party to such a Contract and the expiration date of each
such Contract;


 


(ii)           all employee, union, work council and
employee collective bargaining Contracts or similar Contracts with labor
unions;


 


(iii)          all Contracts with any Person containing any
material non-competition provision or covenant, in each case only to the extent
related to the Business;


 


(iv)          all Contracts with any Person creating
partnership or joint venture agreements in connection with the Business;


 


(v)           all “co-packing” and similar Contracts for
the manufacture of raw material ingredients or finished goods, whether by or
for the Business (except, for the avoidance of doubt, Distribution
Arrangements);


 


(vi)          certain written Distribution Arrangements;


 


(vii)         all Contracts under which Suplementos Solgar,
the Asset Transferor Entities or Seller is licensed or otherwise uses or is
permitted to use Intellectual Property which is material to the Business (other
than shrink wrap licenses);


 


(viii)        all leases of the Leased Real Property; and


 


(ix)           all other Contracts other than (A) purchase
orders in the usual and ordinary course of business, (B) any Contract that does
not involve the payment or receipt of $200,000 or more per year for any one (1)
year or (C) any Contract terminable by any of Seller, Suplementos Solgar, any
Asset Transferor Entity or any of their Affiliates party thereto without
material penalty upon not more than sixty (60) days notice.


 


(b)           Except as set forth on Schedule 4.8(b)(i),
each Material Contract is a valid and binding agreement and is in full force
and effect.  Notwithstanding anything to
the


 


25





















 


contrary herein, and for the avoidance of
doubt, Seller makes no representation or warranty whatsoever regarding the
enforceability of any Distribution Arrangement except for those set forth on Schedule
4.8(a), and in such case only to the extent set forth in this Section
4.8(b); provided that Seller represents and warrants that, to Seller’s
knowledge and except as set forth on Schedule 4.8(b)(i), there exists no
material dispute under any Distribution Arrangement not identified on Schedule
4.8(a).  Except as otherwise provided
on Schedule 4.8(b)(ii), neither Seller nor any of its Affiliates are in
material breach or default under any Material Contract which default has not been
cured or waived, and Seller has no knowledge that any third party is in
material breach or default under any such Material Contract.  Except as described on Schedule 4.8(b)(ii),
to Seller’s knowledge, there is no event or circumstance which, with the passage
of time or the giving of notice or both, would constitute a material default or
breach under any Material Contract by any of Seller, Suplementos Solgar or any
of the Asset Transferor Entities party thereto or would give rise to any right
of termination or acceleration thereunder. 
Except as set forth on Schedule 4.8(b)(ii), (i) to Seller’s
knowledge, there is no assertion by any third party of any claim of material
default or breach under any of the Material Contracts, and (ii) Seller has
received no written notice of any such default or breach that is current and
continuing.  Complete and accurate copies
of all written Material Contracts have been provided or made available to
Buyer.  Notwithstanding anything to the
contrary herein, and for the avoidance of doubt, Seller makes no representation
or warranty whatsoever with respect to the unwritten trademark licenses set
forth on Schedule 4.8(a) except that, to Seller’s knowledge and except
as set forth on Schedule 4.8(b), there exists no material dispute under
any such unwritten trademark license.


 


(c)           Schedule 4.8(c) sets forth certain information regarding the
terms of the material unwritten Distribution Arrangements, which information is
true and correct in all material respects. 
Except as set forth on Schedule 4.8(c), to Seller’s knowledge, no
commitment of territorial exclusivity, minimum term or special compensation or
remedies upon termination has been given to the distributors under such
Distribution Arrangements; provided, however, that Seller makes
no representation or warranty whatsoever with respect to exclusivity (if any)
created under or pursuant to Applicable Law of the territory in question or the
terminability or consequences of termination under Applicable Law of the
territory in question of any such Distribution Arrangement.


 


4.9.          Intellectual Property Rights.


 


(a)           Schedule 4.9(a) sets forth a listing of (i) all Patents,
registered Trademarks and applications therefor, registered copyrights and
applications for copyright registration and design registrations and
applications therefor, included in the Transferred Intellectual Property and
(ii) all Contracts under which Suplementos Solgar, the Asset Transferor
Entities or Seller license or otherwise permit any party to use Transferred Intellectual
Property; provided, however, that except as set forth in Section
7.6 but without limiting the generality of Section 3.7, the right to use
any Name by Buyer is prohibited and such rights are expressly excluded from the
purchase and sale hereunder.


 


(b)           To the knowledge of Seller, since January 1,
2001, except as set forth on Schedule 4.9(b), (i) no Person has claimed
that the conduct of the Business as currently conducted, infringes on or
otherwise violates, in any material respect, the Intellectual Property rights
of any other Person, (ii) the conduct of the Business, in Seller’s good faith
belief, has not


 


26





















 


infringed on or otherwise violated the
intellectual property rights of any other Person and (iii) no Person has
challenged or infringed or otherwise violated, in any material respect, either
the Transferred Intellectual Property or the Know-How licensed to Buyer by
Seller through the License Agreement.


 


(c)           Except as disclosed on Schedule 4.9(c),
one or more of Suplementos Solgar, Seller or the Asset Transferor Entities
either (i) owns the entire transferable right, title and interest in and to the
Transferred Intellectual Property free and clear of any Encumbrances (other
than Permitted Encumbrances); or (ii) has or have the transferable right to use
the same as currently used in the conduct of the Business in all material
respects.


 


(d)           Except as disclosed on Schedule 4.9(d),
Seller, Suplementos Solgar and the Asset Transferor Entities are not in breach
of or default under any material provision of any material agreement,
commitment, contractual understanding, license, sublicense, assignment or
indemnification which relates to any of the Transferred Intellectual Property
and they have not taken any action which would reasonably be expected to
materially and adversely affect their rights in the Transferred Intellectual
Property.


 


(e)           Except as disclosed on Schedule 4.9(e),
there is no pending opposition, interference or cancellation proceeding before
any court or registration authority in any jurisdiction against the Patents and
Trademarks listed on Schedule 4.9(a) or against any other Intellectual
Property included in the Transferred Intellectual Property nor, to Seller’s
knowledge, has Seller or any Relevant Party been threatened with the same.  All trademark registrations set forth on Schedule
1.122 for trademarks used in the Business as currently conducted are valid,
subsisting, enforceable, in full force and effect, and have not been or are
not, as applicable, canceled, expired, abandoned or otherwise terminated, and
payment of all renewal and maintenance fees in respect thereof, and all filings
related thereto, have been duly made.


 


4.10.        Litigation and Claims.


 


(a)           Except as set forth on Schedule 4.10(a),
and except for matters relating to Taxes (as to which no representation or
warranty is made except as set forth in Section 4.6), there is no
material civil, criminal or administrative action, suit, hearing, proceeding or
investigation pending or, to the knowledge of Seller, threatened by or against
Suplementos Solgar, the Asset Transferor Entities or Seller (to the extent
related to the conduct of the Business).


 


(b)           Except as set forth on Schedule 4.10(b),
and except for matters under Environmental Laws or relating to the
environmental condition of the Leased Real Property or the properties of
Suplementos Solgar (as to which no representation or warranty is being made
except as set forth in Section 4.12) and except for food and drug
regulatory matters (as to which no representation and warranty is being made
except as set forth in Section 4.13) and except for matters relating to
Taxes (as to which no representation or warranty is made except as set forth in
Section 4.6), none of Seller, Suplementos Solgar or the Asset Transferor
Entities is subject to any material order, writ, judgment, award, injunction,
consent decree or


 


27





















 


decree of any court or Governmental Authority
or any arbitrator or arbitrators (as to Seller and the Asset Transferor
Entities, to the extent related to the conduct of the Business).


 


4.11.        Compliance with Law; Applicable Permits. 
Except as set forth on Schedule 4.10 or Schedule 4.11, and
except for matters relating to Taxes (as to which no representation or warranty
is made except as set forth in Section 4.6), and except for matters
under Environmental Laws or relating to the environmental condition of the
Leased Real Property or the properties of Suplementos Solgar (as to which no
representation or warranty is made except as set forth in Section 4.12),
and except for food and drug regulatory matters (as to which no representation
and warranty is being made except as set forth in Section 4.13), the
Business is being and since January 1, 2003 has been conducted in material
compliance with all Applicable Laws, including, without limitation, those
relating to foreign corrupt practices, export controls, anti-boycott
prohibitions and human and occupational health and safety (except in each case
to the extent related to exposure to Hazardous Substances).  Seller, Suplementos Solgar and the Asset
Transferor Entities have all material Applicable Permits necessary to conduct
the Business as currently conducted and to own the Assets and the assets of
Suplementos Solgar.  Schedule 4.11
contains an accurate and complete list of all such material Applicable Permits,
setting forth the grantor, grantee, the function and expiration and renewal
date of each.  There are no proceedings
pending or, to the knowledge of Seller, threatened which may result in the
revocation, cancellation or suspension of any such material Applicable
Permits.  Except as set forth on Schedule
4.11, Seller and its Affiliates are and since January 1, 2003 have been in
material compliance with the terms and requirements of such material Applicable
Permits.  On May 26, 2005,
Suplementos Solgar submitted a registration letter with the Agencia de
Proteccion de Datos for re-registration of Suplementos Solgar’s data bases.


 


4.12.        Environmental Matters. 
Except as disclosed on Schedule 4.12:


 


(a)           Seller, Suplementos Solgar and the Asset
Transferor Entities have obtained those material Environmental Permits
necessary for the conduct of the Business as currently conducted and are in material
compliance with such permits, and there are no proceedings pending or, to the
knowledge of Seller, threatened to revoke, modify, terminate or cancel such
Environmental Permits, and there is no material past non-compliance with such
Environmental Permits that has not been resolved, including the payment of
fines and penalties with respect thereto. 
A list of such Environmental Permits is disclosed on Schedule 4.12(a);


 


(b)           Suplementos Solgar and, to the extent related
to the Business, Seller and the Asset Transferor Entities (i) have not received
any written notice, citation, summons or order, (ii) have not been served with
any complaint, (iii) have not been assessed any outstanding penalty or, to the
knowledge of Seller, threatened with any judgment, decree or order, and (iv) to
the knowledge of Seller, are not subject to any pending investigation or review
by any Governmental Authority or other Person, in each case which alleges a
material violation of or a material liability under any Environmental Law and
that has not been resolved, corrected and settled in all material respects,
including the payment of any fines and penalties with respect thereto;


 


(c)           Suplementos Solgar and, to the extent related
to the Business, Seller and the Asset Transferor Entities are in material
compliance with applicable


 


28





















 


Environmental Laws, and there is no material
past non-compliance which has not been resolved, including the payment of fines
and penalties with respect thereto;


 


(d)           To the knowledge of Seller, none of the
Leased Real Property or the properties of Suplementos Solgar includes any of
the following: (i) underground or aboveground storage tanks; (ii) friable or
damaged asbestos-containing material in any form or condition; (iii) electrical
equipment containing polychlorinated biphenyls; or (iv) any impoundments,
landfills or waste disposal areas;


 


(e)           Neither Suplementos Solgar, and to the extent
related to the Business, Seller and the Asset Transferor Entities nor any of
their respective predecessors in interest or Affiliates has assumed or retained
by contract or agreement any material liability for Remedial Action or any
other material liability or material obligation of any other Person arising
under any Environmental Laws.


 


(f)            Schedule 4.12(f) lists all off-site disposal or treatment
facilities to which Seller has sent hazardous waste (as defined by RCRA) for
disposal or treatment during the last five (5) years in the United States.


 


(g)           Seller has provided or made available to
Buyer copies of any material non-privileged environmental reports,
investigations, assessments and audits relating to the Leased Real Property,
the Assets, the assets and properties of Suplementos Solgar or the Business, in
each case, in Seller’s possession or reasonable control.


 


This Section 4.12
contains all of the representations and warranties of Seller with respect to
matters arising under or relating to any Environmental Laws, and no other
representations or warranties are made in or relating to this Agreement with
respect to any such matters.


 


4.13.        Regulatory Matters.


 


(a)           Except as set forth on Schedule 4.13(a)
or as disclaimed below, (i) Seller and its Affiliates are conducting the
Business in the United States, the United Kingdom, Spain, Mexico, Canada,
Australia, New Zealand, and South Africa (the “Primary Affiliate
Jurisdictions”) in material compliance with all Food and Drug Legal
Requirements that are applicable to the conduct or operation of the Business in
the Primary Affiliate Jurisdictions (including, without limitation, with
respect to restrictions on potencies of products of the Business imposed by
such Food and Drug Legal Requirements, and with respect to registration of
products of the Business with Governmental Authorities, in each case as
required by such Food and Drug Legal Requirements), and (ii) neither Seller nor
any Affiliates has received, at any time since January 1, 2003, any notice or
other written communication from any Governmental Authority or any other Person
regarding any actual or alleged material failure to comply with, any Food and
Drug Legal Requirement applicable to the conduct or operation of the Business
in the Primary Affiliate Jurisdictions. 
None of Suplementos Solgar or the Asset Transferor Entities is subject
to any material order, writ, judgment, award, injunction, consent decree or
decree of any court or Governmental Authority or any arbitrator or arbitrators
naming Suplementos Solgar or any Asset Transferor Entity and relating to the conduct
of the Business pursuant to any Food and Drug Legal Requirement.  As used herein, “Food and Drug Legal


 


29





















 


Requirement” means any Applicable Law in any Primary
Affiliate Jurisdiction regulating the products of the Business as dietary
supplements.  Seller and its Affiliates
make no representation or warranty whatsoever, and expressly disclaim any
statement to the contrary, regarding compliance with any Applicable Law
regulating the products of the Business as, or in a manner similar to,
pharmaceutical and/or drug products, or with respect to any post-Closing change
or development in, or in the application, administration, or interpretation of,
any Applicable Law that may, after the Closing, occur, be announced, or be
implemented, including, without limitation, with respect to the regulation of
the products of the Business as, or in a manner similar to, pharmaceutical
and/or drug products; provided, however, that the foregoing
disclaimer is not intended to limit any representation made elsewhere in this
Agreement by Seller as of the date hereof regarding current compliance with
Applicable Law (other than the retroactive application of any post-Closing
change or development in, or in the application, administration, or
interpretation of, any Applicable Law).


 


(b)           Except as set forth on Schedule 4.13(b),
the raw materials and finished product of Seller and its Affiliates
constituting Inventory (i) are not adulterated or misbranded within the meaning
of the Federal Food, Drug and Cosmetic Act (the “FFDC Act”), or within
the meaning of any Applicable Law in effect in the Primary Affiliate
Jurisdictions and within which the definitions of adulteration or misbranding
are substantially the same as those contained in the FFDC Act, and (ii) may be
introduced into interstate commerce without material violation of the
provisions of Section 404, 505 and 512 of the FFDC Act.


 


(c)           Except as set forth on Schedule 4.13(c),
Seller and its Affiliates are operating, and at all times since January 1,
2003, have operated, the leased manufacturing facilities located in Leonia and
Lyndhurst, New Jersey in compliance in all material respects with the
applicable Good Manufacturing Practices as promulgated by the FDA relating to
the manufacture of dietary supplements.


 


4.14.        Accounts Receivable. 
Except as set forth on Schedule 4.14, the Accounts Receivable (i)
arose from bona  fide sales transactions in the ordinary course of
business and are payable on ordinary trade terms, (ii) are legal, valid and
binding obligations of the respective debtors enforceable in accordance with
their terms, (iii) are not subject to any valid set-off or counterclaim, (iv)
do not represent obligations for goods sold on consignment, on approval or on a
sale-or-return basis or subject to any other repurchase or return arrangement
and (v) are not the subject of any pending legal proceedings brought by or on
behalf of Seller or any of its Affiliates.


 


4.15.        Labor Matters.  Schedule
4.15 sets forth a list of the employees of the Business as of the date of
this Agreement that, upon the Closing Date and assuming that there has been no
change in such employee’s employment status with the Business, would be
classified as “Employees.”  Except as
disclosed on Schedule 4.15, to the extent related to the Business (i)
Suplementos Solgar and Seller and the Asset Transferor Entities are not party
to any collective bargaining agreement, (ii) Suplementos Solgar and Seller and
the Asset Transferor Entities are not subject to any pending unfair labor
practice proceedings with employees or any labor or other collective bargaining
unit representing employees and to Seller’s knowledge there has been no charge
of discrimination with respect to the Business or the Employees filed against
Seller or its Affiliates with the Equal Employment Opportunity Commission or
similar


 


30





















 


Governmental Authority, (iii) there is no
pending or, to Seller’s knowledge, threatened strike, slowdown or work stoppage
involving the employees, (iv) no application or petition for an election of or
for certification of a collective bargaining agent is pending and (v) there is
no lockout of any employees by Seller or its Affiliates.


 


4.16.        Insurance.  Schedule 4.16 sets forth
a complete and correct list and description, as of the date hereof, of all
insurance policies insuring the Assets, the assets of Suplementos Solgar or the
Business, as well as a list of all pending claims with any insurance company
(other than employee claims for health, medical and dental coverage) and
instances of denial of coverage of Seller or its Affiliates related to the
Business by any insurance company.  As of
the date hereof, all such insurance policies are in full force and effect and
Seller is not in default or breach of any such policy.  Seller has not received any notice of
non-renewal, cancellation or intent to cancel or not renew with respect to such
policies.


 


4.17.        Broker’s Fees. 
Except for the retention of UBS Securities LLC, the fees and expenses of
which will be paid by Seller in accordance with Section 7.1, Seller and
its Affiliates have not employed any broker, finder or investment banker or
incurred any liability for any brokerage, finder’s or other fee or commission
in connection with the transactions contemplated by this Agreement.


 


4.18.        No Other Representations or Warranties;
Disclosure.  Except for the representations and warranties
of Seller expressly set forth in this Article 4, Article 9 or
elsewhere in this Agreement, neither Seller nor any other Person makes any
other express or implied representation or warranty on behalf of Seller or
otherwise in respect of the Business. 
Without limiting the generality of the foregoing, and notwithstanding
any otherwise express representation or warranties made by Seller in this Article
4, Article 9 or elsewhere in this Agreement, Seller makes no representation or
warranty to Buyer with respect to (a) any projections, estimates or budgets
delivered to or made available to Buyer of future revenues, expenses,
expenditures, results of operations (or components thereof), cash flows or
financial condition (or any component thereof) or the Business or Suplementos
Solgar or the future business or operations of the Business or Suplementos
Solgar or (b) any other information or other documents made available to Buyer
or its counsel, accountants or other advisors with respect to the Business or
Suplementos Solgar, except as expressly covered by a representation or warranty
contained in this Article 4, Article 9 or elsewhere in this
Agreement.


 


4.19.        Affiliate Transactions. 
Except as included in the Assets or disclosed on Schedule 4.19,
(i) neither Seller nor any Affiliate of Seller (other than Suplementos Solgar)
provides or causes to be provided any assets, services, facilities or
guarantees used in connection with the Business, and (ii) the Business does not
provide or cause to be provided any assets, services, facilities or guarantees
to Seller or any such Affiliate (other than Suplementos Solgar).


 


4.20.        Real Property Leases. 
Except as set forth on Schedule 4.20:


 


(a)           the Leased Real Property is the only real
property used by Seller or its Affiliates in the Business.  Schedule 1.72 contains a true and
correct list of the Leased Real Property;


 


31





















 


(b)           Seller or an Affiliate has a valid and
subsisting leasehold estate in and the right to quiet enjoyment of the Leased
Real Property for the full term thereof subject to the terms of the applicable
lease and Applicable Law.  To the
knowledge of Seller, no event has occurred and is continuing that would prevent
exercise of renewal options under any such real property lease in accordance
with the terms of such options;


 


(c)           Seller has made available to Buyer prior to
the execution of this Agreement true and complete copies of all such real
property leases (including any amendments and renewal letters) and, to the
extent in Seller’s possession, all certificates of occupancy, surveys and
similar documents, and all amendments thereof, with respect to the Leased Real
Property;


 


(d)           there is no other tenant or other party
(other than landlords of the Leased Real Property) in possession of any of the
Leased Real Property; and


 


(e)           to Seller’s knowledge, there are no
condemnation or appropriation proceedings pending or threatened against any of
the Leased Real Property.


 


ARTICLE 5



REPRESENTATIONS AND WARRANTIES OF BUYER


 


Buyer hereby represents and
warrants to Seller as follows:


 


5.1.          Organization; Good Standing; Power; Etc. 
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of Delaware. 
Buyer has the requisite corporate power and authority to execute, deliver
and perform this Agreement and the Operative Agreements, and Buyer has all
requisite corporate power and authority to consummate the transactions
contemplated hereby and thereby.  This
Agreement has been duly executed and delivered by Buyer and constitutes, and
the Operative Agreements when executed and delivered by Buyer will constitute,
legal, valid and binding obligations of Buyer enforceable against Buyer in
accordance with their respective terms, except as the same may be limited by
bankruptcy, insolvency, moratorium, reorganization and except as such
enforceability may be limited by other laws of general applicability relating
to or affecting the enforcement of creditors’ rights and general principles of
equity.  The execution and delivery by
Buyer of the Operative Agreements, and the consummation by Buyer of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Buyer and no other or further corporate or
stockholder proceedings will be necessary for the execution and delivery of
such agreements by Buyer, the performance by Buyer of its obligations hereunder
and thereunder and the consummation by Buyer of the transactions contemplated
hereby and thereby.


 


5.2.          Broker’s Fees. 
Except for the retention of Bank of America Securities, the fees and
expenses of which will be paid by Buyer pursuant to Section 7.1, none of
Buyer or any of its Affiliates has employed any broker, finder or investment
banker or incurred any liability for any brokerage, finder’s or other fee or
commission in connection with the transactions contemplated by this Agreement.


 


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5.3.          Consents and Approvals; No Violations.  The
execution, delivery and performance by Buyer of this Agreement, the execution,
delivery and performance by Buyer of the Operative Agreements to which it is a
party and the consummation by Buyer of the transactions contemplated hereby and
thereby, will not require any material notice to, filing with, or consent,
approval or authorization of, any Person or Governmental Authority, except as
contemplated in Section 7.4 hereof or as set forth on Schedule 5.3
hereto.  Except as contemplated in Section
7.4 hereof or as set forth on Schedule 5.3 hereto, neither the
execution, delivery and performance of this Agreement by Buyer or of the
Operative Agreements by Buyer, nor the consummation of the transactions
contemplated hereby or thereby will (i) conflict with, violate or result in a
breach of any provision of the Constituent Documents of Buyer or (ii) conflict
with or violate in any material respect any law, rule or regulation of any
state, the United States or any foreign country or any order, writ, judgment,
injunction, decree, determination or award of any Governmental Authority
currently in effect that is binding upon Buyer or any of its subsidiaries or
any of their respective assets or properties.


 


5.4.          Financial Capability; Solvency.


 


(a)           At Closing, Buyer will have sufficient funds
to purchase the Assets and the Shares, assume the Assumed Liabilities and to
perform its obligations under this Agreement and the Operative Agreements then
to be performed and to consummate the transactions contemplated hereby and
thereby, all subject to the conditions contemplated by this Agreement.


 


(b)           Immediately after giving effect to the
acquisition of the Assets and the other transactions contemplated by this
Agreement (including, without limitation, any financing being entered into in
connection therewith), and assuming the truth of Seller’s representations and
warranties and performance of its obligations hereunder (i) the fair saleable
value (determined on a going concern basis) of the assets of Buyer and its
subsidiaries will be greater than the total amount of their liabilities
(including all liabilities, whether or not reflected in a balance sheet
prepared in accordance with GAAP, and whether direct or indirect, fixed or
contingent, secured or unsecured, disputed or undisputed), (ii) Buyer and its
subsidiaries will be able to pay their debts and obligations in the ordinary
course of business as they become due and (iii) Buyer and its subsidiaries will
have adequate capital to carry on their businesses and all businesses in which
they are about to engage.


 


(c)           In completing the transactions contemplated
by this Agreement, Buyer does not intend to hinder, delay or defraud any
present or future creditors of Buyer or the Business.


 


5.5.          Securities Act. 
Buyer is acquiring the Shares solely for the purpose of investment and
not with a view to, or for sale in connection with, any distribution thereof in
violation of the Securities Act or any applicable state or foreign securities
law.  Buyer acknowledges the Shares are
not registered under the Securities Act or any applicable state or foreign
securities law, and that such Shares may not be transferred or sold except
pursuant to the registration provisions of such Securities Act or pursuant to
an applicable exemption therefrom and pursuant to state and foreign securities
laws and regulations as applicable.


 


33


















 


5.6.          No Other Representations or Warranties. 
Except for the representations and warranties of Buyer expressly set
forth in this Agreement, neither Buyer nor any other Person makes any other
express or implied representation or warranty on behalf of Buyer.


 


ARTICLE 6



CONDUCT OF BUSINESS PENDING THE CLOSING


 


6.1.          Conduct of Business Pending the Closing. 
Except as disclosed on Schedule 6.1, Seller and Buyer agree that,
prior to the Closing, unless Buyer shall otherwise consent in writing (which
consent Buyer shall not unreasonably withhold) or as otherwise contemplated by
this Agreement (including with respect to the Excluded Assets) the following
provisions shall apply:


 


(a)           The Business shall be conducted only in the
ordinary course of business and consistent with past practice;


 


(b)           No Relevant Party shall pledge, dispose of or
encumber any of the Assets, the assets of Suplementos Solgar (other than
Excluded Assets) or the Shares other than in the ordinary course of business
and consistent with past practice;


 


(c)           Seller shall cause Suplementos Solgar not to
do any of the following: (i) authorize for issuance, issue, sell, pledge,
deliver, or agree or commit to issue, sell, pledge or deliver (whether through
the issuance or grant of options, warrants, commitments, subscriptions, rights
to purchase or otherwise) any capital stock of Suplementos Solgar or securities
or rights convertible into or exchangeable for, shares of capital stock or
securities convertible into or exchangeable for such shares; (ii) amend or
propose to amend its Constituent Documents; (iii) split, combine or reclassify
any shares of its capital stock; (iv) redeem, purchase or otherwise acquire or
offer to redeem, purchase or otherwise acquire any capital stock; (v) incur any
indebtedness for borrowed money or issue any debt securities or assume or
guarantee the obligations of any other Person or make any loans or advances or
enter into any other transaction, except the occurrence of intercompany loans
or the making of intercompany advances in the ordinary course of business
consistent with past practice and except for advances to employees for expenses
in the ordinary course of business and consistent with past practice; or (vi)
authorize or propose any of the foregoing or enter into any contract,
agreement, commitment or arrangement to do any of the foregoing; provided,
however, notwithstanding anything to the contrary contained in this
Agreement, that Seller and its Affiliates shall continue to have the right to
withdraw cash from Suplementos Solgar, either in the form of a dividend or in
the form of a cash advance, and, correspondingly, to provide cash to
Suplementos Solgar, either in the form of a contribution to capital or an
intercompany loan, in a manner consistent with their past practice and the cash
management programs maintained generally for their Affiliates.  Buyer acknowledges that Seller may transfer
by way of a dividend or otherwise cash, cash equivalents, marketable securities
and other financial instruments as well as any other Excluded Assets out of
Suplementos Solgar prior to Closing and, it is intended that, to the extent
practicable, the Excluded Assets relating to Suplementos Solgar will be
transferred out of Suplementos Solgar by way of dividend or otherwise prior to
Closing as contemplated by Section 6.2;


 


34





















 


(d)           Seller shall cause Suplementos Solgar not to,
and to the extent primarily related to the Business, Seller, the Asset
Transferor Entities and the Share Transferor Entity shall not, (i) acquire (by
merger, consolidation or acquisition of stock or assets) any corporation,
partnership or other business organization or division thereof or make any
investment either by purchase of stock or securities of any other individual or
entity; (ii) acquire any assets for a value in excess of $100,000 in the
aggregate other than pursuant to the current capital expenditure budget of the
Business and other than purchases in the ordinary course of business; or (iii)
authorize or propose any of the foregoing or enter into or modify any contract,
agreement, or commitment or arrangement with respect to any of the foregoing;


 


(e)           Except as otherwise contemplated by this
Agreement, Seller shall cause Suplementos Solgar not to, and to the extent
primarily related to the Business, Seller, the Asset Transferor Entities and
the Share Transferor Entity shall not, adopt or amend any U.S. Employee Plan,
U.S. Benefit Arrangement or International Plan or increase or pay any benefit
not required by any existing U.S. Employee Plan, U.S. Benefit Arrangement or
International Plan, or take any action described in Section 4.5(e),
other than (i) in the ordinary course of Seller’s business in a manner
generally applicable to employees of Seller and not in particular to employees
of the Business, (ii) in accordance with any such amendments, increases or
other changes that are scheduled as of the date hereof to go into effect as of
January 1, 2006, as identified on Schedule 6.1(e)(ii), (iii) as may be
required by a Governmental Authority, by Applicable Law or any agreement, in
each case as described on Schedule 6.1(e)(iii), (iv) as previously
agreed in writing by Buyer or (v) as described on Schedule 6.1(e)(v);


 


(f)            None of Seller, the Asset Transferor Entities
and Suplementos Solgar shall waive, release, grant or transfer any rights with
respect to any Transferred Intellectual Property, or modify or change in any
material respect or terminate any existing Material Contract or any other
material Distribution Arrangement (including modifying the amount to be paid,
or modifying or extending the terms relating to payment, under any such
Material Contract or other material Distribution Arrangement), or enter into
any Material Contracts or Distribution Arrangements, in each case, other than
in the ordinary course of business;


 


(g)           None of Seller, the Asset Transferor Entities
and Suplementos Solgar shall, except as disclosed on Schedule 6.1(g),
grant any bonuses, commissions, prizes or similar forms of remuneration to any
employee of the Business, any general increase in the rates of salaries or
compensation or any specific increase to any employee of the Business or enter
into any employment agreement, except such as are (i) in accordance with
regularly scheduled periodic increases or existing bonus plans, policies or
programs, (ii) required under Applicable Law or collective bargaining or labor
agreements, or (iii) previously agreed to in writing by Buyer;


 


(h)           The Relevant Parties shall use commercially
reasonable efforts to maintain in effect all insurance policies (or similar
substitute policies or self-insurance), all Contracts and Distribution
Arrangements and all Applicable Permits and Environmental Permits held by or on
behalf of any Relevant Party that are necessary to carry on the Business
substantially in the manner conducted by it as of the date hereof;


 


35





















 


(i)            Seller shall not change its method of
accounting for the Business (except in any case as required by changes in
GAAP);


 


(j)            Except to the extent required by Applicable
Law, Seller shall (i) cause the Business Books and Records to be maintained in
a manner consistent with past practice and (ii) not permit any material change
in any financial reporting, inventory or credit practice or policy of the
Business that would adversely affect the Business, the Assets, the assets or
properties of Suplementos Solgar or the Assumed Liabilities;


 


(k)           Seller shall not, and shall not permit any
other Relevant Party to, engage in any transaction with respect to the
Business, the Assets or the assets or properties of Suplementos Solgar with any
officer, director or Affiliate of Seller, outside the ordinary course of
business consistent with past practice; and


 


(l)            Seller shall not and not permit any of its
Affiliates to enter into any contract to do any of the foregoing.


 


6.2.          Permitted Actions. 
Notwithstanding any other provisions herein to the contrary, prior to
the Closing, Seller and its Affiliates shall be permitted, but not required, to
(i) cause Suplementos Solgar to transfer by way of dividend or otherwise to
Seller or any of its Affiliates, as the case may be, all Excluded Assets
including, but not limited to, any cash, cash equivalents or marketable
securities held by Suplementos Solgar from time to time up to and including the
Closing Date, (ii) cause the Business or Suplementos Solgar to satisfy or
discharge any intercompany accounts and (iii) cause the Business or Suplementos
Solgar to repay obligations for borrowed money, whether pursuant to the
issuance of commercial paper or otherwise, of the Business or Suplementos
Solgar.  For purposes of this Section
6.2, intercompany accounts shall mean receivables, assets, payables and
liabilities between the Business (including Suplementos Solgar), on the one
hand, and Seller and any of its Affiliates (other than Suplementos Solgar), on
the other hand.


 


ARTICLE 7



ADDITIONAL AGREEMENTS


 


7.1.          Expenses.  Except as otherwise provided
in this Agreement, all expenses, including the fees of any attorneys,
accountants, investment bankers or others engaged by a party, including without
limitation any brokers referred to Sections 4.17 and 5.2, incurred in
connection with this Agreement and the transactions contemplated hereby, shall
be paid by the party incurring such expenses whether or not the transactions
contemplated by this Agreement are consummated.


 


7.2.          Additional Agreements. 
Subject to the terms and conditions herein provided, each of the parties
hereto agrees (i) to use all commercially reasonable efforts to do, or cause to
be done, all things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement, to satisfy the mutual conditions
to the obligations of Buyer and Seller set forth in Section 8.1(a) of
this Agreement and to cooperate with each other in connection with the
foregoing, (ii) to defend all lawsuits or other legal proceedings challenging


 


36





















 


this Agreement or the consummation of the
transactions contemplated hereby, (iii) to use all commercially reasonable
efforts to lift or rescind any injunction or restraining order or other order
adversely affecting the ability of the parties to consummate the transactions
contemplated hereby, and (iv) to use all commercially reasonable efforts to
effect all necessary registrations and filings and submissions of information
required or requested by Governmental Authorities with respect to the
transactions contemplated hereby, in each case including, without limitation,
to dispose of any assets necessary to obtain the consent of any applicable
Governmental Authority.  Subject to the
terms and conditions herein provided, Seller agrees to use all commercially reasonable
efforts to do, or cause to be done, all things necessary, proper or advisable
to satisfy the conditions to the obligations of Buyer contained in this
Agreement, and Buyer agrees to use all commercially reasonable efforts to do,
or cause to be done, all things necessary, proper or advisable to satisfy the
conditions to the obligations of Seller contained in this Agreement.


 


7.3.          Access to Information.


 


(a)           Prior to the Closing, Seller shall, and shall
cause its Affiliates to, afford the officers, employees, representatives,
lenders and agents of Buyer reasonable access to the facilities and employees
of the Business and the records of Seller and its Affiliates relating to the
Business (but not including confidential personnel records) during normal
business hours and in a manner that will not unreasonably disrupt the operation
of the Business.  Seller shall, and shall
cause its Affiliates to, furnish Buyer with such additional financial,
operating and other data and information as Buyer may reasonably request, and
otherwise cooperate and assist, to the extent reasonably requested by Buyer, in
Buyer’s investigation of the properties, assets and financial condition of the
Business.  In connection therewith, the
parties will comply with the terms of the confidentiality agreement, dated
September 30, 2004 between Buyer and Seller, which agreement shall survive the
termination of this Agreement in accordance with its terms.  In addition, access may be limited, if
necessary, by Applicable Law, contractual obligations entered into prior to the
date hereof, or preservation of privilege.


 


(b)           As promptly as practicable and in any event
no later than thirty (30) days after the end of each fiscal quarter of the
Business ending after the date hereof and before the Closing Date (other than
the fourth quarter) or sixty (60) days after the end of any fiscal year of the
Business ending after the date hereof and before the Closing Date, as the case
may be, Seller will deliver to Buyer true and correct copies of regularly
prepared, unaudited statements of operating profit for the Business and net
assets for the Business, in each case as of and for the fiscal quarter and
portion of the fiscal year then ended, or the fiscal year then ended, as the
case may be, together with notes, if any, relating thereto.


 


(c)           Until the Closing, the parties hereto will
comply with the confidentiality agreement, dated September 30, 2004, between
Seller and Buyer.  Following the Closing,
such confidentiality agreement shall terminate and each party hereto will hold,
and will cause its Affiliates, and use its commercially reasonable efforts to
cause its and their respective representatives, to hold, in confidence from any
Person (other than any such Affiliate or representative), unless
(i) compelled to disclose by judicial, administrative or other legal
process or by other requirements of Applicable Law or (ii) disclosed in a legal
proceeding brought by a party hereto to enforce its rights or in the exercise
of its remedies hereunder, for a period of five


 


37





















 


(5) years following the Closing, all
documents and information concerning the other party or any of its Affiliates
furnished to it by the other party or such other party’s representatives in
connection with this Agreement or the transactions contemplated hereby except
to the extent that such documents or information can be shown to have been (a)
previously known by the party receiving such documents or information, (b) in
the public domain (either prior to or after the furnishing of such documents or
information hereunder) through no fault of such receiving party or (c) later
acquired by the receiving party from another source if the receiving party is
not aware that such source is under an obligation to the disclosing party
hereto to keep such documents and information confidential; provided
that the restrictions in this sentence will not apply to Buyer’s use of the
documents and information concerning the Assets, the assets and properties of
Suplementos Solgar and the Business transferred to Buyer by Seller
hereunder.  In the event the transactions
contemplated hereby are not consummated, upon the request of the other party,
each party hereto will, and will cause its Affiliates and their respective
representatives to, promptly redeliver or cause to be redelivered all copies of
documents and information furnished by the other party in connection with this
Agreement or the transactions contemplated hereby and destroy or cause to be
destroyed all notes, memoranda, summaries, analyses, compilations and other
writings related thereto or based thereon prepared by the party furnished such
documents and information or its representatives.


 


7.4.          Filings and Authorizations. 
Seller and Buyer have filed or supplied or will, as promptly as
practicable, file or supply, or cause to be filed or supplied, all
notifications and information required to be filed or supplied pursuant to any
Competition Laws, including, without limitation, the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the “HSR Act”), in
connection with the transactions contemplated by this Agreement and the
Operative Agreements.  As promptly as
practicable, (a) Seller and Buyer will make, or cause to be made, and shall
cooperate with the other in making or causing to be made all such other filings
and submissions under laws, rules and regulations applicable to them, or to any
Affiliate, as may be reasonably required for them to consummate the
transactions contemplated hereby in accordance with the terms of this Agreement
and the Operative Agreements, and (b) Buyer and Seller will use their
reasonable best efforts to obtain, or cause to be obtained, all authorizations,
approvals, consents and waivers from all Governmental Authorities necessary to
be obtained by them, or their Affiliates, in order for them so to consummate
such transactions.  Buyer shall pay any
fee required to be paid pursuant to the HSR Act in connection with the
transactions contemplated by this Agreement.


 


7.5.          Tax Matters.


 


(a)           Liability for Taxes.


 


(i)            Except for Buyer’s portion of Taxes described
in Section 7.5(a)(v) or for Taxes included in the Final Net Asset Value,
Seller shall be liable for, and shall indemnify and hold Buyer harmless
against, all (A) Taxes relating to the Assets for any taxable year or period
that ends on or before the Closing Date, and (B) Taxes imposed on Suplementos
Solgar directly or as a member of the Spanish Tax Group, as regulated under
Chapter VII Title VII of Spanish RDL 4/2004 of 5 March 2004, for any taxable
year or period that ends on or before the Closing Date and, in each case (A)
and (B), with respect to any Straddle Period, the portion of such Straddle
Period ending on the Closing Date (including, without limitation, any


 


38





















 


obligation to contribute to the payment of a
Tax determined on a consolidated, combined or unitary basis with respect to
Suplementos Solgar and any of Seller’s Tax Affiliates).


 


(ii)           Except for Seller’s portion of Taxes
described in Section 7.5(a)(v), Buyer shall be liable for, and shall
indemnify and hold Seller harmless against, all (A) Taxes relating to the
Assets for any taxable year or period that begins after the Closing Date, and
(B) Taxes imposed on Suplementos Solgar for any taxable year or period that
begins after the Closing Date and, in each case (A) and (B), with respect to
any Straddle Period, the portion of such Straddle Period beginning on the day
after the Closing Date (including, without limitation, any obligation to
contribute to the payment of a Tax determined on a consolidated, combined or
unitary basis with respect to Suplementos Solgar and any of Buyer’s Tax
Affiliates).


 


(iii)          For purposes of this Agreement, whenever it
is necessary to determine the liability for Taxes for a Straddle Period, the
determination of the Taxes for the portion of the Straddle Period ending on the
Closing Date and the portion of the Straddle Period beginning on the day after
the Closing Date shall be determined by assuming that the Straddle Period consisted
of two taxable years or periods, one which ended on the Closing Date and the
other which began on the day after the Closing Date, and items for the Straddle
Period shall be allocated between such two taxable years or periods on a “closing
of the books basis” by assuming that the books of the applicable party were
closed at the close of business on the Closing Date, provided, however,
that (A) in the case of Taxes that are imposed on a periodic basis and measured
by the amount, value or level of any item other than income, such items shall
be allocated on a pro rata per diem basis and (B) extraordinary items described
in Treas. Reg. §1.1502-76(b)(2)(ii)(C) shall be allocated to the day that they
are taken into account.


 


(iv)          For purposes of paragraphs (a)(i) and
(a)(ii), where, under applicable law, a taxable year or period ends as a result
of the purchase of the Shares pursuant to this Agreement, items of income,
gain, deduction, loss or credit shall be allocated between such taxable year or
period and the following taxable year or period in a manner consistent with the
rules in Treas. Reg. §1.1502-76(b).


 


(v)           Seller and Buyer shall each be liable for,
and shall indemnify the other against, 50% of all sales Tax, use Tax, stamp
Tax, stock transfer Tax, or other similar Tax imposed on the transactions
contemplated by Article 2 of this Agreement; provided, however, that any and
all value-added and similar Taxes shall be the responsibility of, and shall be
paid by, Buyer.  Buyer and Seller shall
fully cooperate in timely completing and filing with the appropriate taxing
authority all forms necessary to qualify for any and all exemptions to sales
Taxes and value added Taxes.  It is the
intention of Seller and Buyer that the transactions contemplated by Article
2 of this Agreement constitute the sale of a business and that the transactions
qualify for all applicable exemptions from value-added Taxes and state and
local sales and use Taxes, and neither Seller nor Buyer shall take any
inconsistent position in any Tax Return.  
Without limiting the generality of the foregoing, following the date
hereof, Buyer and Seller shall each, as promptly as practicable, take all
reasonable efforts to notify and request confirmation in writing from H.M.
Revenue and Customs that value added Taxes are not chargeable on the sale of
the business in the United Kingdom under the provisions of Value Added Tax
(Special Provisions) Order 1995 (S.I. 1995, No 1268, Art 5).


 


39





















 


(vi)          Unless reflected in Final Net Asset Value,
Buyer shall pay to Seller the amounts of any refund, abatement or credit of
Taxes received by Buyer from a Governmental Authority related to the Business
which are attributable to (A) any taxable period that ends on or before the
Closing Date, (B) in the case of any Straddle Period the amount of the refund,
abatement or credit of Taxes received by Buyer from a Governmental Authority
attributable to the portion of the Straddle Period ending on the Closing Date
consistent with the principles of Section 7.5(a)(iii), or (C) Taxes for
which Seller has previously indemnified Buyer. 
Notwithstanding the foregoing, Buyer shall not be obligated to pay
Seller the amount of any refund, abatement or credit of Taxes that is reflected
in the Final Net Asset Value.  Seller
shall pay to Buyer the amounts of any refund, abatement or credit of Taxes
received by Seller from a Governmental Authority related to the Business which
are attributable to (A) any taxable period that begins after the Closing Date,
(B) in the case of any Straddle Period the amount of the refund, abatement or
credit of Taxes received by Seller from a Governmental Authority attributable
to the portion of the Straddle Period beginning on the day after the Closing
Date consistent with the principles of Section 7.5(a)(iii), or (C) Taxes
for which Buyer has previously indemnified Seller.


 


(b)           For all taxable years or periods ending on or
before the Closing Date, Seller shall prepare and file, or cause to be prepared
and filed, when due all Tax Returns with respect to Suplementos Solgar and
shall timely remit (or cause to be remitted) to the appropriate Governmental
Authority any Taxes due in respect of such Tax Returns; provided, however, that
with respect to such Tax Returns that are due after the Closing Date, Seller
shall prepare and present, or cause to be prepared and presented, such Tax
Returns (or in the case of a consolidated, combined or unitary Tax Return, a
pro forma Tax Return reflecting the Taxes with respect to the Business) to
Buyer for review and comment on the Closing Date or at least five (5) days
before the date on which such Tax Returns are required to be filed (or, in the
case of Tax Returns related to income Taxes, at least twenty-five (25) days
before the date on which such Tax Returns are required to be filed), whichever
is later, and shall consider in good faith any suggestion or comments made by
Buyer with respect to such Returns.  For
the avoidance of doubt, nothing in this Agreement shall require Seller or any
Affiliate of Seller to disclose any Tax Returns or other information other than
those which are related solely to the Business. 
For all Straddle Periods and taxable years or periods beginning after
the Closing Date, Buyer shall prepare and file, or cause to be prepared and
filed, when due all Tax Returns with respect to Suplementos Solgar and shall
timely remit (or cause to be remitted) to the appropriate Governmental
Authority any Taxes due in respect of such Tax Returns.  Seller shall pay to Buyer in sufficient time
for Buyer to pay the appropriate Governmental Authority, the portion of the Tax
liability attributable to Seller on such Straddle Period Tax Returns as
determined pursuant to Section 7.5(a). 
Buyer shall not amend any Tax Return filed by Seller or make any Tax
election that would affect the Tax liability of (i) Suplementos Solgar, with
respect to any Straddle Period or any taxable years or periods ending on or
before the Closing Date, or (ii) Seller or any of Seller’s Tax Affiliates, in
each case (i) and (ii), without the prior written consent of Seller, which
consent shall not be unreasonable withheld; provided, however,
Buyer shall be entitled to make an election under Section 338 of the Code
(or any similar provision under the laws of Spain) or an election to treat
Suplementos Solgar as a pass-through entity for U.S. or Spanish Tax purposes
without Seller’s consent.  Buyer will
file all Tax Returns with respect to Straddle Periods in accordance with Seller’s
past practice (except as required by law). 
Buyer shall prepare and present such Straddle Period Tax Returns to
Seller for review and comment at least five (5) days


 


40





















 


before the date on which such Tax Returns are
required to be filed (or, in the case of Tax Returns related to income Taxes,
at least twenty-five (25) days before the date on which such Tax Returns are
required to be filed) and shall consider in good faith any suggestions or
comments made by Seller with respect to such Tax Returns.  Any disputes regarding the application of
this Section 7.5(b) with respect to a Tax Return relating to
taxable years or periods ending on or before the Closing Date or a Straddle
Period Tax Return that remains unresolved following such period shall be
resolved pursuant to Section 7.5(g).


 


(c)           Contest Provisions. 
Buyer shall notify Seller and Seller shall notify Buyer, as the case may
be, in writing upon receipt of written notice of any pending or threatened
federal, state, local or foreign Tax audits, assessments or proceedings (“Tax
Proceedings”) which may affect the Tax liability of (i) Buyer or
Suplementos Solgar, for which Seller would be required to indemnify Buyer
pursuant to paragraph (a) of this Section 7.5, (ii) Seller, or (iii) any
Tax Affiliate of Seller.  Seller shall
have the right to represent, and Buyer shall have the right to participate in
at Buyer’s own expense the representation of, Suplementos Solgar’s interest in
any such Tax Proceeding and any Tax Proceeding relating to any taxable periods
ending on or before the Closing Date, and to employ counsel of its choice at
its expense.  Seller has the right, but
not the obligation, to jointly represent its interests with Buyer in any Tax
Proceeding relating to Taxes for any Straddle Period.  Any disputes regarding the conduct or
resolution of any Tax Proceeding shall be resolved pursuant to Section
7.5(g).


 


(d)           Cooperation.


 


(i)            Buyer and Seller agree to cooperate and share
all required information on a timely basis in order to timely file all Tax
Returns (including any Tax Returns to be filed as a consequence of the sale of
the Shares and Suplementos Solgar’s exit from the Spanish Tax Group) related to
the Business and for the preparation of any audit, and for the prosecution or
defense of any claim, suit or proceeding relating to any proposed adjustment
related to the Business.  Buyer and
Seller agree to retain or cause to be retained all books and records pertinent
to the Business until the applicable period for assessment under applicable law
(giving effect to any and all extensions or waivers) has expired, and to abide
by or cause the abidance with all record retention agreements entered into with
any Governmental Authority.  After the
Closing, each party will give the other reasonable notice prior to discarding
or destroying any such books and records relating to Tax matters pertinent to
the Business and, if such other party so requests and at its expense, the
requesting party will be allowed to take possession of such books and records.  Buyer and Seller shall cooperate with each
other in the conduct of any audit or other proceedings involving Suplementos
Solgar for any Tax purpose and each shall execute and deliver such powers of
attorney and other documents as are necessary and appropriate to carry out the
intent of this subsection.


 


(ii)           An allocation of the Purchase Price by
jurisdiction based upon the fair market value of each of the Assets and the
Shares to be sold by Seller and acquired by Buyer pursuant to this Agreement is
attached as Schedule 7.5(d). 
Seller and Buyer shall cooperate with each other to determine, prior to
the Closing Date, the applicable values, allocations and other information
necessary to file Forms 8594 with respect to the transactions contemplated by
Article 2 and shall each file all Tax Returns consistent therewith.  Seller and Buyer will mutually agree in
writing upon appropriate adjustments to such allocation as


 


41





















 


necessary following the Closing to account
for adjustments to the Purchase Price made pursuant to this Agreement.  All adjustments to the Purchase Price made
pursuant to this Section 7.5(d)(ii) and Section 7.5(e) will be made in
accordance with Section 1060 of the Code, and the regulations thereunder, or in
accordance with applicable foreign law.


 


(e)           Adjustment to Purchase Price.  Any
payment by Buyer or Seller under this Section 7.5 hereof will be treated
as an adjustment to the Purchase Price.


 


(f)            Survival of Obligations. 
Notwithstanding anything to the contrary in this Agreement (including Section
12.3 hereof), the obligations of the parties set forth in this Section
7.5 shall be unconditional and absolute and shall remain in effect until the
expiration of the applicable statute of limitations.


 


(g)           Disputes.  In the event that Seller or
Buyer dispute the application or interpretation of any provision of Sections
4.6 or 7.5(a), or the amount or calculation of Taxes, if any, owed by such
party thereunder, such party shall deliver to the other a statement setting
forth, in reasonable detail, the nature of and/or the dollar or euro amount, as
applicable, of any disagreement so asserted. The parties shall attempt in good
faith to resolve such dispute within twenty (20) business days following the commencement
of such dispute.  If the parties are
unable to resolve such dispute within such twenty (20) business day period, the
dispute shall be resolved by the Accountant. 
The Accountant shall determine, only with respect to the specific
disagreements submitted in writing by Seller and Buyer, the manner in which
such item or items in dispute should be resolved; provided, however, that the
dollar or euro amount of any such item or items shall be determined within the
range of dollar or euro amounts proposed by Seller, on the one hand, and Buyer,
on the other hand. The Accountant shall be directed to make such determination
promptly, but in no event later than thirty (30) days after acceptance of its
appointment.  Any finding by the
Accountant shall be a reasoned award stating the findings of fact and
conclusions of law (if any) on which it is based, shall be final and binding
upon the parties and shall be the sole and exclusive remedy between the parties
regarding the disputed items so presented. The fees and expenses of the
Accountant shall be borne exclusively by the party whose estimate of the Tax
owed is furthest from the amount owed as determined by the Accountant. The
parties shall otherwise bear their own expenses incurred in any dispute
resolution pursuant to this Section 7.5(g).


 


(h)           Sole Remedy.  This Section 7.5 shall
be the sole provision governing Tax matters and the parties’ indemnification
obligations for Taxes except that such indemnification obligations shall be
subject to the provisions set forth in Section 11.6.  For the avoidance of doubt, (i) Section
11.3 shall not apply to the parties’ indemnification obligations for Taxes set
forth in this Section 7.5 and (ii) to the extent a party is entitled to
payment from the other party under this Section 7.5, such payment shall
be for the full amount thereof and shall not be subject to any baskets,
thresholds, caps or other similar limitations.


 


7.6.          Use of Certain Names.  As
promptly as practicable, but in any event within three hundred sixty (360) days
after the Closing, Buyer shall and shall cause Suplementos Solgar to revise
product literature and labeling (including by way of stickering), change
packaging and stationery, and otherwise discontinue use of the names “Wyeth,” “Wyeth-Ayerst,”
“Wy,” “American Home Products,” “AHP,” “AHPC,” “American Cyanamid,” “Cyanamid,”


 


42





















 


“Cy,” “Lederle,” “Led,” “A. H. Robins,” “Robins”
and “Whitehall” and any variation, derivative or name imitative thereof
(collectively, “Names”); provided, however, that, with respect to
finished goods inventory included in the Inventory and product inventory
manufactured by Suplementos Solgar or its Affiliates prior to the Closing,
Buyer and Suplementos Solgar may continue to sell such inventory,
notwithstanding that it bears one or more of the Names, for a reasonable period
of time after the Closing (not to exceed three hundred sixty (360) days).  In no event shall Buyer or Suplementos Solgar
use any Names after the Closing in any manner or for any purpose different from
the use of such Names by Suplementos Solgar during the ninety (90) day period
preceding the date hereof.  Seller shall,
and shall cause its Affiliates to, discontinue use of the name Solgar and any
variation, derivative or name imitative thereof following the Closing.


 


7.7.          Removal of Assets.  As
soon as reasonably practicable after the Closing, but in no event later than
two hundred seventy (270) days, Buyer shall arrange to have the Assets set
forth on Schedule 1.10 removed from the premises of the Asset Transferor
Entities or any other Affiliate of Seller at which such Assets are located as
set forth in such Schedule, and transferred to premises of Buyer at Buyer’s
sole cost.  As soon as reasonably
practicable after Buyer’s written request, but in no event later than one
hundred twenty (120) days following such request, Seller shall arrange to have
all tangible Excluded Assets removed from Suplementos Solgar’s premises and any
premises comprising the Assets, and transferred to premises of Seller at Seller’s
sole cost.


 


7.8.          Access to Records After Closing.


 


(a)           For a period of six (6) years after the
Closing, Seller and its Affiliates and their respective representatives shall
have reasonable access to all of the books and records of the Business with
respect to periods prior to the Closing Date to the extent that such access may
reasonably be required by Seller in connection with matters relating to or
affected by the operations of the Business prior to the Closing Date (including
integrated records of other businesses of Seller or its Affiliates).  Seller or its Affiliates, as the case may be,
shall be solely responsible for any costs and expenses incurred by Seller or
such Affiliate pursuant to this Section 7.8(a).  Buyer shall afford such access upon receipt
of reasonable advance notice and during normal business hours.  If Buyer or its Affiliates shall desire to
dispose of any of such books and records prior to the expiration of such six
(6) year period, Buyer shall, prior to such disposition, give Seller a
reasonable opportunity, at Seller’s expense, to segregate and remove such books
and records as Seller may elect.


 


(b)           For a period of six (6) years after the
Closing Date, Buyer and its Affiliates and their respective representatives
shall have reasonable access to all of the books and records relating to the
Business which Seller or any of its Affiliates may retain after the Closing
Date.  Such access shall be afforded by
Seller and its Affiliates upon receipt of reasonable advance notice and during
normal business hours.  Buyer or its
Affiliates, as the case may be, shall be solely responsible for any costs and
expenses incurred by it pursuant to this Section 7.8(b).  If Seller or any of its Affiliates shall
desire to dispose of any of such books and records prior to the expiration of
such six (6) year period, Seller shall, prior to such disposition, give Buyer a
reasonable opportunity, at Buyer’s expense, to segregate and remove such books
and records as Buyer may elect.


 


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7.9.          Disclosure Supplement. 
Prior to Closing, Seller, as promptly as practicable upon becoming aware
thereof, shall deliver to Buyer supplements to the Disclosure Schedule, if
appropriate, to reflect (a) any fact or condition that causes or constitutes a
breach of any of Seller’s representations and warranties made as of the date of
this Agreement or (b) the occurrence after the date of this Agreement of any
fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a breach of any such representation or warranty
had that representation or warranty been made as of the time of the occurrence
of, or Seller’s discovery of, such fact or condition.  Prior to Closing, Buyer, as promptly as
practicable upon becoming aware thereof, shall deliver to Seller supplements to
the Disclosure Schedule, if appropriate, to reflect (a) any fact or condition
that causes or constitutes a breach of any of Buyer’s representations and
warranties made as of the date of this Agreement or (b) the occurrence after
the date of this Agreement of any fact or condition that would (except as
expressly contemplated by this Agreement) cause or constitute a breach of any
such representation or warranty had that representation or warranty been made
as of the time of the occurrence of, or Buyer’s discovery of, such fact or
condition.  Matters disclosed in any such
supplements amending the Disclosure Schedule regarding facts or conditions
occurring after the date hereof shall not be considered to be a breach of any
representation or warranty contained herein. 
Any such supplement to the Disclosure Schedule regarding facts or
conditions occurring after the date hereof shall be considered an amendment to
the Disclosure Schedule for all purposes of this Agreement (including, without
limitation, Article 11); provided, however, that such
supplemental disclosure shall not be taken into account with respect to the
satisfaction of the conditions to Seller’s obligations set forth in Section
8.2(b) or to Buyer’s obligations set forth in Section 8.3(b) or affect
their respective rights under Article 10.


 


7.10.        Applicable Permits and Environmental Permits. 
Promptly following the execution of this Agreement, Buyer shall apply
for the transfer or re-issuance of all material Applicable Permits and
Environmental Permits, at Buyer’s sole cost and expense.  Seller shall use commercially reasonable
efforts to cooperate with Buyer in connection with Buyer’s aforementioned
obligation.


 


7.11.        ISRA Requirements.


 


(a)           The Parties acknowledge that the facilities
located in Leonia and Lyndhurst, New Jersey are subject to ISRA as in effect as
of the Closing Date and the transaction contemplated by this Agreement will
trigger the ISRA process for the Leonia and Lyndhurst facilities.  Seller will assume and perform, at Seller’s
sole cost and expense, all obligations, requirements and/or responsibilities
under ISRA as in effect as of the Closing Date (including Remedial Action) which
are imposed as a result of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby (the “Seller ISRA
Requirements”).


 


(b)           If Remedial Action is required to fulfill the
Seller ISRA Requirements, whether before or after the Closing, Seller shall
control and carry out all such obligations, requirements or responsibilities,
including without limitation, the execution of a Remediation Agreement (as
defined in ISRA) or similar document, and Seller shall conduct all Seller ISRA
Requirements to the extent required by ISRA and/or to achieve the Remediation
Standard.  Seller’s obligation in
performing the Seller ISRA Requirements shall be deemed


 


44





















 


complete upon the receipt from the New Jersey
Department of Environmental Protection (“NJDEP”) of a No Further Action
Letter/Covenant Not to Sue (“NFA”) (as defined in ISRA) or, if the NJDEP
ceases issuing such NFAs as a practice, such other written confirmation from
the NJDEP that no further action is required.


 


(c)           The Parties agree to cooperate in good faith
with respect to the Seller ISRA Requirements. 
Seller shall promptly provide Buyer with copies of any plans, reports,
correspondence or other filings made in connection with Seller ISRA
Requirements and provide Buyer with such other rights of participation as set
forth in Section 11.1(g).  In no
event shall the performance of the Seller ISRA Requirements unreasonably
interfere with Buyer’s operation or use of the Leased Real Property subject to
the Seller ISRA Requirements.


 


7.12.        Cost-Sharing for Unknown Pre-Closing
Environmental Liabilities.


 


(a)           After the Closing, each party shall, subject
to Section 11.3,  within ten (10)
business days of demand therefor, reimburse the other party and its respective
Affiliates and their respective officers, directors, employees, agents and
controlling Persons, their respective percentage of Losses incurred by such
Persons arising from or attributable to the Unknown Pre-Closing Environmental
Liabilities in the amounts as set forth below: 


 


	
  Time Period–Written notice

  of claim for reimbursement

  provided to other party during

  the following time periods:

  	
   

  	
  Seller’s % Share

  	
   

  	
  Buyer’s % Share

  	
   

  
	
  Closing Date to 18th month
  anniversary of the Closing Date

  	
   

  	
  100

  	
  %

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18th month anniversary of the
  Closing Date to 36th month anniversary of the Closing Date

  	
   

  	
  96

  	
  %

  	
  4

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  36th month anniversary of the
  Closing Date to 60th month anniversary of the Closing Date

  	
   

  	
  63

  	
  %

  	
  37

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  60th month anniversary of the
  Closing Date to 84th month anniversary of the Closing Date

  	
   

  	
  37

  	
  %

  	
  63

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  after 84th month anniversary of
  the Closing Date

  	
   

  	
  0

  	
  %

  	
  100

  	
  %

  



 


45





















 


(b)           Notwithstanding the percentages set forth
above, Buyer’s and Seller’s respective shares in the chart above shall only
apply until the Cap is reached, at which point Buyer will be responsible for
and shall reimburse Seller for 100% of such Losses.


 


7.13.        Release Under Leases. 
Buyer and Seller shall cooperate and use commercially reasonable efforts
to obtain for Seller, Suplementos Solgar and the Asset Transferor Entities on
or prior to the Closing a release from all liability under the leases relating
to the Leased Real Property; provided, however, that Buyer will
not be required to take actions that would result in a material adverse change
in the benefits to it of this Agreement and the transactions contemplated
hereby or to dispose of or make any change to its business or expend any funds
in connection with such releases.


 


7.14.        No Negotiation.  From
and after the date hereof and until such time as this Agreement shall be
terminated pursuant to Section 10.1, Seller shall not, and shall not
permit any Affiliate to, directly or indirectly solicit or initiate offers for,
engage in any negotiations or meetings with or provide any information or
documentation to any third party relating to any business combination
transaction solely involving the Assets, the Shares, the assets or properties
of Suplementos Solgar or the Business. 
Seller shall notify Buyer promptly of the existence (but, for the
avoidance of doubt, not the terms) of any written bona fide proposal or request
for information relating to any such business combination upon receipt or
awareness of the same by Seller or any of its Affiliates.


 


7.15.        Covenant Not to Compete.


 


(a)           Seller shall not, and shall cause its
controlled Affiliates not to, for a period of eighteen (18) months from the
Closing Date, (i) employ or seek to employ any employee of Buyer or an
Affiliate of Buyer who is employed at the Closing by Buyer or such Affiliate in
connection with the Business, unless such employee resigns without solicitation
by Seller or its Affiliates, is terminated after the Closing Date or is responding
to general solicitations to the public, general advertising or untargeted
advertisements for employment, or (ii) engage in any Competitive Business (as
hereinafter defined) in the United States of America; provided, however,
that nothing herein contained shall be construed to prevent Seller or its
Affiliates from (x) acquiring or merging with any business, Person or entity
seventy-five percent (75%) or more of whose consolidated revenues for the most
recently completed fiscal year prior to such acquisition were derived from
businesses other than a Competitive Business, or (y) being acquired by, or
engaging in a business combination, a merger of equals or a similar transaction
with, any Person or entity engaged in a Competitive Business; and, in each such
case, continuing to operate such Competitive Business.


 


(b)           “Competitive Business” shall mean the
sale of an over-the-counter, human ingestible product that contains
substantially the same ingredients in substantially the same levels and
substantially the same form as the Vitamin E, VM75, Vitamin B, Vitamin C,
and/or Glucosamine Chondroitin products described in the labels attached hereto
as Exhibit G, to the extent sold directly to independent health food
stores or to the stores or distributors set forth on Schedule 7.15(b)
hereto; provided, however, that Buyer acknowledges that the
conduct of the business of Seller and/or its Affiliates (including research and
development and business derived therefrom) as conducted as of the Closing Date
shall not constitute operation of a Competitive


 


46





















 


Business, including, without limitation all
current and future products sold by Seller and/or its Affiliates under its
trademarks in existence as of the Closing Date, such as the Centrum®,
Robitussin or Caltrate® trademarks.


 


(c)           If a final judgment of a court or tribunal of
competent jurisdiction determines that any term or provision contained in this Section
7.15 is invalid or unenforceable, then the parties agree that the court or
tribunal will have the power to reduce the scope, duration or geographic area
of the term or provision, to delete specific words or phrases or to replace any
invalid or unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision.


 


7.16.        Adverse Experience Reporting Requirements.  Upon
Closing, Buyer shall be solely responsible for all adverse experience reporting
for all products of the Business if and as required and in compliance with all
applicable laws regarding the monitoring, reviewing and reporting of adverse
experiences to applicable Governmental Authorities.  To the extent Seller
receives any information regarding an adverse experience which may be related
to the use of such products of the Business, Seller shall promptly provide
Buyer with all such information within five (5) calendar days of Seller’s
receipt date.  Such information shall be transmitted to Buyer as
follows:


 


NBTY, Inc.


90 Orville Drive


Bohemia, New York  11716


Attention:  President


Telecopier Number:  (631) 567-7148


 


with a copy to:


 


NBTY, Inc.


90 Orville Drive


Bohemia, New York  11716


Attention:  Irene Fisher, Esq.


Telecopier Number:  (631) 218-7341


 


ARTICLE 8



CONDITIONS


 


8.1.          Conditions to Obligations of Each Party.  The
obligation of each party to effect the transactions contemplated by this
Agreement shall be subject to the fulfillment at or prior to the Closing Date
of the following conditions:


 


(a)           any waiting period (and any extension
thereof) imposed by any Governmental Authority necessary for the consummation
of the transactions contemplated by this Agreement and the Operative
Agreements, including under the HSR Act or other Competition Laws, shall have
expired or been terminated;


 


47





















 


(b)           no preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent jurisdiction or by
a Governmental Authority nor any Applicable Law shall be in effect that would
prevent the consummation of the transactions contemplated by this Agreement in
the United States of America or the European Union;


 


(c)           the consents, approvals and waivers from
third parties set forth on Schedule 8.1(c) shall have been obtained, in
form and substance reasonably acceptable to Buyer and Seller; and


 


(d)           the documents and instruments to be delivered
by the other party pursuant to Article 3 shall have been delivered.


 


8.2.          Conditions to Obligations of Seller.  The
obligation of Seller to effect the transactions contemplated by this Agreement
is subject to the fulfillment at or prior to the Closing Date of the following
conditions:


 


(a)           Buyer shall have performed in all material
respects each obligation and agreement and complied in all material respects
with each covenant to be performed and complied with by it hereunder at or
prior to the Closing Date;


 


(b)           the representations and warranties of Buyer
in this Agreement shall be true and correct in all material respects as of the
Closing Date with the same force and effect as though made at such time, except
for changes contemplated by this Agreement;


 


(c)           Buyer shall have furnished to Seller a
certificate, dated as of the Closing Date, signed by a duly authorized officer
of Buyer to the effect that all conditions set forth in Sections 8.2(a)
and (b) have been satisfied; and


 


(d)           no Buyer Material Adverse Effect shall have
occurred from and after the date of this Agreement and be continuing.


 


8.3.          Conditions to Obligations of Buyer.  The
obligation of Buyer to effect the transactions contemplated by this Agreement
is subject to the fulfillment at or prior to the Closing Date of the following
conditions:


 


(a)           Seller and its Affiliates shall have
performed in all material respects each obligation and agreement and complied
in all material respects with each covenant to be performed and complied with
by them hereunder at or prior to the Closing Date;


 


(b)           the representations and warranties of Seller
in this Agreement shall be true and correct (without regard to any “material,” “materiality”
or “Material Adverse Effect” qualifiers set forth therein) as of the Closing
Date with the same force and effect as though made at such time (except for
changes contemplated by this Agreement, but without giving effect to any
supplement to the Disclosure Schedule), except to the extent that the failure
of any such representations and warranties to be true and correct would not,
individually or in the aggregate with all such other failures, have a Material
Adverse Effect;


 


48





















 


(c)           Seller shall have furnished to Buyer a
certificate, dated as of the Closing Date, signed by a duly authorized officer
of Seller to the effect that all conditions set forth in Sections 8.3(a)
and (b) have been satisfied;


 


(d)           Seller will have completed the requirements
of ISRA which, pursuant to ISRA, must be completed prior to the Closing; and


 


(e)           no Material Adverse Effect shall have
occurred from and after the date of this Agreement and be continuing.


 


ARTICLE 9



AGREEMENTS WITH RESPECT TO EMPLOYEES AND EMPLOYEE BENEFITS


 


9.1.       U.S. Employee Plans. 
Seller hereby represents and warrants to Buyer that:


 


(a)           Schedule 9.l(a) lists each employee benefit plan, as such
term is defined in Section 3(3) of ERISA, which (i) is subject to any provision
of ERISA (including post retirement retiree life and medical benefits and
disability benefits) and (ii) covers any U.S. Employee (hereinafter referred to
collectively as the “U.S. Employee Plans”).


 


(b)           Schedule 9.1(b) lists (x) each collective bargaining
agreement, management, employment, consulting or other contract with any
individual providing for the retention of personal services involving the
payment of $100,000 or more per individual, per annum, and (y) each plan or
arrangement providing for vacation benefits, supplemental nonqualified
benefits, severance benefits, bonuses, deferred compensation, perquisites,
fringe benefits, retention benefits, restricted stock, phantom stock, stock
options, stock appreciation or other forms of incentive compensation,
compensation or benefits which, in each case in clauses (x) and (y), (i) is not
a U.S. Employee Plan and (ii) covers any U.S. Employee or dependent or
beneficiary thereof.  Such contracts,
plans and arrangement as described above, are hereinafter referred to
collectively as the “U.S. Benefit Arrangements.”


 


(c)           Neither Seller nor any of its ERISA
Affiliates has incurred any liability under Title IV of ERISA that could
become, after the Closing Date, an obligation of Buyer or any of its Affiliates
and no condition exists that presents a material risk to Seller or any of its
ERISA Affiliates of incurring or being subject (whether primarily, jointly or
secondarily) to a material liability under Title IV of ERISA. None of the
Assets or the Shares is, or may reasonably be expected to become, the subject
of any lien arising under ERISA or Section 412(n) of the Code.


 


(d)           The Wyeth Savings Plan (“Seller’s U.S.
Savings Plan”) is intended to satisfy Section 401(a) of the Code and has
received a favorable determination letter from the Internal Revenue
Service.  To the knowledge of Seller
nothing has occurred since the issuance of each such letter which could
reasonably affect its qualification.


 


(e)           Neither Seller nor any ERISA Affiliate has
been required, or has any obligation, to contribute to a multiemployer plan, as
defined in Section 3(37) of ERISA, or


 


49





















 


has or expects to have any withdrawal
liability assessed against it with respect to any such multiemployer plan.


 


(f)            Except with respect to Seller’s medical
spending account plan, (i) no U.S. Employee Plan or U.S. Benefit Arrangement
(or any liability or obligation thereunder) is required, by its terms or
otherwise, to be assigned or otherwise transferred to Buyer or its Affiliates
in connection with the transactions contemplated by this Agreement, and (ii)
with respect to each U.S. Employee Plan and U.S. Benefit Arrangement, no event
has occurred and there exists no condition or set of circumstances in
connection with which Buyer or any of its Affiliates could be subject to any
liability under the terms of, or with respect to, each such U.S. Employee Plan,
U.S. Benefit Arrangement, ERISA, the Code or any other Applicable Law.


 


(g)           Seller is not aware of any pending or
proposed material increase or enhancement of benefits under any U.S. Employee
Plan or U.S. Benefit Arrangement that would become effective prior to August
15, 2005, other than (i) in accordance with any such amendments, increases or
other changes that are scheduled as of the date hereof to go into effect as of
January 1, 2006, as identified on Schedule 6.1(e)(ii), (ii) as may be
required by a Governmental Authority, by Applicable Law or any agreement, in
each case as described on Schedule 6.1(e)(iii) or (iii) as described on Schedule
6.1(e)(v).


 


9.2.       International Plans. 
Seller hereby represents and warrants to Buyer that:


 


(a)           Schedule 9.2(a) lists each plan, program, policy, practice
or arrangement covering Ex-U.S. Employees that would be either a U.S. Employee
Plan or U.S. Benefit Arrangement if it were subject to ERISA and/or covered or
applied to U.S. Employees including, without limitation, vacation, severance,
disability, medical, dental, hospitalization, life insurance and incentive
bonus, savings and retirement plans, provided such plan is not maintained by a
governmental authority or system (collectively, “International Plans”).


 


(b)           To the knowledge of Seller, all International
Plans are in compliance with, and have been administered in compliance with,
Applicable Law in all material respects and contributions required to be made
to each such plan under the terms of the plan or any contract or labor or collective
bargaining agreement or Applicable Law have been made or reserved.


 


(c)           To the knowledge of Seller, each
International Plan maintained by a Share Transferor Entity or Suplementos
Solgar that is intended to qualify for special tax treatment meets all
requirements for such treatment.  Each
International Plan maintained by Suplementos Solgar that is intended to be
funded and/or book-reserved is fully funded and/or book reserved, as
appropriate, based upon reasonable actuarial assumptions.


 


(d)           The standard terms and conditions of
engagement in respect of each Ex-U.S. Employee have been described on Schedule
9.2(d).


 


(e)           Seller has delivered to Buyer true and
complete copies of the most recent summary for each International Plan.


 


50





















 


(f)            Except as set forth on Schedule 9.2(f),
Seller is not aware of any pending or proposed material increase or enhancement
of benefits under any International Plan that would become effective prior to
August 15, 2005, other than (i) in accordance with any such amendments,
increases or other changes that are scheduled as of the date hereof to go into
effect as of January 1, 2006, as identified on Schedule 6.1(e)(ii), (ii)
as may be required by a Governmental Authority, by Applicable Law or any
agreement, in each case as described on Schedule 6.1(e)(iii) or (iii) as
described on Schedule 6.1(e)(v).


 


9.3.       Employees.


 


(a)           Buyer shall offer employment to Employees on
the following basis:


 


(i)            With respect to Employees employed by Seller
or the Asset Transferor Entities, Buyer shall offer or cause an Affiliate of
Buyer to offer to hire each such Employee on the Closing Date (other than those
Employees engaged in Research and Development at the Richmond, Virginia
location) at the same base pay as that enjoyed by such Employee immediately
prior to the Closing Date, provided, however, that with respect
to the Employees set forth on Schedule 9.3(a)(i), Buyer shall have the
option, but not the obligation, to offer employment with Buyer;


 


(ii)           Buyer shall cause Suplementos Solgar to
continue the employment of all Employees of Suplementos Solgar on the same
terms and conditions in effect as of the Effective Time;


 


(iii)          U.S. Employees who accept Buyer’s offer of
employment, Employees of Suplementos Solgar and any Ex-U.S. Employees who
accept Buyer’s offer of employment or whose employment is transferred to Buyer
or an Affiliate of Buyer by operation of law shall be considered to be “Transferred
Employees” hereunder; provided that Employees who are not actively employed at
the Closing Date but who report to active employment with Buyer or an Affiliate
of Buyer within one year of the Closing Date shall be considered to be a
Transferred Employee as of the date such Employees report to active employment
with Buyer or an Affiliate of Buyer;


 


(iv)          Buyer agrees to offer employment to all
union, work council or labor represented Employees and agrees to assume the
terms and conditions of any union, work council or collective bargaining
agreements as in effect on the Closing Date and disclosed to Buyer prior to the
date hereof; and


 


(v)           Except as specifically provided in this
Article 9, Seller and its Affiliates shall remain responsible for, and shall
indemnify and hold Buyer and its Affiliates harmless against all liabilities,
claims or losses related to (A) any current or former employees of Seller or
its Affiliates who are not considered Transferred Employees hereunder, (B)
Transferred Employees to the extent such liabilities, claims or losses relate
to events occurring on or before the Closing (or, if later, the date an
Employee is considered to be a Transferred Employee hereunder), (C) the U.S.
Employee Plans, U.S. Benefit Arrangements or International Plans (except any
International Plan of Suplementos Solgar, which shall remain with Suplementos
Solgar) 


 


51





















 


and (D) International Plans of Suplementos
Solgar, if any, to the extent such liabilities, claims or losses relate to
events occurring on or before the Closing.


 


(b)           During the 15-month period commencing on the
Closing Date, Buyer shall implement, or cause to be implemented, a severance
policy for Transferred Employees that provides severance benefits to eligible
participants (as defined in such policy) as set forth on Schedule 9.3(b).


 


(c)           Except as set forth in Section 9.3(b),
nothing herein shall limit the authority or ability of Buyer and its Affiliates
to modify the terms and conditions of any Transferred Employee’s employment
after Closing.


 


9.4.       Treatment of Seller’s and Buyer’s U.S.
Employee Plans and U.S. Benefit Arrangements.


 


(a)           (i)            Except as set forth in Section 9.4(f),
no assets of any defined benefit Pension Plan, U.S. Employee Plan or U.S.
Benefit Arrangement shall be transferred to Buyer or any of its Affiliates or
to any plan of Buyer or any of its Affiliates and except as set forth in Section
9.4(f), Buyer and its Affiliates shall assume no liability or obligation of
Seller or any of its Affiliates under any of the U.S. Employee Plans, the U.S.
Benefit Arrangements or the Pension Plans.


 


(ii)           After the Closing Date, Buyer shall provide
U.S. Employees with benefit plans, policies and programs that are the same as
those offered to similarly situated employees of Buyer.  Buyer shall provide Transferred Employees
with credit for service completed with Seller or its Affiliates under Buyer’s
vacation policy.


 


(iii)          Buyer shall assume all U.S. Employees’
compensation, bonus (other than bonuses payable under Seller’s Performance
Incentive Award Program) and vacation liabilities to the extent the amounts of
those liabilities are reflected in the Final Net Asset Value regardless of
whether such liabilities relate to events which occurred prior to the Closing
Date.


 


(b)           Buyer maintains the NBTY, Inc. Employees
Stock Ownership Plan and the NBTY, Inc. 401(k) Savings Plan for the benefit of
its employees (“Buyer’s U.S. Savings Plans”).  Buyer agrees to amend Buyer’s U.S. Savings
Plans with respect to the Transferred Employees who are U.S. Employees in accordance
with Schedule 9.4(b).


 


(c)           Seller maintains the Seller’s U.S. Savings
Plan and the Wyeth Retirement Plan - United States (“Seller’s U.S. Pension
Plan”).  Seller agrees to amend
Seller’s U.S. Savings Plans and Seller’s U.S. Pension Plan with respect to the
Transferred Employees who are U.S. Employees in accordance with Schedule
9.4(c).


 


(d)           With respect to the U.S. Employees who are
Transferred Employees, Seller shall retain liability under any group life,
accident, worker’s compensation, medical, hospitalization, prescription drug,
dental, spending account or short-term or long-term disability plan, whether or
not insured, for any claims incurred on or prior to the Closing Date (or, if
later, the date a U.S. Employee becomes a Transferred Employee), and Buyer
shall assume


 


52





















 


all liability for claims arising after the
Closing Date (or, if later, the date a U.S. Employee becomes a Transferred
Employee) under its group life, accident, worker’s compensation, medical,
hospitalization, prescription drug, dental, spending account or short-term or
long-term disability plans (“Buyer’s U.S. Welfare Plans”).  For purposes of this Section 9.4(d),
claims shall be deemed to have arisen:


 


(i)            with respect to all death or dismemberment
claims, on the actual date of death or dismemberment;


 


(ii)           with respect to disability or salary
continuance claims, on the day the claimant became disabled or otherwise
entitled to salary continuation;


 


(iii)          with respect to all hospital, medical, drug
or dental claims, on the date the service or supply was purchased or received
by the claimant; and


 


(iv)          with respect to worker’s compensation claims,
on the date of the occurrence.


 


(e)           As of the Closing Date, all U.S. Employees
shall be eligible to participate in Buyer’s U.S. Welfare Plans in accordance
with the terms of such plans and, unless prohibited by the vendors of Buyer’s
U.S. Welfare Plans, employment with Seller or its Affiliates will be taken into
account for purposes of determining eligibility to participate and benefits
under Buyers’ U.S. Welfare Plans; provided, however, that


 


(i)            unless prohibited by the vendors of Buyer’s
U.S. Welfare Plans, U.S. Employees shall participate under Buyer’s U.S. Welfare
Plans as of the Closing Date without any waiting periods, without evidence of
insurability, and without application of any pre-existing physical or mental
condition limitations except to the extent applicable under similar plans
maintained by Seller; and


 


(ii)           unless prohibited by the vendors of Buyer’s
U.S. Welfare Plans, Buyer shall count claims arising during the calendar year
on or prior to the Closing Date for purposes of satisfying deductibles, out-of
pocket maximums, and all other similar limitations.


 


(f)            Seller maintains a dependent care spending
account plan and a medical spending account plan for the benefit of their
employees (“Seller’s Spending Account Plans”).  Transferred Employees who are participants in
Seller’s Spending Account Plans shall be permitted to submit claims for
expenses incurred during the plan year on or prior to the Closing Date for a
period of sixty (60) days after the Closing. 
At the end of the sixty (60) day period, any funds remaining in the
medical spending account of a Transferred Employee shall be transferred in cash
to the medical spending account of Buyer. 
Buyer shall be responsible for all liabilities for Transferred Employees
arising after the Closing Date under Buyer’s spending account plans.


 


53





















 


9.5.       International Employees of the European Union.


 


(a)           Seller and Buyer accept and agree that the
transfer of employment of the Ex-U.S. Employees in the EU countries
(hereinafter referred to as “European Employees”) will be effected and
governed by the Transfer Provisions (defined below).


 


(b)           Buyer shall ensure that its Affiliates (where
necessary) comply with their respective obligations under the Transfer
Provisions and upon reasonable request provide Seller or the relevant Seller’s
Affiliate with such information necessary to enable either Seller or its
Affiliate as the case may be to carry out its duties under the Transfer
Provisions concerning measures to effectuate the transfer of the European
Employees to Buyer.


 


(c)           “Transfer Provisions” shall mean any
legislation implementing the provisions of Directive 77/187/EEC commonly called
the Acquired Rights Directive or Transfer of Undertakings Directive.


 


9.6.       Treatment of Seller’s International Plans.


 


(a)           Buyer shall provide, or cause its Affiliates
to provide the Ex-U.S. Employees who are Transferred Employees with plans,
programs and benefits which are the same as those provided to similarly
situated employees of Buyer.  If Buyer
does not currently have other employees in a particular country, Buyer shall
provide benefit plans, policies or arrangements which are substantially similar
to those provided to Ex-U.S. Employees who are Transferred Employees by Seller
immediately prior to Closing Date.


 


(b)           No assets or liability of any International
Plan shall be transferred to, or become the responsibility of, Buyer or any of
its Affiliates (including, without limitation, Suplementos Solgar) or to any
plan of Buyer or any of its Affiliates (including, without limitation,
Suplementos Solgar) or be retained by Suplementos Solgar or any of its plans.


 


(c)           Buyer shall recognize each Ex-U.S. Employee’s
service with Seller and Seller’s Affiliates for purposes of determining
retirement and savings plan eligibility for participation and vesting of
benefits under the appropriate pension plan of Buyer, but not for purposes of
accruing the benefits under such plans.


 


(d)           With respect to all Ex-U.S. Employees, Seller
shall retain liability under any group life, accident, worker’s compensation,
medical, hospitalization, prescription drug, dental or short-term or long-term
disability plan, whether or not insured, for any claims incurred on or prior to
the Closing Date (or, if later, the date an Ex-U.S. Employee becomes a
Transferred Employee) and Buyer shall assume all liability for claims arising
after the Closing Date or, if later, the date an Ex-U.S. Employee becomes a
Transferred Employee) under any group life, accident, worker’s compensation,
medical, hospitalization, prescription drug, dental or short-term or long-term
disability plan (“Buyer’s International Welfare Plans”).  For purposes of this Section 9.6(d),
claims shall be deemed to have arisen:


 


(i)            with respect to all death or dismemberment
claims, on the actual date of death or dismemberment;


 


54





















 


(ii)           with respect to disability or salary
continuance claims, on the day the claimant became disabled or otherwise
entitled to salary continuation;


 


(iii)          with respect to all hospital, medical, drug
or dental claims, on the date the service or supply was purchased or received
by the claimant; and


 


(iv)          with respect to worker’s compensation claims,
on the date of the occurrence.


 


(e)           As of the Closing Date, all Ex-U.S. Employees
shall be eligible to participate in the appropriate Buyers’ International
Welfare Plans in accordance with the terms of such plans, and employment with
Seller and its Affiliates shall be taken into account for purposes of
determining eligibility for participation and benefits under Buyer’s International
Welfare Plans; provided, however, that (i) unless prohibited by
the vendors of Buyer’s International Welfare Plans, Ex-U.S. Employees shall
participate under Buyer’s International Welfare Plans as of the Closing Date
without any waiting periods, without any evidence of insurability, and without
application of any pre-existing physical or mental condition limitations,
except to the extent applicable under Seller’s International Plans, and (ii)
unless prohibited by the vendors of Buyer’s International Welfare Plans, Buyer
shall count claims arising on or prior to the Closing Date for purposes of
satisfying deductibles, out-of-pocket maximums, and other similar limitations
in Buyer’s International Welfare Plans.


 


9.7.       Stock Options. 
Seller shall be responsible for and incur the costs of stock option
compensation for all Employees with stock options from Seller that are
exercisable or become exercisable as of the Closing Date.  In addition, Seller shall be responsible for
payments, if any, to Employees relating to non-exercisable stock options as of
the Closing Date.  Seller shall be liable
for any payments, withholding obligations and reporting obligations that arise
after the Closing Date under this Section 9.7 under any applicable stock
option or stock incentive plan in accordance with its terms.


 


9.8.       No Third Party Beneficiaries.  No
provision of this Agreement shall create any third party beneficiary or other
rights in any Employee (including any beneficiary or dependent thereof) or any
persons in respect of continued employment with any of Suplementos Solgar, with
Seller, or with any of its Affiliates and no provision of this Agreement shall
create any such rights in any such persons in respect of any benefits that may
be provided, directly or indirectly, under any U.S. Employee Plan or U.S.
Benefit Arrangement, any International Plan or any plan or arrangement which
may be established by Buyer or any of its Affiliates.  No provision of this Agreement shall constitute
a limitation on the right of Buyer, Suplementos Solgar or any Affiliates of
Buyer to terminate any Employee at will.


 


ARTICLE 10



TERMINATION


 


10.1.        Termination.  This Agreement may be
terminated at any time prior to the Closing Date:


 


(a)           by mutual consent of Buyer and Seller;


 


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(b)           by Buyer or Seller (provided it is not in
material breach hereof) if the Closing shall not have occurred on or prior to
August 15, 2005; provided, however, that the right to
terminate under this Section 10.1(b) shall not relieve any party whose
failure to fulfill any obligation under this Agreement has been the cause of,
or resulted in, the failure of the Closing to occur on or before such date of
any liability of such party to the other party hereunder for such failure;


 


(c)           subject to Section 7.4, by Buyer or
Seller if a Governmental Authority shall have issued an order, decree or ruling
or taken any other action, in each case permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement, and such
order, decree, ruling or other action shall have become final and
nonappealable;


 


(d)           by Buyer or Seller if a material breach of
this Agreement has been committed by the other, which such breach has not been
cured within five (5) business days after written notice thereof by the
terminating party to the non-terminating party; or


 


(e)           by Buyer or Seller upon receipt of written
notice from the other party that satisfaction of a condition to such
terminating party’s obligations hereunder is impossible.


 


10.2.        Effect of Termination. 
Except as set forth in this Article 10 and Sections 4.17,
5.2, 7.1 and 7.3, and Article 12, upon the termination of this
Agreement pursuant to Section 10.1, all further obligations of the
parties under this Agreement shall terminate without further liability of any
party to the others, except for any willful breaches of this Agreement prior to
the time of such termination.


 


ARTICLE 11



INDEMNIFICATION


 


11.1.        Indemnification.


 


(a)           Except with respect to any claim related to
Taxes, for which Section 7.5 of this Agreement shall provide the sole
and exclusive remedy, and subject to Section 11.3, Seller shall
indemnify, defend and hold harmless Buyer and its Affiliates and their
respective officers, directors, employees, agents, representatives and
controlling Persons from any liability, damage, deficiency, loss, judgments,
assessments, cost or expense, including reasonable attorneys’ fees and costs of
investigating and defending against, or cooperating with respect to, lawsuits,
complaints, actions or other pending or threatened litigation, but specifically
excluding consequential, special and punitive damages and damages for lost
profits (except to the extent any of the foregoing excluded damages are specifically
included in an award to a third party) (“Losses”), incurred by such
Persons arising from or attributable to:


 


(i)            the breach of any representation or warranty
made by Seller in this Agreement (excluding Section 4.6 in accordance
with Section 7.5(h));


 


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(ii)           any failure of Seller to perform or observe
any covenant or agreement to be performed or observed by Seller pursuant to
this Agreement;


 


(iii)          the Excluded Liabilities;


 


(iv)          the Retained Environmental Liabilities;


 


(v)           only to the extent attributable to sales by
the Business prior to the Closing, the matters set forth as items (1) through
(4) and item (7) on Schedule 4.9(b)(i);


 


(vi)          the claims set forth as items (1) through (5)
on Schedule 4.10(a) (and, with respect to such claims, any other claim
asserted by the same claimant based on the same operative facts) and the
assessment and appeal identified in paragraph (vii) under item (2) on Schedule
4.13(a) (the defense or prosecution of which claims, assessments or
appeals, for the avoidance of doubt, shall be retained and controlled by
Seller, subject to paragraph (d) of Schedule 11.2 and, with respect to
the assessment and appeal identified in paragraph (vii) under item (2) on Schedule
4.13(a), the second sentence of paragraph (c) of Schedule 11.2 (provided,
however, that Seller may, in its sole discretion, determine after the
date hereof not to pursue such appeal and to pay such assessment in full in
accordance with its terms));


 


(vii)         in each case only to the extent directly
related to activities of the Business prior to the Closing, the matters set
forth on Schedule 4.10(b);


 


(viii)        in each case only to the extent directly
related to activities of the Business prior to the Closing, fines and penalties
assessed by Governmental Authorities directly related to the matters set forth
as item (4) on Schedule 4.13(a) and items (3) through (20) on Schedule
4.13(b); and


 


(ix)           any non-compliance with any bulk sales laws
or fraudulent transfer law in respect of the contemplated transactions.


 


(b)           Except with respect to any claim related to
Taxes, for which Section 7.5 of this Agreement shall provide the sole
and exclusive remedy, Buyer shall indemnify, defend and hold harmless Seller
and its Affiliates and their respective officers, directors, employees, agents
and controlling Persons from Losses incurred by such Persons arising from or
attributable to:


 


(i)            the breach of any representation or warranty
made by Buyer in this Agreement;


 


(ii)           any failure of Buyer duly to perform or
observe any covenant or agreement to be performed or observed by Buyer pursuant
to this Agreement;


 


(iii)          the Assumed Liabilities;


 


(iv)          the Buyer Environmental Liabilities; and


 


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(v)           all liabilities and obligations (except for
any Environmental Liabilities) to the extent relating to the manufacture, use,
sale, marketing, promotion or distribution of products of the Business, or the
operation of the Business or the Assets, from and after the Closing (including
without limitation liabilities and obligations under adverse experience
reporting requirements, if any are imposed or applicable from or after the
Closing, under any Applicable Laws).


 


(c)           Seller and Buyer shall indemnify each other
for all Taxes for the periods and in the manner described in Section
7.5, which shall be the sole and exclusive basis for indemnity for Taxes under
this Agreement.


 


(d)           Notwithstanding any other provisions
contained in Sections 11.1 or 11.2, Seller shall have the right to
direct, manage and control, and take such actions as are reasonably necessary
in connection with, any Remedial Action or defense or other resolution
(collectively, the “Primary Control Rights”) of any claim, event or
condition subject to indemnification under Sections 11.1(a)(i) (relating
to a breach of Section 4.12) and 11.1(a)(iv) (Retained Environmental
Liabilities).  Seller shall also have
Primary Control Rights concerning any claim, event or condition with respect to
which Seller is responsible for a majority of the Losses under Section
7.12.  In the event Seller does not elect
to assume Primary Control Rights or with respect to matters where Seller does
not have Primary Control Rights under this Section 11.1(d), Buyer shall
have the right to assume the Primary Control Rights over the claim, event or
condition.  Upon advance written notice
by Seller to Buyer, Buyer shall provide Seller with access to the Leased Real
Property reasonably necessary for Seller to exercise its Primary Control Rights
under this Section 11.1(d). 
Seller shall notify and consult with Buyer with respect to such matters
prior to taking action and, to the extent any claim, event or condition subject
to indemnification involves or requires work to be performed at the Leased Real
Property, Seller shall in all material respects:


 


(i)            comply with all Applicable Laws (including,
without limitation, Environmental Laws) and all leases related to the Leased
Real Property;


 


(ii)           use the Leased Real Property and perform
Remedial Action in a manner that will not unreasonably interfere with or
unreasonably interrupt the operations or business thereon or unreasonably
compromise the safety of the Leased Real Property or the business or operations
thereon; and


 


(iii)          promptly, upon completion of any phase of
Remedial Action, restore any adversely affected portion of the Leased Real
Property to its pre-disturbed condition to the extent practicable, such that
Buyer can continue its operations in the manner in which such operations were
conducted prior to the commencement of the Remedial Action.


 


(e)           The Party with the Primary Control Rights
shall indemnify and hold the other party and its Affiliates harmless from any
Losses arising from any negligent act or omission or willful misconduct in
performing Remedial Actions.


 


(f)            Buyer shall not conduct nor allow any other
party under the control of Buyer to conduct any Phase II or other intrusive
environmental testing and/or sampling during


 


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the three (3) year period after the Closing
Date, and Seller shall not be required to provide indemnification under Section
11.1 or have responsibility pursuant to Section 7.12 with respect to
environmental conditions first identified by such testing or sampling, unless
such testing or sampling is (i) required by a demand, complaint, order,
directive or similar enforceable request of a Governmental Authority directed
to Buyer acting within the scope of its jurisdiction or authority; (ii)
reasonably necessary to comply with Environmental Law (including, without
limitation, ISRA); (iii) required to respond to or correct an imminent and
substantial threat of a material risk to human health or the environment,
provided Buyer uses reasonable best efforts to notify Seller in advance of such
situation posing such imminent and substantial threat; (iv) necessary for
construction specifically required to comply with “Current Good Manufacturing
Practices” (as defined in 21 CFR Part 111) (“cGMP Construction”),
maintenance or repair activities on the Leased Real Property, which
construction, maintenance or repair is performed for a bona fide business
purpose; (v) necessary for construction activities which are not cGMP
Construction activities on the Leased Real Property, which construction is
performed for a bona fide business purpose; or (vi) necessary to respond to any
reasonable due diligence request in connection with any bona fide existing or
future issuance of bonds or any other bona fide financing transaction by Buyer
or future sale of all or substantially all of the assets and business of Buyer;
provided, however, Buyer shall give advance written notice of any
testing or sampling proposed to be performed under subsection (ii) above if
relating to an ISRA process that is triggered by an action of Buyer (“Buyer-Triggered
ISRA”) and not by an action of a third party who is not an Affiliate of or
otherwise related to Buyer (such as, by way of example and not limitation, a
landlord in connection with its sale of a Leased Real Property to a Person
other than Buyer or its Affiliates); or subsection (v) above; and provided,
further, in the case of a Buyer-Triggered ISRA (except for a Buyer
Triggered ISRA resulting from the expiration and non-renewal of any lease for a
Leased Real Property in accordance with its terms) or an investigation or
assessment conducted pursuant to subsection (v) or (vi) above, Seller shall
only be responsible for environmental conditions created by the activities of
Seller at the Leased Real Property, and only to the extent Seller is
responsible for such matters pursuant to the Seller ISRA Requirements or Section
7.12 of this Agreement.


 


(g)           At any time after the Closing and prior to
the issuance of a NFA by the NJDEP pursuant to Section 7.11(b) with respect
to the facilities subject to the Seller ISRA Requirements, Buyer agrees to
promptly notify Seller regarding any Release(s) of Hazardous Substance(s) that
are material or are required to be reported under any Environmental Law
applicable to Buyer’s operations at the Leased Real Property.


 


(h)           With respect to any Remedial Action or other
defense or other resolution of any claim, event or condition subject to
indemnification or reimbursement, the party with the Primary Control Rights
shall provide the party without the Primary Control Rights with a right to
observe and, to the extent set forth below, participate in such matters,
including a right for the party without Primary Control Rights to (i) receive,
review and comment on copies of written proposals with respect to any proposed
Remedial Action and the results of any sampling and analysis (including any
status reports of work in progress or other submissions) or reports required to
be submitted to any Governmental Authority in connection with conducting the
Remedial Actions prior to submission to any Governmental Authority and/or
implementation by the party with the Primary Control Rights (and the party with
Primary Control Rights shall incorporate any reasonable comments of the other
party with respect to the same); and (ii) attend


 


59





















 


as an observer, but not participate in,
meetings with Governmental Authorities or other Persons; and in any event Buyer
shall be given the right to consent to any activity that would reasonably be
expected to have a material adverse impact on any Leased Real Property or the
operation of the Business.


 


11.2.        Procedures.  Buyer and Seller agree to
observe the procedures set forth on Schedule 11.2 with respect to any
claim or the commencement of any action or proceeding, in each case which may
give rise to indemnification hereunder.


 


11.3.        Limitations.  An Aggrieved Party shall not
be entitled to recover any Losses under Section 11.1(a)(i) until the
aggregate amount of the Losses suffered by the Aggrieved Party thereunder shall
exceed One Million One Hundred Fifty Thousand Dollars ($1,150,000) (the “Minimum
Loss”), at which time the indemnification provided under Section
11.1(a)(i) shall apply to all Losses in excess of the Minimum Loss; provided,
however, that the maximum liability of Seller under Section
11.1(a)(i) and Seller’s share of the Unknown Pre-Closing Environmental
Liabilities under Section 7.12 (including any obligations of Seller
under Section 11.1(a)(ii) with respect thereto) shall not exceed Eleven
Million Five Hundred Dollars ($11,500,000) in the aggregate (the “Cap”)
(provided, however, that the maximum liability provided under
this clause shall not apply to Losses to the extent relating to a breach of
Seller’s representations and warranties set forth in the first sentence of Section
4.7(a)).  Notwithstanding anything to the
contrary contained in this Agreement, an Aggrieved Party shall not be entitled
to indemnification under Article 11 with respect to any matter to the
extent such matter has been raised (pursuant to a Notice of Disagreement or
otherwise) in connection with the determination of Final Net Asset Value under Section
3.5.  Solely for purposes of determining
the amount of any Loss arising out of a breach of a representation, warranty or
covenant in this Agreement (and not for purposes of determining whether a
breach of any representation, warranty or covenant has occurred), references to
“Material Adverse Effect” and other materiality qualifications shall be
disregarded.  For the avoidance of doubt,
the first sentence of this Section 11.3 shall not apply to (x) any claim
related to Taxes, for which Section 7.5 of this Agreement shall provide
the sole and exclusive remedy, or (y) any claim pursuant to Sections
11.1(a)(ii) - (ix) (except with respect to Seller’s share of the Unknown
Pre-Closing Environmental Liabilities under Section 7.12 (including any
obligations of Seller under Section 11.1(a)(ii) with respect thereto))
or Section 11.1(b).


 


11.4.        Additional Procedures Relating to
Environmental Matters.


 


(a)           Each party agrees that it shall not, and
shall use its commercially reasonable efforts to ensure that each of its
Affiliates shall not, directly or indirectly, communicate orally or in writing
with any Governmental Authority relating to any actual or potential
Environmental Liabilities for which the other party might be responsible under
this Agreement; provided that in the event Buyer or Seller believes in
good faith that such communication is either (i) required by any Applicable Law
(including any Environmental Law),  or
(ii) is otherwise required in the ordinary course of business in an emergency
or exigent situation, Buyer or Seller shall be entitled to make such
communication subject to the provisions of this Section 11.4(a).  With respect to communication under clause
(i) above, Buyer or Seller, as the case may be, shall notify the potentially
Indemnifying Party in advance of making such communication and shall give such
other party a reasonable period of time to either make such


 


60





















 


communication itself (but in no event
exceeding any timeframes for such reporting under any Applicable Law, including
any Environmental Law) or to provide a written opinion of independent counsel
that such communication is not legally mandated, in which event, the party
providing such opinion shall agree, in writing, to indemnify, defend and hold
harmless the requesting party for the failure to so communicate.


 


(b)           Each party’s obligations pursuant to Section
7.12 and this Article 11 to conduct any Remedial Action shall be deemed
satisfied so long as the remedy (i) complies with the minimum standards
enforceable under applicable Environmental Laws in effect at the time of the
performance of the Remedial Action, (ii) is approved or authorized by
Governmental Authorities with jurisdiction over such matters if such approval
or authorization is required by applicable Environmental Laws, (iii) complies
with the minimum standards set forth in the applicable Leased Real Property
lease, if any, (iv) complies with any enforceable order of a Governmental
Authority, and (v) if applicable, is necessary to respond to any asserted third
party claim (the “Remediation Standard”).  The Indemnifying Party may use the most cost
effective method of achieving the Remediation Standard including, without
limitation, the use of commercial, industrial and/or other forms of
non-residential cleanup criteria and the use of environmental land use restrictions
or similar institutional controls to the extent that such criteria,
restrictions and controls (i) are appropriate given the use of the subject
property as such property was used on the Closing Date by Seller and (ii) do
not unreasonably and materially interfere with Buyer’s operation of the
Business as such Business was operated by Seller on the Closing Date.  The parties agree that, subject to the
preceding sentence, if such environmental land use restrictions or similar
institutional controls are approved or authorized by Governmental Authorities
or Environmental Laws, as applicable, for use on or affecting any Leased Real
Property, Seller shall obtain the prior written consent of Buyer (such consent
not to be unreasonably withheld or delayed) for any such restrictions or
similar controls, and if Buyer provides such consent, Buyer will execute any
required documents and will cooperate with Seller in (i) obtaining any other
signatures or consents required and (ii) the recording, on the applicable land records,
of such environmental land use restrictions or similar controls.


 


(c)           Without limiting any other provisions of this
Agreement, Seller’s obligation to Buyer under Section 11.1(a)(i), Section
11.1(a)(iv) (Retained Environmental Liabilities) or Section 7.12 with
respect to the completion of any Remedial Action shall be deemed satisfied upon
the issuance of a NFA or similar sign-off issued for the benefit of Buyer and
its successors and assigns by the Governmental Authority with jurisdiction over
such matters where such governmental sign-off is required and available under
Environmental Laws to document compliance with the Remediation Standard.


 


11.5.        Indemnification as Sole Remedy.  The
indemnification provided in this Article 11 (and, with respect to Taxes
and certain Unknown Pre-Closing Environmental Liabilities, Article 7),
subject to the limitations set forth herein (and therein), shall to the extent
permitted by law be the sole and exclusive post-Closing remedy for any and all
liabilities arising under, or subject to indemnification or cost-sharing
pursuant to, this Agreement, including without limitation any breach or
violation of any representation, warranty, covenant or agreement set forth
herein.


 


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11.6.        Net of Insurance; Etc.  The
amount of any Loss for which indemnification is provided under Sections
7.5 or 11.1 shall be net of (i) any amounts recovered by the Aggrieved Party or
any of its Affiliates pursuant to any indemnification by or indemnification
agreement with any third party, (ii) any insurance proceeds or other cash
receipts or sources of reimbursement received as an offset against such Loss
(each source named in clauses (i) and (ii), a “Collateral Source”), and
(iii) any specific accruals or reserves with respect to such Loss (or
overstatement of liabilities with respect to such Loss in respect of actual
liability) included in the Final Net Asset Value.  The parties shall take and shall cause their
Affiliates to take all commercially reasonable steps (but shall not be required
to expend significant funds) to pursue such Collateral Sources with respect to
any Loss upon becoming aware of any event that would reasonably be expected to,
or does, give rise thereto, provided, however that nothing in
this Section 11.6 shall in any way defer or delay the obligations of the
Indemnifying Party to make all payments required pursuant to Section 7.5
or Article 11 in connection with such Loss.  The Indemnifying Party may require an
Aggrieved Party to assign the rights to seek recovery from Collateral Sources
pursuant to the preceding sentence, and the Indemnifying Party shall subrogate
to the rights of the Aggrieved Party against any Collateral Sources to the
extent the Indemnifying Party has provided indemnification to the Aggrieved
Party, but in neither case until the Loss in question has been fully paid;
provided, that the Indemnifying Party will then be responsible for pursuing
such recovery at its own expense.  If the
amount to be netted hereunder from any payment required under Section
7.5 or Section 11.1 is determined after payment by the Indemnifying
Party of any amount otherwise required to be paid to an Aggrieved Party
pursuant to Section 7.5 or Article 11, the Aggrieved Party shall
repay to the Indemnifying Party, promptly after such determination, and upon
payment in full of the Loss in question, any amount that the Indemnifying Party
would not have had to pay pursuant to Section 7.5 or Article 11
had such determination been made at the time of such payment.


 


ARTICLE 12



GENERAL PROVISIONS


 


12.1.        Public Statements.  Prior to the Closing, or afterward, none of
the parties hereto shall issue or cause the publication of any press release or
other public announcement with respect to this Agreement or the transactions
contemplated hereby without consulting with and obtaining the consent of the
other party, which shall not be unreasonably withheld; provided, however,
that such consent shall not be required where such release or announcement is
required by Applicable Law or pursuant to any stock listing agreement or the
rules of any stock exchange.  Subject to
Applicable Law, prior to Closing Seller and Buyer agree to use commercially
reasonable efforts to consult with each other concerning the means by which the
Employees and the customers and suppliers of the Business are informed of the
transactions contemplated by this Agreement.


 


12.2.        Notices.  All notices and other
communications required hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally, mailed by reputable overnight
courier or certified mail (return receipt requested) or sent by telecopier
(confirmed thereafter by such certified mail) to the parties at the following
addresses or at such other addresses as shall be specified by the parties by
like notice:


 


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(a)           if to Seller:


 


c/o Wyeth


Five Giralda Farms


Madison, New Jersey 07940


Attention: Chief Financial
Officer


Telecopier Number: (973)
660-7156


 


with a copy to:


 


Wyeth


Five Giralda Farms


Madison, New Jersey 07940


Attention: Senior Vice
President and General Counsel


Telecopier Number: (973)
660-7155


 


(b)           if to Buyer:


 


NBTY, Inc.


90 Orville Drive


Bohemia, New York  11716


Attention:  President


Telecopier Number:  (631) 567-7148


 


with copies to:


 


NBTY, Inc.


90 Orville Drive


Bohemia, New York  11716


Attention:  Irene Fisher, Esq.


Telecopier Number:  (631) 218-7341


and


 


Milbank, Tweed, Hadley &
McCloy LLP


One Chase Manhattan Plaza


New York, New York  10005


Attention:  Mark Weissler, Esq.


Telecopier Number:  (212)
822-5446


 


Notice so given shall (in
the case of notice so given by mail) be deemed to be given and received on the
fifth (5th) calendar day after mailing or the next business day if
sent by a reputable overnight courier and (in the case of notice so given by
telecopier or personal delivery) on the date of actual transmission or (as the
case may be) personal delivery.


 


12.3.        Survival of Representations and Warranties.  The
respective covenants, agreements, representations and warranties of the parties
hereto shall survive the Closing and shall remain in full force and effect, provided,
however, that (a) the representations and


 


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warranties set forth in the first sentence of
Section 4.7(a) (Good Title to and Condition of Assets) and in Section
4.12 (Environmental Matters) shall expire on the third (3rd) anniversary of the
Closing Date, (b) the representations and warranties in Sections 4.17
(Broker’s Fees) and 5.2 (Broker’s Fees) shall survive without limitation to
time and (c) all other representations and warranties shall expire eighteen
(18) months after the Closing Date, in each case, unless a party notifies the
other of a claim specifying the factual basis in reasonable detail to the
extent then known by it (in which case such representations and warranties
shall survive solely to the extent related to such claim until such claim is
resolved).


 


12.4.        Amendment.  This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.


 


12.5.        Waiver.  Any term, provision or
condition of this Agreement shall be waived only in writing (or the time for
performance of any of the obligations or other acts of the parties hereto shall
be extended only in writing) by the party that is entitled to the benefits
thereof.  Failure or delay by a party
hereto on one or more occasions to avail itself of a right conferred by this
Agreement, or the partial exercise thereof, shall in no event be construed as a
waiver of such party’s right to enforce said right or any other right in the
future.  All remedies, either under this
Agreement or by applicable law or otherwise afforded, will be cumulative and
not alternative.


 


12.6.        Parties in Interest.  This
Agreement and the Operative Agreements may not be assigned by a party without
the prior written consent of the other parties hereto provided that Buyer may
assign its rights (but not its obligations) under this Agreement upon written notice
to Seller through collateral assignment to any lender providing financing in
connection with the transactions contemplated hereby; and, provided, further,
that Buyer shall be entitled, without the prior written consent of Seller, to
assign some or all of its rights under this Agreement and the Operative
Agreements to one or more wholly-owned subsidiaries of Buyer, provided
that, prior to any such assignment, Buyer and such subsidiary shall agree in
writing addressed to Seller to be responsible, jointly and severally, for the
liabilities and obligations of Buyer under this Agreement and the Operative
Agreements and such assignment shall not relieve Buyer of its primary
responsibility for such liabilities and obligations hereunder and thereunder.  Other than with respect to any Person
entitled to indemnity under Article 11, this Agreement shall not run to
the benefit of or be enforceable by any Person other than a party to this
Agreement and, subject to the first sentence of this Section 12.6, its
successors and assigns.


 


12.7.        Seller’s Knowledge.  When
“to the knowledge of Seller,” “to Seller’s knowledge” or any similar phrase is
used herein it shall refer to the actual knowledge, without investigation, of
the persons set forth on Schedule 12.7.


 


12.8.        Entire Agreement.  This Agreement and the Operative Agreements
(including the Disclosure Schedule and the other documents, certificates and
instruments referred to herein, including the confidentiality agreement, dated
September 30, 2004, between Buyer and Seller) constitute the entire agreement
and supersede all other prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.


 


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12.9.        Governing Law; Jurisdiction.  This Agreement (including the
documents and instruments referred to herein) shall be governed in all
respects, including validity, interpretation and effect, by the internal laws
of the State of New York. The parties hereto agree that the courts of the State
of New York, New York County, or (if it has or can acquire jurisdiction) U.S.
District Court for the Southern District of New York, shall have exclusive
jurisdiction over any dispute or controversy arising out of or relating to this
Agreement. Each of the parties irrevocably submits to the jurisdiction of each
such court, waives any objection to venue and defense of inconvenient forum to
the maintenance of any action or proceeding so brought, agrees that all claims
in respect of the action or Proceeding shall be heard and determined only in
any such court and agrees not to bring any action or Proceeding arising out of
or relating to this Agreement or any transaction contemplated hereby (other
than enforcement of judgments obtained therein) in any other court and waives
any bond, surety, or other security that might be required of any other party
with respect thereto.


 


12.10.      Counterparts.  This
Agreement may be executed in one or more counterparts which together shall
constitute a single agreement.


 


12.11.      Validity.  If any provision of this
Agreement shall be held to be illegal, invalid or unenforceable under any
applicable law, then such contravention or invalidity shall not invalidate the
entire Agreement.  Such provision shall
be deemed to be modified to the extent necessary to render it legal, valid and
enforceable, and if no such modification shall render it legal, valid and
enforceable, then this Agreement shall be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties
shall be construed and enforced accordingly.


 


12.12.      Disclosure Schedule.  The
disclosure of any matter in the Disclosure Schedule shall expressly not be
deemed to constitute an admission by Seller or Buyer of its requirement to be
disclosed or to otherwise imply that any such matter is material for the
purposes of this Agreement.  Any item
disclosed on a Disclosure Schedule shall be deemed to be a disclosure in all
other Disclosure Schedules to which it is readily apparent that such item is
applicable.


 


12.13.      Headings.  The headings of Articles and
Sections in this Agreement are provided for convenience only and will not
affect its construction or interpretation.


 


12.14.      Bulk Sales Act.  The
parties hereby waive compliance with the bulk sales act or comparable statutory
provisions of each applicable jurisdiction.


 


[signature page follows]


 


65





















 


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


 


	
   

  	
   

  	
  WYETH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Ulf Wiinberg

  	
   

  
	
   

  	
   

  	
    Name: Ulf
  Wiinberg

  
	
   

  	
   

  	
    Title:
    President–Wyeth Consumer Healthcare

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NBTY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Harvey Kamil

  	
   

  
	
   

  	
   

  	
    Name: Harvey
  Kamil

  
	
   

  	
   

  	
    Title:   President